REASONING ON appeal
21 The original Notice of Appeal contained only one ground, namely, an error in law in that the AAT did not have regard to the whole of the material before it.
22 When the matter came on for hearing before me, an amendment was made by consent to the Grounds of Appeal to include an additional ground (b), which reads as follows:
"(b) The Tribunal erred in law by failing to determine, on the balance of probabilities, what 'kind of death' the late veteran suffered."
23 In relation to the additional ground, the Commission submits that the AAT erred in the consideration and application of s 120(A). More specifically, it is said that the AAT had a duty under that section to address, consider, and determine the question as to the kind of death met by the veteran. The Commission points to the statements in [33]-[36] of the AAT reasons for decision quoted above and submits that the AAT did not there address and make a determination as to the kind of death met by the person as referred to by s 120A(2) and (4) of the Act. It is said that before a decision can be made as to whether an SoP applies, it is necessary first to determine the kind of death met by the veteran in the present circumstances. It is said that if this task is not undertaken, it is not possible to make a decision as to whether there is an SoP in force in relation to the kind of death met by the veteran. It is said that in the absence of such a determination, the requirements of s 120A(3) and (4) cannot be properly addressed, that they were not addressed as a consequence, and that accordingly, the decision of the AAT should be set aside for failure to comply with this preliminary requirement.
24 In support of this submission, reference was made to the reasons for decision of Selway J in Repatriation Commission v Hancock [2003] FCA 711 ("Hancock"). In that case, his Honour allowed an appeal from a decision of the AAT. After setting out the relevant principles, he said at [11]:
"11. The importance of the correct approach is highlighted by the facts of this case. The Tribunal, faced with the evidence of Doctor Betty should have proceeded as follows:
(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(b) Next, the Tribunal was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'.
(d) If only a determination under s 180A(2) is applicable, then the application must fail.
(e) If no SoP and no determination is applicable at all or to a particular 'kind of death' then the methodology in Byrnes is applicable in relation to that." (Emphasis added)
25 His Honour went on to say:
"16. In this case the Tribunal did not determine the 'kind of death' on balance of probabilities. It did not determine, on balance of probabilities, whether a SoP was applicable. That question necessarily preceded any analysis under s 120(3) of the Act.
17. The failure of the Tribunal to determine the 'kind of death' on balance of probabilities was an error of law. Consequently, the appeal will be allowed, the decision of the Tribunal will be set aside, and the matter will be remitted to the Tribunal for re-hearing in accordance with law."
26 The judgment of Selway J in Hancock is distinguishable from the present circumstances because in that case there were two SoPs which could have applied. One in respect of arthritis and one for cancer of the small colon. It was common ground that if the kind of death was only cancer of the small colon, the war service was not a cause within the terms of the SoP. On the other hand, if the kind of death was arthritis of the knees, then war service was a cause. In the present case, because of the unknown peculiar circumstances in which the veteran died, it is not possible to say that any SoP could be applicable to the circumstances. The principal SoP was excluded by its terms. The other SoP relating to suicide was, in the view of the AAT, precluded as a consequence of the findings of the Coronial Inquest. Accordingly, this is not a case where the AAT was required to, or failed to make, a finding as to the kind of death. In the view of the AAT, it was simply not possible to do so on the balance of probabilities, having regard to the surrounding circumstances.
27 In the present case, the contention for the Commission before the AAT was that the SoP regime could not apply, given the unknown cause of death, and the consequent inability to characterise the kind of death for the purpose of an SoP. Alternatively, the Commission contended that there was no applicable SoP given the findings of the Coroner, which excluded suicide, and did not support a suggestion that the death could be characterised as a sudden unexplained death, as defined by SoP No 99. In its reasoning, the AAT considered that SoP No 99 could not apply, because there was no evidence before it of the first onset of any identifiable symptoms of any kind within twenty-four hours of the veteran's death. Apart from SoPs in relation to suicide and sudden unexplained death, no suggestion was made that there was any other SoP which could apply.
28 I do not accept the submissions of the Commission on the amended ground for several independent reasons. First, a finding of suicide under that SoP was precluded by the Coroner's finding. In its terms, SoP No 99 could not apply for the reason given by the AAT, namely, the inability in the peculiar circumstances of this case, to determine when the death took place. Therefore, it was unnecessary, given the consensus there was no relevant SoP, to make any analysis of the kind of death met by the veteran. Accordingly, in my view, the appropriate course for the AAT was to proceed directly to consider whether a claim could be made out on the law as it stood prior to the introduction of the SoP regime on 30 June 1994. It was not necessary to make any specific determination at the preliminary stage in relation to the kind of death met by the veteran.
29 Secondly, it is clear from [34], [36], and [45] of its reasons that the AAT accepted the finding of the Coroner that the death was not suicide, but was due to natural causes. In my view, this acceptance supports the view that the finding was that the veteran died of natural causes, the aetiology or medical cause of which is unknown. Therefore it could be said that there had been a determination of the kind of death, leaving the question of aetiology or medical causation undetermined. On this basis, there was in fact a determination of the kind of death.
30 Thirdly, the expression "kind of death" is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring "suddenly" or in a particular location or set of circumstances. The expression "kind" does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.
31 In the present case, it is common ground that SoP No 99 could not apply because of the description as to what amounts to sudden unexplained death. Accordingly, it is appropriate to proceed with the matter on the basis of the requirements of s 120: see Woodward v Repatriation Comission [2003] FCAFC 160 at [55]; Hancock at [10].
32 The additional submission for the Commission was that the AAT had fallen into procedural error because it mistakenly assumed that its task was first to ascertain whether there was some material capable of supporting the hypothesis propounded by Dr Altman, and secondly, to consider whether the hypothesis had been dispelled. It was said that the AAT should rather have looked at the whole of the material before it, and then asked whether, on consideration of all the evidence, the material pointed to a reasonable hypothesis that the death was war-caused. In support of this submission, the Commission referred to the final eight paragraphs of the reasons for decision of the AAT. In those paragraphs, the AAT states that the starting point for the consideration of the hypothesis was the finding that the veteran had war-caused post traumatic stress disorder, had suffered serious financial loss in the 1990s, and suffered depression in the months before he died in rugged bushland of unknown causes. The AAT referred to the fact that there was material to the effect that the veteran was found lying in a foetal position, that the body was dressed inappropriately for a trip to Sydney, and that there were no belongings that he would have been expected to have been taken, thereby indicating a lack of self care.
33 The thrust of the submission for the Commission is that the AAT did not consider all the material but narrowly focused on the evidence which supported the hypothesis, specifically the evidence of Dr Altman, without taking into account a substantial amount of other material.
34 In my opinion, it is not appropriate when reading the AAT decision to simply take into account only that part of the reasons for decision of the AAT set out in the eight paragraphs referred to by the Commission. It is necessary, in accordance with settled principle, to give a fair reading to the whole of the judgment, and to approach the reasons without any predisposition to find error in those reasons: see Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-6.
35 In the AAT reasons the relevant legislation is set out and the issues are defined. The evidence of Dr Altman, Dr Oettle, and the Coronial Inquiry are summarised. In addition, the submissions of the parties are recorded and the relevant leading authorities and legislative provisions are referred to. In particular, there is reference to, and extracts cited from, Bushell v Repatriation Commission (1992) 175 CLR 408, East v Repatriation Commission (1987) 16 FCR 517, Re Dell and Repatriation Commission (1986) 9 ALD 596, Bull v Repatriation Commission (2001) 188 ALR 756 and Elliott v Repatriation Commission [2002] FCA 26.
36 There is no complaint that the factual material referred to in the decision was inaccurate, or that the correct principles were not set out. Rather, it is said there are indications that the AAT misdirected itself by referring first to the hypothesis, and then seeking out and focusing on material which supported the hypothesis, and not taking other material into account. In my view, on a fair reading of the reasons, this contention cannot be made out. It is, generally speaking, difficult to establish in circumstances where a decision-maker has set out the relevant material and adverted to the correct principles, that such material and principles have been ignored and not applied. While it is true that there could have been more discussion of the evidence as a whole in the final section of the reasoning of the AAT, I do not think it has been established that the AAT did not take into account the whole of the evidence before it as required by the relevant principles. Nor do I consider that the AAT misdirected itself as to the correct approach. In my opinion, it was open to the AAT, on the material before it, to adopt the view that there was a reasonable hypothesis that the veteran's death was war-caused which possessed some degree of acceptability or credibility, and which was not obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous. The AAT could reasonably consider that there was sufficient support in the material to point to, and not merely leave open, a reasonable hypothesis that the death was war-caused. It is not necessary that the hypothesis should be proven on the balance of probability or be correct as a matter of fact. The threshold is lower in deciding this question.