FEDERAL COURT OF AUSTRALIA

Dixon v Repatriation Commission [1999] FCA 582

VETERANS’ ENTITLEMENTS – Claims of generalised anxiety disorder allegedly arising out of experiences during applicant’s service visit to Vietnam – Appeal from Administrative Appeals Tribunal – Tribunal accepted there was material before it pointing to a hypothesis connecting applicant’s generalised anxiety disorder with his service in Vietnam – Question whether hypothesis was reasonable – Tribunal held evidence was unsatisfactory and therefore hypothesis not reasonable – Whether Tribunal failed to give adequate reasons for its decision – Whether Tribunal erred in law in application of s120(3) of Act.

Veterans’ Entitlements Act 1986, s120

Administrative Appeals Tribunal Act 1975, s43(2B)

ALBERT CLYDE WILLIAM DIXON v REPATRIATION COMMISSION

NG1447 of 1998

WILCOX J

SYDNEY

7 MAY 1999

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal dated 3 December 1998 be set aside.

2.                  The matter be remitted to the Administrative Appeals Tribunal for redetermination according to law.

3.                  The respondent, Repatriation Commission, pay the costs of the proceeding incurred by the applicant, Albert Clyde William Dixon.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     WILCOX J:  This is an appeal by Albert Clyde William Dixon against a decision of the Administrative Appeals Tribunal (“the AAT” or “the Tribunal”) affirming a decision of the Veterans’ Review Board (“the VRB”) .  The VRB had affirmed a decision of the Repatriation Commission to refuse Mr Dixon’s claim for medical treatment and pension in respect of a disease diagnosed as anxiety with secondary depression.  The claim was based on experiences allegedly sustained by Mr Dixon during a visit to Vietnam between 23 July and 6 August 1969.  Mr Dixon was then an officer in the Citizens’ Military Forces.  Although Mr Dixon was not personally involved in any hostilities, his visit constituted “operational service” within the meaning of s6 of the Veterans’ Entitlements Act 1986, so any injury suffered, or disease contracted, by him, resulting from an occurrence that happened during his visit, is taken to be a “war-caused” injury or disease:  see s9(1)(a) of the Act.

The claimed facts

2                     Mr Dixon gave evidence both to the VRB and the AAT.  On each occasion he spoke about events which he claimed to have experienced during the course of his visit to Vietnam.  He said that, at Vung Tau, he was billeted alone in a tent near a hospital to which dead and wounded soldiers were brought by helicopter.  He said he visited Nui Dat on two occasions “to correct paper work” and “visit units in the area”.  While visiting a field ambulance unit, he said he witnessed the arrival of dead and wounded soldiers.  On one journey back from Nui Dat to Vung Tau, Mr Dixon diverted to Dat Do where he claimed to have observed a group of people standing around three people hanged, presumably, by the Viet Cong.  On another occasion near Baria, he encountered a body on the side of the road.

3                     After his return to Australia, Mr Dixon resumed his usual civilian work.  He remained in the Citizens’ Military Forces for a further 14 years, until 1983.  However, he claimed to have suffered depression as a result of his experiences in Vietnam.  He said this manifested itself in May 1971, when he pulled out of a parachute course because he had lost his nerve.  He detailed the effect of the depression on his personal life and employment history.

The VRB decision

4                     Before the VRB, Mr Dixon claimed to be suffering post traumatic stress disorder or, alternatively, generalised anxiety disorder.  Statements of Principles (“SoP”) have been determined in respect of both these disorders by the Repatriation Medical Authority pursuant to s196B of the Veteran’s Entitlements Act.  The post traumatic stress disorder statement specifies three factors that “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder … with the circumstance of [war] service”.  Two of these factors refer to “experiencing a stressor” at a particular point of time.  That term is defined, by derivation from the American Psychiatric Association’s Diagnostic Manual of Mental Disorders 4^th volume  (DSM-IV), as meaning that:

“(a)     the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s physical integrity; and

(b)              the person’s response to that event involved intense fear, helplessness or horror;”

5                     In the course of rejecting Mr Dixon’s claim of post traumatic stress syndrome, the VRB made some comments later quoted by the AAT.  The VRB then turned to Mr Dixon’s alternative claim of generalised anxiety disorder.  The Board noted the factors itemised in the Statement of Principles concerning this condition.  The only factor relevant to Mr Dixon’s claim required it to be demonstrated that the claimant had experienced “a stressful event not more than two years before the clinical onset of generalised anxiety disorder”.  The term “stressful event” was defined in the statement to mean “an occurrence which evokes feelings of anxiety or stress”.  The VRB found “the clinical onset of Mr Dixon’s anxiety disorder did not occur within 2 years of any stressful event experienced in Vietnam” and therefore held he could not “satisfy any of the minimum factors that must exist before it can be said that a reasonable hypothesis had been raised connecting generalised anxiety disorder to the circumstances of operational service”.

The AAT decision

6                     Mr Dixon applied to the AAT for review of the VRB decision regarding his generalised anxiety disorder claim.  He accepted the VRB’s rejection of his post traumatic stress disorder claim.

7                     The AAT received written and oral evidence from Mr Dixon, various medical practitioners and two former Regular Army officers who had served in Vietnam.  They were Lieutenant Colonel J E Bullen, commander of a unit stationed at Vung Tau in 1968-69, and Major General Morrison, commander of the 9^th Battalion of the Royal Australia Regiment from November 1968 until December 1969.  The evidence of each of these officers was inconsistent with the likelihood that Mr Dixon suffered the experiences claimed by him.

8                     In its reasons for decision, the AAT referred to relevant statutory provisions and some decided cases; in particular the guidance offered by a Full Court of this Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206:

“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:

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 s196B(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 ss196B(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 s120(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 so doing, no question of onus of proof or the application of any presumption will be involved.”

9                     After dealing with some other matters and summarising the evidence of Mr Dixon, Lt Col Bullen and Major General Morrison, the AAT turned to the question whether the material placed before it pointed to a hypothesis connecting Mr Dixon’s generalised anxiety disorder with his service in Vietnam.  The AAT said there was material supporting such an hypothesis, this being Mr Dixon’s evidence “concerning, firstly, the general circumstances of his service in Vietnam and, secondly, the more specific circumstances which he claimed to have experienced while in Vung Tau, Nui Dat and Dat Do”.  At this stage of its reasoning, the AAT did not indicate whether or not it accepted that evidence.  This approach was consistent with Deledio, the AAT being concerned at this stage to take the first of the four steps identified by the Full Court.

10                  The AAT satisfied step 2 by identifying the relevant Standard of Performance.  The Tribunal then turned to step 3, which it discussed under the heading “Whether the Hypothesis is Reasonable”.  The Tribunal said:

“63.    As indicated earlier, the relevant SoP in respect of Mr Dixon’s claim is No.48 of 1994, with Mr Dixon relying upon the factor set out in paragraph 3(d) thereof, being one of the (alternative) factors that must as a minimum exist and which must be related to his relevant service.

            [Counsel agree the reference to para 3(d) was erroneous.  The relevant paragraph was 1(b)]

64.              The Tribunal notes that in the reasons for its decision dated 15 July 1996, the Veterans’ Review Board stated in part as follows:

‘The Board has difficulty with the applicant’s account of exposure to enemy dead and allied wounded during his brief visit.  Although there were occasions when VC dead were left in villages by allied forces, this was a rare occurrence and we doubt that Mr Dixon had any experience of the practice.  Moreover, he claims to have seen enemy dead hanging in the market place at Dat Do.  The village complex of Dat Do is not on the direct rute [sic] between Vung Tau and Nui Dat.  For Mr Dixon to have visited Dat Do it would have required a significant and unexplained detour.  No Australian forces were based at Dat Do and there was no apparent reason for an Australian ordnance officer on temporary clerical duty to visit the place.

Moreover, even if he did witness the sight of enemy dead, the Board does not accept that this constitutes a stressor within the terms of the DSM IV definition.  By the time he visited Vietnam Mr Dixon had been in the Army Reserve for 18 years, had attained the rank of Captain and after so much training would not have been totally unprepared for the prospect of witnessing the sight of dead soldiers when visiting a war zone.  Nor do we accept, if he did see bodies in Vietnam, that his reaction to that event was one of intense fear, helplessness or horror.  Mr Dixon continued serving in the Army Reserve for a further 14 years post Vietnam and did not feel the need to visit a psychiatrist until 1995, when he was referred to Dr Subhas in connection with the current claim.  He also later unsuccessfully attempted on several occasions to arrange a posting to Vietnam for a full tour of duty.

The Board found Mr Dixon to be a less than totally reliable and convincing witness.  In the opinion of the Board his description of his brief service experiences is characterised by embellishment and exaggeration.’

Having regard for the whole of the material before it, which of course includes the evidence of Major General Morrison and Lt Col Bullen, the Tribunal is of a like view and regards the hypothesis, raised essentially by Mr Dixon’s evidence, as untenable and therefore not reasonable.  The hypothesis is not consistent with the ‘template’ to be found in SoP No.48 of 1994.”

The passage from the VRB’s decision quoted in para 64 is the passage, earlier mentioned, that occurs during the VRB’s discussion of Mr Dixon’s post traumatic stress disorder claim.  As already mentioned, this claim was not before the AAT.

The issues for the Court

11                  Mr Mark Vincent, counsel for Mr Dixon, advanced two grounds for review: 

(1)               the Tribunal failed to give adequate reasons for its decision, as required by s43(2B) of the Administrative Appeals Tribunal Act 1975; and

(2)                the Tribunal erred in law in its interpretation of s120(3) and/or s120A of the Veterans’ Entitlements Act. 

I will deal with each separately. It is however, convenient first to set out subss (1) and (3) of s120 of the Act and a passage in the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.  Although that passage was written before the 1994 amendments that introduced the concept of Statements of Principles to the Veterans’ Entitlements Act, it remains applicable, subject to making allowance for the use of Statements of Principles as required by s120A.

12                  Section (1) and (3) of s120 read as follows:

“(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.

(2)       …

(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.”

13                  Mason, Gaudron and McHugh JJ said:

“The position may be summarized as follows: 

(1)              First, sub-s. (3) of s.120 is applied:  do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point. 

(2)              If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied.  The claim will succeed unless:

(a)               one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)               the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”

The adequacy of the Tribunal’s reasons

14                  Section 43(2B) of the Administrative Appeals Tribunal Act requires the AAT to include in any written reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.  This provision should be interpreted, like similar provisions in other statutes such as the Administrative Decisions (Judicial Review) Act 1977 - see Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 and Dornan v Riordan (1990) 24 FCR 564 - and the Broadcasting Act 1942 - see Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 - as requiring there be findings, on the substantial issues raised by the case, in terms sufficiently explicit to enable the parties to understand why the decision went the way it did.  On the other hand, a reviewing court ought not be concerned with mere looseness of language or unhappy phrasing:  see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.  The question always is whether the decision maker has revealed his or her findings and conclusions.

15                  Mr Vincent argues that, in the present case, the Tribunal failed to reach this standard.  He points out that the Tribunal found there was material pointing to a hypothesis connecting Mr Dixon’s generalised anxiety disorder with the circumstances of his service in Vietnam.  He argues, correctly in my view, that this meant Mr Dixon overcame the first hurdle identified in Byrnes and Deledio; so it was encumbent on the Tribunal to deal with the next point:  whether the hypothesis raised is a reasonable one.  He says the Tribunal concluded the hypothesis did not fit the Statement of Principles but did not reveal how it reached this conclusion. 

16                  As will become apparent, I think there is a problem about the Tribunal’s reasoning; but I do not agree it failed to indicate why it thought the hypothesis unreasonable.  Although the explanation was clumsy, I think the Tribunal made clear it had difficulty in accepting Mr Dixon’s evidence.

17                  In para 10 above I set out two paragraphs (paras 63 and 64) of the AAT’s decision.  In para 64 the AAT quoted something said by the VRB during the course of its discussion of Mr Dixon’s claim of post traumatic stress disorder.  It was unfortunate for the Tribunal, at a critical stage of its reasoning process, to rely so heavily on a quotation from the reasons of the VRB, especially as the quoted passage included material that had nothing to do with the issue it was confronting under the heading “Whether the Hypothesis is Reasonable”.  The middle paragraph of the quoted passage dealt with the question whether witnessing enemy dead fell within the concept of “experiencing a stressor” within the meaning of the Statement of Principles relating to post traumatic stress disorder.  As Mr Dixon did not press his post traumatic stress disorder claim before the AAT, this was irrelevant to anything that tribunal had to decide.  The inclusion of this paragraph served only to confuse.

18                  However, I think the AAT succeeded in communicating its reason for rejecting the reasonableness of the hypothesis identified by it as arising out of Mr Dixon’s evidence.  It did not accept the reasonableness of the hypothesis because it had problems with Mr Dixon’s evidence. As appears from para 10 above, the AAT quoted the findings of the VRB that Mr Dixon was a “less than totally reliable and convincing witness” and that his description of his experiences “is characterised by embellishment and exaggeration”.  The AAT went on immediately to say it was “of a like view”.  Significantly, this was said in the context of a reference to the evidence of Major General Morrison and Lt Col Bullen; which, as I have said, was inconsistent with the likelihood that Mr Dixon’s claims were true.  The Tribunal then added a statement that it regarded “as untenable” the hypothesis “raised essentially by Mr Dixon’s evidence”.  In other words the AAT adopted the VRB’s concerns about Mr Dixon’s reliability and, therefore, regarded the hypothesis as untenable.

19                  It would have been preferable for the AAT to make findings in its own words; plain words may sometimes be more hurtful, but they are usually the best way of communicating findings of fact.  However, it is impossible to read para 64 of the Tribunal’s reasons without realising that the hypothesis was rejected because the Tribunal was sceptical about the veracity of Mr Dixon’s evidence.  Notwithstanding some clumsiness, I think the Tribunal succeeded in complying with the requirements of s43(2B) of the Administrative Appeals Tribunal Act.

20                  Mr Vincent submitted “it would be an error of law for the Tribunal to have relied on the findings of the VRB since the task of the Tribunal was to make up its own mind on the merits, not adopt or otherwise assess the worth of the VRB’s reasons”.  I agree.  The AAT had to reach its own conclusions about the facts; it would have been improper for it merely to adopt the VRB’s conclusions.  However, if the AAT did make up its own mind about the facts, it was not impermissible for it to reveal its findings by adopting the language of the VRB.  The critical point is whether the Tribunal formed its own view.  In using the words “the Tribunal is of like view”, the Tribunal was asserting it had done so.  Particularly in the light of the reference to Major General Morrison and Lt Col Bullen, whose evidence was not available to the VRB, there is no reason to doubt this claim.

Interpretation of s120(3) and s120A

21                  Mr Vincent’s argument in relation to this matter commences with reading the AAT’s expression of a “like view” to the VRB as applying to all three quoted paragraphs.  He then makes what are, essentially, three points.  First, it was erroneous of the AAT to adopt the VRB’s view about what constitutes a “stressor”; this was irrelevant to the issue before the AAT.  Second, it was not enough for the AAT to adopt a finding couched in the language of “has difficulty with the applicant’s account” and “less than totally reliable and convincing witness”; the Tribunal was entitled to reject Mr Dixon’s claim only if it was satisfied his evidence ought to be disbelieved.  Finally, it was premature for the Tribunal to reject the applicant’s case at the stage of considering whether the hypothesis was reasonable; this should have been left to the final stage when the Tribunal considered whether it was satisfied, beyond reasonable doubt, that there was no sufficient ground for determining that the claimed disease was a war-caused disease. 

22                  I have already indicated my opinion that the concept of “experiencing a stressor” was irrelevant to the AAT’s task and it would have been preferable for any adoption of the VRB’s reasons to omit the middle paragraph of the quotation in para 64 of the AAT’s reasons.  If I thought the inclusion of this paragraph indicated the AAT applied a wrong test, by requiring Mr Dixon to establish facts of the nature specified in the definition of “experiencing a stressor”, I would conclude this was an error of law necessitating an order setting aside its decision.  However, I do not think the AAT did this.  The quotation was used in the context of assessing the reliability of Mr Dixon’s evidence.  The VRB expressed “difficulty” about his evidence and referred to a stressor only in the course of considering an alternative approach, predicated on Mr Dixon (contrary to the VRB’s belief) having seen enemy dead.  The AAT was not concerned with the alternative approach because it did not accept he had seen enemy dead.  I do not think the middle paragraph led anywhere, in terms of the AAT’s reasoning; that is why it would have been better omitted.

23                  The second and third points should be considered together.  I have already indicated my opinion that the Tribunal intended to convey its scepticism about Mr Dixon’s evidence.  But did it do this prematurely?  I think so.

24                  The Tribunal used its scepticism as a reason for holding that the hypothesis it found to arise on Mr Dixon’s evidence did not fit the factors stipulated in the Statement of Principles.  But matters of belief did not arise at that stage.  The Full Court made this clear in Deledio.  Once the decision maker identifies a relevant Statement of Principles (step 2 in the Deledio summary) the decision maker must “form the opinion whether the hypothesis raised is a reasonable one”.  It will be a reasonable one if (and only if) it contains “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”.  However, at this stage the decision maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision maker is still working under s120(3).  The two steps additional to those identified in Byrnes – that is, steps 2 and 3 in the Deledio formulation – are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps.  As the Full Court said in Deledio, it is only at the step 4 stage of the process “that the tribunal will be required to find facts from the material before it”.  In the present case the Tribunal fused together steps 3 and 4.  It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder; that is, still considering them as claims and without making any judgment about their truth.  If the AAT had answered this question in the affirmative, the final step would have been to consider the truth of the claims, this being a step in carrying out the obligation imposed on the Tribunal by s120(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused.  If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s120(1) and dismissing his appeal.

25                  The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality.  If belief is addressed at the step 3 stage, 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.  Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden.  Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant’s story may possibly be true.  This would defeat the protection for veterans embodied in s120(1), whereby a claim which fits 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.

26                  It was erroneous, in the present case, for the Tribunal to consider the truth of Mr Dixon’s evidence at the third stage, when examining the issue of the reasonableness of the hypothesis.  This should have been left to the final stage of the Tribunal’s reasoning process.

Disposition of the application

27                  I have already indicated that I understand the Tribunal to have been unimpressed with Mr Dixon’s reliability as a witness.  Under these circumstances, it is tempting to conclude that, if it had approached its task correctly, the Tribunal would anyway have dismissed Mr Dixon’s appeal; and for me therefore to decline on discretionary grounds to interfere with the Tribunal’s decision.  However, I would not be justified in taking that course.  The VRB language adopted by the AAT, “has difficulty with the applicant’s account”; “less than totally reliable and convincing witness”; “his description … is characterised by embellishment and exaggeration”, falls well short of an expression of adverse findings beyond reasonable doubt.  A tribunal of fact might have difficulty with particular evidence yet not be satisfied, beyond reasonable doubt, it is untrue.  Although I see no reason to attribute that position to the members of the AAT who heard this case, their reasons do not establish that was not their position.  It would not be appropriate for me to base the exercise of my discretion on speculation.

28                  In the circumstances, I see no alternative to an order setting aside the Tribunal’s decision and remitting the matter for redetermination.  I will so order.  The respondent should pay the applicant’s costs.

Associate:

Dated:              7 May 1999