FEDERAL COURT OF AUSTRALIA

Youngnickel v Repatriation Commission [2004] FCA 1691

VETERANS’ AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – application of the four steps set out in Deledio – whether there was no material to support clinical onset of the applicant’s alcohol abuse and dependence – whether the Tribunal’s finding that there was no “reasonable hypothesis” constituted an error of law – whether the determination of whether there is or is not a “reasonable hypothesis” is a question of law or of fact – the weight given to facts which may give rise to a “reasonable hypothesis” is a matter for the Tribunal

WORDS & PHRASES – “reasonable hypothesis”

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlement Act 1986 (Cth) s 6, s 120(1), s 120(3), s 120(4), s 120(6), s 120A

Bull v Repatriation Commission (2001) 188 ALR 756

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Connors v Repatriation Commission [2000] FCA 783

East v Repatriation Commission (1987) 16 FCR 517

Hardman v Repatriation Commission  [2004] FCA 1174

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Bey (1997) 79 CLR 364

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Owens (1996) 70 ALJR 904

TERRENCE JOHN YOUNGNICKEL v REPATRIATION COMMISSION

NSD143 OF 2004

BENNETT J

20 DECEMBER 2004

SYDNEY

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

            1.         The application is dismissed with 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

REASONS FOR JUDGMENT

Background

1                     This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 14 January 2004.  The Tribunal affirmed a decision of the Repatriation Commission (‘the Commission’) as affirmed by the Veterans’ Review Board (‘the Board’) in which the applicant’s claim that he suffered from post-traumatic stress disorder (‘PTSD’) that was war-caused was rejected.

2                     As the claim was pursued before the Tribunal, it was for alcohol abuse/dependence that was war-caused.  The broader claim for PTSD was not pursued.

3                     The facts relating to the applicant’s service are not in dispute.  The applicant (‘Mr Youngnickel’) was born on 2 July 1947 and served in the Royal Australian Navy from 24 July 1964 to 23 July 1973.  Certain periods of service on HMAS Derwent in 1966 constituted periods of “operational service” as defined in s 6 of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’).  That service included periods in the Malay Peninsular and Singapore region and Vietnam.

4                     After his discharge, Mr Youngnickel served as a firefighter with the New South Wales Fire Brigades (‘the Fire Brigades’) for 24 years, from 1973 to 1997.  He sustained a back injury in the course of his duties and, as a result was retired on medical grounds on 18 July 1997. 

5                     This appeal relates to the interpretation of s 120(1), s 120(3) and s 120A of the Act.  The scheme of the Act relevant to this appeal is as follows:

·         The Commonwealth is liable to pay a pension to a veteran who has become incapacitated from a war-caused disease – s 13(1)

·         A veteran may make a claim for a pension – s 14

·         The claim is determined by the Commission – s 18

·         The Commission’s decision may be reviewed by the Board – s 135

·         A Commission decision which has been affirmed by the Board’s decision may be reviewed by the Tribunal – s 175

·         No onus of proof is imposed on the veteran or on the Commission – s 120(6)

·         The standard of proof to be applied when determining whether a disease is connected with operational service is that prescribed by s 120(1), s 120(3) and s 120A

·         The standard of proof to be applied when determining all other matters is the balance of probabilities – s 120(4)

The Tribunal decision

6                     The issues originally before the Tribunal included whether Mr Youngnickel’s claimed condition of PTSD was war-caused pursuant to s 9 of the Act.  That issue was abandoned and the Tribunal affirmed the decision refusing that claim.  There is no appeal from that decision.

7                     The Tribunal identified its task as that set out in Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Delidio’) at [97].  That required the Tribunal to take four steps:

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

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

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

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

8                     By reason of s 120A of the Act, a Statement of Principles (‘SoP’), if in force, controls the application of s 120(3) of the Act.  The relevant SoP for alcohol abuse or dependence is Instrument No 76 of 1998 – Revocation of SoP concerning Psychoactive Substance Abuse or Dependence and Determination of SoP concerning Alcohol Dependence or Alcohol Abuse (‘the relevant SoP’).  The Tribunal noted that the relevant SoP set out factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.

9                     The Tribunal was reasonably satisfied that Mr Youngnickel suffers from alcohol abuse/dependence.  The question relevant to this appeal was whether Mr Youngnickel’s condition was war-caused.

10                  The Tribunal found that a hypothesis was raised linking Mr Youngnickel’s alcohol abuse/dependence with his war service (Deledio step 1).  There is no complaint in respect of this finding.

11                  The Tribunal ascertained that there is in force an SoP (Deledio step 2).  There is no complaint in respect of this finding.

12                  The Tribunal proceeded on the basis that the hypothesis raised linking Mr Youngnickel’s alcohol abuse/dependence with his war service would only be held to be reasonable if the hypothesis fits, that is to say is consistent with the template to be found in the relevant SoP.  The applicable factor from the relevant SoP was factor 5(b): ‘experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse’.

13                  The Tribunal accepted that an event described by Mr Youngnickel aboard HMAS Derwent as the ‘fish on board’ incident had occurred in 1996.  This event was described by the Tribunal.  In summary, in Vietnam, he experienced a fish being thrown up onto the deck of HMAS Derwent while he was on watch (‘the fish on board incident’).  He was then 19 years of age.  Mr Youngnickel said that he thought he was dead because it was a grenade and that he either blacked out, or blanked out, or ducked for cover.  He had no actual memory of the event other than seeing an object being thrown and landing on the deck.  He said that he was traumatised by the event and felt unable to seek assistance, although he accepted that it was available.  From the time of the fish on board incident, he said that he drank a lot and later abused alcohol.

14                  Upon a consideration of all of the material regarding the fish on board incident, the Tribunal concluded that the applicant had experienced a “severe stressor” in the terms of the relevant SoP.

15                  That stressor, as required by factor 5(b) of the relevant SoP, had to be experienced within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.  The Tribunal dealt with this requirement as follows at [70]:

‘Noting that there is no fact finding at this stage, rather only an assessment of all the material to consider whether the hypothesis raised is a reasonable one, I considered clinical onset of Mr Youngnickel’s alcohol abuse/dependence, which to satisfy the template in the SoP must have taken place on or before August 1968.’

16                  The Tribunal found that ‘[t]here was however no material which pointed to features and symptoms of alcohol abuse/dependence by August 1968’.  In coming to that conclusion, the Tribunal applied the test of “clinical onset” in Repatriation Commission v Cornelius [2002] FCA 750 (‘Cornelius’) at [26].

17                  The Tribunal held that Mr Youngnickel did not meet the tests in factor 5(b) of the relevant SoP as the severe stressor was not experienced within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.  The Tribunal concluded at [75] that the material ‘does not therefore raise a reasonable hypothesis linking Mr Youngnickel’s alcohol dependence or alcohol abuse with his war service’ (Delidio step 3).

18                  The Tribunal continued ‘for the sake of completeness’to consider whether one or more of the facts necessary to support the hypothesis had been disproved beyond reasonable doubt, or whether the truth of another fact in the material inconsistent with the hypothesis had been proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis for the purposes of s 120(1) of the Act.

19                  The Tribunal said that, applying s 120(1) of the Act and taking into account all of the evidence, it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant’s alcohol abuse/dependence was war-caused (Delidio step 4).

The amended notice of appeal

20                  The grounds of appeal were in the following terms:

‘4.1      The Tribunal erred in law in its application of sections 120 of the Act in that it was not open to the Tribunal to be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant’s alcohol abuse and dependence was war-caused, as prescribed by section 120(1) of the Act.  The material upon which the Tribunal purported to rely when making its finding was not inconsistent with the material raising the hypothesis of connection with war service, and was thus not capable at law of supporting the finding, as no facts necessary to support the hypothesis were disproved beyond reasonable doubt, nor were any facts necessarily inconsistent with the hypothesis themselves proven beyond reasonable doubt.

 4.2      The Tribunal erred in law in its application of Instrument 76 of 1998 made under section 196B of the Act in that it was not open to the Tribunal at law to find that there was no material pointing to, as a raised fact, the clinical onset of the applicant’s alcohol abuse and dependence occurring within two years of the applicant suffering a severe stressor, as defined in that instrument.  There was material before the Tribunal pointing to clinical onset having occurred within the requisite two year period.’

The application by the Tribunal of the relevant SoP

21                  This ground of appeal has raised a number of issues:

·         Did the Tribunal err in law in finding that there was no material to support clinical onset of alcohol abuse/dependence within the two year period?

·         Does the Tribunal’s finding that there was no reasonable hypothesis involve an error of law?

·         Is the determination of whether there is or is not a reasonable hypothesis a question of law or of fact?

Material to support clinical onset and the finding of no reasonable hypothesis

22                  The applicant submits that it was not open to the Tribunal to make a finding that there was no material supporting the claim that clinical onset occurred within two years of the severe stressor.

23                  The applicant contends that there was material before the Tribunal which pointed to clinical onset of alcohol abuse/dependence within the two year period after the fish on board incident.

24                  Counsel for the respondent, Ms Henderson, submits that the basis of the applicant’s criticism of the Tribunal is not that it made a finding for which there was no evidence (an error of law) but that there was some material capable of supporting a different conclusion.  She characterised the applicant’s case as a complaint that the decision was against the weight of the evidence.  Ms Henderson contends that the Tribunal was correct in its conclusion that there was no material which pointed to clinical onset.

25                  In order to determine whether the hypothesis that the Tribunal found to have been raised is consistent with the template of the relevant SoP, the Tribunal was required to consider whether the fish on board incident occurred within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.

26                  The meaning of clinical onset was addressed in Cornelius.  In Cornelius at [26], Branson J accepted the meaning of clinical onset as follows:

‘…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…’ (emphasis added).

27                  As submitted by counsel for the respondent, this means that the disorder itself must be present at the specified time.  If the disorder was not present at the specified time, then the hypothesis is not consistent with the relevant SoP and therefore, by reason of s 120A(3), the hypothesis is not a reasonable hypothesis for the purposes of s 120(3) of the Act.

28                  In Cornelius, as here, there was no material before the Tribunal which suggested that any medical practitioner had in fact said that a feature or symptom reported by the veteran within the specified time period enabled him to say that he had the disease at that time.  The question then was whether material before the Tribunal did so by inference. 

29                  Her Honour observed at [28] that without the material which pointed to the veteran becoming aware within the relevant time of some feature or symptom which enables a medical practitioner to say that he had the disease at that time, it cannot be said that the hypothesis fits the template of the SoP. 

30                  In Lees v Repatriation Commission (2002) 125 FCR 331 (‘Lees’), the Full Court considered the meaning of “clinical onset”.  One of the questions in that appeal was whether “clinical onset” means “suffer from” or “commenced the process by which the clinical diagnosis subsequently occurred”.  The Court said at [16]:

‘[w]hile it is true that the Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor…’.

31                  Accordingly, in that case, the Tribunal did not err in basing its decision upon the premise that all of the symptoms of the disease had to be shown within the two year period.

32                  The material relied upon by Mr Youngnickel to establish clinical onset of alcohol abuse/dependence is not unequivocal.  Dr Brown, in a written report dated 21 February 2003, said that Mr Youngnickel’s history as stated to her was that he had not begun to drink alcohol heavily until after the fish on board incident.  The report also referred to ‘escalating levels of alcohol consumption’ and ‘ongoing heavy usage of alcohol over the many year period subsequent’.  Dr Brown found that Mr Youngnickel would qualify for an SoP diagnosis of alcohol dependence.  She then added:

‘In terms of whether a reasonable hypothesis can be raised connecting his Alcohol Abuse and Dependence with his military service, the fish on board incident would qualify as a stressor occurring within two years prior to the clinical onset of Alcohol Abuse and Dependence.  As noted, some reservations about the objective level of severity of the stressor have been recorded.  However, if Mr Youngnickel’s account is accurate he did perceive himself to be at risk and without feeling able to access support he appears to have withdrawn from others and dealt with his emotional response by excessive use of alcohol.’ (emphasis added)

Part of Mr Youngnickel’s history was that he had not started to drink alcohol heavily until after the fish on board incident.

33                  Dr Brown and Dr Lewin gave joint evidence and, during cross-examination, Dr Brown, in response to a question asking ‘[w]hat sort of things would we see within 2 years’ replied:

‘Probably, as Dr Lewin said, yes, you wouldn’t see the symptoms and signs of alcohol dependence that developed many years later, but what we would see is a pattern of behaviour of drinking consumption which was excessive, perhaps compared to peers…

…This man’s history, if he is accurate in his recall, indicated that he had some minor disciplinary problems, he became disinhibited, he said that he would say things that were out of turn and inappropriate, and that certainly could be consistent with someone who is starting to drink excessively and it was affecting their behaviour.

It doesn’t necessarily indicate that somebody is developing a disorder, it means they’re drinking excessively and it’s affecting their behaviour, but it is a warning sign.  I guess then it goes back to the reliability of this man’s history about when he can recall his drinking behaviour starting…So if his history is accurate, there was an escalation of drinking behaviour in the years afterwards and some early warning signs that his behaviour was maladaptive.  In terms of his drinking behaviour through his subsequent service, he said, apart from sometimes speaking out of turn, there were no major disciplinary problems or absences during the latter years of his service. So there’s only that possible marker of his behaviour becoming somewhat inappropriate.’ (emphasis added)

34                  The applicant submits that this evidence was evidence supporting clinical onset of alcohol dependence within two years, as required by the relevant SoP.  As there was no fact-finding at this stage of the Tribunal’s deliberations, it was submitted that the Tribunal erred as a matter of law in concluding that there was no evidence of clinical onset within two years of the fish on board incident.  This amounts to a submission that Dr Brown’s evidence constituted material that established such clinical onset and fitted with the template of the relevant SoP.

35                  The medical evidence advanced by both the applicant and the respondent was that the applicant did at the time of medical examinations in 2002 and 2003 exhibit clinical features of alcohol abuse and alcohol dependence.  In determining whether there was a fit with the relevant SoP, the Tribunal referred to the material before it including the material now relied upon by the applicant.  The Tribunal referred to Mr Youngnickel’s evidence of his drinking history and the medical reports, including that of Dr Brown, as well as Mr Youngnickel’s naval record and concluded that ‘there is no material pointing to clinical onset of alcohol abuse or alcohol dependence by August 1968’, the agreed relevant date.

36                  The way in which the Tribunal assessed the report and cross-examination of Dr Brown as against the need on the part of the applicant to point to clinical onset of disease within two years cannot be said to demonstrate that the Tribunal did not consider that material or that the Tribunal disregarded the material upon which the applicant relies and so failed to discharge the obligations imposed by s 120(3).  The totality of that material did not necessitate a finding that the material was consistent with the relevant SoP.  The weight which the Tribunal gave to the bare assertion in one part of Dr Brown’s report in the context of the rest of her report and cross-examination was a matter for the Tribunal.  There was no impermissible fact-finding at this stage of the Tribunal’s decision.

37                  Section 120(3) of the Act 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.’

38                  Section 120(3) of the Act requires consideration of the whole of the material to determine whether the material does not raise a reasonable hypothesis.  By s 120A(3), the hypothesis is reasonable only if the relevant SoP upholds the hypothesis; that is, whether the hypothesis fits or is consistent with the template of the relevant SoP (Deledio).  As the Full Court pointed out in Deledio, if the hypothesis fails to fit the template, it will be deemed not to be reasonable. 

39                  Having found that a hypothesis was raised, the task of the Tribunal was to determine whether the material raised a reasonable hypothesis.

40                  In Hardman v Repatriation Commission  [2004] FCA 1174 (‘Hardman’) the question was whether, for the purposes of the third step referred to in Deledio, the Tribunal is confined in its consideration only to the matters favourable to the claimant to determine whether there is a reasonable hypothesis or whether the Tribunal must consider at step three the whole of the material, whether adverse to or favourable to the claimant. 

41                  Hill J noted that s 120 requires that all relevant facts before the decision maker be looked at and that the reasonable hypothesis has to emerge from all of those facts.  After a detailed consideration of the authorities, his Honour concluded at [39] that:

‘the Tribunal is required, in determining whether the material before it raises a reasonable hypothesis, to consider all of the relevant material before it,whether or not that material is favourable or not to the hypothesis.  Secondly, it is clear that the Tribunal is not to determine the correctness or otherwise of facts raised whether those facts are in favour of or contrary to the hypothesis.  Thirdly, in determining whether an hypothesis is reasonable the Tribunal makes a finding of fact which this Court may not overrule unless the finding is so unreasonable that it could not properly be made.’

42                  In Bushell v Repatriation Commission (1992) 175 CLR 408 (‘Bushell’), the High Court said at 414:

‘The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true…’

And further at 414:

‘However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”.  Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”’.

43                  Each element of the hypothesis is to be raised by the material.  However, the elements of the hypothesis may be raised ‘so slightly that the entire hypothesis was not to be viewed as reasonable’ (Bull v Repatriation Commission (2001) 188 ALR 756 (‘Bull’) at [5] per Moore J).

44                  As Moore J observed at [5], it is not sufficient that the material raises a hypothesis, the hypothesis must also be one to which the material, as a whole, points.  Emmett and Allsop JJ pointed out in Bull at [18] that a hypothesis that was not obviously fanciful or not impossible or not incredible or tenable or not too remote or not too tenuous, was not therefore necessarily reasonable.

45                  In Connors v Repatriation Commission [2000] FCA 783 (‘Connors’), Kenny J observed at [14]:

‘If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision-maker, then that hypothesis is not raised by that material…If the material does raise the hypothesis, then the decision-maker must determine whether it is reasonable.’

46                  In Bushell, the High Court pointed out that a hypothesis, based on the raised facts, will generally be reasonable when put forward by a relevantly skilled medical practitioner, even if in conflict with other medical opinions.  It is appropriate, for the purposes of s 120(3), to have regard to opposed medical or other material for the purpose of examining the validity of the reasoning which supports the claimed connection.  The hypothesis may still be reasonable although it is against the weight of the evidence. 

47                  Accordingly, the hypothesis is reasonable only if the relevant SoP upholds the hypothesis.  Byrnes v Repatriation Commission (1993) 177 CLR 564 (‘Byrnes’), Bushell and Repatriation Commission v Bey (1997) 79 CLR 364 (‘Bey’) may support the proposition that, in some cases, a hypothesis may assume the occurrence of certain facts and the making of assumptions without rendering the hypothesis unreasonable.  However, as pointed out in Connors at [18], this does not apply after the introduction of s 120A in 1994.  Section 196B(2) provides that, where there is a SoP, the factors there set out must exist “as a minimum”.

48                  The opinion to be formed is whether the hypothesis is consistent with the template.  It is at this stage that the element of “reasonableness” still has work to do.  This is consistent with the distinction drawn in Byrnes at 569-570 between the necessity for the material to raise some fact or facts which give rise to the hypothesis and the determination of whether the hypothesis is reasonable.  As made clear by the Full Court in Bey at 372, a reasonable hypothesis involves more than a mere possibility.  It must point to and not merely leave open a hypothesis (East v Repatriation Commission (1987) 16 FCR 517 at 532-3 (‘East’)).

49                  In East, it was pointed out that the hypothesis may be theoretical, in the sense that it may postulate a known medical fact but in circumstances not known to have definitely existed in the instant case, or it may postulate a medical principle not yet definitively proven.In Bey the evidence went no further than to say that the suggested cause of disease was a possibility.  This entitled the Tribunal to conclude that the material did not raise a reasonable hypothesis.

50                  In Bull, the hypothesis was that the veteran’s excess drinking was connected to his service in Vietnam.  There was a body of material which related to the drinking but none bore directly on the link between war service and drinking.  The primary judge had observed that the Tribunal could have found the hypothesis reasonable but it was open to it to find to the contrary.  Emmett and Allsop JJ noted at [40] that ‘it could hardly be denied that an hypothesis of the kind referred to in [38] above was by no means fanciful or impossible or incredible or untenable’ but that this is not sufficient for the purposes of s120(3) (at [41]).  The finding that the material did not point to or raise a connecting hypothesis was ‘very much a matter of debate’ (at [45]) but it was a factual question for the Tribunal.  In coming to its conclusion, the Tribunal, in considering the whole of the material, is bound to have regard to both supporting and opposing material for the purpose of examining the validity of the reasoning which supports the claimed connection.  The hypothesis may however be unproved and opposed to the weight of informed opinion and still be reasonable (Bushell at 415).

51                  It is of interest that, in Cornelius, Branson J noted that an acknowledgment that it was not possible to exclude the presence of the relevant syndrome did not assist the veteran.  It was not relevant to the issue of whether the hypothesis advanced was a reasonable one and, to the extent that it was relied upon by the Tribunal in that case at the third step identified in Deledio, the Tribunal was in error.

52                  As submitted by Mr Vincent, counsel for Mr Youngnickel, a purely abstract hypothesis is not sufficient; there must be some fact or facts pointing to it, even if the fact is assumed.  The hypothesis must be grounded in fact.

53                  Mr Vincent submits that one of the two experts stated ‘in no uncertain terms’ that there was clinical onset within the time frame.  This is simply not the case, as is apparent from the evidence of Dr Brown referred to above.

The determination of reasonable hypothesis one of law or of fact

54                  The hypothesis need not be proved to be correct (East at 533; Bey at 376 per RD Nicholson J).  Whether material raises a reasonable hypothesis is a question of fact which entitles the Tribunal to reject material for good reason and to accept other material which does or does not point to the hypothesis advanced.  The Tribunal is not, however, entitled at this point to find facts or reject matters (Bull at [21]).

55                  The formation of the opinion of whether there is a reasonable hypothesis for the purposes of s 120(3) of the Act is a matter of fact to be determined by the Tribunal (Bull per Moore J at [3]; per Emmett and Allsop JJ at [22], with whom Moore J generally agreed; Hardman at [39].  If the Tribunal examined all the material and followed the correct approach as enunciated in East, there is no question of law for s 44 of the Administrative Appeals Tribunal Act (see also Repatriation Commission v Owens (1996) 70 ALJR 904).  No question of the bona fides or honesty of the Tribunal has been suggested.

Conclusion

56                  The material before the Tribunal did not point to clinical onset within two years of the fish on board incident.

57                  In my view, Mr Youngnickel has not demonstrated error on the part of the Tribunal in its finding that there was no material to support clinical onset of alcohol abuse/dependence within two years of the fish on board incident.

58                  The Tribunal considered the whole of the material.  It was the Tribunal that was required to form an opinion on whether there was a reasonable hypothesis.  Mr Youngnickel has not demonstrated error by the Tribunal in the formation of that opinion or in the way in which it came to the conclusion that there was no reasonable hypothesis.

59                  The opinion that a reasonable hypothesis connecting the alcohol abuse/dependency with the fish on board incident was not raised was open to the Tribunal on the whole of the material before it.

The application of s 120(1) of the Act

60                  The Tribunal referred to the applicant’s evidence and Naval records as well as his subsequent employment for 24 years with the New South Wales Fire Brigades and noted that the question of alcohol abuse/dependence did not arise until either 1993/4 or 1997.  The Tribunal accepted the opinions of Drs Brown and Lewin, stating that it ‘preferred the evidence of Drs Brown and Lewin that alcohol abuse/dependence can arise independently of any particular stressor’.  The Tribunal gave a basis for its satisfaction beyond reasonable doubt that there was no sufficient ground for determining that the applicant’s alcohol abuse/dependence was war-caused.

61                  Section 120(1) of the Act provides:

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

62                  Mr Vincent contends that there was simply a difference of view between two medical practitioners.  The applicant submits that it was necessary for the Tribunal to identify the facts that it regarded as being established beyond reasonable doubt and that it did not do so.

63                  Ms Henderson contends, following Byrnes, that unreliability of material could be sufficient to satisfy the Tribunal beyond reasonable doubt.

64                  Of course, this part of the Tribunal’s decision was obiter and does not arise upon its determination under s 120(3).  However, the Tribunal considered s 120(1) ‘for the sake of completeness’.  Noting the submission of counsel for the applicant that there was no explanation for the applicant’s condition other than the severe stressor fish on board incident, the Tribunal accepted the evidence referred to above. 

65                  It is at this stage, step 4 of Deledio, that the Tribunal makes findings of fact: ‘[i]n so doing, no question of onus of proof or the application of any presumption will be involved.’

66                  If a reasonable hypothesis is raised, the Tribunal must determine that the disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  Section 120(1) refers to “sufficient ground”; it does not refer to being satisfied as to each fact.  The applicant relies on the words of the majority (Mason CJ, Deane and McHugh JJ) in Bushell.  There it was said that the Tribunal must be satisfied that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis and that the claim will succeed unless the Tribunal is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.  The Tribunal is not obliged, as submitted by Mr Vincent, to make a finding that it is satisfied beyond reasonable doubt that each and every factual matter has not been established.

67                  The Tribunal expressed itself satisfied that the claimed condition was not war-caused.  It gave reasons for that conclusion.  It did not expressly state that it was satisfied beyond reasonable doubt as to a particular fact.  However, it is clear that the Tribunal was mindful of the appropriate standard:

‘However, for the sake of completeness, and in case I am wrong as to date of onset of Mr Youngnickel’s alcohol abuse/dependence, I have considered his situation pursuant to section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.’

68                  As noted in Bulland approved in Lees, the Tribunal’s reasons are not to be examined ‘with an eye to keenly attuned to the perception of error’.  It is apparent to me from a reading of the decision that the Tribunal was satisfied, beyond reasonable doubt and by reference to the facts of the matter before it, that there was no sufficient ground for making a determination that the disease was war-caused.

69                  The applicant has not established an error of law on the part of the Tribunal.

70                  It follows that the application is dismissed with costs.

Associate:

Dated:              20 December 2004