Hackett v Repatriation Commission
[2005] FMCA 1698
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKETT v REPATRIATION COMMISSION | [2005] FMCA 1698 |
| ADMINISTRATIVE LAW – Appeal from AAT – Veteran’s entitlement to special rate pension – application based on inadequate reasons of AAT – no error of law identified – appeal dismissed. |
| Veterans’ Entitlement Act 1986 Administrative Appeals Tribunal Act 1975 s43 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Repatriation Commission v Deledio (1998) 83 FCR 82 White v Repatriation Commission (2004) FCA 633 Repatriation Commission v Stoddart (2003) FCAFC 3000 Walsh v Department of Employment, Education, Training and Youth Affairs (1998) ALD 690 Dornan v Riordan (1990) 24 FCR 564 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 FCT v Cainero (1988) 15 ALD 368 McQuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 MIMIA v Yusef (2001) HCA 30 |
| Applicant: | THOMAS JAMES HACKETT |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG 88 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 24 May 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 22 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Clutterbuck |
| Solicitors for the Applicant: | Streeting Haney Lawyers |
| Counsel for the Respondent: | Ms Ford |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application be dismissed.
That the Applicant shall pay the Respondent’s costs of and incidental to the Application, to be agreed and if not agreed, than as fixed by the Court after written submissions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 88 of 2005
| THOMAS JAMES HACKETT |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Introduction
Thomas James Hackett (“the Applicant”) by Notice of Appeal filed
11 January 2005 seeks to set aside a decision of the Administrative Appeals Tribunal given 17 December 2004 (“the decision”). The Appeal is opposed by the Repatriation Commission (“the Respondent”).
The decision effectively affirmed an earlier decision made 25 June 2002 by the Veterans’ Review Board which rejected the Applicant’s claim for adjustment to his pension for conditions of post traumatic stress disorder (PTSD) and alcohol dependence/alcohol abuse, as being war-caused under the Veterans’ Entitlement Act 1986 (“the Act”).
Background
The Applicant was born in 1945. He served in the Royal Australian Navy from 14 January 1965 to 13 January 1985 including operational service during that period.
He has been accepted for, and currently receives 50% of the general rate of pension as a result of conditions which have been accepted as service-related, namely:-
·Bilateral Sensorial Hearing Loss
·Tinnitus
·Part fracture carpal scaphold left wrist
·Osteoarthritis of left knee
·Chronic solar skin damage.
The Applicant contends that claimed disabilities of post traumatic stress disorder and alcohol dependence/alcohol abuse satisfy the relevant Statement of Principles (SoPs) and should be regarded as war caused. He claims he could not obtain appropriate clinical management for PTSD and that this aggravated the clinical status of his PTSD during operational service. He says he suffered a severe stressor whilst serving on HMAS Perth and that his increase in alcohol intake resulted from this experience.
Issue
The Respondent did not dispute that the Applicant suffers from PTSD, alcohol abuse and generalised anxiety disorder. The primary issue for determination was that of causation.
Grounds of Appeal
The grounds pleaded are that the Tribunal:-
“a) Failed to apply relevant considerations in assessing whether the Applicant had suffered alcohol abuse/dependence and post traumatic stress disorder and/or anxiety disorder;
b) Failed to identify the relevant criteria as set out in the Statement of Principles applicable to alcohol abuse or dependence and post traumatic stress disorder and anxiety disorder in making the determination it did to affirm the decision under review;
c) Failed to give any sufficient reason or reasons or proper reasons to reject alcohol abuse, post-traumatic stress and anxiety disorder as war-caused conditions or, in the alternative,
d) Failed to provide sufficient reason to identify the fact that the Tribunal had taken into consideration relevant considerations when making the assessment whether the events or occurrences when assessed properly constituted severe stressors or a severe stressor or psychological stressor (in the case of anxiety disorder) sufficient to either entitle or disentitle the Appellant to succeed in his appeal;
e) Improperly applying, or being seen to apply, or failing to apply the relevant statement of principle to the determination as to whether the Appellant suffered alcohol abuse or dependence and post traumatic stress disorder;
f) Failing to take into account the Applicant’s evidence and/or not providing any reason or reasons to disregard the Applicant’s evidence in preference to other evidence or in preference to the lack of evidence;
g) Taking into account irrelevant considerations or giving consideration to matters as relevant that had not been the subject of evidence and hence drawing conclusions and speculating upon matters when not entitled to do so;
h) Failing to give any reason as required under the Administrative Appeals Tribunal Act to s43 sufficient to enable the Applicant to discern:
(i) how the Tribunal reached the conclusion that it did
(ii)how the Tribunal reached the conclusion it did with respect to the application of the relevant statements of principle;
(iii)whether the Tribunal properly applied the law in reaching the conclusions it did.”
Written submissions were helpfully provided by both parties and I was also assisted by oral submission from Mr Clutterbuck (for the Applicant) and Ms Ford (for the Respondent). Whilst all grounds on appeal were still relied upon by the Applicant, Mr Clutterbuck identified that the “nub” of his submissions is referred to in paragraphs 5 to 8 of his written submissions in reply, being:-
“5.The effect is that the Tribunal does not go back to Factor 5(b) nor does it consider whether on the medical evidence the PTSD was worsened during operational service.
6. The Respondent asserts in paragraph 10 that the way the SoP requires consideration is that Factors 5(a), (b) and (c) must be read together.
7. With respect, this is not so as Factor 5(b) does not, of itself, require the existence of a severe stressor as part of the “clinical worsening” but requires the “experiencing” of a severe stressor prior to the “clinical worsening” of PTSD, which clinical worsening must take place during the course of operational service – the causal link must be referred to and is found on at least three or four of the incidents referred to above (a matter that the AAT did not consider or turn its attention to).
8. It is, with respect, an error to assert (in paragraph 16) that there is evidence to support the AAT’s findings as alleged to assert the negative bespeaks a positive finding. (See AR146 and AR265, lines 10-25). In fact, it could not be any clearer that no information was conveyed.”
This is said by the Applicant to amount to a failure by the AAT to proceed in accordance with law and should compel the matter to be remitted back to the AAT, to do so.
Principles on Appeal
This is an appeal on a question of law, brought pursuant to s44 of the Administrative Appeals Act 1975. It is worth re-stating that there is no error of law simply in making an error of fact (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356).
Statutory Provisions
Section 13 of the Act imposes liability on the Commonwealth to pay pensions to eligible persons; section 14 deals with the making of claims for pensions, while section 15 deals with Applications for increases in the rate of pensions.
The circumstances in which a disease is taken to be war-caused are set out in section 9(1) of the Act.
Sections 120(1), 120(3) and 120A(3) of the Act deals with the standard of proof to be applied and I agree with the submission of the Respondent that:-
“The threshold question is posed by section 120(3) – does the whole of the material before the decision maker raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran?”
Section 120A(3) of the Act provides that a hypothesis connecting a person’s disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP that upholds the hypothesis. The method by which sections 120(1), 120(3) and 120A(3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96.
The SoP is determined by the Repatriation Medical Authority under subsection 196B(2) of the Act.
The SoPs concerning PTSD provide inter alia that:-
“Factors That Must Relate 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 caused connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:-
a)Experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
b)Experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
c)Inability to obtain appropriate clinical management for post traumatic stress disorder.
Factors That Apply Only To Material Contribution Or Aggravation:
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress 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 Tribunal reasons reproduce relevant sections from the SoPs for alcohol abuse and generalised anxiety disorder, and no need exists to record them in my reasons now.
AAT Decision
The nature of the grounds of appeal require me to consider carefully and in some detail the reasons the learned member expressed for coming to his conclusion that he was not satisfied that the conditions of PTSD, alcohol abuse and generalised anxiety disorder are not war-caused.
Under the heading Background the AAT said:-
“11.The Applicant’s claims for increased rate of pension centre on certain events associated with his service in the RAN. These are:-
oHMAS Queensborough
7 December 1967 – this was a boiler room accident, whereby a sailor was killed by an explosion and exposure to extreme heat and steam. The Applicant was in the environs of the accident site and witnessed the dead sailor being brought out of that site.
oHMAS Perth
Incident 1 – stress of routine of being on watch in the fire room and at action stations.
Incident 2 – when on watch in the fire room and action stations were called, the hatches were bolted down.
Incident 3 – when the guns were firing there was stress of being given no information about the vulnerability of the ship. The Applicant states that while working in the boiler room he was concerned about what would happen if there was a direct hit on the fire room.
Incident 4 – the gun turrets would often fire day and night without warning and “my heart would leap into my mouth each time the gun first shell was fired”. Approximately 200 – 300 shells were fired in an engagement.
Incident 5 – there were times when prisoners were brought on board; and grenades would be dropped either side of the ship to inhibit divers placing mines on the ship’s side.
Incident 6 – the Applicant states that sailors were told that mines could be in the water and consequently, he never knew whether some of the sounds were grenades in the water or whether the ship had hit a mine.
Incident 7 – in one incident, the crew were told that they were going to the aid of a patrol boat which was being fired upon from shore and that their ship would also need to be close to the shore.”
The incidents alleged and the incident on the HMAS Queensborough occupied much of the reasons of the member.
As was relevant in this case, the AAT referred correctly to the law and relevant authorities relating to “operational service” in section 9 as it is defined in section 6C of the Act. The periods of “operational service” had not been disputed.
After dealing with the evidence before the Tribunal at paragraphs 21 to 39 of his reasons (with none of those assessments being seriously challenged), the member correctly identified the need to make an assessment of entitlement based on the principles of Repatriation Commission v Deledio (1998) 83 FCR 82, after being satisfied that the veteran suffered from PTSD, alcohol abuse and generalised anxiety disorder.
The member says at paragraph 48 that:-
“48.In assessing compliance with the procedures set out in Deledio’s case, on the face of all the material put before the Tribunal, I consider a hypothesis is raised connecting this disease with the veteran’s operational service. Step 1 is therefore satisfied. Likewise, Step 2 is satisfied as SoP Instrument No 3 of 1999 (PTSD) has been issued under section 196B(2) of the Act. It is therefore necessary to now consider Step 3 which centres on the question – is the hypothesis raised in Step 1 a “reasonable hypothesis”? In other words, is the hypothesis consistent with the template provided in that SoP. This can be answered as follows:-
· Service on HMAS Queensborough – Boiler Room Incident – As this incident did not occur on operational service, it is not relevant for compensation under section 120(1) of the Act. However, it may be relevant at a subsequent stage if it can be shown to be an aggravation of a pre-existing condition of PTSD or some other psychiatric disability.
· Service on HMAS Perth – These incidents occurred on operational service. In evaluating the incidents claimed in terms of Step 3 of Deledio, it is important to be mindful of the judgment of Gray J in the Federal Court decision of Mines v Repatriation Commission [2004] FCA 1331. That case held that at this stage of the analysis, the Tribunal cannot consider or weigh the facts. His Honour made it clear that the purpose of the third step is to examine material in the relevant SoP and to test the reasonableness of the hypothesis raised in Step 1.”
And further at 49 that:-
“49. In relation to factor 5(c) of the SoP, that is, an inability to obtain appropriate clinical management for PTSD, that does not seem to be a reasonable hypothesis as the standard of medical and psychiatric support available to Commonwealth employees, including sailors, is well understood by most people outside of government employment and certainly understood to those within the defence force. To accept that someone of the Applicant’s experience, rank and length of service could not at any time have known or obtained appropriate clinical management for that condition would not be a reasonable hypothesis.
And made a finding that the Tribunal:-
“accepts a reasonable hypothesis is established for incidents 3,4 and 6 in relation to PTSD. The Tribunal does not accept that a reasonable hypothesis is raised for incidents 1, 2, 5 and 7, nor does it accept that a reasonable hypothesis is raised as to an inability to obtain appropriate clinical management.”
Concentrating his further analysis on events 3, 4 and 6, the AAT correctly, in my view, asked the right question – “Is there evidence of a “severe stressor” as required by paragraph 5 of the SoP and as defined in paragraph 8 of the SoP”?
The AAT found that on an “objective assessment, none of the three identified events were “severe stressors”” and further at paragraph 59 said:-
“Turning now to the subjective aspect of this assessment, the Tribunal does not accept that the Applicant would have experienced the degree of fear for the events claimed which would satisfy the standard in the definition “experiencing a severe stressor”.”
In making that finding the member gave cogent reasons for doing so. It was clearly a finding open to the member.
The member used an analogous analysis when dealing with the claims that the Applicant’s alcohol abuse and generalised anxiety disorder were also “war-caused”.
The member came to the same conclusion on each specific area of suffering – namely that none of these “diseases” were “war-caused”, requiring him, therefore, to affirm the earlier Veterans’ Review Board decision.
Applicant’s Submissions
The amended submissions fall into three broad causes of concern, namely:-
a)Failure to take into account relevant considerations (grounds (a), (b) and (e), in particular:-
i)the statement made by the AAT at paragraph 48 about “service on HMAS Queensborough” appears “to have been discarded or never revisited by the AAT” and was relevant in determining whether the Applicant had suffered a severe stressor prior to the clinical worsening of PTSD. There was no “obvious consideration given by the AAT to the experiencing of this severe stressor prior to the clinical worsening – factor 5(b) of the SoP. Instead, the AAT moved on to factor 5(c) which related to the inability to obtain appropriate clinical management.”
ii)paragraph 49 of the reasons “does not address the criteria. Nor is there any evidence to support the conclusions reached.” This was “speculation” by the AAT.
iii)there was a “clear failure” to take into account the relevant consideration as identified in factor 5(b) and taking into account an irrelevant consideration when assessing factor 5(c).
iv)it could be concluded that the AAT took into account an irrelevant consideration at paragraph 59 – mere speculation as to the manner in which communication and information delivery occurred. It is asserted that there “is no evidence sufficient to enable the Tribunal to draw this conclusion” and further that “this conclusion is a basis upon which the AAT finds that the Applicant did not suffer PTSD aboard HMAS Perth.”
v)a failure to take into account another relevant consideration is derived from the reasons for decision involving the tests necessary to determine the conditions, whether PTSD or alcohol abuse/dependence. The relevant consideration is the evidence of the Applicant.
b)Taking into account irrelevant considerations (ground (g)), in that whilst taking into account irrelevant considerations “dovetails” into the failure to take into account relevant considerations, of major importance is the application of a test by the AAT of a “severe stressor”. Following the determination of the applicability of White v Repatriation Commission (2004) FCA 633 (a case involving allegedly only psychological stressor, rather than severe psychological stressor), the AAT applied “an incorrect principle in determining whether there was a need for there to be evidence of a serious risk.” The Applicant relies upon Repatriation Commission v Stoddart (2003) FCAFC 3000 as authority for the proposition that “there need only be a clear and present danger or a threat and the need for there to be an enemy attach on the ship is superfluous.”
c)Failure to provide reasons (grounds (c), (d), (f) and (h) as is a requirement under section 43 of the Administrative Appeals Tribunal Act 1975. In particular it is asserted that:-
i)there is no reason given for the rejection of incidents 1, 2, 5 and 7
ii)no adequate reasons were given for the rejection of the claim that the generalised anxiety disorder “could be related to the incidents raised by the Applicant.”
Respondent’s Submissions
The Respondent submits that:-
a)The statement at paragraph 48 of the Reasons for Decision (the boiler room incident on HMAS Queensborough) was true in that “the Applicant was not claiming compensation for PTSD arising out of the boiler room incident.”
b)Because the AAT did not accept that there was a reasonable hypothesis for a failure to provide a clinical management, it did not need to consider in detail incident 1.
c)The complaint about paragraph 59 of the decision is nothing more than an objection about “bits and pieces of evidence” as that phrase is used by Nicholson J in Walsh v Department of Employment, Education, Training and Youth Affairs (1998) ALD 690. The findings in this paragraph 59, were “not a basis upon which the AAT determined that the Applicant did not suffer PTSD aboard HMAS Perth as the Applicant argues, but rather part of the reasoning for the finding that the degree of fear experienced by the Applicant did not satisfy the SoP definition of ‘severe stressor’.”
d)Paragraph 59 provides the reasons why the Tribunal was not satisfied with the subjective aspect.
e)Paragraphs 64 and 48 identify the reasons why the AAT found that the Applicant’s alcohol abuse was not war-caused and why the other incidents did not satisfy the SoP.
f)The AAT’s reasons for failing to accept the Applicant’s claim in respect of anxiety disorder is outlined from paragraphs 68-73 of its reasons.
g)The AAT applied the correct test at paragraph 58.
h)The AAT complied with its obligations pursuant to section 43(2B) of the Administrative Appeals Tribunal Act 1975 as the reasons included “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.
Discussion
Apart from the more specific submission on behalf of the Applicant recorded at paragraph 8 of these reasons, the general thrust of the Applicant’s concerns relate to an allegation of inadequate reasoning.
A substantial failure to comply with requirements to give reasons can amount to an error of law on the part of a tribunal: Dornan v Riordan (1990) 24 FCR 564 at 573; 21 ALD 255; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; 41 ALD 361. The duty to provide reasons must however be sensibly interpreted; Dornan v Riordan; Muralidharan at 414. The reasons of a Tribunal are to be read fairly, as a whole, and not overzealously; Politis v FCT (1988) 16 ALD 707 at 708. What needs to be conveyed for the purpose of those having an interest in the decision was referred to in detail in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 (cited with approval in Dorman v Riordan at 568). It is not necessary for a Tribunal to refer specifically to all findings of fact made by it, so long as such findings could be reasonably inferred from the Tribunals’ statements of reasons in the context in which they are given: FCT v Cainero (1988) 15 ALD 368 at 369; see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616-7.
I have carefully considered the submissions made as to inadequacy of reasons and find no merit in them. I believe the Applicant is able to “identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion.” (MIMIA v Yusef (2001) HCA 30). It would be inconsistent with the legislative intent of section 43(2B) to apply, an overly “picknicky” approach.
I have reached the conclusion that the entirety of the evidence before the AAT was capable of supporting each of its findings of fact. It is clear, for example, that in some respects the member preferred the “Whiteway Research” to the oral evidence of the Applicant (see paragraphs 49 and 50). That course was open to the member.
Although some of the findings of fact are brief, they are in my view adequate. It is clear to any reader of the reasons that the member formed the view that incidents 1, 2, 5 and 7 did not satisfy the SoP because:-
“they were not of sufficient magnitude which would result in the Applicant’s response being to “experience intense fear, helplessness or horror.”
I regard the Respondent’s submissions as compelling as to the identification (at times slightly implicitly) of the reasons for the critical findings of fact.
Whilst there are some “throw away” lines in the reasons and further whilst I do not agree that it is “akin to judicial notice of well known facts”, for the member to express a view about the hypothesis that the Applicant was “unable to obtain appropriate clinical management for his PTSD” (which was rejected), I do not accept that such speculation was so material to the findings so as to amount to an error in law.
As to the matters raised by Mr Clutterbuck at paragraphs 5 to 8 of his Submissions in Reply I agree with Ms Ford that:-
a)The case advanced before the AAT by the Applicant contended that the PTSD and other conditions were war-caused and further at paragraph 4.2 of his contentions asserted that:-
“the veteran was unable to obtain appropriate clinical management for post traumatic stress disorder, which contributed to the clinical worsening of post traumatic stress disorder during operational service.”
b)The Tribunal considered factor 5(a) – “experiencing a severe stressor prior to the clinical onset of PTSD” – and factor 5(c) – “inability to obtain appropriate clinical management for PTSD.”
c)It is necessary, because of SoP 4 to show that “at least one of the factors set out in clause 5 must be related to any relevant service” – that is, it is necessary to establish that the “severe stressor” must be related to operational service.
d)Although not specifically dealing with factor 5(b) (because it was not a contention relied upon by the Applicant), the finding by the AAT that incidents 3, 4 and 6 on the HMAS Perth could not justify the standard of a “severe stressor” for the purposes of factor 5(a) means logically, it could not be capable of satisfying that element for the purposes of factor 5(b). No different decision would have been available on the findings of fact made. Incident 1 on the HMAS Queensborough may have assisted the Applicant with satisfying factor 5(b), if the severe stressors that he was alleging in service on HMAS Perth gave use to an aggravation. By finding no “severe stressors” occurred, the issue was, perhaps not directly, but by necessary reasonable implication dealt with by the AAT.
It follows that in my view a fair reading of the reasons of the AAT as a whole does not raise any sustainable argument that the learned member fell into an error of law.
The Application should be dismissed and the Applicant shall pay the Respondent’s costs of and incidental to the application, to be agreed and if not agreed, then as fixed by the Court after written submissions.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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