Border v Repatriation Commission (No 2)

Case [2010] FCA 1430

FEDERAL COURT OF AUSTRALIA

Border v Repatriation Commission (No 2) [2010] FCA 1430

Citation: Border v Repatriation Commission (No 2) [2010] FCA 1430
Appeal from: Border and Repatriation Commission [2009] AATA 924
Parties: ROGER KEITH BORDER v REPATRIATION COMMISSION
File number: QUD 309 of 2009
Judge: REEVES J
Date of judgment: 17 December 2010
Corrigendum 23 May 2011
Catchwords:

DEFENCE AND WAR – application under ss 120 and 120A of the Veterans’ Entitlements Act 1986 (Cth) – veteran made a claim for the costs of medical treatment and a pension for incapacity on the basis that his post traumatic stress disorder was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) – veteran claimed that four events that occurred during his operational service either individually or collectively contributed to his developing post traumatic stress disorder – consideration of whether the Administrative Appeals Tribunal correctly undertook the third step outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 – consideration of whether the veteran experienced a “life-threatening event” – the Tribunal is to test the veteran’s hypothesis to determine whether the material before it points to facts which support it – since 1994, and the introduction of the Statement of Principles regime, the reasonableness of the veteran’s hypothesis has to be determined by whether it fits into the template found in the Statement of Principles – the hypothesis will do this if it contains, as a minimum, one or more of the factors specified in the relevant Statement of Principles template – at this third stage the task is the testing of the hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest – proof of facts is not required – the Tribunal is not concerned with conflicts in the material, whether they be of opinion or fact – “experiencing a life-threatening event” involves a subjective factor – consideration of how, and to what extent, the Tribunal should examine the feelings evoked in the veteran by experiencing that event to determine whether the event was life-threatening – the effect of the event and not the threat itself has to be assessed – 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 – that perception will be reasonable 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 – the test is not to be applied in an unduly restrictive manner

Held that, while the Tribunal identified the correct principles, it fell into error when it came to apply these principles to the four events – the Tribunal did not make the objective subjective assessment it had identified it had to make

Legislation: Veterans’ Entitlements…

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AGLC
Border v Repatriation Commission (No 2) [2010] FCA 1430
Case
[2010] FCA 1430
Decision Date

CaseChat Overview and Summary

The parties in this case were Mr Border and the Repatriation Commission. Mr Border appealed against the Tribunal's decision to reject his claim for a pension for incapacity on the basis that his post-traumatic stress disorder (PTSD) was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth). The appeal was heard in the Federal Court of Australia. The central issue before the court was whether the Administrative Appeals Tribunal (the Tribunal) correctly applied the Deledio test in determining whether Mr Border's PTSD was war-caused. Specifically, the court needed to consider whether the Tribunal appropriately assessed whether the four events Mr Border claimed contributed to his PTSD could be considered "life-threatening events" as required by the relevant Statement of Principles (SOP).

The court found that while the Tribunal correctly identified the principles to apply, it erred in its application. The Tribunal did not properly undertake the objective subjective assessment required by the third step of the Deledio process. The court noted that the Tribunal should have assessed whether Mr Border's perception of the events as life-threatening was reasonable. This involves determining if a reasonable person in Mr Border's position, with his knowledge, would have perceived the threat of death. Instead, the Tribunal focused on whether the events were life-threatening in an objective sense, without adequately considering Mr Border's subjective perception.

The court held that the Tribunal's decision was flawed because it did not correctly apply the Deledio principles to the facts. The court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration in accordance with the law. This means that the Tribunal must re-evaluate Mr Border's claim, properly considering his subjective perceptions of the events in question to determine if they were life-threatening as he perceived them to be.

Orders

Orders of the court

1. The appeal be allowed.

2. The Administrative Appeals Tribunal’s decision be set aside.

3. Mr Border’s application be remitted to the Administrative Appeals Tribunal to be reconsidered and determined according to law.

Note:

Background

Background to the litigation

Before the Tribunal, Mr Border claimed that there were four events that occurred during his operational service in Vietnam that either individually, or collectively, contributed to him developing PTSD. Those events may be summarised as follows:·“the scorpion event” – This event involved a scorpion biting Mr Border’s finger while he was unloading stores at a Q store. He suffered swelling in his arm and face. He was conveyed to a military hospital at Nui Dat for treatment. He was released from hospital on the same day and he was allowed to return to his unit on instructions he should only undertake sedentary duties.·“the torch event” – On the night of the “scorpion event” and while not having fully recovered from it, Mr Border was required to perform the duties of a duty sergeant. During this night duty, radio contact was lost with a small party of soldiers at the perimeter wire of the compound. When this occurred, Mr Border became confused and turned on his torch. One of his fellow soldiers shouted at him to turn off the torch or they would “shoot” him.·“the rockets event” – While working at an ammunition depot, a RAAF sergeant told him to load live rocket ammunition. As he was doing this, he put his hand over two bare wires and the sergeant shouted at him because this could detonate the rockets.·“the moved base event” – While Mr Border was absent from his base overnight, his unit moved from Nui Dat to Vung Tau and he was forced to obtain a ride with a US aircraft.THE PROCEDURAL BACKGROUND TO THE APPEAL On 25 May 2006, Mr Border made a claim under the Act for the costs of medical treatment and a pension for incapacity on the footing that his PTSD was war-caused within the terms of s 9 of the Act. On 21 March 2007, the Repatriation Commission (“the Commission”) rejected Mr Border’s claim on the ground that his PTSD was not war-caused. That decision was affirmed on review by both the Veterans’ Review Board and, more recently, by the Tribunal. Mr Border subsequently filed a notice of appeal in this Court against the decision of the Tribunal. In its original form, the question of law raised by Mr Border’s notice of appeal was whether the Tribunal erred in its interpretation and application of s 120(1) of the Act. In response to this, the Commission filed a notice of motion seeking to strike out Mr Border’s appeal under s 31A of the Federal Court of Australia Act 1976 (Cth), on the basis that the notice of appeal did not identify a question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). To attempt to forestall the Commission’s notice of motion, Mr Border sought leave to make various amendments to his original notice of appeal. The final amended notice of appeal identified the questions of law as follows:(a)Whether the Tribunal’s findings that the appellant’s accepted condition of PTSD was not war-caused was open on the basis of the accepted evidence and s 120 of the Act;(b)Whether there was any evidence from which the Tribunal was able to draw the inference that the PTSD was other than war-caused.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As I mentioned at the outset of these reasons, in Deledio, the Full Court set out a four step process that should be followed by the Commission and the Tribunal in applying these sections. That process is as follows (at 97–98 of Deledio):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 [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.THE TRIBUNAL’S DECISION The critical paragraphs of the Tribunal’s decision in this matter were [33]–[41]. At [33], the Tribunal purported to apply the first three steps in the four step Deledio process as follows:33.There is a hypothesis raised between the facts presented by the applicant and his military service. Step 1 is therefore satisfied. Step 2 is satisfied in that an SoP has been declared which covers the situation raised by the applicant. In relation to Step 3, the evidence must point to the criteria in the SoP for it to be a reasonable hypothesis. I have already accepted that Mr Border has PTSD and a cluster of symptoms of long-standing which, according to Dr Calder-Potts, Dr Majumdar and Professor Jones, indicate generalised anxiety disorder and obsessive compulsive personality traits. The question for the Tribunal is whether the four incidents raised by the applicant explain and fall within the template raised in factor 6a of SoP No. 5 of 2008, i.e. “experiencing a life threatening event”.The last sentence above requires some explanation. It is not in dispute in this appeal that the relevant Statement of Principles (SOP) was SOP No. 5 of 2008. As Clause 3(a) of the SOP states, it is about post traumatic stress disorder. Clause 3(b) of the SOP defines what PTSD is – it is not necessary to set out that definition for present purposes. Clauses 4 and 5 of the SOP then state:(4)The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under [the Act] ….(5)Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.(emphasis in original)

Ratio Decidendi

Legal Principle Established

The Tribunal then summed up on its task as follows:The factual incidents must be looked at and the Tribunal must take account of “the whole of the evidence”. The incidents described either individually or collectively do not, in my opinion, amount to “experiencing a life threatening event” for the purposes of Step 3 of Deledio. The ultimate issue is whether the injury or disease was “one that ‘arose out of, or was attributable to’ the applicant’s service”. The incidents seem to me to be a “mere possibility” but are “not tenable” based on the scenarios presented and the template set out in the relevant SoP. The applicant’s case therefore cannot sustain a reasonable hypothesis linking those events to Mr Border’s PTSD, which had its onset in 1996, twenty-five years after the stated incidents. Step 3 is therefore not satisfied.CONSIDERATION It is appropriate to begin by identifying more precisely what is required at the third step in the Deledio process. To that end, the critical words used by the Full Court in Deledio bear reiterating. They were: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. Prior to setting out the four step process in Deledio, the Full Court cited, with approval (at 96), a passage from the decision of Heerey J at first instance which elaborated upon the nature of the assessment to be undertaken as a part of the third step, as follows:Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i)contrary to proved or known scientific facts, (ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP. These principles were reiterated by another Full Court in Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 (“Hill”) as follows (at [57]):Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.See also Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 (“Woodward”) at [33] and Stoddart at [8]–[9].