FEDERAL COURT OF AUSTRALIA

Kaluza v Repatriation Commission [2010] FCA 1244

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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.

REASONS FOR JUDGMENT

Introduction and Overview

1                     Mr Stanislaw Kaluza is a veteran who served in the Royal Australian Airforce from 1963 to 1983.  During the period of the Vietnam War he participated in several flights to and from Vietnam.  He suffers from a number of medical conditions which he claims to be war-caused.

2                     Mr Kaluza relied on two events which he said were stressors that caused his conditions.  The first was said to have occurred on a flight which took place in early 1968 when he claimed to have seen injured soldiers.  The second was in February 1969 when Mr Kaluza was returning from Vietnam.  

3                     The event in February 1969 involved Mr Kaluza’s participation in a game of cards which was played on the casket of a deceased soldier who was being repatriated.

4                     In Kaluza v Repatriation Commission [2008] AATA 392 (“the First Tribunal Decision”), the Administrative Appeals Tribunal affirmed the decision of the Veterans’ Review Board insofar as the Board held that none of Mr Kaluza’s medical conditions were war-caused.

5                     Mr Kaluza appealed to the Federal Court on two questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  Each of the questions raised an issue as to whether Mr Kaluza was rendering “operational service” within the terms of s 6C(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) at the time of the claimed stressors.

6                     In broad terms, the first question was whether Mr Kaluza was rendering operational service on the flight in which he claimed to have participated in 1968.  Similarly, the second question was whether Mr Kaluza was rendering operational service on the 1969 flight.

7                     In her reasons for judgment on the appeal from the First Tribunal Decision, Branson J determined the first question adversely to Mr Kaluza but her Honour determined the second question favourably to him.  Her Honour set aside the First Tribunal Decision and remitted the matter to the Veterans’ Appeal Division of the Tribunal to be determined according to law: Kaluza v Repatriation Commission [2008] FCA 1365.

8                     On the remittal, the Tribunal found that none of the conditions from which Mr Kaluza suffers are war-caused: Kaluza v Repatriation Commission [2010] AATA 498 (“the Second Tribunal Decision”).

9                     The first issue which arose on the remittal was what was its scope.  Although Branson J’s order was stated in wide terms, the Tribunal took into account the context of the appeal and her Honour’s reasons in coming to its view that the referral was limited to the second ground of appeal, on which Mr Kaluza succeeded in his appeal to the Court.

10                  The Tribunal went on to find in the Second Tribunal Decision that, consistently with Branson J’s decision, Mr Kaluza was rendering operational service in the flight on 24 February 1969 when he participated in the card game described above.  However, it was satisfied that Mr Kaluza did not render operational service on the 1968 flight.

11                  The Tribunal then dealt with the diagnoses of Mr Kaluza’s conditions and confirmed the diagnoses which it had reached in the First Tribunal Decision, namely that Mr Kaluza suffers from an anxiety disorder, alcohol abuse and hypertension.

12                  Having done so, the Tribunal then determined the clinical onset of each of the conditions.  The Tribunal found that the onset of the anxiety disorder and the alcohol abuse occurred in 1972.  It found that the onset of the hypertension was 1975: see Second Tribunal Decision at [38].

13                  In doing so, the Tribunal purported to apply a decision of a Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 (“Lees”).

14                  The Tribunal then turned to the question of whether Mr Kaluza’s anxiety disorder, alcohol abuse and hypertension are war-caused, that is to say, are caused by his operational service in February 1969.  The Tribunal considered this question by applying the four step process explained by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261; affirmed on appeal Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).

15                  These steps required the Tribunal to consider whether the material before it pointed to a reasonable hypothesis connecting the condition with the particular service rendered by the person and, if so, whether there was in force a ­­statement of principles (“SoP”) for the condition and whether the condition is consistent with the template found in the SoP.  If the condition is consistent with the SoP, a reverse onus applies to the Commission because the claim will succeed unless the Tribunal is satisfied beyond reasonable doubt that the death is not war-caused.

16                  The Tribunal came to the view that the card-playing incident raised a reasonable hypothesis.  It considered the SoP for each of the conditions but came to the conclusion that Mr Kaluza’s anxiety and alcohol abuse were not consistent with the template stated in the relevant SoP.  In broad terms, this was because the card-playing incident was held not to be a psychological stressor of the type stated in the SoP.

17                  Accordingly, the Tribunal found that Mr Kaluza’s anxiety disorder and alcohol abuse were not war-caused.

18                   As to Mr Kaluza’s hypertension, the Tribunal found that this condition did fit the template in the relevant SoP but was not war-caused in that it arose from a non war-caused condition of alcohol abuse.

19                  Mr Kaluza appeals to the Courts under s 44(1) of the AAT Act.  He raises five grounds which are said to amount to questions of law.

The Five Questions

20                  The first question is whether the Tribunal committed an error of law by limiting its review on the remittal to the card-playing incident which occurred in 1969, without considering the 1968 incident on which Mr Kaluza also relied.

21                  The second question arises from a paragraph of the reasons for the Second Tribunal Decision in which the Tribunal said it accepted the evidence of Mr Kaluza, who described at various times “such as 1968”, certain events which upset him.  The relevant paragraph of the reasons is [78].

22                  The question which is said to arise from this is whether, if the Tribunal conducted a full review (that is, contrary to the first error claimed by Mr Kaluza), it misapplied the provisions of s 6C of the Act and “failed to ask the correct question” as to whether Mr Kaluza was in operational service.

23                  The third question is whether the Tribunal misapplied the decision in Lees by determining the clinical onset of Mr Kaluza’s medical conditions at the time when he sought treatment.

24                  The fourth question arises from [61] of the reasons for the Second Tribunal Decision.  The reasons are said to amount to a misapplication of the relevant SoP (in particular the necessary factors for a severe psychological stressor) because the Tribunal stated that Mr Kaluza needed to point to a threat of death or serious injury in order to comply with the SoP.

25                  The fifth question arises from [92] of the reasons for the Second Tribunal Decision.  This is said to raise a question as to whether the Tribunal properly applied the SoP test of a psychological stressor for alcohol abuse because the Tribunal considered that Mr Kaluza did not “confront” events that involved an actual threat of death or injury.

The First tribunal decision

26                  The Tribunal received evidence from Mr Kaluza about a flight to Vietnam in early 1968.  The Commission called evidence from Air Commodore Brennan who conducted a review of the records of Mr Kaluza’s air force unit which was Squadron 37.

27                  The following passages of the Tribunal’s reasons are relevant:

34.       We were mindful of Mr Kaluza’s evidence that he had seen injured soldiers in January or February 1968 although he could not specify a date.  His evidence was that there were “badly hurt” soldiers on board, and that “those with the worst injuries appeared to be sedated and most were on stretchers with bandages that did not control the bleeding well … I was badly affected by seeing the casualties..”  We accepted from the official records which Air Commodore Brennan had searched in detail that Mr Kaluza was not on those flights.  Accordingly we were satisfied that he could not have been given operational service in January or February 1968. 

…

40.       We are mindful that the records of the time may have some inaccuracies.  Unfortunately we were not able to rely on Mr Kaluza’s recollections as to further additional flights which could be classified as operational service, because understandably given the effluxion of time, he was not able to remember specific dates.  We were mindful that Mr Kaluza participated in many flights, and could not be expected to recall them all.  We have noted that he had a recollection of a flight in 1968, and described the aircraft having pressurisation problems.  However we do not have a date on which to consider operational service, and we were satisfied from the thorough Brennan search of the records that Mr Kaluza was not recorded as having been on an operational service flight in early 1968. 

28                  The Tribunal’s reasons for finding that the flight on 24 February 1969, which involved the card-playing incident, was not on operational service are set out at [37] –[38].  The essence of the reasons was that the incident occurred on the second leg of the flight from Butterworth (in Malaysia) to Pearce in Western Australia, rather than on the first leg from Vietnam to Butterworth.

29                  Although the Tribunal therefore rejected Mr Kaluza’s claims that he was rendering operational service on the two flights, namely January or February 1968 and 24 February 1969, the Tribunal went on to consider the conditions on which Mr Kaluza relied for a pension for incapacity from war-caused medical conditions.  The Tribunal rejected Mr Kaluza’s claims that he suffered from post-traumatic stress disorder (“PTSD”) and alcohol dependence but found that he suffers anxiety disorder, alcohol abuse and hypertension.

30                  The Tribunal heard medical evidence from Dr Dinnen, for Mr Kaluza, and from Dr Roberts, for the Commission.  The following passages from the Tribunal’s reasons are relevant to the Tribunal’s finding of the onset of anxiety disorder:

62.       In his oral evidence Dr Dinnen opined that in the 1960s and 1970s Mr Kaluza’s condition was more like anxiety disorder, but that in recent times it resembled PTSD.  He commented that the onset was in the early years of service, that Mr Kaluza had been treated for anxiety in 1972, and that the condition was established between 1968 and 1972.  He opined that the illness had clinical recognition in 1972.

…

87.       We noted Mr Kaluza’s evidence, and that of the doctors, in particular Dr Dinnen, that he exhibited certain symptoms of PTSD.  Dr Dinnen had documented his anxiety before operational service when he was in sickbay in 1965, and when he travelled to the USA in 1972, followed by the anxiety he exhibited after operational service.  We were satisfied as a result of that sequence of events that pursuant to the tests in DSM-IV, Mr Kaluza suffers anxiety disorder. 

88.       We were satisfied from the evidence of the Veteran, a consideration of the tests in the DSM-IV for PTSD and anxiety disorder, and the reports of the doctors who treated and examined Mr Kaluza that the preferred diagnosis was anxiety disorder, and had been so since he was first treated for the condition in 1972. 

31                  The Tribunal made the following finding about the clinical onset of alcohol abuse:

116.     In order to determine the clinical onset of alcohol abuse we took into account the decision of Lees where the Court stated that all of the required symptoms had to be displayed.  We were satisfied on the basis of Dr Dinnen and WG Cdr Isbister’s reports that Mr Kaluza’s alcohol abuse was established by 1972.

32                  The Tribunal made the following finding about the clinical onset of hypertension:

154.     In considering Mr Kaluza’s hypertension we noted that whilst the Veteran may have commenced suffering hypertension before, it was common ground that the onset was in November 1975 (Dr Butler) when treatment was commenced. 

33                  The Tribunal’s decision was set out at [157] as follows:

The Tribunal varies the decision under review and finds that Mr Stanislaw Kaluza suffers from anxiety disorder, alcohol abuse and hypertension, but not PTSD or alcohol dependence.  The Tribunal finds that none of the conditions claimed or diagnosed are war-caused.

the reasons for decision of branson j

34                  Branson J set out, at [3] of her reasons, the questions of law identified by Mr Kaluza.  As I said earlier, the first question related to the 1968 flight.  The effect of it was framed in terms of s 6C of the Act as to whether the Tribunal erred in law in determining that the section precluded a finding of operational service if the date was “not confirmed by service records”. 

35                  The second question was whether the Tribunal erred in law by construing s 6C of the Act as requiring a finding that operational service ceased when Mr Kaluza continued his journey from Vietnam to Australia from a place outside of Vietnam.

36                  Branson J referred to Mr Kaluza’s evidence before the Tribunal as follows:

10.       The Tribunal noted that Mr Kaluza claimed that during the period that he was posted to 37 Squadron at Richmond he made five or six flights to Vietnam between 1968 and 1971.  The respondent agreed that he made two such flights, namely a flight on 22 February 1969 and a flight on 20 November 1970.  The claimed flights that were in dispute were a flight in early 1968, a flight in 1969 or 1970 and a flight in 1971. 

11.       Mr Kaluza gave evidence that the flight in 1968 was a Medivac flight which took stores, equipment and mail to Vietnam and repatriated wounded personnel.  He named the commander of the flight and said that there was an incident on board involving a loss of cabin pressure.  Mr Kaluza indicated that the 1969/70 and 1971 flights were also to carry equipment to Vietnam and bring personnel back.  He did not recall specific incidents in relation to those flights and stated that they were “largely uneventful”. 

37                  Her Honour went on to say that the Tribunal had the benefit of two reports from Air Commodore Brennan which included a range of records for 37 Squadron.

38                  In rejecting the first question, Branson J observed that the Tribunal ultimately preferred to rely on the research conducted by Air Commodore Brennan to Mr Kaluza’s recollection of events.  The ­­critical passage in her Honour’s reasons is as follows:

16.       The limited nature of Mr Kaluza’s statutory right of appeal means that he may not challenge the Tribunal’s findings of fact in this Court unless he can demonstrate that they are affected by an error of law. He has not so demonstrated.  The Tribunal simply chose, in an entirely conventional way, to prefer evidence from one source over evidence from another.  For this reason, Mr Kaluza’s appeal, so far as it relies on Question 1, fails.

39                                          As to question two, Branson J considered that the Tribunal adopted an erroneous construction of s 6C of the Act and an associated Instrument signed under s 5B(2)(c) of the Act.  The effect of her Honour’s reasoning was that the intention of the Instrument was that a person should be regarded as being allotted for duty in Vietnam during the whole of the journey to and from Vietnam, unless diverted for other reasons.

40                  Her Honour stated her conclusions as follows:

24.       For the above reasons, in determining whether the conditions from which Mr Kaluza suffers are war-caused, the Tribunal did not give consideration to the whole of the period during which Mr Kaluza is to be taken to have been allotted for duty in an operational area. 

25.       It is appropriate that the decision of the Tribunal be set aside and the matter remitted to the Tribunal.  Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced.  I therefore make no directions in these regards (see s 44(6) of the Administrative Appeals Tribunal Act).

Branson J’s orders

41                  Her Honour’s orders were as follows:

1.         The decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal be set aside. 

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

THE SECOND TRIBUNAL DECISION

42                  The Tribunal considered, at some length, the ­­­scope of the remittal including relevant authorities which have addressed that question.

43                  In coming to the view that the remittal was limited to the second question raised before Branson J, the Tribunal took into account the nature of the matter in dispute, the circumstances of the case and her Honour’s reasons.

44                  The ­critical passage in the Tribunal’s determination of the scope of the remittal is as follows:

31.       Remittals are different in each case, and must take into account the circumstances of the case.  It is true in many circumstances the whole case is remitted.  However in this case, the first leg of the appeal was not upheld, and Justice Branson remitted only the second, with a proviso that the Tribunal did not need to be reconstituted, and that no further evidence was necessary.  We are satisfied that Justice Branson remitted the matter in a limited way, and have dealt with it accordingly. 

45                  The Tribunal said at [30] that it accepted the facts relating to Mr Kaluza as they existed at the time of the First Tribunal Decision.  The Tribunal informed the parties it would not require further evidence to be adduced.

46                  Mr Kaluza sought to introduce further evidence as to the flights on which he claimed to have been on operational service, in particular the flight in early 1968.  The Tribunal said at [35] that its findings as to the flights, as stated in the First Tribunal Decision “stand” and:

[w]e did not take further evidence in regard to those.

47                  However, the Tribunal went on to say at [36] that it found, in accordance with the reasons of Branson J, that Mr Kaluza was on operational service for the duration of the flights to and from Vietnam between 22 and 26 February 1969, and in particular, the flight of 24 February 1969 from Butterworth to Pearce.  That was the leg of the flight on which the card-playing incident occurred.

48                  The Tribunal then turned to the diagnosis of Mr Kaluza’s conditions.  It did not take further evidence on that question and said that “the previous diagnoses stand”.

49                  The following passage is important on the question of the Tribunal’s findings as to the onset of Mr Kaluza’s clinical conditions:

38.       In order to determine the clinical onset of the conditions, we took into account the decision of Lees v Repatriation Commission (2002) 125 FCR 331 where the Court stated that all of the required symptoms had to be displayed, and treatment sought in order to determine clinical onset. We did not reconsider the dates we accepted for clinical onset at the time of the 2008 decision.

Anxiety Disorder: By way of completeness we note that we were satisfied from the evidence of the Veteran (given at the first hearing), a consideration of the tests in the DSM-IV for PTSD and anxiety disorder, and the reports of the doctors who treated and examined Mr Kaluza, that the preferred diagnosis was anxiety disorder. We accept that a psychiatric condition was established by 1968, but that it had first been treated in 1972, and that this is therefore the date of onset for purposes of the matter before us.

Alcohol Abuse: We were satisfied on the basis of Dr Dinnen and WG Cdr Isbister’s reports that Mr Kaluza’s alcohol abuse was established by 1972.

Hypertension: We noted that Mr Kaluza made a claim for hypertensive cardiovascular disease to be accepted as war-caused. The claim was rejected by the VRB, which reclassified the disease as hypertension, and decided that it was satisfied Mr Kaluza suffers from hypertension, with its clinical onset in approximately July/August 1972. In its decision in 2008, this Tribunal decided on the basis of the evidence before it that the Veteran suffers hypertension, and accepted Dr Butler’s opinion that when therapy was commenced in 1975 should be regarded as the clinical onset of hypertension (Lees).

[Bold in original].

50                  The Tribunal set out in full the relevant provisions of the Act which govern the question of whether a condition is war-caused.  These are s 9 which contains a definition of war-caused injuries, s 6C(1) which deals with the question of whether a person is taken to have been rendering operational service, and s 120 which deals with the standard of proof.

51                  I will not repeat those provisions, save to say that s 120 imposes what may be termed a reverse onus of proof.

52                  The effect of these provisions (and of s 120A of the Act which requires that an assessment of the reasonableness of a hypothesis be undertaken in accordance with any SoP issued by the Repatriation Medical Authority) was stated in Deledio.  The Tribunal set out the relevant passage from Deledio which appears at page 97.

53                  The approach stated in Deledio requires the Tribunal to undertake four steps which may be summarised as follows:

·                    First, the Tribunal must consider whether the material before it points to a hypothesis connecting the injury to the circumstances of the particular service rendered by the person;

·                    Second, if the material raises such a hypothesis, the Tribunal must ascertain whether there is an SoP in force.

·                    Third, if an SoP is in force the Tribunal must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” found in the SoP.

·                    Fourth, the Tribunal must then consider under s 120(1) whether it is satisfied beyond reasonable doubt that the injury was not war-caused.  If it so determines, the claim must be rejected, otherwise it will succeed.  That is why it may be described as a reverse onus.

54                  The Tribunal next addressed each of Mr Kaluza’s diagnosed conditions by following the steps stated in Deledio.

55                  As to Mr Kaluza’s anxiety disorder, the Tribunal considered that the card-playing incident pointed to a hypothesis concerning a connection to Mr Kaluza’s condition with his operational service.

56                  The Tribunal considered the appropriate SoPs for anxiety disorder to be Instruments No. 1 of 2000 and No. 101 of 2007.  It paraphrased the factors giving rise to that condition which required the veteran to have experienced a severe psychological stressor within two years immediately before the clinical onset of the disorder.

57                  The Tribunal addressed the question of whether Mr Kaluza experienced such a stressor as follows:

57.       A ‘severe psychosocial stressor’ is defined in Instrument No.1 of 2000 as an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

58.       The raised facts, that is Mr Kaluza being invited to play a card game on the casket on the flight of 24 February 1969, and possible carriage of minor casualties do not point to the possibility of Mr Kaluza experiencing a ‘severe psychosocial stressor’ during that flight, and fitting the template in Instrument No.1 of 2000.

59.       Dr Dinnen did not refer to the playing of cards on the casket in particular as a severe psychosocial stressor, but relied on all the occurrences of stress which Mr Kaluza recounted, in particular the carriage of wounded soldiers on various flights.  

60.       We noted that Dr Roberts opined in his medical report dated 2007, that Mr Kaluza’s presentation was consistent with mild depression and anxiety symptoms, (not PTSD), and that the description of the card game could not be held to be a severe stressor in the terms of the SoPs.

61.       Mr Kaluza’s experiences on the flight of 24 February 1969, as he raised them, demonstrated some distress, and in order to fit the template, needed to point to a threat of death or serious injury or to his physical integrity, and which with his knowledge and in his experience, could reasonably be so perceived. In that regard, we have taken into account Stoddart v Repatriation Commission (2003) 74 ALD 366.

It is consistent with these provisions that the SOPs should be read as meaning that a claimant experiences ‘a severe stressor’ if that person experiences or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived.

58                  The Tribunal concluded at [62] that Mr Kaluza did not meet the “template” stated in the SoP because playing cards on the casket did not involve a threat of death or serious injury, or a threat to his physical integrity. 

59                  In light of this finding, it was probably unnecessary for the Tribunal to make further findings.  However, it did so.  It repeated at [72] its finding that the clinical onset of the condition of anxiety was 1972 when it was first treated, and it then moved to consider the reverse onus under s120(1) of the Act.

60                  In the course of considering the facts relating to the application of the reverse onus the Tribunal made the following finding:

78.       We accept the evidence of the Applicant who described that at various times such as 1968 he was in the company of wounded soldiers, which upset him greatly. However, we are satisfied that the 1968 flight was not on operational service. Accordingly we are satisfied beyond reasonable doubt that any stressors which Mr Kaluza claims occurred in 1968, and any ill effects cannot be war-caused within the legislation.

61                  The Tribunal went on to address the reverse onus in relation to the flights from Butterworth to Pearce.  The Tribunal said:

81.        …  We are satisfied beyond reasonable doubt that notwithstanding we found that Mr Kaluza suffered a psychiatric disorder with onset of anxiety disorder in 1972, the playing of cards on the casket on 24 February 1969 did not make the required nexus to war service.

62                  The Tribunal went on to adopt a similar reasoning process in relation to the conditions of alcohol abuse and hypertension. 

63                  It concluded that the alcohol abuse did not meet the template stated in each of the applicable SoPs because Mr Kaluza was not confronted with an event which involved actual, or threatened, death or injury, or a threat to his physical integrity.

64                  The Tribunal reasoned that the raised facts in regards to Mr Kaluza’s hypertension did meet the template in the relevant SoP and therefore went on to consider s 120 of the Act.  It found that since Mr Kaluza’s alcohol abuse was not war-caused, and because his hypertension arose from the alcohol abuse, it was satisfied beyond reasonable doubt that the hypertension was not war-caused.

question 1 - The Scope of the Remittal

65                  In my opinion a question of law arises in relation to the scope of the remittal, generally in the terms stated by Mr Kaluza.  The effect of the question is to raise for consideration the meaning and effect of the orders made by Branson J setting aside the decision of the Tribunal and remitting the matter to the Tribunal to be dealt with according to law.

66                  The substance of the submission of Mr Kaluza’s counsel, Mr Colborne, was that the order made by her Honour was clear and unqualified.  He resubmitted that the order made in the First Tribunal Decision was set aside and, in the absence of any express limitation, it was for the Tribunal rehearing the matter to determine all questions of fact and law relevant to Mr Kaluza’s claim: Peacock v Repatriation Commission (2007) 161 FCR 256 (“Peacock”) at [6].

67                  Mr Colborne also pointed to the observation of the Full Court in Peacock at [18] that it will be a “rare case” in which a limitation in the remittal will be inferred from the reasons for judgment given by the remitting judge when the terms of the remittal are unqualified.

68                  I do not consider that this observation was intended to place a restriction on the ability of the Tribunal to determine the nature of the hearing on the remittal having regard to the terms of the order and the circumstances of each case.

69                  It is well established that where the terms of the order are unclear it is permissible to take into account the reasons for judgment which constitute the reasons for the order:  Repatriation Commission v Nation (1995) 57 FCR 25 (“Nation”) at 33 per Beaumont J (with whom Black CJ and Jenkinson J agreed); Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 387 per Black CJ, Burchett and Tamberlin JJ; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 (“Walker Corporation”) at [37] per Basten JA (with whom Beazley JA and Young JA agreed); see also Peacock at [19].

70                  It may well be that this approach is applicable in every case because the modern view of interpretation of statutes and construction of contracts is to construe them in their context, having regard to their purpose and object: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].

71                  The observations of Basten JA in Walker Corporation at [31] and [38] seem to me to support the proposition that the context and nature of the dispute will inform the proper construction of the exercise of power which is engaged by the order of the Court remitting the matter for reconsideration.

72                  In any event, for the reasons stated by Beaumont J in Nation, there is sufficient ambiguity in the terms of the order in the present case to warrant consideration of the reasons and context.

73                  The ­context begins with the statutory conferral of power on the Court.  That is to be found in s 44(1) of the AAT Act which confers jurisdiction on the Court only on a question of law.  So long as the jurisdictional prerequisite is satisfied, the Court may make such order as it thinks fit, including an order setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal: AAT Act ss 44(4) and 44(5).

74                  If the Court makes an order remitting a case to be heard and decided again, the Tribunal need not be constituted by the Tribunal members who made the decision to which the appeal relates: AAT Act s 44(6).

75                  The exercise of power by Branson J to set aside the decision of the Tribunal and remit the “matter” was expressly predicated upon the reasons given by her Honour for answering the second question favourably to Mr Kaluza.  Thus, the “matter” which was remitted was the question of whether the leg of the journey from Vietnam, via Butterworth to Pearce, was part of Mr Kaluza’s “operational service”.

76                  It follows from her Honour’s reasons that the error of law committed by the Tribunal was that it failed to consider whether Mr Kaluza’s allotment for duty on the return leg from Butterworth to Pearce was operational service rendered by Mr Kaluza.  It also follows that upon the remittal the Tribunal was bound to consider that matter and to complete the exercise of its jurisdiction to determine whether the conditions from which Mr Kaluza suffers are war-caused.

77                  Her Honour’s statement that neither party identified a reason why the Tribunal should be differently constituted, or for further evidence to be adduced, is consistent with that view of the scope of the remittal.

78                  The contrary view, urged upon me by Mr Colborne, would have the effect that the entire case, including the question on which Mr Kaluza was unsuccessful in the First Tribunal Decision and on the appeal to the Court, was remitted to the Tribunal.  That is a proposition which I cannot accept.

79                  It is true that in Peacock the effect of the order for remittal was to permit the applicant to raise all questions of fact and law relevant to his claim, including a question which he had not agitated at the first hearing.  However, that is quite different from the position in the present case where the question has been raised and answered adversely to Mr Kaluza both at the initial hearing in the Tribunal and on the appeal to the Court.  The position here is analogous to that which occurred in Nation.  Although the Full Court in Peacock distinguished Nation, it is not distinguishable in the present case: cf Peacock at [19].

80                  To construe the remittal order in the terms for which Mr Colborne contended would be to ignore the purpose and object of the order.  Accordingly, I reject the submission.

81                  It follows that the Tribunal adopted the correct construction of the scope of the remittal.  It also follows that the Tribunal was correct in refusing to permit Mr Kaluza to adduce further evidence on the question of whether he rendered operational service on the flight in January or February 1968.

QUESTION 2 - Embarking on a full review BUT failure to complete THE EXERCISE of jurisdiction

82                  Mr Colborne submitted that the effect of [78] of the Tribunal’s Second Decision was that it embarked upon a full review and made a new finding in which it accepted that Mr Kaluza was present on the flight in 1968 when wounded soldiers were evacuated from Vietnam.  He  submitted that once this finding was made it was incumbent upon the Tribunal to determine that the 1968 flight constituted operational service rendered by Mr Kaluza so that it ought then to have considered whether his medical conditions were caused by this flight.

83                  However, I do not consider that Mr Colborne’s submission reflects a fair reading of the first sentence of [78] of the reasons.  To adopt his approach would be to read the Tribunal’s reasons in an “over-zealous” or narrow way, contrary to the well established approach to the way in which the reasons of administrative tribunals are to be considered.  

84                  In my view, the words “we accept” the evidence of Mr Kaluza, are probably no more than a verbal slip because the Tribunal goes on in the next sentence at [78] to state that it is satisfied that the 1968 flight was not on operational service.

85                  Moreover, when the reasons of the Tribunal are read as a whole it is quite plain that the Tribunal made no new finding in relation to the 1968 flight.  The entire scope of the review was limited to the flight which took place in February 1969 from Butterworth to Pearce.  The Tribunal said so when it determined the scope of the remittal in the passages to which I referred in answering the first question.

86                  Indeed, the Tribunal said at [35] that its findings made in the First Tribunal Decision with regard to flights other than the flight in February 1969 (and another flight in November 1970 which is irrelevant for present purposes):

… stand, and need not be repeated.  We did not take further evidence in regard to those.

87                  The Tribunal also said at [44] that it was satisfied from the evidence before it in the First Tribunal Decision that Mr Kaluza did not have operational service in 1968.

88                  Thus, to read [78] of the reasons in the manner submitted by Mr Colborne would be to read the first sentence as being contrary to the whole of the balance of the reasons and to the way in which the Tribunal dealt with the remittal.  I therefore reject the submission.

89                  A fair reading of the words “we accept” in [78] is to be obtained by reading those words in light of what the Tribunal said at [34] of the First Tribunal Decision.  There, the Tribunal said it was mindful of Mr Kaluza’s evidence about the 1968 flight.

90                  In my opinion [78] of the Second Tribunal Decision is to be read in the same way; what must be borne in mind is the Tribunal’s expressed preference for the evidence of Air Commodore Brennan to that of Mr Kaluza with respect to the 1968 flight and its statement in the Second Tribunal Decision that its earlier findings stand.

91                  I doubt whether the second question raises any question of law.  Even if it does, I do not consider that the Tribunal’s reasons disclose any error.

Question 3 - Date of clinical onset

92                  The meaning of the expression “clinical onset” was considered by the Full Court in Lees.  The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:

·                    when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or

·                    when a finding is made on investigation which is indicative to a doctor that the disease is present.

93                  The definition therefore emphasises the need for a determination of the clinical onset by medical evidence.  It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms.  But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

94                  Mr Colborne submitted that the effect of [38] of the Second Tribunal Decision was that the Tribunal mis-stated the test referred to in Lees so as to treat the date of clinical onset as the date on which treatment is sought.

95                  I do not consider this to be a fair reading of [38] of the Tribunal’s reasons.  The first sentence of the paragraph is a paraphrase of the test stated in Lees.  It is not an inaccurate paraphrase, and captures the essence of the test: all the symptoms must be displayed and treatment sought so that the practitioner can determine the date of clinical onset. 

96                  Nor do the remaining sub-paragraphs of [38] suggest that the Tribunal approached the issue by determining the date of the first treatment as the date of clinical onset.  The Tribunal was doing no more than endeavouring to restate the findings it made in the First Tribunal Decision, in particular at [34],  [87] and [88] of the First Tribunal Decision.

97                  The dates of clinical onset of the conditions stated in [38] of the Second Tribunal Decision are the dates which the Tribunal determined to be the onset on the basis of the medical evidence.  This was not based on a misapplication of the test stated in Lees. 

98                  The correctness of the Tribunal’s approach to this question is emphasised by what it said later when considering whether the conditions from which Mr Kaluza suffers were war-caused.  The Tribunal said at [72] that the onset of the anxiety disorder was 1972, when it was first treated, and this would meet the template for that disorder in the SoP.  But, the Tribunal went on to find at [81] that, notwithstanding the existence of the disorder, it was not relevantly caused by Mr Kaluza’s war service.

99                  The same approach is to be found in the Tribunal’s consideration of alcohol abuse at [97].

Question 4 - “severe psychological stressor”

100               Mr Colborne submits that the Tribunal failed to properly consider and apply the definition of “severe psychological stressor” in the relevant SoP.  He refers in particular to [61] of the reasons in which the Tribunal found that, in order to fit the template for anxiety disorder, Mr Kaluza needed to point to a threat of death or serious injury, or a threat to his physical integrity.

101               It is true, as Mr Colborne submits, that the language used by the Tribunal in [61] follows more closely the wording of the SoP for the condition of post-traumatic stress disorder than the SoP for anxiety.

102               The SoP for PTSD was Instrument No. 54 of 1999.  The definition in that SoP was that a person experienced or was confronted with an event that involved actual, or threat of, death or serious injury, or a threat to his or her physical integrity.

103               By contrast, the relevant SoP for anxiety disorder, contained in Instrument No. 1 of 2000 contains no reference to the person being “confronted” with an event, or to an event which involves a threat of death.  Instead, the definition of “severe psychological stressor” refers to an identifiable occurrence that evokes feelings of substantial distress.  Examples are then given which include being shot at, death or serious injury of a close friend or relative.

104               However, I do not consider that [61] of the Tribunal’s reasons, when read in their full context suggest that the Tribunal applied the wrong definition of “severe psychological stressor”.  Nor does the reference to the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366, which was concerned with the definition in the SoP for PTSD and alcohol abuse, suggest the error for which Mr Colborne contends.

105               In considering whether the facts raised by Mr Kaluza met the template for a “severe psychological stressor” the Tribunal was engaged in the second and third steps of the process stated in Deledio.  The Tribunal’s analysis of those steps commences at [53] of its reasons.

106               The Tribunal identified the relevant SoP at [53] and asked itself the ­correct question in that paragraph.  It listed the relevant factors in [54] by reference to those contained in the applicable SoP.  It accurately set out the definition of “severe psychological stressor” in the SoP for anxiety disorder in [57] of its reasons.

107               Importantly, the Tribunal went on to say at [58] that the “raised facts”, namely the card-playing incident, did not point to the possibility of Mr Kaluza experiencing a “severe psychological stressor” during the flight and fitting the template stated in the SoP for anxiety disorder.

108               The Tribunal supported this finding by reference to the medical evidence of Dr Dinnen and Dr Roberts to which the Tribunal referred in [59] and [60] of its reasons.

109               The finding in [58] of the Tribunal’s reasons and the references to the medial evidence were sufficient to dispose of the question of whether the hypothesis raised by Mr Kaluza was a reasonable one, that is to say, whether it was consistent with the template stated in the relevant SoP.  The finding which the Tribunal made was in effect that the card-playing incident did not contain one or more of the factors which have been determined in the SoP to be the minimum which must exist.  That is to say, the third step stated in Deledio was answered adversely to Mr Kaluza and his claim therefore failed.

110               It seems to me that in [61] and [62], the Tribunal was merely looking at the “raised facts” to see whether they were consistent with the definition of “severe psychological stressor” even though the words used in those paragraphs seem to have been borrowed from the terms of other SoPs.

111               All that the Tribunal sought to do in those paragraphs was, in my opinion, to see whether the minimum factors for the relevant condition existed so as to relate to Mr Kaluza’s operational service.  That was in accordance with Deledio and the Tribunal did not, in my view, depart from the definition in the SoP for anxiety disorder.

112               That view is supported by the Tribunal’s observations in [63] of its reasons.  There the Tribunal observed that other situations available in order to meet the template were, being shot at, death or serious injury of a close friend or relative, and experiencing losses of the type set out in that paragraph. 

113               The situations to which the Tribunal referred corresponded with the terms of the SoP for anxiety disorder.  The Tribunal found in express terms that Mr Kaluza did not raise those situations as hypotheses.  That finding was in conformity with the question which the Tribunal correctly asked of itself.

Question 5 - Severe stressor for alcohol abuse

114               The effect of Mr Colborne’s submission is that the Tribunal applied the wrong test for the definition of “severe stressor” in the SoP for alcohol abuse.  The Tribunal is therefore said to have asked the wrong question as is revealed in [92] of its reasons.

115               Mr Colborne submitted that this passage reveals the same error as appeared in the decision of a Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473.  There, Black CJ, Weinberg and Selway JJ pointed out at [122] to [130] that the definition does not require the person to actually see or personally experience the events referred to in the SoP, namely death of a person or persons.

116               As their Honours said in Woodward at [128], the material pointed unequivocally to Mr Wooodward being brought face to face with the reality of death on active service.  Thus, if the Tribunal had brought to its task a correct understanding of the definition it may have concluded that he was “confronted with an event that involved actual death”.

117               However, I do not consider that in the present case the Tribunal fell into the error identified in Woodward.  It identified the correct test and its conclusion was based upon the matters to which I have referred in dealing with question 4.

Conclusion

118                The appeal must be dismissed with costs.

Associate:

Dated:         15 November 2010