Stevens v Repatriation Commission

Issue 1 10 Mr Stevens contends that he, "made submissions to the Tribunal that each of the trips which the Applicant took on HMAS Sydney in and out of Vung Tau Harbour in Vietnam was an 'event' for the purposes of the phrase 'experiencing a life-threatening event' as that phrase in used in the SoP." These submissions, it is contended, were worthy of serious consideration by the Tribunal, were not considered, and this failure constituted an error of law. 11 That such a failure may amount to an error of law may be accepted: Australian Postal Corporation v Hughes (2009) 50 AAR 267, at [65]; Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, at [58] - [59]. But in this case there was no such error. 12 The Tribunal's practice has long included provision for the filing and service by each party to a review of a statement of issues, facts and contentions prior to a hearing. These are used by the Tribunal in its pre-hearing alternative dispute resolution processes as well as so as to identify and, to the extent possible, narrow areas of factual and legal controversy and prevent a party being taken by surprise at a hearing. Mr Stevens was legally represented at the hearing in the Tribunal. It is a notable feature of his statement of issues, facts and contentions that it does not include as an issue with a related contention anything which resembles the submission said to be worthy of serious consideration by the Tribunal. 13 In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, at [64] and in the context of the proposition that cases ought to be decided according to the issues raised on the pleadings, the Full Court observed: Litigation is not a free for all. … It would not be just to decide a case on a different basis than the way it was conducted. Neither the discharge of the function of administrative review nor the practice which requires an exchange of statements of issues, facts and contentions are to be assimilated for all purposes with an exercise of judicial power and provision under rules of court for delivery of pleadings. But both the Tribunal (s 33, AAT Act) and a court are required to act in a way which is procedurally fair to all parties. The provision in the Tribunal's practice assists in the achievement of this requirement and in the prevention of administrative review becoming a "free for all". 14 Of course in some circumstances it is possible on the commencement of or even, exceptionally, during the course of a hearing before the Tribunal to introduce a further issue. But any endeavour so to do is necessarily limited by considerations of procedural fairness. Further, the statutory criteria applicable to the decision under review may be such that, even if a party does not raise an issue, the Tribunal itself may be duty bound to raise with the parties whether a particular criterion is proved on the material before it. In this case, further issues were not introduced by either party subsequent to the lodging of their respective statements of issues, facts and contentions. Rather, all that occurred was that some issues originally raised were abandoned by Mr Stevens in the course of his closing written submissions. Originally, he had relied on Factors 6(a), 6(b), 6(h) and 6(j) in the SoP as evidencing the connection between his operational service and the development of PTSD. In closing, that connection was said to be found just in Factor 6(a). 15 It was submitted for Mr Stevens that a different focus was to be found in an exchange between his counsel and Senior Member Tavoularis. Having considered the transcript of that exchanges as detailed in Mr Steven's submissions on the appeal, I am unable to see any precise detailing of the submission said to be worthy of serious consideration. Rather, the opening exchange looks both to be informed by and directed to his statement of issues, facts and contentions and the closing exchange by the evolution of his case so as to focus upon Factor 6(a). Thus, the Tribunal did not overlook any issue worthy of serious consideration. Indeed, the contrary is true. His reasons reveal that Senior Member Tavoularis went further than the course of events on the hearing may have required so as to explain why other factors originally relied upon by Mr Stevens could not, on the material before him, have yielded any different, more favourable result.

Issue 2 16 Subsection 120(1) of the VEA provides that the Commission (or VRB or Tribunal in its place) shall determine that a claimed injury, disease or death was war-caused injury unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In applying that provision in respect of a claimed incapacity from injury or disease or a death, s 120(3) of the VEA obliges the Commission to be so satisfied unless "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". In turn, s 120A(3) of the VEA provides: (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. 17 At [94] of the Reasons for Decision, the Tribunal stated: 94. The material before me does not point to the Applicant having experienced any of the factors set out in paragraph 6 of the SoP during his periods of operational service. Accordingly, I have concluded that the hypothesis raised by the Applicant is not a reasonable one as it does not contain any of the factors in the SoP. It follows that the Applicant's hypothesis about the aggravation or worsening of his PTSD being war-caused fails at step 3 of the Deledio test. The Tribunal's reference to "the Deledio test" is a reference to the explanation given by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as to the meaning and effect of ss 120 and 120A of the VEA in relation to the determination of whether a claimed condition is war-caused. The Full Court stated, at [97] - [98]: 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 … 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. 18 Factor 6(a) in the SoP states: "(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder". The term "category 1A stressor" is defined by para 9 of the Statement of Principles to mean one of the following: (a) experiencing a life-threatening event; (b) being subject to a serious physical attack or assault including rape and sexual molestation; or (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured. 19 Having regard to Factor 6(a) in the SoP, there was nothing in the material before the Tribunal which raised an hypothesis connecting Mr Stevens' PTSD with the circumstances of his operational service on HMAS Sydney. In particular, the material did not admit of the raising of an hypothesis which included the "experiencing" of a life threatening event by Mr Stevens. 20 As it happened, for reasons given below, the material before the Tribunal contained a separate and fatal defect in relation to Factor 6(a), but the Tribunal chose additionally to assess Mr Stevens' claim by reference, inter alios, to Factor 6(h) in the SoP. Because Factors 6(a) and 6(h) have the common element of "experiencing a category 1A stressor", it is convenient now to detail authorities concerning the meaning of that expression. That is because an alleged misunderstanding of that expression lies at the heart of why it was submitted on behalf of Mr Stevens that the Tribunal had misconstrued and misapplied s 120(3) of the VEA. 21 At a time when an earlier SoP defined "experiencing a severe stressor" as "experienced, witnessed or [have been] confronted with an event that involved death", the Full Court observed in Woodward v Repatriation Commission (2003) 131 FCR 473 (Woodward), at [122], "for the purposes of the definition a person may be 'confronted with' an event that he or she has neither experienced nor witnessed". The distinction drawn by the Full Court in relation to "confronted with" gives by necessary implication some indication as to the meaning of "experiencing an event". That this is the meaning of the expression is reinforced by this earlier passage in the Full Court's judgment: Mr Woodward further submitted that it was the experience of the veteran which was of paramount concern and not whether the stressors were 'objectively' of such a nature as might actually have caused such an experienced. It was accepted that for the purpose of the relevant SoPs the 'experience' had to be based on an 'event'. It was also accepted that a figment of the imagination…would not be sufficient to meet this requirement. [Emphasis added] 22 Later in time and in relation to the meaning of "'experiencing a life-threatening event" is Border v Repatriation Commission (No. 2) (2010) 191 FCR 163 (Border) in which Reeves J stated, at [67], with reference, inter alios, to Woodward: 67. Based on these authorities, the answer to the question posed ... in relation to the event described in subpara (a): 'experiencing a life-threatening event' is this. It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran's perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran's conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded. Earlier in Border, in the course of discussing subparas (b) and (c) of the SoP definition of "experiencing a life threatening event", Reeves J, at [50] - [51], made some additional observations in relation to subpara (a): 50. … Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as "experiencing a life-threatening event", the other two subparas - (b) and (c) - focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: "a serious, physical attack", "assault", "rape", "sexual molestation", "being threatened with a weapon", and "being held captive, being kidnapped or being tortured". Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition ... 51. … It follows, in my view, that there is no subjective element involved in determining whether a veteran's hypothesis fits within, or is consistent with, one or more of the events described in subpara (b) or (c) of the definition of "a category 1A stressor" 23 Given the explanations in Woodward and in Border, Mr Stevens' difficulty, correctly apprehended by the Tribunal, was that there was nothing in the material before the Tribunal, either in his own evidence or otherwise, which pointed to a life threatening event experienced by him in the course of his operational service as part of an hypothesis. Contrary to his submission, that was so whether, in relation to a life threatening event, that material was considered by reference to when he was physically on board HMAS Sydney or when he acted as Bowman on a landing craft medium (LCM) undertaking journeys between ship and shore in Vung Tau harbour or even if one just took the presence of HMAS Sydney in Vung Tau harbour as an "event". However viewed, the material just did not raise an event which was life threatening experienced by Mr Stevens. It necessarily followed from s 120A(3) of the VEA, given that there was applicable SoP, that the Tribunal could not conclude that there was any hypothesis which was reasonable connecting his PTSD with the circumstances of his operational service. 24 In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [48], the Full Court observed: 48. The dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern. That observation, with which I respectfully agree, is but one indication of the difficulties which confront veterans, their advisors, the Commission and its departmental delegates in the administration of the VEA and, in turn, the VRB and the Tribunal in those cases which come before them in this branch of the law. Reading the Tribunal's reasons fairly, I do not consider that there was any impermissible straying from assessment of material into impermissible fact finding in relation to whether an hypothesis which was reasonable was raised. 25 Another indication of the difficulties which have to be confronted in the application of the VEA, the recollection of which is provoked by the recent conclusion of the centenary of the Armistice which ceased First World War hostilities, is to compare and contrast the brevity of the War Pensions Act 1914 (Cth) (repealed) with the prolixity of the VEA and, more particularly, the elegant simplicity of the test for pension eligibility in s 3 of that earlier Act with the byzantine complexity of ss 120 and 120A when read with applicable statements of principles. The 1914 test was "the death or incapacity of any member of the Forces whose death or incapacity results or has resulted from his employment in connexion with warlike operations in which His Majesty is, or has since the commencement of the present state of war been, engaged". At least in the absence of the SoPs, the test for determining eligibility under the VEA is nominally more generous than that in that earlier Act and, at the margin, may perhaps make a difference in favour of a veteran but the price for that is the rigidities and construction difficulties of the SoPs with the result all too evident from the law reports in cases since that regime was introduced. 26 In this particular case, all that the Tribunal did was to assess the material before it so as to determine whether there was an hypothesis which was reasonable. That entailed no misconstruction or misapplication of ss 120 or s 120A of the VEA, only the application of those provisions according to law. 27 A perverse irony of the case, given some of the specialist medical evidence before the Tribunal, may be that it is by no means impossible to see how, had the 1914 test still been applicable, the stresses entailed in Mr Stevens' operational service, even though it did not raise the experience of a life threatening event, might nonetheless have been regarded as having "resulted" in a clinical worsening of PTSD caused by his horrific experiences (related by the Tribunal in its reasons) in the immediate aftermath of the HMAS Melbourne/USS Frank E Evans collision. As it was, the contribution of duty in a hostile environment was the subject of separate provision in Factor 6(j): "(j) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical worsening of posttraumatic stress disorder." Mr Stevens' difficulty was that none of his periods of operational service amounted to four weeks. It is an indication of the thoroughness of the Tribunal's approach to its review task that this factor was adverted to and rejected, for the reason given, as an alternative basis upon which his claim might be upheld. That particular basis for rejection was not the subject of any alleged error of law.

Issue 3 28 As already mentioned, the Tribunal did also consider Mr Stevens' application by reference to Factor 6(h) in the SoP. That was so notwithstanding the way in which Mr Stevens' case had evolved in the course of the hearing. The reason why the Tribunal considered Factor 6(h) is disclosed in para [42] of the reasons: [T]here is agreement between the parties as to when the PTSD condition manifested. It was shortly after the Applicant experienced the trauma of the Melbourne-Evans collision tragedy on 3 June 1969. This was well prior to his first operational service tour to Vietnam, which was on 21 October 1970 - some 16 months later. The agreed clinical onset date would have doomed to failure for this reason alone a claim based on Factor 6(a). 29 Factor 6(h) materially provided: (h) experiencing a category 1A stressor before the clinical worsening of post traumatic stress disorder" The same definition of "experiencing a category 1A stressor" is applicable to this Factor and Factor 6(a). For reasons already given, the material before the Tribunal concerning the circumstances of his operational service did not raise an hypothesis which included that Mr Stevens had experienced a category 1A stressor.

Issue 4 30 The asserted denial of procedural fairness to Mr Stevens by the Tribunal was said to arise from the use made by the Tribunal of an earlier review proceeding in the Tribunal concerning another member of the crew of HMAS Sydney, Voelker and Repatriation Commission [2016] AATA 427 (Voelker). 31 The Tribunal's reference to Voelker appears in the following passage in the reasons ([61] to [63]): 61. The Respondent pointed me to the case of Voelker and Repatriation Commission in which Mr Voelker spoke of feeling like he was "under constant threat" while on board HMAS Sydney travelling into Vietnamese waters due to the possibility of mines or other explosive charges being placed against the ship's hull whilst in Vung Tau Harbour. Mr Voelker also said he could see "the red from the explosion of bombs" in relation to artillery or similar munitions detonating on the land. In that matter the Tribunal found there was no material or contention pointing to the Applicant experiencing either a category 1A or 1B stressor during his operational service in Vung Tau Harbour. 62. In Voelker the Tribunal noted that: "an official account of HMAS Sydney's role in the war contended that "there was very little enemy main force activity around Vung Tau, which rendered it a 'safe' port." It was understandable that the crew would have been concerned. However, the Tribunal considered that the seemingly low possibility that a mine attack might eventuate could not be construed as "a pervasive threat to life or bodily integrity". 63. The Applicant's evidence at the hearing about his recollection of being told that "they actually had apprehended enemy swimmers trying to attach mines to our hull" is not supported by the report of proceedings for HMAS Sydney. As opined by Dr Palazzo, if this event had taken place - it would have been subject to reporting procedures. I therefore cannot be satisfied that the claimed incident of intercepting enemy divers was an actual event experienced by the Applicant. [Footnote references omitted] 32 Each party referred the Tribunal to previous cases concerning claims under the VEA made by persons who had served on HMAS Sydney during the Vietnam War. It was the Commission ("the Respondent" in the passage quoted) which had referred to Voelker. Mr Stevens had an opportunity to address Voelker at the hearing. The passage quoted reveals that the Tribunal did not make any evidentiary use of Voelker, only an explanatory use. Paragraph 63 of the reasons makes it plain that the Tribunal is assessing the material before it so as to determine whether it raises an hypothesis which includes a life threatening event.

Issue 5 33 That a question of law may be raised by a failure on the part of the Tribunal to comply with its statutory obligation under s 43(2B) of the AAT Act to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based" may be accepted: Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459, at [116]. 34 Mr Stevens' complaint about the adequacy of the Tribunal's reasons was a variant of Issue 1. Its premise was that he had raised as a subject for consideration that, "each of the trips which the Applicant took on HMAS Sydney was an 'event' for the purposes of the phrase 'experiencing a lift-threatening event' as that phrase is used in the SoP". But, for reasons already given, he had raised no such subject for consideration. It is hardly surprising therefore that the Tribunal did not address the subject. 35 Even if Mr Stevens had raised the subject, the findings which the Tribunal did make would necessarily have led to no better result for him. Accepting that each voyage in Vietnamese waters and into Vung Tau harbour in particular was an "event", the material did not point to anything life threatening about the four particular such "events" experienced by Mr Stevens. 36 When all was said and done about this case, I was left with the distinct impression that, contrary to the salutary reminder offered by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the reasons given by the Tribunal had been read narrowly and with an eye attuned for error. When not so read, they disclose a thorough, sympathetic consideration of whether there was anything in the material which might, having regard to the SoP, yield a reasonable hypothesis and an explicit acknowledgement of the awfulness of his experience during and in the immediate aftermath of the collision with the USS Frank E Evans. Unfortunately for Mr Stevens' claim under the VEA, that collision did not occur in the course of operational service. Had it so done, the fate of his PTSD claim may well have been very different. So to conclude does not mean that the Commonwealth may not otherwise be liable to pay him some compensatory benefit under statute in respect of his PTSD, only that he has not demonstrated that the conclusion of the Tribunal that it could not be accepted as war-caused for the purposes of a disability pension under the VEA was not attended with any of the errors of law which he asserted. 37 For these reasons, the appeal must be dismissed. Costs having not been sought by the Commission, that dismissal must be without costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.