FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Malady [2010] FCA 798

Citation:		Repatriation Commission v Malady [2010] FCA 798

Appeal from:		Michael Patrick Malady v Repatriation Commission [2009] AATA 454

Parties:		REPATRIATION COMMISSION v MICHAEL PATRICK MALADY

File number(s):		VID 490 of 2009

Judge:		TRACEY J

Date of judgment:		30 July 2010

Catchwords:		DEFENCE AND WAR – application for disability pension pursuant to Veterans’ Entitlements Act 1986 – whether reasonable hypothesis connecting disability with eligible war service - no causal connection between depressive disorder, alcohol abuse and drug abuse and operational service – no reasonable hypothesis connecting borderline personality disorder to operational service – Administrative Appeals Tribunal erred in relying upon borderline personality disorder to connect depressive disorder, alcohol abuse and drug abuse with operational service

Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 44 Statement of Principles Concerning Alcohol Dependence and Alcohol Abuse Instrument No 76 of 1998 Statement of Principles Concerning Depressive Disorder Instrument No 27 of 2008 Statement of Principles Concerning Drug Dependence and Drug Abuse Instrument No 78 of 1998 Statement of Principles Concerning Personality Disorder Instrument No 143 of 1995 as amended by No 13 of 1997; No 70 of 2008 Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 196B, 120, 120A

Cases cited:		Benjamin v Repatriation Commission (2001) 34 AAR 270, cited, followed Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55, cited, applied Hussain v Minister for Foreign Affairs (2009) 169 FCR 241, cited Lees v Repatriation Commission (2002) 125 FCR 331, referred to Malady v Repatriation Commission [2009] AATA 454, cited McKenna v Repatriation Commission (1999) 86 FCR 144, followed Re Malady v Repatriation Commission [2005] AATA 713, referred to Repatriation Commission v Codd [2005] FCA 888, referred to Repatriation Commission v Deledio (1997) 47 ALD 261, cited Repatriation Commission v Deledio (1998) 83 FCR 82, cited, applied Repatriation Commission v Gorton (2001) 110 FCR 321, cited Repatriation Commission v Gosewinckel (1999) 59 ALD 690, referred to Repatriation Commission v McKenna (1998) 52 ALD 72, cited, followed Repatriation Commission v Malady [2006] FMCA 1050, referred to Repatriation Commission v Money (2009) 173 FCR 410, cited Repatriation Commission v Owens (1996) 60 ALJR 904, cited Repatriation Commission v Warren (2008) 167 FCR 511, referred to

Date of hearing:	7 December 2009

Place:	Melbourne

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	47

Counsel for the Applicant:	Ms J MacDonnell

Solicitor for the Applicant:	Australian Government Solicitor

Counsel for the Respondent:	Mr D DeMarchi

Solicitor for the Respondent:	De Marchi & Associates

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 490 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION

Applicant

AND:

MICHAEL PATRICK MALADY

Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	30 JULY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside and, in lieu thereof, it be ordered that the decision of the Veterans’ Review Board be affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 490 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION

Applicant

AND:

MICHAEL PATRICK MALADY

Respondent

JUDGE:	TRACEY J
DATE:	30 JULY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) relates to Mr Malady’s claim to be entitled to benefits under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal determined that Mr Malady was eligible for the payment of benefits and remitted his claim to the Repatriation Commission (“the Commission”) so that the appropriate rate could be calculated and paid. The Commission appeals from that decision.

FACTUAL BACKGROUND

2 Mr Malady was born on 28 July 1973. He enlisted in the Australian Army in June 1998. He was posted to East Timor on 20 September 1999. This posting was short-lived. On 25 September 1999 he became ill and, on the following day, he was admitted to a field hospital. He was evacuated to Darwin on 28 September 1999 suffering from dysentery. He did not return to East Timor. On 10 September 2000 he was discharged from the Army on medical grounds.

3 Mr Malady claimed that, during his period of service in East Timor, he experienced the following events: colleagues accidentally discharging rounds from their firearms; his observation of a person who appeared to be carrying a rifle; coming across a substance appearing to be blood and smelling like blood; and guns, held by Indonesian soldiers who were travelling in a truck, being pointed in his general direction.

4 In the period between his return to Australia in September 1999 and his discharge a year later Mr Malady was under medical care in Townsville. He was treated, successfully, for dysentery. He was also treated for emotional disorders which were diagnosed as post‑traumatic stress disorder (“PTSD”) and major depression.

5 On 19 May 1999, Mr Malady completed a medical examination where his “emotional stability” and “mental capacity” were recorded as “normal”. The medical officer conducting the examination concluded that Mr Malady drank a considerable quantity of alcohol and either “[used] or [had] experimented with marijuana or with drugs”. Specifically, it was recorded that Mr Malady had consumed about 20-25 alcoholic drinks per week and smoked approximately 20 cigarettes per day. He was said to have “tried marijuana several times” about nine or 10 years earlier. Later medical reports indicate that Mr Malady resumed using marijuana after he returned from East Timor for its “dulling effect”. He was also said to have used amphetamines following this period of service and to have started to “drink heavily”, not having been a “heavy drinker” previously. Speaking of the period he spent in Townsville recuperating, Mr Malady said that “with all the stuff that I was dealing with in my head and with that it just – I just, sort of, snapped and started having angry outbursts”. He also felt as though he had “let [his] mates down” by leaving East Timor. He was treated for anxiety and PTSD. After returning to Victoria following his discharge from the Army Mr Malady received ongoing treatment from Dr Ridley (a psychiatrist) and Dr Kingsley (a psychologist) for “post-traumatic stress”, “a major depressive disorder” and “anxiety disorder”.

PROCEDURAL BACKGROUND

6 On 9 August 2000 Mr Malady applied for disability benefits under the Act. His application identified “major depression” as the condition which rendered him eligible for pension payment. His claim was treated by a delegate of the Commission as a claim for “major depression, alcohol abuse and drug abuse”, and it was refused on 2 February 2001. The application was refused because the evidence did not raise a reasonable hypothesis connecting Mr Malady’s major depression, alcohol abuse or drug abuse with his operational service in East Timor. Mr Malady applied for review of this decision by the Veterans’ Review Board (“the Board”). The Board affirmed the Commission’s decision on 7 October 2002. In November 2002, Mr Malady applied to the Tribunal for review of the Board’s decision.

7 The Tribunal set aside the Commission’s decision on 28 July 2005 and substituted its own decision. It decided that Mr Malady’s major depressive disorder, alcohol dependence or abuse and drug dependence or abuse were war-caused: Re Malady v Repatriation Commission [2005] AATA 713 at [1]-[2]. The Commission appealed to this Court on 25 August 2005, and the appeal was transferred to the Federal Magistrates Court on 15 November 2005. The Federal Magistrates Court allowed the appeal on 21 July 2006. It set aside the Tribunal’s decision and ordered that the proceeding be remitted to the Tribunal, differently constituted, for further hearing and determination: Repatriation Commission v Malady [2006] FMCA 1050 at [64].

8 The Tribunal, differently constituted, made a decision that Mr Malady suffered from major depressive disorder, alcohol abuse, and drug abuse, and that those conditions were war‑caused, because there were reasonable hypotheses connecting these conditions with his service. The Tribunal remitted the case to the Commission to calculate the pension payable. On 30 June 2009, the Commission lodged its appeal in this Court.

9 The Commission pointed to various errors of law which, it contended, had been made by the Tribunal. The principal error was that the Tribunal had relied on a medical condition suffered by Mr Malady, which was not war-caused, to link his alcohol and drug abuse with operational service. Mr Malady accepts that the Tribunal erred in this way. He submitted, however, that the Tribunal had not identified relevant questions of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). He further submitted that, if a question or questions of law had, properly, been raised, the Court should set aside the Tribunal’s decision and remit the matter to be further heard according to law.

10 Given Mr Malady’s acknowledgement of error on the part of the Tribunal these reasons can be shorter than might otherwise have been necessary. It will, nonetheless, be necessary to explain the nature of the principal and related errors in order to deal with Mr Malady’s submission relating to the requirements of s 44 of the AAT Act.

LEGISLATIVE BACKGROUND

11 By s 13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran who has become disabled from war-caused injury or disease. Section 9(1) of the Act sets out the circumstances where the injury or disease is taken, for the purposes of the Act, to be “war‑caused”. Relevantly, this will occur when:

“(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; [and]

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran …”

12 The question of whether a veteran is suffering from an injury or disease, and the diagnosis of that injury or disease is to be determined to the “reasonable satisfaction of the decision-maker”: see s 120(4) of the Act; Benjamin v Repatriation Commission (2001) 34 AAR 270 at [54]-[55].

13 For a disability claim to be accepted by the Commission, the disability must be related, by a reasonable hypothesis, to operational war service: s 120(3). Section 120A(3) provides that a hypothesis connecting a person’s injury or disease with his or her service is only reasonable where there is in force a Statement of Principles (“a SoP”), and the hypothesis is consistent with the SoP: Repatriation Commission v Deledio (1998) 83 FCR 82 at 86; Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.

14 The relevant parts of ss 120 and 120A of the Act are set out below:

“120(1) Where a claim …. for a pension in respect of the incapacity from injury or disease 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 … as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination.

(2)…

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … 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;

…

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.

…

120A(1) …

(2) …

(3) For the purposes of s 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2):

that upholds the hypothesis.

…”

Reference should be also made to parts of s 196B. Sub-section (2) provides:

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

(a) operational service rendered by veterans;

…

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

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

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

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

Sub-section (14) relevantly provides:

“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a) it resulted from an occurrence that happened while the person was rendering that service; or

(b) it arose out of, or was attributable to, that service; or

(d) it was contributed to in a material degree by, or was aggravated by, that service;

(e) …

(f) …

(g) …”

15 The method by which these provisions are to be applied was explained by the Full Court in Repatriation Commission v Deledio at 97-98. a four stage process is involved:

“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.”

16 The Full Court further held that, where a SoP applies, it prescribes the essential content of a reasonable hypothesis pursuant to s 120(3), and, in order to satisfy ss 120(3) and 120A(3) of the Act, the hypothesis must incorporate each element that the SoP prescribed in order to make the hypothesis reasonable.

17 All features of a disease as relevantly defined in the applicable SoP must be present in order to connect that disease with a person’s service: Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [55]; Lees v Repatriation Commission (2002) 125 FCR 331 at [16]; Repatriation Commission v Codd [2005] FCA 888 at [37]; Repatriation Commission v Warren (2008) 167 FCR 511 at [25].

18 An hypothesis connecting a condition defined in the relevant SoP and the eligible service is to comprise a number of factors each of which is consistent with one or more SoPs: Repatriation Commission v McKenna (1998) 52 ALD 72 at 80; approved by the Full Court in McKenna v Repatriation Commission; (1999) 86 FCR 144 at [20]. The factors which must be present to connect a condition to service are those set out in the relevant SoPs. The factors must be related to the service in one or more of the ways listed in s 196B (14) of the Act: Repatriation Commission v Money (2009) 173 FCR 410 at [5].

19 SoPs are made, amended and revoked from time to time. A decision maker who is called upon, in the course of a review of a decision of the Commission, to apply provisions of an SoP, is required, first, to have regard to the SoP in force at the time at which the review decision is made. If that SoP does not uphold the connecting hypothesis, the decision maker is required to consider and apply the SoP which was in force at the time of the Commission’s decision: see Repatriation Commission v Gorton (2001) 110 FCR 321 at [44], [64]-[65].

20 McKenna provides a good example of the application of these principles. Mr McKenna had applied for a disability pension for ischaemic heart disease and atherosclerotic peripheral vascular disease. The claim was rejected by the Commission but was allowed by the Board and the Tribunal. The Commission appealed to the Court. At the time at which he made his claim Mr McKenna was already in receipt of a disability pension for incapacity caused by essential hypertension. This diagnosis had been made in 1964 and his claim in relation to this complaint was made in 1984. The onset of Mr McKenna’s ischaemic heart disease occurred in 1987 and the onset of his atherosclerotic peripheral vascular disease occurred in 1990.

21 Each of the SoPs for ischaemic disease and for atherosclerotic peripheral vascular disease prescribed as one of the factors which had to be established as the presence of hypertension before the clinical onset of the condition. The SoP for hypertension did not include as a factor, stress on service, which was the basis of Mr McKenna’s initial successful claim.

22 The Commission submitted that the Tribunal had failed to consider whether the particular hypothesis raised by the material was upheld not only by the SoPs concerning the two diseases, but also by the SoPs concerning hypertension. It objected that the Tribunal had failed to take into account the fact that the relevant SoP for hypertension prescribed a number of factors which “must as a minimum exist” before it could be said that a reasonable hypothesis had been raised connecting hypertension with the circumstances of military service. Those factors did not include stress, anxiety or psychiatric disturbance. This meant, so it was submitted, that the chain had been broken because there was no link between Mr McKenna’s service and hypertension which, in turn, was the condition (factor) on which he relied to establish his new claims.

23 These submissions were upheld by Goldberg J. His Honour said (at 80-82) that:

“For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. In the instant case the relevant links or factors are:

(a) ischaemic heart disease and atherosclerotic peripheral vascular disease

(b) hypertension

(d) operational service.

When the hypothesis is identified this way it is then necessary, consistently with the course identified by the full court in Deledio … to ask and answer the question in accordance with s 120A(3)(a) of the Act – is there in force a Statement of Principles that upholds the hypothesis, that is to say the hypothesis connecting each of the diseases contracted by the respondent with the circumstances of his operational service? It is therefore necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part, of this hypothesis. This is achieved as between ischaemic heart disease and atherosclerotic peripheral vascular disease and hypertension by the Statements of Principles concerning ischaemic heart disease and atherosclerotic peripheral vascular disease but it is not achieved by reference to the Statement of Principles concerning hypertension. Putting the matter another way, in order to uphold the hypothesis it is necessary to identify a causal link or connection between ischaemic heart disease and atherosclerotic peripheral vascular disease, hypertension and operational service. The lacuna occurs at the point between hypertension and operational service because there is no Statement of Principles which upholds the hypothesis that there is a factor which exists which indicates that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service.

…

A hypothesis can only exist for the purpose of connecting an injury suffered or disease contracted by a veteran with the circumstances of the veteran’s service if there is a factor, or there are factors, which underpin the hypothesis. In order for a hypothesis to be reasonable, s 120A(3) requires a Statement of Principles to uphold the hypothesis and that Statement of Principles is determined under s 196B(2) or (11). In this case the court is concerned with s 196B(2) which requires a Statement of Principles to set out:

(a) the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting a disease with the circumstances of a veteran’s service

(b) which of those factors must be related to service rendered by the veteran.

When analysed this way it can be seen that the connection of any factors between disease and service rendered must be upheld by one or more Statements of Principles. To say that the hypothesis must be upheld by a Statement of Principles is to say no more than that the relevant factors along the connecting chain, that is to say the links, between the disease the subject of the application and the veteran’s service must be supported by a Statement of Principles.

If the respondent’s submission was correct he would be left in the present situation with the existence of a factor – hypertension – and the requirement that it be related to his operational service but with a link in the chain of his hypothesis, namely that his hypertension was war-caused, not supported or rather, upheld by any Statement of Principle. If the question is put – how are the diseases war-caused, the answer must be because they are caused by hypertension which may be brought on by stress or psychiatric disturbances. It is this final link in the chain which is not upheld by any Statement of Principle.”

24 His Honour’s decision was upheld by a Full Court: see McKenna v Repatriation Commission (1999) 86 FCR 144.

THE TRIBUNAL’S DECISION

25 The Tribunal found that none of Mr Malady’s adverse experiences in East Timor (see above at [3]) constituted an extreme traumatic stressor of the kind required for a diagnosis of PTSD.

26 The Tribunal accepted that Mr Malady suffered from four conditions. They were:

· Borderline personality disorder (“BPD”);

· Alcohol abuse;

· Drug abuse; and

· Depressive disorder.

27 The Tribunal considered the SoPs which related to BPD which were in force at the time of the Commission’s decision (Number 143 of 1995 as amended by Number 13 of 1997) and the instrument in force at the time of its decision (Number 70 of 2008). It found that there was no reasonable hypothesis connecting Mr Malady’s BPD with his military service.

28 The Tribunal determined that the relevant SoP relating to alcohol abuse was Number 76 of 1998. Clause 5(c) of that SOP provided that the relevant factor was “suffering from a psychiatric disorder at the time of the clinical onset worsening of …. alcohol abuse.” The term “psychiatric disorder” was defined in Clause 8 to mean any mental health disorder attracting an Axis I or Axis II diagnosis under DSM-IV. “DSM-IV” is a reference to the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition. In some places the letters “TR” are added at the end to refer to a text revision. BPD is an Axis II disorder. The Tribunal said that:

“Since the Tribunal accepts Dr Strauss’ evidence that the applicant’s BPD was present from early adulthood then as at early 2000 when he was aged 26 years the Tribunal is satisfied that he qualifies under the SoP, subject to a finding that his alcohol abuse worsened at that time (that is, 2000).”

29 The Tribunal recorded that it was satisfied that Mr Malady’s alcohol abuse was aggravated by his service and found that he met “the SoP template and accordingly there is a connection between his alcohol abuse and his service.”

30 The Tribunal then turned its attention to Mr Malady’s drug abuse. It identified the relevant SoP as Number 78 of 1998. Clause 5(d) provided that the relevant factor was “suffering from a psychiatric disorder at the time of the clinical onset worsening of … drug abuse.” The term “psychiatric disorder” was defined, in Clause 8, in the same terms as appeared in SoP No 76 of 1998. The Tribunal referred to its reasoning in relation to alcohol abuse and continued:

“For the same reasons therefore the applicant satisfies the template for drug abuse subject to it being established that there has been a clinical worsening of his condition. The evidence from Dr Ridley covers both alcohol and drug taking by the applicant. It constitutes the necessary clinical evidence to leave the Tribunal satisfied that the applicant’s drug intake escalate (sic) in 2000 and that his circumstances meets (sic) the 1998 SoP template. Accordingly, there is a connection between his service and his aggravated drug abuse.”

31 The Tribunal dealt finally with Mr Malady’s depressive disorder. It determined that the relevant SoP was Number 27 of 2008. The Tribunal found that Mr Malady suffered from a “recurrent major depressive disorder” within the meaning of Clause 3 of the SoP. It examined the factors listed in Clause 6(a) and determined that the “most likely applicable factor” was Clause 6(a)(vii), namely, whether Mr Malady had a clinically significant psychiatric condition within the two years before the clinical onset of his depressive disorder. The term “clinically significant psychiatric condition” was defined in Clause 9 to mean:

“… any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner …”

32 The Tribunal was satisfied, because Mr Malady suffered from both alcohol and drug abuse, that he also suffered from what DSM-IV-TR categorised as an Axis I disorder of “substance abuse”. It continued:

“The definition in the SoP refers to Axis I condition “sufficient to warrant ongoing management, which may involve regular visits …”. The applicant has received treatment for his substance abuse on more of an intermittent than a regularised basis. Nevertheless, his condition is such that it is sufficient to warrant “ongoing management” and has not resolved to the extent that the applicant has been able for instance to return to work. The Tribunal has also accepted the evidence of Dr Strauss, which confirmed the applicant’s statements to Dr Peek, that it is likely that the applicant commenced suffering from substance abuse prior to the commencement of his service. He meets the elements required to be met in order to satisfy the requirements of the factor.”

33 The Tribunal then proceeded to what it described as the “final step” in its reasoning which involved a determination, on the evidence, of “whether any of the accepted hypotheses are displaced and this is to be determined beyond reasonable doubt.” It continued:

“The Tribunal has already determined that it is satisfied that the applicant did not suffer depression prior to undertaking his qualifying service. The applicant commenced suffering depression shortly after he returned from East Timor. Unlike the requirements for establishing PTSD there is no objective requirement which needs to be present before a veteran is found to suffer depression. The respondent maintains that the applicant’s depression did not arise out of his operational service but arose following the completion of that service and related to his feelings of letting down his fellow servicemen as a result of his early return to Australian (sic). The Tribunal does not accept this as accounting solely for the applicant’s depression. … The events in East Timor do not have to be the sole cause of the applicant developing depression for him to qualify. It is sufficient if the condition “arose out of” or “was attributable to” his eligible service. …

There is no, or no convincing evidence, which causes the Tribunal to conclude beyond reasonable doubt that the applicant’s claim to have a recurrent depressive disorder, did not arise out of or was not attributable to his eligible war service. His claim for recurrent depressive disorder satisfies the four principles of Deledio’s case and should be accepted.”

34 The Tribunal concluded by summarising its decision in these terms:

“For the above reasons the Tribunal is satisfied that the applicant has the following war caused conditions – major depressive disorder and alcohol abuse and drug abuse.”

QUESTIONS OF LAW RAISED ON APPEAL

35 The scope of review contemplated by s 44(1) of the AAT Act is necessarily of narrow compass. It is confined to questions of law pursuant to s 44 of the AAT Act: Hussain v Minister for Foreign Affairs (2009) 169 FCR 241 at 254 per Weinberg, Bennett and Edmonds JJ. That the merits of a matter are to be dealt with not by this Court but by the AAT is a “distribution of function [which] is critical to the correct operation of the administrative review process”: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. The central question is whether the Tribunal could rely on a condition, which it had found not to be war-caused, to connect Mr Malady’s depressive disorder, alcohol and drug abuse to his war service. More specifically, the issue is whether the Tribunal could rely on a diagnosis of BPD to connect his major depressive disorder, alcohol abuse and drug abuse to his service. The Commission’s notice of appeal identifies the following questions of law:

“1. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 4 of the Statement of Principles (SoP) concerning alcohol dependence and alcohol abuse (Instrument No 76 of 1998), require the decision-maker to ask itself whether the factor (upon which the hypothesis of a connection between a person’s alcohol dependence or alcohol abuse and his/her relevant service is founded), is related to the person’s relevant service in one of the ways listed in s 196B(14) of the VE Act?

2. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 4 read with paragraph (c) of clause 5 of SoP Instrument No 76 of 1998, require the decision-maker to ask itself whether the person had a psychiatric disorder (as the expression “psychiatric disorder” is defined in clause 8 of that SoP) which is related to the person’s relevant service in one of the ways listed in s 196B(14) of the VE Act at the time of the clinical worsening of the person’s alcohol dependence or alcohol abuse?

3. In light of the Tribunal’s finding of fact (at paragraphs 123, 127 and 128 of the Tribunal’s Reasons for Decision (Reasons)) that Mr Malady’s borderline personality disorder was not connected to his operational service, was it open to the Tribunal to rely on Mr Malady’s borderline personality disorder in finding that Mr Malady met the template in paragraph (c) of clause 5 of SoP Instrument No 76 of 1998?

4. If the answer to question [3] is “no”, was the Tribunal’s decision that Mr Malady’s alcohol abuse is war-caused vitiated by error of law?

5. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 4 of the SoP concerning drug dependence and drug abuse (Instrument No 78 of 1998), require the decision-maker to ask itself whether the factor (upon which the hypothesis of a connection between a person’s drug dependence or drug abuse and relevant service is founded), is related to the person’s relevant service in one of the ways listed in s 196B(14) of the VE Act?

6. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 4 read with paragraph (d) of clause 5 of SoP Instrument No 78 of 1998, require the decision-maker to ask itself whether the person had a psychiatric disorder (as the expression “psychiatric disorder” is defined in clause 8 of that SoP) which is related to the person’s relevant service in one of the ways listed in s 196B(14) of the VE Act at the time of the clinical worsening of the person’s drug dependence or drug abuse?

7. In light of the Tribunal’s finding of fact that Mr Malady’s borderline personality disorder was not connected to his operational service, was it open to the Tribunal to rely on Mr Malady’s borderline personality disorder in finding that Mr Malady met the template in paragraph (d) of clause 5 of SoP No 78 of 1998?

8. If the answer to question [7] is “no”, did that error of law vitiate the Tribunal decision that Mr Malady’s drug abuse is war-caused?

9. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 5 of the SoP concerning depressive disorder (Instrument No 27 of 2008), require the decision-maker to ask itself whether the factor on which the hypothesis of connection between a person’s depressive disorder and relevant service is founded, is related to the person’s relevant service in one of the ways listed in s 196B(14) of the VE Act?

10. On their true interpretation, do ss 120(3), 120A(3) and 196B of the VE Act and clause 5 read with sub-paragraph (a)(vii) of clause 6 of SoP Instrument No 27 of 2008, require the decision-maker to ask itself whether the person had a clinically significant psychiatric disorder (as the expression “a clinically significant psychiatric disorder” is defined in clause 9 of that SoP) which is related to relevant service in one of the ways listed in s 196B(14) of the VE Act at the time of the clinical onset of the person’s depressive disorder?

11. In light of the answers to questions [1] to [10] and of the Tribunal’s reliance…on Mr Malady’s alcohol abuse and his drug abuse as the clinically significant psychiatric disorder required by sub-paragraph (a)(vii) of clause 6 of SoP No 27 of 2008, was the Tribunal’s decision that Mr Malady’s depressive disorder is war-caused vitiated by error of law?”

CONSIDERATION

36 Not all of the questions which have been framed by the Commission are, as they need to be, pure questions of law: see Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55. Questions 4, 8 and 11, for example, fall into this category. They may be appropriate in a case stated but, on an appeal on a question of law, their proper place (reframed) is in the grounds of appeal: see Birdseye at 60-61.

37 I do, however, consider that, when read together, questions 1 to 3 are questions of law which arise out of the Tribunal’s treatment of Mr Malady’s claim insofar as it is based on alcohol abuse. Similarly, I consider that, when read together, questions 5 to 7 are questions which arise from the Tribunal’s approach to his drug abuse claim.

38 The questions relating to the depressive disorder claim do give rise to greater difficulty. Questions 9 and 10 are unexceptionable. Question 11 should, however, in my view, be reframed as:

“11 In light of the Tribunal’s findings relating to Mr Malady’s borderline personality disorder, alcohol abuse and drug abuse, was it open to it to rely on his alcohol and drug abuse as the clinically significant psychiatric disorders required by sub-paragraph (a)(vii) of Clause 6 of SoP No 27 of 2008?.”

39 It was not in dispute that, in determining that there was a connection between Mr Malady’s alcohol and drug abuse and his operational service, the Tribunal relied on his BPD as a relevant factor. It forged the links in the chain between alcohol and drug abuse and operational service as follows (adapting the methodology employed by Goldberg J in McKenna at 80-1):

(a) Alcohol and drug abuse;

(b) Psychiatric disorder (BPD);

In order to uphold this hypothesis it is necessary that a causal link be established between factors (b) and (c). There was, as the Tribunal itself held, no causal nexus between Mr Malady’s operational service and the psychiatric condition (BPD) from which he suffered. The question which must be asked in accordance with s 120A(3) of the Act, namely, whether there is in force an SoP that upholds the hypothesis connecting each of the diseases contracted by an applicant with the circumstances of his operational service must, therefore, in this case, be answered: No.

40 In dealing with Mr Malady’s claim to have suffered from a war-caused depressive disorder the Tribunal fell into error when it got to the final stage of the reasoning process prescribed by Deledio. Having found that Mr Malady suffered from a “recurrent major depressive disorder” under Clause 3 of SoP Number 17 of 2008, the Tribunal identified the most likely factor which linked the condition to his operational service as being whether he had a clinically significant psychiatric condition within two years before the clinical onset of his depressive disorder. It fixed on “substance abuse” as being the relevant psychiatric condition. At this point, the Tribunal was required, by s 120(1) of the Act, to ask whether it was satisfied beyond reasonable doubt that Mr Malady had not suffered from a clinically significant psychiatric condition in the two years before the clinical onset of his depressive disorder and, if so, whether it was satisfied that his psychiatric condition was not related to his service in one of the ways identified in s 196B(14) of the Act.

41 The Tribunal did not proceed in this way. It referred to what it described as the “events in East Timor” and said that they were a cause of Mr Malady developing depression. I understand the Tribunal, in this part of its reasons, to be referring to the events which are mentioned above at [3]. These events could not be factors linking Mr Malady’s depressive disorder to his operational service because the Tribunal had found that he had not experienced any severe traumatic stressor in East Timor. It also referred to Mr Malady’s feeling, after leaving East Timor, that he had let his colleagues down.

42 Had it proceeded consistently with the requirements of SoP Number 27 of 2008 it may have held that it was satisfied beyond reasonable doubt that Mr Malady had not suffered from substance abuse in the two years before the clinical onset of his depressive disorder. Such a finding would have been necessary if the Tribunal’s reasons which are set out above at [32] are to be understood as containing a finding (express or implied) that Mr Malady’s substance abuse only warranted ongoing management after he had left East Timor and returned to Australia. This understanding of the Tribunal’s reasons is suggested by the use of the present tense (“is such” and “is sufficient”); there is certainly no express finding that Mr Malady’s substance abuse required ongoing management in the two year period prior to the clinical onset of his depressive disorder, which event occurred after his return from East Timor.

43 In any event, in my opinion, the Tribunal was bound to find that Mr Malady’s psychiatric condition was not related to his operational service in East Timor in any one of the ways identified in s 196B(14) of the Act. This must follow from the fact that the substance abuse which constituted the relevant psychiatric condition was not, for the reasons already given in dealing with the claims based on alcohol and drug abuse, service related in the necessary sense.

CONCLUSION

44 It follows, in my opinion that the appeal must be allowed. The decision of the Tribunal must be set aside and the decisions of the Board and the Commission should be affirmed. The Commission does not seek an order for costs against Mr Malady and no such order should be made.

45 Mr Malady submitted that there should, in addition, be an order remitting the matter to the Tribunal to be reheard and determined according to law.

46 Such an order will be appropriate in cases in which the Tribunal’s error of law has distracted it from making findings or dealing with issues which might be resolved favourably to an applicant. I invited counsel for Mr Malady to identify any alternative basis on which the Tribunal might have been persuaded to uphold Mr Malady’s claim. Counsel was unable to suggest any process of reasoning, consistent with the factual findings made by the Tribunal, which would have enabled it to find that any of the three conditions which were suffered by Mr Malady were service related.

47 In these circumstances it is not, in my opinion, appropriate to remit the matter to the Tribunal.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 30 July 2010

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