Repatriation Commission v Holden

Case [2014] FCA 605

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Holden [2014] FCA 605

Citation: Repatriation Commission v Holden [2014] FCA 605
Parties: REPATRIATION COMMISSION v JEAN ISABEL HOLDEN and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 1287 of 2013
Judge: MORTIMER J
Date of judgment: 12 June 2014
Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension claim – appeal from decision of Administrative Appeals Tribunal – whether Tribunal erred in construction of phrase “sufficient to warrant ongoing management” – whether there was no evidence on which the Tribunal’s conclusions could be based – whether the Tribunal complied with the requirement to give reasons under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – nature of appropriate relief –decision set aside – direction given to Tribunal to provide further reasons and reissue its decision
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43, 43AA, 44

Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 6A-6F, 7, 8, 13, 120, 120A, 196B(2)

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232

Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329; [2009] FCA 49
Dornan v Riordan (1990) 24 FCR 564

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

McKenna v Repatriation Commission (1999) 86 FCR 144; [1999] FCA 323

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32

O’Dowd v Repatriation Commission [2013] FCA 991
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124

Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26

Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Repatriation Commission v O’Brien (1985) 155 CLR 422
Simos v Repatriation Commission (2013) 212 FCR 391; [2013] FCA 607
TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85; [2005] FCA 158

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Details
AGLC
Repatriation Commission v Holden [2014] FCA 605
Case
[2014] FCA 605
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v Holden involved the Repatriation Commission as the applicant challenging a decision of the Tribunal regarding the war-relatedness of Mr Holden's death. The dispute centred on the interpretation of specific provisions of the Schedule of Pensions, particularly those relating to posttraumatic stress disorder (PTSD) and its management. The Full Court was tasked with determining whether the Tribunal had correctly interpreted the phrase "sufficient to warrant ongoing management" in the context of Mr Holden's PTSD and whether there was sufficient evidence to support the Tribunal's conclusions.

The central legal issue before the court was the interpretation of the phrase "sufficient to warrant ongoing management" as it applied to Mr Holden's PTSD under the relevant provisions of the 2007 Schedule of Pensions. The applicant argued that the Tribunal had misconstrued this phrase, contending that it required actual ongoing management, a medical recommendation for such management, or a finding by the Tribunal itself that management was needed. Alternatively, the applicant argued that there was no evidence to support the Tribunal's conclusions. The court had to decide whether the Tribunal's reasoning and findings were legally sound and supported by the evidence.

The court found that the Tribunal had not misconstrued the phrase "sufficient to warrant ongoing management." It noted that there was no obligation for the Tribunal to explicitly set out its construction of the phrase. The court accepted that the phrase required an objective judgment by the Tribunal based on the evidence, rather than a historic fact or a medical opinion. The court emphasised that it was within the Tribunal's discretion to determine whether Mr Holden's PTSD warranted ongoing management, and the absence of medical evidence did not preclude such a finding. The court concluded that the Tribunal had made its findings correctly and that there was no basis to infer that the Tribunal had misunderstood or misconstrued the phrase.

In conclusion, the Full Court dismissed the appeal, affirming the Tribunal's decision. The court held that the Tribunal had properly exercised its discretion in finding that Mr Holden's PTSD was sufficient to warrant ongoing management, and that its conclusions were supported by the evidence. The Full Court's decision underscored the importance of allowing the Tribunal to make its own findings in such cases, provided they are based on a fair and reasoned consideration of the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Rather, the questions of law raised by the applicant arise by reference to two paragraphs of the Tribunal’s reasons. In those paragraphs, the Tribunal recorded its conclusions under s 120A(3) and under s 120(3), although expressed in terms of the guidance given by the Full Court in Deledio 83 FCR 82. The Tribunal stated (at [47]-[48]):In relation to the third step from Deledio the Tribunal has considered all the material and forms the opinion that the hypothesis raised is a reasonable one. Therefore the veteran satisfies the third step.In relation to the fourth step from Deledio, the Tribunal finds that the veteran’s PTSD was sufficient to warrant ongoing management, even though there is no evidence that he visited a psychiatrist, clinical psychologist or general practitioner. Consequently the veteran’s PTSD was a clinically significant anxiety spectrum disorder and the veteran satisfies factor 6(rr)(iv) of SoP Nº 89 of 2007 (as amended by SoP Nº 43 of 2009) and satisfies the fourth step. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that the veteran’s IHD contributed to his death. Therefore his death was war-caused within the meaning of s 8 of the Act. Consequently there is no need for the Tribunal to make a finding as to the causal connection between the veteran’s IHD and hypertension.(Emphasis added.) The subject matter of the questions of law raised by the applicant is the Tribunal’s conclusion that Mr Holden’s PTSD was “sufficient to warrant ongoing management”, for the purposes of cl 6(rr)(iv) of the 2007 SoP, read with cl 9 of that SoP.THE PARTIES’ ARGUMENTS The first two questions of law challenge the Tribunal’s conclusion in two different ways. Question 1 asks whether the Tribunal correctly construed the phrase “sufficient to warrant ongoing management”, for the purposes of cl 6(rr)(iv) and cl 9 of the 2007 SoP. As developed in written and oral submissions, the applicant submitted that the bare conclusion by the Tribunal to this effect at [48] of its reasons, as well as its opinion at [47] that the(sub-)hypothesis was a reasonable one, could not have proceeded from a correct construction of that phrase. The correct construction, the applicant contended, was that there must be actual ongoing management of a veteran’s PTSD condition, or there must be a recommendation by a medical practitioner of such management, or the Tribunal itself must recognise and find that such management was needed (whether or not it was recommended or obtained). That being the correct construction, the applicant submitted because there was no evidence or other material before the Tribunal which could have led it to any one of those three conclusions, the Court should infer the Tribunal had misconstrued the phrase in the SoP. Alternatively, the applicant contended (through its second question of law) that, even if this inference could not be drawn, the Court should find that there was no evidence on which the Tribunal’s conclusions at [47]-[48] of its reasons were based. Counsel for the applicant recognised in oral submissions the high threshold this ground imposed, but submitted it was met because the evidence from both Dr Kernutt and Mr Jackson noted the absence of any psychiatric treatment or intervention for Mr Holden for his PTSD, and there was no medical evidence before the Tribunal that any management would have been warranted. Further, the applicant contended that the Tribunal did not explain how, if it reached a finding for itself that management would have been warranted, the evidence enabled it to make that finding.

Decision

Reasons for decision

The phrase “a clinically significant anxiety spectrum disorder as specified” is defined at cl 9 of the 2007 SoP:“a clinically significant anxiety spectrum disorder as specified” means one of the following disorders:…(e) posttraumatic stress disorder; …that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.THE TRIBUNAL’S DECISION The applicant noted in its submissions that Mrs Holden’s claim concerned what is sometimes called a “complex hypothesis” for the purposes of the Act: see McKenna v Repatriation Commission (1999) 86 FCR 144; [1999] FCA 323 at [19]-[20]. As the Full Court in McKenna explained, the Act permits a hypothesis for the purposes of ss 120(3) and 120A(3) linking a veteran’s death or disease with the circumstances of particular war service, to have sub-hypotheses. In other words, the hypothesis can be articulated in two stages. However, as the Full Court in McKenna also pointed out, if that is the kind of hypothesis which is articulated on behalf of a veteran, each of the sub-hypotheses must be upheld by a SoP (at [20]). The parties appear to accept that where a claim involves a “complex hypothesis” it is appropriate for a decision-maker, in substance, to undertake the steps required by ss 120(3) and 120A(3) twice. That is how the Tribunal approached its task in this case. I hold some doubts whether that is what the Full Court in McKenna 86 FCR 144; [1999] FCA 323 contemplated, or what the Act requires. However, this issue was not raised in this appeal so it is unnecessary to decide. It is certainly the case that the Full Court in McKenna held that, where there are two sub-hypotheses, each sub-hypothesis must be upheld by a SoP before the primary hypothesis can be found to be a reasonable hypothesis within the meaning of s 120A(3). In this case, the hypothesis articulated on behalf of Mrs Holden was that Mr Holden’s death from ischaemic heart disease was war-caused, because there were events during his service which caused him to develop PTSD, and this PTSD was a factor in his development of ischaemic heart disease. Thus, it can be seen that one of the “sub-hypotheses” is that there was a causal relationship between Mr Holden’s PTSD and his war service. In that context, the Tribunal identified three issues arising in the review before it. The first was what the Tribunal described as “the kind of death” suffered by the veteran, relying for this description of the issue on Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711, together with the use of this phrase in the relevant SoPs. It found, and it is not contentious on this appeal, that the cause of Mr Holden’s death was ischaemic heart disease (as a long-term cause) and then cardiogenic shock and right-sided pleural effusion as immediate causes. The second issue identified by the Tribunal was more complex. It was whether the veteran suffered from PTSD and, if so, whether it was war-caused. It is accepted by the parties that this question involved a posthumous diagnosis, and therefore also a posthumous determination of whether, if Mr Holden did suffer from PTSD, it was war-caused. This affected the process by which the diagnosis could be made: that is, mainly by reference to accounts by Mrs Holden and documentary information, including clinical records.

Ratio Decidendi

Legal Principle Established

Although she accepted the brevity of the Tribunal’s reasoning at [47]-[48], the first respondent submitted that a fair reading of the Tribunal’s reasons, especially appreciating that the same material it relied on for the finding about Mr Holden suffering from PTSD could be used to assess severity, meant that it had set out earlier in its reasons enough material to satisfy the obligation in s 43(2B) to “refer” to the evidence or other material on which its findings in those paragraphs were based.CONSIDERATIONQuestion 1: construction of “sufficient to warrant ongoing management” In my opinion, the Tribunal’s reasons do not disclose any misconstruction of this phrase. It must be said that the reasons disclose no express construction at all. However, there is, as the applicant accepted, no obligation on the Tribunal (whether through s 43(2), s 43(2B) or otherwise) to set out in express terms its construction of part of a SoP in a circumstance such as this. I am not prepared to infer from the Tribunal’s conclusion on this issue, favourable to Mrs Holden, that it had misunderstood or misconstrued the phrase. After some development in oral submissions, the parties substantially agreed on the proper construction of this phrase. They agreed, and I accept, that the phrase is not directed solely at whether in fact a veteran obtained management for a clinically significant anxiety spectrum disorder. The phrase “sufficient to warrant” refers to an objective judgment to be made by the Tribunal on the basis of the evidence at the time of the review, rather than by reference to historic fact. Nor, as counsel for the applicant properly conceded, does the phrase require that there be any expert or medical opinion that management of the condition is warranted. Of course, in a given case there may be such evidence and the Tribunal will need to consider such evidence, and the weight to be given to it. Ultimately, however, like every other aspect of the SoP (see O’Dowd v Repatriation Commission [2013] FCA 991 at [37] per Marshall J and the cases there referred to), it is for the Tribunal itself to make findings about whether the condition suffered by the veteran is the condition specified in the SoP, and whether the SoP upholds the hypothesis put forward, so as to meet the reasonableness requirement in s 120A(3). In this case, the Tribunal made its own findings, as it was required to do. The fact that there was no medical evidence about the “need” for management of Mr Holden’s PTSD did not preclude the Tribunal making a finding that his PTSD was “sufficient to warrant ongoing management”. The applicant accepted, by reference to the observations of Tracey J in Simos 212 FCR 391; [2013] FCA 607 at [58] about a different SoP, that the word “warrant” means in this context “justify”. Accepting that meaning, the word “warrant” forms part of a larger phrase, used in a particular context and as part of a larger set of criteria. It is important to construe the phrase as a whole: Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] per French CJ and Hayne J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ.