Finger v Repatriation Commission
[2006] FMCA 1075
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FINGER v REPATRIATION COMMISSION | [2006] FMCA 1075 |
| ADMINISTRATIVE LAW – Appeal from AAT – veterans' entitlements – disability pension – whether veteran suffered from war-caused post traumatic stress disorder, or in the alternative, depressive disorder – whether hypothesis connecting veteran's illness with war service reasonable – whether there was in fact any material pointing to a reasonable hypothesis – whether Tribunal erred in finding no reasonable hypothesis existed – application dismissed. |
| Administrative Appeals Tribunal Act1975, s.44 Veterans’ Entitlements Act 1986, ss.9, 119, 120, 120A |
| Blair v Repatriation Commission [2005] FCA 1076 Woodward v Repatriation Commission [2003] FCFCA 160 |
| Applicant: | LESLIE LEONARD JOHN FINGER |
| Respondent: | REPATRIATION COMMISSIONER |
| File Number: | MLG767 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 April 2006 |
| Date of Last Submission: | 24 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 22 June 2005 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG767 of 2005
| LESLIE LEONARD JOHN FINGER |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
This is an appeal under s.44 of the Administrative Appeals Tribunal Act1975 from a decision of the Administrative Appeals Tribunal given on 17 May 2004: Finger and Repatriation Commission [2005] AATA 400.
The nature of an appeal under s.44 was recently considered by the Full Court of the Federal Court of Australia in Comcare v Etheridge [2006] FCAFC 27 where Branson J (with whom Spender and Nicholson JJ agreed) said:
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.
Background
The applicant sought a pension calculated on the basis that he suffers from a war caused disease or condition of post traumatic stress disorder or a depressive disorder with anxiety.
The applicant is a 60 year old man who served in the Royal Australian Army from 1 February 1967 to 31 January 1969. During the period
21 May 1968 to 19 December 1968 he served in Vietnam in the 4th Battalion Signal Platoon. After his service he returned to work as a refrigeration mechanic, working as a service technician and then a spare parts salesman at a major air conditioning company until he was retrenched on 7 December 2001.
The applicant said that he first developed symptoms of depression around 10 to 20 years ago. He first attended upon a psychiatrist in September 2000 after seeing a psychologist for around 6 months. Unfortunately the applicant had little memory of his service in Vietnam, and no memory of any event that may have been the causative of, or contributed to, his condition.
The Tribunal found that the applicant suffered from a chronic depressive disorder and that the date of onset of this condition was in 1974, at the earliest.
The legislative framework
The legislative framework is clearly described by Weinberg J in Repatriation Commission v Gosewinckel [1999] FCA 1273:
5. Section 9 of the Veterans’ Entitlements Act prescribes the circumstances in which a veteran's injury or disease should be taken to be "war-caused". That section relevantly provides:
"(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
..."
6. The term "operational service" has the meaning given by ss 6 to 6F - see s 5C. … the veteran rendered "operational service" within the meaning of that expression in s 6 of the VE Act. That fact has important implications so far as the standard of proof is concerned.
7. Section 120 of the VE Act relevantly provides:
"(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if 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.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
..."
8 Section 120A which is said to "affect" ss 120(1) and 120(3) was introduced into the VE Act by Act No 98 of 1994. It relevantly provides:
"(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
...
(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.
..."
The Tribunal (at paragraph [99]) identified that in this case it was required to follow the steps set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82, quoting the relevant passage:
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 (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.
There are three important glosses that can be added to the statement in Deledio:
a)Before applying Deledio the Tribunal must first determine, on the balance of probabilities, whether the applicant has suffered an injury (or disease) and the nature of that injury or disease;
b)If there is a SoP covering the particular injury or disease, the applicant must place evidence before the Tribunal to show that they come within the definition of the injury or disease in the SoP.
c)The Tribunal, in carrying out step one must identify an hypothesis, which is based upon evidence before the Tribunal, not assumptions or speculation: Deledio; Blair v Repatriation Commission [2005] FCA 1076; and Dunlop v Repatriation Commission [2002] FCA 1400.
The case for the applicant
At the hearing in this court (as at the hearing before the Tribunal) the solicitor representing the applicant pursuing a case based on the applicant suffering PTSD under the Statement of Principles concerning Post Traumatic Stress Disorder (Instrument 3 of 1999 as amened by No. 54 of 1999).
Such a case is misconceived. The PTSD SoP relevantly provides:
Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
…
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
…
In Repatriation Commission v Gosewinckel [1999] FCA 1273 Weinberg J said:
67. The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of "purely medical ... issues" out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be "reasonable", and the claim will fail.
At no stage did the applicant provide any evidence that would satisfy this part of the definition under this statement of principles. The applicant’s case was always that he had no memory of the events that took place in Vietnam that may have been causative of his condition. Without any memory of an event (specific or vague) the applicant could not satisfy this part of the SoP as he is not able to re-experience the event. To the extent that the Tribunal member considered the applicant’s case for PTSD beyond this point was overly generous to the applicant.
Alternative case for the applicant
The advocate for the respondent, quite properly, identified for the tribunal member that the applicant’s case may fall within the Statement of Principles concerning Depressive Disorder (Instrument 58 of 1999). The Tribunal member recounted the respondent’s submissions as follows:
95.Based on the diagnosis of depressive disorder, the respondent submitted that the relevant SoP (58 of 1998 concerning depressive disorder) was not met as there was no evidence of the onset of the chronic depression within 2 years of any traumatic event that may have occurred during his Vietnam service. The applicant's evidence had placed the onset of his depression within the last 10 to 20 years and the applicant's wife had first noted changes in his behaviour in approximately 1974 or 1975, some 6 to 7 years after Mr Finger's operational service. The respondent noted the first entry regarding depression in the clinical notes of any treating doctor was in March 1979.
The Tribunal found that the applicant suffered chronic depressive disorder, and not PTSD:
100.On the balance of probabilities the Tribunal accepts the diagnosis of Dr Walton and the Austin Repatriation Medical Centre’s Veterans' Psychiatric Unit, that the applicant's psychiatric disorder is a chronic depressive disorder (Repatriation Commission v Cooke (1998) 90 FCR 307) and the date of onset of this condition was, at the earliest, 1974 (Re Robinson and Repatriation Commission (1998) 50 ALD 668 and Repatriation Commission v Cornelius [2002] FCA 750). The Tribunal takes particular note of the Austin Repatriation Medical Centre’s Veterans' Psychiatric Unit report, in view of their experience in diagnosing and treating veterans suffering from PTSD and other psychological disorders; and the fact that this unit observed and treated Mr Finger as an inpatient over a period of 11 days. However, as Dr Walton acknowledged that some of Mr Finger's symptomatology was compatible with an alternative diagnosis of PTSD, both of these conditions are considered in this decision for the sake of completeness.
The Tribunal then went on to make findings with respect to steps 1 to 3 as suggested in Deledio. Those findings were in the following terms:
101.The applicant has not enunciated a hypothesis as such, except to state, in their statement of facts and contentions, that "…It is submitted that Depression/Anxiety and Peptic Ulcer Disease are related to the applicant's operational service in Vietnam". At the commencement of the hearing the applicant advised that the claimed psychiatric disorder was PTSD or in the alternative a chronic depressive disorder. In the latter instance, there was one psychiatric opinion that the applicant had suffered an abnormal grief reaction (to his mother's death within days of his commencement of service), which was impacted upon by his operational service to such a degree that the chronic depressive disorder resulted.
102.Having examined all the material before it, the Tribunal has determined that there is material pointing towards the raised hypothesis albeit requiring assumptions to be made (Re Stares; Burns).
103.The parties and the Tribunal agreed that there are SoPs applicable to PTSD, namely Instrument 3 of 1999 as amended by Instrument 54 of 1999; and depressive disorder, namely Instrument 58 of 1998. If the hypothesis is consistent with the template of the SoP, the hypothesis is said to be reasonable. The applicant has relied on factor 5(a) of SoP 3 of 1999 and in the alternative, factor 5(b) or 5(h) of SoP 58 of 1990. The Tribunal, without reference to any finding of facts from the material before it, has determined that the hypotheses raised are reasonable and not contrary to proved or known scientific fact; obviously fanciful, incredible, absurd, ridiculous, not tenable, too remote or too tenuous or that the hypothesis is not inconsistent with the factors in a SoP.
…
107. In relation to the relevant SoP for PTSD, the applicant has denied all of the symptoms delineated in criterion B, obviously has an inability to recall any trauma (criterion C(iii)), but does experience "difficulty falling...asleep" (criterion D(i)) and suffers "irritability or outbursts of anger" (criterion D(ii)) in the form of road rage and verbal abuse directed at his wife. Overall, he does not meet the DSM-IV criteria for PTSD.
108. Similarly, the applicant does not meet the requirements of SoP 58 of 1998 concerning depressive disorder, which requires the experiencing of a severe psychosocial stressor (factor 5(b)) or, having a clinically significant psychiatric condition within the two years immediately before the clinically worsening of the depressive disorder (factor 5(h)). On Mrs Finger's evidence, symptoms of depression commenced in about 1974, and on the medical evidence in 1978 or 1979, although there is an entry in 1975 (Exhibit R12) that refers to some anxiety arising from family problems.
It is unfortunate that paragraphs 107 and 108 of the Tribunal’s reasons are contained within a section that appears to deal with step 4 of the Deledio process of reasoning. However, it is not appropriate to review a decision of the AAT with an eye finely attuned to error: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. The effect of the findings is that the applicant could only fall within the SoPs if assumptions were made. Whilst the Tribunal member did not make specific findings as to the terms of the hypothesis that was being considered this was a product of the failure of the applicant’s solicitor to provide a specific hypothesis.
The relevant parts of the Depressive Disorder SoP that was actually at issue was the requirement of clause 5. The applicant could only have fallen within 5(b) or 5(h). Clause 5(h) must be read in the context of clauses 4 and 6:
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; [or]
…
(h) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(f) to 5(k) apply only to material contribution to, or aggravation of, depressive disorder where the person’s depressive disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
The terms ‘clinically significant’ and ‘severe psychosocial stressor’ are defined in clause 8 as:
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
The meaning of ‘severe psychosocial stressor’ was considered by Spender J in White v Repatriation Commission [2004] FCA 633 where his Honour said:
27. On the conclusion by the Tribunal as to the absence of a "severe psychosocial stressor", I accept the submissions on behalf of the respondent that the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.
28. The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are "examples of what is meant by ‘substantial distress’". In my opinion, the ordinary language of the definition makes it clear that the examples given are of the "identifiable occurrences" contemplated, not of "substantial distress". The examples are of "occurrences", not emotions.
29. The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor".
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
In the absence of any evidence identifying a ‘severe psychological stressor’ it is difficult to understand how this case could fall within clause 5(b) of the SoP.
The question of the application of clause 5(h) required consideration of whether the applicant had a clinically significant condition within the two years before a service related event that worsened that condition. There remains no evidence of an event or relationship to the service in Vietnam, only speculation that something may have occurred in Vietnam.
The ultimate finding of the Tribunal at paragraph 108 was that the applicant was not within either SoP. Put simply, the applicant never advanced an hypothesis that had any evidentiary foundation, capable of falling within either SoP.
Not surprisingly, the Tribunal found itself satisfied beyond reasonable doubt that there was no severe psychological stressor, given that there was no evidence of an occurrence that had any impact on the applicant, even from the applicant himself. It must be noted that this was not a case where there was simply no evidence, but a case where there was evidence of enquiry by the applicant of other soldiers, and of a senior officer (Colonel Church), and the Commanding Signals Officer of the 4th Battalion during the relevant period (Mr Innes). The only way to prove a negative proposition is to provide evidence that enquiries of the potential sources of evidence of the event occurring: this the respondent did at the hearing.
Other cases of depressive disorder
In Hardman v Repatriation Commission [2005] FCAFC 8 the court considered a case where there was evidence of an incident at a hospital where the applicant was being treated that could have come within clause 5.
In Schmidt v Repatriation Commission [2004] FCA 1158 Spender J summarised Stoddart v Repatriation Commission [2003] FCA 334 and Woodward v Repatriation Commission [2003] FCFCA 160, saying:
28 For the applicant it was submitted that in determining what is meant by "severe stressor" in Instruments No. 3 of 1999 (as amended) and No. 76 of 1998, the correct approach was that as stated by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 ("Stoddart") at 296 where his Honour said:
‘In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.’
29 This passage was expressly referred to by the AAT in the context of the need "for the Tribunal to have regard to the principles set out in [Stoddart and Woodward]".
30 Woodward v Repatriation Commission (2003) 200 ALR 332 ("Woodward") at 357-378 accepted the reasoning of Mansfield J in Stoddart and said:
‘... it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.’
However, the Tribunal in that case did not accept that any of the three events relied upon amounted to a severe stressor.
Similarly, in Gerzina v Repatriation Commission [2003] FMCA 490 that applicant relied upon two specific incidents.
The solicitor for the applicant ran a case with the same fundamental difficulties before Ryan J in the Federal Court: Dunlop v Repatriation Commission [2002] FCA 1400. That case also required assumptions about events that may have been experienced by the serviceman. Ryan J (at [73]) said:
… in the present case, the material did not reveal or suggest what reaction, beyond a generalised feeling of fear, Mr Dunlop had to the proximity of people labelled "head hunters." Nor did it disclose that he had any reaction at all (assuming that he knew of it) to the death of the officer from his unit. There was therefore missing from the hypothesis raised by the material, as the Tribunal found, an essential element prescribed by the SoP, namely a relation between the depression which is assumed to have led to the veteran's suicide and the service rendered by the veteran.
Specific grounds of appeal
Ground 1
The applicant argues that the Tribunal was wrong in law in its application of ss.9, 120, and 120a of the Veterans’ Entitlements Act 1986. It was argued that the Tribunal failed to consider whether the applicant had PTSD or a depressive disorder prior to his operational service. This proposition was never part of the applicant’s case, nor supported by any evidence.
It was also argued that the Tribunal did not consider ss.120 and 120a. The Tribunal did have regard to this and sets out the sections in paragraph [85] of its reasons.
Ground 2
It was argued that the Tribunal erred in law in the manner it consulted the SoP on PTSD. In this case the applicant could never come within the terms of the PTSD SoP, on the basis of his own evidence.
Ground 3
This ground alleges an error of law in how the Tribunal applies the factual circumstances to the SoP relating to PTSD.
This complaint is grounded in an argument that as the applicant was likely to have been confronted with severe stressors, and therefore the SoP could not be disproved. The argument is not one based upon the use of the SoP but the findings of fact of the Tribunal.
Ground 4
It is said that the Tribunal erred in law in its interpretation of what constituted a war-caused condition. The applicant’s solicitor did not pursue this ground in his written outline or at the hearing.
Ground 5
It was alleged that the Tribunal erred in applying s.120(1) on the basis that:
The Tribunal should have … considered the relationship between the hypothesis and SoPs and then using such facts asked itself whether it was satisfied beyond reasonable doubt that the factors supporting the hypothesis were dispelled beyond any reasonable doubt.
The Tribunal ought first identify what the hypothesis is, then determine whether it is within the SoP template, and finally whether it has been disproved ‘beyond reasonable doubt.’ However, as set out above, there appears to have been no hypothesis open on the evidence (without making assumptions or engaging in speculation) to support an hypothesis within either of the SoPs.
Ground 6
This ground complained that the Tribunal failed to apply s.119 of the Veterans’ Entitlements Act 1986. Section 119 relevantly provides:
119. [Commission not bound by technicalities] (1) In considering, hearing or determining, and in making a decision … the Commission:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
…
There was no specific respect in which it was said that s.119 ought to have been referred to or was not applied. It is a section of general application that would not normally be referred to in a decision. It was not suggested that the section had been referred to in argument in a way that needed to be dealt with in the decision.
This ground led to an argument that amounts to the following argument:
a)That the applicant had to have suffered an event that could be the cause of his condition;
b)The difficulties in providing evidence of an event where the applicant could not recall an event and there was no record of an event should be taken into account under s.119;
c)That an event should be assumed because events of the type needed did occur to other soldiers in Vietnam.
Sections such as 119 (and principles such as that described in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) can not lead to a finding that an event occurred where there is no direct or circumstantial evidence to support the proposition. The principles mean that a decision maker should be comfortable making a finding on far less evidence in the circumstances referred to in the section. In this case the evidence did not go beyond speculation that the applicant experienced a relevant event.
Ground 7
This ground alleged that the Tribunal failed to provide adequate reasons. This was not pursued at the hearing.
Ground 8
This ground alleges that the Tribunal was wrong in law in applying Deledio. Deledio’s case clearly applies. The suggested four step reasoning process is clearly appropriate. Indeed, if the four steps in Deledio were closely followed it would be difficult for a Tribunal to fall into error.
This argument was developed as an argument that the Tribunal was wrong in requiring the applicant to prove he had PTSD as defined by the SoP. The effect of ss.120(3) and 120a is to require the applicant to bring his case within a SoP if one exists (see also Repatriation Commission v Gosewinckel [1999] FCA 1273).
Conclusion
In this case the Tribunal considered the applicant’s case and found against him on the facts. The absence of any evidence of the applicant suffering a severe psychosocial stressor whilst he was in Vietnam, or within two years of the clinical worsening of the clinical onset of the disease created a hurdle the applicant did not overcome.
In the circumstances the appeal must be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 31 July 2006
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