FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Gosewinckel [1999] FCA 1273

EX-SERVICEMEN – veterans’ entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether veteran suffered from war-caused generalised anxiety disorder – whether AAT applied correct standard of proof in deciding that veteran suffered generalised anxiety disorder – whether AAT misconstrued relevant Statement of Principles by failing to consider whether necessary indicia present.

Administrative Appeals Tribunal Act 1975 (Cth) s44(1)

Veterans’ Entitlement Act 1986 (Cth) ss 9, 120, 120A, 196B

Bushell v Repatriation Commission (1992) 175 CLR 408 at 425-6 referred to

Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571-2 referred to

Repatriation Commission v O’Brien (1985) 155 CLR 422 referred to

Deledio v Repatriation Commission (1997) 25 AAR 396 at 401-2, 411-2  referred to

Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 referred to

Preston v Repatriation Commission (1993) 45 FCR 214 at 220-1 not followed

Repatriation Commission v Cooke (1998) 160 ALR 17 at 21 followed

Shelton v Repatriation Commission [1999] FCA 181 at par 6 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and at 291-3 referred to

REPATRIATION COMMISSION v RONALD KEITH GOSEWINCKEL

VG 650 of 1998

WEINBERG J

14 SEPTEMBER 1999

MELBOURNE

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A MEMBER

THE COURT ORDERS THAT:

1.                  The decision of the Veterans’ Appeal Division of the Administrative Appeals Tribunal given on 29 October 1998 be set aside.

2.                  The matter be remitted to the Veterans’ Appeal Division of the Administrative Appeals Tribunal to be dealt with according to law.

3.                  There be no order as to costs.

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

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A MEMBER

REASONS FOR JUDGMENT

1                     This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from part of a decision of the Veterans’ Appeal Division of the Administrative Appeals Tribunal (“the AAT”) given on 29 October 1998.

2                     By that decision the AAT set aside a decision of the applicant which had been affirmed by the Veterans’ Review Board.  The AAT decided that the respondent veteran’s generalised anxiety disorder was war-caused.  The effect of the AAT’s decision was to render the Commonwealth liable to pay pension to the veteran pursuant to s 13(1) of the Veterans’ Entitlement Act 1986 (Cth) (“the VE Act”).  The veteran first claimed such pension on 22 November 1995.

3                     The errors of law said by the applicant to have been made by the AAT were described in the applicant’s submissions as falling into two distinct categories.

4                     These were:

Diagnosis

(a)                First, the AAT applied the wrong standard of proof in resolving the question whether the veteran was suffering from the disease of generalised anxiety disorder – ground (a).

(b)               Second, the AAT misconstrued Statement of Principles No 48 of 1994 as amended by Instrument No 275 of 1995 (“the SOP”), and failed to consider whether all of the necessary indicia for generalised anxiety disorder were present in the veteran’s case – ground (b).

Causation

(c)                Third, in resolving the question whether the veteran’s generalised anxiety disorder was war-caused, the AAT misconstrued the SOP so that the AAT failed to determine whether the hypothesis raised by the material before the AAT was upheld by the SOP (as sub-s 120A(3) of the VE Act required) – ground (c).

The relevant legislative framework

5                     Section 9 of the VE Act prescribes the circumstances in which a veteran’s injury or disease should be taken to be “war-caused”.  That section relevantly provides:

“(1)     Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, 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;

…”

6                     The term “operational service” has the meaning given by ss 6 to 6F – see s 5C.  Those sections include s 6A which deals with operational service in each of the world wars.  It was not disputed before the AAT, and is not disputed before me, that during the period 27 April 1942 to 6 October 1945 the veteran rendered “operational service” within the meaning of that expression in s 6 of the VE Act.  That fact has important implications so far as the standard of proof is concerned.

7                     Section 120 of the VE Act relevantly provides:

“(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 affected by section 120A.

(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

…”

8                     Section 120A which is said to “affect” ss 120(1) and 120(3) was introduced into the VE Act by Act No 98 of 1994.  It relevantly provides:

“(1)     This section applies to any of the following claims made on or after 1 June 1994:

            (a)     a claim under Part II that relates to the operational service rendered by a veteran;

            (b)     a claim under Part IV that relates to:

                     (i)      the peacekeeping service rendered by a member of a Peacekeeping Force; or

                     (ii)     the hazardous service rendered by a member of the Forces.

Note 1:         Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2:         For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

…

(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.

            …”

9                     Section 196B of the VE Act (to which reference is made in s 120A(3)) sets out the functions of the Repatriation Medical Authority (“the Authority”), a body established pursuant to s 196A of the Act.  Section 196B relevantly provides:

“(1)     This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

            (a)     operational service rendered by veterans; or

            (b)     peacekeeping service rendered by members of Peacekeeping Forces; or

            (c)     hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

            (d)     the factors that must as a minimum exist; and

            (e)     which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Note 1:         For sound medical-scientific evidence  see subsection 5AB (2).

Note 2:         For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

Note 3:         For factor related to service see subsection (14).

…”

10                  On 18 October 1994 a Statement of Principles in relation to Generalised Anxiety Disorder was determined by the Authority.  It is in the following terms:

“Statement of Principles

concerning

GENERALISED ANXIETY DISORDER

ICD CODE: 300.02

Veterans' Entitlements Act 1986

subsection 196B(2)

1.         Being of the view that there is sound medical‑scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are:

(a)       having been a prisoner of war; or

(b)       experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or

(c)       experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder; or

(d)       inability to obtain appropriate clinical management for generalised anxiety disorder.

2.         Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to l(d) must be related to any service rendered by a person.

3.         The factors set out in paragraphs 1(c) and l(d) apply only where:

(a)     the person's generalised anxiety disorder was suffered prior to a period, or part of a period, of service to which the factor is related; and

(b)     the relationship suggested between the generalised anxiety disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5)(A)(d) of the Act.

4.         For the purposes of this Statement of Principles.

“generalised anxiety disorder” means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):

(a)       excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:

            (i)      the person finds difficult to control; and

            (ii)     which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for previous six months:

(A)     restlessness or feeling keyed up or on edge;

(B)     being easily fatigued;

(C)    concentration difficulties or mind going blank;

(D)    irritability;

(E)     muscle tension;

(F)     sleep disturbance (difficulty falling or staying asleep, or

          restless unsatisfying sleep); and

            (iii)    the focus of which is not confined to features of an Axis I disorder, for example, it is not about:

(A)     having a Panic Attack (as in Panic Disorder); or

(B)     being embarrassed in public (as in Social Phobia); or

(C)    being contaminated (as in Obsessive-Compulsive Disorder); or

(D)    being away from home or close relatives (as in Separation Anxiety Disorder); or

(E)     gaining weight (as in Anorexia Nervosa); or

(F)     having multiple physical complaints (as in Somatization Disorder);or

(G)    having a serious illness (as in Hypochondriasis); and

            (iv)    it does not occur exclusively during Post‑Traumatic Stress Disorder; and

            (v)     either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b)       which is not due to the direct physiological effects of:

            (i)      a drug of abuse; or

            (ii)     a medication; or

            (iii)    a general medial condition (such as hyperthyroidism); and

(c)       which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.

“DSM-IV” means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;

“stressful event” means an occurrence which evokes feelings of anxiety or stress.”

The factual background

11                  The condition which the veteran claims entitles him to a pension is what is variously described as “anxiety disorder”, or “generalised anxiety disorder”.

12                  Two psychiatrists gave evidence on this subject before the AAT.  They disagreed as to whether the veteran presently suffers from such a condition. 

13                  Dr George P Wahr was called on behalf of the veteran.  In his opinion, the veteran presently suffers from a chronic anxiety state, with an impairment of twenty-five percent.  This anxiety state is significantly related to his war service.

14                  Dr Nigel Strauss was called on behalf of the Repatriation Commission.  In his opinion the veteran has developed two specific mild phobias as a consequence of his war time experiences but does not presently suffer from any anxiety disorder or anxiety state. 

15                  The veteran himself said he first began smoking and drinking during his years of war service.  He claimed to have been “very unsettled” after the war ended.  He developed a duodenal ulcer in 1947.  He said he had at that time been very anxious and upset, had difficulty in sleeping, and had begun drinking quite heavily.  He retired in 1979, unable to continue working because of his general anxiety.  He separated from his wife in 1982, and they divorced in 1983 or 1984.

The relevant legal principles

16                  The AAT found that this material pointed to an hypothesis which connected the veteran’s wartime service with his anxiety state.  In arriving at this conclusion, the AAT applied the principles concerning the operation of ss 120(1) and 120(3) of the VE Act which had been expounded by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Byrnes v Repatriation Commission (1993) 177 CLR 564.

17                  In Bushell (supra) the High Court noted that ss 120(1) and 120(3) of the VE Act were introduced in 1986, when the VE Act was itself enacted.  These subsections were intended to stem what the government perceived to be a flood of claims following upon the decision of the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422, which dealt with the legislative precursor to the VE Act.  The decision in O’Brien was seen as stating principles which were unduly favourable to veterans’ claims, rendering acceptance of those claims virtually automatic. 

18                  The legislative solution which was adopted was summarised by Heerey J in Deledio v Repatriation Commission (1997) 25 AAR 396 at 401-2:

“The 1985 amendments were considered by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 … and Byrnes v Repatriation Commission (1993) 177 CLR 564 ….  It is convenient to note first that the latter case laid down clearly the methodology to be applied.  Mason CJ, Gaudron and McHugh JJ said (at 571 …):

“The position may be summarized as follows:

(1)        First, subs (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, subs (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.”  (Emphasis added.)

In the earlier case of Bushell, Mason CJ, Deane and McHugh JJ expounded the concept of reasonable hypothesis, particularly in relation to questions of expert medical evidence.  Their Honours said (at 414 …):

“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.  Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran.  However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon.  So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service.  Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.””

19                  Heerey J then examined the history of the 1994 amendments to the VE Act, including in particular the enactment of ss 120A, 196A and 196B.  His Honour noted that the reason given for the introduction of those provisions was that the standard of proof expounded by the High Court in Bushell and in Byrnes had been viewed by the government as confusing and complex, excessively generous, and as offering the potential for exploitation.  That was because these decisions enabled the “reasonable hypothesis” test to be fulfilled so long as the theory or opinion of a single medical practitioner supported a connection between the condition and war service.

20                  The mechanism chosen by the government to meet the difficulties brought about by the decisions of the High Court was the “Statement of Principles” (“SoP”) which was to be determined by an expert medical body, the Authority.  The Minister said (Hansard, 9 June 1994, p 1808):

“The bill will, in effect, define by reference to such statements of principles the concept of ‘reasonable hypothesis’, as it appears in subsection 120(3) of the Veterans’ Entitlement Act.  The result will be that a medical hypothesis linking particular kinds of injury, disease or death with war service that does not have a sound medical-scientific base will no longer be sufficient to constitute a ‘reasonable hypothesis’.  This will be a matter solely for the expert medical authority to determine.”

21                  Later in his speech, the Minister said (p 1809):

“The government acknowledges the special status of veterans.  It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous repatriation system, without having to return to a civil standard of proof for the determination of claims.”

22                  Notwithstanding the trenchant criticisms of the manner in which ss 120(1) and 120(3) had been interpreted by the High Court, the 1994 amendments left intact both the reverse onus of proof beyond reasonable doubt, and the concept of a “reasonable hypothesis”.  The new regime of SoPs was to be given an operation consistent with each of those concepts, as expounded in Bushell and in Byrnes. 

23                  In Deledio (supra), Heerey J explained the role of SoPs at 411:

“If an SoP applies to the particular kind of injury, disease or death in question, a hypothesis will no longer satisfy the test of reasonableness merely by having some expert evidence to support the medical-scientific aspects of the hypothesis.”

24                  His Honour continued at 411-2:

“But 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 SoP’s 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, p 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.”

25                  These passages from Heerey J’s judgment were cited with approval by a Full Court of this Court (Beaumont, Hill and O’Connor JJ) when it subsequently dismissed the appeal:  Repatriation Commission v Deledio (1998) 83 FCR 82.  In a joint judgment, their Honours stated at 97:

“At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, 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 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 s 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 so doing, no question of onus of proof or the application of any presumption will be involved.”

26                  The parties before me agree that the last sentence in par 2 of the passage from the judgment of the Full Court set out above is inaccurate in one respect.  Mere inaction on the part of the Authority does no more than render s 120A of the VE Act inapplicable.  The hypothesis will then be considered on its merits in accordance with the principles laid down in Bushell and in Byrnes.  It is only where the Authority has formally declared that it will not make an SoP that the hypothesis will be taken not to be reasonable and, in consequence, the application will, of necessity, fail.  Putting that minor qualification to one side, Deledio provides an authoritative exposition of the interrelationship between subss 120(1) and 120(3) and a 120A of the Act.

27                  The AAT, in its reasons for decision in the present case, referred to the judgment of Heerey J in Deledio, and also to the judgment of the Full Court.  It endeavoured to follow the steps laid down by the Full Court when it sought to resolve the conflict between the experts as to whether the veteran suffered from generalised anxiety disorder.

28                  The AAT referred specifically to the judgment of Beazley J in Preston v Repatriation Commission (1993) 45 FCR 214.  Her Honour there held that in a matter where the veteran had rendered operational service it had been an error of law for the AAT to apply the reasonable satisfaction standard under s 120(4) of the VE Act in deciding whether or not the veteran was suffering from a morbid condition.  The conflict as to diagnosis was to be determined in accordance with the reasonable hypothesis standard in ss 120(1) and (3). 

29                  It should be noted that Beazley J delivered her judgment in Preston on 10 September 1993.  That judgment predated the enactment of ss 120A and 196B of the VE Act.  Her Honour dealt with the relationship between ss 120(1) and 120(3) in circumstances where, as in the present case, it was accepted that the veteran had rendered operational service.  The veteran in that case claimed to have suffered from post-traumatic stress syndrome.  This, he contended, resulted from his war time experiences.  Psychiatric evidence was adduced which supported his claim.  Other psychiatric evidence was adduced which suggested that he exhibited no psychiatric disorder and no abnormal stress reaction.  The issue before her Honour was which standard of proof should be applied when determining whether the veteran was suffering from post-traumatic stress syndrome.

30                  Beazley J concluded that the standard of proof which governed a finding as to whether or not a veteran was suffering from a particular injury or disease was that set out in s 120(1), and not s 120(4), of the VE Act.  In arriving at this conclusion, her Honour relied heavily upon the observations of Brennan J, as his Honour then was, in Bushell (supra).

31                  Brennan J described the operation of subss 120(1) and (3) at 425-6 as follows:

“Sub-section (1) governs the finding of each of the relevant facts on which entitlement depends:  the circumstances of the veteran’s operational service, the veteran’s morbid condition and, relevantly, the causal connexion between the two:  “a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”  Sub-section (3) contains a particular provision relating to the last of those issues.  Sub-section (3) is not directed either to the morbid condition of the veteran or to the circumstances of the veteran’s operational service, but solely to the hypothesis connecting the two.  Unless the material before the decision-maker, unaffected by any notion of onus of proof or by any presumption, raises a reasonable hypothesis of a causal connexion between the morbid condition and the veteran’s operational service, the decision-maker is directed to form the relevant negative conclusion specified in par. (a), (b) or (c).  … it is clear that any reasonable hypothesis raised by the material must relate to the circumstances of the instant case, that is to say, it must relate to the morbid condition and to the circumstances of the veteran’s operational service which the decision-maker finds to exist.  The finding of these facts is governed solely by sub-s. (1).” (emphasis added)

32                  In Preston Beazley J was invited by counsel for the Repatriation Commission to hold that Brennan J’s observations (which directly supported the veteran’s case) were erroneous, and were not supported by any of the other members of the High Court in Bushell. 

33                  Beazley J rejected this submission.  In her reasons for judgment (at 220-1) her Honour set out several passages from the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell.  Her Honour then observed:

“In my opinion, there is no relevant distinction between the joint judgment and the reasons of Brennan J in respect of the operation and relationship of s 120(1) and (3).  It follows therefore that the Tribunal erred in law in determining the application on the balance of probabilities.”

34                  The AAT delivered its reasons for decision in the present matter on 29 October 1998.  It followed the decision of Beazley J in Preston (supra), as it was bound to do.  In dealing with the conflict between Dr Wahr and Dr Strauss, it concluded that it was required to accept the diagnosis of anxiety state made by Dr Wahr unless satisfied beyond reasonable doubt that there was no sufficient ground for making that diagnosis.  Given Dr Wahr’s impressive qualifications, it is hardly surprising that the AAT was not so satisfied. 

Repatriation Commission v Cooke – The Full Court overrules Preston

35                  On 23 December 1998 a Full Court of the Federal Court comprising French, Drummond and Carr JJ delivered its judgment in Repatriation Commission v Cooke (1998) 160 ALR 17.  In that case the veteran claimed that both his anxiety state and back condition were war-caused.  The Repatriation Commission had rejected his application.  Its decision was upheld on review by the Veterans’ Review Board.  On appeal to the AAT, the decision of the Veterans’ Review Board was set aside and the matter remitted to the Commission for calculation and payment of disability pension.  The Commission appealed under s 44 of the AAT Act to the Federal Court.  The appeal was heard by a Full Court because the AAT was constituted by a presidential member who was a Judge of the Court.  The issue was whether the standard of proof to be applied in deciding whether the veteran suffered from the disease of anxiety state was the reasonable hypothesis standard, as contained in s 120(1) of the VE Act, or the reasonable satisfaction standard, as contained in s 120(4) of the VE Act.  The Full Court held that the decision of the AAT as to anxiety state should be set aside for error of law.

36                  The Full Court concluded that the history of the legislation indicated that the reasonable hypothesis standard had been introduced in 1986 when the VE Act was enacted solely for the purpose of determining whether an injury, disease or death was war-caused.  All other matters, including questions of diagnosis, were to be dealt with by the reasonable satisfaction standard in s 120(4). 

37                  The Full Court observed that it made good sense to apply the reasonable satisfaction standard to the question whether a disease or injury existed given that evidence concerning that issue was far more likely to be readily available than evidence relevant to causation.  The Court observed that the language of ss 120(1) and (3) assumed the existence of a relevant disease or injury.  The function of those sub-sections was to specify the standard of proof to be used when determining whether the disease or injury related to the operational service rendered by the veteran, and not whether the veteran was presently suffering from any such disease or injury.

38                  The Full Court held that Beazley J had erred when her Honour held that the observations of Brennan J in Bushell had, in effect, been approved by the other members of the High Court in that case.  The Full Court considered that, in their joint judgment, Mason CJ, Deane and McHugh JJ had at no stage addressed the question of what standard of proof should govern matters of diagnosis.  Their Honours had been concerned with a different question, namely whether, once injury or disease was established, it could be shown that it was war-caused.

Ground (a) – Did the AAT apply the wrong standard of proof to the diagnosis issue?

39                  Mr Hanks, who appeared on behalf of the applicant, submitted that I was bound by the decision of the Full Court in Repatriation Commission v Cooke (supra) to hold that the AAT had erred in law in applying the wrong standard of proof to the determination of whether the veteran was suffering from generalised anxiety disorder.  Although the AAT was bound to follow the decision of Beazley J in Preston at the time it delivered its reasons for decision on 29 October 1998, Preston was overruled by the judgment of the Full Court in Cooke, delivered on 23 December 1998.  Cooke must therefore be taken to have declared the law definitively as it was, although not known to be, at the time the AAT determined the present proceeding.  In that sense, Mr Hanks submitted, the issue before the Court was a simple one.  The error of law was clearly demonstrated.

40                  Mr Croyle, on behalf of the veteran, made what he initially described as a formal submission that the decision of the Full Court in Cooke was erroneous.  While conceding that I was bound to follow the Full Court’s decision, he wished to protect his rights in the event that this matter went on appeal.

41                  Mr Croyle did not ultimately confine his submission in that way.  He submitted, in the alternative, that a careful reading of the decision of the High Court in Byrnes demonstrated that, whatever might have been thought to be the position before Byrnes, the High Court had, in that case, given its imprimatur to the approach adopted by Brennan J in Bushell.

42                  Mr Croyle drew attention to a passage in the joint judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes (supra) which he submitted made good this contention.  Their Honours were dealing with the question of whether the veteran’s claim was dependent on proof that he had sustained a severe injury.  They stated at 571-2:

 “If the appellant had been able to prove that he sustained a severe injury to his neck, part of the hypothesis would have been proved.  Indeed, proof of a severe injury would have been the factual foundation of another hypothesis leading to the same conclusion but with a higher degree of probability than the hypothesis upon which the appellant was forced to rely.  Similarly, proof beyond reasonable doubt that the appellant had not suffered a severe injury would have disproved the hypothesis put forward by Dr Rowden.  In the absence of proof that the appellant had or had not sustained a severe injury, however, his case had to be determined by examining whether it was a reasonable hypothesis that his spondylosis was caused by an injury to his neck which occurred when he dived into a shallow pool causing him to be hospitalized for three days.  His case could succeed even though there was no evidence that the 1943 incident had resulted in severe injury.  Sustaining severe injury was part of the hypothesis; it was not a matter for proof or evidence in his case.”

43                  Mr Croyle submitted that, in this passage, the High Court had at least tacitly approved the approach to the standard of proof on matters of diagnosis adopted by Brennan J in Bushell.  He submitted that the question whether a severe injury had been sustained (or a disease contracted) had been treated by their Honours as an issue to be dealt with in accordance with the reasonable hypothesis approach set out in ss 120(1) and (3) of the VE Act, and not the reasonable satisfaction approach in s 120(4) of that Act.  It followed that the decision of the Full Court in Cooke had been delivered per incuriam.  The members of the Full Court in that case had failed to appreciate that the High Court in Byrnes had determined that the appropriate standard of proof in matters of diagnosis was the reasonable hypothesis standard.  Beazley J had therefore correctly determined this issue in Preston.

44                  Mr Croyle further submitted that the decision of the Full Court in Cooke was also erroneous because it had been delivered without reference to the earlier decision of the Full Court in Deledio (supra) which, he contended, also supported the views of Beazley J in Preston.

45                  I am unable to accept the submission that the decision of the Full Court in Cooke was delivered per incuriam.  I see nothing in the passage in Byrnes to which Mr Croyle has referred which suggests that the High Court in that case gave approval to the observations of Brennan J in Bushell.  The passage in the joint judgment, when read in context, is not a statement of principle which addresses the standard of proof in matters of diagnosis.  It deals with proof of injury in the distant past; not with the veteran’s present condition where that alone is in dispute.  It is important to note that in Byrnes it was “assumed” that the injury in question had occurred, whereas the very diagnosis of “generalised anxiety disorder” is in dispute in the present case.  Byrnes does not concern, or at least does not directly concern, the question of diagnosis of present illness or injury.

46                  If I am wrong about the nature of the issues addressed by their Honours in the passage referred to in the joint judgment in Byrnes, I would still say that the particular reasoning was not integral to the outcome of the appeal in that case.  However authoritative a pronouncement of the law by the High Court may be, a dictum of that Court is not binding upon me when I am faced with a decision of the Full Court of the Federal Court which is directly on point.

47                  It should be noted that in Cooke, at 21, the Full Court referred in terms to the decision of the High Court in Byrnes and, in particular, to page 571 of the judgment.  That page contains the very passage upon which Mr Croyle relied in support of his contention that in Byrnes the Court had endorsed the views of Brennan J in Bushell.  It is plain that the Full Court in Cooke did not understand the joint judgment in Byrnes to have endorsed those views.  Neither do I. 

48                  I see nothing in the judgment of the Full Court in Deledio which is in any way supportive of the views of Beazley J in Preston, or in any way inconsistent with the judgment of the Full Court in Cooke.  Even if I were persuaded that Deledio and Cooke were in conflict, I would unhesitatingly follow the decision in Cooke.  Cooke was decided more recently than Deledio, and deals specifically with the very issue before me.  Deledio at best does so only by implication.

49                  The question of which standard of proof should be applied when determining whether a veteran is injured, or is suffering from a disease, was neither addressed nor resolved in either Byrnes or Deledio.  In my opinion, the principles which govern the resolution of this question are correctly stated by the Full Court in Cooke, a decision which, in any event, is binding upon me.  Accordingly, the applicant must succeed in relation to this first, and primary, ground of appeal.

Ground (b) – Did the AAT misconstrue the SoP?

50                  It is, strictly speaking, unnecessary to resolve this issue having regard to the fact that the application must, in any event, succeed.  However, because the matter will be remitted to the AAT for reconsideration, it is desirable that I indicate briefly my views concerning both this ground of appeal and ground (c).

51                  The applicant contends that the AAT misconstrued the relevant SoP by failing to consider whether the indicia for generalised anxiety disorder were present in the veteran’s case.  Generalised anxiety disorder is a disease which is defined by the presence of certain designated symptoms.  Those symptoms must exist for the period specified in the SoP.  The presence of some only of those symptoms, or the presence of all of the requisite symptoms for less than the specified period, would not permit a diagnosis of the disease.

52                  The AAT clearly had some of the requisite symptoms in mind when it referred to the evidence of Dr Wahr.  The AAT stated at par 18:

“At first Dr Wahr was reluctant to discuss the symptoms in the SoP definition.  When he was pressed to do so in re-examination, he said that in his opinion symptoms a(ii) (A), (C), (D) and (F) and possibly symptom (E) were all present.  As to symptom (a)(i) he said that in his opinion Mr Gosewinckel for many years controlled his anxiety and worry by excessive drinking.”

53                  The AAT made no reference at this point in its reasons for decision, when dealing with the question of diagnosis, to the essential criterion prescribed by par (a)(v).  That criterion is as follows:

“(v)     either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

54                  Moreover, the applicant submitted, the AAT should also have considered the exclusionary criteria in pars (a)(iii) and (iv), (b) and (c) of the definition. 

55                  It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP.  As the Full Court held in Shelton v Repatriation Commission [1999] FCA 181 at par 6 the SoP requires that the disease in question be “manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease”.

56                  Mr Hanks submitted that the AAT should have asked itself whether it was reasonably satisfied that the veteran was suffering from generalised anxiety disorder, as defined in clause 4 of the SoP – that is, it should have asked itself:  “Are we reasonably satisfied that the diagnostic criteria prescribed by the SoP as essential for a diagnosis of generalised anxiety disorder have occurred more days than not for at least six months?” 

57                  I accept this submission in so far as it relates to the AAT’s failure to approach the prescribed criteria through s 120(4) rather than ss 120(1) and (3) of the Act.  I would not, however, have been disposed to allow this application merely because the AAT did not refer in terms to par (a)(v) of the SoP at this point in its reasons for decision, and did not refer to the exclusionary criteria in pars (a)(iii) and (iv), (b) and (c) at any point in those reasons, apart from setting out the SoP in par 31.

58                  While Dr Wahr did not, in terms, refer to those criteria, it seems to me to have been implicit in his report, and in his evidence, that in his opinion the veteran currently met each of the requisite criteria for generalised anxiety disorder as set out in the SoP.  Had the AAT applied the correct standard of proof, it would have been open to it to have so concluded.

59                  The AAT’s reasons for decision should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed – Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and at 291-3.  The AAT’s failure when dealing with the issue of diagnosis to advert, in terms, to each and every aspect of generalised anxiety disorder, as set out in cl 4 of the SoP, does not mean that it did not have regard to each of those aspects, whether positive or exclusionary in nature.  Had ground (b) stood alone, the application before the Court would not have succeeded.

The causation issue – ground (c)

60                  Mr Hanks submitted that cl 1 of the SoP set the template within which the hypothesis connecting generalised anxiety disorder with the veteran’s service was required to fit.  That clause required that there be no more than two years between the experience of the “stressful event”, and “the clinical onset of generalised anxiety disorder”.

61                  In dealing with the causation issue, it was necessary for the hypothesis raised by the material before the AAT to include the elements prescribed by the SoP – Deledio v Repatriation Commission (supra) at 412.  The medical-scientific standard prescribed in the SoP required that the veteran’s circumstances fall within cl 1(b) since none of the other alternatives within cl 1 were applicable.  If the hypothesis raised by the material did not satisfy that requirement, it could not be upheld by the SoP.

62                  Mr Hanks submitted that the AAT fell into a number of distinct errors at this stage of its reasoning.  It is not necessary to set out the entirety of his argument in all its detail.  It is sufficient to note that he criticised the AAT’s reasons for decision in so far as the AAT determined in par 32 that there could be a “clinical onset” of a disease before the condition satisfied all of the requirements of the disease in the SoP, and before the symptoms had been present for six months.  Mr Hanks submitted that if the existence of the disease is defined by the presence of the prescribed symptoms for a specified period, it is not possible to say that the presence of some of those symptoms for a shorter period meets the definition.  According to the prescribed medical-scientific standard the symptoms only indicate the presence of the disease if they all persist for “more days than not for at least six months”.

63                  The AAT in its reasons for decision at par 34 referred to evidence by Dr Wahr that the veteran’s anxiety may have caused “clinically significant distress”.  That is one of the symptoms described in par (a)(v) of the SoP.  The AAT concluded that the presence of the symptoms described in par (a)(ii)(A) of the SoP’s definition of the disease, namely “restlessness or feeling keyed up or on edge”, indicated the “clinical onset” of the disease by the end of the war.

64                  The SoP requires the presence of a number of distinct symptoms, of which “clinically significant distress” and “restlessness or feeling keyed up or on edge” are only part.  Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present. 

65                  I am prepared to treat the AAT’s analysis of the diagnosis issues as implicitly conforming to the requirements of the template but, having regard to the manner in which the AAT dealt with Dr Wahr’s evidence, it is more difficult to conclude that the causation issue was resolved in accordance with those requirements.  The reasoning of the AAT in pars 32, and 34-5, in particular, suggests that it was not.

66                  Mr Hanks submitted that the AAT, rather than giving primacy to the SoP, had preferred the opinion of Dr Wahr.  That approach was inconsistent with the requirements of s 120A(3) of the VE Act, as explained by the Full Court in Repatriation Commission v Deledio (supra), and defeated the objectives of the 1994 amendments, as spelt out in the relevant extrinsic material.

67                  The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP.  Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of “purely medical … issues” out of the hands of bodies such as  the AAT – Explanatory Memorandum to Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3.  Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable – see Deledio v Repatriation Commission (supra) at 411-2.  An hypothesis that fails to fit within the template will be deemed not to be “reasonable”, and the claim will fail.

68                  The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP.  The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran’s generalised anxiety disorder was not war-caused.

Conclusion

69                  Because the AAT failed to apply the prescribed standard of proof to resolve the conflicting medical evidence and determine whether the veteran is suffering from generalised anxiety disorder, this application must be allowed.  The matter must be remitted to the AAT to determine that issue by applying s 120(4) of the VE Act by reference to the diagnostic criteria prescribed in the SoP.

70                  If upon remittal the veteran is found to be suffering from generalised anxiety disorder, the question whether any such disorder is war-caused must be determined in accordance with the template prescribed by the SoP as applied to such material as is placed before the AAT in support of that contention.

71                  The applicant has properly conceded that if the application is successful there should be no order as to costs.

Associate:

Dated: