Cox v Repatriation Commission
[2006] FMCA 1744
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COX v REPATRIATION COMMISSION | [2006] FMCA 1744 |
| ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – no question of law – appeal dismissed. |
| Administrative Appeals TribunalAct 1975, s.44 Veterans’ Entitlements Act1986, ss.9(1), 13(1), 120, 120A |
| Repatriation Commission v Deledio (1998) 83 FCR 82 Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 Comcare v Etheridge [2006] FCAFC 27 Comcare Australia v Lees (1997) 151 ALR 647 |
| Applicant: | GRAHAME COX |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG202 of 2006 |
| Judgment of: | Jarrett FM |
| Hearing date: | 7 August 2006 |
| Date of Last Submission: | 7 August 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Clutterbuck |
| Solicitors for the Applicant: | Gilshenan & Luton |
| Counsel for the Respondent: | Miss Ford |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The appeal is allowed.
To the extent set out hereunder, the decision of the Administrative Appeals Tribunal made on 12 January, 2006 is set aside.
The application of Grahame Cox to review the decision of the Repatriation Commission rejecting his claim to benefits under the Veteran's Entitlements Act 1986 in respect of the condition of lumbar spondylosis is remitted to the Administrative Appeals Tribunal for re-hearing according to law.
Any application for an order for costs of the appeal shall be filed and served no later than 4.00pm on 12 January 2007.
Any response to an application for an order for costs of the appeal shall be filed and served no later than 25 January 2007.
Direct that any application for costs be determined without an oral hearing unless either party requests an oral hearing in any application for, or response to an application for, costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG202 of 2006
| GRAHAME COX |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
The applicant appeals against a decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) given on 12 January, 2006 which affirmed certain aspects and set aside certain aspects of a decision of the Repatriation Commission in respect of the applicant's claims for pensions for lumbar spondylosis, alcohol dependence, depression, osteoarthritis and post-traumatic stress disorder under the Veterans’ Entitlements Act 1986 (“the VE Act”).
The appeal is pursuant to s.44(1) of the Administrative Appeals Tribunal Act1975 (“the AAT Act”). That section provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. The Federal Court may transfer the appeal to this Court for determination. This appeal was so transferred on 22 March, 2006.
The nature of an appeal under s.44(1) of the AAT Act was recently considered by the Full Court of the Federal Court of Australia in Comcare v Etheridge [2006] FCAFC 27. In that case, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:
13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).
14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.
15 In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:
‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’
16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]:
‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’
17 Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.
In Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232, Branson and Stone JJ said:
13 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:
`I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal "grounds" which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only "the grounds relied upon in support of the order sought". In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.'
14 His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.
15 Further, his Honour at 527 expressed the view that:
`... it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law." If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.'
16 We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.
17 A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd(1993) 43 FCR 280 (FC); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the Tribunal having regard to the requirements imposed by O 53 r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal.
18 In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated.
The present appeal was commenced in the Federal Court and in accordance with O53 r3(2) of the Federal Court Rules, the applicant filed a Notice of Appeal in which the questions of law are specified. The Notice of Appeal provides:
2. The questions of law raised on appeal are that the Tribunal:
(a)failed to give any or any sufficient reason for the decision(s) made and the conclusions reached as required at law and pursuant to statute;
(b)failed to identify the relevant criteria as set out in the Statement of Principles applicable to alcohol abuse or dependence and post-traumatic stress disorder in making the determination it did to affirm the decision under review as it related to alcohol dependence and determined that post-traumatic stress disorder was not war-caused;
(c)failed to give any sufficient reason or reasons to reject alcohol abuse and post-traumatic stress disorder as war-caused conditions or in the alternative
(d)failed to provide sufficient reasons to identify the fact that the Tribunal had taken into consideration relevant considerations when making the assessment whether the events or occurrences when assessed properly constituted severe stressors or a severe stressor sufficient to either entitle or disentitle the appellant to succeed in his appeal;
(e)improperly applying, or being seen to apply, or failing to apply the relevant statement of principle to the determination as to whether the appellant suffered alcohol abuse or dependence and post traumatic stress disorder.
None of the purported questions of law relied upon by the applicant are stated as pure questions of law. At best purported questions (a), (c) and (d) are stated as allegations that the Tribunal failed to provide adequate reasons for its decision. Purported questions (c) and (d) are allegations that the Tribunal failed to identify and apply relevant considerations.
In written submissions delivered for the purpose of the hearing before me, the applicant contends that in essence, many of the grounds relied upon in support of the questions of law "fall into that category of a failure to provide any or any sufficient reason" for its decision. Indeed, in oral argument, the applicant's counsel said that the questions really were:
a)what is the extent of the obligation on the decision maker to give reasons for its decision?
b)what is the extent of the obligation on the decision maker to give reasons for deciding issues of credit against the applicant?
The Tribunal's decision
The Tribunal recorded that the applicant claimed an entitlement to compensation in respect of a number of conditions, namely lumbar spondylosis, alcohol dependence, major depression, osteoarthritis of the right shoulder and post-traumatic stress disorder. The respondent had decided that those conditions were not war-caused and the Veteran's Review Board had agreed with that decision. Before the Tribunal there was no issue as to the diagnosis of those conditions. The application proceeded on the basis that the applicant suffered from the alleged conditions and that the issue to be determined was which, if any, of those conditions were war-caused within the meaning of that term as used in the VE Act. The Tribunal recorded that the applicant did not press his claim in respect of major depression.
The Tribunal found that:
a)the applicant was born on 22 August, 1941;
b)he enlisted in the Army on 30 November, 1959 and undertook corps training with the Royal Australian Engineers;
c)he was discharged on 29 November, 1965;
d)he rendered operational service in Malaya and Borneo between 12 October, 1961 and 27 May, 1963 as a field engineer;
e)his base of operation was near Butterworth Air Base;
f)he worked closely with British troops and he performed a variety of engineering tasks and infantry work in the nature of patrols looking for evidence of communist activity;
g)the patrols in the jungle were up to three weeks in length and the men carried equipment with them on their backs in heavy packs;
h)sometimes on the patrols the applicant was armed, but most of the time he was not. Whether he was armed depended upon the area in which the patrol was to occur;
i)apart from contact with insurgents, patrolling in jungle areas bought with it the risk of encounters with dangerous animals such as tigers and snakes and venomous or disease carrying insects such as scorpions;
j)the appellant's service required him to lift heavy weights, especially when involved in clearing areas of jungle in his role as an engineer, and to perform other heavy manual work;
k)in December, 1961 the appellant experienced an accident when he fell from the back of a truck and was hospitalised;
l)he contracted scrub typhus, a serious disease, and became very ill;
m)he recovered and was discharged from hospital on 25 January, 1962;
n)he continued to suffer from the effects of the scrub typhus and was re-admitted to hospital on 26 February, 1962;
o)he was discharged again on 2 March, 1962 and posted as the pay clerk to the headquarters of the troop on lighter duties;
p)he was moved to North Borneo and then back to Singapore and eventually discharged in 1965.
The applicant claimed that he had experienced a "severe stressor", or a number of them, for the purposes of certain Statements of Principles ("SoP" or "SoPs") issued by the Repatriation Medical Authority in respect of the applicant's conditions. The applicant based his claim upon a number of incidents that he alleged occurred to him whilst engaged in operational service and which he said were "severe stressors" for the purposes of the relevant SoPs. They were:
a)the accidental discharge of a weapon in the jungle;
b)an encounter with a tiger;
c)the discovery of a dismembered body or bodies on patrol;
d)an incident involving a "Magnolia Man"; and
e)being injured when he fell from the back of a truck in December, 1961.
After recording the evidence and the claims by the applicant, the Tribunal set out the legislative background against which the application had to be decided. The Tribunal referred to the four steps recommended by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. It then turned to consider each of the applicant's claims seriatim.
The hypothesis relied upon by the applicant in respect of his claim for PTSD was that he had witnessed certain events (set out above) that led, either individually or collectively, to the development of PTSD. The Tribunal identified that there was a relevant SoP that applied to the claimed condition. It is not suggested that the Tribunal identified the wrong hypothesis or the wrong SoP.
The relevant SoP (No3 of 1999 as amended by No54 of 1999) provides that certain factors must exist, as a minimum, before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of a person’s relevant service. Relevantly, those factors are experiencing a severe stressor prior to the clinical onset of, or clinical worsening of post traumatic stress disorder.
The phrase "experiencing a severe stressor" is defined in the SoP to mean:
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 severe stressors include:
(i)threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
The Tribunal considered that the incidents concerning the accidental discharge of the weapon in the jungle and the discovery of a dismembered body or bodies on patrol could amount to severe stressors for the purposes of the SoP, and so the hypothesis contended for by the applicant “fit” the template provided by the SoP and was reasonable.
The Tribunal decided that neither the encounter with the tiger as described by the applicant, the incident involving a "Magnolia Man" nor the incident whereby the applicant fell from the back of a truck in December, 1961 could amount to a severe stressor for the purpose of the relevant SoP, even accepting the applicant's accounts of those incidents.
The Tribunal concluded that the incident whereby the applicant fell from a truck did not qualify as "experiencing a severe stressor" because the applicant had no memory of it beyond flying through the air. He did not remember hitting the ground or anything else about the incident. That approach was consistent with the applicant’s evidence. The reason the Tribunal discounted the incident as a relevant stressor is clear enough from its reasons.
The Tribunal discounted the “Magnolia Man” incident because it did not accept that the applicant's observation of an NCO talking to a man and searching his bicycle and discovering grenade-like shapes that were quickly identified as fruit “could really be perceived as a severe stressor by someone in Mr Cox’s shoes with his background and experience”. The Tribunal pointed out that the applicant appeared to be situated some distance from the point on the road where the confrontation between the NCO and the “Magnolia Man” took place. Again, the approach of the Tribunal was consistent with the applicant’s evidence. The reason the Tribunal discounted the incident as a relevant stressor is clear from its reasons.
Both the conclusion with respect to the “Magnolia Man” incident and the truck incidents were conclusions of fact that the Tribunal were entitled form from the evidence. Neither conclusion was not capable of being reasonably formed as explained in Bull v Repatriation Commission (2001) 188 ALR 756 at 762.
The Tribunal’s conclusions with respect to the tiger incident were expressed as follows:
We have some doubts over whether the “encounter” with the tiger amounts to a severe stressor because it is unclear from the applicant’s story whether there was an encounter as such at all.
It is apparent from that passage, that the Tribunal did not discount the tiger incident as a severe stressor, it simply expressed some doubts about the capacity of that incident to meet that description. The Tribunal proceeded on the basis that there were two clear incidents that could be treated as severe stressors. Although not expressly stated, it is also apparent from the Tribunal's reasons that the tiger incident was not discounted as sustaining the reasonableness of the applicant's hypothesis.
The Tribunal then proceeded to the fourth step in the Deledio process and made finding of fact concerning the applicant's allegations. It determined that the applicant did not discover a dismembered body or bodies whilst on patrol as claimed by him. The Tribunal made that finding because the applicant's evidence about that incident was at odds with evidence given by another witness – Mr Young – in ways that the Tribunal thought material. Moreover, the Tribunal formed the view that it should treat the evidence of Mr Young with caution. Perhaps most significantly, the Tribunal thought that the fact that the alleged discovery had not been reported to those in authority by either Mr Young or the applicant told against their creditworthiness. Those findings were all open on the evidence and the Tribunal's reasons for rejecting the applicant's claims are patent from paragraphs 38 and 39 of the record of its reasons.
The Tribunal rejected the applicant's account about the accidental discharge of a weapon in the jungle. The Tribunal recorded that it had "no confidence" in the applicant's account of the incident. It recorded that there was evidence that indicated that it was most unlikely that a weapon would discharge into an area occupied by the applicant and his companions, although they accepted that weapons were sometimes discharged into the jungle. They recorded that the alleged incident was not recorded and that they were not accepting of Mr Young's version of the incident. It was not suggested that the Tribunal was not entitled to make these findings, but rather that it should not have made them.
The Tribunal rejected the applicant's account of the tiger incident in the following way:
For the sake of completeness, we also make a finding of fact in relation to the encounter with a tiger. The applicant's account of huddling round a fire attempting to frighten a tiger with light reflected from shaving mirrors is unbelievable. We do not accept the event occurred as he described.
The Tribunal then moved to deal with the applicant's other claims. It made a finding that the applicant had not suffered a severe psychological stressor for the purposes of the SoP in relation to the claim for major depression (notwithstanding that that claim was not pressed). The Tribunal found that that claim must necessarily fail at the fourth step in the Deledio process by reason of the findings of fact made by them with respect to the claim for PTSD.
The Tribunal dealt with the applicant's claim for alcohol dependence in the same way. Importantly, the SoP for alcohol dependence or alcohol abuse also relevantly requires the applicant to have experienced a severe stressor at a certain point in time as prescribed by the SoP. The definition of "experiencing a severe stressor" is the same as the definition of that phrase in the PTSD SoP.
The Tribunal's rejection of the applicant's claim for alcohol dependence or alcohol abuse has its basis in the findings of fact made by the Tribunal when it considered the claim for PTSD. In my view it was unnecessary for the Tribunal to set out in detail the four steps of the Deledio process in relation to this particular claim when the applicant's claim was based in the same incidents that he claimed amounted to stressors for the purposes of the PTSD SoPs. Having made findings of fact in relation to the relevant incidents, there was no purpose to be served by a detailed consideration of the first three steps of the Deledio process in respect of the alcohol claim. That might not have been so if the applicant relied upon different incidents as constituting the relevant stressors, but it was not suggested in argument that was the case.
The Tribunal then considered and rejected the applicant's claim for lumbar spondylosis. It determined that the claim failed at the third step of the Deledio process because the applicant's account did not "fit" the template prescribed by the relevant SoPs.
Discussion
The grounds of appeal are as follows:
4. GROUNDS
(a) The grounds relied upon by the applicant are:
(i) The applicant suffered health conditions the subject of the application;
(ii) The issue was whether the health issues were causally linked to his military service in Malaya in the Royal Australian Engineers between October 1961 and 1963;
(iii) In making the determination it did, the AAT did not:
(1) identify with precision the reason why it found the way it did with respect to each of the conditions suffered by the applicant;
(2) properly consider whether in fact the severe stressors as identified in both the claim for PTSD and alcohol dependence were those that ought to have been assessed in accordance with the manner in which such assessment ought to have taken place set out in Stoddart v Repatriation Commission – referred to in White v Repatriation Commission (2004)FCA 663;
(3) take into account a relevant consideration in the assessment of evidence, that is, strong evidence of incidents of that which would amount to a severe stressor, namely –
• evidence of persons who were present when an unauthorised discharge took place;
• extra evidence of the reason why the applicant and other members of his unit were attendant upon the area where the mutilated corpse was located;
(4) did not for the purpose of assessment of alcohol dependence, make any or any proper connection between the criteria as required in the relevant Statement of Principles and the evidence that was before it when making its determination.
(b) When considering the evidence of lumbar spondylosis, the finding of the Tribunal lacked sufficient reason to enable one to discern the true basis upon which the decision was made. Most important are the contents of paragraph 51 of the Reasons for Decision. The respondent put forward an expert who conducted research into an issue of weights and measures to determine whether that which the applicant asserted was truly correct or a likely possibility, such as to fit within the relevant SoP.
(c) The decision-maker did not out of hand reject the evidence of Mr Knight, the expert called by the respondent but, conversely, the decision-maker did not seem to accept it either. For reasons that appear to be only known to the Tribunal, the Tribunal rejected the testimony given by the applicant going to the nature of the work that was performed and the weight that was carried whilst undertaking that work.
(d) In the premises, there was a combined effect of inability to discern from the decision-maker’s reasons how the decision-maker reached the decision it did and secondly, there is an inability to discern what were the considerations that were taken into account, those that were rejected and those that were accepted by the decision-maker specifically in respect of the claim for lumbar spondylosis.
(e) Neither does the Tribunal identify how the objective and subjective assessment of the alcohol abuse/dependence and PTSD took place. It is necessary for the Tribunal to identify the decision-making process in the process of reaching its decision to demonstrate to the applicant the method by which the decision was reached. This is specifically applicable in respect of PTSD and alcohol abuse.
a)In both written and oral submissions, the applicant contended that perhaps the most significant aspect of this appeal is whether the Tribunal gave adequate reasons for its decision.
Section 43 of the AAT Act bears upon these issues. Relevantly, it provides:
(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
In Comcare Australia v Lees (1997) 151 ALR 647 Finkelstein J explained the nature of the obligation imposed by s.43(2B) of the AAT Act upon a Tribunal in the following way at p.656:
The imposition of an obligation upon the tribunal to provide reasons for a decision achieves a number of very important objectives. It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made: Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at 478. It enables the public to have confidence that the tribunal has gone about its task appropriately and fairly: Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88. It allows a party who is dissatisfied with a decision to determine whether there has been some reviewable error made by the tribunal: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507. It imposes an intellectual discipline on the tribunal making it more likely that its decisions will not be arbitrary or capricious. Finally, the giving of reasons furthers judicial and quasi-judicial accountability: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.
In determining whether the obligation to give reasons has been discharged a number of principles must be born in mind. First as Shepherd J said in Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: Ansett Transport at 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the tribunal: Telescourt v Commonwealth (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through ``with a fine appellate toothcomb to find error'’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; 136 ALR 481; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187.
What are the consequences if the obligation to provide adequate reasons has not been satisfied? There are a number of possibilities. One is that the tribunal can be compelled to provide reasons by the issue of a writ of mandamus or by an order in the nature of mandamus. Another possibility is that a deficiency in the reasons may be such as to lead to the inference that the tribunal erred in law in arriving at its decision in which case the decision is liable to be set aside. The third possibility is that a failure to give adequate reasons is itself an error of law that enables the decision of the tribunal to be set aside. This would only be so if, on the proper construction of s 43(2B), it was intended that a failure to comply with that subsection necessarily so vitiated the decision as to require it being set aside for error of law.
In Dornan v Riordan (1990) 95 ALR 451 the Full Court held that a failure by the tribunal to provide adequate reasons for its decision amounted to an error of law permitting the court to set the decision aside. Dornan has been followed on many occasions and has been confirmed by later decisions of the Full Court: see, eg Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84. However, if I was not constrained by authority I would reach a different conclusion…
(original emphasis)
In the present case, the Tribunal's approach to the applicant's PTSD claim and the alcohol dependence claim is clear from its reasons. It applied the Deledio steps. It identified the events relied upon by the applicant as severe stressors and determined which of them, if accepted, could meet that description for the purposes of the relevant SoP. No complaint is made about the Tribunal's findings about those matters.
As I have set out above, the Tribunal was satisfied that at least two events met the description of "severe stressor". It expressed some ambivalence about the "tiger incident". However, when it moved to the fact finding step, it decided that the events about which the applicant complained had not occurred.
The applicant claims that the Tribunal has given insufficient reasons for its findings of credit. In my view that is not so. The Tribunal discarded the evidence of a Mr Gentle, because the Tribunal thought that it might be infected by personal animus toward the applicant.
The applicant's claims were corroborated in large part by the evidence of a Mr Young. As to the discovery of bodies on patrol, the Tribunal did not accept the evidence of either witness because of what the Tribunal described as "glaringly different accounts" given by each witness. The applicant before me sought to demonstrate that the accounts were not "glaringly different", but in my view the finding of the Tribunal was open on the evidence before it. It might be that case that I would have described the inconsistencies differently, but that is not to the point.
Further, the Tribunal explained that the lack of any report of the discovery made by the men told against the creditworthiness of the applicant and Mr Young. In my view, the reasons for discounting the evidence of the applicant and Mr Young are set out by the Tribunal.
Again, because of the lack of a report about the incident involving the accidental discharge of a weapon, when such a report might have been expected, the Tribunal discounted the evidence of the applicant and Mr Young. Its reasons for doing so appear on the face of the Tribunal's reasons.
The Tribunal did not accept the applicant's evidence about the tiger incident. Its reasons for not doing so are brief. I have set them out above. They need to be seen against the determinations already made against the applicant's credit referred to above. Seen against these findings, in my view the reasoning process of the Tribunal is clear.
The applicant complains that the Tribunal did not fully understand the nature of the claim about the tiger incident, nor assess it in the way required by the SoP. It was argued that the reference by the Tribunal to an "encounter" with a tiger indicates that the Tribunal did not understand the evidence or the case put for the applicant before it. It was argued that the use of the word "encounter" indicates that the applicant had some close contact with what was definitively identified as a tiger. His case was that he experienced a "threat" of harm from what he perceived at the time as a tiger, even though the applicant never saw a tiger.
In my view, the Tribunal has not misinterpreted the applicant's evidence about the tiger incident. It set out, accurately, the evidence about that event and assessed that the threat that the applicant felt might amount to a severe stressor. In my view, a fair reading of the Tribunal's reasons indicate that it was using the word "encounter" in a broad sense and was not meaning to convey that the applicant had actually met up with a tiger. Ultimately, however, the Tribunal found against the applicant on the facts and his claim failed.
No error of law on the part of the Tribunal has been demonstrated with respect to the applicant's PTSD or alcohol dependence claims.
I turn now to the applicant's claim in respect of lumbar spondylosis. The Tribunal's reasoning in respect of this aspect of the applicant's claim are as follows:
49. The relevant SoPs require that we consider whether the applicant suffered a “trauma to the lumbar spine before the clinical onset of lumbar spondylosis”. No 46 of 2002 also refers to “manually lifting or carrying loads of at least 25kg while weight bearing to a cumulative total of 120,000 kgs within any ten year period, before the clinical onset of lumbar spondylosis. No 37 of 2005 includes a factor to the same effect, albeit the wording of the sub-clause is slightly different. We do not think the differences in drafting are material for present purposes.
50. We think the applicant’s claim fails at the third stage of the Deledio process. The only evidence of the applicant suffering any back symptoms at the time of the water truck accident appear in medical records made in relation to his treatment for scrub typhus. There is no evidence he sustained any trauma to the back in the accident, and the back pain symptoms are clearly accounted for by the applicant’s scrub typhus condition.
51. We also heard evidence about the applicant lifting heavy loads. Some of the evidence was given by Mr Knight who conducted research into the issue on the respondent’s behalf. Mr Clutterbuck questioned some of the assumptions upon which the report was based. That was probably inevitable: it was always going to be difficult to produce a meaningful estimate of the loads being lifted in the circumstances.
52. We accept soldiers in the applicant’s unit – including the applicant, when he was available to join them in their work – were expected to clear areas of jungle and lift heavy loads. We heard some of the witnesses (including the applicant) describe heaving large and small logs away from helicopter landing zones in particular. We also acknowledge the applicant was required to carry a heavy pack while on patrols. But the evidence does not suggest to us that the applicant lifted anything like 120,000 kgs in weight during his time in Malaya.
53. It follows we do not accept the applicant’s account is able to “fit” the template provided by any of the relevant SoPs. His claim in this regard must fail.
The Tribunal noted that the applicant's claim was that lifting heavy loads like logs and a fully-laden pack over the period of his service in Malaya gave rise to his back condition. It also noted that he sustained injuries in when he fell from a water truck on or about 4 December, 1961. The Tribunal referred to the evidence about the applicant's condition on his presentation to Kamunting Hospital on 15 December, 1961. It noted that there was no evidence of a back injury to the applicant at the time of the fall from the truck. The Tribunal went on to note that the medical records of 15 December, 1961, made mention that the applicant complained of a dull pain "across the small of the back".
The Tribunal made a finding that "the back pain symptoms are clearly accounted for by the applicant's scrub typhus condition". There is, however, no evidence that would support such a finding. I was taken to none in the course of submissions and I have been unable to identify any evidence that would support that conclusion. At the very least, before an inference to that effect could be drawn, evidence that scrub typhus causes back pain of some description would be necessary. There does not appear to be any evidence to that effect. The finding should also be seen in the context of the evidence that the applicant had been thrown from the water cart and knocked unconscious. The hospital notes for 7 and 8 December, 1961, made soon after the accident, refer to back pain [AR 392].
The Tribunal's finding of fact in that regard appears, therefore, to be erroneous in that it is not supported by any evidence that was before it. That, however, does not raise an issue of law that would permit the appeal to succeed. At best it is an error of fact.
In my view, however, the Tribunal's reasons for finding that the applicant’s account of the nature and extent of the heavy lifting he had to do was not able to “fit” the template provided by any of the relevant SoPs do not explain how the Tribunal came to that conclusion. The reasoning process of the Tribunal is not exposed by its written reasons. There was evidence from the applicant and those who gave evidence on his behalf that, if accepted, might have supported his claims. There was evidence from a researcher that cast doubt on the applicant's claims. But the Tribunal made no findings about either the applicant's evidence or the researcher’s evidence. Its statement "But the evidence does not suggest to us that the applicant lifted anything like 120,000 kgs in weight during his time in Malaya" does not expose the Tribunal's reasoning in any respect. The reasons do not set out those parts of the evidence which are important for the conclusions ultimately reached.
In my view the applicant demonstrates an error of law in so far as the claim for lumbar spondylosis is concerned, namely that the Tribunal has not given a sufficient statement of its reasons for decision in accordance with s.43 of the AAT Act.
Conclusion
For the foregoing reasons the appeal must be allowed insofar as it relates to the claim for lumbar spondylosis. In all other respects it should be dismissed. I make the orders and directions set out at the commencement of these reasons.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom Date: 24 November 2006
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