Freeman v Repatriation Commission

Case [2002] FCA 576

FEDERAL COURT OF AUSTRALIA

Freeman v Repatriation Commission [2002] FCA 576

JUDICIAL REVIEW – review of decision of Administrative Appeals Tribunal – whether error in the process used to determine a diagnosis of post-traumatic stress disorder by reference to the Statement of Principles No. 15 of 1994 (Post Traumatic Stress Disorder) – whether the criteria in par 4(a)(i) of the Statement of Principles No. 15 of 1994 (Post Traumatic Stress Disorder) is to be applied objectively – whether the Tribunal was bound to accept uncontested medical evidence regarding the diagnosis of post-traumatic stress disorder.

Veterans’ Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120A(3)
Statement of Principles Instrument No. 15 of 1994 (as amended by Instrument No. 225 of 1995) (Post Traumatic Stress Disorder) pars 4(a)(i), (ii)
Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) par 1(a)

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

TERENCE HENRY FREEMAN v REPATRIATION COMMISSION

V 707 OF 2000

NORTH J
9 MAY 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 707 OF 2000

BETWEEN:

TERENCE HENRY FREEMAN
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

9 MAY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.the appeal is dismissed;

2.the appellant is to pay the respondent’s costs of and incidental to the proceedings.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 707 OF 2000

BETWEEN:

TERENCE HENRY FREEMAN
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

NORTH J

DATE:

9 MAY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Before the Court is an appeal against a decision of the Administrative Appeals Tribunal (the AAT) constituted by Senior Member Commodore B G Gibbs, AM, RAN (Retd) made on 21 August 2000. 

  2. The appeal is brought by Mr Freeman, who served in the Navy from 9 July 1967 until 9 October 1974.  Mr Freeman applied for a pension under the Veterans’ Entitlements Act 1986 (Cth) (the Act). He claimed to suffer from post-traumatic stress disorder (PTSD) and psychoactive substance abuse caused by service in Vietnam and arising from an incident which occurred on 6 November 1971.

  3. The Veterans’ Review Board determined, on 24 February 1999, that the PTSD and the substance abuse conditions were war caused, and hence, Mr Freeman was entitled to a pension.  In the decision under appeal the AAT reversed this determination, and held that the PTSD and substance abuse conditions were not war caused. 

  4. The decision of the AAT is set out with great clarity.  It extracts the relevant statutory and related provisions, it carefully defines the issues to be considered by the AAT, and it then records the submissions of each of the parties on these issues.  The decision then states the conclusion of the AAT as to the proper approach to be taken to the issues, it proceeds to examine the evidence in the light of the approach defined, and it…

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Freeman v Repatriation Commission [2002] FCA 576
Case
[2002] FCA 576
Decision Date

CaseChat Overview and Summary

Freeman v Repatriation Commission is a case concerning the review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the eligibility of Mr Freeman for a pension under the Repatriation Act. The AAT had rejected Mr Freeman's claims for both post-traumatic stress disorder (PTSD) and psychoactive substance abuse or dependence, leading him to appeal against the AAT's decision.

The primary legal issues in this case were whether the AAT erred in its acceptance and interpretation of medical evidence regarding Mr Freeman's PTSD and psychoactive substance abuse, and if it had correctly assessed the causation criteria required for the claims. The court examined whether the AAT should have accepted the medical evidence without question, and if the AAT was correct in its factual findings and conclusions.

The court found that the AAT did not commit any error of law. It determined that even if the AAT had erred in its approach to the medical evidence, this would not have affected the outcome of Mr Freeman's claim as it failed on the causation issue. The court held that the AAT was not obligated to accept the medical evidence without scrutiny and was entitled to form its own opinion on the facts presented. Additionally, the AAT's conclusion that Mr Freeman did not meet the criteria for psychoactive substance abuse was based on its findings of fact, which were open to it given the evidence. The court further noted that the arguments concerning the AAT's approach to the medical evidence were of potential importance but were better left for resolution in a case where they are determinative.

The court dismissed the appeal and ordered that Mr Freeman pay the respondent's costs of and incidental to the proceedings.

Orders

Orders of the court

1. the appeal is dismissed;

2. the appellant is to pay the respondent’s costs of and incidental to the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Again, whether this is so or not is of no consequence because the AAT found that Mr Freeman did not satisfy the criteria in par (a)(ii). The latter finding was a finding of fact and was not attacked. In any event, the AAT committed no error of law in making the findings of fact upon which the conclusion was based. Once the AAT concluded that Mr Freeman did not satisfy par (a)(ii) it was of no moment whether he satisfied par (a)(i). His application could not succeed unless he satisfied all the criteria in both paragraphs. THE MEDICAL EVIDENCE Before the AAT were medical reports from Ron Thompson, a registered psychologist, Dr Whitaker, a consultant psychiatrist, and Dr Tanaghow, the Director of Psychiatry at Goulburn Valley Base Hospital. The reports all concluded that Mr Freeman suffered from PTSD. Mr Croyle contended that the AAT was bound to accept the medical evidence for the purposes of the first stage of the inquiry, namely, in determining whether Mr Freeman suffered from PTSD. The AAT was not entitled, he said, to come to an independent opinion on a matter of medical expertise where there was no disagreement among the doctors. Again, the problem with this argument is that, even if it is correct, it only establishes the diagnosis which the AAT was prepared to assume for the purpose of the alternative reasoning concerning the PTSD condition. It does not answer the independent failure of Mr Freeman’s case on the causation question. So, again, any such error made by the AAT would have been immaterial. CONCLUSION CONCERNING PTSD I have found that none of the arguments raised in relation to the PTSD condition, even if they were to be accepted, would overcome the AAT’s conclusion on the causation issue. That is not to say that the arguments should be accepted. It is unnecessary to determine whether they are correct or not. They raise matters of potential importance in this area of the law. For the authoritative resolution of those arguments it is better to await a case in which those issues are determinative of the case. Mr Freeman chose, apparently on advice, in part, from his doctors, to make his claim on the basis that he suffered PTSD. The AAT found that such a claim was not made out. However, the medical reports disclose that Mr Freeman has suffered a psychiatric condition. It may be that the condition entitles him to a pension under the Act. But if that is so, he will need to rely on some other category of entitlement.PSYCHOACTIVE SUBSTANCE ABUSE OR DEPENDENCE The factor which had to exist to support Mr Freeman’s claim that he suffered substance abuse is set out in par 1(a) in the Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) (the SoP (psychoactive substance abuse) as follows: “experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;” “Stressful event” is defined in the SoP (psychoactive substance abuse) as:“… an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.”

Decision

Reasons for decision

NORTH J
Again, the problem with this argument is that, even if it is correct, it only establishes the diagnosis which the AAT was prepared to assume for the purpose of the alternative reasoning concerning the PTSD condition. It does not answer the independent failure of Mr Freeman’s case on the causation question. So, again, any such error made by the AAT would have been immaterial. CONCLUSION CONCERNING PTSD I have found that none of the arguments raised in relation to the PTSD condition, even if they were to be accepted, would overcome the AAT’s conclusion on the causation issue. That is not to say that the arguments should be accepted. It is unnecessary to determine whether they are correct or not. They raise matters of potential importance in this area of the law. For the authoritative resolution of those arguments it is better to await a case in which those issues are determinative of the case. Mr Freeman chose, apparently on advice, in part, from his doctors, to make his claim on the basis that he suffered PTSD. The AAT found that such a claim was not made out. However, the medical reports disclose that Mr Freeman has suffered a psychiatric condition. It may be that the condition entitles him to a pension under the Act. But if that is so, he will need to rely on some other category of entitlement.PSYCHOACTIVE SUBSTANCE ABUSE OR DEPENDENCE The factor which had to exist to support Mr Freeman’s claim that he suffered substance abuse is set out in par 1(a) in the Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) (the SoP (psychoactive substance abuse) as follows: “experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;” “Stressful event” is defined in the SoP (psychoactive substance abuse) as:“… an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.” The AAT concluded: “While the Tribunal determines that the material before it points to a hypothesis connecting psychoactive substance abuse or dependence with the circumstances of the particular service rendered by Mr Freeman, the Tribunal has formed the opinion that the hypothesis is not a reasonable one. That is to say it does not contain either the factor relied upon, or any one or more of the alternative factors set out in the SoP. That being so, the claim must fail.It is the Tribunal’s finding that the example ‘such as combat’ provided in the definition of ‘stressful event’, is intended to convey the severity of the event comprehended by the definition. Given the event described by Mr Freeman, and taking an objective view of it, the Tribunal has formed the view that this part of the definition is not satisfied.” The conclusion here expressed by the AAT was derived from the lengthy analysis of the facts which the AAT conducted. This analysis included resolving a conflict between the evidence of Mr Freeman and the evidence of Mr McNaught. The challenge to the decision of the AAT on the substance abuse aspect is, in essence, a quarrel with the fact finding made by the AAT. But no error of law is disclosed in the approach of the AAT. The findings of fact upon which this conclusion was based were open to the AAT on the evidence before it.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

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