FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2015] FCAFC 36

THE COURT ORDERS THAT:

1.    The Appellant is granted leave to further amend the Amended Notice of Appeal by adding ground of appeal 4D(a) substantially in the terms of that paragraph in the proposed Further Amended Notice of Appeal filed 7 November 2014.

2.    The appeal is allowed.

3.    Paragraph 2 of the Orders of Justice Mortimer made 12 June 2014 be set aside and in lieu thereof order that:

(a)    the decision of the Administrative Appeals Tribunal dated 27 June 2013 be set aside in so far as it affirmed the decisions under review; and

(b)    the matter is remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.

4.    The parties are directed to file and serve submissions on costs within fourteen days.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        The appellant, Ronald John Summers, appeals from the judgment of a single judge of this Court (Summers v Repatriation Commission [2014] FCA 608). The primary judge dismissed Mr Summers’ application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“Tribunal”) given on 27 June 2013 (Summers v Repatriation Commission [2013] AATA 439). Her Honour also dismissed a cross-appeal by the respondent, the Repatriation Commission (“Commission”).

2        In the decision challenged in the appeal the Tribunal:

(a)    affirmed the decision of the Veterans’ Review Board (“VRB”) that Mr Summers did not suffer from war-caused alcohol dependence. It was common ground that he suffered from alcohol dependence and the issue was whether it was war-caused under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). In broad summary the Tribunal decided there was no reasonable hypothesis connecting Mr Summers’ operational service with his alcohol dependence as the asserted hypothesis did not fit with the applicable Statement of Principles (“SoP”) under ss 120(3) and 120A of the Act;

(b)    decided that Mr Summers suffered from war-caused post-traumatic stress disorder (“PTSD”) setting aside the VRB’s decision in that regard; and

(c)    affirmed the VRB’s decision that Mr Summers did not qualify for the intermediate or special rate of pension under the Act, largely because his alcohol dependence was not war-caused. In short, it decided that Mr Summers’ non-war-caused alcohol dependence played a part in preventing him from continuing to undertake remunerative work and he therefore did not satisfy the “alone” test in ss 23(1)(c) or 24(1)(c) of the Act.

The background facts and procedural history

3        The following account of the facts is derived from the findings of the Tribunal, as set out in Summers v Repatriation Commission [2013] AATA 439 and, earlier, in Summers v Repatriation Commission [2010] AATA 803 (see para [11] below).

4        Mr Summers left school in year 10 after which he worked in the retail industry before he was called up for National Service. He was posted to the Ordnance Corps and when the opportunity to serve in Vietnam arose he volunteered. He served in Vietnam from 24 June 1968 to 14 October 1968 and was assigned to duty in the Other Ranks canteen at Vung Tau where he was the sole person operating the bar. In October 1968 he returned to Australia on compassionate leave so that he would be able to attend his father’s funeral. In total he served in the Australian Army from 12 July 1967 to 11 July 1969.

5        Prior to the present dispute the Commission had accepted that Mr Summers suffers from war-caused sensorineural hearing loss, chronic bronchitis and emphysema and lumbar spondylosis. As a result Mr Summers has been in receipt of a disability pension at 100% of the general rate for some time.

6        On 10 December 2007 Mr Summers made an application in which he sought that the Commission accept that he suffered from war-caused PTSD and war-caused alcohol dependence, and that he was eligible for an increase in his pension to the special rate of pension.

7        His claims of war-caused PTSD and alcohol dependence rely on five events in the course of his service but it is unnecessary to deal with four of these events because they are not central to the Tribunal’s decision or the reasons of the primary judge.

8        The event which is central in the application occurred in Australia on 26 October 1968 while he was on compassionate leave following his father’s death. He was shortly due to return to Vietnam and was drinking with a fellow soldier at Watson’s Bay Hotel in Sydney when they became involved in an altercation with a group of sailors. The evidence is unclear as to what happened next, but an investigating officer’s report suggests that Mr Summers was involved in a brawl with a sailor or sailors during which he and a sailor fell over a cliff onto a rock ledge below while affected by alcohol (“the Watson’s Bay event”).

9        Although Mr Summers does not properly recall what happened and there were inconsistencies in his account, he states that he was struck by the branch of a tree and then thrown over the cliff by the sailors. In any event, he awoke the next day in hospital with life-threatening injuries to his neck, head and back and he underwent a splenectomy. He states that he has no recollection after he was struck but he was told while he was in hospital that he was found the next morning, unconscious at the base of the cliff, and that he was fortunate he had not been swept out to sea. The serious physical injuries Mr Summers suffered in this incident meant that he could not return to Vietnam and he served the rest of his national service working at Victoria Barracks in Melbourne.

10        The Commission did not accept Mr Summers’ claim of war-caused PTSD and/or alcohol dependence and refused his application for a special rate pension. Mr Summers sought review by the VRB in two separate applications, both of which the VRB refused. On 12 June 2009 Mr Summers appealed the VRB’s decisions to the Tribunal.

11        On 20 October 2010, the Tribunal affirmed the VRB decisions (Summers v Repatriation Commission [2010] AATA 803). It decided that Mr Summers did not suffer from either war-caused PTSD or alcohol dependence, and that he was not eligible for the special rate pension.

12        On 16 November 2010 Mr Summers applied to this Court by way of an appeal under s 44 of the AAT Act. A single judge dismissed the appeal on 8 November 2011 (Summers v Repatriation Commission [2011] FCA 1451).

13        Mr Summers appealed to the Full Court on 29 November 2011. On 31 July 2012 the Full Court set aside the orders of the primary judge and remitted the matter back to the Tribunal for rehearing (Summers v Repatriation Commission (2012) 130 ALD 32 (“Summers No 1”) per Gilmour, Perram and Jagot JJ).

14        After hearing Mr Summers’ application afresh the Tribunal made the decision of 27 June 2013 we summarised at [2] above.

15        The appeal relates to the Tribunal’s decision and to the failure of the primary judge to correct the Tribunal’s alleged errors of law. It primarily concerns the proper application of s 120(3) and the operation of the applicable SoP for alcohol dependence.

16        In our view the appeal should be allowed on two grounds.

17        First, the appeal should be allowed on the ground that on the material raised before it the Tribunal failed to consider the applicability of clause 6(a) of the applicable SoP. We are not satisfied that the Tribunal considered Mr Summers’ argument in this regard. This ground was not raised before the primary judge, and for the reasons we explain, we have granted leave for Mr Summers to file and serve a Further Amended Notice of Appeal.

18        Second, we consider that the Tribunal erred in its approach to the material regarding Mr Summers’ alcohol dependence and the applicable SoP, and in our respectful view the primary judge erred in failing to correct this error. Unfortunately, it must be said that the failure of Mr Summers’ solicitors, De Marchi and Associates to adduce evidence before the Tribunal which was specifically directed at the requirements of the applicable SoP, combined with a lack of clarity in the submissions on Mr Summers’ behalf, made the Tribunal’s factual enquiries unnecessarily difficult. As the primary judge said (at [67]) the written statements by Mr and Mrs Summers were at a level of generality not apt to assist the Tribunal in making the necessary findings. The Full Court in Summers No 1 pointed to similar deficiencies in the evidence adduced on Mr Summers’ behalf as well as a lack of clarity in submissions (at [38]-[39], [46] and [60]). Although Mr Summers succeeded in that appeal the Full Court said (at [78]) that his success was unrelated to the submissions made on his behalf which were of no assistance to the Court.

19        At the stage of the enquiry under s 120(3) around which the appeal turns, the Tribunal was required to decide whether the material before it pointed to or raised a hypothesis consistent with the applicable SoP. In our view it misconceived its task and asked itself the wrong question.

20        The matter must, again, be remitted to the Tribunal for rehearing according to law. On remittal the Tribunal should have regard to the reasons herein and the hearing be directed to the following issues:

(a)    Whether on a proper application of ss 120(3) and 120A of the Act and the applicable SoP Mr Summers’ accepted alcohol dependence is war-caused? In dealing with this issue Mr Summers and those advising him are to be directed to adduce evidence aimed, as far as possible, at the specific requirements of the applicable SoP.

(b)    Having regard to the Tribunal’s decision on the issue of whether Mr Summers suffers from war-caused alcohol dependence, whether on a proper application of ss 23 or 24 of the Act Mr Summers qualifies for the intermediate or special rate of pension.

21        We observe that, given the significance of Mr Summers’ alcohol dependence to his accepted inability to continue to engage in remunerative work, in practical terms his application for a special rate pension is likely to turn on whether his alcohol dependence is found to be war-caused. For the avoidance of doubt, we note that there is no requirement for the Tribunal to rehear the question of whether Mr Summers suffers from war-caused PTSD, and the Tribunal’s finding in that regard stands.

THE LEGISLATIVE FRAMEWORK AND RELEVANT PRINCIPLES

The framework and principles regarding war-caused injury or disease

22        Section 13(1) of the Act provides for the Commonwealth’s liability to pay pensions in accordance with the Act where a veteran is “incapacitated from a war-caused injury or a war-caused disease”.

23        Section 9(1) provides that an injury or disease suffered by a veteran shall be taken to be war-caused if:

(a)    the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)    the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

It is uncontentious that Mr Summers’ service in Vietnam together with his compassionate leave in Australia until 28 October 1968 constitutes “operational service”, which is “eligible war service” under the Act. Nor is it contentious that he is a “veteran” for the purposes of the Act: see ss 5C(1), 7 and 6A-6F.

24        The causal questions in s 9(1)(a) or (b) are to be answered having regard to s 120 of the Act, as affected by s 120A. Subsections 120(1) and (3) provide:

120    Standard of proof

(1)    Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(3)    In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)    that the injury was a war-caused injury or a defence-caused injury;

(b)    that the disease was a war-caused disease or a defence-caused disease; or

(c)    that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affection by section 120A.

…

25        Section 120(1) means that where a veteran who has rendered operational service claims a pension in respect of incapacity from injury or disease the veteran has the benefit of a reverse criminal law standard of proof in relation to whether the injury or disease is war-caused. The section does not go so far as to impose a presumption that the veteran’s injury or disease is war-caused but there is no onus on a claimant to prove that it is: see s 120(6); Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 98 per Beaumont, Hill and O’Connor JJ.

26        Section 120(3) operates so that, if the material before the Commission does not raise a “reasonable hypothesis” connecting the veteran’s injury or disease with the circumstances of his or her service, then the Commission shall be satisfied beyond reasonable doubt that it is not war-caused. That is, in the absence of a “reasonable hypothesis” a sufficient causal connection is deemed not to exist.

27        The reasonable hypothesis concept in s 120 was introduced by s 16 of the Repatriation Legislation Amendment Act 1985 (Cth) and then substantially re-enacted in the Act. It was brought in as a response to a perceived loosening in the criteria for successful veterans’ claims following the decision in Repatriation Commission v O’Brien (1985) 155 CLR 422: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-414 per Mason CJ, Deane and McHugh JJ.

28        In East v Repatriation Commission (1987) 16 FCR 517 at 532-533 per Jenkinson, Neaves and Wilcox JJ the Full Court explained the reasonable hypothesis concept in the following terms:

The adoption of Brennan J’s notion of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link - even prima facie - as a fact. The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:

“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.

…

The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status.”

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. (Emphasis added)

29        In 1994 another amendment to the Act introduced s 120A which brought in the use of Statements of Principles drafted by expert medical bodies in respect of particular medical conditions so as to regulate the soundness of the medical and scientific basis of a veteran’s asserted hypothesis. It relevantly provides:

120A    Reasonableness of hypothesis to be assessed by reference to Statement of Principles

…

(3)    For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)    a Statement of Principles determined under subsection 196B(2) or (11); or

(b)    a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

…

It provides that a hypothesis connecting an injury or disease with a veteran’s service is only “reasonable” if it fits with or is consistent with, the applicable SoP.

30        The introduction of s 120A did not otherwise alter the reasonable hypothesis concept. We respectfully agree with Heerey J’s explanation in Deledio v Repatriation Commission (1997) 47 ALD 261 at 273-275 (“Deledio v Repatriation Commission”) at first instance, approved by the Full Court, where his Honour said:

…the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes.

…

…it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can “uphold” the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.

… The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)    contrary to proved or known scientific facts;

(ii)    obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)    (since 1994) inconsistent with (not upheld by) an applicable SoP.

(Emphasis added)

31        The rationale for this approach is clear. The Act has long given special recognition to the risk of injury or death to which service men and women are exposed and it contains provisions for the resolution of claims which are unusually favourable to veterans. Section 120(1) is such a provision, as it provides not only that a veteran’s claim that he or she suffers from a war-caused injury or disease be disproved by the Commission but that it be disproved beyond reasonable doubt. In a claim of war-caused incapacity the stage at which fact finding is to occur may therefore become of central importance. As Wilcox J observed in Dixon v Repatriation Commission (1999) 59 ALD 315; [1999] FCA 582 at [25]:

…If belief is addressed at the step 3 stage [of the Deledio process], there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant’s story is probably true… This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits within the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification.

(Emphasis in original)

32        In Deledio at 97-98 the Full Court described a four step process for making a decision under s 120 regarding whether a veteran’s injury or disease is war-caused pursuant to the Act (“the Deledio process”). Apart from one qualification (which is not relevant in the case before us) this four step process has been applied in numerous single judge and appellate decisions. The Court said:

(1)    The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(2)    If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

(3)    If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

(4)    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In doing so, no question of onus of proof or the application of any presumption will be involved. (Emphasis added)

33        In construing the Act it is necessary to keep in mind that it is intended to operate beneficially for veterans: see Deledio v Repatriation Commission at 262-263; Repatriation Commission v Richmond [2014] FCAFC 124 (“Richmond”) at [92] per Middleton, Murphy and Rangiah JJ.

The applicable Statement of Principles

34        It is uncontentious that there is a SoP in force in relation to alcohol dependence, namely the “Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009” (“SoP No 1 of 2009”). We will set this out later. The Tribunal also referred to an earlier version of the SoP for alcohol dependence, SoP No 17 of 2008, but the Tribunal and the primary judge did not need to consider it and we will not set it out.

35        It is also unnecessary to set out the applicable SoP for PTSD as there is no appeal against the finding that Mr Summers suffers from war-caused PTSD.

The framework applicable to an application for the special rate of pension

36        In Repatriation Commission v Alexander (2003) 75 ALD 329 at [9]-[10] Spender J usefully summarised the legislative scheme for veterans’ pensions in the following terms:

[9]    The regime for the payment of pensions to veterans provided for by the Act is as follows:

    the Commonwealth is liable to pay a pension where a veteran has become incapacitated from war-caused injury or war-caused disease (s 13);

    a veteran may make a claim for a pension (s 14);

    a veteran who is in receipt of a pension may make an application for an increase in the rate of pension (s 15);

    the Repatriation Commission is required to consider and determine the claim or application of a veteran (s 18).

    the Repatriation Commission is required to consider the rate or rates at which a pension would have been payable during the assessment period, and also the rate at which the pension is payable: s 19(5C). The assessment period commences on the day on which a claim or application is received, and ends on the day when the claim or application is determined: s 19(9).

[10]    A pension under the Act may be paid at the general rate (s 22), the intermediate rate (s 23), or the special rate (s 24).

37        Section 24 of the Act relevantly provides:

24    Special rate of pension

(1)    This section applies to a veteran if:

(aa)    the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)    the veteran had not yet turned 65 when the claim or application was made; and

(a)    either:

(i)    the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; …

        … and

(b)    the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c)    the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;

…

(2)    For the purpose of paragraph (1)(c):

(a)    a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)    the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)    the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)    where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

…

38        The Tribunal dealt with Mr Summers’ application for the special rate pension under s 24 and also considered whether he was eligible for an intermediate rate pension under s 23. Sections 23 and 24 are in essentially the same terms and we deal with the appeal by reference to s 24. Accordingly we do not set out s 23 or recount the Tribunal’s decision on that section.

THE TRIBUNAL DECISION

39        At [5] the Tribunal identified three issues arising on the review, namely:

(1)    Does Mr Summers suffer from PTSD? If so, is the condition war-caused?

(2)    Is Mr Summers’ alcohol dependence war-caused?

(3)    Does Mr Summers qualify for the intermediate rate pension or special rate pension?

The claim of war-caused PTSD

40        There is no appeal before us arising out of the primary judge’s decision to uphold the Tribunal’s determination that Mr Summers suffered from war-caused PTSD. It is not necessary to set out much of the Tribunal’s decision in that regard but some of it also goes to his claim of war-caused alcohol dependence.

41        Mr Summers relied on five events which occurred during his three and a half months’ service in Vietnam and while he was on compassionate leave in Australia to underpin his claim of war-caused PTSD. However, the Watson’s Bay event was central to the Tribunal’s decision.

42        The Tribunal set out the lay evidence about the Watson’s Bay event as follows (at [17]-[24]):

[17] The fifth event concerned an alleged assault near Watson’s Bay, Sydney on 26 October 1968, when Mr Summers was found at the bottom of a cliff after an altercation with a group of sailors (the Watson’s Bay event).

[18] 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.

[19] 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.

[20] 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.

[21] Mr Summers stated that he was never interviewed by military authorities about the incident, and that no other person was found with him at the base of the cliff the next day. He was not aware of any charges or disciplinary action against the sailors, but believed that they threw him over the cliff and left him there. He agreed that at the Tribunal’s first hearing he stated: I can remember them coming at me and I can remember, sort of, a flash then that was it. I don’t know whether I got king hit with a branch or … He also agreed that before the Watson’s Bay event he had been looking forward to returning to Vietnam, as he enjoyed his role operating the canteen and had settled in well at Vung Tau …

…

[23] Mrs D Summers told the Tribunal that she has been married to Mr Summers since 1969. In a written statement dated 10 January 2013 she said that when she was told about the incident she drove to Sydney and at the hospital she observed him to be seriously injured and in great pain. He was in and out of consciousness for some time. She said she remained in Sydney for about two weeks while he was in intensive care.

[24] 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.

43        Following a review of the medical evidence (at [25]-[32]) the Tribunal accepted (at [33]-[36]) that Mr Summers had an altercation with some sailors at Watson’s Bay on 26 October 1968 when he either fell or was pushed over a cliff, that he was not discovered until the following day, and that he suffered life-threatening injuries as a result. It found that Mr Summers was exposed to a traumatic event in that he experienced an event that involved actual or threatened death or serious injury, and that his response involved intense fear, helplessness or horror. The Tribunal found that Mr Summers satisfied the DSM-IV diagnostic criteria and suffered from PTSD.

44        Then the Tribunal used the Deledio process and concluded that Mr Summers’ PTSD was war-caused (at [37]-[47]).

The claim of war-caused alcohol dependence

45        It was common ground before the Tribunal that Mr Summers suffered from alcohol dependence, and the issue was whether it was war-caused.

46        The Tribunal set out the evidence as to Mr Summers’ alcohol consumption (at [48]-[50]) in the following terms:

[48] Mr Summers told the Tribunal that before joining the army he was a light social drinker, but that when he was assigned to operate the canteen at Vung Tau he began to drink to excess, especially as he did not pay for drinks and had unlimited access to beer. Mr Summers also noted that the weather was hot and humid, and drinking helped him sleep. He said that he had a good job at the canteen, was his own boss and no-one bothered him. He could wake up at 11 am each day. Mr Summers stated that he could drink whenever he wanted to, and was soon consuming about 18 to 24 cans of beer each day. Mr Summers stated that he continued to drink heavily after leaving the army and for 20 years he consumed about 10 pots of beer each day at a hotel and then continued drinking at home. He conceded that his drinking caused him to become angry and abusive, which led to marriage problems. He said he has reduced his consumption to about six cans of beer each night.

[49] Mrs Summers confirmed that Mr Summers was a light social drinker before joining the army and that when he returned to Australia in October 1968 for his father’s funeral he was a changed person. He arrived drunk and has been drinking since then. She stated that excessive alcohol consumption has caused enormous difficulties in their relationship and that alcohol was a factor in Mr Summers being unable to be located at the time of the birth of their second child in 1976. Mrs Summers stated that they also lost a furniture franchise in 1985 because of his alcohol dependence, despite Mr Summers’ success as a salesperson. Mrs Summers explained that Mr Summers had completed numerous alcohol abuse courses but his drinking still affects him and his family relationships.

[50] In his reports, Dr Strauss stated that Mr Summers’ alcohol consumption increased greatly while he was in Vietnam because of the nature of his work in operating a bar seven days per week and associating with people who were drinking. In a further report dated 16 January 2013 Dr Strauss said that Mr Summers has developed a tolerance for excessive alcohol consumption and has an ongoing desire to drink, despite the associated family and other problems. Dr Velakoulis took a family history of heavy drinking by Mr Summers’ father and brother, and concluded that during his service in Vietnam Mr Summers’ alcohol consumption escalated significantly because of the threats he encountered (referring to the canteen event and the accommodation event) and his bar work role. Dr Pomorin stated that Mr Summers told him ...I mainly drank over there because it was more than accessible.

47        The Tribunal used the Deledio process in determining whether Mr Summers’ alcohol dependence should be accepted as war-caused. In the first stage of the Deledio process the Tribunal decided that the evidence pointed to a hypothesis connecting the circumstances of Mr Summers’ operational service with his alcohol dependence (at [51]). He therefore satisfied that stage. In the second stage of the Deledio process the Tribunal held that there was an applicable SoP in place, being SoP No 1 of 2009 (at [52]-[53]). He therefore satisfied that stage too.

48        The appeal turns on the Tribunal’s approach to the third stage of the Deledio process. In this stage the Tribunal was required to form an opinion as to whether Mr Summers’ asserted hypothesis was consistent with the template in the SoP and therefore a reasonable one.

SoP No 1 of 2009 concerning alcohol dependence and alcohol abuse

49        The Tribunal set out the relevant parts of SoP No 1 of 2009 (at [52] and [55]). It relevantly provides:

…

Kind of injury, disease or death

3    (a)    This Statement of Principles is about alcohol dependence and alcohol abuse and death from alcohol dependence and alcohol abuse:

    (b)    For the purposes of this Statement of Principles:

“alcohol dependence” means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1)    Tolerance, as defined by either of the following:

(a)    a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or

(b)    markedly diminished effect with continued use of the same amount of the alcohol.

(2)    Withdrawal, as manifested by either of the following:

(a)    the characteristic withdrawal syndrome for the alcohol; or

(b)    the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.

(3)    The alcohol is often taken in larger amounts or over a longer period than was intended.

(4)    There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.

(5)    A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.

(6)    Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

(7)    The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

…

Factors that must be related to service

5    Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6    The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence … with the circumstances of a person’s relevant service is:

(a)    having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)    experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

…

(d)    experiencing the death of a significant other within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(e)    having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

…

(g)    having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(h)    experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse;

…

(j)    experiencing the death of a significant other within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or

(k)    having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical worsening of alcohol dependence or alcohol abuse; …

Factors that apply only to material contribution or aggravation

7    Paragraphs 6(g) to 6(m) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.

…

Other definitions

9    For the purposes of this Statement of Principles:

“a clinically significant psychiatric condition” means any Axis I or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

“a category 1A stressor” means one or more of the following severe traumatic events:

(a)    experiencing a life-threatening event;

(b)    being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)    being threatened with a weapon, being held captive, being kidnapped, or being tortured;

“a significant other” means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;

…

“DSM-IV-TR” means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.

…

50        Clause 3(b) of the SoP was central in the Tribunal’s decision. In order to satisfy the clause the veteran must meet three or more of the seven numbered diagnostic criteria (“factors”) at any time in the same 12-month period.

51        The Tribunal found (at [60]) that Mr Summers developed a tolerance for alcohol by the date of his departure from Vietnam on 12 October 1968, so that he satisfied factor (1) in cl. 3(b) of the SoP. It found however that he did not satisfy most of the other cl. 3(b) factors at all, or at least not in the same 12 month period.

52        For the purpose of identifying whether Mr Summers met any other cl. 3(b) factors at [60] the Tribunal treated 12 October 1968 as the date from which the 12 month period commenced, but at [61] it considered events outside that period. Why it took that approach is unclear. The Tribunal said (at [60]-[62]):

[60] … In respect of the period beginning on 12 October 1968, given a lack of any evidence that Mr Summers was experiencing withdrawal symptoms, Mr Summers did not experience withdrawal within a 12-month period and does not satisfy factor (2). In 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).

[61] Mr Summers continued drinking heavily after his service in Vietnam and demonstrated no desire or unsuccessful efforts to reduce consumption, so he does not satisfy factor (4). There is no material to suggest that Mr Summers spent a great deal of time in activities necessary to obtain the alcohol, use the alcohol or recover from its effects, so he does not satisfy factor (5). There is evidence that Mr Summers left a social event in December 1968 for reasons that included alcohol consumption. There is also evidence from Mrs Summers that Mr Summers was not present at the birth of his second child in 1976 because of his drinking, and that the loss of a business franchise in 1985 was attributable to alcohol. However, on all the material, important social, occupational or recreational activities were not given up or reduced because of alcohol use within the same 12-month period, so Mr Summers does not satisfy factor (6). There is also no persuasive material to lead to a conclusion that Mr Summers continued his alcohol use despite knowledge of a persistent physical or psychological problem that was likely to have been caused or exacerbated by the alcohol, so he does not satisfy factor (7).

[62] Therefore as three (or more) of the SoP diagnostic criteria for alcohol dependence were not met in the same 12-month period following Mr Summers’ service in Vietnam or the Watson’s Bay event, the hypothesis advanced by Mr Summers is not reasonable and does not fit the template of either SoP No. 1 of 2009 or SoP No. 17 of 2008. Therefore, Mr Summers does not satisfy the third step from Deledio and there is no necessity for the Tribunal to consider the fourth step. The Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers’ alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers’ alcohol dependence was war-caused.

53        The appeal in relation to the Tribunal’s rejection of Mr Summers’ claim of war-caused alcohol dependence revolves around the approach the Tribunal took to the cl. 3(b) factors.

The claim to the special rate of pension

54        Having decided that Mr Summers suffered from war-caused PTSD but that his alcohol dependence was not war-caused, the Tribunal turned to ss 23 and 24 of the Act to determine whether he was entitled to payment at rates higher than 100% of the general rate of pension. As indicated, we focus on the Tribunal’s consideration of s 24.

55        The Tribunal approached that issue on the basis that his accepted war-caused medical conditions were bilateral sensorineural hearing loss, chronic bronchitis and emphysema, lumbar spondylosis and PTSD, and that his alcohol dependence was not war-caused.

56        The Tribunal set out the evidence in relation to Mr Summers’ work history and his capacity to engage in remunerative employment (at [65]-[76]) as follows:

[65] … Mr Summers told the Tribunal that after his discharge from the army he returned to the retail industry. He worked for Myer for three years, then Capt’n Snooze for four years, before purchasing a franchise with the company. However, he lost the franchise in 1985 because his alcohol problems prevented him from managing the business properly. He was also having problems with lifting objects and with breathing. He returned to work for retail outlets, working with Stan Cash as a salesperson for five years, Billy Guyatts for three years and back to Stan Cash for two years. In 1995 he took up a sales position with Greensborough Bulk (trading as Betta Electrical) and remained there for 10 years. In a written statement dated 27 November 2007 Mr Summers said that he left on 16 November 2005 because he could not walk up the stairs. He also stated that his back was causing considerable pain and he became angry with staff and customers.

[66] In a written statement dated 6 July 2010, Mr Summers clarified his employment history and said that he was made redundant by Betta Electrical even though he considered himself to be one of the better salespeople. He said that at the time he was not sleeping well, was over-indulging in alcohol, suffered from anxiety and felt angry at the world. He had an aggressive manner with colleagues and his supervisor. He stated his belief that if he had not been suffering from anxiety and alcohol dependence he would still be employed by Betta Electrical.

[67] In oral evidence at the first hearing, Mr Summers reiterated that his breathing difficulties and alcohol problems, plus his anger towards other staff, were the major factors in preventing him from working. He agreed that he learnt after his redundancy that the company had been experiencing financial difficulties and had been placed in receivership in 2006, although he said that a less-qualified salesperson had been appointed to replace him three weeks after he left. In evidence on 5 March 2013, Mr Summers stated that prior to his redundancy he was having difficulty lifting objects because of his breathing problems. He said:

... I just couldn’t handle it in the end. I had to do it because no-one else would help you there anyway. So in the end I just – I was going to see my doctor about it at the end of the year or probably early in January after Christmas cos I didn’t want to let them down over Christmas and before that I knew I got the shaft.

[68] Under cross-examination Mr Summers agreed that he told the VRB on 27 June 2007 that he had considered himself to be retired and that...I couldn’t hack going back to work to the sort of job that I wanted. I didn’t feel like, you know, retraining at that age. He reiterated in evidence that in 2005 he had considered himself retired...in a way, yes, yes. In relation to the redundancy, Mr Summers stated:

They said that they were getting rid of me because the business was bad, and because of the petrol situation. I think it was pretty bad then at the time. That was, I think, the main two reasons. So, “We’ve got to cut down and unfortunately you’ve got to go, Ron”. And I thought, oh well. It was, you know, unfortunate.

[69] In relation to efforts to find alternative employment after his redundancy, Mr Summers agreed that he did not seek remunerative work between the date of his redundancy in 2005 and June 2007, and he had not registered with any employment agencies. He agreed that at the first hearing he told the Tribunal that in 2009 he started to look for work because he was bored at home. On 5 March 2013 he stated:

I probably didn’t want to be retired. I wanted, you know, to do something. So that I looked around, I – that’s when I went into Retravision, a couple of stores really.

[70] Mr Summers acknowledged that he rang a Harvey Norman store and that no-one wanted to employ him because of his age, physical disabilities and the economic situation in the retail industry.

[71] Mrs Summers told the Tribunal that Mr Summers lost his franchise business in 1985 because of alcohol addiction. She said that he also had problems with his back and chest and difficulty in relating to other people. In oral evidence, she confirmed her belief that anxiety and alcohol were the major factors in his redundancy, although she said that he was shocked when he was told of the decision.

[72] Dr R Horsley, occupational physician, stated in a report dated 20 December 2007 that Mr Summers ceased work because of a redundancy. She also said that he was experiencing aggressiveness as a result of alcohol abuse and PTSD. Dr Horsley concluded that Mr Summers would have great difficulty returning to the workforce because of his respiratory condition, his age and lack of computer skills, and that he does not have a realistic capacity to work.

[73] Dr A Sillcock, occupational physician, stated in a report dated 28 November 2007 that Mr Summers’ accepted condition of chronic bronchitis and emphysema is the main reason that he is unable to work, and that he is not capable of working more than eight hours per week. She told the Tribunal that the sensorineural hearing loss does not affect his ability to work, although his back condition prevents him from lifting heavy objects.

[74] Dr Strauss agreed that Mr Summers gave up working because of respiratory problems rather than alcohol abuse, but that from a psychiatric perspective he is capable of undertaking remunerative work, subject to any physical incapacity.

[75] In his report dated 23 June 2008 Dr Velakoulis stated that Mr Summers would not be able to work for more than eight hours per week as a salesperson. He said:

It would also seem that in addition to his COPD and lumbar back problems, his PTSD and alcohol dependence were quite significant in the deterioration of his sales career leading to him eventually being offered a redundancy in 2005. The factors affecting his work capability would appear to be his alcohol dependence (50%) and chronic PTSD (50%).

[76] In an Employer’s Questionnaire completed by Mr Summers’ former employer on 31 March 2006, the employer stated that Mr Summers had ceased work on 16 November 2005 due to an involuntary redundancy.

57        The Tribunal then turned to the requirements of s 24(1)(c), utilising the four questions distilled from that section in Flentjar v Repatriation Commission (1997) 48 ALD 1 (“Flentjar”) at 4-5 per Branson J (with whom Beaumont and Merkel JJ agreed), as follows:

(1)    What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?

(2)    Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

(3)    If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4)    If the answer to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

58        The Tribunal’s answers to the first two Flentjar questions are not the subject of appeal. In respect of the first Flentjar question the Tribunal held (at [78]) that Mr Summers was undertaking remunerative work as a “retail salesperson”. In respect of the second Flentjar question the Tribunal held (at [79]) that there was no dispute on the material before it that Mr Summers was prevented from continuing to undertake his work as a retail salesperson by reason of his war-caused conditions.

59        In dealing with the third Flentjar question the Tribunal was required to consider the “alone” test in the first limb of s 24(1)(c). At [80] the Tribunal:

(a)    accepted Dr Horsley’s evidence about the impact of aggressiveness resulting from Mr Summers’ alcohol abuse and his psychological condition, which it considered was strongly supported by the evidence from Mr Summers and Mrs Summers;

(b)    accepted Mrs Summers’ evidence that anxiety and alcohol use were the major factors in Mr Summers being made redundant from Betta Electrical. It said this evidence was consistent with Mr Summers’ written statement of 6 July 2010 that if he had not been suffering from anxiety and alcohol dependency he would still be employed by Betta Electrical and consistent too with the evidence of Dr Velakoulis.

60        Unsurprisingly given the evidence as to his excessive drinking, the Tribunal found that Mr Summers’ non war-caused alcohol dependence had contributed significantly to his incapacity. It treated the fact that he was made involuntarily redundant from Betta Electrical and thereafter regarded himself as retired as important factors in his ceasing his former remunerative work. The Tribunal answered “no” to the third Flentjar question, deciding that Mr Summers’ war-caused conditions were not the only factors preventing him from continuing to undertake the remunerative work he was previously undertaking.

61        Turning then to s 24(2)(b) of the Act, the Tribunal accepted (at [85]) Mr Summers’ evidence that in 2009 he made an approach to Retravision and a telephone call to a Harvey Norman store seeking employment. The Tribunal concluded that in making these approaches, made four years after he was made redundant, Mr Summers was not genuinely seeking to engage in remunerative employment. The Tribunal also accepted Mr Summers’ evidence that the stores did not want to employ him because of his age and the financial state of the retail industry at that time, and it was not satisfied that Mr Summers’ incapacity from his war-caused conditions was the “substantial cause” of his inability to obtain remunerative work.

62        In relation to s 24(2)(a), the Tribunal accepted Mr Summers’ evidence that he had intended to work through the 2005 Christmas period before ceasing work but was instead made involuntarily redundant in November 2005. It therefore found that he did not cease work at the time due to his incapacity from a war-caused condition and he could not be taken to have suffered a loss of salary or wages (or earnings on his own account) by reason of his incapacity.

63        The Tribunal held that Mr Summers did not satisfy s 24 of the Act and was not eligible for the special rate of pension. The Tribunal also held that Mr Summers did not satisfy s 23 of the Act and was not eligible for the intermediate rate of pension.

THE PRIMARY JUDGMENT

64        Mr Summers’ Amended Notice of Appeal challenged the Tribunal’s conclusions that:

(a)    his alcohol dependence was not war-caused under s 120 of the Act and the applicable SoP; and

(b)    he was not entitled to either an intermediate or special rate pension under ss 23 or 24 of the Act.

The claim of war-caused alcohol dependence

65        In relation to the claim of war-caused alcohol dependence Mr Summers’ Amended Notice of Appeal posed four questions of law, as follows:

1.    Did the Tribunal correctly interpret and apply the Statement of Principles for Alcohol Dependence No 1 of 2009?

(a)    Did the Tribunal correctly interpret and apply factor (5) of cl. 3(b) of SoP No 1 of 2009 in deciding that where “a great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects” the Tribunal must make an express finding as to an exact unit of time spent by a veteran to obtain alcohol, such as time spent per day or per week?

(b)    Did the Tribunal fail to take into account relevant considerations in deciding that Mr Summers did not meet factor (5) of cl. 3 (b) of SoP No 1 of 2009 and had not spent “a great deal of time in activities necessary to obtain the alcohol, use the alcohol or recover from its effects”?

(c)    Did the Tribunal correctly interpret and apply factor (6) of cl. 3 (b) of SoP No 1 of 2009 in so far as it held that a veteran must “give up or reduce” important social and occupational activities and recreational activities or two of them rather than just one of those kinds of activities?

(d)    Did the Tribunal correctly interpret and apply factor (7) of cl. 3 (b) of SoP No 1 of 2009 and s 120(6) of the Act by requiring Mr Summers to prove or persuade the decision-maker that there was “persuasive material” before it?

(e)    Did the Tribunal correctly interpret and apply factor (7) of cl. 3 (b) of SoP No 1 of 2009 and s 120(3) of the Act in so far as it satisfied itself that there was no “persuasive material” of the veteran’s “alcohol use is continued [sic] despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol”, rather than satisfying itself that the material did not disprove this beyond reasonable doubt?

2.    Did the Tribunal make a finding based on no evidence that there was a “lack of any evidence” that the veteran was taking “alcohol in larger amounts or over a longer period than was intended” and that the veteran therefore did not meet factor (3) of cl. 3(b) of SoP No 1 of 2009 for alcohol dependence?

3.    Did the Tribunal make a finding based on no evidence when it found that Mr Summers “demonstrated no desire … to reduce consumption” and that Mr Summers therefore did not meet factor (4) of cl. 3 (b) of SoP No 1 of 2009?

4.    Did the Tribunal provide adequate and sufficient reasons for its decision on material findings of fact and law in finding that factors (3), (4), (6) and (7) of cl. 3 (b) of SoP No 1 of 2009 were not met?

66        First, Mr Summers contended that the Tribunal erred in imposing a 12-month time limit under cl. 3(b) of the SoP which ran from the time it found the first cl. 3(b) factor to be present on 12 October 1968, and that it confined itself to that 12-month period. The primary judge did not accept this contention and noted (at [60]) that the Tribunal looked at events throughout the next two decades including Mr Summers’ failure to attend the birth of his child in 1976 because of his drinking and his losing his Capt’n Snooze furniture franchise because of his drinking in 1985.

67        In her Honour’s view the Tribunal correctly appreciated that cl. 3(b) required the decision-maker to be satisfied that three or more of the seven cl. 3(b) factors existed within the same 12-month period and it looked at the material to see if there was any such period within which three or more of the factors manifested themselves. Her Honour saw no error of law in the Tribunal’s approach.

68        Subparagraphs (a) and (b) of appeal question one concerned factor (5) of cl. 3(b) which requires that the veteran spent “a great deal of time” obtaining, drinking and recovering from alcohol. The primary judge said (at [62]) that the Tribunal accepted the evidence of Mr and Mrs Summers about the high level of Mr Summers’ alcohol consumption while Mr Summers was in Vietnam and on his return, as well as their evidence about events in their lives which were affected by his drinking. However, in her Honour’s view the Tribunal did not misunderstand factor (5) and it simply did not find sufficient specificity in the material to satisfy the Tribunal in its “fact-finding task” in relation to that factor.

69        Subparagraph (c) of question one concerned factor (6) of cl. 3(b) which requires that the veteran must have given up important social, occupational and recreational activities because of his or her alcohol use. The primary judge rejected Mr Summers’ contention that the Tribunal took social, occupational and recreational activities as conjunctive rather than disjunctive (at [63]). Her Honour also rejected the contention that the Tribunal had construed this factor too strictly by looking for explicit evidence of too many “activities”, rather than relying on general evidence about Mr Summers becoming distant or shunning social activities. Her Honour considered that the Tribunal had looked at specific evidence of activities that Mr Summers had forgone or avoided but had correctly disregarded those activities where they were not within the same 12 month period.

70        Subparagraphs (d) and (e) of question one concerned factor (7) of cl. 3(b) which requires that the veteran must have continued drinking alcohol despite knowing it was causing him or her persistent physical or psychological harm. The primary judge rejected the contention that the Tribunal impermissibly imposed an onus on Mr Summers (at [64]). In her Honour’s view the Tribunal’s statement that there was no “persuasive material” was nothing more than the Tribunal’s explanation of how it assessed the material in reaching conclusions on the issues before it.

71        In questions two and three Mr Summers contended that the Tribunal made findings based on no evidence. These questions centred around the way the Tribunal went about its fact-finding in relation to the factors in cl. 3(b) and related to its findings:

(a)    at [60], where 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

(b)    at [61], where the Tribunal said “Mr Summers… demonstrated no desire or unsuccessful efforts to reduce consumption, so he does not satisfy factor (4)”.

The primary judge considered (at [66]) that these findings represented the Tribunal’s conclusion having examined the evidence and the Tribunal was simply pointing to gaps in the evidence which showed that Mr Summers did not satisfy the identified cl. 3(b) factors.

72        In question four Mr Summers contended that the Tribunal erred in failing to provide adequate reasons for its conclusion that he did not satisfy three or more cl. 3(b) factors. The primary judge noted (at [67]) that while the Tribunal’s reasons were general this was because significant or material parts of the evidence of Mr and Mrs Summers were at a level of generality which was not apt to assist the Tribunal in making necessary findings for the purposes of cl. 3 (b). Her Honour did not accept that the Tribunal’s reasons failed to comply with its obligations under ss 43(2) and (2B) of the AAT Act.

73        The primary judge found against Mr Summers on each question of law relating to his claim of war-caused alcohol dependence.

The claim to the special rate of pension

74        In relation to Mr Summers’ claim to the special rate of pension the Amended Notice of Appeal posed the following six questions of law:

5    Did the Tribunal correctly interpret and apply the test for “loss” within the meaning of ss 24(1)(c) and s 24(2)(a) of the Act? Specifically, is the test for “loss” one of subjective intent to work at a specific point in time?

6    Did the Tribunal provide adequate and sufficient reasons for its determination of the questions under ss 24(1)(c) and s 24(2)(a) of the Act? Specifically, is it sufficient for the determination of the question of “loss” to refer to Mr Summers’ subjective intent to work at a specific point in time?

7    Did the Tribunal correctly interpret and apply the test of “genuinely seeking to engage in remunerative work” within the meaning of s 24(2)(b) of the Act? Specifically, given that the test for “genuinely seeking to engage in remunerative work” requires a veteran to (1) seek work and (2) do so honestly and in good faith, is the test for “honesty and good faith” determinable merely by the point in time in which Mr Summers sought work rather than by reference to the whole of the circumstances of Mr Summers’ endeavours to seek work?

8    Did the Tribunal provide adequate and sufficient reasons for its determination of the question of “genuinely seeking to engage in remunerative work” within the meaning of s 24(2)(b) of the Act? Specifically, is it sufficient for the determination of the question of “genuinely seeking to engage in remunerative work” to refer to the timing of an attempt to gain work?

9    Did the Tribunal have regard to irrelevant considerations, being (a) Mr Summers’ age and (b) the financial state of the retail industry, in determining the “substantial cause” of Mr Summers’ inability to work within the meaning of s 24(2)(b) of the Act?

10    Did the Tribunal provide adequate and sufficient reasons for its determination of the question of “substantial cause” under s 24(2)(b) of the Act?

(a)    Did the Tribunal provide adequate and sufficient reasons for its determination that “age” was sufficient to prevent Mr Summers from working?

(b)    Did the Tribunal provide adequate and sufficient reasons for its determination that the “financial state of the retail industry” was sufficient to prevent Mr Summers from working?

75        Question five concerned the Tribunal’s interpretation of the word “loss” in ss 24(1)(c) and 24(2)(a) of the Act. In the primary judge’s view the Tribunal did not offer a construction of “loss” and it was unnecessary for the Tribunal to deal with that issue. Because the Tribunal found that Mr Summers did not satisfy the “alone” test in the first limb of s 24(1)(c) the question of “loss” in the second limb did not arise.

76        Mr Summers contended that the Tribunal took an erroneous approach to s 24(2)(a) by examining Mr Summers’ subjective intention and by making a finding about that intention which infected its reasoning about what was the “substantial cause” of his inability to work. Her Honour rejected this contention and said (at [77]) that the Tribunal looked objectively at the causes of Mr Summers’ inability to obtain remunerative work.

77        In relation to s 24(2)(b) the Tribunal found that there were factors other than Mr Summers’ war-caused injuries which caused his incapacity, such as his age and the financial state of the retail industry at the time. In her Honour’s view (at [78]) these findings supported the Tribunal’s conclusion that Mr Summers was deemed by operation of s 24(2)(a) not to be suffering a loss of salary or wages by reason of incapacity from war-caused injury.

78        Question seven concerned the Tribunal’s approach to the test of “genuinely seeking to engage in remunerative work” within the meaning of s 24(2)(b) of the Act. In reliance on the Full Court decision in Leane v Repatriation Commission (2004) 81 ALD 625 (“Leane”) Mr Summers submitted that all he was required to establish was that he had sought work and that he did so honestly and in good faith. He contended that on the evidence he satisfied those two requirements.

79        The primary judge rejected this contention and we deal with this issue in our consideration below. Her Honour also noted that the assessment of the evidence as to whether Mr Summers had been “genuinely seeking to engage in remunerative work” when he:

(a)    rang a Harvey Norman store once; and

(b)    made an approach to Retravision four years after he left Betta Electrical, having considered himself retired;

was a matter for the Tribunal. In her Honour’s view Mr Summers’ submission invited the Court to disagree with the Tribunal’s view of the evidence which was outside its function in an appeal under s 44 of the AAT Act.

80        In question six Mr Summers contended that the Tribunal did not provide adequate and sufficient reasons for its decision on the question of “loss” under ss 24(1)(c) and s 24(2)(a) of the Act. The primary judge rejected this contention and described it as an attack on a step that the Tribunal did not take in its reasons (at [87]) because the question of “loss” did not arise.

81        In questions eight and ten Mr Summers contended that the Tribunal failed to provide adequate reasons for its findings on material questions of fact under s 24(1)(c) and s 24(2). The primary judge rejected these contentions (at [87]) and explained that, while the Tribunal did not go to great lengths to explain its factual conclusions, the Tribunal’s reasons exposed its reasoning process in a way which complied with its obligations under ss 43(2) and (2B) of the AAT Act.

82        Mr Summers alleged in question nine that the Tribunal took irrelevant considerations into account by relying on Mr Summers’ age and the financial state of the retail industry when applying the tests in s 24(1)(c). He contended, first, that s 31 of the Age Discrimination Act 2004 (Cth) (“AD Act”) prohibits discrimination on the basis of age in respect of Commonwealth programs, and that the Tribunal’s consideration of Mr Summers’ age when applying the tests under the Act meant that it engaged in unlawful discrimination. The primary judge rejected this contention as misconceived (at [88]-[90]) noting that the Tribunal was doing no more than undertaking a factual enquiry into why Mr Summers had not been able to find remunerative work. Her Honour considered that the Tribunal was not evaluating the lawfulness of any decision taken by a prospective employer relying on his age as a reason not to employ him, and that it was open to the Tribunal to accept Mr Summers’ own evidence on this issue to inform its conclusions for the purposes of s 24(2)(b).

83        Second, Mr Summers contended that the financial state of the retail industry was an irrelevant consideration for the Tribunal. The primary judge rejected this contention too and said that the Tribunal was entitled to rely on Mr Summers’ own evidence that the state of the retail industry was one of the factors leading prospective employers not to want to employ him. Her Honour considered that the Tribunal could rely on this evidence to inform its opinion as to why Mr Summers was unable to obtain remunerative work.

84        The primary judge dismissed each question in Mr Summers’ appeal.

THE NOTICE OF APPEAL

85        Mr Summers appeals to the Full Court by an Amended Notice of Appeal dated 11 August 2014 which alleges:

Special Rate Pension: section 24(1)(c)

1    Her Honour erred in law in failing to interpret s 24(1)(c) and s 24(2)(b) of the Veterans’ Entitlements Act 1986 (“VEA”) together with ss 28, 31, 14(a) and 41(1)(j) of the Age Discrimination Act 2004 (“ADA”). In doing so her Honour failed to correct the Tribunal’s age discrimination within the meaning of the ADA.

2    Her Honour misinterpreted the operation of s 24(1)(c) of the VEA and/or failed to correct the Tribunal’s failure to provide adequate and sufficient reasons for its determination of s 24(1)(c).

2A    Her Honour misconstrued the operation of ss 24(1)(c) and 24(2)(a) of the VEA and/or failed to correct the Tribunal’s failure to provide adequate and sufficient reasons for its determination of ss 24(1)(c) and 24(2)(a).

Special Rate Pension: section 24(2)(b)

3    Her Honour misconstrued the operation of s 24(2)(b) of the VEA and/or failed to correct the Tribunal’s failure to provide adequate and sufficient reasons for its determination of s 24(2)(b).

Acceptance of Alcohol Dependence

4    Her Honour misinterpreted the operation of the Statement of Principles for Alcohol Dependence No. 1 of 2009 and/or failed to correct the Tribunal’s failure to provide adequate and sufficient reasons for its determination of the Statement of Principles for Alcohol Dependence No. 1 of 2009.

4A    Alternatively to [4], her Honour misconceived the reasons of the Tribunal as disclosing a finding that there was not enough material to support the finding that the appellant spent a “great deal of time” in alcohol-related activities. In fact, the Tribunal found that there was “no material” to support the finding whereas there was such material, which the Tribunal failed to have regard to; and her Honour erred in not correcting the Tribunal’s error.

4B    Her Honour misconceived the reasons of the Tribunal in holding that the Tribunal did not impose an onus on the appellant to prove his case contrary to the evidentiary requirements of s 120 of the VEA. The Tribunal did impose an onus of proof on the appellant and in so doing the Tribunal erred in its interpretation of s 120 of the VEA read with clause 3(b) of the Statement of Principles for alcohol dependence; her Honour erred in not correcting this error.

4C    Alternatively, her Honour misinterpreted the evidentiary requirements of s 120 of the VEA, as they apply to ss 24(1)(c) and 24(2)(a) of the VEA, by holding that the Tribunal correctly interpreted the onus and/or standard of proof on which it was to make the finding satisfying itself of the existence of incapacitating non-war-caused conditions:

(a)    in the absence of a factual basis for this finding; and/or

(b)    on the appellant’s evidence.

THE APPLICATION FOR LEAVE TO AMEND

86        In the course of the hearing an issue arose concerning the way the Tribunal dealt with Mr Summers’ claim in relation to cl. 6(a) of SoP No 1 of 2009. Clause 6 lists various factors, one or more of which must exist before it can be said that a reasonable hypothesis has been raised connecting a veteran’s alcohol dependence with the circumstances of his or her service. Two of the cl. 6 factors are:

(a)    6(a) - “having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse”; and

(b)    6(b) - “experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse”.

87        In the hearing before us Mr De Marchi submitted that, before the Tribunal, Mr Summers only relied upon factor 6(b) in the SoP. He said that Mr Summers was not able to rely upon factor 6(a) because it was not accepted at that time that he suffered from war-caused PTSD. He said that the applicability of factor 6(a) was not raised in the appeal before the primary judge because it had not been in contest before the Tribunal.

88        In those circumstances the Court invited Mr Summers to consider seeking leave to further amend the Amended Notice of Appeal.

89        Mr Summers took up the invitation and on 7 November 2014 he filed a proposed Further Amended Notice of Appeal, adding the following proposed new ground of appeal:

4D    Having found PTSD was a war-caused injury, the Tribunal was obliged to:

(a)    consider the applicability of clause 6(a) of the Statement of Principles for Alcohol Dependence and Alcohol Abuse No 1 of 2009 to the appellant on the material before the Tribunal; and

(b)    give the appellant an opportunity to address the applicability of clause 6(a).

In failing to meet either obligation, (a) or (b), the Tribunal erred in law. In failing to address this error, her Honour erred in law.

Both parties then filed submissions on the question of whether leave to amend should be granted and, if leave was granted, submissions as to the merits of the ground.

Should leave to amend be allowed?

90        In written submissions the Commission contended that Mr De Marchi was wrong in asserting that Mr Summers did not rely on cl. 6(a) before the Tribunal, and it pointed to:

(a)    written submissions on Mr Summers’ behalf of 3 April 2013 in which he submitted that he satisfied factor 6(a) because he “had a psychiatric condition at the time of the clinical onset [of his alcohol dependence], namely PTSD”, and that he also satisfied factors 6(b), (g) and/or (h);

(b)    the Commission’s written submissions of 18 April 2013 which set out the four hypotheses advanced by Mr Summers based on factors 6(a), (b), (g) and (h);

(c)    the Commission’s additional written submissions of 30 May 2013 which reiterated the four asserted hypotheses and addressed each of them (including the hypothesis relying upon factor 6(a)); and

(d)    written additional submissions on Mr Summers’ behalf of 24 June 2013 in which he articulated the four asserted hypotheses, including the hypothesis relying upon factor 6(a). The submissions identified PTSD as the relevant “clinically significant psychological condition” under factor 6(a).

91        Having regard to the Commission’s submissions the Court sought a response from Mr De Marchi who then said that he had overlooked the matters set out by the Commission and conceded that Mr Summers asserted a hypothesis based on cl. 6(a) before the Tribunal. Given that Mr Summers was given, and took up, the opportunity to address the applicability of factor 6(a) before the Tribunal, we must refuse his request for leave for a further amendment to include proposed new ground 4D(b). That ground has no reasonable prospect of success.

92        However, we take a different view in relation to proposed ground 4D(a) which alleges that the Tribunal failed to consider Mr Summers’ argument that he satisfied cl. 6(a) of the SoP on the basis that he suffered from war-caused PTSD at the time of the clinical onset of his alcohol dependence. As we will explain, we are not satisfied that the Tribunal addressed this argument.

93        Almost self-evidently, proposed ground 4D(a) was not raised before the primary judge; and parties are of course bound by the way a case is conducted: see, for example, Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at [97] per Robertson J and Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 per Kenny, Besanko and White JJ at [161]-[162]. Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and, as reference to authorities such as Metwally v University of Wollongong (1985) 60 ALR 68 at 71, Water Board v Moustakas (1988) 180 CLR 491 at 497 (“Water Board v Moustakas”) and Coulton and Others v Holcombe and Others (1986) 162 CLR 1 (“Coulton v Holcombe”) at 7-8 show, an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue: see Water Board v Moustakas at 497 and Coulton v Holcombe at 8, citing O’Brien and Others v Komesaroff (1982) 150 CLR 310 (“O’Brien v Komesaroff”) at 319 per Mason J (with whom the other members of the Court concurred). The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so: see, for example, Summers No 1 at [60]; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194-195 per Bowen CJ, 199 per Fox J and 205 per Deane J, cited with approval in Grant v Repatriation Commission (1999) 57 ALD 1 (“Grant v Repatriation Commission”) at [20] per Merkel, Goldberg and Weinberg JJ (also noting that the respondent must have an opportunity to be heard on the issue).

94        The Court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised: Peacock v Human Rights and Equal Opportunity Commission and Another (2003) 73 ALD 341 at [28] per Kiefel and Allsop JJ. Generally speaking the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff at 319; Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14 at [3]-[6] per Moore and Lander JJ; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]-[131] per Tracey, Gilmour, Jagot and Beach JJ.

95        We consider it expedient and in the interests of justice for us to entertain the issue raised by the proposed ground 4D(a) and we grant leave to Mr Summers to further amend his Amended Notice of Appeal so as to include that ground. We say this, first, because the failure to argue appeal ground 4D(a) before the primary judge did not arise because of any personal failure by Mr Summers. Rather, it seems to have arisen through his solicitor’s error. Provided it can be addressed without the Commission suffering prejudice, and given that the issue concerns Mr Summers’ pension entitlement under the Act, we are reluctant to allow Mr Summers’ appeal to be prejudiced by his solicitor’s error.

96        Second, the Commission has been provided with, and has taken up, the opportunity to respond to ground 4D(a). It did not contend there was any prejudice if ground 4D(a) was now advanced, nor that it suffered an injustice because it would have argued the case differently below had ground 4D(a) been raised earlier. We note that no additional facts are necessary to be proved.

97        We now turn to consider each ground of the appeal, dealing first with those grounds upon which we find for Mr Summers.

CONSIDERATION

GROUND 4D(A): WHETHER THE TRIBUNAL FAILED TO CONSIDER THE APPLICABILITY OF FACTOR 6(A) OF THE STATEMENT OF PRINCIPLES

98        It is now common ground that, before the Tribunal, Mr Summers argued that he satisfied cl. 6(a) of the SoP because he suffered PTSD at the time of the clinical onset of his alcohol dependence. Given the unfortunate history of this matter we must accept the possibility that his case in relation to cl. 6(a) was not advanced with clarity, but little turns on this. The issue was plainly before the Tribunal which has an inquisitorial function. The Tribunal had an obligation to follow-up and consider any case which might reasonably appear from the materials: Summers No 1 at [47]; Grant v Repatriation Commission at [18] and W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 (“W396/01 v MIMA”) at [35] per Black CJ, Wilcox and Moore JJ.

99        The question is whether the Tribunal considered the applicability of cl. 6(a) of the SoP.

100        The Commission notes that the Tribunal extracted cll. 6(a), (b), (g) and (h) (at [52]) and argues that on a fair reading of its reasons the Tribunal considered the argument regarding cl. 6(a). It says that in setting out each of these cl. 6 factors the Tribunal was setting out the factors on which Mr Summers relied. The Commission also notes that the Tribunal set out the definition of “a clinically significant psychiatric condition” which is a reference to the requirements of cl. 6(a). We accept that, to an extent, this indicates that the Tribunal turned its mind to the requirements of cl. 6(a).

101        However, a number of other matters indicate that the Tribunal did not properly consider the argument.

102        First, it is necessary to keep in mind that the applicability of cl. 6(a) was not a peripheral or insignificant issue. On the facts of the case, whether the Tribunal was addressing a hypothesis advanced in reliance on cll. 6(a) or 6(b) was a matter of real importance. The Tribunal treated the Watson’s Bay event as the relevant category 1A stressor under cl 6(b) and for Mr Summers to satisfy that clause the material before the Tribunal was required to point to him having experienced that event within a five year period before the clinical onset of his alcohol dependence. This meant that the material that was argued to show his alcohol dependence by reference to the cl. 3(b) factors was limited to the five-year period from about 26 October 1968 to 26 October 1973. Any later material was not relevant.

103        The Tribunal did not decide the precise date that Mr Summers commenced to suffer PTSD but it said (at [46]-[47]) that his PTSD arose out of the Watson’s Bay event. It appeared to accept the evidence of Dr Strauss and Dr Velakoulis that the clinical onset of Mr Summers’ PTSD occurred in the period following that. For Mr Summers to satisfy cl. 6(a) the material before the Tribunal was required to point to him having PTSD at the time of the clinical onset of his alcohol dependence. This meant that the material that was argued to show his alcohol dependence by reference to the cl. 3(b) factors was not limited to a five-year period, and material from any date from about 26 October 1968 through to the date of the application on 10 December 2007 could demonstrate this.

104        Despite the question as to whether the Tribunal was considering an asserted hypothesis under either cll. 6(a) or (b) being one of real significance, at no point did the Tribunal expressly state which hypothesis it was referring to, and at no point did it expressly address the cl. 6(a) hypothesis.

105        Second, we note that the Tribunal said (at [54]) that its task was to “assess whether the hypothesis fits the template of the SoPs and is reasonable”, referring to a hypothesis rather than Mr Summers’ four asserted hypotheses. At [62] the Tribunal again referred to Mr Summers’ hypothesis singularly. It is unclear to us whether the Tribunal was addressing only one hypothesis, and if so which one, or whether it was addressing the four asserted hypotheses in a rolled up way. Again, we note that at no point did the Tribunal expressly deal with the cl. 6(a) hypothesis.

106        The lack of clarity in the Tribunal’s reasons made the Commission’s argument before us a difficult one. The reasons show that the Tribunal considered events outside the five-year window provided under the cl. 6(b) hypothesis (including Mr Summers’ failure to attend the birth of his second child in 1976 and the loss of his furniture franchise in 1985, at [61]). Before us the Commission argued that the events outside the five-year window were irrelevant to the Tribunal’s conclusion and it was doing no more than explaining why the material did not satisfy factor 6(b). However, as the Commission conceded, the Tribunal should have simply stated that those events were irrelevant if that was its position.

107        We note also that the Commission altered its position in its written submissions on the proposed new appeal ground 4D. It no longer submitted that the events in 1976 and 1985 were irrelevant to the Tribunal’s decision and instead argued that the Tribunal was considering the applicability of cl. 6(a) in taking into account events outside the five-year window from October 1968.

108        As we have said, the hypothesis Mr Summers advanced in reliance on cl. 6(a) was a significant issue. It can be said that if the Tribunal was only considering factor 6(b) it was unnecessary for it to deal with the evidence in relation to events after about 26 October 1973, but the Tribunal’s consideration of the later events is also consistent with it having considered other cl. 6 factors, including cl. 6(g) for example. Nor did the Tribunal state that it was considering cl. 6(a) or explain its reasoning on this important hypothesis. The Commission’s change in position on the point illustrates the difficulty we have in being satisfied that the Tribunal properly considered the applicability of cl. 6(a). In the finish we are not satisfied that it did.

109        It is established that a failure to deal with a properly formulated argument presented for the Tribunal’s determination can amount to a breach of the rules of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ and [95] per Hayne J; Summers at [46]. In any event, as the Full Court said in Grant v Repatriation Commission at [18]:

An inquisitorial review conducted by the AAT … is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].

A failure on the part of the Tribunal to determine the substantive issues raised by the material and evidence before it constitutes an error of law on its part: see W396/01 v MIMA at [37].

110        Furthermore, although this was not alleged in the appeal, an error of law may be seen in the Tribunal’s failure to provide adequate reasons for its determination in relation to the applicable SoP, as required by s 43(2) of the AAT Act. A failure to state reasons for a decision – at least in circumstances where a statement of reasons is a requirement of the exercise of the decision-making process – constitutes an error of law. One of the central objects behind the statutory obligation to give reasons is to expose the Tribunal’s reasoning process which may facilitate appeals on a question of law or judicial review. The Tribunal was required to explain what it decided on the issue of cl. 6(a) and why, and in our view it did not: Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at [21] per Stone J; Hill v Repatriation Commission (2004) 207 ALR 470 at [20] per Mansfield J; Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 at [49] per Bennett, Flick and McKerracher JJ; Dornan and Others v Riordan and Others (1990) 24 FCR 564 at 573-574 per Sweeney, Davies and Burchett JJ.

GROUNDS 4, 4A, 4B AND 4C: WHETHER THE TRIBUNAL MISCONSTRUED S 120 AND/OR THE APPLICABLE SOP

111        Grounds 4, 4A, 4B and 4C of the Further Amended Notice of Appeal revolve around the Tribunal’s approach to cl. 3(b) of the SoP and s 120(3) of the Act. Grounds 4 and 4A centre on the Tribunal’s conclusion that there was not enough material to support a finding that Mr Summers had spent a “great deal of time” in alcohol-related activities as required under factor (5) in cl. 3(b) of the SoP. Ground 4B alleges that the Tribunal erred in its application of s 120 and cl. 3(b) of the SoP by imposing an onus of proof on Mr Summers. Ground 4C alleges that the Tribunal misconstrued the onus and/or standard of proof under s 120 in making the finding that Mr Summers did not suffer from war-caused alcohol dependence. Mr Summers alleges that the primary judge erred in failing to correct the Tribunal’s errors.

112        Before us Mr De Marchi cast the appeal broadly and he did not restrict it to cl. 3(b)(5) of the SoP and the question of whether Mr Summers spent a “great deal of time” in alcohol-related activities. Although the submissions lacked clarity, the essence of the appeal is that the Tribunal asked itself the wrong questions in relation to s 120(3) and cl. 3(b). Mr Summers contends that the Tribunal engaged in impermissible fact finding in concluding that the material before it did not meet at least three of the seven diagnostic criteria for alcohol dependence in cl. 3(b), and that contrary to s 120(6) it imposed an onus upon him to satisfy the Tribunal. The Commission responded to the appeal on the broad basis that it was put. We have accordingly taken a broad view of the appeal.

The Tribunal’s decision

113        As part of its task under s 120(3) the Tribunal was required to consider whether the hypothesis Mr Summers advanced to connect his acknowledged alcohol dependence with the circumstances of his service was consistent with the template in cl. 3(b) of the SoP, and therefore a reasonable hypothesis under s 120(3) of the Act.

114        For Mr Summers to meet the requirements of s 120(3) and cl. 3(b) of the SoP the material before the Tribunal needed to point to or raise him having “clinically significant impairment or distress, as manifested by three (or more) of the following [from a list of seven diagnostic criteria then set out] occurring at any time in the same 12-month period …”. The seven criteria or factors in the SoP are set out at [49] above.

115        The Tribunal decided (at [62]) that because:

…three (or more) of the SoP diagnostic criteria for alcohol dependence were not met in the same 12-month period following Mr Summers’ service in Vietnam or the Watson’s Bay event, the hypothesis advanced by Mr Summers is not reasonable and does not fit the template of …[the applicable] SoP.

Grounds 4, 4A, 4B and 4C of the appeal revolve around the Tribunal’s approach in this regard.

116        It is established that it is impermissible to engage in fact finding at stage three of the Deledio process. As we have said, the enquiry under ss 120(3) and 120A requires no more than that the material before the decision-maker points to or raises the relevant elements of an asserted hypothesis for it to be consistent with the applicable SoP and be accepted as reasonable.

117        Of course, forming an opinion under s 120(3) as to whether the material points to or raises the elements of the applicable SoP such that an asserted hypothesis fits with the SoP requires the decision-maker to reach a factual conclusion. As Allsop J said in Collins v Administrative Appeals Tribunal and Another (2007) 163 FCR 35 at [49], with Lindgren and Emmett JJ agreeing:

As has been shown in a number of cases concerning ss 120(3) and 120A, the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern.  The kinds of fine questions that can arise were discussed in Elliott v Repatriation Commission (2002) 73 ALD 377; Cameron v Repatriation Commission (2003) 77 ALD 81; Repatriation Commission v Bey (1997) 79 FCR 364; and Gleeson v Repatriation Commission 34 ALD 505. (Emphasis added)

118        The Tribunal was required to form an opinion as to whether the material before it pointed to or raised that Mr Summers had satisfied three or more of the diagnostic criteria for alcohol dependence in cl. 3(b) of the SoP in any 12 month period. As we have said, for a hypothesis based upon cl. 6(a) the three cl. 3 (b) factors could be found in any 12 month period from about 26 October 1968 through to 10 December 2007. We will consider the appeal through the prism of a hypothesis based on cl. 6(a) because that is the most generous approach for Mr Summers. If he can satisfy the requirements of cl. 6(a) over this longer time frame he will be successful on this aspect of the appeal.

The material before the Tribunal

119        In our view, considered at a high level of generality, the debate around Mr Summers’ alcohol dependence has an air of unreality because approached at this level the evidence plainly points to the conclusion that Mr Summers is a serious alcoholic. However, it is clear that cl. 3(b) requires that Mr Summers satisfy at least three of the seven cl. 3(b) factors in any 12 month period and we approach the appeal on that basis.

120        It is here that the deficiencies in Mr Summers’ solicitor’s approach to the evidence to be adduced before the Tribunal are plainly apparent. We say this because there appears to have been no attempt to direct Mr and Mrs Summers’ evidence to the specific requirements of the cl. 3(b) factors, and before us Mr De Marchi’s submissions again failed to focus on those requirements. Even so, notwithstanding these failures, the material before the Tribunal went to a number of the cl. 3(b) factors. The relevant evidence included:

(a)    Mr Summers’ evidence that:

(i)    prior to serving in Vietnam he was a social drinker only;

(ii)    he commenced drinking more while he was in Vietnam and was drinking about five pots or cans of beer per night. He was working in the canteen at Vung Tau and did not have to pay for his drinks;

(iii)    he started to drink more and more while he was in Vietnam, especially after he was notified of his father’s death. By then he was drinking 18 to 20 cans per night, drinking until 2 or 3 am;

(iv)    on the flight to Australia he drank whisky all the way and became extremely intoxicated. He has little memory of his father’s funeral;

(v)    after the Watson’s Bay event he was in intensive care, a repatriation hospital and in rehabilitation for about eight weeks. He then reported to Southern Command in Watsonia, Victoria and during that time he went to the hotel to drink for 4 to 5 hours a day,

(vi)    after he was discharged from the Army in 1969 he went to work at Myer as a manager in the shirt department in Doncaster. He worked there for three years while continuing to drink heavily;

(vii)    he told Dr Strauss that after his discharge from the army he would drink 10 pots of beer per night at the hotel and then go home and drink more;

(viii)    in the early years of his marriage (which occurred in October 1969) in response to requests from his wife, he attempted to reduce his alcohol consumption. He was drunk “all the time”, and his attempts failed;

(ix)    in the first four years of his marriage, Mrs Summers told him that she would end the marriage if he continued to drink at the same level. The birth of their son, Adam, in February 1973 tempered her decision to leave but he still kept drinking;

(x)    their marriage broke up in 1975 because of his drinking as his wife could no longer tolerate him;

(xi)    he lost his driving licence for driving under the influence in 1977;

(xii)    he took up a job at Capt’n Snooze for four years and purchased a Capt’n Snooze bedding furniture franchise. He lost his franchise in 1985 because of his drinking problem. All of his money was going on alcohol and his excessive drinking meant that he was unable to manage the business properly;

(xiii)    he lost his licence for driving under the influence twice in 1989. He has not held a driving licence since that time;

(xiv)    he was still drinking in 1995 when he commenced work with Greensborough Bulk Store, where he worked for 10 years;

(xv)    he commenced to consult a psychiatrist, Dr Velakoulis, in 2006. He told Dr Velakoulis that he was having 10 to 12 standard drinks per day. He completed an alcohol reduction course in this period;

(xvi)    with assistance from Dr Velakoulis he reduced his intake of alcohol over the period from about 2006 to 2008 but in 2008 he was still drinking about 10 standard drinks a day with only a few alcohol free days;

(xvii)    he saw Dr Debenham in 2006 and told him that he was drinking six 375 ml stubbies of full strength beer each night. When “bingeing” he would drink 12 or more stubbies per night, together with a bottle of red or white wine;

(xviii)    he told the VRB in 2007 that he was drinking six stubbies each night and one and a half casks of wine (about 8 litres) per week;

(xix)    he saw Dr Gras in 2007 and told him that he was drinking four stubbies a night and a glass of wine every second night, but when bingeing he drank between 10 and 12 drinks each day;

(xx)    he saw Dr Sillcock in 2007 and told her that he was drinking in excess of six stubbies and half a bottle of wine every night;

(xxi)    he saw Dr Strauss in 2008 and told him there was drinking six stubbies a night and a bottle of wine every second night;

(xxii)    he saw Dr Strauss in 2010 and told him that he was having six or more stubbies each day;

(xxiii)    he told the Tribunal in August 2010 that he was drinking six stubbies per night;

(xxiv)    in 2013 he was drinking about six stubbies a night, or perhaps three stubbies and two glasses of wine. Sometimes it might be more, perhaps 10 to 12 schooners; and

(xxv)    he is dependent on alcohol.

(b)    Mrs Summers’ evidence that:

(i)    before being conscripted into National Service in 1967 Mr Summers only had the occasional social drink;

(ii)    when Mr Summers flew back from Vietnam to attend his father’s funeral he arrived home in an extremely drunken state. He was wearing only half of his uniform and could not talk sensibly. He had to be sobered up before he could go to the funeral;

(iii)    while he was at home he visited friends and continued to drink heavily. He was dependent upon alcohol and he drank “a lot”;

(iv)    after the Watson’s Bay event she noticed that Mr Summers’ personality changed. In December 1968, for reasons which included his alcohol consumption, he left a family barbecue in the outskirts of Melbourne without telling anyone, and walked many kilometres home. He was drinking even more and he had many car accidents;

(v)    in the 12 months from the Watson’s Bay event until they were married in October 1969 he was “drinking, drinking, drinking”;

(vi)    after they were married he would regularly drink and get drunk after work and wouldn’t come home in time for dinner;

(vii)    four years after they were married they had a son, Adam, in February 1973. She was so upset that Mr Summers was drinking heavily and staying out late at night that the baby was one month premature;

(viii)    their marriage broke up for about six months in 1975, when Adam was two years old;

(ix)    they resumed their marriage and then had a daughter, Kate, in 1976. Mr Summers could not be found to drive Mrs Summers to hospital when she was in labour and he was not present at the birth. He had been drinking and had a car accident;

(x)    his first conviction for driving under the influence (in 1977) involved a blood alcohol reading of .175.

(xi)    his drinking caused “enormous problems” in their relationship and has affected their children, grandchildren and friends, to the point where she despises alcohol;

(xii)    he lost his Capt’n Snooze franchise in 1985 because of his alcohol addiction;

(xiii)    his second conviction for driving under the influence (in 1989) involved a blood alcohol reading of .215.

(xiv)    they both undertook a 10 week PTSD course in about 2009 at the recommendation of Dr Debenham. The doctors informed Mrs Summers that he should be undertaking alcohol-related courses;

(xv)    Mr Summers then undertook an alcohol related course once per week for about 10-12 months but his drinking problem persisted. It is very difficult to get him out of bed in the morning and he sleeps in until 11-11:30 am each day; and

(xvi)    he has been drinking “a lot” since his return from Vietnam, and she considers him to be an alcoholic.

(c)    evidence from Mr Summers’ treating psychiatrist, Dr Velakoulis, and from a consultant psychiatrist, Dr Strauss, that Mr Summers satisfied the diagnostic criteria in DSM-IV-TR for a diagnosis of alcohol dependence as a result of his service in Vietnam.

121        We now turn to consider the material in relation to each cl. 3(b) factor in order to determine whether or not the Tribunal misunderstood its task under s 120(3) of the Act and cl. 3(b) of the SoP. As appears below, we infer from the Tribunal’s approach to the material before it that it did misunderstand this task. We do not, of course, purport to make the enquiry under stage three of the Deledio process ourselves. This will be a task for the Tribunal: see [155] below.

Factor (1)

122        Factor (1) states the following requirement:

(1)    Tolerance, as defined by either of the following:

(a)    a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or

(b)    markedly diminished effect with continued use of the same amount of the alcohol.

123        The Tribunal accepted (at [60]) that Mr Summers developed a tolerance for alcohol by 12 October 1968 and that he satisfied factor (1) through the relevant period. It is uncontentious that Mr Summers meets this factor.

Factor (2)

124        Factor (2) states the following requirement:

(2)    Withdrawal, as manifested by either of the following:

(a)    the characteristic withdrawal syndrome for the alcohol; or

(b)    the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.

125        The Tribunal said (at [60]) that there was a lack of any evidence that Mr Summers was experiencing withdrawal symptoms in the period commencing on 12 October 1968, and there is no challenge to this finding. Given the continuing level of Mr Summers’ alcohol consumption (as indicated by the evidence before the Tribunal) it would be surprising if he experienced withdrawal symptoms.

Factor (3)

126        Factor (3) requires that:

(3)    The alcohol is often taken in larger amounts or over a longer period than was intended.

127        The Tribunal said (at [60]) that Mr Summers did not give evidence that he often drank more, or over a longer period, than he intended and that he therefore did not satisfy factor (3). In our view this is indicative of the Tribunal having misconceived its function at that stage of the Deledio process. The question for the Tribunal was whether the material pointed to or raised that Mr Summers had drunk more or over a longer period than he intended and this does not necessarily require express statements by Mr Summers to that effect.

128        The authorities show that the Court is concerned to avoid a requirement for precise evidence at this stage of the Deledio process, even where the applicable SoP expressly requires quantitative evidence. For example, in Tunks v Repatriation Commission (2008) 102 ALD 274 the Tribunal rejected a pension application based on the claim that the veteran’s death from prostate cancer was war-caused. The applicable SoP set out the requirement for a minimum 40% increase in the veteran’s dietary animal fat consumption during his service and to at least 50g per day, and maintenance of the animal fat intake at that level for at least five years within the 25 years before the clinical onset of the cancer.

129        The applicant widow in that case gave evidence, as did the veteran’s brother and a boyhood friend of the veteran, to the effect that the deceased ate much more animal fat after his war service that he did before. Their evidence did not go to the extent of stating that there had been a 40% increase in the deceased’s animal fat intake. The Tribunal decided that the evidence did not establish that the veteran’s dietary intake of animal fat had increased by 40%, and doubted the accuracy of the widow’s recall of the veteran’s post-service diet. It concluded that there was “no reliable evidence whatsoever” as to his pre-service dietary intake of animal fat.

130        Madgwick J set aside the Tribunal decision. He explained (at [41]) that the evidence:

…clearly “pointed to” or “raised” a hypothesis that the deceased had indeed increased his animal fat intake by a very large degree that may have equalled or exceeded 40%. In my opinion, the failure to see this is indicative of the Tribunal having misconceived its function at that point of its inquiry…

We take the same approach. For example, although it is not within the relevant period, it is hard to imagine that on the flight from Vietnam to Australia to attend his father’s funeral Mr Summers intended to drink so heavily that he became severely drunk and disorientated such that he had little or no memory of the funeral.

131        We do not accept the Commission’s submission that because Mr Summers drank voluntarily he was drinking what he “intended” within the meaning of factor (3). The crux of a diagnosis of alcohol dependence is that a person who suffers from that condition is dependent on alcohol and “voluntarily” drinks too much or for too long. In truth, there is little that is voluntary about an alcoholic drinking too much.

132        On the evidence there are significant periods of time over which it may be strongly argued Mr Summers was drinking more or for longer periods than he wanted or intended, including that: