Summers v Repatriation Commission

Case [2014] FCA 608

FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2014] FCA 608

Citation: Summers v Repatriation Commission [2014] FCA 608
Parties: RONALD JOHN SUMMERS v REPATRIATION COMMISSION
File number: VID 767 of 2013
Judge: MORTIMER J
Date of judgment: 12 June 2014
Catchwords: ADMINISTRATIVE LAW – Veteran’s entitlements – appeal from decision of Administrative Appeals Tribunal to refuse an increase in rate of pension – cross-appeal from decision of Tribunal that applicant suffered from post-traumatic stress disorder – whether Tribunal erred in its conclusion that applicant’s alcohol dependence was not “war-caused” – whether there was no evidence on which Tribunal’s conclusions on alcohol dependence could be based – whether the Tribunal complied with the requirement to give reasons under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the Tribunal correctly construed the meaning of “loss” in the provisions of the Veterans’ Entitlements Act 1986 (Cth) pertaining to increased rates of pension –whether the Tribunal took into account irrelevant considerations – no error on part of Tribunal identified on appeal or cross-appeal – appeal and cross-appeal dismissed.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Age Discrimination Act 2004 (Cth) ss 31, 41
Veterans’ Entitlements Act 1986 (Cth) ss 5C, 7, 9, 13, 15, 22, 23, 24, 120, 120A
Cases cited: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137
Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247; [2012] FCAFC 153
Flentjar v Repatriation Commission (1997) 48 ALD 1
Giesen v Repatriation Commission (2005) 216 FCR 435; [2005] FCA 846
Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
O’Dowd v Repatriation Commission [2013] FCA 991
Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Holden [2014] FCA 605
Repatriation Commission v Nation (1995) 57 FCR 25
Summers and Repatriation Commission [2010] AATA 803
Summers and Repatriation Commission [2013] AATA 439
Summers v Repatriation Commission (2012) 130 ALD 32; [2012] FCAFC 104
Summers v Repatriation Commission [2011] FCA 1451
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Watsford v Commissioner of Taxation [2013] FCA 1389
Date of hearing: 19 March 2014
Date of last submissions: 19 March 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 101
Solicitor for the Applicant: Mr D De Marchi of De Marchi and Associates
Counsel for the Respondent: Ms C Dowsett  
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 767 of 2013
BETWEEN:

RONALD JOHN SUMMERS
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

12 JUNE 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

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Summers v Repatriation Commission [2014] FCA 608
Case
[2014] FCA 608
Decision Date

CaseChat Overview and Summary

The case of Summers v Repatriation Commission involved an appeal against the decision of the Administrative Appeals Tribunal (AAT) concerning a review of a decision by the Repatriation Commission. The central issue in the case was whether the AAT had properly exercised its review function under the Administrative Appeals Tribunal Act 1975 (AAT Act) in determining the veteran's eligibility for a special rate pension due to post-traumatic stress disorder (PTSD) and alcohol dependence. The legal questions that the court had to address included whether the AAT had correctly assessed the evidence and applied the relevant criteria, and if the AAT had provided adequate reasons for its decision.

The court examined whether the AAT had appropriately identified the evidence and concluded that the Tribunal's use of the term "no persuasive material" was merely an explanation of how it assessed the material before it, and did not constitute an impermissible imposition of an onus on the applicant. The court also considered whether the AAT's findings regarding the absence of certain factors necessary for a PTSD diagnosis were legally sound and found no basis to conclude that the AAT had erred in its evaluation of the evidence. Furthermore, the court found that the AAT's reasons, while general, were sufficient to enable an understanding of the decision-making process and did not fail to comply with the statutory obligations under the AAT Act.

The court concluded that the AAT had properly exercised its review function and that the reasons provided were adequate for judicial supervision purposes. Consequently, the orders of the Full Court were to remit the matter to the AAT for reconsideration according to law. The court did not make any orders limiting the scope of the AAT's review or directing that the matter be heard again by the same Tribunal member, but noted that the same Tribunal member conducted the review and reached a different conclusion compared to the initial review.

This case underscores the importance of providing sufficient reasons that allow for judicial oversight and understanding of the decision-making process, without delving into speculative or hypothetical reasoning. The court's decision highlights the need for the AAT to balance the requirements of providing adequate reasons with the practicalities of reviewing complex cases involving veteran claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As to questions 1(d) and (e), in conducting its review and making its decision the Tribunal did not impermissibly impose any onus on the applicant. The statement that there was no “persuasive material” is nothing more than the Tribunal’s explanation of how it assessed the material before it. This kind of language reflects the “practical situation” which arises in the Tribunal on any review, where parties must adduce material, and make arguments, in order to persuade the Tribunal to make findings or reach conclusions one way or the other: see Deledio 83 FCR 82 at 95.The “no evidence” questions (question 2 and 3) These two questions also centre on the way the Tribunal went about its fact finding on the factors in cl 3(b). The two findings challenged by these grounds are:·at [60], the Tribunal said “[i]n his evidence Mr Summers did not state that he often took alcohol in larger amounts or over a longer period than was intended, so he does not satisfy factor (3)”; and·at [61], the Tribunal said “Mr Summers … demonstrated no desire or unsuccessful efforts to reduce consumption, so he does not satisfy factor (4)”. Expressed as they are, these findings represent the Tribunal’s conclusion having examined the evidence. It is not suggested by the applicant that the Tribunal’s description of the evidence was even factually wrong, although that would not have been enough to demonstrate legal error. The Tribunal simply was pointing, as it was entitled to do, to gaps in the evidence which meant the applicant could not satisfy particular factors within cl 3(b).Whether inadequate reasons (question 4) The Tribunal explained in two paragraphs of its reasons why it was not satisfied the applicant met the criteria in cl 3(b) of the 2009 SoP. It had set out earlier in its reasons the evidence from the applicant and his wife, as well as the medical evidence, concerning the applicant’s alcohol consumption and the effects it had. There was no suggestion in argument that significant or material parts of the applicant’s evidence, or that of his wife, were overlooked or ignored by the Tribunal in that earlier part of its reasons. The description in the Tribunal’s reasons of evidence of the applicant and his wife suggests their evidence was at a relatively high level of generality. The written statements of the applicant and his wife before the Tribunal are in evidence before the Court, as are the principal medical reports. On the manifestations of his alcohol dependence, the contents of those statements, consistently with the Tribunal’s reasons, are at a level of generality not apt to assist the Tribunal in making the necessary findings for the purposes of cl 3(b). Their level of generality proved, at a factual level, to be problematic when it came to persuading the Tribunal of the matters in cl 3(b). In my opinion, this feature of the applicant’s evidence on review before the Tribunal is reflected in the way the Tribunal explained its reasoning on the factors in cl 3(b). Its reasons in those circumstances do not fail to comply with its obligations under ss 43(2) and (2B) of the AAT Act.Construction of “loss” in sections 24 (1)(c) and 24 (2)(a) (question 5)

Decision

Reasons for decision

The issues on this appeal revolve around the proper construction of s 24(1)(c), read with ss 24(2)(a) and (b), and the relevantly identical provisions in s 23.THE TRIBUNAL’S DECISION The orders of the Full Court involved a general remitter of the matter to the Tribunal to be heard and determined according to law. No orders were made pursuant to s 44(4) limiting the Tribunal’s review to a particular issue: cf Repatriation Commission v Nation (1995) 57 FCR 25 at 34 per Beaumont J; Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156 at [24]. Nor was any order made, if it could have been (cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11), directing that the matter be heard again by the same Tribunal member. Nevertheless, the Tribunal was constituted by the Tribunal member who conducted Mr Summers’ first review in 2010. There is no evidence of any objection by either party to this member conducting the review. The fact that the same Tribunal member heard the second review, and indeed came to the opposite conclusion on whether Mr Summers suffered from PTSD and whether it was war-caused, may in part explain the respondent’s contention on the cross-appeal that the Tribunal did not comply with its obligations under s 43(2B) of the AAT Act. The Tribunal identified three issues arising on the review:• Does Mr Summers suffer from PTSD? If so, is the condition war-caused?• Is [his] alcohol dependence war-caused?• Does Mr Summers qualify for intermediate rate pension or special rate pension? Neither of the parties to the appeal disputed the Tribunal’s characterisation of the issues on review. In respect of his claim for PTSD, the Tribunal recorded Mr Summers’ reliance on five events during his three-and-a-half months’ service in Vietnam as capable of satisfying the criteria for PTSD in the relevant diagnostic manual, Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV). However one event assumed prominence both in the Tribunal’s review and on this appeal. It was described by the Tribunal as the “Watson’s Bay event”:Mr Summers stated that after his father’s funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties. In a written statement dated 27 November 2007 Mr Summers said that he had been drinking in a hotel with a friend and was confronted by a group of sailors and became involved in a fight as they left the hotel to walk back to the army base near a cliff face. His friend ran off. He said that four or five sailors came at him. One picked up a branch and struck him in the head, fracturing his cheekbone. He said: I was bashed up and thrown down a cliff. In a further written statement dated 15 January 2013, Mr Summers said that he remembered the incident in about the third week of his hospitalisation and the memory distresses him enormously even now. What particularly distresses him is thinking about Australian service personnel acting this way against their own people by leaving him at the bottom of the cliff and not seeking medical assistance or informing the authorities.In a written statement dated 24 January 2013, Mr Summers said that he was scared when the sailors...approached me and when I was hit with the branch of a tree with a diameter of 2 inches. He expressed amazement and shock when he was told of the circumstances of the incident, and said that he still thinks about the events a lot. He said:When I think about the sailors leaving me at the bottom of the cliff I feel agitated, angry and wound up. I go through the events again over and over. I am very emotional and tears come and my legs start shaking. I hide in my “Men’s Cave” every day — my garage under the house. There I have my fridge, my television and my dog. I sit there in the darkness with the telly on. Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. He said that he was in intensive care for four weeks and was then sent to Concord Rehabilitation Hospital for one week and three weeks of rehabilitation followed, after which he returned to Victoria.Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson’s Bay event, but maintained that he did not remember making the statement as he was interviewed only 10 days after suffering serious injuries and was probably taking prescribed medication at the time. He also agreed that the investigating officer’s report dated 6 November 1968 referred to the injuries having occurred … as a result of a fall down a cliff face at South Head … following a brawl between Mr Summers and a sailor from HMAS Watson. The investigating officer noted:After wrestling around on the ground they both fell over a cliff onto the rock ledge below. From the statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.…Mrs Summers said that after the incident Mr Summers’ personality and behaviour changed and he was not the young man whom she had known before he went to Vietnam because he was always angry and irritable with her, his family and friends. She explained that since the incident Mr Summers will not visit hospitals and will not discuss the incident at any length, although she said that he told her that he remembers one of the sailors coming towards him with a piece of wood. She described his anger, impatience and rudeness, and said that he has nightmares and has difficulty sleeping. Recently, she and Mr Summers were on a cruise ship and, knowing that Watson’s Bay would be visible, Mr Summers became anxious and suffered from flashbacks. She said that the incident was, and continues to be, a major part of their lives and that he thinks about it every day.

Ratio Decidendi

Legal Principle Established

The respondent’s cross-appeal identified one question of law: whether the Tribunal had complied with its obligation under s 43(2B) of the AAT Act. The respondent contended the Tribunal had failed to comply with that obligation in three ways. First, the Tribunal did not identify the “event” it found the applicant experienced, and which the Tribunal also found involved actual or threatened death or serious injury, leading to its conclusion that the applicant meets the criteria for a diagnosis of PTSD. This was said by the respondent to be a critical omission by the Tribunal in terms of its identification of material findings of fact. Second, the reasons do not disclose why the Tribunal preferred the evidence of Dr Velakoulis over that of Dr Strauss and another psychiatrist whose evidence was considered by the Tribunal, Dr Pomorin, in respect of the conclusion the applicant suffered from PTSD, in particular given the opinion by Dr Strauss about the need for conscious recall of a traumatic event before a diagnosis of PTSD could be made. Third, the Tribunal’s reasons did not disclose which aspects of the evidence it relied on for the finding that the applicant responded to the event it identified at [36] with the requisite intense fear, helplessness or horror which a diagnosis of PTSD required.CONSIDERATION Several general points should be made at the outset, since they will recur in the considerations of several of the questions of law raised by the parties. It is well established that, in applying a SoP to the evidence and material before it, the decision-maker (whether at first instance or on review) is to form an opinion whether a veteran is or is not suffering from a particular condition: see O’Dowd v Repatriation Commission [2013] FCA 991 at [37] per Marshall J and the cases there referred to. The decision-maker does not delegate or defer to any medical evidence on this matter, although clearly such evidence may be given weight. For example, whether the applicant did or did not suffer from PTSD was a conclusion the Tribunal needed to reach for itself, applying the diagnostic criteria in DSM-IV and taking into account all the evidence and other material before it. The nature of the reasons obligation imposed on the Tribunal by s 43(2) and s 43(2B) should be recalled. Section 43(2) imposes a general obligation to give reasons which are adequate to enable the parties to the decision to understand why it was made, and to facilitate the judicial supervision of the Tribunal’s decision-making which arises from s 44 of the AAT Act: see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137 at [40]-[41]. Where a statute requires a decision-maker to set out “its” findings on material questions of fact and the evidence or other material on which those findings were based (as the AAT Act does by s 43(2)), the statute is asking the decision-maker to reveal, not what it should have found and why, but what it did find, and why. It is an obligation to expose that particular decision-maker’s reasoning processes. In doing so, the decision-maker may reveal a failure to take relevant considerations into account or a misunderstanding of the law to be applied. If so, it will be because the reasons given reveal what the decision-maker considered to be material, and how the decision-maker approached her or his statutory task: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [38] per Gaudron J, at [69], [75] per McHugh, Gummow and Hayne JJ.