FEDERAL COURT OF AUSTRALIA

Demczuk v Repatriation Commission [2003] FCA 1188

VETERANS’ AFFAIRS – Appeal from Administrative Appeals Tribunal – whether Tribunal erred in applying the relevant Statements of Principle (SoP) – whether Tribunal erred in making findings of fact in determining whether there was a reasonable hypothesis in accordance with the relevant SoPs.

Veteran’s Entitlements Act 1986 (Cth)

Byrnes v Repatriation Commission (1993) 177 CLR 564 followed

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Repatriation Commission v Keeley [2000] FCA 532;  (2000) 98 FCR 108 cited

Repatriation Commission v Gorton  [2001] FCA 1194;  (2001) 110 FCR 321 cited

Lees v Repatriation Commission [2002] FCAFC 398;  [2002] 36 AAR 484 cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Mason v Repatriation Tribunal [2000] FCA 1409 cited

Delidio v Repatriation Commission (1997) 47 ALD 261 cited

Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 cited

Arnott v Repatriation Commission (2001) 106 FCR 83 cited

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 cited

Woodward v Repatriation Commission [2003] FCAFC 160;  (2003) 200 ALR 332 considered

VICTOR DEMCZUK v REPATRIATION COMMISSION

S 441 OF 2003

MANSFIELD J

29 OCTOBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application by way of appeal is allowed.

2.         The application by way of cross-appeal is allowed.

3.         The decision of the Administrative Appeals Tribunal made on 31 March 2003, to the extent that:

(a)        it confirmed the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of generalised anxiety disorder; 

(b)        it set aside the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of alcohol abuse and determined that the applicant is entitled to a pension in respect of alcohol abuse;

is set aside.

4.         The application of the applicant to a pension entitlement in respect of: 

(a)                  generalised anxiety disorder;  and

(b)                 alcohol abuse; 

is remitted to the Administrative Appeals Tribunal for re-hearing according to law.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 31 March 2003.  By direction of the Chief Justice, it is to be heard by a single Judge.  The Tribunal:

(1)        confirmed the decision of a delegate of the respondent rejecting the claim by the applicant for pension entitlement under the Veteran’s Entitlements Act 1986 (Cth) (the Act) in respect of the disease called generalised anxiety disorder, and also in respect of the disease called alcohol dependence;  and 

(2)        set aside the decision of a delegate of the respondent rejecting the claim by the applicant for pension entitlement under the Act in respect of the disease called alcohol abuse, and determined that the applicant’s disease of alcohol abuse was war-caused. 

2                     The applicant has appealed from order (1) above to the extent it concerned the disease called generalised anxiety disorder, and the respondent has cross-appealed from order (2) above.

3                     It is agreed between the parties that the appeal by the applicant in respect of his claim based upon generalised anxiety disorder should be allowed.  There is disagreement between them about why the appeal should be allowed, but not about the result of the appeal.  I shall refer to that aspect briefly in these reasons for judgment.  Neither party sought to address the rejection of the applicant’s claim based upon alcohol dependence.  The cross-appeal remained contentious.  For the sense of clarity I shall call the cross-appellant/respondent the respondent in these reasons for judgment. 

4                     The applicant served with the Royal Australian Navy from 22 August 1970 to 29 February 1972.  During the period of his service, from 12 December 1970 to 11 October 1971 he served as an ordinary seaman aboard HMAS Brisbane.  Whilst he was serving aboard HMAS Brisbane, for the period 16 March 1971 to 11 October 1971 he was engaged in ‘operational service’ as defined in ss 6 and 6E of the Act. 

5                     HMAS Brisbane was during that period a destroyer attached to duties on the gun line off South Vietnam.

6                     On 24 May 1999 the applicant lodged a claim for disability pension under Part II of the Act, which was later formulated as claims for disability for generalised anxiety disorder, for alcohol dependence or alcohol abuse, and for bilateral conductive hearing loss.  The claim for hearing loss was accepted.  The claims for disability pension for generalised anxiety disorder, and for alcohol dependence or alcohol abuse, were rejected.

7                     Section 13(1) of the Act renders the Commonwealth liable to pay a disability pension to a veteran where the veteran has become incapacitated from a war-caused disease.  The circumstances in which a disease is taken to be war-caused are set out in s 9(1) of the Act.  Relevantly for present purposes, s 9(1)(a) states that a disease contracted by a veteran shall be taken to be a war-caused disease if it was the result of an occurrence that happened whilst the veteran was rendering operational service.  Section 120(1) of the Act then provides that in respect of such a claim:

‘ … the [Repatriation] Commission shall determine … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.’

Section 120(3) provides:

‘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.’

8                     In the light of the decision of the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, the starting point is the question posed under s 120(3), namely whether:

‘… 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.’

9                     Once a reasonable hypothesis is established, s 120(1) is applied.  Their Honours continued:

‘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.’

10                  Hence, provided the decision-maker is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s diseases were war-caused diseases, the focus reverts to s 120(1). 

11                  However, in addressing s 120(3) it is necessary for the decision-maker to have regard to s 120A.  Relevantly, s 120A(3) provides that the hypothesis connecting a disease contracted by a person with the circumstances of particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.  The hypothesis must be consistent with, or fit, the template of the SoP:  see Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio).  The Full Court (Beaumont, Hill and O’Connor JJ) in Deledio at 97 - 98, specified the following four steps which are to be taken in accordance with ss 120 and 120A of the Act.  They are:

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

2.         If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

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

4.         The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In doing so, no question of onus of proof or the application of any presumption will be involved.’ 

12                  In this instance an SoP was in force in respect of each of the two claimed diseases the subject of the Tribunal’s decision. 

13                  In the case of the disease of generalised anxiety disorder, the relevant SoP was SoP Instrument No.1 of 2000 (gazetted 9 February 2000) (the 2000 Anxiety SoP).  It revoked Instrument No.48 of 1994 (gazetted 26 October 1994) (the 1994 Anxiety SoP).  The 1994 Anxiety SoP was amended by Instrument No 275 of 1995 (gazetted 28 June 1995) (the amended 1994 Anxiety SoP) which was operative at the time that the claim was lodged.  By reason of the decisions of the Full Court in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 and Repatriation Commission v Gorton  [2001] FCA 1194; (2001) 110 FCR 321, the applicant was entitled to have that particular claim addressed by reference first to the 2000 Anxiety SoP, and if he did not qualify under that SoP, by reference to the 1994 Anxiety SoP. 

14                  In respect of the disease known as alcohol dependence or alcohol abuse, Instrument No.76 of 1998 (1 December 1998) (the Alcohol SoP) applied. 

15                  Paragraph 5 of the Alcohol SoP provides:

‘Factors

5.         The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a)               suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)               experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)                suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)               experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)                inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.’

There are definitions of alcohol dependence, and separately of alcohol abuse.  The definition of alcohol abuse is as follows:

‘ “alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence.  Additionally, signs of tolerance or withdrawal are absent.

The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows

            A.  A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

(1)               recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home

(2)               recurrent alcohol use in situations in which it is physically hazardous

(3)               recurrent alcohol-related legal problems

(4)               continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.

            B.  The symptoms have never met the criteria for alcohol dependence.

The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.’

It is also necessary to refer to the definition of the expression ‘experiencing a severe stressor’ in cl 8 and referred to in cl 5(b) and cl 5(d) of the Alcohol SoP.  It provides:

‘ “experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:

(i)                 threat of serious injury or death; or

(ii)               engagement with the enemy; or

(iii)             witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.’

The Tribunal’s Decision

16                  The Tribunal, as is common, introduced its reasons for decisions under a series of headings.  They are:  Background, the Applicant’s Claim, the Proceedings Before the AAT, the Issues (including reference to s 120(1) and (3) and s 120A(3) of the Act, and to the relevant SoPs), Discussion and Evaluation of the Medical Evidence, the Evidence of the Applicant and Peter Werner, the Respondent’s Evidence, and finally Discussion.

17                  It appears from the discussion that, in respect of the claim for alcohol dependence or alcohol abuse, the relevant clause was cl 5(b) of the Alcohol SoP, namely that the applicant had experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.

18                  Under the discussion, the Tribunal concluded that it was not satisfied that the evidence establishes that there was a clinical onset of the applicant’s anxiety disorder.  Reference was made to the evidence of the applicant and to the medical evidence.  The Tribunal concluded that the applicant failed to raise a reasonable hypothesis within the meaning of s 120(3) of the Act establishing a connection between his war service and his generalised anxiety disorder, having regard to the 2000 Anxiety SoP and to the 1994 Anxiety SoP.  Consequently, it affirmed the decision of the delegate of the respondent in relation to that claim.

19                  It is not necessary to refer in detail to the Tribunal’s reasons for determining to affirm the decision that the applicant is not entitled to a pension based upon generalised anxiety disorder.  As noted above, the parties are agreed that, in respect of that aspect of the Tribunal’s decision, the appeal should be allowed and the decision of the Tribunal, to the extent that it confirmed the decision of the respondent rejecting the applicant’s claim to a pension entitlement based upon generalised anxiety disorder, be set aside.  The application for a pension entitlement based upon general anxiety disorder is to be remitted to the Tribunal for re-hearing according to law. 

20                  The applicant indicated that the ground upon which that decision was taken involved the Tribunal’s failure to consider significant evidence of Dr Ewer in reaching the view that there was no evidence pointing to the time of the clinical onset of the applicant’s generalised anxiety disorder.  The Tribunal recorded that Dr Ewer did not indicate when the anxiety disorder first became manifest.  In fact, there was direct evidence from Dr Ewer in a report dated 13 February 2002 to the effect that the generalised anxiety disorder began less than two years after the subject stressors.  Counsel for the respondent, whilst not positively disagreeing with that assertion, indicated that the respondent’s acquiescence in the appeal being allowed to that extent was because of what was described as ‘fundamental errors’ in the way in which the Tribunal approached the decision-making process generally and that such errors permeated the whole of the decision including the decision favourable to the applicant in relation to alcohol abuse.

21                  The Tribunal then turned to the claim based upon alcohol dependence or alcohol abuse.  It noted the medical evidence from Dr Ewer that he drew no distinction between alcohol dependence and alcohol abuse, which it observed to be ‘two quite distinct diseases’ and that Dr Ewer did not attempt to give a time at which either condition became clinically manifest.  The Tribunal then set out at some length its notes of the applicant’s evidence as to his drinking habits. 

22                  As the appeal turned in part upon the following passage of its reasons, I set it out: 

‘Under the provisions of SoP No 76 of 1998 “alcohol dependence” and “alcohol abuse” are defined.  They have been set out above.  The diagnostic criteria for “alcohol dependence” appear to me to involve factors about which there is little or no evidence in the present case.  The applicant did cut down his alcohol intake by about half at one stage so it is difficult to see how Factor 4 in the diagnostic criteria could be satisfied.  I am aware of course that Dr Ewer has diagnosed the applicant as having alcohol dependence or alcohol abuse but, accepting that as being the status of his condition at the present time, there is no evidence to show when this condition became clinically manifest.  The evidence given by the applicant as to his drinking while on HMAS Brisbane does not allow me to conclude that he was alcohol dependent either then or within any finite period thereafter.  The diagnostic criteria suggest a gradual development and progression of this disease over a period of time, so obviously, it is not a diagnosis which could be made solely on the evidence of his binge drinking with his naval colleagues while attached to HMAS Brisbane.  He specifically denied being alcohol affected at any time while he was on duty on board ship.  There is no evidence of “tolerance” as defined or “withdrawal” (see Factors 1 and 2) in the definition of “alcohol dependence”.  There is no evidence to support Factors 3, 5 or 7.  No evidence has been given upon which it could be found that he gave up important social, occupational or recreational activities within a period of 2 years of his return from Vietnam (Factor 6).  In my opinion there is no, or insufficient evidence available for me to find that he had clinically manifested alcohol dependence within that period of time, regardless of whether or not he currently fits the required diagnostic criteria.’ 

23                  The Tribunal then addressed whether the applicant had been shown to have suffered ‘alcohol abuse’ within the Alcohol SoP criteria and definitions ‘within the required two year period’.  It referred to the diagnostic criterion embodied in the Alcohol SoP definition, relevantly to ‘a maladaptive pattern of alcohol use leading to clinically significant impairment or distress as manifest by one (or more) of the following, occurring within a 12 month period’.  It observed that formulation clearly implies that a minimum period of 12 months must be available over which the applicant’s behaviour should be assessed before a diagnosis can be achieved.  It then referred to each of the four criteria or factors in sequence.  It did not think those numbered (1), (2) or (3) applied.  As to the fourth criterion, namely ‘continued alcohol abuse despite having persistent or recurrent social or personal problems caused or exacerbated by the effects of alcohol’, it said:

‘The applicant married his wife about 12 months after his discharge from the Navy.  He says he doesn’t know why she married him, implying that his behaviour towards her left a lot to be desired, due to his alcohol intake.  He says however that they have always had disagreements, often quite violent, in a verbal sense.  My views on his evidence may well have been strengthened had I received some supporting evidence from his family, but after carefully considering the whole of the evidence I feel able to say that I have sufficient confidence in the applicant’s basic veracity to find, as I do, that he was suffering alcohol abuse within the prescribed two year period.  There is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service, and there is no sufficient ground for me to be satisfied beyond reasonable doubt for determining that the disease was not war-caused.  I accordingly determine that it was so caused.’

24                  The Tribunal accordingly determined that the applicant’s alcohol abuse is war-caused within the meaning of the Act.  The decision under review confirmed the Commission’s rejection of a claim based upon generalised anxiety disorder and upon alcohol dependence.

THE SUBMISSIONS

25                  As I understood the submissions made on behalf of the respondent on the cross-appeal, there were three points of criticism of the Tribunal’s decision.  The principal proposition was that the Tribunal operated under some fundamental misconceptions regarding the proper operation of ss 120 and 120A of the Act and the Alcohol SoP.  A secondary and supplementary submission was that the Tribunal erred in addressing the matters in factor 5(b) of the Alcohol SoP because the Tribunal referred to ‘stressful events’ rather than the term ‘experiencing a severe stressor’ used in factor 5(b) and then as defined in the Alcohol SoP.  It was argued that the term in the 2000 Anxiety SoP and in the 1994 Anxiety SoP ‘stressful event’ had a different and more general meaning than the term ‘experiencing a severe stressor’ in the Alcohol SoP, and the Tribunal had wrongly applied the more general term.  Thirdly, it was argued (as an indication also of the more general erroneous approach of the Tribunal) that the Tribunal contradicted itself in concluding that ‘there is no evidence to show when this condition [alcohol dependence or alcohol abuse] became clinically manifest’ in subsequently determining that the applicant suffered alcohol abuse which became clinically manifest within two years of the stressor which it found to exist.

CONSIDERATION

26                  It is convenient to deal with the latter argument first.  In my judgment it represents a misreading of the Tribunal’s reasons in the passages quoted in par [22] above.  As I read that passage, the finding of the Tribunal that:  ‘… there is no evidence to show when this condition became clinically manifest’ is a finding in relation to the condition of alcohol dependence, rather than to the condition of alcohol abuse.  The focus of the Tribunal’s consideration in that paragraph of its reasons is the condition of alcohol dependence.  The concluding sentence refers specifically to alcohol dependence.  The subsequent paragraph in the reasons specifically addresses alcohol abuse.  Earlier in the reasons, the Tribunal noted that alcohol dependence and alcohol abuse are distinct diseases.  It was clearly aware that they are separate conditions and has approached them separately.  It has separately addressed the finding as to when there was the clinical onset of alcohol abuse.  It has made that finding on the basis of the applicant’s evidence, albeit apparently with reservations as appears in the passage in par [22] above.  Its approach to the timing of the clinical onset of alcohol abuse is consistent with the views of the Full Court (Heerey, Moore and Kiefel JJ) in Lees v Repatriation Commission [2002] FCAFC 398;  (2002) 36 AAR 484 at [13] – [14], 488 – 489.

27                  In the light of that conclusion of fact, the Tribunal reached the view that there was material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service, and that there is no sufficient ground for the Tribunal to be satisfied beyond reasonable doubt to determine that the disease was not war-caused.  In accordance with s 120, therefore, it determined that the disease was war-caused.

28                  As to the second of those two points, it is correct that in a relatively indiscriminate way in its consideration of the evidence and the findings, the Tribunal has used the expressions ‘stressful event’ and ‘severe stressor’ and ‘stressor’ somewhat randomly.  However, I do not think the Tribunal is shown to have misunderstood the test which had to be applied for the purposes of the Alcohol SoP.  It set out the definition of ‘experiencing a severe stressor’.  In reciting the things which it had to address for the purposes of considering that aspect of his claim, it again identified the need to address, relevant to factor 5(b) of the Alcohol SoP, whether the applicant experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse, and it again adopted the definition of experiencing a severe stressor in its reasons.  In considering the evidence of the applicant and others, because the evidence related to both the claim for pension in respect of alcohol dependence or alcohol abuse, and in respect of generalised anxiety disorder, the Tribunal seems to have used the expression ‘stressful event’ to encompass within its factual consideration the matters relevant to each of the SoPs referred to. 

29                  The Tribunal referred to the seven stressful events about which the applicant gave evidence.  It also had regard to the evidence of the respondent.  Counsel for the respondent acknowledged that its evidence, in particular the report of Commodore Mulcare dated 7 February 2003, was intended to lay a foundation for persuading the Tribunal that the applicant was being untruthful about the particular stressful events upon which he had placed reliance.  When coming to the findings about the particular instances which it accepted, the Tribunal referred to those incidents as ‘a stressor’ or as ‘a relevant stressor or stressful event as provided in the SoPs’. 

30                  The Tribunal accepted that there were occasions when the applicant and his colleagues were required to carry faulty or suspect shells from a magazine or gun turret to the rear of the ship for disposal.  The Tribunal accepted that each such event constituted a stressful event for the applicant.  It explained why.  It then concluded that it was satisfied that each such occasion was capable of constituting and did constitute a relevant stressor or stressful event as provided in the SoPs.  It also accepted that on one occasion an object in the water which turned out to be mere flotsam and not a mine, but was near to the ship, may have been of concern to the applicant having regard particularly to his watch keeping duties.  It accepted that the incident had the capacity to be a stressor and in its opinion did in fact stress the applicant.  Thirdly, it found there to have been a ‘stressor’ in a confrontation between HMAS Brisbane and several enemy patrol boats, although the applicant did not actually see those enemy boats.  The crew were ordered to action stations and the applicant and others in the gun magazine were locked in to their action stations until anticipated engagement had been completed.  The gun magazine is below the waterline.  He entertained considerable fear that the HMAS Brisbane was then in serious trouble.  The Tribunal accepted that the applicant was seriously stressed by the event. 

31                  It is trite to say that the reasons for decision of the Tribunal should be read sensibly, and not with an eye keenly attuned to the perception of error.  In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said:

‘These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to 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.’

32                  I consider that the Tribunal, notwithstanding the loose use of the expression ‘stressful event’ or ‘stressor’ from time to time in its reasons for decision, has not failed to appreciate that the expression ‘experiencing a severe stressor’ has a particular meaning as defined in the Alcohol SoP.  I also consider that it has not failed to apply the correct meaning of that expression in its consideration of the applicant’s claim to a pension entitlement for alcohol abuse under the Act, or in its application of the Alcohol SoP to its consideration of that claim.

33                  The use of the term ‘stressful events’ appears in the applicant’s statement of issues, facts and contentions recorded by the Tribunal, but it then correctly identifies those claims must be addressed in accordance with the Act and the three SoPs referred to.  It specifically records the definition of ‘stressful event’ in the 1994 Anxiety SoP and to a case discussing its meaning, as well as the definitions of ‘severe psychological stressor’ in the 2000 Anxiety SoP and ‘experiencing a severe stressor’ in the Alcohol SoP.  At the end of its discussion of the medical evidence, the Tribunal identifies the relevant issues under each of the three SoPs, again in terms which reflect accurately the different ‘stressor’ expressions in each of them.  To that point in its reasons, it seems clear the Tribunal was aware of the different definitions. 

34                  It is only in the Tribunal’s consideration of the evidence of the applicant and the respondent that the Tribunal might be seen to have treated the three different definitions as one, by its use of the expression ‘stressful events’.  However, I do not consider it did so.  The focus of that part of its reasons is upon whether any of the seven claimed stressful events occurred, rather than upon their particular character under one or other of the SoPs.  The respondent urged the Tribunal to find the applicant was untruthful about those events.  Ultimately the Tribunal was satisfied that three of them had occurred.  Its findings are summarised in [22] above.  But I do not consider the Tribunal’s consideration of that evidence shows that it misunderstood, or misapplied, the Alcohol SoP.  It was not at that point addressing the SoPs at all, except to the extent of determining what the applicant had in fact experienced during his operational service.

35                  In the ‘Discussion’ section of its reasons, the Tribunal posits the question whether the ‘stressful events’ which it found to have occurred took place within two years immediately before the clinical onset of alcohol dependence or alcohol abuse:  cl 5(b) of the Alcohol SoP.  The following discussion relevantly concerned the time of onset of the clinical manifestation of alcohol dependence and of alcohol abuse.  Ultimately the Tribunal found the applicant suffered alcohol abuse within the period specified in cl 5(b) of the Alcohol SoP from the time he experienced the ‘stressful events’.

36                  What is missing from the discussion at that point is explicit consideration of whether the ‘stressful events’ which the Tribunal found the applicant to have suffered amounted to him ‘experiencing a severe stressor’ as defined in the Alcohol SoP.  But in my judgment, that is because the Tribunal had already reached the view that they each amounted to the applicant ‘experiencing a severe stressor’ as defined in the Alcohol SoP.  Of the occasions when the applicant was required to dispose of faulty shells, the Tribunal said: 

‘I am satisfied that each such occasion … was capable of constituting and did constitute a relevant stressor or stressful event as provided in the SoPs.’

37                  The findings about the occasion when the applicant feared his ship might hit a mine, and when the ship was ordered to action stations through a fear of attack, were described as ‘stressors’, and the latter also as having ‘seriously stressed’ the applicant.

38                  In context, I consider those findings indicate the Tribunal remained aware of the different ‘stressful event’ descriptors in each of the three SoPs it was considering, and which it had explicitly recognised earlier in its reasons.  Although using a shorthand expression, in my view each of the findings was a finding that the applicant experienced a severe stressor as that is defined in the Alcohol SoP.  I am not persuaded that the Tribunal misdirected itself in that regard as counsel for the respondent contended, or that it misapplied the relevant definition to the facts as it found them to be.

39                  I turn to consider the principal contention of the respondent. 

40                  In my judgment the Tribunal has erred in its overall consideration of the claim of the applicant for pension entitlement in respect of alcohol abuse.  I have referred above to the headings to the sections for the Tribunal’s reasons.  There is no particular passage in the Tribunal’s reasons which is identified as demonstrating an erroneous understanding of the provisions of the Act.  It is accepted that the Tribunal has accurately recited the issues which it was required to address under the Act.  It has identified the relevant SoPs.  It is not suggested that it was inappropriate for the Tribunal to discuss and evaluate the medical evidence, or to discuss and evaluate the evidence of the applicant and Peter Werner, or to discuss and evaluate the respondent’s evidence.  But it is contended that the sequence in which that inquiry was made in the present circumstances demonstrates error on the part of the Tribunal by a failure to show cognisance of, and apply, the four stage test described in Deledio and set out above.  It is contended that having identified the relevant requirements of the Act, the Tribunal did not in fact address the first and second steps in Deledio but launched straight into an assessment of the medical evidence and then of the other evidence.  It is contended that the Tribunal therefore erroneously embarked upon matters of proof and to making findings of fact and that it wrongly applied the balance of probability test to its consideration, including in particular the issue of clinical onset and the occurrence of severe stressors. 

41                  Although the Tribunal has not misstated the relevant provisions of the Act, or how it should approach the claims of the applicant, it has not explicitly taken the first step required by s 120(3), namely whether the material points to a hypothesis connecting the applicant’s alcohol abuse with the applicant’s operational service.  However, its subsequent identification and consideration of the Alcohol SoP indicates clearly enough that it took that step.  The concluding section of its reasons set out in [23] above includes the finding that ‘there is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service’.  It is necessarily implicit in that finding that the first step required by Deledio has been taken.  As a matter of logic, if the circumstances about the applicant’s operational service as found by the Tribunal do give rise to a reasonable hypothesis connecting this alcohol abuse with his operational service, the claims about those circumstances must, in the Tribunal’s mind, give rise to a hypothesis connecting his alcohol abuse with his operational service. 

42                  The respondent accepted that the applicant now suffers from alcohol abuse (and from generalised anxiety disorder).  Its contention before the Tribunal was that there was no hypothesis, and so no reasonable hypothesis, raised by the material before the Tribunal connecting the applicant’s diseases with the circumstances of his operational service.  It disputed the claimed circumstances of his operational service.  The Tribunal has not expressly looked to the claimed circumstances, without fact finding, to see if they pointed to a hypothesis connecting his diseases with the circumstances of his war service.  Instead, it has made findings of fact about those claimed circumstances, on the balance of probabilities.  And it has then addressed the relevant SoPs. 

43                  As in Mason v Repatriation Tribunal [2000] FCA 1409 per Weinberg J at [69] – [71], I am satisfied that the Tribunal, whilst not explicitly taking the first of the steps required of it in accordance with Delidio, must have considered and accepted the first step required by s 120(3) as explained in Delidio concurrently with its examination of the Alcohol SoP.

44                  As required by the second and third steps specified in Delidio, the Tribunal has identified the Alcohol SoP, and considered and determined that the hypothesis is reasonable, that is that the condition of alcohol abuse fitted the template of the Alcohol SoP.  It identified the essential elements necessary to fit that template.  Relevantly, it recognised that factor 5(b) required the minimum factors as being the applicant experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse.  It also recognised the symptoms necessary for a condition to fall within the description of alcohol abuse, and the diagnostic criteria.  As the respondent accepted that the applicant suffered from alcohol dependence or alcohol abuse, it should have focussed its attention upon whether the applicant’s hypothesis involved the applicant experiencing a severe stressor, and if so whether that experience was within two years immediately before the clinical onset of the condition of alcohol abuse.  It observed that, once a reasonable hypothesis exists on those issues, that is connecting the operational service with the condition in accordance with the Alcohol SoP, s 120(1) then ‘effectively imposes an onus of disproof beyond reasonable doubt’.  The Tribunal appears, therefore, to have correctly directed itself about how it should approach its task. 

45                  It is at the third stage of the Delidio test that, in my judgment, the Tribunal has fallen into error.  Its consideration of the evidence of the applicant, of the respondent and of the medical evidence indicates that the Tribunal embarked upon a fact-finding process to determine whether there was a reasonable hypothesis in accordance with the Alcohol SoP raised by the material connecting in the necessary way the applicant’s operational service with his condition of alcohol abuse.  It made positive findings about the occasions when the applicant claimed to have experienced a stressful event, their character as falling within the definition of ‘experiencing a severe stressor’, and the onset of clinical signs of alcohol abuse within the two year period of the applicant having experienced the three severe stressors which it found to have occurred.

46                  It was not required by the second and third stages explained in Delidio that the Tribunal should have embarked upon that fact-finding exercise.  The Full Court in Delidio at 96 agreed with the observations of Heerey J at first instance:  Delidio v Repatriation Commission (1997) 47 ALD 261 at 275 that:

‘… 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 …’

and

‘If the hypothesis is reasonable the claim will succeed unless:

(iv)      one or more facts necessary to support it are disproved beyond reasonable doubt;  or

(v)       the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant.  If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.’

47                  If the applicant’s claim for pension entitlement in respect of alcohol abuse had been unsuccessful, he may therefore have had grounds to have the Tribunal’s decision set aside.  Its erroneous approach also permeates its consideration of the claim based upon generalised anxiety disorder.  As I understand it, that is the reason why the respondent consents to the appeal being allowed and the remittal to the Tribunal of the applicant’s claim for pension entitlement in respect of generalised anxiety disorder.  Although the Tribunal appears to have recited the correct approach under s 120(3), its subsequent analysis of the claims and the way in which it has made findings of fact leading to its conclusions indicate that it has not in fact applied the correct approach under s 120(3).  I do not think this is a case where the Tribunal’s process did not involve it ‘finding facts’ as required ultimately by s 120(1) and, as explained in Delidio at the fourth stage.  Its consideration went beyond whether the claims made (by evidence) raised as a minimum the factors specified in the Alcohol SoP:  cf Woodward v Repatriation Commission (2003) 200 ALR 332;  [2003] FCAFC 160 (Woodward).

48                  In Woodward, it was contended that the Tribunal had embarked upon the task of finding facts prematurely when it ought to have been concerned solely with the anterior question, namely whether the material fitted or was consistent with the template of the relevant SoP.  The issue concerned whether the appellant in that case had experienced a severe stressor.  The Full Court (Black CJ, Weinberg and Selway JJ) at 351 – 352, [110] said:

‘We reject this submission.  It is true that the AAT discussed the objective and subjective elements in the definition of PTSD, and suggested that a similar analysis might apply to the definition of “experiencing a severe stressor”.  However, its opinion in that regard was, in our view, a digression from its primary reasoning.  In substance, the AAT simply found, as a fact, that Mr Woodward’s evidence about his experiences in Vietnam did not point to his having experienced a severe stressor, as defined in the SoPs.  In other words, the hypothesis raised by that material, did not fit the template.  Deledio makes clear that fact finding should only occur at the final stage of the process.  In our view, the AAT was not “finding facts”, in any relevant sense, when it assessed the material before it, and considered whether it “pointed to” the factors contained in the template.  The AAT was fully aware of the limited nature of the task confronting it.’

49                  I do not think the Tribunal’s approach in this matter can be so categorised.  It found that certain of the events about which the applicant gave evidence (and which were contested by the respondent) did constitute the applicant experiencing a severe stressor, and described those events as ‘genuinely stressful events’.  It identified the question:  has it been shown that the applicant suffered alcohol abuse within the required two year period.  It positively found, with some hesitation, that the applicant ‘was suffering from alcohol abuse within the prescribed two year period’.  It should have asked whether the claimed events fitted the template of the Alcohol SoP.  If they did, provided there was also a fit with the other requirements of the template, the reverse onus under s 120(1) applies to the fact finding required of the Tribunal.  It is only at that point that the Tribunal was required to consider whether the facts contested by the respondent were disproven by the respondent beyond reasonable doubt. 

50                  Having made the findings of fact referred to, including that the applicant suffered alcohol abuse within the prescribed two year period, the Tribunal observed:

‘There is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service, and there is no sufficient ground for me to be satisfied beyond reasonable doubt for determining that the disease was not war-caused.  I accordingly determine that it was so caused.’

51                  The applicant contends that ultimately the Tribunal thus demonstrates that it correctly addressed the requirements of ss 120(1) and (3) and s 120A.

52                  However, following that passage in its reasons, the Tribunal said:

‘There is strictly no need to consider whether the applicant establishes a reasonable hypothesis in reliance on the alternative factor called in aid under SoP No 76 of 1998 paragraph 5(a), however as I have already stated above I am unable to find that he was suffering an anxiety disorder at the time of the onset of the alcohol abuse so he would not meet this criterion in my view.’

Paragraph 5(a) of the Alcohol SoP refers to the applicant suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.  I think that passage confirms that the Tribunal has misunderstood its task.  It did not accept the claim based on generalised anxiety disorder because it was not satisfied that ‘the evidence establishes that there was a clinical onset’ of that condition within two years of ‘any of the stressful events which I have found proved’.  The respondent accepts that the Tribunal erred in approaching the issue that way.  For the reasons I have given, I agree.  The reference to a reasonable hypothesis in the context of the Tribunal’s reasons, including that referred to in [23] above, does not therefore demonstrate that ultimately it correctly approached its task. 

53                  Given the Tribunal’s erroneous approach to the application of s 120(3) and the Alcohol SoP, it was inevitable that the Tribunal would not be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant’s alcohol abuse was not war-caused.  Its findings of fact on the balance of probabilities meant that none of the facts necessary to support the hypothesis were disproved beyond reasonable doubt.  The respondent did not attempt to prove beyond reasonable doubt the existence of some other fact inconsistent with the hypothesis.  The application of s 120(1), that is the fourth step explained in Delidio, was in the circumstances a formality. 

54                  However, counsel for the applicant expressly did not pursue the contention that, even if the Tribunal misunderstood and so misapplied the approach required by ss 120(1) and (3) and s 120A, its decision should stand because it would be futile to remit the matter to the Tribunal for rehearing:  Compare Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550;  Arnott v Repatriation Commission (2001) 106 FCR 83;  McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. 

55                  As I am persuaded that the Tribunal’s approach does disclose that it did not apply the correct approach to consideration of the claim for pension entitlement in respect of the disease known as alcohol abuse (and in respect of the disease known as generalised anxiety disorder), I will set aside the Tribunal’s determination in the applicant’s favour in respect of alcohol abuse.  I remit to the Tribunal for reconsideration according to law the applicant’s claim to pension entitlement in respect of the disease called alcohol abuse. 

56                  The parties were agreed that, in the event, that the respondent’s cross-appeal succeeded, there should be no order for costs of either the application by way of appeal or the application by way of cross-appeal.  That is a sensible course with which I agree. 

Associate:

Dated:              27 October 2003