FEDERAL COURT OF AUSTRALIA

Symons v Repatriation Commission [2001] FCA 534

DEFENCE AND WAR – Ex-servicemen – veterans’ entitlements – application for pension in respect of cervical spondylosis – applicable statement of principles – whether applicable statement of principles one in force at time of Commission’s decision refusing pension or at time of decision of Administrative Appeals Tribunal or at any time between those two times at which a statement of principles more favourable to veteran was in force

Repatriation Commission v Keeley (2000) 98 FCR 108 discussed

Gorton v Repatriation Commission [2001] FCA 286 discussed

PETER SYMONS v REPATRIATION COMMISSION

N 1381 OF 2000

LINDGREN J

9 MAY 2001

SYDNEY

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS M T LEWIS (SENIOR MEMBER) AND DR P D LYNCH (MEMBER)

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS M T LEWIS (SENIOR MEMBER) AND DR P D LYNCH (MEMBER)

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant (“Mr Symons”) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 28 November 2000.  By that decision the Tribunal affirmed two decisions of the respondent (“the Commission”) refusing to grant Mr Symons a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).  The first decision was one given on 11 June 1996 by which the Commission refused a claim made by Mr Symons on or about 5 September 1995 of Cervical Spondylosis.  The second decision was one given on 17 April 1997 by which the Commission refused a claim made by Mr Symons on or about 27 March 1997 of Post Traumatic Stress Disorder (“PTSD”).

2                     On 11 April 1997, Mr Symons lodged with the Veterans’ Review Board (“the Board”) an application for review of the first decision.  On 28 April 1997 he lodged with the Board an application for review of the second decision.

3                     On 21 October 1997 the Board affirmed both decisions and Mr Symons was advised accordingly on 3 November 1997.  On 3 February 1998 he lodged with the Tribunal his application for review of both decisions.

background facts

4                     Mr Symons was born on 31 December 1953.  He served in the Royal Australian Navy from 14 July 1969 to 13 March 1991.  This included a period of “operational service” (in Vietnam) from 21 October 1970 to 12 November 1970, when Mr Symons was stationed on HMAS Sydney, and a period of “defence service” from 7 December 1972 to 13 March 1991, for the purposes of the definitions of those expressions in the Act.  (In fact Mr Symons also served in the Navy in the intervening period between 12 November 1970 and 7 December 1972, but counsel informed me that it was only from the latter date that the Act covered his service as “defence service”.)

5                     Mr Symons claimed that his cervical spondylosis was war-caused on the basis that it was attributable to one or more of several falls he had during the period of his eligible defence service, which, according to his claim, caused trauma to his cervical spine, which, in turn, gave rise to the spondylosis.  At the date of the determination of his claim by the Commission, there was in force a Statement of Principles as amended by two later Statements of Principles, relating to “Cervical Spondylosis”, in each case determined by the Repatriation Medical Authority under subs 196B(3) of the Act.  The original Statement of Principles was Instrument No 102 of 1995 dated 8 March 1995, the first Amendment of Statement of Principles was Instrument No 331 of 1995 dated 29 August 1995 and the second Amendment of Statement of Principles was Instrument No 355 of 1995 dated 3 October 1995.

6                     After the Commission’s decision, Instrument No 102 of 1995 and its two amending Instruments were revoked and replaced by Instrument No 162 of 1996 dated 9 December 1996.  This Instrument pre-dated both the Board’s decision (on 21 October 1997) and the lodging of the application for review with the Tribunal (on 3 February 1998) (and therefore also the Tribunal’s decision itself on 28 November 2000).  The definition of “trauma to the cervical spine” differed as between Instrument No 102 of 1995 as amended and Instrument No 162 of 1996.  In particular, whereas the definition in the former required “acute symptoms and signs” to “last for a period of at least ten days immediately after the injury occurr[ed], unless medical intervention ha[d] occurred”, the definition in the latter laid down a lesser period of “at least one week” and was therefore, in its terms, in this respect more favourable to Mr Symons.

7                     But two instruments subsequent to the lodgment (on 3 February 1998) of the application for review with the Tribunal, but prior to the decision of the Tribunal (on 28 November 2000), namely, Instruments Nos 57 of 1998 and 32 of 1999, amended Instrument No 162 of 1996 by again requiring that the symptoms subsist for at least ten days.  I will have occasion later to discuss Mr Symons’ contention that the Tribunal erred by failing to apply the more favourable Instrument No 162 of 1996.

8                     The claim for war-caused PTSD was based on Mr Symons’ operational service.  His claim before the Commission was that he suffered from PTSD with associated Major Depression and Alcohol Dependence as diagnosed by his treating psychiatrist.  At the date of the determination of this claim by the Commission (17 April 1997), there was in force a relevant Statement of Principles in Instrument No 16 of 1994 dated 14 September 1994 as amended by Instrument No 225 of 1995 dated 1 June 1995 relating to “Post Traumatic Stress Disorder”.  The Tribunal was not reasonably satisfied that Mr Symons met the terms of Instrument No 16 of 1994 as so amended or the terms of another Statement of Principles which it considered – that for “Depressive Disorder”.

legislative background

9                     For convenience, I set out the summary of the legislative scheme given recently (on 21 March 2001) by Stone J in Gorton v Repatriation Commission [2001] FCA 286 (“Gorton”) at [5]:

·        “A veteran who has become incapacitated from a war-caused injury or disease is entitled to a pension; s 13. An injury or disease is taken to be war-caused if it results from an occurrence that happened while the veteran was on operational service; ss 5D(2), 9.

·        An applicant’s claim that the relevant injury or disease is war-caused must be accepted unless the Repatriation Commission is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination; s 120(1).

·        The Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination if, after considering the whole of the material before it, it is of the opinion that there is no reasonable hypothesis connecting an applicant’s injury or disease with operational service; s 120(3).

·        Subject to the next two points below, there is such a reasonable hypothesis only if there is in force a relevant Statement of Principles or determination of the Commission that upholds the hypothesis; s 120A(3).

·        Section 120A(3) does not preclude there being a reasonable hypothesis connecting an applicant’s injury or disease with his operational service provided that there is no Statement of Principles determined under s 196B(2) in respect of the relevant kind of injury or disease and the Repatriation Medical Authority has not declared under s 196B(6) that it does not propose to make such a Statement of Principles; s 120A(4).

·        If the Repatriation Medical Authority has given notice under s 196G that it intends to carry out an investigation into the relevant kind of injury or disease, the Commission is not to determine the applicant’s claim until the investigation is determined; s 120B(2).

The Act also provides that:

·        except in making a determination to which s 120(1) or (2) applies, the Commission shall decide the matter to its reasonable satisfaction; s 120(4);

·        the Commission is not entitled to assume that an injury or disease is war-caused; s 120(5); and

·        nothing in the Act or its provisions imposes an onus of proving any matter concerning the claim on a claimant or applicant for a pension, the Commonwealth, the Department or any other person.”

grounds of appeal

Ground 1 (par 4.1(b) of grounds in the amended notice of appeal) – failure to afford natural justice (procedural fairness)

10                  Mr Symons submits that the Tribunal failed in its obligation to accord him natural justice (procedural fairness) because it considered and dealt with the hypothesis that he had a “Depressive Disorder” when it had not raised that possibility so as to afford him an opportunity to make submissions and, if he thought fit, to lead further evidence, in relation to that diagnosis.

11                  At [144] of its Reasons for Decision the Tribunal stated:

“That the Applicant suffers from a psychiatric condition is not at issue, although the diagnosis of the condition from which he suffers is at issue.”

Mr Symons submits that this statement was erroneous because the Commission had argued that he did not suffer from a psychiatric condition of any kind.  In response, the Commission draws attention to evidence given by Dr Robert David Lewin, Psychiatrist, who had been called by the Commission, that Mr Symons suffered from a “mixed personality disorder” rather than PTSD, (although, according to Dr Lewin, a conclusion to this effect could be only a qualified one in view of the lack of a clear history).

12                  Mr Symons’ attack does not depend on his submission that the Tribunal misstated the parties’ positions in the respect mentioned.  The thrust of his attack lies in what followed.  After considering the question of PTSD against the definition contained in the Statement of Principles and concluding that Mr Symons failed to meet essential aspects of that definition so that the hypothesis of PTSD related to war service failed, the Tribunal went on to consider an alternative possible diagnosis of “Depressive Disorder”.  In this respect the Tribunal’s Reasons for Decision contained the following heading and paragraphs:

“Depressive Disorder

147.          It is now necessary to consider evidence in respect of alternative diagnoses that have been proposed.  The real difficulty with the evidence of Dr Altman is his propensity to generalise rather than providing evidence specific to the case at issue.  Doing the best we can with his evidence and the other psychiatric evidence before us, the Tribunal is reasonably satisfied that the Applicant has at an earlier point in time suffered from major depression, associated with his domestic and marital problems that commenced in 1974 and were exacerbated in 1983.  Taking into account all the psychiatric evidence and the evidence of the Applicant, the Tribunal is reasonably satisfied that depressive disorder is now the correct diagnosis for the Applicant’s claimed condition.  The Tribunal is reasonably satisfied that he continues to suffer from a depressive disorder.

148.          The parties did not make any submissions about an alternative diagnosis for the claimed condition, although the Tribunal made it apparent to the parties at the end of the first day of hearing that the differential diagnosis of the Applicant’s psychiatric condition should be addressed in further evidence.  Therefore, doing the best we can with the evidence now before us, the Tribunal will consider whether a reasonable hypothesis has been raised in respect of the relationship between the Applicant’s depressive disorder and his operational service.  There was no suggestion in the evidence that his later defence service was implicated causally.” (my emphasis)

13                  Later, the Tribunal concluded that the Statement of Principles for “Depressive Disorder” (Instrument No 65 of 1996) was not satisfied and that the hypothesis of Depressive Disorder was “no more than left open by the evidence”.

14                  Mr Symons does not dispute that the Tribunal was required to investigate, and make up its mind about, alternative diagnoses, that is, diagnoses alternative to PTSD, but he submits that the Tribunal erred by failing to give the parties an opportunity to make submissions, and, if appropriate, to gather and present further evidence, in relation to the alternative diagnosis with which it proposed to deal.  Mr Symons relies on Repatriation Commission v McLean (1998) 27 AAR 136.  In that case Davies J held that the Tribunal’s decision was flawed because the Tribunal had failed to accord procedural fairness to the Commission.  The Tribunal had not told counsel for the Commission that it was considering the application of a particular clause of the relevant Statement of Principles which had not been mentioned during the hearing by the doctor who had given evidence in support of the applicant’s claim or by counsel for the applicant.  Davies J said that if counsel for the Commission had been aware that the particular clause was to be relied upon, he would have wished to ask further questions of the doctor and may have wished to adduce evidence on the point.  His Honour said (at 141):

“This is a plain case where the Tribunal based its decision on a point which was not raised as an issue in the proceedings before the Tribunal.  The Commission therefore did not have a fair opportunity to bring forward the matters on which it would have wished to rely had it known that the point was an issue.”

His Honour remitted the matter to the Tribunal for re-hearing because of the lack of procedural fairness.

15                  Counsel for the Commission, on the other hand, submits that “just what psychiatric disorder the appellant suffered from was the subject of extensive evidence brought by both parties” and that it is not open to Mr Symons to argue now that the Tribunal was wrong to consider the diagnosis of Depressive Disorder.  This submission requires that attention be given to the course of the hearing before the Tribunal.

16                  The oral hearing took place on 3 June 1999 and 3 April 2000.  The members of the Tribunal were Mrs M T Lewis, Senior Member and Dr P D Lynch, Member.  On the first day there were reports from three doctors in evidence before the Tribunal relating to Mr Symons’ claim of PTSD.  First, there were two reports, dated 17 March and 20 October 1997, of Dr Graham Mark Altman, Consultant Psychiatrist, Mr Symons’ treating psychiatrist, which were among the documents lodged with the Tribunal by the Commission pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).  The final paragraph of Dr Altman’s first report was as follows:

“In summary, in my opinion as a result of his Vietnam experience Mr Symons suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence.” (my emphasis)

Dr Altman’s second report stated that Mr Symons continued to have severe symptoms of PTSD.

17                  Secondly, there was a report dated, 28 May 1998, of Dr Lewin, Forensic Psychiatrist, to the Department of Veterans’ Affairs, which concluded that it was likely that Mr Symons had a “mixed Personality Disorder” and “a trait of obsessionality” but that he was not suffering any current psychiatric illness, that he (Dr Lewin) did not find evidence of an anxiety disorder or depressive condition and that there was no sign of morbid mental illness.

18                  Thirdly, the Tribunal had before it a report, dated 5 March 1999, by Dr Malcolm Dent, Consultant Psychiatrist, to Mr Symons’ solicitors, which stated:

“I don’t believe he now suffers from Major Depression, although I believe there is a significant depression evident.

His description of symptoms given to me is in accord with diagnosis of Dysthymia, but again if that is argued then I would settle for the diagnosis of Depressive Disorder (NOS [Not Otherwise Specified]), which exists for the same purpose in the DSM IV at point 311.

We are looking at an illness that has got a depressed mood for most of the day for more days than not for over 2 years, where there are the presence of low energy or fatigue, low self-esteem, inertia and suicidal feelings at times then this equates with a significant Depression and not one that is based on effects of alcohol, but rather another contributory cause to the reason why he abuses alcohol; he’s described how alcohol makes it worse.

On reflection, I think the Depressive Disorder (NOS) is probably also suitable and appropriate in diagnoses, by way of category.” (my emphasis)

The use of capital letters in the expression “Major Depression” suggests a recognised diagnosis.

19                  At the beginning of the first day of the hearing before the Tribunal, counsel for Mr Symons stated that his client’s claim had been initially presented as one of PTSD but that Dr Dent had offered a “more generalised diagnosis of anxiety disorder not otherwise specified”.  There followed the following exchanges between the presiding Member and counsel for Mr Symons:

“MRS LEWIS:             Well, that would go to the SOP [Statement of Principles] generalising anxiety disorder, which is numbers 275 and 276 1995.

MR VINCENT:           What I would submit is that the diagnosis of anxiety disorder not otherwise specified actually does not fall within the generalised anxiety disorder SOP, but this basis that the generalised anxiety disorder SOP is given an ICD code of 300.02 and the ICD code for anxiety not otherwise specified is 300.00.  Thus, the issue of the SOP doesn’t arise.”

20                  Towards the end of the first day, the following exchanges took place between counsel for Mr Symons and the presiding Member:

“MRS LEWIS:             ¼As I see the psychiatric question at the moment, we have Dr Altman saying he has PTSD and he’s the treating psychiatrist.  We are not planning to hear from him.  We have Dr Dent saying that he has a generalised anxiety condition for which there is no SOP and we are not planning to hear from him.

MR VINCENT:           He also of course talks of alcohol abuse and depression.

MRS LEWIS:               Yes.  The depression comes in under his generalised anxiety diagnosis which, when you look at DSM4, has got a depression component to it.

MR VINCENT:           Yes but I would submit that he has also separately identified it as depressive disorder which does come within the depressive disorder Statement of Principles.  There are two separate arms to it.

MRS LEWIS:               Thank you.  Then we have Dr Lewin who says he doesn’t suffer from anything at all, no psychiatric condition.  Then we have peppered through the documents, including the service documents that have just been provided, evidence of frequent psychiatric consultation and treatment over quite an extended period.  I don’t want to determine what you do but there’s a very diverse set of alternative[s] there that at the end of the day the Tribunal is going to have to pull together.  I just hope you believe that at the end of the day we are going to have the best evidence to be able to pull them together.

MR VINCENT:           I have no doubt that you won’t have the best evidence but I am able to indicate that the reason Dr Dent or indeed any until Dr Benanzio was arranged that the applicant was not calling any medical witnesses was because there was no funding to permit same.  That policy decision in respect of this matter was changed within the last week and Dr Benanzio was able to be obtained at short notice.

I have no instructions on this, but it may well be that Dr Dent can be called or Dr Altman now and I think if they can it would certainly cut down the scattergun problem.” (my emphasis)

21                  In the second passage attributed to Mr Vincent, counsel for Mr Symons, he was relying on the alternative diagnosis by Dr Dent of Depressive Disorder within the Depressive Disorder Statement of Principles.  Counsel for Mr Symons on the present appeal, again Mr Vincent, submits that the entire passage set out above was merely “exploratory” in nature and that it was the evidence of Dr Altman called by Mr Symons and Dr Lewin called by the Commission on the resumed hearing on 3 April 2000 that mattered.

22                  In my opinion, in the passage set out above counsel for Mr Symons squarely raised both possible diagnoses, PTSD and Depressive Disorder, and the presiding Member made it clear that the Tribunal would consider both and invited counsel for Mr Symons to lead further evidence as to the correct diagnosis.  Accordingly, what the Tribunal said in the first sentence of par 148 of its Reasons for Decision (emphasised by me in [12] above) was in substance correct.

23                  On the resumed hearing on 3 April 2000, Dr Altman and Dr Lewin testified.  After the evidence on that date concluded, there were exchanges between Senior Member Lewis and both Mr Wright who appeared for the Commission on that occasion and Mr Vincent who again appeared for Mr Symons.  The exchanges included the following:

“MS LEWIS:               ¼I think the question, particularly if the applicant doesn’t have a GARP5 assessment is, have we got enough evidence to assess.  You don’t need to answer that now, you may need to consider that question.

MR VINCENT:           Yes, I think I can indicate the view though which is I think there is probably not sufficient to assess on the psychiatric component in that all we have, of all the various people that have seen the applicant and the only person to offer a GARP 5 assessment is Dr Dent and that of course is under a slightly different diagnosis which may not satisfy you in some way and I think it is probably appropriate that it be remitted.  That’s what I have indicated to Mr Wright today.  There is evidence, but there is a relative course and I think it probably appropriate to remit.  You are…

MS LEWIS:                 You see if you remit you are able to rectify the paucity of the evidence before, if you do it quickly, before the assessment is made and then of course it can be appealed if necessary.  If you ask the Tribunal to make a decision on poor evidence then you’ve got nowhere to go.

MR VINCENT:           That’s right and Dr Dent’s report is nearly 13 months old in any event¼.” (my emphasis)

24                  Mr Symons submits that this passage is irrelevant because it related only to the rate of pension, not to the question of the correct diagnosis.  I do not agree.  While it is related to the assessment of a rate, in the passage emphasised by me counsel for Mr Symons was referring to Dr Dent’s alternative diagnosis of Depressive Disorder, albeit as a diagnosis which might not satisfy the Tribunal.

25                  Following the hearing, written submissions were made on behalf of Mr Symons on or about 12 July 2000 and written submissions in response were made on behalf of the Commission on or about 24 October 2000.  The former contained the following:

“It is submitted that the Applicant should be determined by the Tribunal to be found to be suffering from a psychiatric disorder, for which the appropriate diagnosis is Post Traumatic Stress Disorder with associated Major Depression and Alcohol Dependence, as diagnosed by Dr Altman.”

Again, the capitalised initial letters suggest a recognised diagnosis.

26                  The Commission now submits as follows:

“In circumstances where, as apparently conceded by the Appellant before the Tribunal, the evidence concerning PTSD was weak, and where his own witnesses had referred to Depressive Disorder, it was entirely appropriate for the Tribunal to consider the latter diagnosis.”

27                  I accept this submission.  While Dr Altman used the expression “associated Major Depression” (my emphasis), this was sufficient, in the context of the exchanges between the Tribunal and counsel, to alert counsel to the likelihood that the Tribunal would consider the alternative diagnosis of “Depressive Disorder”.  In any event, Dr Dent in his report, and counsel for Mr Symons on the first day of the hearing, clearly referred to “Depressive Disorder” as an independent diagnosis. 

28                  I do not accept Mr Symons’ submission that the statement made by his counsel on that occasion that he suffered from a “Depressive Disorder” within the Depressive Disorder Statement of Principles somehow lost its significance for present purposes by reason of anything that happened at the resumed hearing on 3 April 2000.  On the contrary, in my view the events on the latter occasion confirmed that the alternative diagnosis of Depressive Disorder was an issue in the case. 

29                  In my view the hypothesis of Depressive Disorder was sufficiently clearly articulated to alert Mr Symons to the fact that the Tribunal proposed to deal with it on the evidence that was before it.

30                  For the above reasons, the first ground of appeals fails.

Ground 2 (pars 4.1(a), 4.2(a), 4.2(b) of amended grounds of appeal) - cervical spondylosis

31                  The Tribunal inquired whether Mr Symons had suffered “a trauma to the cervical spine before the clinical onset of cervical spondylosis” (factor (ea) introduced into clause 1 of  Instrument No 102 of 1995 by the first amending Instrument No 331 of 1995) and applied the definition of “trauma to the cervical spine” introduced into Instrument No 102 of 1995 by the second amending Instrument No 355 of 1995.  That definition was as follows:

“’Trauma to the cervical spine’ means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred.  Where medical intervention for the injury has occurred (eg. splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;”

32                  Mr Symons testified before the Tribunal about various falls he sustained during his service and of the suffering of pain and discomfort after them.  These were referred to by the Tribunal as the “wharf incident”, the “ladder incident”, the “hatch incident” and the “electrocution incident”.  Mr Symons submitted to the Tribunal that these incidents individually constituted trauma within the definition of “trauma to the cervical spine”.  The Tribunal stated:

“84.     The Tribunal notes the evidence of the Applicant in respect of each of the specific events, and finds in relation to each event that it does not meet the definition of ‘trauma to the cervical spine’ as identified [the reference is to the definition introduced by Instrument No 355 of 1995 set out above].

85.              If, however, the Tribunal was required to use the definition of ‘trauma to the cervical spine’ as it appears in Instrument No 331 of 1995 [the relevant difference was that the earlier definition merely required that pain, swelling or tenderness be caused within 24 hours after the injury and did not require altered mobility or range of movement of the joint or a continuance of acute symptoms and signs for any period beyond the initial 24 hours], the Tribunal would first have to consider the issue of credit raised by the Respondent, that was also a concern for the Tribunal.  The Tribunal did not consider the Applicant to be an impressive witness.  He was at best a poor historian.  Moreover, the Tribunal remains concerned about the total lack of formal reporting by the Applicant of any of these events.  In contrast the Tribunal notes that in 1975 he reported having fallen down the stairs at home, causing concussion, and telephoning to say that he could not come to work.  However, when he was taken to the Naval base and medically examined, he then decided that he was able to do his work.  The Tribunal is not reasonably satisfied that each of the incidents about which the Applicant gave evidence occurred, and on the same basis the Tribunal cannot be reasonably satisfied that any of the incidents occurred as described.  The Tribunal has also taken the statement of Mr Martin regarding the Applicant’s alleged fall down the hatch into account in making its finding.

86.       Taking into consideration the submissions made by the parties, and the evidence, the Tribunal is not reasonably satisfied that the Applicant suffered an ‘injury to his cervical spine caused by the force of an extraneous physical or mechanical agent that causes pain, swelling or tenderness within the 24 hours after the force has been applied.” (my emphasis)

33                  The “statement of Mr Martin” referred to by the Tribunal in the last sentence of par 85 was a short handwritten statement of Gregory Andrew Martin dated 2 June 1999, which was admitted into evidence.  It contained supporting testimony in relation to the hatch incident and was as follows:

“To whom it may concern:

I, Gregory Andrew Martin, did witness a incident that occurred between 1976-8 where Peter Symons was working above a hull outfit onboard a HMA ship.  He fell from 02 deck through a access hatch into the hull-outfit compartment below.  He appeared to be in considerable pain and was immobile for some time.  He continued to give directions to his sub-ordinates so as to have the compartment secured for sea – as the ship was to sail the next day.

[signed]

G. A. Martin

HMAS Kuttabul

2/6/99”

34                  In addition to what it said in pars 84 to 86 of its Reasons for Decision, the Tribunal also said that it was unable to find that any of the incidents reported in Mr Symons’ evidence met the definition of “trauma to the cervical spine” contained in the later Statement of Principles for Cervical Spondylosis being Instrument No 32 of 1999 which was in place as at the date of the Tribunal’s decision.

35                  Mr Symons submits that there was no evidence before the Tribunal contradicting his own testimony in relation to the four incidents or the testimony of Mr Martin relating to the hatch incident, with the result that the Tribunal erred in law in finding that the events had not happened as alleged (he cites Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).

36                  Alternatively, Mr Symons submits that the Tribunal’s finding is unreasonable since, in the circumstances just mentioned, no evidence reasonably permitted it (he cites Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742 and Norton v Comcare [2000] FCA 1068). 

37                  Alternatively, Mr Symons submits that it is to be inferred that the Tribunal did not believe Mr Symons or Mr Martin; that it was not put to Mr Symons in cross-examination or by the Tribunal that the incidents had not happened or that they had happened in a manner different from Mr Symons’ account of them; and that while it was for the Tribunal whether or not to accept a witness’s testimony, that discretion is not at large, and the Tribunal’s finding, made contrary to the testimony of Mr Symons and of Mr Martin but without a testing of that testimony or communication of any doubts held in relation to it, constituted a denial of natural justice and an error of law.

38                  Counsel for the Commission, on the other hand, submits that the findings of which Mr Symons complains concerned factual matters in relation to which the Tribunal was able to observe Mr Symons’ demeanour.  Counsel points out that the Tribunal’s Reasons for Decision make it clear that it did take into account Mr Martin’s statement (see par 85 of the Tribunal’s Reasons for Decision set out in [32] above).  Counsel also points to the non-specific nature of the account contained in Mr Martin’s statement.

39                  Further, counsel for the Commission submits that there was evidence before the Tribunal which cast doubt, to say the least, on Mr Symons’ allegation that he fell some 40 feet, yet, apparently, did not sustain any major injury and did not seek medical attention.  The cross-examination of Mr Symons included the following:

“It sounds to me as though that’s quite a serious fall and you were lucky not to at the very least break some bones, if not kill yourself? – I know it was very lucky I didn’t break any bones but I didn’t break any bones.

You didn’t seek any medical attention for it? – People fall down on ships every day and don’t seek medical attention.  It is a common occurrence.

They fall 40 feet? – They fall off antennas, they fall off all over the place and they don’t seek medical attention.  That’s just the way it is at the coal face in the service.”

40                  Dr Mario Benanzio, Orthopaedic Surgeon, called by Mr Symons, was also questioned about Mr Symons’ alleged forty feet fall.  The doctor said:

“¼it rather odd that someone comes down 40 feet and has no injury of that sort.  I would have expect 40 feet to cause something more, but what the patient had, luckily, was not an extremely severe injury, unbelievable, but, yes some neck ache which I say he could have occur slipping down 4 feet, 6 feet.”

Later, Dr Benanzio also said:

“So 40 feet landing on metal and not sustaining severe injuries but as I say that is very strange.  We say many strange, I would say is impossible.  I say is difficult to believe but could have happened.  It could have happened if he has been really greatly lucky 40 feet.” (my emphasis)

Counsel for the Commission relies on the well-accepted proposition that a wrong finding of fact or want of logic does not necessarily establish error of law.

41                  In reply, counsel for Mr Symons refers to Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 for the proposition that while there is no appealable error of law if a trial judge refuses to accept evidence not challenged in cross-examination, an error of law may arise in the manner in which the evidentiary rule relating to the weight and cogency of the unchallenged evidence is dealt with or in a failure to give any or adequate reasons for rejecting the unchallenged evidence.

42                  It should be noted that in par 85 of its Reasons for Decision set out in [32] above, the Tribunal referred to a fall by Mr Symons down the stairs at his home.  There was in evidence before the Tribunal a Naval daily medical record in relation to Mr Symons for 27 February 1975 which contained the following:

“DIAGNOSIS

            Concussion

Cause of Injury (to be recorded on first reporting only)

            Fell down stairs (NOT ON DUTY)

Physical Examination, Symptoms and Treatment

Sailor p/u [apparently “picked up”] from home following a phone call to say he would not be coming to work as he fell down stairs and had concussion

                         Eyes =  react to light

                         No neck stiffness

                         No bumps on the head

                         No headache

                        Awake & coherent

                        Small scratch on stomach

                        Sailor claims he was alright & could carry out his duty.”

43                  The Tribunal observed that Mr Symons had made no reference to this incident in his evidence.  Counsel for Mr Symons draws attention to the fact that his client was not questioned as to the completeness or the accuracy of the entry.

44                  The Tribunal reviewed Mr Symons’ testimony in some detail.  Its discussion can be seen to have dealt with:

(1)               the wharf incident;

(2)               the ladder incident;

(3)               the hatch incident; and

(4)               the electrocution incident.

According to Mr Symons, these incidents were as follows:

(1)               on an occasion in the period 1972-1973, while stationed on HMAS Advance, he was carrying a heavy battery (approximately 40 kilograms) slung around each shoulder up a ladder from a pontoon to Darwin wharf, when he slipped 6-8 rungs and the consequent jolting of the batteries injured him;

(2)               Mr Symons had a less severe accident on a patrol boat when he was again carrying a heavy battery (more than 50 kilograms), this time down a short aluminium ladder, when he slipped and slid down the ladder;

(3)               at some time in the period 1976-1978 Mr Symons was pulling a cable on HMAS Torrens when it gave way and he fell backwards and down a hatch from “two deck” to the bottom of “five deck” and landed on his back on the hatch combing, the distance of the fall being estimated by him variously at “two and a bit storeys” or 40 feet (this was the incident to which Mr Martin’s statement related);

(4)               on HMAS Torrens Mr Symons was electrocuted and thrown across the sonar control room against some sonar cabinets and knocked unconscious.

45                  Mr Symons was questioned about these incidents, including, about their immediate sequelae.  For example, in relation to (1) (the wharf incident) he said:

“Everyone keeps on asking me how long did I feel pain for.  I don’t recall.  It was 28 years on and pain subsides after a while but I can’t recall what period of time it was.”

Later, in relation to the same incident, the following exchanges occurred:

“Now, on this particular occasion that you’ve just described to me now, how long did the pain last for? – I couldn’t remember exactly.

Well, was it a matter or [sic – of] minutes or hours or what? – No, no.  I stayed on the pontoon for quite a while but I don’t know exactly how long.  It would’ve been less than an hour before I could get up the ladder and then the fishermen helped me get the rest of the batteries up and load them in the car and I still managed to drive the car to base staff.”

46                  In relation to (2) (the ladder incident), the following exchange occurred:

“And the second incident where you were on the patrol boat, do you remember how long your acute symptoms lasted on that occasion? – Probably a few hours on that incident.  The bad back pains would’ve only been short term but the cuts and abrasions lasted for a while so – but actual back pain.”

47                  In relation to (3) (the hatch incident), the following exchange took place:

“How were you after that day? – I was probably sore for days but I don’t know how many days.”

48                  In relation to (4) (the electrocution incident), there was the following exchange:

“¼how long were you sore for? – I can never remember.  While you’re occupied you’re sort of, it deadens the pain for a while.  As long as you keep yourself occupied, you are all right. 

Can you recall whether you were sore on any day after that actual day? – Probably were.  I don’t know for how long after that but it is always noticeable.”

49                  I set out pars 84 to 86 of the Tribunal’s Reasons for Decision at [32] above.  The Tribunal declared itself not reasonably satisfied that the four incidents had occurred and not reasonably satisfied that they had occurred as described by Mr Symons.  It declared itself not reasonably satisfied that even the less stringent definition of “trauma to the cervical spine” in Instrument No 331 of 1995 was satisfied, let alone the more exacting one of Instrument No  355 of 1995.

50                  The Tribunal gave reasons for not being reasonably satisfied of these matters.  In substance, it did not accept Mr Symons’ testimony about them, describing him as “at best a poor historian”.  A reading of the transcript shows that throughout Mr Symons’ time in the witness box the Tribunal was giving him opportunities to give more detail of the four incidents and of their effect on him, but that that detail was not forthcoming.  The members of the Tribunal observed Mr Symons testify over a lengthy, although broken, period on both days of the hearing.  The Tribunal referred specifically to the lack of reporting of any of the four incidents, while noting that Mr Symons had had no difficulty in reporting the fall down the stairs at his home.

51                  I have found nothing in the authorities referred to by counsel for Mr Symons to suggest that the Tribunal erred in law in any of the respects identified in the second ground of appeal.  In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ stated (at 356):

“Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

This passage is concerned with the drawing of inferences and is not relevant to non-acceptance of a witness’s testimony.  Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 was also concerned with the making of findings of fact and the drawing of inferences.  In Norton v Comcare [2000] FCA 1068, Drummond J acknowledged that if the reasons given by a decision-maker show that the decision has been arrived at “in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness” (at [20]).  That is not this case.  I note, in passing, that his Honour said of the testimony of the applicant’s wife in that case (at [38]):

“The Tribunal considered her partisan.  It only accepted so much of her evidence as told against her husband’s case.  It was entitled to do this.  It was for the Tribunal to evaluate the reliability of her evidence.” (my emphasis)

52                  For the above reasons the present ground of appeal is not made out.

Ground 3 (par 4.2(c) of amended grounds of appeal) – whether the Tribunal required Mr Symons to discharge an onus of proof

53                  In pars 84 to 86 of its Reasons for Decision (set out at [32]), the Tribunal used the expression “is not reasonably satisfied” twice and the expression “cannot be reasonably satisfied” once.  Mr Symons submits that the use of those expressions shows that the Tribunal was requiring him to discharge an onus of proof.  While subs 120(4) of the Act provides that the Commission must decide “to its reasonable satisfaction”, subs 120(6) provides that this requirement is not to be taken to impose on a claimant or applicant for a pension or increased pension, “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application”. 

54                  Mr Symons submits that:

“the words used in pars 84 to 86 do not permit the conclusion that the Tribunal found to its reasonable satisfaction that the incidents described did not in fact occur, or did not occur in terms consistent with the relevant definition in the cervical spondylosis instrument”. 

55                  I accept, however, the Commission’s submission that Mr Symons’ submission lacks substance.  The Tribunal’s use of the expressions “not reasonably satisfied” and “cannot be reasonably satisfied” do not indicate, to my mind, that the Tribunal treated Mr Symons as bearing an onus of proof.  Rather, the expressions are simply descriptive of the Tribunal’s state of mind in relation to the evidence before it.  I adopt the following passage from the Reasons for Judgment of Weinberg J in Mason v Repatriation Commission [2000] FCA 1409 (at [83]) as reflecting my view in relation to the present case, even though the Tribunal here did not deliver “only oral reasons”:

“I am of the opinion that the AAT was well aware of its obligations under the legislation, and that it correctly followed the decision-making process set out in s 120 of the VE Act.  The AAT was entitled to arrive at its decision, and I do not believe that it did so via an erroneous method.  It must be remembered that the AAT delivered only oral reasons. This may go some way to explaining its use of the language of “satisfaction”.  That language may, in some cases, reflect error. It may demonstrate that an administrative body has impermissibly had recourse to the concept of an onus of proof.  I am of the view, however, that no such error occurred in this case.”

56                  The present ground of appeal is not made out.

Ground 4 (par 4.1(c) of amended grounds of appeal) – the Commission’s submissions

57                  The Commission filed and served written submissions that were 150 pages long.  A letter, dated 24 October 2000, from the Advocate for the Commission to the Tribunal which enclosed the submissions stated as follows:

“Please note that despite the voluminous nature of same, not all of same will need to be read, other than for reference purposes as the need arises.

In that regard, all of Part A contains a precis of the evidence given, detailing Transcript numbers.

Part B concerns the submissions on Cervical Spondylosis.  Again, most of this refers back to, and reprises the evidence of Part A under various headings, for ease of reference.  The relevant parts concerning the gist of the submissions for this part of the appeal is at 96-112, especially at pages 96-107.  Other sections are of lesser relevance, however the index deals with different topics again for ease of reference.

Part C is set out in similar vein, the most relevant part being pages 138-148, although again, various headings dealing with relevant topics, referring to and reprising the evidence, also are included.  A list of authorities is also appended, dealing with authorities in the order they are referred to.” (emphasis in original)

Copies of the Commission’s submissions and of this covering letter were sent to counsel for Mr Symons.

58                  Mr Symons’ solicitors wrote to the Tribunal on 13 November 2000 as follows:

“In our view the submissions are excessive for the nature of the matter before the Tribunal.  As a result neither the Applicant’s legal representatives nor the Legal Aid Commission has the resources available for the Applicant to authoritatively assess the accuracy of the Respondent’s submissions.”

59                  Mr Symons submits that by proceeding to give its decision without consulting with the parties in response to his solicitors’ request, the Tribunal denied him natural justice because it denied him “a real opportunity to address those parts of the respondent’s submissions that the Tribunal was focussing upon”.  He submits that the Commission’s Advocate’s letter did not overcome the problem because, in the parts of the submissions referred to in that letter, there were numerous cross-references to other parts of the submissions.

60                  There is no suggestion, however, that Mr Symons did not have access to, or the opportunity to make submissions concerning, all the evidence that was before the Tribunal.  Similarly, apart from the suggestion relating to Depressive Disorder referred to earlier, he does not submit that he was not aware of the issues which were before the Tribunal.

61                  Mr Symons’ solicitors’ letter of 13 November 2000 amounted to an assertion that the solicitors did not intend to read or address the whole of the Commission’s submissions because, in effect, they were not to be funded to do so.

62                  While the submissions may be considered “excessively long” and while one may have sympathy for a legal practitioner in the predicament of lacking funding to respond to lengthy and detailed submissions of an opposing party, those circumstances do not establish a failure to accord procedural fairness.  The present ground is not made out.

Ground 5 (par 4.3 of amended grounds of appeal) – failure to consider a Statement of Principles that was more beneficial to Mr Symons

63                  Ground 4.3 of the amended grounds of appeal is that the Tribunal “erred in finding that Instrument 162 of 1996¼could not be applied to [Mr Symons’] claim”.

64                  A difference between the various Statements of Principles to which reference was made before me was the period for which acute symptoms and signs were required to last immediately after, relevantly, the injury occurred. 

65                  Instrument No 102 of 1995 dated 8 March 1995 did not define “trauma to the cervical spine”.  Instrument No 331 of 1995 dated 29 August 1995 introduced new factors (ea) reading “suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis” and (g) reading “suffering a trauma to the cervical spine before the clinical worsening of cervical spondylosis”, and the following definition of “trauma to the cervical spine”:

“‘trauma to the cervical spine’ means injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes pain, swelling or tenderness within the 24 hours after the force has been applied”. 

The two factors mentioned have been repeated in subsequent Instruments but the definition of "trauma to the cervical spine” has changed.  According to the definition in Instrument No 331 of 1995 set out above there was no minimum period of duration of symptoms.  That was the position when Mr Symons lodged his application for the pension on or about 5 September 1995.  Shortly afterwards, on 3 October 1995, Instrument No 355 of 1995 introduced the definition of “trauma to the cervical spine” set out at [31] above.  That was the definition in effect when the Commission decided on 11 June 1996 to refuse Mr Symons’ claim of cervical spondylosis.  It will be recalled that in that definition the required period of duration of symptoms was “at least ten days”. 

66                  In Instrument No 162 of 1996 dated 9 December 1996, which was in operation at the time of the lodgement (on 3 February 1998) of Mr Symons’ application to the Tribunal for review of the Commission’s decision, the required period was only “at least one week”.  But between lodgment of that application and the Tribunal’s decision (on 28 November 2000), Instruments Nos 57 of 1998 and 32 of 1999 amended Instrument No 162 of 1996 and the longer period of “at least ten days” was restored.

67                  The Tribunal stated as follows:

“60.     Because the issue of the appropriate Statement of Principles to be applied is still being litigated in the High Court, the Tribunal will in the first instance, attempt to apply the Statements of Principles in place at the time of the primary decision (relying on the Applicant seeking to rely on his accrued rights, and on the most recent Statement of Principles, that is, No 32 of 1999).  The Tribunal rejects the submission of the applicant that, applying Keeley [Repatriation Commission v Keeley (2000) 98 FCR 108]¼it is open to the Tribunal to apply the Statement of Principles in place at the time the claim was lodged with the Tribunal.  The Tribunal also rejects the submission of the Applicant that, applying Keeley, it is open to the Tribunal to apply any later Statement of Principles that is more in his favour, that is Instrument No 162 of 1996.  That Statement of Principles does not find favour in the issue of ‘accrued rights’ which relate specifically to the matter being determined according to the legislation in place at the time the primary decision was made.  The only alternative, to the Statement of Principles in place at the time of the primary decision is the current Statement of Principles, that being Instrument No 32 of 1999: Re Olsen and Repatriation Commission [2000] AATA 909, 18 October 2000.”

68                  Counsel for Mr Symons submits as follows:

“It has recently been held in Gorton v Repatriation Commission [2001] FCA 286 that where the right accrued to a claimant (confirmed to exist by Repatriation Commission v Keeley (2000) 31 AAR 150) is of no benefit to the claimant, the Commission is to proceed to apply a later instrument that is more beneficial to the claimant.  (It is noted that in Gorton there were two later instruments that were for relevant purposes in the same terms).  The Tribunal has thus committed an error in refusing to apply Instrument 162 of 1996 to the Applicant’s claim.”

69                  Gorton’s case, referred to in this submission, was decided on 21 March 2001, that is, since the Tribunal’s decision in the present case.  In Gorton, there were two competing Statements of Principles: one less favourable to the applicant which had been in operation at the time of the Commission’s decision and the other more favourable to the applicant which had come into operation subsequently and prior to the Tribunal’s decision.  Stone J held that the Tribunal was required to apply the Statement of Principles in force at the time of the Tribunal’s decision unless the earlier one was more favourable to the applicant, in which case her Honour accepted that Keeley required that the Tribunal apply that earlier Statement of Principles.

70                  In my opinion, the Tribunal was correct not to apply the unamended Instrument No 162 of 1996.  Neither Keeley nor Gorton required it to do so.  Gorton did not so require because it was not the Statement of Principles in force when the Tribunal decided Mr Symons’ application for review.  Keeley did not so require because it was not operative either at the time of the lodgement by Mr Symons of his application for the pension on or about 5 September 1995 or at the time of the Commission’s decision on that application on 11 June 1996, with the result that there is no scope for saying that Mr Symons had an “accrued right” under the Act to have his claim determined in accordance with that Instrument.

71                  Mr Symons did not submit before me that he was entitled to have the Tribunal decide his claim in accordance with Instrument No 162 of 1996 on the ground that it was in operation at the time of the decision of the Board (on 21 October 1997) and the Board applied it.  Such a submission would have failed.  The decision of the Board was not the decision for the review of which Mr Symons was entitled to apply, and did apply, to the Tribunal.  Because the Board simply “affirmed” the Commission’s decision, Mr Symons was entitled to apply, and did apply, for a review of the decision of the Commission, not that of the Board (cf par 175(1)(a) of the Act).  In the course of his oral submissions in reply, counsel for Mr Symons stated:

“¼, of course, an applicant cannot have recourse to an instrument prior to the primary decision but secondly at any stage of review such as, for example, the intermediate review before the Veterans Review Board, at the time that that review was undertaken it may well be the case that some instrument subsequent to the one before the primary decision-maker was in force but, of course, that instrument might in the future itself be replaced but at that time, if that instrument was beneficial to the applicant on the authority of Gorton, then it is to be applied.”

Counsel’s submission was that Gorton required that the Statement of Principles most favourable to the veteran in force at any time from the time of the decision of the Commission down to that of the Tribunal was to be applied by the Tribunal.  As will be clear from what I have said above, in my view Gorton does not so require.

72                  There is a second reason why the present ground of the appeal fails.  Mr Symons has not identified any respect in which Instrument No 162 of 1996 would have been more beneficial to him in its effect than Instrument No 102 of 1995 as amended by Instruments Nos 331 and 355 of 1995.  It is not enough, for example, for counsel to point to the shorter period of “at least one week” of the former as against “at least ten days” of the latter: he must be able to point to a practical difference in the application of the two periods to the facts of the case.

73                  The Commission submits that whether or not the wrong Statement of Principles was applied, the outcome would have been the same because, on any view, Instrument No 162 of 1996 would not have been satisfied by the evidence before the Tribunal.  The Commission submits that despite frequent questioning of Mr Symons as to the nature of the symptoms he suffered after the various alleged incidents, and the duration of those symptoms, his testimony revealed either that he had no recollection or, that if he did, what he described did not satisfy the definition.

74                  The definition of “trauma to the cervical spine” in Instrument No 162 of 1996 was as follows:

“‘Trauma to the cervical spine’ means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred.  Where medical intervention for the injury has occurred (for example, splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.”

Both counsel referred me to numerous passages of the transcript of Mr Symons’ testimony.  I have re-read them all but will not refer to them.  It suffices to say that it is quite clear to my mind that the result before the Tribunal would have been no different if it had applied this definition.  I set out earlier (in [32]) par 86 of the Tribunal’s Reasons for Decision which shows that the Tribunal was not even reasonably satisfied that Mr Symons suffered “injury to his cervical spine¼that cause[d] pain, swelling or tenderness within the 24 hours after” the injury (taken from the definition in Instrument No 331 of 1995). Yet Instrument No  162 of 1996 required more. It also required, relevantly:

·        that there be altered mobility or range of movement of the relevant part of the spine; and

·        that acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the kind described, last for a period of at least one week immediately after the injury.

On Mr Symons’ testimony, the Tribunal clearly would not have been satisfied that the definition in Instrument No 162 of 1996 was met. Mr Symons impermissibly seeks to use the supposed application of the wrong Instrument to secure a reconsideration of his testimony generally about the four alleged incidents. However, the Tribunal did not accept that testimony as persuasive as to the happening at all of those incidents as described by him.

conclusion

75                  For the reasons given above, the application will be dismissed with costs.

Associate:

Dated:              9 May 2001