Cunningham v Repatriation Commission
[2008] FMCA 1251
•19 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUNNINGHAM v REPATRIATION COMMISSION | [2008] FMCA 1251 |
| ADMINISTRATIVE LAW – Veterans’ Entitlements Act – whether error of law by AAT – consideration of treatment of evidence by AAT alleged to constitute errors of law. |
| Veterans' Entitlements Act 1986, ss.5D, 196B, 196B(14), 196B(14)(b), 196B(14)(f)(i) Administrative Appeals Tribunal Act 1975, s.44(1) |
| Repatriation Commission v Deledio (1998) 49 ALD 193 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Comcare v Etheridge (2006) 149 FCR 522 Repatriation Commission v Bendy (1989) 18 ALD 144 Repatriation Commission v Yates (1995) 38 ALD 80 |
| Applicant: | NEVILLE CUNNINGHAM |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | MLG 1684 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 17 July 2008 |
| Date of Last Submission: | 17 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chancellor |
| Solicitors for the Applicant: | Williams Winter Pty Ltd |
| Counsel for the Respondent: | Ms Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the appeal be dismissed.
That the cross‑appeal be allowed.
That the Appellant pay the Respondent's costs of the appeal and of the cross‑appeal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1684 of 2007
| NEVILLE CUNNINGHAM |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Neville Cunningham has appealed a decision of the Administrative Appeals Tribunal (the "Tribunal"). He says that the Tribunal erred in law in dismissing his application to review a decision of the Repatriation Commission refusing claims for a number of medical conditions as being war‑related.
A cross‑appeal by the Commonwealth in relation to a finding by the Tribunal in respect of a peptic ulcer condition is to be upheld,
by consent.
The three issues ultimately pressed by the Appellant are that:
a)the Tribunal’s failure to take into consideration the fact that Mr Cunningham was perfectly well until his service began and that his seasickness and depression therefore arose from his service constitutes an error of law;
b)a failure on the part of the Tribunal to consider recurrence as part of the definition of disease amounted to an error of law;
c)the Tribunal erred in law in failing to consider the hypothesis that Mr Cunningham's seasickness caused his depression.
These errors were also said to constitute errors of law because the Tribunal failed to take into account all the evidence
(see P-14 at Lines 25–29).
The Respondent Repatriation Commission submitted that none of these matters were made out and that they in any event did not amount to errors of law. The Respondent submitted that the appeal was incompetent because it raised no issues of law.
For the reasons that follow, I have come to the conclusion that none of the Appellant's grounds of appeal as advanced before the Court have been made out and that the appeal must therefore be dismissed.
It follows that I do not need to and indeed will not deal with the Respondent's challenge to the competency of the appeal.
The facts
A substantial number of the facts in this case are not the subject of material dispute.
It is common cause that Mr Cunningham wanted to join the Royal Australian Navy, in part because of family connections. He did so in July 1968 when aged 16 and a half years.
In July 1969 Mr Cunningham was posted to HMAS Parramatta.
He sailed to Melbourne from Sydney in that vessel, during which time he had some nausea but no seasickness.
In October 1969 Mr Cunningham was posted to HMAS Sydney and in November 1969 sailed from Sydney to Jervis Bay, during which time he had some slight seasickness which did not last long.
Mr Cunningham then sailed in November 1969 from Sydney to Brisbane, and then on to Vietnam. During this trip Mr Cunningham was seasick, suffering nausea, giddiness, vomiting and diarrhoea.
He experienced the same severe seasickness on the return trip, and became concerned at his prospects of future service in the Navy.
In February 1970 HMAS Sydney again sailed to Vietnam, and Mr Cunningham again suffered nausea, dizziness, vomiting and diarrhoea. He kept to himself, where possible, as he was subject to critical comments and laughter. He said that he became depressed with the constant seasickness as he was unsure of his future; that he felt he had let down his father, a former navy man, and might not be able to continue his long‑held ambition.
It is common cause therefore that Mr Cunningham suffered seasickness before he went to Vietnam but suffered much more severely on his two operational trips than he had previously.
The evidence appears to show that, at least in his case,
Mr Cunningham's seasickness was caused by inner ear problems.
The Tribunal found that “it would seem clear that he had a constitutional predisposition to that ailment” (CB 322).
Tribunal's decision
The Tribunal set out the relevant facts (which I have in large part paraphrased above) and then turned to consider the statutory scheme (CB 320 – paragraph 8).
The Tribunal went on to summarise the approach to be adopted pursuant to Repatriation Commission v Deledio (1998) 49 ALD 193 and, if I may say so, successfully paraphrased the somewhat labyrinthine statutory provisions in paragraphs 8 to 9 of the judgment.
Having set out the relevant parts of Instrument No. 58 of 1998, which was the relevant statement of principle ("SoP") to be applied, the Tribunal dealt with the claim, in paragraph 10, in these terms:
“Here the hypothesis of depression arising from severe seasickness is reasonable under the terms of the SoP. The question there is whether the Tribunal can be satisfied that the seasickness was not attributable to operational service and whether the clinical outset of the depressive disorder was within two years of that stressor. In relation to the latter question the records show a diagnosis of an acute anxiety state in March 1971. I am prepared to accept that as the date of clinical onset of his depressive state. This is supported by the evidence of Dr N. Strauss, a consultant psychiatrist, who examined Mr Cunningham on 21 February 2007. However, it is clear that Mr Cunningham experienced the onset of seasickness on the two voyages prior to operational service. From his first exposure to the open sea on board a ship he experienced seasickness and it would seem clear that he had a constitutional predisposition to that element. It was only when he was in open seas that he suffered the illness with no ongoing symptoms once on dry land. That constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long‑held ambition to be a sea going sailor was not to be achieved. Being a pre‑existing condition with the symptoms well established prior to operational service, I am satisfied that the seasickness was not war‑caused. As such, the depressive disorder cannot be accepted as war‑caused under instrument 58 of 1998.”
That passage, for present purposes, was the determinative passage for all the areas presently in controversy.
The Appellant as I have earlier indicated made three criticisms of the Tribunal’s reasoning.
First, he submitted that the Tribunal had failed to take into consideration the fact that he was perfectly well until his service led to seasickness and depression.
Second, he submitted that the Tribunal had failed properly to consider the definition of "disease" in s.5D of the Veterans' Entitlement Act 1986 ("the Act"). Relevantly, the Applicant pointed to clause (b) of the definition, by which "disease" includes:
“(b)the recurrence of such an ailment, disorder, defect or morbid condition.”
Third, Mr Cunningham submitted that the Tribunal had failed to consider the hypothesis advanced by him that his seasickness had led to his depression.
In this regard, the Appellant referred to the following passage at paragraph 9 of the Tribunal reasons (CB 321):
“In relation to the claim for depressive disorder the hypothesis relied on by Mr Cunningham was that the condition was war‑caused by the chronic seasickness experienced during his operational service with the resulting social isolation and depression at the possibility of being unable to serve at sea.”
It was submitted that the Tribunal had rolled three hypotheses into one and had dealt only with the resulting isolation and the depression of the possibility of being unable to serve at sea. It was submitted that the Tribunal had failed to consider the hypothesis that the chronic seasickness had led to depression simpliciter.
It was submitted that these failures amounted to errors of law because the Tribunal had failed to take account of all the evidence, most particularly that on the Appellant’s second operational trip his depression had arisen from his seasickness and that this was a not unusual result from seasickness.
It was further submitted that the finding in relation to constitutional predisposition was wrong on the facts and also failed to take into consideration the definition of "disease".
It was submitted that the failure to consider the hypothesis that seasickness contributed to depression gave rise to jurisdictional error in the manner identified in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at P-276-277.
The Respondent's arguments
The Respondent submitted that the questions before the Tribunal were:
a)did the Applicant experience a serious psychosocial stressor within two years of the onset of depression?; and
b)if yes, was the psychosocial stressor related to operational service?
The Respondent submitted that the Tribunal did not need to ask if seasickness was a disease, because the relevant disease was depression.
The Respondent submitted that Dr Strauss had not given an opinion that seasickness was an illness objectively capable of leading to substantial distress that could cause a depressive disorder. It was submitted that Dr Strauss had considered only the subjective effect of seasickness on the Applicant and not, as was required, the objective assessment of the issue.
Having dealt with the evidence in relation to seasickness, the Respondent submitted that seasickness could not be a severe illness within the meaning of the SoP.
The Respondent went on to submit that the Tribunal would have to ask if the serious psychosocial stressor related to operational service in the ways set out in s.196B of the Act.
The Respondent submitted that the Tribunal answered these questions adversely to the Appellant and made a finding of fact, which could not amount to an error of law, that seasickness predated operational service.
The Respondent submitted that the Tribunal had found at CB 322 that the seasickness was an inner ear disorder, which was a finding of fact open on the evidence of Dr Knight at CB 176.
The Respondent submitted that the Tribunal had not misconstrued the statutory provision, s.196B(14)(b) of the Act, and that the depression and seasickness did not arise out of operational service.
In short, the Respondent submitted that there was no evidence that seasickness was anything more than a symptom of the disorder that manifests when motion takes place. The Respondent submitted that there could be no aggravation, as the condition stops when the motion stops. It was submitted that the seasickness was not war‑caused, and therefore s.196B(14) was not enlivened.
The Respondent submitted that the finding of the Tribunal at paragraph 10 that the hypothesis of depression arising from severe seasickness was reasonable under the terms of the SoP was not made out and was in fact an error in favour of the Appellant. It was submitted that the findings of fact precluded the Tribunal from finding that the depressive disorder was war‑caused (see CB 318 and following).
It was strongly submitted by the Respondent that the errors asserted as errors of law were simply errors of fact, and thus attracted the operation of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at P 347–348.
The Respondent went on to deal in detail with the competency of the appeal but since in the ultimate this meant little more than if each of the grounds of appeal was made out there would not be jurisdiction in this Court to entertain the application, it is not necessary for me to deal further with those submissions.
Consideration
It is clear that the ambit of appeals under s.44(1) of the Administrative Appeals Tribunal Act1975 ("AAT Act") to this Court is narrow, insofar as this Court is required to review the factual findings of the Tribunal. In Comcare v Etheridge (2006) 149 FCR 522, Branson J (with whose judgment Spender and Nicholson JJ simply agreed) at [14] said:
“14. The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of section 44(1), disclosed an intention to limit the capacity of the Court on an appeal under section 44(1) to review factual findings of the Tribunal. An appeal pursuant to section 44(1) is thus quite different from an appeal from a judicial body under section 24 of the Federal Court Act … The subject matter of an appeal under section 41 of the AAT Act is … of the same character as the subject matter of a reference of a question of law to the Court made under section 45 of the AAT Act.
15. In Birdseye, Stone J and I also expressed approval of the observation of Ryan J in Australia Telecommunications Corp 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 in a question of law.
16. A mixed question of fact and law is not a question of law within the meaning of section 44(1) of the AAT Act.”
Nonetheless, issues of causation, which this case raises, need to be approached in a commonsense way. In Repatriation Commission v Bendy (1989) 18 ALD 144 at [151] Davies J said:
“An issue of contributory cause should be approached in a practical, commonsense way. Nevertheless, if, as in the present case, it could not be said of the war service that, without it, the disease would not have developed, then it may be difficult to conclude that the war service was a contributing cause thereof. Indeed, if the disease had already been contracted prior to Mr Bendy's war service, then war service would not seem to have been a contributing cause.”
The First Ground – Mr Cunningham’s health before operational service
In respect of the alleged failure of the Tribunal to take into consideration the fact that the Appellant was perfectly well until his service lead to seasickness and depression, it is important to remember what the Tribunal actually found.
It should be noted that the Tribunal made no finding as to what seasickness was. The Tribunal’s only relevant finding was “from his first exposure to the open sea onboard a ship he experienced seasickness and it would seem clear that he had a constitutional predisposition to that ailment. It was only when he was in open seas that he suffered that illness with no ongoing symptoms once on dry land. That constitutional predisposition was the cause of the seasickness and the subsequent depression…”
Although counsel for the Respondent submitted that there was evidence before the Tribunal that seasickness was a disorder of the inner ear, the evidence of Dr Knight upon which the First Respondent relied was not entirely to this effect. At CB 176 the following exchange took place:
Question: What, in your view, is the underlying abnormality that is manifested as seasickness …
Answer: That’s a hard one to answer. I mean, we all know that could be seasickness, it could be inner ear infection. I wouldn’t know. Motion sickness is a disorder of movement involving your inner ear.
On one view Dr Knight’s evidence was by no means entirely clear whether seasickness was, as it were, a stand alone condition arising out of motion sickness involving your inner ear or an inner ear infection.
What makes matters slightly more difficult again is that the Tribunal did not refer to that evidence in its reasons for decision.
I am inclined to and do accept that the way in which the Tribunal approached the matter suggests that it must have adopted the proposition that seasickness is a difficulty that arises from motion connected with an inner ear disorder.
The Tribunal did not refer in its reasons for judgment to s.196B(14) of the Act. This was important because even if matters were otherwise favourable to Mr Cunningham, and it was found that he had experienced a severe psychosocial stressor within the meaning of that expression in the SoP, it was still necessary for the experiencing of the severe psychosocial stressor to relate to his operational service in one of the ways listed in s.196B(14) of the Act.
Contrary to the submissions of the Respondent I think that the evidence of Dr Strauss taken in the round and fairly was to the effect that seasickness is capable of being a severe illness within the meaning of the SoP. Dr Strauss expressly found that the experiences on the Sydney and their ramifications were a severe psychosocial stress for
Mr Cunningham. He found “his experience caused him significant or substantial distress”.
The relevant definition of severe in the new Shorter Oxford dictionary includes “disagreeably intense, unpleasantly extreme; (esp. of bad weather, illness, injury etc.) causing hardship pain or suffering by its degree of extremity.”
I do not accept the criticisms advanced by the Respondent that the report of Dr Strauss does not evince or at the very least is not open to the interpretation that Dr Strauss regarded these matters both objectively and as they affected Mr Cunningham individually.
The problem for Mr Cunningham however is that the Tribunal found that the seasickness was a pre-existing condition with the symptoms well established prior to operational service and accordingly that “I am satisfied that the seasickness was not war caused”.
That phraseology is in some respects unfortunate. The phrase “war caused” does not occur in s.196B although it might be fairly said that the phraseology used by the Tribunal was an unintended paraphrase of the requirements of that subsection.
What section 196B(14) deals with is whether an injury, disease or death is related to service.
Critically however the Tribunal found as a fact that the condition predated operational service with the symptoms well established. That finding was plainly open to the Tribunal as it was conceded that
Mr Cunningham had been ill on his journey from Sydney to Melbourne and more particularly had been seasick on his preoperational journey to and around Jervis Bay.
Once the Tribunal reached that finding, plainly the seasickness could not relate to Mr Cunningham’s operational service within the meaning of s.196B of the Act.
It could not arise out of or be attributable to the operational service because it had already occurred (s.196B(14)(b).
It could not be attributed to any material degree by or be aggravated by the operational service because it was already there s.196B(14)(d).
It would not have occurred but for the rendering of operational service because it was already there before the operational service took place s.196B(14)(f)(i).
I confess that for my part I find that analysis somewhat troubling.
The fact is that Mr Cunningham, whatever the pre‑existing state of his ears, simply had not suffered seasickness to the level that he did suffer prior to his Vietnam service. It was that service that led him to become depressed and that service took place on operational service.
Nonetheless, the fact that I would come to a different conclusion does not mean that the Tribunal has fallen into error of law.
The second ground - reference
The second ground really falls to be considered in very much the same way as the first. The recurrence, as in "to occur again after an interval," is true enough in terms of the symptoms. But once one accepts the correctness of the Tribunal’s analysis of the disease, the recurrence of symptoms is not a recurrence of the pre‑existing disease.
I accept further that this was not an aggravation of the condition.
A temporary presence of symptoms is not sufficient to show an aggravation within the meaning of the Act. In Repatriation Commission v Yates (1995) 38 ALD 80 at [88] Lindgren J said:
“The fact that a disease subsequently becomes asymptomatic, that is to say, the fact that it transpires that symptoms earlier present are shown by evidence of later events to have been but temporary, is something conceptually distinct from the nature of aggravation of a disease.”
The third point – depression caused by seasickness
The third point raised also, in my view, fails. The Tribunal’s decision at paragraph 10 (CB 321) expressly found that:
“Here the hypothesis of depression arising from severe seasickness is reasonable under the terms of the SoP. The question there is whether the Tribunal can be satisfied that the seasickness was not attributable to operational service and whether the clinical outset of the depressive disorder was within two years of that stressor.”
Thus while it is true, as Mr Cunningham asserts, that paragraph 9 of the Tribunal’s reasons for decision rolls three independent hypotheses into one, the extract I have detailed shows that the Tribunal in fact did expressly consider the hypothesis that the seasickness caused the depression simpliciter.
The other two hypotheses referred to, namely of social isolation and the ramifications regarding Mr Cunningham’s loss of career, are no longer relied upon (see P-45 at lines 27-32).
While the Tribunal to an extent rolled three hypotheses into one, this was scarcely surprising given the way in which the matter proceeded. While it is true as Exhibit A1 shows that submissions were made by
Mr Cunningham before the Tribunal that the chronic seasickness constituted serious illness of itself, the evidence and indeed even the submissions tended very much to bundle the various aspects of the seasickness and its sequelae together. If one looks at CB 146 one sees Mr Cunningham saying at line 16:
“anyone that has ever been seasick – depression is part of it. It is usually the end result of seasickness.
Line 20 - Question: What feelings did you have that lead you to saying that? – Well I have always – like as a kid, and at Leeuwin, and before I went there, like on that particular ship, I always had sort of a fair bit of hope about what I was going to do, and I was always fairly positive, but I became quite negative and, sort of a feeling of hopelessness.”
At CB 143-145 Mr Cunningham was describing his experiences on his second journey to Vietnam in relation to his experiences in the laundry. He described his health as worse (with diarrhoea, vomiting and so on (CB 144)).
Having dealt with what matters were like he was asked at the bottom of CB 144:
“What was your mental state like … I sort of stuck to myself fairly-fairly much, but by the time you finish your stint down there anyway you didn’t sort of want to do much else but take it easy.”
At CB 145 having said that he stuck to himself most of the time and being asked why he said at line 5:
“Just sick-sick of all the jibes. And being worse-like, being in worse conditions people just didn’t let up.”
These are just examples. There are others. It is clear however that the issue of the seasickness in the evidence before the Tribunal was intimately interrelated with the concerns of Mr Cunningham right from the inception of his more severe seasickness both that it caused social isolation and/or that it lead him to be concerned about his future in the Navy.
Given that this is so it does not seem to me that the Tribunal can be overly criticised for approaching the matter in the way that it did. The fact that it did so in large part followed the Appellant’s evidence and to an extent the submissions made by counsel on his behalf.
Thus the finding by the Tribunal that “constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved” was in my view open to the Tribunal on the materials and does not constitute an error of law.
CONCLUSION
In these circumstances, none of the three matters advanced by the Applicant are made out, and accordingly the appeal must fail. As I earlier indicated, it is not necessary for me to deal with the question therefore as to whether the appeal was competent in any event.
There will be orders that the cross‑appeal be allowed in relation to the peptic ulcer issue and the appeal itself will be dismissed. The Applicant will be ordered to pay the Respondent's costs of the appeal and of the cross‑appeal.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 19 September 2008
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