VETERANS’ AFFAIRS – application by veteran for disability pension – claim for post-traumatic stress disorder and alcohol abuse arising out of operational service in Vietnam – veteran claimed to have witnessed incident in which crewmember drowned when attempting to escape from cockpit of aircraft that failed to land properly on board HMAS Melbourne – delegate of respondent rejected claim – appeal to Administrative Appeals Tribunal – Tribunal found that veteran had not witnessed incident as claimed – Tribunal therefore satisfied that incapacity did not arise from war-caused injury – Tribunal did not strictly follow four-step process laid down in Repatriation Commission v Deledio (1998) 83 FCR 82 but went directly to fourth step – whether Tribunal’s approach gave rise to appealable error – primary judge affirmed Tribunal’s decision – appeal to Full Court – new hypothesis connecting veteran’s conditions raised for first time during oral submissions – whether Tribunal required to consider hypothesis not raised by veteran – whether material before Tribunal points to or raises an hypothesis if it involves mere speculation or conjecture
WORDS AND PHRASES – “points to” and “raises”
Veterans’ Entitlements Act 1986 (Cth), ss 5D(2), 7, 9(1), 13, 119, 120(1) and (3), 120A, 180A, 196B Administrative Appeals Tribunal Act 1975 (Cth) s 44
[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
Hill v Repatriation Commission [2005] FCAFC 23
Case
[2005] FCAFC 23
Decision Date
CaseChat Overview and Summary
In Hill v Repatriation Commission, the appellant sought an appeal against a decision of the Administrative Appeals Tribunal (AAT) that dismissed his claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth). The AAT's decision was based on the rejection of the appellant's claims related to post-traumatic stress disorder (PTSD), psychoactive substance abuse or dependence (alcohol abuse), and what was described as "electrocution." The primary judge, Mansfield J, dismissed the appeal, leading to the current appeal to the Full Court. The appellant argued that the AAT failed to follow the four-stage decision-making process outlined in Deledio, which required the AAT to determine if the material pointed to an hypothesis connecting the injury, disease, or death with the circumstances of the service rendered, ascertain if a relevant Statement of Principles (SoP) was in force, and consider if the hypothesis was reasonable.
The court examined whether the AAT's failure to adhere to the Deledio process constituted an error of law warranting the appeal's success. The court acknowledged that while the Deledio formulation was not to replace the requirements of the Veterans’ Entitlements Act 1986, it also noted that the AAT was not strictly required to follow each step in a mechanical manner. The Full Court found that the AAT's conclusion, beyond reasonable doubt, that the appellant had not witnessed the Sea Venom incident meant his claim, as presented, had to fail. Since the Sea Venom incident was integral to the appellant's PTSD and alcohol abuse claims, its non-occurrence rendered the claims untenable. The court concluded that the AAT's approach, although not following the Deledio steps precisely, did not result in an appealable error. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Background
Background to the litigation
This is an appeal from a judgment of Mansfield J (Hill v Repatriation Commission [2004] FCA 851) given on 1 July 2004. His Honour dismissed an application by way of appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 17 November 2003. The AAT affirmed the decision of the respondent to reject the appellant’s claim for a disability pension under s 13 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). It did so in respect of three conditions: post-traumatic stress disorder (“PTSD”), psychoactive substance abuse or dependence (“alcohol abuse”), and what it somewhat inaptly described as “electrocution”.THE BACKGROUND FACTS The appellant was 17 years of age when he joined the Royal Australian Navy on 23 October 1965. He served until 19 March 1978. He had two periods of operational service, both aboard HMAS Melbourne, from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966. These periods of operational service constituted “eligible war service”, as defined in s 7 of the VE Act. He also rendered “defence service”, as defined in Pt IV of the VE Act, from 7 December 1972 to 19 March 1978. The appellant was assigned to HMAS Melbourne on 5 February 1966 after completing a three-months training course. His position was that of ordinary seaman, electrical mechanic. The appellant began drinking in 1966. His consumption of alcohol increased progressively. By 1974, his service records indicated a provisional diagnosis of alcoholism. The appellant’s claim for a disability pension was based on three alleged incidents in his service career:·on 16 March 1966, he suffered an electric shock while on board HMAS Melbourne near Port Jervis in New South Wales;·on 28 April 1966, while on operational service in Vietnam, he claimed to have witnessed an incident in which a crew member drowned when attempting to escape from the cockpit of a Sea Venom aircraft that failed to land properly on board the carrier, and so fell into the ocean and sank; and ·some years later, while stationed in New Guinea, he claimed to have experienced a life-threatening situation when guarding a property during a riot. The appellant’s claim has had a long and complex history. It was initially rejected by the respondent in January 1998. That decision was affirmed by the Veterans’ Review Board in September 1998. In April 2000, the AAT affirmed the decision of the Veterans’ Review Board (“the first AAT decision”). The appellant then sought review under s 44(3) of the AAT Act, asserting error of law on the part of the AAT. The first AAT decision was set aside by a Judge of this Court, and the matter remitted for reconsideration. An appeal to the Full Court by the respondent was dismissed, save that the remittal was limited to the claims for PTSD and alcohol abuse. In effect, the Full Court determined that the claim for a pension in respect of electric shock should be rejected.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The AAT then affirmed the decision to reject the claim for disability payments for PTSD or alcohol abuse. THE PRIMARY JUDGE’S DECISION The main argument put on behalf of the appellant before the primary judge was that the AAT had failed to follow the decision-making process required by ss 120(1) and (3) and 120A of the VE Act, as explained in Deledio. It will be recalled that Deledio laid down a four-stage process. It first required the AAT to consider all the material before it and determine whether that material pointed to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arose at that stage. If no such hypothesis arose, the application would fail. If the material did raise such an hypothesis, it next required the AAT to ascertain whether there was a relevant SoP in force. If not, the hypothesis would be taken not to be reasonable and the application would fail. If an SoP were in force, the AAT would have to consider whether the hypothesis raised was a reasonable one. It would do so by determining whether it was consistent with the template found in the SoP. If the hypothesis failed to fit within that template, it would be deemed not to be reasonable, and the application would fail. It was at the fourth stage that the AAT would consider under s 120(1) whether it was satisfied beyond reasonable doubt that the injury or disease was not war-caused. If the AAT were so satisfied, the claim would fail. It was only at this final stage that the AAT would be required to find facts from the material before it. His Honour rejected a submission on behalf of the respondent that the AAT had implicitly followed the Deledio four-stage process. He concluded that it had truncated that process by moving immediately to the fourth stage. Having found, beyond reasonable doubt, that the appellant had not seen the Sea Venom incident, the AAT concluded that the hypothesis that he put forward, connecting his PTSD and alcohol abuse with the circumstances of his operational service, was “not reasonable”. His Honour then considered whether the AAT’s failure to follow the course laid down by Deledio, meant that the appeal should succeed. He noted that there was authority for the proposition that the AAT was not obliged to proceed from step to step in any mechanical manner: see Dunlop v Repatriation Commission [2003] FCAFC 201 and Repatriation Commission v Crane [2004] FCAFC 86. He accepted that the Deledio formulation was not to operate in substitution for the requirements of the VE Act. Having given careful consideration to the matter, his Honour determined that the appeal should be dismissed. He concluded that the finding by the AAT, beyond reasonable doubt, that the appellant had not seen the Sea Venom incident, meant that his claim, as articulated, had to fail. If the appellant had not witnessed the Sea Venom incident, it could hardly constitute either a stressor, or a stressful event, within the meaning of the relevant SoPs. He found that the AAT’s approach, whereby it proceeded directly to the final Deledio step, having already determined that the facts were such as to render the previous steps irrelevant, did not of itself give rise to any appealable error.