Hunt v Repatriation Commission

Case [2019] FCA 1191

FEDERAL COURT OF AUSTRALIA

Hunt v Repatriation Commission [2019] FCA 1191

Appeal from: Hunt and Repatriation Commission (Veterans’ entitlements) [2018] AATA 1110
File number: VID 650 of 2018
Judge: STEWARD J
Date of judgment: 2 August 2019
Catchwords: ADMINISTRATIVE LAW – veterans’ entitlements – Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal made findings that were not rationally supported – whether the Tribunal erred in its application of s 120(3) – whether the Tribunal failed to apply correctly the standard of proof under s 120(1)
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) ss 7, 9, 13, 120, 120A, 196B

Cases cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Deledio v Repatriation Commission (1997) 47 ALD 261

East v Repatriation Commission (1987) 16 FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Hall v Repatriation Commission [2007] FCA 2021

R v Dookheea (2017) 262 CLR 402

Repatriation Commission v Deledio (1998) 83 FCR 82

Summers v Repatriation Commission (2015) 230 FCR 179
Date of hearing: 8 April 2019
Date of last submissions: 30 April 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Applicant: Ms F Ryan
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Ms Z Maud
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 650 of 2018
BETWEEN:

GORDON HUNT

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

2 AUGUST 2019

THE COURT ORDERS THAT:

1.The decision of the Tribunal be set aside and the matter be remitted to the Tribunal differently constituted for determination according to law.

2.The respondent pay the applicant’s costs of the appeal as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

Introduction

  1. The applicant, Mr Gordon Hunt, appeals from a decision of the Administrative Appeals Tribunal (the “Tribunal”) given on 3 May 2018.  In that decision, the Tribunal affirmed a decision of the Veterans’ Review Board (the “Board”) (which had affirmed a decision made by the respondent (the “Commission”) on 14 May 2012) refusing the applicant’s claim for a pension by way of compensation on the basis that the conditions afflicting him were not “war‑caused” for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). Those conditions being psychiatric illness (denoting depressive, anxiety and adjustment disorder), irritable bowel syndrome and rectal polyps (together, the “Conditions”).

  2. The applicant appeals to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The five questions of law and nine grounds of appeal in the amended Notice of Appeal impugn the Tribunal’s understanding and application of ss 120 and 120A of the Act.

    Background

  3. The applicant served in…

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AGLC
Hunt v Repatriation Commission [2019] FCA 1191
Case
[2019] FCA 1191
Decision Date

CaseChat Overview and Summary

The appeal in Hunt v Repatriation Commission concerns the application of the Veterans' Entitlements Act 1986 (Cth) to determine whether the applicant's health conditions are connected to his service in the Australian Army in Vietnam. The applicant claims that his conditions, including irritable bowel syndrome and colorectal adenoma, are war-caused due to various traumatic events he experienced during his service. The Tribunal's decision under review upheld the Commission's rejection of the applicant's claim, finding that there was no reasonable hypothesis that the applicant's conditions were war-caused. The applicant appeals to the Court on questions of law regarding the Tribunal's application of ss 120 and 120A of the Administrative Appeals Tribunal Act 1975 (Cth).

The primary legal issues before the Court revolve around the Tribunal's interpretation and application of ss 120 and 120A of the AAT Act. Specifically, the applicant argues that the Tribunal erred in its application of s 120(3) by engaging in impermissible fact-finding, and that the findings made by the Tribunal were not rationally supported. The applicant contends that the Tribunal should have applied the correct standard of proof under s 120(1) of the AAT Act, which requires the Tribunal to be satisfied that the applicant's conditions are war-caused on the balance of probabilities. The Commission, on the other hand, argues that any error in the Tribunal's reasoning is not material and does not affect the ultimate conclusion.

The Court found that the Tribunal did not misapply s 120(3) of the AAT Act. The Tribunal considered the material in the abstract without delving into the resolution of conflicts in the evidence, and found that reasonable hypotheses connecting the applicant’s conditions and service were raised on the material. The Court held that the Tribunal's reasoning process leading up to the ultimate conclusion was compliant with the statutory scheme, and the apparent error in the Tribunal’s reasons was not material. However, the Court concluded that the Tribunal did not correctly apply the standard of proof under s 120(1) of the AAT Act. The Tribunal's findings were not rationally supported by the evidence, as it failed to properly weigh the evidence and determine whether the applicant's conditions were war-caused on the balance of probabilities.

Accordingly, the Court set aside the decision of the Tribunal and remitted the matter to the Tribunal differently constituted for determination according to law. The respondent was ordered to pay the applicant's costs of the appeal as agreed or assessed.

Orders

Orders of the court

1. The decision of the Tribunal be set aside and the matter be remitted to the Tribunal differently constituted for determination according to law.

2. The respondent pay the applicant’s costs of the appeal as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant appeals to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The five questions of law and nine grounds of appeal in the amended Notice of Appeal impugn the Tribunal’s understanding and application of ss 120 and 120A of the Act.Background The applicant served in the Australian Army from 21 February 1966 to 20 February 1972. He rendered operational service in Vietnam from 5 November 1969 to 6 May 1970. The applicant was posted to Nui Dat immediately on arrival in Vietnam as a clerk in the Cash Office. On his account, on his first day, he came into contact with a Warrant Officer Church who was the senior non-commissioned officer. The applicant said that during his time in Nui Dat there was ongoing disharmony between himself and Warrant Officer Church that commenced “from day one”. This culminated in the applicant, it was said, being coerced by Warrant Officer Church to accept a demotion from his rank of Corporal to Private and a transfer to Saigon. On arrival in Saigon in March 1970, the applicant was billeted to a building called the Bachelor Enlisted Quarters (the “BEQ”), also colloquially called the “Canberra Hotel”. He claims that soon after his arrival, he witnessed two distressing incidents involving Vietnamese military police and civilians:(1)The first incident occurred when the applicant was on guard duty near the front door of the BEQ. He alleges that he witnessed the Vietnamese military police open fire at a fleeing Vietnamese civilian. Shots were fired which the applicant said came close to his position and ricocheted, with some bullets “hitting the façade of the building”. The applicant believed that the civilian had been shot and killed. I will refer to this as the “First Incident”.(2)The second incident is said to have occurred one to two weeks after the First Incident. The applicant was at gun post on night duty. He said that, on this evening, two Australian Army trucks were parked in front of the BEQ against a traffic island between the service road running along the front of the BEQ and the main part of the boulevard. The applicant claims that he and a fellow member apprehended a Vietnamese civilian, in possession of a screwdriver, between the two parked Australian Army trucks. Before the civilian could be escorted into the BEQ, Vietnamese military police arrived in a truck and demanded that the civilian be handed over to them. The applicant and his colleague obliged. As the men were returning to their gun post, the applicant said he heard a gunshot and saw the civilian lying on the ground with a gunshot wound to his chest. The military police then picked up the civilian’s body and put it in their truck. The applicant believed the civilian had been killed. I will refer to this as the “Second Incident”. The applicant’s entitlement to a pension rests on whether a causal link is taken to exist under the Act between the aforementioned events and the Conditions now afflicting him. Legislative Provisions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was common ground that the Deledio Steps provide the proper framework for applying ss 120 and 120A. The locus of the dispute in this appeal is the Tribunal’s application of steps 3 and 4 of the Deledio Steps and, ultimately, whether the applicant’s Conditions are war-caused. The Tribunal’s Decision Before the Tribunal, the applicant advanced his claim as follows:(1)The ongoing disharmony with Warrant Officer Church in Nui Dat constituted a category 2 stressor as defined in each of the relevant SoPs relating to psychiatric illness. (2)The First Incident constituted a category 1A stressor as defined in each of the relevant SoPs for psychiatric illness. (3)The Second Incident constituted a category 1B stressor as defined in each of the relevant SoPs for psychiatric illness.(4)The irritable bowel syndrome (“IBS”) was connected to his operational service in Vietnam because he suffered a specified psychiatric condition (defined to include anxiety and depressive disorder) that was war-caused within 6 months before the clinical onset of his IBS, and therefore satisfied factor 6(b) of the SoP concerning IBS. (5)The rectyl polyps or colorectal adenoma was connected to his operational service in Vietnam because his service caused him to increase his alcohol consumption from the time of his service until he stopped drinking in 1992. The applicant said that, consequently, he had consumed at least 250 kg of alcohol before the clinical onset of his colorectal adenoma, and therefore satisfied factor 6(b) of the SoP concerning colorectal adenoma. It was accepted by both parties that several SoPs were relevant to the applicant’s claim with respect to his psychiatric illness. The SoPs concerning depressive, anxiety and adjustment disorder were similar in form and provided that at least one of the listed factors had to exist as a minimum before it could be said that a reasonable hypothesis had been raised connecting the applicable disorder with the circumstances of a veteran’s relevant service. In the applicant’s case, the following listed factors were relevant:·Experiencing a category 1A stressor within: (i) the five years before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder. ·Experiencing a category 1B stressor within: (i) the five years before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder.·Experiencing a category 2 stressor within: (i) the one year before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder. The dictionary of the relevant SoPs for the psychiatric illnesses defined the stressors mentioned above as follows:category 1A stressor means one of the following severe traumatic events:(a) experiencing a life-threatening event;(b)being subject to a serious physical attack or assault including rape and sexual molestation; or(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;category 1B stressor means one of the following severe traumatic events:(a)killing or maiming a person;(b)being an eyewitness to a person being killed or critically injured;(c)being an eyewitness to atrocities inflicted on another person;(d)participating in the clearance of a corpse or a critically injured casualty; or(e)viewing a corpse or a critically injured casualty as an eyewitness;category 2 stressor means one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:…(c)having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;…

Ratio Decidendi

Legal Principle Established

The nine grounds of appeal were argued under the rubric of the applicable question of law. Hence, I will not reproduce the grounds in full here but consider them below. In oral submissions, Ms Ryan clarified that with respect to questions 1 to 3 above, the case was put on the basis that the Tribunal applied the wrong standard of proof or, alternatively, the findings made by the Tribunal were not open to it because there were “not rationally supportable” or, put another way, “illogical or irrational”. Consideration I will address the questions of law posed seriatim, albeit in an order that is different to that in which they appear in the amended Notice of Appeal. This is because the resolution of some of the questions later in the numerical sequence have a bearing on the earlier questions.Question 4, Grounds 7 and 8 Ground 7 alleges that the Tribunal misapplied s 120(3) of the Act by making findings of fact at the third Deledio Step. Ground 8 attacks the disconnect between the conclusion at [96]-[97] and the Tribunal’s earlier findings that the applicant’s application satisfied the first to third Deledio Steps. The essence of the applicant’s argument was that the Tribunal engaged in illicit fact finding in applying s 120(3) of the Act with the result that it had exceeded the statutory task and defeated the beneficial standard of proof embodied in s 120(1) of the Act. In that respect, it was said that [96]-[97] of the Tribunal’s reasons for decision (reproduced above) disclosed the error. It will be recalled that in those paragraphs, the Tribunal concluded that “on the whole of the material before [it], there is no reasonable hypothesis raised that the claimed conditions of the Applicant were war‑caused” with reference to the facts found by the Tribunal (as opposed to the raised facts). This conflicted with its earlier finding that the material did raise a reasonable hypothesis of connection for the purpose of s 120(3) at [63] and [68]. The Commission, properly, conceded that there was a “clear disconnect” between the conclusions expressed at [96]-[97] and the remainder of the Tribunal’s reasons. It was said, however, that those paragraphs are an “obvious error” but “not a material error” when considered in the light of the Tribunal’s reasons as a whole. Two reasons were said to make good that proposition. First, those paragraphs are otiose as the reasoning process leading up to the ultimate conclusion — that the decision under review should be affirmed — was compliant with the statutory scheme and is set out fully in at [50]-[95]. Secondly, even if there was a misapplication of s 120(3), the Tribunal went on and determined the matter at the fourth Deledio Step. I am inclined to generally agree with the submission put forward by the Commission that [96]‑[97] of the reasons do not disclose impermissible fact finding in the application of s 120(3). Reading the Tribunal’s reasons as a whole and fairly, I am persuaded that it was only in the context of the fourth Deledio Step (at [69]-[95]) that the Tribunal engaged in the process of fact finding by reference to the evidence before it. At the third Deledio Step, I am satisfied that the Tribunal: (i) considered the material in the abstract without impermissibly delving into the resolution of conflict in the evidence; and (ii) found that reasonable hypotheses connecting the applicant’s conditions and service were raised on the material. This is supported by the structure of the reasons which show that the Tribunal reached its conclusions at the third Deledio Step expeditiously at [63] and [68] without recourse to making findings of fact and then proceeded to the fourth Deledio Step.