Hunt and Repatriation Commission (Veterans' entitlements) - [2018] AATA 1110

Hunt and Repatriation Commission (Veterans' entitlements) [2018] AATA 1110 (3 May 2018)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/6167
Re:Gordon Hunt
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:3 May 2018
Place:Melbourne

The Tribunal affirms the reviewable decision.
................................[sgd]........................................
D. J. Morris
VETERANS’ AFFAIRS – claimed conditions – whether war caused – psychiatric condition – alcohol condition (in remission) – irritable bowel syndrome – colorectal condition – claim of bullying – claim of Category 1A, 1B and 2 Stressors for incidents on operational service – not satisfied evidence points to link to operational service – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Veterans’ Entitlements Act 1986; ss 9, 13, 119, 120, 120A, 152
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Lees v Repatriation Commission (2002) 125 FCR 331
McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Secondary Materials
Statement of Principles No. 1 of 2009 as amended by instrument No 29 of 2014 (alcohol use disorder)
Statement of Principles No. 101 of 2007 as amended by instrument No’s. 42 of 2010 and 15 of 2011 (anxiety disorder)
Statement of Principles No. 102 of 2014 as amended by instrument No. 99 of 2016 (anxiety disorder)
Statement of Principles No. 23 of 2016 (adjustment disorder)
Statement of Principles No. 27 of 2008, as amended by instrument No. 40 of 2010 (depressive disorder)
Statement of Principles No. 83 of 2015, as amended by instrument No. 29 of 2016 (depressive disorder)
Statement of Principles No. 27 of 2011 (irritable bowel syndrome)
Statement of Principles No. 35 of 2013 (colorectal adenoma)
Statement of Principles No. 37 of 2008 (adjustment disorder)
Statement of Principles No. 48 of 2017 (alcohol use disorder)
REASONS FOR DECISION
Senior Member D. J. Morris
3 May 2018
BACKGROUND

The Applicant in these proceedings, Mr Gordon Hunt, has sought review by the Tribunal of a decision made by the Veterans’ Review Board (VRB) on 26 September 2016. The decision under review in the VRB proceeding was that of the Respondent (the Repatriation Commission) dated 14 May 2012. That decision refused a claim for medical treatment and pension for incapacity from post-traumatic stress disorder and irritable bowel syndrome (IBS), later diagnosed as adjustment disorder, alcohol dependence (in remission), and rectal polyp, on the ground that the conditions were not war-caused.
The Board considered the matter on 9 December 2014 and at that time adjourned the hearing to obtain further information to clarify the stressor events relied upon by Mr Hunt in relation to his psychiatric conditions. At that first hearing, the Board affirmed the Respondent’s decision to refuse an application for acceptance of incapacity from carpal tunnel syndrome (CTS) of the left wrist…

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

Case: [2018] AATA 1110
Decision Date: 3 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hunt against a decision of the Repatriation Commission concerning his entitlement to a pension for a mental health condition. Mr Hunt claimed that his condition arose from his service in the Australian Army, specifically alleging bullying and harassment by a Warrant Officer 2 Church during his deployment to Vietnam in 1969-1970. The Tribunal had requested Mr Hunt's personnel records, which confirmed his enlistment, postings, and deployment to Vietnam, including his arrival in Saigon. Mr Hunt provided evidence detailing alleged negative interactions with WO Church, including work-related criticism, personal remarks, and ultimately, charges of neglecting to obey orders and insubordination, which he claimed led to a coerced demotion and transfer to Saigon.

The primary legal issue before the court was whether the material before the Tribunal raised a reasonable hypothesis connecting Mr Hunt's claimed injury or disease with his military service, in accordance with the principles established in *Repatriation Commission v Deledio*. This involved a four-step process: first, determining if the material raised a hypothesis connecting the condition to service; second, ascertaining if a relevant Statement of Principles (SoP) was in force; third, forming an opinion on whether the hypothesis was reasonable and consistent with the SoP; and fourth, considering whether the Tribunal was satisfied beyond reasonable doubt that the incapacity did not arise from war-caused injury. The court was required to apply the *Deledio* methodology, which prioritises the veteran's benefit and involves fact-finding only at the final stage.

The court's reasoning focused on the first step of the *Deledio* analysis. It found that the specific claims of bullying by WO Church were not consistent with the known facts, as the Army records indicated WO Church was not serving with Mr Hunt at the times the alleged incidents occurred. Furthermore, the court found that the claimed incidents in Saigon lacked corroborative evidence and were inconsistent with the factual circumstances regarding Army vehicles in that location at night, thus failing to raise a reasonable hypothesis.

Consequently, the decision under review was affirmed, as the court determined that the material before it did not raise a reasonable hypothesis connecting Mr Hunt's claimed condition to his service in the manner alleged.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the conclusion of the hearing, the Tribunal requested that the Respondent obtain Mr Hunt’s personnel records from his time in the Australian Army. These were provided to the Tribunal and parties on 6 November 2017. The Army records reveal that the Applicant enlisted on 21 February 1966 as a private soldier. In May 1966 he was assigned to the Royal Australian Army Service Corps. On 16 October 1967 he was promoted to the rank of Temporary Corporal. On 4 November 1969 he left Australia for Vietnam. He told the Tribunal he had volunteered for this overseas operational service. The records show he arrived in Saigon, Vietnam, on 5 November 1969. After returning to Australia in May 1970, Mr Hunt continued his regular Army service and he was discharged from Army service on 20 February 1972.Mr Hunt’s evidence Mr Hunt said he was posted to Nui Dat immediately on arrival in Vietnam at the beginning of November 1969 as a clerk in the Cash Office, and started his work in that role immediately. He said on the first day of his arrival, he came into contact with Warrant Officer 2 Robert Church. He told the Tribunal WO Church was the senior non-commissioned officer responsible for the office at that time to the officer-in-charge, a Captain Kevin Taylor. Mr Hunt said that his relationship with WO Church started badly “from day one” and deteriorated from that point. He said WO Church began directing small work-related barbs at him, and then started making personal remarks, including, around mid to early December 1969, an “out of place comment about my fiancée whose photo was on my desk”. The Applicant’s statement of facts and contentions stated that WO Church was overly critical of Mr Hunt’s performance and regularly nominated him for extra duties. Ms Ryan said that Mr Hunt eventually complained to Captain Taylor about WO Church’s conduct towards him. She contended that this reporting to the OIC exacerbated WO Church’s attitude towards the Applicant and Mr Hunt was eventually charged with the offence of neglecting to obey routine orders and using insubordinate language. Mr Hunt said on 14 January 1970 he was returning from a latrine which was some 40 metres from the building he was in and WO Church intercepted him and accused him of not carrying his weapon, in contravention of military rules in the operational area. He said he argued back that there was a “culture in my unit of not carrying weapons” and he was charged with insubordination. Mr Hunt said that some weeks later in March 1970 he was called by WO Church before Captain Taylor and was “coerced by Church into accepting a demotion in rank and a transfer to Saigon with a threat that he would otherwise be demoted in rank in any event and would not be eligible for further promotion.” He said he was transferred to Saigon that afternoon. On arrival in Saigon in March 1970, the Applicant was billeted at a building called the Bachelor Enlisted Quarters (BEQ), also called colloquially the ‘Canberra Hotel’. This building was a hotel that had been requisitioned as the bachelor quarters for Australian Army personnel based in that city. Mr Hunt told the Tribunal that, soon after arriving in Saigon he witnessed two stressful incidents involving Vietnamese civilians and local military police.

Decision

Reasons for decision

The particular claims of bullying by WO Church outlined by the Applicant are not consistent with the known facts, because Mr Church was not present serving with the Applicant at the time the instances of bullying Mr Hunt cited took place. I do not find that a reasonable hypothesis is raised in relation to the two claimed incidents in Saigon because of the lack of any corroborative evidence and the facts about the location of Army vehicles there at night that point away from such a hypothesis.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Dr Walton’s preferred diagnosis of the Applicant was depressive disorder, in particular dysthymic disorder. He agreed with Dr D’Ortenzio that a diagnosis of post-traumatic stress disorder cannot be sustained, that Mr Hunt did not become alcohol dependent and there is no current diagnosis related to substance abuse.CONSIDERATION In Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio), the Full Court of the Federal Court set out four steps for determining claims relating to the application of Statements of Principles under section 120A and subsections (1) and (3) of section 120 of the Act. Their Honours held, at 97-98:1.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 determined by the 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 (as required by ss 196B(2)(d) and (e)). 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. The methodology set out in Deledio is a way of considering claims under the Act and has met with judicial approval on many subsequent occasions. It is aimed at taking account of the Parliament’s intentions with the application of the Act, in that the provisions of sections 120 and 120A should be read with an eye to the benefit of the veteran or, as appropriate, the veteran’s dependant.Deledio Step 1 At the Deledio first step, no fact-finding is undertaken by the decision-maker. The High Court provided a helpful guide in Bushell v Repatriation Commission (1992) 175 CLR 408 when Mason CJ and Deane and McHugh JJ said, at 413:“…s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be opinion or fact. The purpose of sub-s. (3)…is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis… The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded if the raised facts are true…”(Emphasis added.)