Repatriation Commission v Brady

Federal Court of Australia|2007-07-31|Before: Gordon J

REASONS FOR JUDGMENT 1 Mr William Brady ("the veteran") is a Vietnam Veteran. He served in Vietnam between 2 April 1970 and 12 December 1970 as a member of the 102 Field Workshops. 2 On 20 April 2007, the Repatriation Commission ("the Commission") appealed under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") against the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 23 March 2007. The decision concerned the claim of the veteran to a pension under the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). 3 The Tribunal was not satisfied that the veteran suffered from the kind of disease described as post-traumatic stress disorder ("PTSD") and affirmed that part of the decision of the Veterans' Review Board ("VRB"). The Tribunal, however, was satisfied that injuries or diseases of generalised anxiety disorder and alcohol dependence or alcohol abuse were war-caused. Accordingly, the Tribunal set aside the remainder of the VRB's decision that the veteran's anxiety disorder with comorbid depression and his alcohol abuse were not war- caused. 4 For the reasons that follow, the appeal should be allowed and the matter remitted to the Tribunal for further hearing and determination according to law by a differently constituted Tribunal.

A. STATUTORY FRAMEWORK 5 Section 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension where a veteran is incapacitated by a war-caused injury or war-caused disease. A claim for pension is made under s 14 of the VE Act and an application for an increase in the rate of pension is made under s 15 of the VE Act. 6 In Repatriation Commission v Codd [2007] FCA 877 at [9]-[24] I described the statutory framework in the following terms. The standard of proof to be applied in determining whether a claim for a pension in respect of the incapacity from injury or disease of a veteran was war-caused is prescribed by ss 120(1) and (3) of the VE Act. Section 120 of the VE Act relevantly provides: "(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: … (b) that the disease was a war-caused disease or a defence-caused disease; … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person." 7 The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's diseases with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) - namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's diseases with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. 8 As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41]. 9 Section 120(3) "is affected by s 120A" and, according to s 120A(1), applies to a claim under Part II of the VE Act made on or after 1 June 1994 that relates to the operational service rendered by a veteran: ss 120A(1)(a), 120A(3) and 120A(4). The veteran's claim was such a claim. 10 Sections 120A(3) and (4) of the VE Act provide: "(3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, … of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be." 11 Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting an injury suffered by a person, or a disease contracted by a person, with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles ("SoP") or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 12 The method by which ss 120(1), 120(3) and 120A(3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 ("the Deledio methodology"). The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." The Deledio methodology is subject to at least three important qualifications which are not presently directly relevant: see Repatriation Commission v Codd [2007] FCA 877 at [20]-[22].

B. OTHER RELEVANT PRINCIPLES 13 In considering the Commission's appeal under s 44 of the AAT Act, it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 at [14]-[16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ). 14 Secondly, the Tribunal's reasons "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 15 Thirdly, whether facts fully found fall within the provision of an Act properly construed is a question of law: Pozzolanic at 287 and Ergon Energy Corporation Ltd v Commissioner of Taxation (Cth) (2006) 232 ALR 652 at 663 - 664 (per Sundberg and Kenny JJ) and authorities cited therein.

C. THE TRIBUNAL'S ANALYSIS 16 The Tribunal had before it a considerable volume of medical evidence (in the nature of reports and clinical notes) and oral testimony from the veteran, his wife and Drs Seabridge and Strauss. 17 The Tribunal found that the "appropriate diagnosis [was] that of anxiety disorder not otherwise specified" and "alcohol dependence or alcohol abuse". 18 In reaching the conclusion that it did, there was no dispute that the Tribunal considered that it should follow and, in fact, did follow the Deledio methodology. As to the first two steps in the Deledio methodology, the Tribunal was satisfied that: (1) "a hypothesis connecting the injury or disease of anxiety disorder and alcohol dependence or alcohol abuse …with service [did] exist because there [was] material pointing to it [and that] hypothesis raised emerged … obviously and directly from the evidence… (refer Hill v Repatriation Commission [2005] FCAFC 23 at paragraph 98)"; (2) there were SoPs with respect to generalised anxiety disorder (No. 1 of 2000) ("the Anxiety SoP") and alcohol dependence and alcohol abuse (No. 76 of 1998) ("the Alcohol SoP"); (3) with respect to the Anxiety SoP, the applicable factor was "experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder": factor 5(a)(ii). The expression "severe psychosocial stressor" was defined in para 8 of the Anxiety SoP to mean "an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems"; (4) with respect to the Alcohol SoP, the applicable factor was "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse": factor 5(b). 19 The third step of the Deledio methodology required the Tribunal to examine if the hypothesis was reasonable. The Tribunal found that the hypotheses were reasonable on the grounds that there was material pointing to the veteran having experienced a "severe psychosocial stressor" and a "severe stressor" within two years immediately before the clinical onset of the respective disorders. 20 The fourth step of the Deledio methodology required the Tribunal to make findings of fact to determine whether it was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. The Tribunal made the following findings of fact: (1) the veteran drank minimum quantities of alcohol on an infrequent basis both prior to enlistment and prior to commencing his service in Vietnam; (2) during his service in Vietnam, he "became apprehensive and fearful by a number of circumstances to which he had no direct involvement but by reason of his location he was concerned that they could get [him]" (original emphasis); (3) a helicopter incident in Vietnam was the most significant event to which the veteran was exposed and prior to that helicopter incident, the veteran was emotionally vulnerable. The helicopter incident was described in the following terms: "the [veteran] was a passenger … where he heard someone say "we've been hit" and the helicopter suddenly lurched. Door gunners then opened fire from each side of the helicopter, it descended quickly, the [veteran] thought that it would crash and on landing, an inspection revealed the presence of a bullet or a bullet hole. Whilst there were slight variations in that account of the episode by the [veteran's] colleagues .., the incident itself and the circumstances immediately before landing, were corroborated. Indeed, [one colleague] said that he "feared that we would not make it" and [another colleague] said that he observed the [veteran] to be shaken. [The second colleague] said that he continues to have nightmares and dreams about that incident." (Emphasis original) (4) as a result of the helicopter incident, the veteran significantly increased his alcohol consumption "to help him cope and to help him sleep"; (5) the helicopter incident was, within the meaning of the respective SoPs, a "severe psychosocial stressor" and a "severe stressor" and did occur within two years of the clinical onset of the respective diseases. In particular, the Tribunal was satisfied that the veteran, within two years of the helicopter incident, exhibited features or symptoms which would have caused a medical practitioner to diagnose the relevant disease or injury as then being present; and (6) the veteran's injuries of anxiety and alcohol abuse or alcohol dependence were war-caused. 21 As noted earlier, the Tribunal was not satisfied that the veteran suffered from PTSD and affirmed that part of the decision of the VRB. The Tribunal was satisfied that the veteran's injuries or diseases of generalised anxiety disorder and alcohol dependence or alcohol abuse were war-caused and therefore set aside the remainder of the VRB's decision.

D. GROUNDS OF APPEAL 22 In general terms, the Commission contended that the Tribunal erred in law when it found that: (1) the veteran suffered from alcohol dependence or alcohol abuse; (2) the veteran's generalised anxiety disorder was war-caused when, in fact, the Tribunal had found that the veteran suffered from what the Commission contended was a distinct disorder - anxiety disorder not otherwise specified; and (3) the veteran's generalised anxiety disorder was war-caused because there was no or insufficient evidence to support such a finding.

Ground 3.1: ERROR OF LAW IN FINDING THAT THE VETERAN SUFFERS FROM ALCOHOL DEPENDENCE OR ALCOHOL ABUSE 23 The Commission contended that the Tribunal erred in finding that the veteran suffered from alcohol dependence or alcohol abuse on the basis that they are 'mutually exclusive disorders' diagnosed on different criteria. In particular, the Commission contended that alcohol abuse is diagnosed only if the symptoms have never met the criteria for alcohol dependence: see clause 2(b) of the Alcohol SoP. 24 The veteran submitted that the Commission's contention should be rejected on a number of bases. First, so long as there was material supporting the conclusion reached by the Tribunal, it was a question of fact whether the material before the Tribunal raised a reasonable hypothesis of alcohol dependence or alcohol abuse which was not appealable under s 44 of the AAT Act. Secondly, the disorders (alcohol dependence or alcohol abuse) were not two distinct disorders but degrees of gradation of the one disorder - alcohol abuse. 25 In support of the second basis, the veteran referred to the decision of Dowsett J in Constable v Repatriation Commission [2005] FCA 928 which concerned the conditions of alcohol dependence and alcohol abuse. The veteran's reliance upon this decision was misplaced. After setting out ss 120 and 120A of the VE Act, Dowsett J went on to consider the definition of alcohol dependence and the definition of alcohol abuse in the Alcohol SoP. As his Honour noted, the Alcohol SoP defined alcohol dependence and alcohol abuse separately. However, as his Honour went on to note, paras 3, 4 and 5 of the Alcohol SoP applied to both conditions and were in the following terms: "Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) … (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or …" 26 The expression "experiencing a severe stressor" is defined in para 8 of the Alcohol SoP to mean that: "... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence …' 27 Not surprisingly, Dowsett J stated that "[n]othing turn[ed] upon the distinction between alcohol abuse and alcohol dependence. I will hereafter describe both conditions collectively as 'alcohol abuse'": at [6]. Two matters may be noted. First, his Honour expressly recognised that there were two conditions. It is true that the factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service are the same. However, that second matter, the existence of the common factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service, does not diminish or detract from the existence of the separate conditions or from the fact that the definition of alcohol abuse in the Alcohol SoP provides that the symptoms of alcohol abuse arise only if "these symptoms have never met the criteria for alcohol dependence". 28 The question raised by this appeal was whether it was necessary for the Tribunal to find which of the two conditions was applicable to the veteran and if so, whether the Tribunal's failure to do so was an error of law? 29 The answer to each question is yes. As was properly conceded during the course of argument by Mr Thomson, Counsel for the veteran, it was an error of law for the Tribunal to fail to make a finding as to which of the two conditions was applicable to the veteran. Accordingly, it goes without saying that I would allow the appeal and set aside the decision of the Administrative Appeals Tribunal. 30 However, as Mr Thomson went on to say, the real issue on appeal was what the Court was then to do as a result of that error of law. Should the Court remit the matter to the Tribunal for it to be determined according to law or was it open for the Court to make the finding itself based on the considerable volume of medical evidence (in the nature of reports and clinical notes) and oral testimony referred to above? The Commission sought to have the matter remitted. On the other hand, the veteran submitted that the Court not only had the power but the ability to undertake the task itself. 31 I consider that the matter should be remitted to the Tribunal for it to determine which of the two conditions, alcohol dependence or alcohol abuse, the veteran suffers from. There are several reasons why that is so. 32 First, the conditions are distinct and are to be diagnosed on the basis of different criteria. For example, as noted earlier, alcohol abuse is diagnosed only if the symptoms have never met the criteria for alcohol dependence: see clause 2(b) of the Alcohol SoP. 33 Secondly, the observations of the Full Court in Repatriation Commission v Butcher [2007] FCAFC 36 at [19] in relation to s 44(7) of the AAT Act are apposite: "The Tribunal had fallen into legal error and, in our view, the appropriate course in this case was for the Tribunal to reconsider the evidence having regard to any further submissions or evidence which the parties wished to advance. In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome." 34 Each of those observations applies to the present case. The Tribunal had fallen into legal error. Not only did the Tribunal fail to make a finding about which of two disorders the veteran suffers but, in some paragraphs, appeared to approach the matter as if the veteran suffered from both: see, for example, [107], [109] and [111]. That is not possible. 35 Thirdly, the evidence before the Tribunal was not entirely satisfactory. Paragraph 5 of the Alcohol SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person's service. In the present case, the factor relied upon was (para (b)) that the veteran "experience[ed] a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". 36 I accept the contentions of the Commission that in determining whether that factor existed, it was necessary for the Tribunal: (1) to distinguish between the two disorders; and (2) to have before it (and it appears that it did not) evidence from a medical practitioner determining for the purposes of the Alcohol SoP whether the disease is or was present at a particular time: Repatriation Commission v Milenz (2006) 93 ALD 107 at [34] citing Repatriation Commission v Cornelius [2002] FCA 750 at [26]. The latter requirement imposed a medical-scientific standard, not a lay standard, which in the present case required evidence from a medical practitioner identifying the date of the clinical onset of the disease the veteran had contracted within two years from October 1970 (being the date of a helicopter incident in Vietnam). Moreover, such a diagnosis would have to take into account the criteria prescribed by the Alcohol SoP for each relevant disorder - alcohol dependence or alcohol abuse. 37 During the course of argument, it became readily apparent that it was difficult to identify from the considerable volume of medical evidence (in the nature of reports and clinical notes and oral testimony from Drs Seabridge and Strauss), material which answered each of the matters set out at [36] above. This was one of those cases where, having regard to the factors listed in s 44(7) of the AAT Act, it was inappropriate for the Court to make the necessary findings of fact. The medical evidence before the Tribunal did not appear, at least readily, to address the relevant questions. 38 For those reasons, the matter will be remitted to the Tribunal for further hearing and to be determined according to law. The Commission contended that the matter should be remitted to a differently constituted Tribunal. I agree. The nature of the findings made by the Tribunal make it appropriate, given the errors identified, for the matter to be remitted to a differently constituted Tribunal.

Other grounds of appeal 39 In light of the views I have formed in relation to Ground 3.1, it is unnecessary for me to consider Grounds 3.2 and 3.3 which concerned the Anxiety SoP. For the sake of completeness, the following observations are relevant. 40 First, it was, again, properly conceded during the course of argument by Counsel for the veteran, that the Tribunal made an error of law. The error was simply demonstrated. At para [91], the Tribunal records its finding on the balance of probabilities that the appropriate diagnosis was that of "anxiety disorder not otherwise specified". The Tribunal notes at [94] that the Anxiety SoP is with respect to "generalised anxiety disorder" (which it is). However, it then refers to the disorder as "anxiety" (at [108], [109], [111], [113]) and then sets aside the decision of the VRB and, in substitution, decides that the injury or disease is not that of "anxiety disorder not otherwise specified" but of "generalised anxiety disorder". As the Anxiety SoP makes clear, the disorders are different. 41 In relation to Ground 3.3, the errors were the same as Ground 3.1. That analysis and, in particular, the need for the Tribunal to address the kinds of questions set out at [36] is relevant to this ground of appeal. 42 This aspect of the decision of the Tribunal will also be set aside and remitted to the Tribunal for further hearing and determination according to law.

CONCLUSION 43 For these reasons, I would allow the appeal, set aside the decision of the Administrative Appeals Tribunal and remit the matter to the Administrative Appeals Tribunal for further hearing and determination according to law by a differently constituted Tribunal. There will be no order as to costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 31 July 2007 Counsel for the Applicant: Ms J Macdonnell

Solicitor for the Applicant: Australian Government Solicitor

Veterans' Entitlements Act 1986(Cth)ss 13, 14, 15, 120, 120A

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