Repatriation Commission v Richardson
[2006] FMCA 478
•6 April, 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REPATRIATION COMMISSION v RICHARDSON | [2006] FMCA 478 |
| ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – whether Tribunal considered wrong hypothesis – no question of law – appeal dismissed. |
| Administrative Appeals TribunalAct 1975, s.44 Veterans’ Entitlements Act 1986, ss.9(1), 13(1), 120, 120A |
| Bushell v Repatriation Commission (1992) 175 CLR 408 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 Repatriation Commission v Deledio (1998) 83 FCR 82 Comcare v Etheridge [2006] FCAFC 27 |
| Applicant: | REPATRIATION COMMISSION |
| Respondent: | IAN RICHARDSON |
| File Number: | BRG278 of 2005 |
| Judgment of: | Jarrett FM |
| Hearing date: | 20 October, 2005 |
| Date of Last Submission: | 20 October, 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 6 April, 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ford |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr Clutterbuck |
| Solicitors for the Respondent: | Streeting Haney Lawyers |
ORDERS
The appeal be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG278 of 2005
| REPATRIATION COMMISSION |
Applicant
And
| IAN RICHARDSON |
Respondent
REASONS FOR JUDGMENT
The applicant appeals against a decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) given on 10 November, 2004 which set aside a decision of the Repatriation Commission to vary the rate of pension payable to the respondent, Mr Richardson, under Part II of the Veterans’ Entitlements Act 1986 (“the VE Act”).
The matter has had a long history. The original decision of the Commission was made on 27 November, 1996. That decision was the subject of a determination of the Veteran's Review Board made on
21 July, 1999. A decision of a three-member Tribunal followed on
22 June, 2001: Richardson and Repatriation Commission [2001] AATA 578. That decision was the subject of an appeal to the Federal Court of Australia by the Commission: Repatriation Commission v Richardson [2001] FCA 1626. The appeal was allowed in part and remitted for rehearing. It was reheard on 23 July, 2004 and it is that Tribunal's decision that is the subject of the appeal now before me.
The appeal is pursuant to s.44(1) of the Administrative Appeals Tribunal Act1975 (“the AAT Act”). A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. The Federal Court may transfer the appeal to this Court for determination. A transfer order was made on 25 May, 2005.
The nature of an appeal under s.44(1) of the AAT Act was recently considered by the Full Court of the Federal Court of Australia in Comcare v Etheridge [2006] FCAFC 27. In that case, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:
13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).
14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.
15 In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:
‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’
16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]:
‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’
17 Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.
The present appeal was commenced in the Federal Court and in accordance with O53 r3(2) of the Federal Court Rules, on 7 December, 2004 the applicant filed a Notice of Appeal in which the questions of law are specified. The questions of law said to be raised on this appeal are as follows:
2.1the proper construction and operation of ss 120(1) and (3) and 120A(3) of the VE Act;
2.2the extent of the obligation imposed on the Tribunal when exercising its function to decide whether an injury or disease claimed by a veteran is war-caused within the VE Act;
2.3whether the Tribunal fails to exercise its jurisdiction to decide if an injury or disease is war-caused by reason of a connection with operational service within the VE Act when the Tribunal fails to identify and consider the hypothesis advanced in support of the claimed connection;
2.4whether the Tribunal breaches procedural fairness when it relies on a concession made by one of the parties before the Tribunal to support a decision on a basis to which that concession does not relate;
2.5whether the Tribunal fails to exercise its jurisdiction to decide if an injury or disease is war-caused by reason of a connection with operational service when it fails, in a matter to which s 120A(3) of the VE Act applies, to decide whether the material before the Tribunal points to the existence of each of the elements prescribed by the relevant Statement of Principles (SoP) as necessary for a reasonable hypothesis;
2.6 whether it is incumbent on the Tribunal, when deciding if the material before the Tribunal raises a reasonable hypothesis connecting an applicant’s injury with war service, to consider the whole of the material and not confine its consideration to the “the applicant’s story”;
2.7whether opinions expressed by medical practitioners in support of a hypothesis said to connect an applicant’s injury with war service operate to prevent the Tribunal finding that the hypothesis is not reasonable.
The tribunal's decision
The Tribunal recorded that the respondent's case was that he experienced an incident on operational service that caused him to develop post traumatic stress disorder, depressive disorder and alcohol abuse.
The incident upon which the respondent relied arose out of his service aboard an Army vessel, the Clive Steele in the port of Qui Nhon, Vietnam on 17 February, 1968. The respondent's case was that he was required to aim and fire a 40mm Bofors gun positioned on the Clive Steele to provide harassment and interdictory fire. The target was on a hill above an onshore civilian compound. The firing commenced after dark. The respondent could see tracer fire and explosions and formed the view the gun was not on target. He told the corporal in charge, but he was told to keep firing. Soon after the gun was repositioned (as well as the ship) and the firing recommenced. It continued for sometime into the night. The respondent was worried and the next, morning, he went to investigate. In his oral evidence before the Tribunal he described his experience as follows:
Okay. What happened the next morning?---The next morning I snuck off the boat.
How did you do that?---By climbing down the ladder on the - when the doors are wide open, the ladder is over on the side. You can get down it and get away without anyone seeing you.
Why did you sneak away?---Because I was so convinced we - I wanted to see where we were firing.
Yes. So you went down?---I went down. I walked up the beach, it took me about 20 minutes. I went to the Korean naval base, past their base and there was a lot of people gathering, Koreans, all Koreans. I never saw any American. I could see a compound.
Yes?---Inside that compound there was women and children - - -
…
It’s okay. So you were describing what happened. You went down to the compound?---I looked through - I could see through the gates of the compound. The Koreans were in there starting to clean it up and all I can remember I saw - I saw dead bodies. The main thing that affected me was the women and children screamed.
Yes?---I couldn’t have been there any more than about four minutes and I was told to move on by - I think they were Koreans. I couldn’t understand them, so I wasn’t hanging around there. They were mean bastards. Sorry. Excuse the expression. They’re mean people.
And what did you do then?---I headed back to the ship. I knew I had to get back there before they had reveille because I would have been missed. So, I went back to the ship. There was no problem. I just walked on and they thought I’d just gone on to the sand. Whoever was on duty never questioned it. I looked up in the bridge. Captain Webber was up in the bridge, so, I confronted him and told him what I’d seen.
Yes?---I was told to get off the bridge and shut my mouth, that nothing had happened. It was a bloody practice fire and go back to duties otherwise you’ll be court martialled.
Yes?---I left the bridge and I went down to the foreign mess where I drank a considerable amount of alcohol and then went back onto the gun duty of cleaning the gun and never spoke to another person again.
As to the above described incident, the Tribunal restated the evidence in the following terms:
13.At dawn the next day, the applicant recalls that he left the boat, walked down the beach and up behind the Korean naval base. He says he noticed there were a lot of people around. As he got closer he heard screaming and children crying and saw Korean soldiers. After 3-4 minutes the Koreans moved him on.
14.He then returned to the Clive Steele. He told the skipper he thought something “really bad happened last night”. The skipper replied that nothing bad had happened, and he should not talk about it or he would be in trouble.
15.From this the applicant assumed the shots fired in the exercise on 17 January 1968 had fallen onto the civilian compound, causing casualties.
The Tribunal was satisfied that the respondent suffered from Post Traumatic Stress Disorder, depressive disorder and alcohol abuse.
The Tribunal set out the relevant statutory framework and recognised that it should approach the matter according to the steps recommended by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 (referred to by the Tribunal as "the Delidio steps").
The Tribunal recorded that the hypothesis contended for by the respondent was that "he suffers PTSD, depressive disorder and alcohol abuse as a result of the incident he experienced in Vietnam.". That was indeed the respondent's hypothesis. The incident was explained in his evidence.
The Tribunal noted that there was medical evidence before it that supported the hypothesis. It also noted the remarks of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 – 415 that:
The case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable where it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.
The Tribunal stated that: "I cannot reject the hypothesis that Mr Richardson's injuries are caused by his service.". In saying that, I think the Tribunal was doing no more than recognising that there was medical evidence (accepted by the Tribunal) that connected the respondent's disorders with the incident the respondent had described in evidence. At that point in the reasons, I do not think that the Tribunal was making any finding about the reasonableness or otherwise of the claimed hypothesis – merely that the material raised the hypothesis contended for by the respondent.
The Tribunal identified the relevant Statements of Principle. No issue is taken by the applicant about the Tribunal's findings in that regard. Of central importance to the appeal, however, is that the Tribunal recorded that the applicant "conceded that if the applicant's story was accepted it would satisfy factor 5(a) of the PTSD SoP." I will return to that concession later in these reasons.
Finally, after noting that there were some significant discrepancies between the evidence of the respondent and that called by the applicant concerning the incident relied upon by the respondent, the Tribunal found that the applicant could not disprove a raised fact or prove an inconsistent one beyond a reasonable doubt.
The above findings should be seen against the background of the issues for determination by the Tribunal as exposed by the parties. On 5 May, 2004 and prior to the Tribunal hearing, the applicant delivered a statement of facts and contentions. The contentions were in the following form:
CONTENTIONS
2. There is no dispute that:
• the applicant meets all the conditions for the payment of pension at special rate subject to his psychiatric conditions being found to be war-caused;
• the hypothesis, namely the applicant’s involvement in the firing of a Bofors gun which the applicant witnessed had killed innocent people, would be an event or stressor within the meaning of the Statements of Principles for Post Traumatic Stress Disorder, Alcohol Abuse and Depressive Disorder (‘the event’).
3. The respondent contends that the event is not an hypothesis raised on the whole of the material and further that the evidence establishes that the event never occurred.
At the commencement of the hearing before the Tribunal, the following exchanges took place between Senior Member McCabe, Mr Clutterbuck (for the Veteran) and Miss Ford (for the Commission):
MR McCABE: Right, okay. So, is there – I'm taking it there's a dispute that the event happened ---
MR CLUTTERBUCK: Yes.
MR McCABE: - - - as described?
MR CLUTTERBUCK: Yes.
MR McCABE: So, it's not just yes, there was an event. Was it a severe stressor? That’s the second question; did it occur as described?
MR CLUTTERBUCK: Did it occur? And I think if it's found by the Tribunal that it did occur, then it's conceded that this is an appropriate claim for I think potentially a section 24 issue.
MR McCABE: Right, okay. Would you need me to decide the section 24 issue or is that something if you came to that?
MISS FORD: No, no, you only have to decide whether or not this event occurred.
MR McCABE: Okay, but it can be remitted if that’s the case.
MISS FORD: Yes.
MR CLUTTERBUCK: Yes.
MR McCABE: All right. So, for deledio purposes, we’re accepting the - diagnosis is accepted?
MR CLUTTERBUCK: Yes.
MR McCABE: Okay. And the hypothesis is that seeing these bodies in the compound caused him to be - what was a severe stressor.
MR CLUTTERBUCK: Severe stress.
MR McCABE: Stressed him to the point where he developed PTSD, the drinking problem and triggered his depressive disorder.
MR CLUTTERBUCK: Yes.
MR McCABE: Well, I’ll state the principles. Are we going to - I’ll just make sure I understand. If we - doing a third deledio step, if we accepted that it occurred, taking the evidence at the highest from the way you’ve described it so far, is there a dispute that it could constitute a severe stressor?
MR CLUTTERBUCK: No.
MR McCABE: No. Okay. So, it’s purely the fact finding?
MR CLUTTERBUCK: It’s the fact finding. It’s in a little box of its own.
MR McCABE: Okay, fair enough. It’s nice to have one of these for a change instead of being stuck at step 3 all the time.
MISS FORD: Yes.
MR McCABE: Right, okay. All right, good.
It is also relevant to have regard to the submissions made by the applicant before the Tribunal. There were some written submissions to the following effect:
The Issue
5. The issue before the tribunal is whether the psychiatric disorders or alcohol abuse arose out of, or are they attributable to the applicant’s eligible war service.
Submission
6. The Respondent submits that there is no evidence to support the applicant’s assertion that people were killed or injured by the shelling from the Clive Steel on the night of 17 February 1968 nor to support his assertion that he witnessed the scene he alleges the following morning.
7. Rather the evidence of Mr Harris indicates that the Bufor gun was carefully aimed by him before each firing and that each shell hit its intended target. From the published letters of the New Zealand doctor, Dr Smith, who was working at the local hospital it is clear that there was ‘incident’ on the relevant night causing injury or death.
8. Accordingly no hypothesis linking the applicant’s conditions with his service is raised or pointed to by the material.
The grounds of appeal
The applicant argues that the Tribunal failed to undertake the task required of it because it inappropriately focused on the concession made by the applicant that if the Tribunal accepted the respondent's evidence about the incident he reported to have occurred at Qui Nhon, it would be sufficient to give rise to liability for all three conditions under the VE Act.
The applicant's submissions assert that the concession was made in respect of a hypothesis that involved the respondent witnessing dead and injured civilians. The appeal record, however, does not reveal that to be so. I have set out the respondent's evidence above – the most relevant part bears repeating: "The Koreans were in there starting to clean it up and all I can remember I saw - I saw dead bodies. The main thing that affected me was the women and children screamed.".
The respondent's evidence was not that the bodies he saw were those of civilians. Nor was his evidence that he saw injured civilians. It was the kernel of the respondent's hypothesis, however, that harm had been done to some people (not the enemy) and that he was responsible for it. Notwithstanding the lack of evidence form the respondent identifying the dead bodies he saw as civilians, or that the compound he observed was civilian, in my view the Tribunal's finding that the respondent assumed that the shots fired in the exercise on 17 February, 1968 had fallen onto the civilian compound, causing casualties was open to it. It was open because:
a)The respondent observed dead bodies;
b)The bodies were inside what the respondent describes as a compound; and
c)There were women and children present.
It is not appropriate to read the Tribunal's decision with an overly critical eye: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272. In my view, the fact that the Tribunal has not set out all of the respondent's evidence in its reasons is of no consequence. The evidence supported the Tribunal's findings as to the existence of the factual basis for the hypothesis contended for by the respondent.
In my view, the Tribunal carried out the task it was required to perform, especially having regard to the way in which the parties chose to conduct the matter as revealed by the exchanges between the Tribunal and Counsel for each party, and the applicant's written submissions. It considered the hypothesis in respect of which the applicant had made the relevant concession and no other. This ground of the appeal must fail.
It is further argued that the Tribunal's invocation of the applicant's concession to support the Tribunal's finding that the hypothesis considered by the Tribunal was upheld by the relevant SoP was a denial of procedural fairness to the applicant, which was not given the opportunity to make submissions on the hypothesis considered by the Tribunal. It follows that because the Tribunal in fact considered the hypothesis in respect of which the applicant's concession had been made, the ground of appeal must fail also.
The applicant also argues that the Tribunal's references to “the applicant’s story” being “consistent” with the SoP and to the medical practitioners evidence preventing the Tribunal from rejecting the hypothesis demonstrate that the Tribunal had no understanding of the nature of the task that is was required to perform.
The relevant passage from the Tribunal's reasons appears to be the following:
The respondent conceded that if the applicant’s story was accepted it would satisfy factor 5(a) of the PTSD SoP. Factor 5(c) of the depressive disorder SoP is “having a clinically significant psychiatric disorder within the two years immediately before clinical onset”. PTSD is a clinically significant psychiatric disorder. Factor 5(b) of the alcohol abuse or dependence SoP is identical to factor 5(a) of the PTSD SoP. The effect of this is that the facts raised by the applicant are consistent with all the relevant SoPs.
The Tribunal used the medical evidence in the way I have explained above. It did not adopt the Bushell approach and determine that the hypothesis contended for by the respondent was reasonable on the basis of that evidence. It found that the hypothesis was raised by the material and then went to the SoP's, as it was required to do by s.120A(3) of the VE Act to determine if the "hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.": Deledio at 97.
In my view, the Tribunal approached the matter in accordance with principle. No error is demonstrated. This ground of appeal must fail.
Conclusion
No questions of law arise on this appeal. The appeal must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Deputy Associate: E Crutchfield
Date: 6 April 2006
0
7
2