VETERANS’ ENTITLEMENTS – pension – claim by veteran that he sustained depressive disorder during operational service in the navy – whether Administrative Appeals Tribunal engaged in fact-finding at the stage of “step 3” in the Deledio test – Veterans’ Entitlements Act 1986 (Cth) – relationship between ss 120(1), 120(3) and 120A(3) considered.
2.The applicant pay the respondent’s costs of the appeal.
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 437 OF 2004
BETWEEN:
GARY JAMES HARDMAN APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
HILL J
DATE:
14 SEPTEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant, Mr Hardman, appeals to the Court from a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by a Mr Sassella, Senior Member and Dr Lynch and Rear Admiral Horton AO members, affirming the decision of a delegate of the respondent Repatriation Commission rejecting Mr Hardman’s claim for payment of a disability pension under the Veterans’ Entitlements Act 1986 (“the Act”). That claim was made in respect of a number of illnesses including a claimed post-traumatic stress disorder (or perhaps depression in the alternative), ischaemic heart disease and diabetes mellitus, obesity (hypertension) and alcoholism.
The appeal is an application to the Court in its original jurisdiction under s 44(1) of the Administrative Appeals Tribunal Act 1975 and is an appeal on, that is to say, limited to, a question of law. There had been other proceedings between Mr Hardman and the Commission in the Tribunal but it is unnecessary for present purposes to refer to them.
It was not in contention that Mr Hardman had served in the navy between 7 July 1963 and 18 May 1972 and that he had rendered operational service from 17 August 1964 to 11 August 1966.
Before the Tribunal Mr Hardman’s main claim related to post-traumatic stress disorder. The Tribunal rejected this…
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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Details
AGLC
Hardman v Repatriation Commission [2004] FCA 1174
Case
[2004] FCA 1174
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Hardman v Repatriation Commission involved a dispute between Mr Hardman, the applicant, and the Repatriation Commission, the respondent. Mr Hardman, a former member of the Defence Force, sought a declaration and an injunction to compel the respondent to determine his claim for compensation for a psychiatric injury arising from his operational service. The primary issue before the court was whether the Administrative Appeals Tribunal (AAT) had erred in law when it decided that the material before it did not raise a reasonable hypothesis that the applicant's psychiatric injury arose from his operational service.
The court considered the legal principles established in previous cases, including the requirement for the Tribunal to consider all relevant material before it without determining the correctness of the facts raised. The court found that the Tribunal had not engaged in fact-finding at the stage of determining whether a reasonable hypothesis was raised but had instead considered all material to decide if a reasonable hypothesis was raised. The court concluded that the Tribunal had not erred in law by finding that the material before it did not support the hypothesis that Mr Hardman's depressive symptoms arose from his operational service.
As a result of the court's decision, the applicant's appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the appeal. This outcome affirmed the Tribunal's decision that the material before it did not raise a reasonable hypothesis that Mr Hardman's psychiatric injury arose from his operational service.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the appeal.
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
HILL J
(dissent)
Finally, reference may be made to the decision of the Full Court in Arnott v Repatriation Commission [2001] FCA 262, 106 FCR 83. In that case the Full Court found that the Tribunal had erred in law by not confining itself to the facts raised by the claimant. Rather, the Tribunal considered the question of the proof of facts in issue at the stage of determining whether a reasonable hypothesis was raised. The principal judgment was that of Merkel J with whom Spender and Marshall JJ agreed. It seems that at the stage of determining whether there was a reasonable hypothesis the Administrative Appeals Tribunal had rejected as not having happened two of three incidents upon which the hypothesis depended. Merkel J at 90 said:“I have some difficulty with the approach taken by the AAT. It appeared to treat itself as engaged in a fact finding task in relation to the three incidents in order to determine whether a reasonable hypothesis was raised by the material. The AAT evaluated all of the material concerning each incident and made findings of fact, based upon that material, upon which it relied in rejecting the appellant’s claim at the third stage laid down in Deledio. For example, implicitly, if not explicitly, it preferred the appellant’s account of his pain to Mr Hadley in 1997…to his oral evidence to the AAT… Thus, in evaluating the material before it and making findings of fact on the basis of that material, the AAT was not confining itself to the facts raised by the claimant but rather, was putting proof of facts in issue at that stage rather than at the next stage, the fourth step in Deledio… I would add that if the AAT considers itself as being within the fourth stage then it failed to apply the ‘beyond reasonable doubt’ standard laid down in s 120(1) of the VE Act.”Conclusion It follows from the above authorities that the Tribunal is required, in determining whether the material before it raises a reasonable hypothesis, to consider all of the relevant material before it, whether or not that material is favourable or not to the hypothesis. Secondly, it is clear that the Tribunal is not to determine the correctness or otherwise of facts raised whether those facts are in favour of or contrary to the hypothesis. Thirdly, in determining whether an hypothesis is reasonable the Tribunal makes a finding of fact which this Court may not overrule unless the finding is so unreasonable that it could not properly be made. In the present case the raised facts were that Mr Hardman did not display depressive symptoms until after he was removed from his ship for the purposes of the operation. He did upon his return to the ship. From these raised facts it may be inferred, it was said, that the depressive symptoms which he thereafter suffered arose from the removal and subsequent operation which took place while he was on operational service. The fact, if it be a fact, that Mr Hardman, at the time he joined the ship, was happy and relaxed but that after he returned from the operation he was withdrawn, may both be said to be raised facts relevant to the hypothesis. However, in the material which was before the Tribunal there were other matters which if true, might go to disproving the hypothesis, namely that the alcohol questionnaire and subsequent medical reports made no reference to depression. It was not for the Tribunal to determine whether these matters were or were not correct as a matter of fact. However, with respect to the submissions, it is not at all clear from the Tribunal’s reasons that it did so. It was required to determine, whether on the basis of all the material before it there was raised the relevant hypothesis claimed to be reasonable. It was for the Tribunal to determine whether the raised facts did indeed ground the hypothesis that there was a connection between the depressive disorder from which Mr Hardman claimed to suffer and his operational service. In my view, it was open to the Tribunal to determine by reference to all the material before it, including the reports, that the raised material did not ground the hypothesis (and this was particularly the case because the Tribunal found that there was nothing in the available material which suggested that Mr Hardman received or required “ongoing management” by 1967 which was a requisite component of the Statement of Principle). Accordingly the applicant has not shown that the Tribunal erred in law. Particularly, in my view, the applicant has not shown that at this, the third stage in the Deledio sequence, the Tribunal engaged in fact finding. Rather it did what it was obliged to do, namely consider all of the material before it in determining whether the material before it raised a reasonable hypothesis. It found it did not.