Simos v Repatriation Commission

Case [2013] FCA 607

FEDERAL COURT OF AUSTRALIA

Simos v Repatriation Commission [2013] FCA 607

Citation: Simos v Repatriation Commission [2013] FCA 607
Appeal from: Re Russell Simos and Repatriation Commission [2011] AATA 537
Parties: RUSSELL JOHN SIMOS v REPATRIATION COMMISSION and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 955 of 2011
Judge: TRACEY J
Date of judgment: 20 June 2013
Catchwords: DEFENCE AND WAR – Rejection of claim for disability pension under the Veterans’ Entitlements Act 1986 (Cth) – appeal from decision of the Administrative Appeals Tribunal affirming rejection – whether Tribunal erred in finding the material did not point to life-threatening event during military service of appellant – whether Tribunal misdirected itself as to what constitutes an “objectively reasonable perception” that an incident was life threatening – whether Tribunal failed to determine the meaning of “viewing corpses or critically injured casualties as an eye witness” – whether Tribunal failed to give adequate reasons for rejecting certain contentions advanced by expert witnesses – whether Tribunal misapplied the definition of “clinically significant psychiatric condition”.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) – ss 43, 44
Veterans’ Entitlements Act 1986 (Cth) – ss 9, 120, 120A
Cases cited:

Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 – cited
Border v Repatriation Commission (No 2) [2010] FCA 1430 – considered
Comcare Australia v Lees (1997) 151 ALR 647 – cited
Dornan v Riordan (1990) 24 FCR 564 – cited
Kennedy v Australian Fisheries Management Authority (2009) 182 FCR 411 – cited
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 – considered
Kocak v Wingfoot Australia Partners Pty Ltd (2012) 295 ALR 730 – cited
McKenna v Repatriation Commission (1999) 86 FCR 144 – referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 – cited
Repatriation Commission v Deledio (1998) 83 FCR 82 – considered, applied
Repatriation Commission v Hawkins (1993) 45 FCR 205 – cited
Repatriation Commission v O’Brien (1985) 155 CLR 422 – considered
Starcevich v Repatriation Commission (1987) 18 FCR 221 – cited
Stoddart v Repatriation Commission (2003) 197 ALR 283 – considered
TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 – cited
White v Repatriation Commission [2004] FCA 633 – cited

Woodward v Repatriation Commission (2003) 200 ALR 332 – considered

Date of hearing: 19 April 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 61
Counsel for the Appellant: Ms F Ryan
Solicitor for the Appellant: Williams Winter
Counsel for the Respondents: Mr J Wallace
Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 955 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RUSSELL JOHN SIMOS
Appellant
AND:

REPATRIATION COMMISSION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

20 JUNE 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.…

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AGLC
Simos v Repatriation Commission [2013] FCA 607
Case
[2013] FCA 607
Decision Date

CaseChat Overview and Summary

The case of Simos v Repatriation Commission involved the appellant, Mr Simos, who appealed against the decision of the Administrative Appeals Tribunal (AAT) which had affirmed the rejection of his claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth). The dispute centred on whether the Tribunal had erred in its interpretation of the evidence and applicable legislation in determining that Mr Simos' Generalised Anxiety Disorder (GAD) was not attributable to his military service. The court was tasked with assessing whether the Tribunal had misapplied the relevant legislative provisions and standards in its analysis.

The primary legal issues the court had to address were whether the Tribunal correctly assessed the evidence regarding the absence of a life-threatening event during Mr Simos' military service, the meaning of "viewing corpses or critically injured casualties as an eyewitness," and whether the Tribunal had adequately addressed the contentions of the expert witnesses on the definition of a "clinically significant psychiatric condition." Additionally, the court examined if the Tribunal had misapplied the statutory definition of a clinically significant psychiatric condition by concluding that Mr Simos' condition did not warrant ongoing management until 1998.

The court found that the Tribunal had erred in its assessment of the evidence, particularly in its determination that there had been no life-threatening event during Mr Simos' service. The court held that the Tribunal had confined itself to an objective assessment of the nature of the threat and failed to make a reasoned determination as to whether or not the patrol incident was a life-threatening event. The court also found that the Tribunal had misdirected itself in its interpretation of the expression “viewing corpses or critically injured casualties as an eyewitness” and had not adequately addressed the expert witness contentions on the definition of a "clinically significant psychiatric condition." The court concluded that the Tribunal's decision to base its determination on the finding that Mr Simos' condition did not warrant ongoing management until 1998 was a misapplication of the relevant statutory definition.

The appeal was allowed, the decision of the Tribunal was set aside, and the case was remitted to the Tribunal as originally constituted to be heard and decided again without the hearing of further evidence, consistent with the court's reasons. Additionally, the first respondent was ordered to pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Tribunal be set aside.

3. The case be remitted to the Tribunal as originally constituted to be heard and decided again without the hearing of further evidence, consistently with these reasons.

4. The first respondent pay the appellant’s costs of this appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A second, less complicated, hypothesis was also advanced in relation to Mr Simos’ asthma condition. No alleged error was identified which related to this second hypothesis.THE TRIBUNAL’S DECISION The Tribunal commenced its analysis by noting the observation of the Full Court of this Court in McKenna v Repatriation Commission (1999) 86 FCR 144 at 151 that: “[a] complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts.” The Tribunal then set out the four step process which had been articulated in Deledio and determined that “the material points to the hypotheses [identified above at [13]-[14]] (step 1) and that there [were] SoPs in existence for each of the medical conditions found to exist (step 2).” It then turned to step 3. It quoted the relevant parts of the SoP for GAD. It continued:“105. The material does not point to there being any life threatening event during Mr Simos’ service; he did not view a corpse or a critical (sic) injured casualty at any time, although he claims to have seen body bags at Saigon Airport from a distance of 50 metres or that he was socially isolated while in Vietnam. In addition, criterion E of the SoP concerned anxiety disorder is not met despite seeing his GP on a regular basis from January 1981 to the present time, as the definition of a clinically significant psychiatric condition warranting ongoing management did not apply until 1998, when Mr Simos commenced treatment by a clinical psychologist.106. As the template provided by the SoPs is not met the hypothesis linking Mr Simos’ GAD to his operational service fails at step 3 of the Deledio process.107. As all other links in the complex hypothesis raised by the applicant are dependent on his psychiatric disorder being war-caused, the entire hypothesis is unreasonable.” Having so determined it was not strictly necessary for the Tribunal to proceed to deal with step 4 in the Deledio process. It did so, however, lest it had been in error in dealing with step 3. Step 4 required the Tribunal to consider whether it was satisfied beyond reasonable doubt that Mr Simos’ incapacity did not arise from a war-caused injury. This stage of the process required the Tribunal to give consideration to the evidence before it and make factual findings. In dealing with the evidence the Tribunal said that:“109. Both Mr Simos and Dr Collier [Mr Simos’ treating psychiatrist] agreed there was no objective event meeting the definition of a 1A stressor sub-paragraph (a) of experiencing a life threatening event. Dr Strauss [a consultant psychiatrist called by the respondent] was unable to say that Mr Simos met any of the stressor definitions (1A, 1B or 2). Dr Entwisle [a consultant psychiatrist called by Mr Simos] considered the Nui Dat patrol event to be a 1A stressor. Both Dr Collier and Dr Entwisle considered the viewing of body bags as meeting the 1B stressor definition of viewing corpses or critically injured casualties as an eyewitness. Dr Entwisle expressed doubt that Mr Simos’ claimed isolation in Vietnam satisfied the definition of a category 2 stressor.110. All three psychiatrists considered Mr Simos’ more recent health issues, his wife’s illness and the ensuing stillbirth in 1975, his children’s psychiatric disorders and the forced sale of his business in 1998 or 1999 as being contributory stressors importing a cumulative effect on any underlying war-caused psychiatric disorder. Dr Entwisle equated Mrs Simos’ severe health threat in 1975 with a 1A stressor and Dr Collier considered Mr Simos’ recent health issues (cough syncope, atrial fibrillation and epilepsy) as 1A stressors. They did however acknowledge that ultimately the assessment of the stressors was a question for the Tribunal.111. Neither Dr Entwisle nor Dr Collier had a complete history of all the stressful episodes and Dr Collier had relied, to a major extent, on information obtained from Mrs Simos from 2007 onwards. In contrast the assessment of 2002 was confined to information given from Mr Simos alone. The Tribunal accepts that Mrs Simos has been a keen observer of her husband’s physical and mental status. However, she has not been privy to his subjective responses to any of the many stressors he may have experienced given his refusal to discuss his Vietnam experience until 1998; nor his continuing reluctance to discuss any response to the stillbirth of their first child.112. … 113. As there was no actual life threatening event, Mr Simos has argued that the Tribunal should assess his claim that GAD was war-caused on the basis of his subjective response alone.114. The applicant’s Statement of Facts and Contentions relied on the authority of Woodward v Repatriation Commission (2003) 200 ALR 332 and Delahunty v Repatriation Commission [2004] FCA 309 in relation to severe stressors. As correctly pointed out by [counsel for the respondent] both of these cases related to a claim that PTSD and the SoP for this condition differs substantially from that for GAD both in terms of diagnostic criteria and the definition of a severe stressor. The relevant SoP for GAD in this matter is more prescriptive. The word confronted is absent from SoP Instrument No 101 of 2007 as is the phrase a person’s response involved intense fear, helplessness or horror. Mr Simos has described his response to the Nui Dat patrol incident as feeling numb. At other times in his evidence he said he felt traumatised by this event. He had difficulty explaining what he meant by the term traumatised but after some hesitation said that it was fear. Despite this response he said he and his colleagues laughed about the incident and he did not think about the event until well after his return to Australia. His response to seeing body bags at Saigon Airport on 16 September 1971 was couched in terms of realising he was in a war zone. Mr Simos continues to feel angry about the way the Vietnam Veterans were treated by the Government and civilian population on their return to Australia and considers the Vietnam War was worth fighting.” (Emphasis added in paras 109 and 113).

Ratio Decidendi

Legal Principle Established

Mr Simos submitted that the Tribunal had erred by:·Finding that the material before it did not point to there having been any life-threatening event during his military service.·Misdirecting itself as to what constitutes an objectively reasonable perception that an incident was life-threatening.·Failing to determine what was meant by the expression “viewing corpses or critically injured casualties as an eyewitness.”·Failing to disclose any adequate reasons for rejecting the construction of the expression “viewing corpses or critically injured casualties as an eye witness” which had been advanced by the psychiatrists who gave evidence for Mr Simos.·Misapplying the definition of “a clinically significant psychiatric condition” by basing its decision on a finding that the applicant’s condition did not warrant ongoing management until 1998.CONSIDERATIONA life-threatening event? The first two grounds related to the patrol incident. Mr Simos had contended that this incident constituted a category 1A stressor within the meaning of clause 9(a) of the GAD SoP. In dealing with step 3 in the Deledio process the Tribunal had concluded that “[t]he material does not point to there being any life-threatening event during Mr Simos’ service”: at [105] – see above at [17]. Mr Simos complained that the Tribunal had failed to make a finding as to whether his perception had been reasonably capable of evoking the necessary response. The Tribunal had confined itself to an objective assessment of the nature of the threat and had thereby committed jurisdictional error in concluding that Mr Simos had not experienced any life-threatening event during his service. A fair reading of the Tribunal’s reasons suggests that the reverse is true and that Mr Simos’ real complaint is that the Tribunal confined itself to a consideration of his subjective response to the patrol incident and failed to make a reasoned determination as to whether or not the patrol incident was a life-threatening event. This is a significant matter to which I will return. Mr Simos further submitted that the Tribunal had misdirected itself as to what constitutes an objectively reasonable perception that an incident is life-threatening. He acknowledged that the SoP did not contain a definition of what constituted a “life-threatening event.” He did, however, rely on the meaning placed on the expression by Reeves J in Border v Repatriation Commission (No 2) [2010] FCA 1430. His Honour there said (at [67]) that it is:“the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of sub para (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death…this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner … the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.”