Forrester v Repatriation Commission

Case [2013] FCA 898

FEDERAL COURT OF AUSTRALIA

Forrester v Repatriation Commission [2013] FCA 898

Citation: Forrester v Repatriation Commission [2013] FCA 898
On appeal from: Forrester and Repatriation Commission [2012] AATA 846
Parties: CONSTANCE FORRESTER v REPATRIATION COMMISSION
File number: VID 1121 of 2012
Judge: MORTIMER J
Date of judgment: 6 September 2013
Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension claim – whether tribunal erred in finding material before it did not point to or support hypothesis advanced – whether link between events and operational service too remote or tenuous – whether tribunal’s reasoning inconsistent with its conclusion – appeal dismissed
Legislation: Acts Interpretation Act 1901 (Cth) s 23
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1)
Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 7, 8, 13, 120, 120A, 196B
Cases cited: Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 Cattanach v Melchior (2003) 215 CLR 1
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Deledio v Repatriation Commission (1997) 47 ALD 261 East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26
House v The King (1936) 55 CLR 499
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
McKenna v Repatriation Commission (1999) 86 FCR 144
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124
Re Dell and Repatriation Commission (1986) 9 ALD 596
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Stacey (unreported, Nos V83/0396, V84/0821 and V28/072, 26 June 1985)
Repatriation Commission v Bey (1997) 79 FCR 364 Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Stares (1996) 66 FCR 594
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Date of hearing: 22 July 2013
Date of last submissions: 16 August 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant: Ms F Ryan
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Applicant: Williams Winter
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1121 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

CONSTANCE FORRESTER
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

6 SEPTEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1121 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

CONSTANCE FORRESTER
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MORTIMER J

DATE:

6 SEPTEMBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

NATURE OF THE PROCEEDING…

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Forrester v Repatriation Commission [2013] FCA 898
Case
[2013] FCA 898
Decision Date

CaseChat Overview and Summary

The case of Forrester v Repatriation Commission involved a widow's pension claim by Mrs Forrester, who sought to establish a link between her late husband's military service and his subsequent heavy drinking, which allegedly led to his death from an aortic aneurysm. The Federal Court was tasked with determining whether the Administrative Appeals Tribunal (AAT) had erred in concluding that the evidence did not support a connection between the claimed stressors during service and the onset of heavy drinking, and whether the tribunal's reasoning was inconsistent with its conclusion. The court was also called upon to assess the reasonableness of the hypothesis presented by Mrs Forrester and whether the tribunal's decision was consistent with the statutory obligations under the Administrative Appeals Tribunal Act.

The primary legal issues revolved around the interpretation of the hypothesis advanced by Mrs Forrester and whether the tribunal was correct in its assessment that the material presented did not support a link between the stressors during service and the veteran's drinking habits. Furthermore, the court examined whether the tribunal's characterisation of the hypothesis as "too remote and too tenuous" was appropriate and whether this was consistent with the tribunal's conclusion. The applicant argued that the tribunal had misapplied the principles set out in Bull v Repatriation Commission by characterising the hypothesis as "too remote and too tenuous", while the respondent maintained that the tribunal's conclusion was supported by the evidence and was consistent with the statutory requirements.

The Federal Court, in dismissing the appeal, found that the tribunal's reasons, although brief, were sufficient to conclude that the hypothesis presented did not find support in the material before it. The court held that the tribunal was entitled to find that the link between the events during service and the onset of heavy drinking was too remote and too tenuous, given the particularity of the stressors relied upon. The court rejected the applicant's argument that the tribunal's characterisation of the hypothesis was inconsistent with its conclusion, noting that the tribunal's reasons, while brief, did not indicate any misdirection in its reasoning. The court also noted that the tribunal was correct in its assessment that the hypothesis was not supported by the material, and that the tribunal's conclusion was consistent with the statutory obligations under the AAT Act.

The court ultimately dismissed the appeal, affirming the tribunal's decision that the material did not point to a hypothesis connecting Mr Forrester's death from aortic aneurysm to his operational service. The court found no error in the tribunal's reasoning and upheld its conclusion that the hypothesis presented by Mrs Forrester was not supported by the evidence. The Federal Court's decision underscores the importance of the particularity of the stressors relied upon in such claims and affirms the tribunal's role in assessing the reasonableness of hypotheses in veteran's entitlement claims.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53]. The manner in which these two aspects of reasonableness operate assists in resolving the third argument raised by the applicant.THE TRIBUNAL’S DECISION The Tribunal’s reasons for decision are compact. It rejected Mrs Forrester’s claim at the first step of the Deledio process. It set out the hypothesis advanced by Mrs Forrester at [61] of its reasons:It is put on behalf of Mrs Forrester that the material before us points to the following hypothesis:a.Forrester commenced drinking heavily during his operational service in Vietnam, partly or wholly as a result of various stressors he encountered during his service in Vietnam, including:ii. discord between him and his superior, Col Hooten (Hooten);iii. being ordered to inspect brothels by his superior, which he refused to do;iv. having the task of sending home the effects of the deceased, and writing letters to their parents;v. being involved in a Court Martial for a soldier he felt some sympathy for; andvi. having been shot at by the soldier the subject of the court martial.b.Forrester continued drinking heavily, approximately 6 cans of heavy beer almost every night, and no less than 6 cans of heavy beer during the weekend, when he returned from his ‘operational service’.c.This drinking continued up to the onset of hypertension, which occurred no earlier than 1973 and no later than 1993.d.Forrester’s hypertension caused his aortic aneurysm.e.Forrester died from aortic aneurysm. At [64] it expressed its conclusion on the first step:Having considered all of the material before us we determine that it does not point to a hypothesis connecting Mr Forrester’s death from aortic aneurysm to his operational service. At [65] and [66] the Tribunal focused on the argument inherent in the hypothesis as expressed at [61]: namely, that there were particular events during Mr Forrester’s service in Vietnam which were stressors for him and which led to him starting to drink much more heavily. It found at [66] that:The material before us does not “point to” or “support” the hypothesis that Mr Forrester increased his consumption of alcohol on an ongoing basis as a result of all or any of the events said to have caused him particular stress. The evidence of Mrs Forrester, Ms Swan and Mr Swan indicates that there was friction between Mr Forrester and his superior officer and that he found some of the tasks he was required to undertake as part of his duties to be distressing. This material also indicates that he was angry as a result of events which occurred during his operational service, particularly the incident involving the Court Martial. The material does not point to any connection between the soldier firing his weapon in the vicinity of Mr Forrester and Mr Forrester’s consumption of alcohol. There is no material which points to any change in Mr Forrester’s drinking habits as a result of all or any of these events.

Ratio Decidendi

Legal Principle Established

The adequacy of the Tribunal’s reasons (and its compliance with the obligations in s 43(2B) of the AAT Act) was not put in issue. Brief though they are, what emerges from the Tribunal’s reasons is that the particularity of the events relied upon in the hypothesis as “stressors” was what led the Tribunal to the conclusion that the material before it did not point to or support a hypothesis that connected those events (in whole or in part) during Mr Forrester’s operational service with any increase in his drinking.The Second Argument: Whether It was Open to the Tribunal to Find the Link between the Events and Operational Service was “Too Remote and Too Tenuous” This argument relied heavily on the Full Court’s decision in Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832. It was submitted that, by using the phrase “too remote and too tenuous”, the Tribunal misdirected itself because that characterisation, according to Bull, was reserved for hypotheses that were fanciful or irrational. The hypothesis at [61] of the Tribunal’s reasons, it was submitted, could not be characterised in that way. The applicant placed some emphasis on the similarity between the applicant’s case and the factual circumstances in Bull. She relied in particular on the Full Court’s reasons in Bull 66 ALD 271; [2001] FCA 1832 at [40] where, having set out what the material disclosed about the veteran’s drinking habits in that case, Emmett and Allsop JJ stated:the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to … above was by no means fanciful or impossible or incredible or untenable. He drank lightly before the war, experienced stress in the war, spoke in guarded and repressed terms of the war and drank more heavily after the war. It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol. In effect, the applicant submitted that, given the factual similarities with Mrs Forrester’s claim about her husband’s drinking, this passage established that the hypothesis put forward on behalf of Mrs Forrester was not capable of being characterised as “too remote” or “tenuous”. The respondent pointed out that the paragraphs of the Court’s reasons in Bull that followed (66 ALD 271; [2001] FCA 1832 at [41]–[46]), read with what the Court earlier set out of the Tribunal’s reasons in that case (at [27]), reveals that the Full Court accepted these were very much factual questions for the Tribunal and that they did not give rise to a question of law. That submission could have force but, once again, the brevity of the Tribunal’s reasons in Mrs Forrester’s case undermines the strength of the respondent’s argument. Unlike the Tribunal’s reasons in Bull, the Tribunal in Mrs Forrester’s claim did not articulate other explanations for an increase in the veteran’s drinking. If it had done so, that would have been the end of this ground. The absence of explanation requires further inquiry into why the Tribunal characterised the link as too remote and too tenuous.