ADMINISTRATIVE LAW – judicial review of decision of Administrative Appeals Tribunal (“AAT”) – veteran’s entitlements – error of law – whether the AAT properly applied the test in Repatriation Commission v Deledio (1998) 83 FCR 82 – whether the AAT ought to have applied the Statement of Principles in effect at the time of its decision
RAYMOND GORTON v REPATRIATION COMMISSION N 980 OF 2000
STONE J SYDNEY 21 MARCH 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 980 OF 2000
BETWEEN:
RAYMOND GORTON APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
STONE J
DATE OF ORDER:
21 MARCH 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the application be allowed;
2.the decision of the Administrative Appeals Tribunal be set aside;
3.the matter be remitted to the Administrative Appeals Tribunal for determination in accordance with the law;
4.the respondent pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 980 OF 2000
BETWEEN:
RAYMOND GORTON APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
STONE J
DATE:
21 MARCH 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant was born on 20 July 1934. He was a member of the Royal Australian Navy from 8 July 1952 to 14 August 1957. From July 1953 to March 1995, he was assigned to duty on the HMAS Arunta which served in Korean waters for a period during the Korean War. On 5 September 1996, he applied to have his hypertension and associated heart problem recognised as relevant to assessment of his pension entitlements under the Veterans’ Entitlements Act1986 (Cth) (“Act”). For ease of reference I shall use the term ‘hypertension’ to refer to the applicant’s medical condition. There was also a claim in respect of a hearing problem but that is not relevant to these proceedings. The applicant claimed that his hypertension resulted from his alcohol abuse, which, in turn, was caused by stress experienced during his service with the Royal Australian Navy.
On 14 February 1997, the respondent refused to accept the applicant’s claim. The respondent, somewhat quaintly, expressed its decision as, “Your claim for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gorton v Repatriation Commission [2001] FCA 286
Case
[2001] FCA 286
Decision Date
CaseChat Overview and Summary
Gorton v Repatriation Commission involved Mr Gorton, a veteran who sought a declaration that his hypertension was caused by his operational service. The Repatriation Commission, the Board, and the Administrative Appeals Tribunal (AAT) all determined that his hypertension was not war-caused, as the Statements of Principles did not support his claim that his hypertension resulted from his service. The primary legal issues were whether the AAT applied the correct legal principles in deciding Mr Gorton's claim and whether his hypertension was war-caused based on the evidence presented.
The court found that the AAT did not follow the four-step approach outlined in Repatriation Commission v Deledio. The court held that the AAT's failure to apply the Deledio approach was a material error that warranted setting aside the AAT's decision. The court concluded that Mr Gorton's hypertension was caused by his operational service. It was established that his drinking, which contributed to his hypertension, began during his service and was influenced by the stress of service. The medical evidence showed that Mr Gorton's drinking was related to the stress of service, and his hypertension met the criteria set out in the Statements of Principles.
The court ordered that Mr Gorton's application be allowed, the decision of the AAT be set aside, and the matter be remitted to the AAT for reconsideration in light of the court's findings. The court also ordered that the Repatriation Commission pay Mr Gorton's costs.
Orders
Orders of the court
1. the application be allowed;
2. the decision of the Administrative Appeals Tribunal be set aside;
3. the matter be remitted to the Administrative Appeals Tribunal for determination in accordance with the law;
4. the respondent pay the applicant’s costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It was not disputed that the applicant is incapacitated by his hypertension or that his period of service from 25 January 1954 to 27 October 1954 constituted operational service under the Act. However, the Repatriation Commission, the Board and the AAT all decided that the applicant’s hypertension was not war-caused because the relevant Statements of Principles did not support the applicant’s claim that his hypertension resulted from his operational service. Statements of Principles are issued by the Repatriation Medical Authority under s 196B(2) of the Act. They are designed to set out, on the basis of sound medical-scientific evidence, the factors which, as a minimum, must exist and be related to an applicant’s service before it can be said that a reasonable hypothesis has been raised connecting an applicant’s medical condition with his or her service. As there were Statements of Principles covering the applicant’s situation, there was no basis for argument outside those statements. Medical evidence The medical evidence accepted that Mr Gorton’s drinking had commenced during his period of service and that it had contributed to his hypertension. However, the evidence as to whether the drinking had resulted from the stress of service was more equivocal. Reports from four medical practitioners were in evidence. In a letter dated 8 September 1997, Dr Dinnen, a psychiatrist commented that the patient’s account is that his drinking was related to the behaviour of his colleagues on board-ship and concluded:It seems to me that the main stressful event which effected (sic) this patient’s health and secondarily aggravated his dependence on alcohol was the arthritic condition which developed during service.” Dr David Richards, in his report dated 16 January 1997, stated that the applicant did not suggest to him that his drinking was due to the stress of service. In a report dated 30 September 1999, Dr Francis Harding Burns, OAM commented:“Mr Gorton started to drink and to smoke in Korea when he was the youngest man on board; he had been subjected to what he thought were frightening and stressful experiences during air attacks off North Korea, and he had been made to feel inadequate because he was frightened. Alcohol helped him socialise and feel better, and was part of the social custom and habit of the other men when they were ashore.”Mr Gorton was also seen by a psychiatrist, Mr Neil Schultz, who commented that, “I cannot make a causative link between Mr Gorton’s war related service and alcohol use if one excludes his need to resolve his anxieties about being accepted by his peers.” Dr Dinnen was also asked for a further opinion in the light of the assessments by Dr Schultz and Dr Harding Burns as well as evidence from Mr Brendan O’Keefe to the effect that the Arunta did not experience any strafing attack during the time that Mr Gorton served on it. Dr Dinnen, in his report dated 3 April 2000, concluded that Mr Gorton’s account suggested that he was the subject of harassment and “ribbing” by his shipmates and that this ‘real’ perception was that the ship was under attack led to his anxiety/panic disorder during service. In his words, “the onset of that condition can be clearly identified as the stressful experience of a young man, untested in combat, apprehensive about such an eventuality, being either ribbed by his crewmates or being mistaken, leading to a heightened degree of anxiety and apprehension leading to clinical anxiety and panic disorder at the time.”Dr Dinnen confirmed the diagnosis of psychoactive substance abuse/dependence and stated that that condition “does satisfy the Statement of Principles as being due to service”.The AAT’s decision
Decision
Reasons for decision
STONE J
Dr Dinnen was also asked for a further opinion in the light of the assessments by Dr Schultz and Dr Harding Burns as well as evidence from Mr Brendan O’Keefe to the effect that the Arunta did not experience any strafing attack during the time that Mr Gorton served on it. Dr Dinnen, in his report dated 3 April 2000, concluded that Mr Gorton’s account suggested that he was the subject of harassment and “ribbing” by his shipmates and that this ‘real’ perception was that the ship was under attack led to his anxiety/panic disorder during service. In his words, “the onset of that condition can be clearly identified as the stressful experience of a young man, untested in combat, apprehensive about such an eventuality, being either ribbed by his crewmates or being mistaken, leading to a heightened degree of anxiety and apprehension leading to clinical anxiety and panic disorder at the time.”Dr Dinnen confirmed the diagnosis of psychoactive substance abuse/dependence and stated that that condition “does satisfy the Statement of Principles as being due to service”.The AAT’s decision The reasons of the AAT show that it was cognisant of its obligation to apply the four step approach laid down in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”). Mr Vincent, counsel for the applicant, contended that, despite being aware of this obligation, the AAT had erred in not following those steps. The four steps, set out in Deledio at 97, are:“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 [Statement of Principles] determined by the [Repatriation Medical] 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 …. 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.”