Thomas v Repatriation Commission - [2006] FMCA 618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMAS v REPATRIATION COMMISSION

[2006] FMCA 618

ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – no question of law – appeal dismissed.

Administrative Appeals TribunalAct 1975, s.44
Veterans’ Entitlements Act1986, ss.9(1), 13(1), 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232
Comcare v Etheridge [2006] FCAFC 27

Applicant:

RYLAND THOMAS

Respondent:

REPATRIATION COMMISSION

File Number:

BRG696 of 2005

Judgment of:

Jarrett FM

Hearing date:

10 April 2006

Date of Last Submission:

10 April 2006

Delivered at:

Brisbane

Delivered on:

28 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr Clutterbuck

Solicitors for the Applicant:

Streeting Haney Lawyers

Counsel for the Respondent:

Ms Bowskill

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The appeal be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG696 of 2005

REPATRIATION COMMISSION

Applicant

And

RYLAND THOMAS

Respondent

REASONS FOR JUDGMENT

The applicant appeals against a decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) given on 29 September, 2005 which affirmed decisions of the Repatriation Commission to reject claims for pensions for alcohol dependence and post-traumatic stress disorder under the Veterans’ Entitlements Act1986 (“the VE Act”).
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. This appeal was so transferred.
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.
In Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232, Branson and Stone JJ said:
13 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:
`I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal "grounds" which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only "the grounds relied upon in support of the order sought". In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.'
14 His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.
15 Further, his Honour at 527 expressed the view that:
`... it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law." 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 We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.
17 A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd(1993) 43 FCR 280 (FC); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the Tribunal having regard to the requirements imposed by O 53 r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal.
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. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated.
The present appeal was commenced in the Federal Court and in accordance with O53 r3(2) of the Federal Court Rules, the applicant filed a Notice of Appeal in which the questions of law are specified. At the outset of the hearing before me, the applicant sought and was given leave to file and read an amended Notice of Appeal. The questions of law said to be raised on this appeal are:
(a)The Tribunal failed to properly apply the law when considering whether the applicant suffered anxiety disorder, Post Traumatic Stress Disorder, and Alcohol Dependence and/or Abuse and thereby misinterpreted the test in the relevant Statement of Principles;
(b)The Tribunal failed to properly apply the Deledio steps when undertaking the staged process of assessment;
(c)The Tribunal applied the incorrect principles in the analysis of the onus of proof.
None of the purported questions of law relied upon by the applicant are stated as pure questions of law. At best they are stated as allegations that the Tribunal made errors of law.

The tribunal's decision

The applicant served in the Royal Australian Air Force from 30 July, 1962 until 29 July, 1968. He was stationed at Ubon, Thailand in March 1966 for six months. The Tribunal recorded that the respondent's case was that he experienced a number of stressful events during his operational service at Ubon that caused him to develop an anxiety disorder, post traumatic stress disorder and alcohol dependence.
Although the applicant's claims before the Commission only related to alcohol dependence and post traumatic stress disorder, "in accordance with its duty 'to arrive at the correct or preferable decision in the case before it, according to the material before it', the AAT did not limit its review to the matters which had been addressed by the Commission and the [Veterans' Review Board]; it also addressed the issue of whether Mr Thomas suffered from [Generalised Anxiety Disorder] and, if so, whether that condition was war caused."[1].
[1] Respondent's outline of submissions paragraph 18
The Tribunal recorded that there were a number of stressors pointed to by the applicant, namely:
a)that in the course of his duties as an aircraft refueller, he became soaked with fuel. The fuel would contact his skin and cause pain and after about 4-6 weeks, the skin would peel off his stomach and groin and his testicles would have a burning sensation. He developed bleeding between his toes and splitting and swelling of his penis.
b)his sleeping quarters were only about 200 meters from the aircraft runway. There was a risk of accidents and there was almost constant noise from jet aircraft taking off.
c)his sleeping quarters were about 20 meters from a fuel dump and flares used by other forces sometimes landed close to that fuel dump. On one occasion a flare landed close to his fuel tanker and that caused him fear.
d)on one occasion when he was driving his tanker, he was at the end of the runway waiting to cross when a taxiing RAAF Sabre aircraft accidentally fired across his truck.
e)on one occasion an armed person jumped upon his truck and the applicant had to push him off.
f)he was concerned that insurgents might fire mortars at him;
g)he saw a Thai guard shot through the head by a Thai colonel for being asleep at his post. He sustained a bayonet wound following the shooting and then he was badly assaulted by Thai police who thereafter returned him to his quarters;
h)an American serviceman was incinerated in a fire in a brothel while Mr Thomas was visiting with a friend.
The Tribunal considered the applicant's evidence, has answers to question put by the Tribunal and the other evidence set out in the "T" documents.
After recording the evidence, the Tribunal set out the legislative background against which the application had to be decided. The Tribunal then referred to the four steps recommended by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82.
The Tribunal recorded that the hypothesis contended for by the respondent was that his "conditions were caused by the events that he described.". The Tribunal went on to say that if the events that the applicant described were true, then there would "certainly be the establishment of the stressors in the SoPs.". The Tribunal was satisfied that the evidence pointed to a hypothesis connecting the conditions claimed by the applicant to his operational service.
The Tribunal recorded that Statements of Principles ("SoPs) had been determined by the Repatriation Medical Authority pursuant to s.196B(2) of the VE Act in respect of the conditions claimed by the applicant, namely Post Traumatic Stress Disorder: Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999, Alcohol Dependence or Alcohol Abuse: Instrument No. 76 of 1998 and Anxiety Disorder: Instrument No. 1 of 2000.
The Tribunal then turned to the third of the Deledio steps. It noted that in relation to the clamed condition of anxiety disorder, the applicant relied upon factors 5(a)(ii) and 5(a)(iv) of the relevant SoP. Relevantly, clause 5 of the anxiety disorder SoP provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder …with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
The following definitions from the SoP are also relevant:
"generalised anxiety disorder" means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
…
"major illness or injury" means a disease or injury that is life-threatening or seriously disabling;
…
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Of factor 5(a)(ii), the Tribunal determined that the RAAF Sabre incident could satisfy that requirement. As to the applicant's claim that residence was close to fuel depots, the Tribunal said it was "difficult to see how the experiences of the applicant could be said to be a severe psychosocial stressor" for the purposes of that factor. It pointed out that at no time was the applicant under any personal attack or threat.
In respect of factor 5(a)(iv), the Tribunal determined that that factor had not been established because even though there was evidence that the applicant had developed a generalised anxiety disorder whilst on service at Ubon, there was evidence against the proposition that he suffered from the cumulative features of generalised anxiety disorder during any six month period in the two years following the acute penile problems the applicant claimed he suffered from at Ubon. That was significant because to be consistent with the SoP the facts had to show that the applicant had a major illness or injury within the two years immediately before the clinical onset of the claimed anxiety disorder. The only major illness or injury at Ubon accepted by the Tribunal was the applicant's penile problems.
The Tribunal found that the applicant established that his hypothesis was consistent with the SoPs for Alcohol Dependence and Post Traumatic Stress Disorder and that he established factor 5(a) in respect of each of the relevant SoPs. The Tribunal found that the hypothesis contended for by the applicant in respect of these conditions was reasonable.
Thus, at the conclusion of step three of the Deledio process, the Tribunal was satisfied that the applicant's hypothesis in relation to each of the claimed conditions was reasonable.
The Tribunal next considered the fourth Deledio step. In doing so the Tribunal found that none of the events that the applicant relied upon had in fact happened. It rejected the applicant's case that he had an anxiety disorder and post traumatic stress disorder when he was in Ubon. Specifically, the Tribunal found:
a)that the applicant did not witness a Thai guard being shot as he alleged;
b)that his claim about being present when an American serviceman was incinerated in a brothel fire was false;
c)that he and the vehicle he was driving were not fired upon by an RAAF Sabre aircraft as he alleged;
d)that an armed man did not jump onto his truck as he alleged;
e)that the applicant's complaints of penile problems were not attributable to being doused with jet fuel, but more likely were due to the applicant's exposure to sexually transmissible disease.
On the basis of its factual findings, the Tribunal decided that it was satisfied beyond a reasonable doubt that there was no sufficient ground for determining that the condition of alcohol abuse was related to the applicant's operational service. The Tribunal further found that the applicant did not suffer from post traumatic stress disorder.

The grounds of appeal

The grounds relied upon by the applicant are specified as follows:
(a)The grounds relied upon by the applicant are:
(i)That the Tribunal misapplied the requirement as referred to in White v Repatriating Commission (2004) 39 AAR 67 and/or Stoddart v Repatriation Commission (2003) 77 ALD 67 where the Tribunal mistakenly held that there was a need for a personal attack or threat upon the applicant for the applicant to have suffered a severe psychosocial stressor. The applicant experienced events or an event of severity sufficient to constitute a severe psychosocial stressor. The applicant experienced an attack and/or there was a real and present danger of such attack to constitute a threat. The Tribunal failed to apply the principles in the assessment of that which constitutes a severe psychosocial and severe stressor and failed in its determination of the extent of the severity of these events required to fulfil the relevant Statement of Principles for Post Traumatic Stress Disorder, Alcohol Dependence and/or Abuse and the anxiety disorder SoP.
(ii)The Tribunal failed din its decision-making process to properly apply the steps in Deledio when determining whether there was evidence sufficient to establish the third step in the determination as to whether there was a reasonable hypothesis taking into account all of the evidence, that the applicant suffered the disorder as referred to in Instrument No. 1 of 2000, namely generalised anxiety disorder, Instrument No. 76 of 1998. Alcohol Dependence or Abuse and Instrument No. 3 of 1999 Post Traumatic Stress Disorder, such that the Tribunal:
(1)   has ~~applied the "all features" of the generalised anxiety disorder~~ with respect to the definition of generalised anxiety disorder ~~and~~ ignored the medical diagnosis;
(2)   has misapplied the Act pursuant to s119(h) in finding there were no contemporaneous medical records;
(3)   did not properly apply the Deledio steps;
(4) did not provide sufficient reason as required by s43 AAT Act for ignoring medical evidence.
(5)   did not properly apply the Deledio steps.
(iii)The Tribunal failed to consider all evidence and hence failed to take into account relevant considerations in determining whether the Applicant suffered from Post Traumatic Stress Disorder or Alcohol Abuse and Dependence.
(iv)Further, the Tribunal on its face in the reasons misapplied the criteria for the onus of proof under the Act, confusing the requirement as set out in s120, with the concept referred to in s120(6).

Discussion

The first purported question of law is not a question of law. On its face it is an assertion that the Tribunal made an error of law in that it failed to properly apply the law and that it misinterpreted the test in the relevant Statement of Principles. Having regard to the grounds relied upon by the applicant, what seems to be asserted is that as a matter of law, all of the stressors pointed to by the applicant could have been found to have been severe psychosocial stressors and that in rejecting them as such at the third step of the Deledio process, the Tribunal fell into error.
Of the stressors identified by the applicant, the only items that were not rejected by the Tribunal's findings of credibility against the applicant were those relating to the proximity of the applicant's living quarters to the airstrip and the fuel dump. The Tribunal's finding that those matters did not amount to a severe psychosocial stressor was plainly open to it on the evidence. No question of law is involved. The Tribunal has simply made an assessment of the evidence before it and determined that the applicant's experience of residing close to fuel depots did not amount to a severe psychosocial stressor for the purposes of the relevant SoP.
The grounds relied upon in paragraph 4(a)(ii) of the applicant's amended notice of appeal are not made out, and in any event do not disclose a question of law. The Tribunal did not ignore the medical evidence of Dr Carter (who in 2005 diagnosed the applicant as having a generalised anxiety disorder some 38 years earlier). The Tribunal chose not to accept it for the reasons it expressed, namely that her evidence did not "provide any basis of Mr Thomas suffering from all of the features of a generalised anxiety disorder within the meaning of the definition of 'generalised anxiety disorder'…". Even at the third stage of the Deledio process, that course was open to the Tribunal because its task was to determine if, on the whole of the evidence before it, the facts were consistent with the SoP and the applicant's hypothesis therefore reasonable.
Moreover, the Tribunal preferred the evidence of Dr Kingsmill to the effect that the applicant did not suffer from post traumatic stress disorder. It did so for the reasons that it explained, namely that Dr Carter’s diagnosis of post traumatic stress disorder was made on the basis of incorrect facts. No other medical practitioner had made a diagnosis of post traumatic stress disorder. The Tribunal’s findings were plainly open to it and its reasons for making that finding appear on the face of its reasons (esp. at paras. 133 – 137 of the Tribunal’s reasons).
The applicant argues that the Tribunal misapplied s.119(h) of the VE Act "in finding that there were no contemporaneous medical records". The allegation is made in the context of the Tribunal's finding that the evidence did not provide any basis to find that the applicant was suffering from the features of a generalised anxiety disorder during a two year period following the onset of his acute penile problems. The Tribunal made no such finding. In fact, the Tribunal had regard, in a careful and detailed way, to the applicant's medical records while he was at Ubon. If nothing else, the questions asked of the medical witnesses during the hearing make that clear. What the Tribunal in fact found was that: "There are no contemporaneous medical records that support the view that Mr Thomas was suffering from all the cumulative features in the definition". That finding was open on the evidence.
The second purported question of law is not a question of law, but rather another assertion that the Tribunal erred in its application of the Deledio steps. In my view it did not do so. It followed the steps and found that in each of the claimed conditions the facts, or some of them, were consistent with the relevant SoPs. The applicant failed because ultimately the Tribunal did not believe the applicant's evidence in crucial respects.
The third asserted question of law asserts that the Tribunal applied "the incorrect principles in the analysis of the onus of proof.". Again, no question of law is posed as the question is framed. The grounds relied upon assert that the Tribunal misapplied the "criteria for the onus of proof under the Act, confusing the requirement as set out in s 120 with the concept referred to in s 120(6)."
The fourth step of the Deledio steps is the appropriate time for the Tribunal to make findings of fact in relation to the claims before it. Far from the Tribunal placing any onus upon the applicant to prove its case, for the reasons expressed by the Tribunal, it could not find that many of his claims were true. That was not a finding made lightly by the Tribunal. The Tribunal carefully had regard to all of the evidence, including the evidence of Writeway Research and the applicant's own previous (inconsistent) evidence on various occasions. The Tribunal was not bound to accept the applicant's evidence in all, or in any respects.
In my view no error of law, let alone a question of law, has been demonstrated.

Conclusion

No questions of law arise on this appeal. The appeal must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Deputy Associate: S. Haysom

Date: 28 April 2006