Repatriation Commission v Hill

[2008] FCA 50

Federal Court of Australia|2008-07-01|Before: Mansfield J

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Federal Court of Australia

Decision date

2008-07-01

Before

Mansfield J

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Judgment (22 paragraphs)

[1]

ADMINISTRATIVE LAW - Decision under Veterans' Entitlements Act 1986 (Cth) - whether AAT erred in finding that veteran did not suffer from post traumatic stress disorder - where medication definition of PTSD included exposure to severe stressor - whether decision required to be satisfied that veteran had as a matter of fact been exposed to severe stressor - whether that step preceded consideration of Deledio principles - whether that finding of fact necessary having regard to s 120(3) of Act and that PTSD Statement of Principles made exposure to severe stressor part of template for disease to be war-caused - whether s 120(3) thereby qualified need to a positive factual finding on matter also identified in Statement of Principles as relevant to hypothesis of whether PTSD war-caused ADMINISTRATIVE LAW - Decision under Veterans' Entitlements Act 1986 (Cth) - claim for disability pension - whether AAT complied with decision-making process under ss 120(1) and (3) of the Act - whether Tribunal erred in finding veteran's alcohol dependence war-caused - whether material sufficient to fit template of Statement of Principles ADMINISTRATIVE LAW - Decision under Veterans' Entitlements Act 1986 (Cth) - claim for invalidity service pension - whether AAT erred in finding veteran not permanently incapacitated for work as required by s 37AA ADMINISTRATIVE LAW - Decision under Veterans' Entitlements Act 1986 (Cth) - whether AAT erred in finding that pathological gambling not war-caused - whether AAT erred in finding depressive illness not war caused - whether hypotheses fitted template of the Statement of Principles Veterans' Entitlements Act 1986 (Cth) s 13 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Veterans' Entitlements (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999 s 37AA Hill v Repatriation Commission [2003] AATA 114 discussed Hill v Repatriation Commission (2004) 39 AAR 103 discussed Hill v Repatriation Commission [2006] AATA 925 discussed Repatriation Commission v Hill (2005) 142 FCR 88 discussed Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Hope v Bathurst City Council (1980) 144 CLR 1 referred to Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to Commonwealth of Australia v Smith (1989) 18 ALD 224 referred to Roncevich v Repatriation Commission (2005) 222 CLR 115 referred to Comcare v Lees (1997) 151 ALR 647 referred to Benjamin v Repatriation Commission (2001) 34 AAR 270 discussed Repatriation Commission v Budworth (2001) 116 FCR 200 discussed Repatriation Commission v Cooke (1998) 90 FCR 307 discussed Repatriation Commission v Deledio (1988) 83 FCR 82 discussed Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 cited Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited Bushell v Repatriation Commission (1992) 175 CLR 408 referred to East v Repatriation Commission (1987) 16 FCR 517 referred to Bull v Repatriation Commission (2001) 188 ALR 756 referred to Willcocks v Comcare (2001) 66 ALD 119 cited Bushell v Repatriation Commission (1992) 175 CLR 408 referred to Repatriation Commission v Whetton (1991) 31 FCR 513 cited Mines v Repatriation Commission (2004) 86 ALD 62 followed Bushell v Repatriation Commission 175 CLR 408 discussed Byrnes v Repatriation Commission (1993) 177 CLR 465 discussed Repatriation Commission v Constable (2006) 151 FCR 391 discussed Repatriation Commission v Hill (2002) 69 ALD 581 discussed REPATRIATION COMMISSION v COLIN HILL NTD 20 OF 2006

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THE ISSUES 1 There are several issues on this appeal. 2 The Repatriation Commission applies by way of appeal from a decision of the Administrative Appeals Tribunal (the AAT) given on 31 October 2006 to the extent that it decided that Colin Hill suffers from war caused alcohol dependence, and is entitled to a pension by way of compensation from 15 March 2000 in respect of that condition, under s 13 of the Veterans' Entitlements Act 1986 (Cth) (the Act). 3 Mr Hill has cross-appealed against four decisions of the AAT given on the same day rejecting in other respects his entitlement to compensation under the Act. They are referred to below. 4 As a young man Mr Hill served in the Australian Army between 30 June 1965 and 30 June 1968, including a period of "operational service" as defined in s 5 and ss 6-6F of the Act whilst in Vietnam between 6 June 1967 and 16 April 1968. 5 He claimed benefits under the Act: (1) for a pension under s 13 of the Act for incapacity by reason of being incapacitated from a war-caused injury or a war caused disease, relevantly in respect of four conditions which he claimed to be war-caused, (i) alcohol dependence, (ii) depressive disorder, (iii) pathological gambling, and (iv) post traumatic stress disorder (PTSD); and (2) for an invalidity service pension under s 37 on the basis that he is a veteran who had rendered qualifying service, and was permanently incapacitated for work in accordance with a determination under s 37AA of the Act. Mr Hill in any event became eligible for an aged service pension under the Act when he reached the pension age of 60 on 17 March 2005: see s 5QA of the Act. The rate of an age service pension and of an invalidity service pension is apparently the same: see ss 36N and 37N of the Act. In a practical sense, his claim for an invalidity service pension may therefore be relevant only to the period from the date of the claim, made on 25 May 2000, to 16 March 2005. 6 I shall adopt the description of the AAT to distinguish between those two claims. The pension claimed under s 13 will be called the disability pension and the pension claimed under s 37 will be called the invalidity service pension. 7 The Repatriation Commission by its delegates rejected all of Mr Hill's claims, both at the primary decision-making level and on internal review. He sought review of each of those decisions by the AAT. 8 The claims for a disability pension under s 13 of the Act were the subject of the decision of the AAT given on 31 October 2006. The AAT affirmed the decision of the Repatriation Commission that Mr Hill was not entitled to a disability pension in respect of the claimed conditions of depressive disorder, pathological gambling or PTSD. However, it set aside the Repatriation Commission decision concerning the claim based upon the condition of alcohol dependence and substituted a decision with effect from 15 March 2000 that Mr Hill does suffer from the condition of alcohol dependence, and that his condition is war caused. It remitted to the Repatriation Commission the assessment of the rate of pension payable to Mr Hill in respect of that condition. 9 The AAT rejected the claim based on the condition of PTSD because it was not satisfied that Mr Hill suffered from that condition at all. It also affirmed the decision of the Repatriation Commission that Mr Hill was not entitled to benefits under the Act in respect of his claimed condition of depressive disorder because it was satisfied beyond reasonable doubt that he did not suffer depressive disorder as a result of his operational service, and because his claim did not fit the hypothesis prescribed by the relevant Statement of Principles (SOP) determined under s 196B of the Act. It rejected the claim based upon pathological gambling, in respect of which no SOP had been published, because there was no reasonable hypothesis connecting the condition of pathological gambling suffered by Mr Hill with his operational service. 10 The Repatriation Commission has appealed from the decision of the AAT concerning the eligibility of Mr Hill for a disability pension by reason of alcohol dependence. Mr Hill by cross-appeal has appealed from the decision of the AAT affirming the decision that he is not eligible for a disability pension by reason of his depressive disorder, pathological gambling or PTSD. 11 The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act. 12 By his cross-appeal, Mr Hill contends that the AAT fell into legal error in reaching that decision. 13 Hence there are, in effect, five separate issues to be addressed on this appeal. Each can succeed only if it is shown that the Tribunal erred in law in reaching its particular decision: s 44, Administrative Appeals Tribunal Act 1975 (Cth). 14 It is necessary to deal with each of those five issues separately. 15 I observe that it is a little difficult to see how the 16 questions of law identified in cl 2 of Mr Hill's amended notice of cross-appeal relate to the grounds of appeal in cl 3 and to the four decisions of the AAT which were adverse to him. Some are clear enough. Clauses 2.1 to 2.7 and 3.1 to 3.7 relate to how the AAT dealt with the claim based upon the condition of pathological gambling. Clauses 2.13 to 2.16 and 3.13 to 3.17 are confined to the cross-appeal concerning the invalidity service pension. 16 There is nothing in either cl 2 or cl 3 which expressly refers to the AAT's decision that Mr Hill did not suffer from PTSD, and it was not separately the subject of oral submissions. I do not need to address that part of the AAT's decision further. 17 Clause 2.8 and cl 3.9 say the AAT erred in law in "determining whether the applicant had been exposed to a traumatic event" by applying the wrong standard of proof. Clause 2.11 and cl 3.12 broadly assert error in failing to follow the requirements of s 120(1) and s 120(3). They were addressed together in Mr Hill's submissions. Clause 2.9 and cl 3.10 assert that somehow the AAT erred in its approach to deciding whether Mr Hill had the four conditions he claimed. That ground was only relevant to the claimed condition of PTSD, as the other three conditions claimed were accepted as existing. No separate submissions were put either in respect of those grounds or in relation to the AAT's finding that Mr Hill did not suffer from PTSD, except in the written reply, which says cl 3.9 to cl 3.12 are addressed in paras 35-46 of his outline of contentions. Those paragraphs in the outline relate only to cl 3.9 and cl 3.12. I shall treat them all together. 18 Clause 3.8 does not appear to tie to cl 2 at all. It attacks the AAT's conclusion concerning Mr Hill's depressive disorder, but only if the attack on its conclusion concerning his pathological gambling is successful. As I have not accepted that attack, it is not necessary to deal further with it. 19 Clause 2.10 and cl 3.11 assert a misunderstanding by the AAT of the definition of "experiencing a stressor for the purpose of the statement of principles". The written outline of contentions indicates that this ground relates to the condition of depressive disorder. I shall deal with it in that context only. 20 Before addressing the issues, it is convenient to note some general background facts.

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THE BACKGROUND FACTS 21 The background facts are set out conveniently in the reasons of the AAT. The following is simply a paraphrase of that material. 22 Mr Hill was born in Western Victoria and left school at the age of 17 years. Before he commenced service in the Australian Army as a conscript, and subsequently re-enlisted as a volunteer, he worked for a tractor agency. Whilst working in the Australian Army, particularly his work in Vietnam, he was with 102 Field Workshop, Stores Section, working as a "Clerk Tech" in the Control Office in Vung Tau. His duties were primarily clerical, in connection with the supply of vehicle parts. 23 After his discharge from the Army in June 1968, Mr Hill was first employed carting hay and then with the State Electricity Commission of Victoria as a meter reader. He also married shortly after he left the Army. He was promoted within the State Electricity Commission, but in 1974 he was convicted of larceny from his employer, an offence apparently committed for the purpose of financing an alcohol and gambling habit which he had by then developed. He lost his office job and was demoted to the position of labourer, but continued working for that Commission until November 1990 when he was offered, and accepted, a redundancy package. He then worked until May 1994 as a sales assistant, and then manager, for a hardware store in Horsham. 24 For some months during 1995, Mr and Mrs Hill lived in Darwin. During part of that time, he was employed as a drug and alcohol counsellor. They returned to Horsham in October 1995 where Mr Hill commenced employment as chief executive officer of a retirement village, a position he held until April 2000 when he was forced to resign because he had made unauthorised use of a patient's money. 25 In July 2000, Mr and Mrs Hill applied to the Northern Territory Christian School Association for employment as house parents. They were offered those positions on 6 August 2000 pursuant to a written employment contract. The contract described him as having been employed "as an Assisted Accommodation House Parent in NTCSA boarding facilities". It described the "primary role" as: In conjunction with other house parents, manage the day to day operation of the house including care of students, provision of meals, establishing routines, co-ordination homework tutorial programs, liaison with parents and communities, liaison with teachers … That contract was extended with effect from 1 January 2001. The Tribunal accepted their evidence that Mr and Mrs Hill acted, in effect, in loco parentis initially in relation to some 10 teenage boys and from the start of 2002, in relation to a similar number of teenage girls. They were initially paid $14,000 each for the work, although all of the wages were deposited to an account in Mrs Hill's name.

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32 In Repatriation Commission v Hill (2005) 142 FCR at 101, [57] the Full Court explained how cl 5(2) of the Determination was to be addressed. The Court said that: In our view, the expression to "do work" in cl 5(2)(b), when read in context, requires the decision-maker to focus upon the applicant, and not some hypothetical person. Consideration must be given to whether a person of the applicant's background, suffering from his or her condition, is, solely by reason of the impairment, permanently unable to do remunerative work of the type that he or she would otherwise be fitted to undertake. In answering that question, it must be determined whether the applicant can undertake such work for more than eight hours per week. In other words, the test looks at the individual applicant, treats "work" as remunerative activity, and assesses the applicant's ability to carry out that activity by reference to that person's qualifications, background and skills. 33 The AAT referred to Mr Hill's background and his employment history. It noted that, particularly in the later years, his employment was in the clerical and administrative fields. It observed that, although he had no formal qualifications, he was "obviously an intelligent man", and had demonstrated an ability to manage a medium sized nursing home between 1995 and 2000. It had regard to the nature of his condition: a major depressive disorder, alcohol dependence and pathological gambling (all of which was acknowledged by the Repatriation Commission). 34 It rejected the further claim that he suffered also from PTSD, and gave reasons for that conclusion. It therefore said Mr Hill had "significant afflictions that impacted upon his ability to do work". 35 The AAT then proceeded to assess the extent to which his condition permanently prevented him from working. It looked at his role as a house parent, with his wife, from August 2000. Mr Hill's evidence was that his role was mainly supervisory. He also occasionally mopped the floor, occasionally drove the school bus, and from time to time mowed the lawn and weeded the garden, and also assisted with reading and helping his wife with housework. He and his wife needed to be available 24 hours per day, and Mrs Hill described him as her "back up". She said he drove the school bus three or four times a week. 36 The AAT concluded on that evidence that Mr Hill was able to do work for periods in excess of eight hours per week, and was in fact, in his role as a house parent jointly with his wife, undertaking work for periods in excess of eight hours per week. The consequence was that Mr Hill's claim for an invalidity service pension failed. 37 Mr Hill, through his counsel, submitted that the AAT had erred in law in reaching that conclusion by treating his house parent role as "determinative of the question of incapacity for the whole of the relevant period", and for regarding his work as a house parent jointly with his wife as supporting its conclusion, particularly in the light of the evidence of Mr Hill's information about his unreliability in performing the tasks he did perform. He also submitted that it was irrelevant that he had previously managed a nursing home. The essence of the submissions was that the conclusion was so unreasonable that it could not have been reached, and so legal error must have underlain it. Additionally, Mr Hill contended orally (although not by his notice of appeal in respect of the invalidity service pension claim) that the AAT's reasons were inadequate, and failed to satisfy s 43(2B) of the AAT Act. 38 I observe that his notice of cross-appeal complains generally of the inadequacy of the reasons of the AAT, but in written and oral submissions this complaint was made only about this part of the AAT's decision. I have not therefore specifically addressed the complaint in respect of the other parts of its decision. 39 I indicate, however, that I did consider the adequacy of the AAT's reasons in respect of the other parts of its decision and did not regard them as failing to satisfy the requirements of s 43(2B) of the AAT Act. 40 It was common ground that the AAT had to consider Mr Hill's ability to do work for periods adding up to more than eight hours per week over the whole of the period from the date of his claim for an invalidity service pension, 25 May 2000, to the date of its decision on 31 October 2006. One possibility is that Mr Hill was unable to do work for up to eight hours per week over some part or parts only of the relevant period. As noted above, from the time he reached the age of 60 on 17 March 2005, there is no difference between the rate of an invalidity service pension and that of the age service pension for which he then qualified. 41 In my judgment, the AAT did address the whole of the relevant period. In the event, it did not need to distinguish between parts of the relevant period because it concluded as a fact that he was able to work for periods of more than eight hours per week during the whole of the relevant period. The more precise criticisms of the AAT's reasoning demonstrate, in my view, no more than a dispute as to the weight the AAT gave to certain factors in reaching its conclusion on this topic. Its reasons do not reveal that it regarded as "determinative" his work as a joint house parent from August 2000. It properly had regard to the evidence about the things he did as a house parent, but did not regard them as conclusively showing that cl 5(2)(b) of the Determination was not satisfied. That conclusion was reached on the whole of the evidence. The AAT specifically referred to Mr Hill's earlier history, both as to his work and as to his health. It is not shown to have erred in law by failing to have regard to a relevant consideration, or by having regard to an irrelevant one, or by misdirecting itself as to the applicable law or by misapplying the law. 42 The contention of Mr Hill, in essence that the conclusion of the AAT was so unreasonable that no reasonable decision-maker could have reached it, can also be expressed as saying that the evidence accepted by the AAT could not as a matter of law support a conclusion that Mr Hill is permanently able to work for periods adding up to more than eight hours per week. See Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. If the evidence can reasonably support the AAT's conclusion, then there is no error of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council (2001) 202 CLR 439. I have put the proposition in the affirmative notwithstanding the words of cl 5(2)(b) of the Determination because the AAT made a positive finding to that effect in [29] of its reasons. 43 The work history of Mr Hill up to the time he and his wife became house parents was clearly capable of supporting the AAT's findings that he was an intelligent man who had up to 2000 shown administrative skills. It then referred to his ongoing "significant afflictions" and how they impacted upon his ability to work. It referred to the evidence as to what he had done as a house parent. It might have taken the view that his capacity to contribute to the requirements of himself and his wife as joint house parents was so spasmodic and unreliable as to be - in a practical sense - unhelpful; that was the contention put on Mr Hill's behalf. But it did not do so. I do not consider that the evidence was so clearly in one direction on that topic that the AAT necessarily must have reached such a finding. In other words, the AAT could reasonably have concluded as it did so that the condition in cl 5(2)(b) of the Determination was not satisfied. Indeed, it affirmatively reached the opposite view. 44 As the AAT reached that affirmative conclusion, there is no scope for Mr Hill to make out the contention that the AAT wrongly imposed an onus of proof upon it on the topic. 45 The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647. 46 Accordingly, I dismiss the cross-appeal so far as it concerns the invalidity service pension claim.

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The legislation 47 Each of the issues raised on the appeal and on the cross-appeal (other than that concerning the invalidity service pension claim) concern the application of s 13 of the Act and the standard of proof as prescribed in s 120 as informed by s 120A of the Act. 48 Section 13(1) relevantly provides that if Mr Hill is incapacitated from a war caused disease, he is entitled to be paid a disability pension in accordance with the Act. Each of the conditions which he claims to suffer from, namely alcohol dependence, depressive disorder, pathological gambling and PTSD may constitute a disease as defined. Section 9(1)(a) provides that each of those diseases, if it resulted from an occurrence which happened whilst he was rendering operational service, is taken to be a war caused disease. His service in Vietnam was operational service: s 6C. 49 Consequently, in respect of each of the conditions which Mr Hill claimed to suffer, the AAT had to determine firstly whether he suffered from that condition, and secondly whether that condition resulted from an occurrence whilst he was serving in Vietnam. He did not contend that any of the conditions otherwise related to his service in the Army. 50 The second of those issues requires the application of s 120 and s 120A to the extent they are applicable. 51 Subsections 120(1), (3) and (4) provide: (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 injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. 52 Subsections 120A(1)(a), (3) and (4) provide: (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; … (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, 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. There is an SOP for each of the conditions of alcohol dependence, depressive disorder and PTSD but not for pathological gambling. 53 The AAT proceeded on the basis that by reason of s 120(4) the first task was to be reasonably satisfied that the applicant suffered from the conditions he asserted. It expressed that task as being that "matters of diagnosis are to be determined on the balance of probabilities", relying upon Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]-[55] per Moore, Emmett and Allsop JJ. Neither that decision, nor the Full Court decisions of Repatriation Commission v Budworth (2001) 116 FCR 200 or Repatriation Commission v Cooke (1998) 90 FCR 307 on the issue which preceded it, used the expression "on the balance of probabilities" as a substitute for the statutory expression "to its reasonable satisfaction", although in Cooke 90 FCR 307 at 313, reference is made to the "civil standard of proof". In substance, there may be no difference between the two expressions of the legal test for diagnosis of injury. As nothing was made of the difference in submissions, it is not necessary to explore that matter. As noted, applying that test, the AAT concluded that Mr Hill suffered from alcohol dependence, depressive disorder and pathological gambling, but not from PTSD. 54 It then proceeded to consider, as required by s 120(1), whether it was satisfied beyond reasonable doubt that there is no sufficient ground for deciding that each of the conditions of alcohol dependence, depressive disorder and pathological gambling was war-caused. It was in Mr Hill's favour in respect of alcohol dependence, but was satisfied beyond reasonable doubt that there is no sufficient ground for deciding that his depressive disorder or his pathological gambling are war-caused.

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The alcohol dependence claim 55 The appeal by the Repatriation Commission did not challenge the finding that Mr Hill suffers from alcohol dependence. It concerned the AAT's approach to whether his alcohol dependence is war-caused. 56 In Repatriation Commission v Deledio (1988) 83 FCR 82, the Full Court (Beaumont Hill and O'Connor JJ) at 97-98 set out the four steps required of the AAT in circumstances such as the present. They are commonly called now the Deledio steps. The first required it to determine whether upon all the material, it pointed to a hypothesis connecting Hill's alcohol dependence with the circumstances of his operational service. That step having been answered affirmatively, the second step was to determine if there was an applicable SOP in force. There was: Alcohol Dependence or Alcohol Abuse SOP (Instrument 76 of 1998)(the AD SOP). The third step was to determine whether the hypothesis fitted the "template" in the AD SOP, that is whether it was consistent with it. The fourth step then was to apply s 120(1), and as the AAT recognised, it is only at the fourth step that it was required to find facts from the material before it. 57 There were two hypotheses put forward on behalf of Mr Hill which were said to fit the AD SOP. One was that he had a psychiatric disorder, namely alcohol intoxication, while serving in Vietnam which was the precursor to his alcohol dependence or which was the precursor to the clinical worsening of his alcohol dependence. Clauses 4 and 5 of the AD SOP provide: 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) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or (c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or (d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or (e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse. The term "psychiatric disorder" is defined in cl 8 of the AD SOP as meaning "any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV".

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58 The AAT, after reviewing the medical and other evidence, said that it pointed to hypotheses either that Mr Hill had the condition of alcohol intoxication prior to the clinical onset or the clinical worsening of alcohol dependence. As the AAT considered alcohol intoxication to be a psychiatric disorder, the hypothesis met either cl 5(a) or cl 5(c) of the AD SOP. 59 It then turned to the fourth Deledio step, directed by s 120(1). It asked whether one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. The Repatriation Commission contended before the AAT that the pre-existence of the psychiatric disorder of alcohol intoxication was disproved beyond reasonable doubt. The AAT was not satisfied of that. It said there was considerable evidence supporting a connection between Mr Hill's operational service and his development of alcohol dependence during that service, and the fact of a conflict between medical specialists as to whether it was preceded by alcohol intoxication did not lead it to being satisfied beyond reasonable doubt that Mr Hill's alcohol dependence was not preceded by the psychiatric disorder of alcohol intoxication. 60 Mr Hill had also put forward an hypothesis of the clinical onset of alcohol dependence following within two years of him experiencing a severe stressor, so as to attract cl 5(b) of the AD SOP. The term "experiencing a severe stressor" is defined in cl 8 of the AD SOP. That alternative hypothesis was found not to fit within the AD SOP, having regard to the event said to amount to experiencing a severe stressor. As there is no notice of contention by Mr Hill in respect of that conclusion, it is not necessary further to refer to it. 61 The Repatriation Commission submitted that the AAT committed three errors of law in reaching its conclusion, namely: 1. in failing to have regard to cl 4 of the AD SOP with the consequence that it failed to ask the question it was required to ask, namely, whether the condition of alcohol dependence was war-caused; 2. in failing to ask the question required to be asked by cl 5(a) of the AD SOP namely, whether the veteran suffered from a psychiatric disorder at the time of the clinical onset of alcohol dependence. The Tribunal instead asked the wrong question, namely, whether the respondent suffered from a psychiatric disorder (alcohol intoxication) as defined in cl 8) prior to the clinical onset of alcohol dependence; and 3. in finding that the material pointed to an hypothesis in the AD SOP when the material before the Tribunal on the issue of clinical onset (cl 5(a) requirement) amounted to no more than conjecture. 62 Clause 4 of the AD SOP was said to impose the requirement that the condition of alcohol dependence be service related, as a requirement additional to the requirements of cl 5(a). Hence, the argument ran, as the AAT had not addressed cl 4 separately, the AAT had failed to ask the "critical question" whether Mr Hill's alcohol dependence was war-caused. 63 Section 196B(2) of the Act provides: (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; or (ca) warlike or non-warlike service rendered by members; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. 64 Section 196(14) defines, for the purpose of making an SOP, the expression "related to service". Relevantly, it covers a factor or factors which resulted from an occurrence that happened while the person was rendering service: s 196B(14)(a); or if the factor or factors arose out of, or was or were attributable to that service: s 196B(14)(b); or if it was contributed to in a material degree by, or was aggravated by, that service: s 196B(14)(d); or specifically in the case of a factor causing or contributing to a disease, it would not have occurred but for the rendering of that service by the person or for changes in that person's environment consequent upon rendering that service: s 196B(14)(f). 65 It is plain enough that cl 5 of the AD SOP is expressed by reference to the requirement of s 196B(2)(d), and that cl 4 is expressed by reference to the requirement of s 196B(2)(e). Although s 196B(2)(d) contemplates the possibility of cumulative factors being specified, in cl 5 of the AD SOP the five factors are alternatives. The relevant factor must be related to the service of Mr Hill in one of the ways provided by s 196B(14). Clause 4 requires only one of those alternative factors to fit a hypothesis. 66 The AAT did not in terms refer to cl 4 of the AD SOP. But it clearly understood the meaning and requirements of the AD SOP, including cl 4. It recorded the first (and accepted) hypothesis as Mr Hill suffering from a psychiatric disorder (alcohol intoxication) at the time of the clinical onset of alcohol dependence, and that that factor, namely the existence of alcohol intoxication at the time of the clinical onset of alcohol dependence, having been suffered while he was serving in Vietnam. That temporal relationship to service meets s 196A(14)(a) of the Act. The submissions of the Repatriation Commission on its second contention recognise that the "temporal overlap stipulated in the SOP, if met, is deemed sufficient to establish the requisite causal connection between the service related factor and the condition" (cl 12 of the Outline of Submissions on the appeal), so I do not need to go beyond that observation. Indeed, it is the necessary temporal relationship which, according to the second contention, was not addressed by the AAT. The real issue between the parties, as the AAT's reasons indicate, was not whether Mr Hill became alcohol dependant during his operational service. It was whether alcohol intoxication pre-dated and existed at the time of the clinical onset of alcohol dependence (or prior to and at the time of the clinical worsening of alcohol dependence). 67 It is important also to bear in mind the role of the SOP. It is not a template for factual finding. It is a template to deciding the reasonableness of an hypothesis. In my view, the AAT clearly appreciated that role, and in considering the reasonableness of Mr Hill's hypothesis: s 120(3) and s 120A(3).

[13]

68 Moreover, the AAT revealed when considering the fourth Deledio step, required by s 120(1), that it had not overlooked that the reasonableness of the hypothesis included a hypothesis as to the relationship to service as defined in s 196B(14). It said: We have outlined sufficiently the considerable evidence supporting a connection between Mr Hill's Vietnam service and his development of alcohol dependence during that service. We have evidence, which we accept, that Mr Hill was at most a social drinker before Vietnam, but came back as a heavy drinker. Several psychiatrists identify Mr Hill as having a vulnerable personality. We had no doubt that in Vietnam he availed himself of the ready access to cheap supplies of alcohol. Of particular note was the evidence about the need to destroy his soiled bedding, as was the comment of Mr Longue about his level of drinking. That remark has more force given the context of circumstances where many would have been partaking of alcohol. What Mr Hill told us about his alcohol consumption was supported by other lay evidence, and indeed was accepted by the psychiatrists who commented on the development of his alcohol dependence. This is not a case in which there are facts before us that disprove the elements of the hypothesis. Rather it is a case that amounts to differences of medical opinion. As the High Court pointed out in Bushell v Repatriation Commission it will be a rare case that the Tribunal would reject the opinion of a medical practitioner, qualified in their field that there is a causal link, given the standard of proof that applies in these cases. In the final sentence of that passage the AAT expressly refers to the "causal link", that is the relationship between Mr Hill's operational service and his disease. 69 I therefore do not accept the first contention of the Repatriation Tribunal. The AAT in my view, when considering the hypothesis, did consider whether the psychiatric disorder existed during Mr Hill's operational service, and so (subject to the other contentions) his alcohol dependence on the hypothesis was related to service. 70 In my view, the second of the contentions involves a misconstruction of the AAT's reasons. The contention did not challenge the AAT's finding that Mr Hill during his operational service developed alcohol dependence. Nor did it challenge the findings that he suffered from a psychiatric disorder, namely alcohol intoxication. Its complaint relates to the AAT's approach to the temporal relationship between those two conditions, because it asked (according to the submission) whether the disorder called alcohol intoxication existed prior to, rather than at the time of, the onset of alcohol dependence. 71 Clause 5 of the AD SOP stipulates that Mr Hill be suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence. It does not require that the psychiatric disorder first occur at the time of the clinical onset of alcohol dependence. The psychiatric order may pre-exist the clinical onset of alcohol dependence, provided it still exists at the time of the clinical onset of that disease. I did not understand the Repatriation Commission to contend to the contrary. 72 In my view, the AAT appreciated the requirement for the psychiatric disorder (alcohol intoxication) to exist at the time of the clinical onset of alcohol dependence. 73 There was differing medical evidence, in particular from Dr Parker and from Professor Goldney, as to the time during his operational service when Mr Hill first had the clinical onset of alcohol dependence. There was also and significantly differing medical evidence from them on two other topics. The first was whether Mr Hill ever had the psychiatric disorder of alcohol intoxication or whether he was simply intoxicated from time to time and then his alcohol dependence further led to or exposed his subsequent intoxication from time to time. The second was whether (if Mr Hill did suffer from alcohol intoxication as a psychiatric disorder) his psychiatric disorder of alcohol intoxication only followed his alcohol dependence. That evidence and the lay evidence touching on it was carefully considered by the AAT. It concluded, in terms of s 120(3), that the hypothesis that Mr Hill was suffering from the psychiatric disorder of alcohol intoxication in Vietnam before the clinical onset of alcohol dependence was a reasonable one. In the context of the issues it was considering, I think that conclusion clearly represents a finding as to the hypothesis that his psychiatric disorder arose in Vietnam before the clinical onset of alcohol dependence and continued to exist to and at the time of the clinical onset of alcohol dependence. That was the principal issue of medical contention. It is consistent with that reading of the AAT's reasons that it described Dr Parker's evidence, upon which it found that hypothesis was reasonable and as fitting the AD SOP template, as saying that "alcohol intoxication pre-dated or co-existed with alcohol dependence". In my view, the contrary contention requires an over-zealous reading of the AAT's reasons: see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

[14]

74 The third contention of the Repatriation Commission is also dependent upon a careful reading of the AAT's reasons. It is also an attack upon those reasons in the AAT's consideration of the third Deledio step, that is the one imposed by s 120(3) as informed by s 120A(3) and the AD SOP. 75 There is in theory a clear line between an error of law because the facts accepted by a decision-maker are incapable of sustaining the conclusion, and an error of fact. In the latter case, different minds may differ about whether particular accepted material supports a particular conclusion. But that does not demonstrate an error of law. Here the Repatriation Tribunal has taken on the task of showing that, upon the material before the AAT, it must have been of the opinion that that material did not raise a reasonable hypothesis connecting Mr Hill's alcohol dependence with his operational service. It contends that the material must have left the AAT with that state of mind, and that the AAT erred by converting mere possibility or conjecture that a reasonable hypothesis might exist fitting the claim to the AD SOP template to a state of satisfaction that it pointed to a reasonable hypothesis fitting the claim to the template. 76 In my view, that task has not been successfully undertaken. The material showed, as the AAT found, that Mr Hill had the clinical onset of alcohol dependence during his operational service. The Repatriation Commission did not dispute that finding on the appeal. Nor did it challenge on the appeal as involving an error of law (although it did before the AAT) the finding of the AAT that Mr Hill also had the psychiatric disorder of alcohol intoxication. The accepted evidence was, as senior counsel for the Repatriation Commission pointed out, somewhat vague as to when Mr Hill developed alcohol intoxication, and the timing of the onset of that condition in relation to the onset of alcohol dependence. That is hardly surprising. Mr Hill was obviously not, to the AAT's mind, a fully reliable historian of relevant events. The records were, not surprisingly, not precise on the issue because the real question was the timing of particular medical diagnoses which were not made at the time. And, of course, the relevant events were many years ago. 77 I have considered the material to which the AAT referred, and to which the respective submissions drew my attention. Dr Parker, whose evidence was preferred by the AAT, said he could not determine the date of clinical onset of alcohol dependence or its worsening. As the AAT said, he "hazarded a guess" on the topic. As was pointed out by senior counsel for the Repatriation Commission, he also said that alcohol intoxication pre-dated the condition of alcohol dependence. That, it was argued in the context of all the evidence, left as purely conjectural that Mr Hill suffered alcohol intoxication as a psychiatric disorder whilst in operational service, and whilst he did so he developed the clinical onset of alcohol dependence. I do not agree. 78 The submission of the Repatriation Commission suggests that the psychiatric disorder of alcohol intoxication exists only at the time of particular behaviours which illustrate its existence, and that it is transient and reversible. That may be so, in certain cases, but it was not the effect of Dr Parker's evidence viewed as a whole in respect of Mr Hill. I read Dr Parker's evidence, as the AAT also did, as indicating that in Mr Hill's case he developed alcohol intoxication and continued to suffer from that condition up to the time he had the clinical onset of alcohol dependence. 79 Notwithstanding the characteristics of the material referred to by the Repatriation Commission, I was left with the firm view that Dr Parker (whose evidence on this topic was accepted) considered that alcohol intoxication preceded, and continued to exist to, the time when Mr Hill had the clinical onset of alcohol dependence. As the AAT said, it did not need to prefer his evidence to reach that view, so long as it was rational and available to support the hypothesis: see the comments of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415. The fact that both alcohol intoxication and alcohol dependence arose after Mr Hill commenced his operational service was clearly consistent with his and other's evidence about his alcohol consumption before that time, although it noted one drinking episode before that time which (the AAT said) fitted with the diagnostic description of alcohol intoxication. The AAT made the observation that it was implicit in the evidence of both specialists (Dr Parker and Professor Goldney) that Mr Hill's pattern of alcohol consumption in Vietnam represented deterioration or worsening of a psychiatric condition. Having considered the evidence of Dr parker, as the AAT's preferred witness on this topic, that is a fair observation. The AAT also had the evidence of Professor Varghese that alcohol dependence usually develops gradually. Dr Parker's evidence was described in the AAT's reasons as saying that

[16]

The pathological gambling claim 80 The claim based upon the psychiatric condition of pathological gambling was rejected by the AAT because there was no reasonable hypothesis connecting Mr Hill's pathological gambling condition or disease with his operational service. No SOP has been determined for the condition. 81 The AAT said that the evidence suggested Mr Hill developed a gambling habit only some years after his operational service, and not during his operational service. Mr Hill's own evidence about his gambling during that service did not fit the criteria for a diagnosis of that condition at that time. The only medical evidence addressing the time of its onset put that time as from about 1974, and that Mr Hill and his gambling became out of control in the early 1970s. Hence, the AAT said the hypothesis was merely speculative, raising no more than a possibility based on some very general research; and it also said the hypothesis was not pointed to by the facts. 82 The contention that this conclusion was "perverse", so as to somehow demonstrate legal error, was based upon the same evidence to which the AAT referred. A few details of that evidence were referred to in submissions, but not expressly mentioned by the AAT. I have considered each of the evidence references given by counsel for Mr Hill in this part of the submission. It is difficult to isolate the evidence referred to so as to relate it to this contention. That is because, in part, that evidence specifically referred to also addressees the claims based upon depressive disorder and PTSD and their applicable SOPs, and also the claim based upon alcohol dependence. 83 At one point, in a report dated 9 September 2005, Dr Parker a psychiatrist said that there appears to be a direct connection between Mr Hill's military service and his pathological gambling. But that was based upon Mr Hill saying that his problematic behaviour of gambling existed and intensified during his operational service. In his evidence, Mr Hill did not say that, so the premise for Dr Parker's opinion was not supported by his evidence. In his oral evidence, Dr Parker said the effect of losing money gambling while in Vietnam would lead only to short-lived distress. Although Professor Goldney, the other principal medical witness, said that he regarded Dr Parker's views as reasonable, that acknowledgment was not made in the light of Dr Parker's oral evidence and Professor Goldney then immediately said that in his view Mr Hill did not have pathological gambling during his Vietnam service. 84 Counsel for Mr Hill did not contend that the AAT had misdirected itself in law. It correctly said that a hypothesis must be reasonable, that is more than a mere possibility or not fanciful, and it must be consistent with the known facts: East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission (2001) 188 ALR 756. 85 In my view, the AAT's conclusion that, on the evidence as a whole, the hypothesis connecting Mr Hill's pathological gambling with his operational service was "speculative", based on "some very general research", was open to it. So too was its conclusion that the hypothesis was not pointed to by the facts. Its factual conclusions, so long as they were reasonably open to the AAT, do not expose error of law even though other decision-makers may have reached a different conclusion: see e.g. Willcocks v Comcare (2001) 66 ALD 119. 86 Some of the alternative grounds of cross-appeal on this issue are in reality merely alternative ways of putting the same argument. They can be shortly dealt with. The AAT is not shown to have failed to recognise the breadth of Mr Hill's hypothesis as to the aetiology of his pathological gambling: it was either that he developed pathological gambling during his operational service, or that the seeds for the condition were sown during that period, associated with substance abuse and his depressive disorder. The AAT expressly recognised both those alternatives. Its rejection of the claim involved firstly rejecting the reasonableness of the hypothesis that the clinical onset of pathological gambling occurred during his service, and then that its later onset was in some way connected to his service. In the AAT's reasons, there is nothing which in my view suggests that it imposed an onus of proof upon Mr Hill on this issue, rather than addressing the question it was required to address. 87 One variation of this submission was to start with the observation of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415 that it will be rare that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner with appropriate expertise. The AAT was not unmindful of that statement. It referred to it elsewhere in its reasons. But the AAT did not regard the "raised facts" as supporting the hypothesis first suggested by Dr Parker, and as it explained upon all the evidence, Dr Parker's initial view came to be qualified. It was left with material upon which it did not regard the hypotheses put forward by Mr Hill as reasonable. In my view, it did not somehow misapply the law which, earlier in its reasons, it had correctly identified as applicable. In particular, it did not commit the error discerned in Repatriation Commission v Whetton (1991) 31 FCR 513 of reversing the question posed by s 120(3) to the positive existence of a reasonable hypothesis. That case, upon which counsel for Mr Hill relied, was quite different factually: the uncontroverted evidence in that case was that during service the deceased serviceman had been substantially exposed to material which could have led to the disease from which he did; the evidence in this matter in relation to pathological gambling did not go anywhere near so far. 88 I note the submission on behalf of Mr Hill that in some way the Repatriation Commission had conceded before the AAT "the condition" of pathological gambling. I was not pointed to any concession which acknowledged that Mr Hill's pathological gambling was related to his operational service. 89 It is unnecessary to address the cross-contention of the Repatriation Commission that, even if s 120(3) were satisfied, the Court should find beyond reasonable doubt that pathological gambling was not connected to Mr Hill's service.

[17]

The depressive disorder claim 90 The AAT accepted the medical evidence which pointed to Mr Hill suffering depressive disorder. 91 There was in force the Statement of Principles concerning Depressive Disorder (Instrument 58 of 1998) (the DD SOP). Clause 5 of the DD SOP specified a series of alternative factors which must as a minimum exists before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person's relevant service (and by cl 4 the qualifying factor or factors must be related to that service). Mr Hill relied upon cl 5(b), (c) and (h). They are: (b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or (c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or (h) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder. 92 Mr Hill put forward three hypotheses which he said the material pointed to as connecting the depressive disorder with his service. First, he said he had experienced certain severe psychosocial stressors within two years before the clinical onset or clinical worsening of depressive disorder. He identified three such stressors. The first was called "the picket duty incident". The second was the fact of being conscripted and removed from home and family. And the third was suffering substantial financial losses through gambling, particularly during the latter part of his operational service, causing him to be distressed and demoralised. Secondly, Mr Hill invoked cl 5(c) of the DD SOP by the hypothesis that he had a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder. The identified psychiatric conditions were alcohol dependence or abuse, PTSD, acute stress disorder, substance intoxication and pathological gambling. The third hypothesis based upon cl 5(h) was the existence of such a psychiatric condition in the two year period immediately before the clinical worsening of that depressive disorder. 93 The AAT considered that none of those three hypotheses was reasonable, as none of them fitted the template of the DD SOP. That was because there was no evidence to suggest that the clinical onset or the clinical worsening of the depressive disorder occurred within the two year period referred to in each of those factors, or indeed until about 2000. In addition, the AAT said it would not regard the first hypothesis as reasonable because none of the three events suggested as constituting severe psychosocial stressors could reasonably meet that definition. The term "severe psychological stressor" is defined in cl 8 of the DD SOP. It is as follows: "severe psychosocial stressor" means 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), sever illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems; So far as I can understand the ground of cross-appeal, it is that the AAT misconceived that definition because the definition used the word "might", and the AAT confused that definition with that in the Statement of Principles concerning Post Traumatic Stress Disorder (Instrument 3 of 1999 as amended by Instrument No 54 of 1999) (the PTSD SOP) of the term "experiencing a severe stressor" which refers to the person having experienced, witnessed, or been confronted with certain types of events. 94 I think the contention is misconceived. The definition of "severe psychosocial stressor" does not use the words "might evoke", but "evokes". In any event, the contention does not meet the AAT's primary reason for rejecting the depressive disorder claim. It was simply that there was no material which could relate the clinical onset or worsening of depressive disorder to the two year period referred to in cl 5(b), (c) or (h) of the DD SOP, as the material only pointed to about 2000 as the time when the clinical onset of depressive disorder occurred.

[18]

The PTSD claim 95 As noted above, whether a claimant under the Act has a particular condition is to be determined on the balance of probabilities. The AAT sought submissions from the parties as to whether the time of clinical onset of a condition was part of its decision-making about the existence and nature of a condition. Both the Repatriation Commission and Mr Hill submitted that it was. It proceeded accordingly. Not surprisingly, no ground of cross-appeal challenged that approach. 96 Mr Hill's outline of submissions identified grounds 3.9 and 3.12 (and in his reply also ground 3.10 and possibly ground 3.11) of the amended notice of cross-appeal as attacking the AAT's conclusion that he did not suffer from PTSD. That is the only condition mentioned in that part of the outline of contentions. 97 I understand the contention to be that the AAT, when addressing s 120 of the Act in relation to the claimed condition of PTSD, erred by applying a civil standard of proof - the balance of probabilities - instead of the reverse criminal standard of proof specified in s 120(1). 98 Before addressing the contention, it is helpful to see how the AAT approached the issue. To determine if Mr Hill suffered from PTSD it used the definition taken from the Diagnostic and Statistical Manual of Mental Disorders (4ed) (DSM-IV) para 309.81. It requires that: The person has been exposed to a traumatic event in which both of the following were present: (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others (ii) the person's response involved intense fear, helplessness, or horror … As the AAT said, that requires both a traumatic event of the nature referred to, and a response of the required intensity. So much is not the subject of challenge. 99 Because determining the existence of those two things is part of the "diagnostic process" by the AAT, and they were in issue, the AAT had to decide how it was to be satisfied of their existence. 100 Mr Hill ultimately claimed to have suffered one traumatic event which met that definition. It was identified as when he was challenged on guard duty. The Repatriation Commission did not accept that that event had occurred, although the AAT records that it accepted that it "possibly may have happened", and it disputed (according to the AAT) that it was an event of a "sufficient calibre to satisfy the definition of a 'severe' stressor" as that term is used in the relevant SOP. It is unclear whether the AAT has chosen to refer to the SOP, or whether it is paraphrasing the submission of the Repatriation Commission. 101 If the former, therein lies the possible seed of legal error by the AAT. Clause 5C of the PTSD SOP identifies as one of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with operational service that: The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are: (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; … The term "experiencing a severe stressor" is defined in cl 8 in the following way: "experiencing a severe stressor" means 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 another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observance of casualty clearance, atrocities or abuse violence. However, at this stage of its decision-making process, it is at a point logically prior to the consideration of the Deledio principles. The PTSD SOP is no guide to the AAT deciding whether Mr Hill suffered from PTSD. 102 However, the AAT's reasons then indicate that it did not make the error of applying the PTSD SOP to the question of whether Mr Hill suffers from that condition. 103 It referred at some length to the medical history, and to the way in which Mr Hill from time to time described the traumatic events to which he claimed to have been exposed, relevantly the incident of being challenged on guard duty (in the AAT's reasons also sometimes called the picket duty incident). It described them as "the claimed stressful events" or "the claimed stressors" or "traumatic events". Ultimately, it placed no weight upon Mr Hill's evidence in respect of those claimed events. It also preferred on this topic the evidence of Professor Goldney to other medical evidence that Mr Hill did not suffer from PTSD. It further said that the guard duty/picket duty incident, even if it occurred as Mr Hill claimed, did not have the "requisite level of severity". In referring to that alternative basis for its conclusion, the AAT specifically referred to the diagnostic criteria for the condition of PTSD. There is, in my view, no scope to conclude that the AAT in deciding if Mr Hill suffers from PTSD, misused the PTSD SOP. 104 In Mines v Repatriation Commission (2004) 86 ALD 62, Gray J after referring to the Full Court decisions I mentioned in [44] above said at 74, [48]: It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. 105 Counsel for Mr Hill did not directly attack the correctness of that decision. It being a long standing decision of a judge of the Court, unless I am persuaded that it is clearly wrong, I should follow it. I propose to do so. Indeed, I respectfully agree with Gray J, and that his Honour's conclusion flowed from the Full Court decisions referred to. 106 It is perhaps curious that, once a disease is found to exist so that the decision-making process explained in the Deledio steps commences, a question may arise which asks firstly in a hypothetical way and then by the application of the reverse criminal onus of proof, the same question (or almost the same question) as is required to be answered as a fact to the decision-maker's satisfaction in the process of finding if a claimant suffers a particular disease. But that is the case where the existence of a disease such as PTSD requires as a fact the experiencing of a stressor (by its nature and definition). 107 I do not think that the decisions referred to by counsel for Mr Hill in this context dictate a contrary conclusion. Bushell v Repatriation Commission 175 CLR 408 concerned the process by which a diagnosed disease might be connected to service. It proceeded on the basis of the claimant having suffered essential hypertension. So the question of "diagnosis" (to use the AAT's word) was not in issue. So too in Byrnes v Repatriation Commission (1993) 177 CLR 465. The claimant's condition of cervical and thoracic spondylosis was not in issue. What was in issue was its relationship to his service, in that case in the Royal Australian Navy between 1942 and 1945. 108 Similarly, in Repatriation Commission v Constable (2006) 151 FCR 391, the fact that the claimant suffered from alcohol abuse or dependence was not in issue, and in Repatriation Commission v Hill (2002) 69 ALD 581, the claimant (not the same person as the present cross-appellant) was acknowledged by the Repatriation Commission to suffer from PTSD, so the question now under consideration did not arise. 109 For those reasons, I reject the contention that the AAT erred in the way it went about deciding whether Mr Hill suffered from PTSD.

Repatriation Commission v Hill

At a glance

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Before

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Judgment (22 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (20)

Cited By (3)