FEDERAL COURT OF AUSTRALIA

Onorato v Repatriation Commission [2011] FCA 1507

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3.    The respondent pay the applicant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Joseph Onorato died of ischaemic heart disease at the age of 90 on 2 August 2008. Mr Onorato was a member of the Australian Defence Forces during World War II and served this country as an anti-aircraft gunner. This means that, if his death were war-caused, his dependant widow, Carmel, would be entitled to a pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), s 13(1)(c).

2    Mrs Onorato applied for the pension but a delegate of the Repatriation Commission refused her claim. She then applied to the Veterans’ Review Board, for a review of that decision but the Board affirmed the delegate’s decision. At that point she sought a review in the Administrative Appeals Tribunal (“the tribunal”). That application was also unsuccessful and she now appeals to this Court.

3    Section 8(1) of the Act relevantly provides that a veteran’s death is taken to be war-caused if:

(a)    the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; [or]

(b)    the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

but not otherwise.

4    I interpolate that Mrs Onorato contends that s 8(1)(b) applied. “Eligible war service” is defined in s 7 of the Act to include “operational service”.

5    It is common ground that Mr Onorato had been engaged in “operational service” within the meaning of the Act (see ss 6 – 6F).

6    Section 120 of the Act prescribes the standard of proof for determining whether the death of a veteran or a veteran’s injury or disease is war-caused. Section 120 relevantly provides:

(1)    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.

…

(3)    In applying subsection (1) … 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:

    …

    (c)    that the death was war-caused …

    … 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 … death with the circumstances of the particular service rendered by the person.

(4)    Except in making a determination to which subsection (1) … applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act … decide the matter to its reasonable satisfaction.

[Emphasis added.]

7    Whether the tribunal can find a death to be war-caused is also affected by the terms of s 120A(3):

For the purposes of subsection 120(3), a hypothesis connecting … 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) …

that upholds the hypothesis.

8    A Statement of Principles is a statutory instrument made by the Repatriation Medical Authority under s 196B of the Act. As I explained in Knight v Repatriation Commission [2010] FCA 1134 at [15]:

To improve the consistency of approach to this question of causation, which is one where there is obvious scope for reasonable disagreement even among medical experts, s 196B authorises the Repatriation Medical Authority to create Statements of Principles (“SoP”) whose purpose is to lay down acceptable hypotheses relating particular diseases or injuries to war service. Where, as here, there is an SoP in force, s 120A(3) requires the decision maker to find a hypothesis reasonable only if it is “upheld” by the SoP for the relevant disease or injury.

9    SoPs are made in respect of particular kinds of injury, disease or death. In the present case it was agreed (and the tribunal found) that the kind of death was death from ischaemic heart disease.

The tribunal’s decision

10    Before the tribunal Mrs Onorato contended that her late husband suffered not only from ischaemic heart disease but also from hypertension and an anxiety disorder. Her case was based on the hypothesis that her late husband suffered an anxiety disorder resulting from his war service, and the anxiety disorder caused the hypertension which, in turn, caused the ischaemic heart disease that caused his death. She tendered medical evidence to the effect that he suffered from a “generalised anxiety disorder” or an “anxiety disorder not otherwise specified” according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

11    There was no dispute that Mr Onorato died from ischaemic heart disease or as to his hypertension, and the tribunal found he had had both diseases, but the tribunal rejected Mrs Onorato’s claim that her husband had also had an anxiety disorder, however described.

12    The tribunal did not refer to s 8, but to s 9. It stated that the issue of whether a condition is war-caused is determined pursuant to s 9, which it then cited as follows:

9 War-caused injuries or diseases

(1)    Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

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

(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;

…

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

…

13    The tribunal said that, before considering whether any condition Mr Onorato suffered was related to his war service, it had to decide whether he suffered a diagnosable anxiety disorder. It said that that decision was to be made by applying the standard of reasonable satisfaction pursuant to s 120(4) of the Act. Only then would it be required to consider any relevant SoP and apply the standard of proof in s 120(1) and (3). It summarised its decision in the following way:

In applying section 120(4) of the Act, and considering the medical evidence before us, we were not satisfied that Mr Onorato suffered from a diagnosable anxiety disorder. Accordingly we were not able to take the matter further, and the application failed.

The appeal

14    Appeals to the Court from the tribunal are confined to questions of law: Administrative Appeals Tribunal Act 1975 (Cth), s 44. Two questions of law are particularised in the notice of appeal:

(1)    Whether, for the purposes of s 120(3) of the Act, and either prior to or in the course of considering whether the material before a decision-maker raises a reasonable hypothesis connecting the death with the service, the decision-maker is entitled to make any factual finding as to the existence of a fact that has been claimed as connecting a veteran’s death with the circumstances of operational service; and

(2)    Whether s 9 of the Act is relevant to determining a claim for war-caused death.

15    In substance, there is really only one issue – whether the tribunal applied the wrong standard of proof (or asked itself the wrong question) when it decided that Mr Onorato had not suffered from an anxiety disorder.

Did the tribunal ask itself the wrong question?

16    The tribunal posed the issue for its consideration at [6] of its reasons as “whether Mr Onorato suffered an anxiety disorder, and if so, whether it was war-caused”.

17    After considering the medical and lay evidence before it, the tribunal concluded:

[51]    As we could not be satisfied to the requisite standard that Mr Onorato suffered generalised anxiety disorder or anxiety disorder not otherwise specified, we could not be satisfied that any anxiety Mr Onorato suffered was the cause of his hypertension or ischaemic heart disease. Accordingly, we were not satisfied pursuant to section 120(4) of the Act, that Mr Onorato suffered either generalised anxiety disorder or anxiety disorder not otherwise specified, (Benjamin v Repatriation Commission (2001) 70 ALD 622; Repatriation Commission v Cooke (1998) 90 FCR 307).

[52]    Accordingly we were unable to consider Mr Onorato in connection with the application of the SoPs (section 120A), and apply sections 120(1) and 120(3) of the Act. Mrs Onorato’s application must fail.

[Emphasis in original.]

18    The issue raised by the first question in the notice of appeal is whether, in determining whether Mr Onorato suffered from an anxiety disorder, the tribunal erred by applying the standard of proof in s 120(4) of the Act, rather than s 120(3). More particularly, it is whether the existence of the disorder should be determined according to the standard of “reasonable satisfaction” imposed on Mrs Onorato s 120(4), or its non-existence established by the Commission “beyond reasonable doubt” by the application of the test imposed by s 120(1) and qualified by s 120(3).

19    Mrs Onorato contends that the tribunal was not permitted as a matter of law to determine as a fact that her late husband did not suffer from an anxiety disorder. She submitted that, once the tribunal determined to its reasonable satisfaction in accordance with subs (4) the kind of death the veteran suffered (here, ischaemic heart disease), the subsection was exhausted. The tribunal was then required to consider the claimed connection between that disease and Mr Onorato’s service, and that task involved applying the test in s 120(3), which requires the process described in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 (“Deledio”).

20    The Commission submitted that this very argument had been rejected by the Full Court in three judgments: Repatriation Commission v Cooke (1998) 90 FCR 307 (“Cooke”), Repatriation Commission v Budworth (2001) 116 FCR 200 (“Budworth”) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (“Benjamin”) – two of which the tribunal mentioned in its reasons. In Cooke, where the question was whether the veteran suffered from an anxiety state, the Full Court said (at 310E):

We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a “determination” that the disease is war-caused … The subject-matter and purpose of the subsection are confined to the standard of proof of war-causation.

21    In Budworth, where the Commission argued unsuccessfully that Cooke was wrongly decided, the Court described the reasoning in Cooke as persuasive.

22    At first blush, these decisions appear relevantly indistinguishable. But first impressions can be misleading.

23    Each of these cases was concerned with a claim by a veteran, not a widow. That is a matter of importance that the tribunal overlooked.

24    The determination to which s 120(1) applies in this case is the determination whether the death of the veteran from ischaemic heart disease was war-caused. In Cooke it was whether an anxiety state was war-caused. Applying the reasoning in Cooke to the circumstances of the present case, the questions of whether the death occurred and whether the death resulted from ischaemic heart disease (that being the kind of death which triggers the operation of the SoP), were questions to be determined according to the standard of reasonable satisfaction in s 120(4). But where, as here, the hypothesis connecting the death from ischaemic heart disease raised questions about the existence of antecedent facts (one of which in this case is the presence of an anxiety disorder), those questions were not to be determined at this stage of the inquiry by the application of the reasonable satisfaction standard.

25    Ms Henderson, who appeared for the Commission, drew my attention to a decision of Ryan J in Repatriation Commission v Green [2008] FCA 1614 (“Green”) which appears to support the Commission’s position. In that case the respondent was the widow of a war veteran. She contended that her husband’s death was war-caused. The death certificate recorded that the cause of death was cardio-respiratory arrest secondary to an incised wound to the lateral aspect of the neck. The manner of death was recorded as suicide. The post-mortem certificate described an incised wound that completely cut the jugular vein and the carotid artery.

26    The case presented to the tribunal on the respondent’s behalf was that the veteran was suffering from throat cancer which caused intense depression, prolonged agonising pain, and a sense of despair that there was no prospect of recovery, and so he took his own life. The tribunal accepted that the veteran committed suicide by cutting his own throat but did not make any finding as to whether he had been suffering from cancer of the throat at the time of his death. Instead, the tribunal went on to refer to the steps set out in Deledio (described in [29] below) and to find that the material before it was adequate for it to find that there was a hypothesis connecting the veteran’s death to the circumstances of his operational service. In particular, it found that the material before it “suggests the possibility that [Mr Green] suffered from a malignant neoplasm of the larynx or some other severe illness”. It went on to find that it was not satisfied beyond reasonable doubt that there was no sufficient ground for determining that the death was war-caused.

27    The SoP for suicide provided the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting (amongst other things) death from suicide with the circumstances of a person’s relevant service. The factors include (h) “experiencing a severe psychosocial stressor … within the two years immediately before the suicide”. In Green, the hypothesis was that the veteran had suffered a severe illness or injury, which was a recognised severe social stressor. The tribunal referred to Cooke and concluded that it was bound to determine on the balance of probabilities whether the veteran suffered from such an illness. At [59] of his reasons Ryan J accepted the correctness of the tribunal’s statement of what it was required to do, though not the outcome. At [64] his Honour defined the task for the decision-maker in the following way:

The task for the decision-maker is to find whether, on the balance of probabilities, the veteran suffered from a condition specified in the SoP, in this case, “malignant neoplasm of the larynx” and whether at least one of the factors set out in cl. 6 of the SoP was related to the veteran’s war service.

See also [72].

28    But the issue in the present case was not raised in Green. And Ryan J’s attention does not appear to have been drawn to another Full Court decision which, in my respectful opinion, stands for the contrary proposition.

29    In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 (“Collins”) the Full Court dealt with a case concerning a claim by a widow whose husband had died from a myocardial infarction with previous myocardial infarction and a thirteen year pre-morbid history of hypertension. In that case an hypothesis was erected that was very similar to the hypothesis in the present case. His widow claimed that her husband’s death was war-caused within the meaning of s 8 of the Act because he had experienced a severe stressor during his war service. That experience led to the development of a post-traumatic stress disorder. The post-traumatic stress disorder was a cause of the hypertension. The hypertension led to the development of ischaemic heart disease. The veteran died from ischaemic heart disease.

30    The widow in Collins contended that the hypothesis was a reasonable one for the purposes of ss 120(3) and 120A(3). The tribunal determined that the veteran did not in fact have a post-traumatic stress disorder because, on its evaluation of the evidence, he did not satisfy two of the criteria for the disorder set out in the Statement of Principles Concerning Post-Traumatic Stress Disorder. Consequently, it found that there was no reasonable hypothesis connecting his death to his war service. The Full Court unanimously held that the tribunal fell into error of law because it exceeded the statutory task required of it under s 120(3) of the Act. That was because, in resolving competing medical opinions, it had engaged in a process of fact-finding at a point in its deliberations when it was not permitted to make such findings. That is precisely what the tribunal did in the present case. Lindgren J summarised the position as follows (at [5]):

In a case where, as here, there is a relevant SoP, the four-stage process identified by their Honours [in Deledio] may be seen to pose the following questions:

(1)     Does all the material before the Tribunal point to a hypothesis of war causation (the hypothesis raised)? If not, the application must fail.

(2)     If it does, what was the relevant SoP in force?

(3)     Is the hypothesis raised consistent with the “template” found in the SoP, that is to say, contain the minimum factors which, according to the SoP, must exist and be related to the person’s service? If the hypothesis raised does not contain those minimum factors, it does not fit within the template and is deemed not to be “reasonable”, and the claim will fail. If it does, the hypothesis raised cannot be said to be contrary to proved or known scientific facts or otherwise fanciful.

(4)    Is the Tribunal satisfied beyond reasonable doubt that the hypothesis raised is not established? If it is not so satisfied, the claim must succeed, whereas if it is so satisfied, the claim must fail. It is only at this fourth stage that the Tribunal is required to find facts from the material before it.

Cf. Allsop J at [48].

31    Here, the tribunal did not ask itself these questions and so fell into error.

32    In the present case, as the tribunal observed, there were three relevant SoPs. The relevant SoPs in this case are No. 89 of 2007, dealing with ischaemic heart disease, No. 35 of 2003 concerning hypertension, and No. 101 of 2007, which relates to anxiety disorders. Section 120A(3) enables an hypothesis to be upheld by more than one SoP: McKenna v Repatriation Commission (1999) 86 FCR 144 (“McKenna”) at [21].

33    The relevant provisions of SoP No. 89 of 2007 are as follows:

Basis for determining the factors

4.     The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under [the Act], or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).

Factors that must be related to service

5.     Subject to clause 7 [which does not apply to factor 6(a)], at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.     The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:

(a)    having hypertension before the clinical onset of ischaemic heart disease …

[Emphasis in original.]

34    To determine whether there was an available hypothesis in this case it was then necessary to go to the SoP on hypertension, which is in the same form, where the relevant minimum factor was identified as:

(n)    suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension …

35    “Clinically significant anxiety disorder” is defined in the SoP on hypertension. “Anxiety disorder” is defined in the SoP on anxiety disorder. Factor 6 of that SoP relevantly provides that:

6.     The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service is:

(a)    for generalised anxiety disorder or anxiety disorder not otherwise specified only

        …

(iii)    experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder;

        …

(v)    experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder …

[Emphasis in original.]

36    There was material before the tribunal that Mr Onorato had experienced a category 1B stressor and a category 2 stressor (both of which are defined in SoP No. 89 of 2007) in the relevant period.

37    The Commission also accepted that proof of any factor listed in an SoP was not to be determined to the reasonable satisfaction standard. The Commission conceded that that includes factor 6(a) in the SoP on ischaemic heart disease, namely, hypertension before the clinical onset of ischaemic heart disease. But its submission was that where, as here, the supposed cause of the hypertension was another disease, whether or not that disease existed was to be determined on the balance of probabilities. In my opinion the distinction is artificial, unjustifiable, and contrary to the decision in Collins.

38    The Commission submitted that Collins was distinguishable because there was no issue there that the relevant SoPs applied, whereas here the tribunal was considering an antecedent issue. But this begs the question. Here, the only antecedent questions to be established to the tribunal’s reasonable satisfaction according to s 120(4) were:

(a)    whether Mr Onorato was dead;

(b)    whether he died from ischaemic heart disease;

(c)    whether Mrs Onorato was dependent on him at the time of his death; and

(d)    whether he had engaged in operational service.

39    As Mrs Onorato argued, once those questions were resolved, the Deledio process began.

40    In Collins, as here, there was material before the tribunal that was capable of raising a reasonable hypothesis connecting the veteran’s death with his war service. That was evidence from a psychiatrist. There, as here, instead of forming an opinion as to whether the material did raise a reasonable hypothesis, the tribunal embarked on the task of weighing the evidence and deciding whether or not the veteran suffered from the particular anxiety disorder. As Emmett J put it in Collins (at [21]) that was not the task called for by the statutory provisions.

41    The Commission sought to derive some support from the judgment of the Full Court in McKenna. But McKenna was not a case involving the death of a veteran. It said nothing about the application of s 120(4). The Full Court was only concerned with the question of whether a Statement of Principles upheld a particular hypothesis. That was the question the tribunal should have, but did not, ask in this case.

42    In this case the tribunal failed to appreciate that the decisions in Cooke and Benjamin were concerned with the question of whether the condition for the operation of s 120(1) existed in cases involving veterans, not their dependants. In those cases the condition was a disease as defined in s 5D of the Act. In this case – a claim by a dependant of a deceased veteran – the condition for the operation of s 120(1) is the death of the veteran. Once the tribunal determined to its reasonable satisfaction in accordance with subs (4) the kind of death the veteran suffered (here, ischaemic heart disease), the subsection was exhausted.

43    In failing to ask itself the right question the tribunal fell into error. That was an error of law: Roncevich v Repatriation Commission (2005) 222 CLR 115 at [28].

44    In the circumstances it is not necessary to decide the second question raised in the appeal. In my view, however, the tribunal erred in law in this respect, too. Section 9 relates to claims by veterans, not their dependants. For this reason it is inapplicable to this case. The Commission did not suggest otherwise. The relevant section was s 8(1).

45    The Commission argued, however, that the tribunal merely referred to s 9; it did not apply it. In one sense that is correct. The tribunal was not considering whether a condition was war-caused. Why then refer to s 9? It seems to me that the reference to s 9 underscored the tribunal’s approach to Mrs Onorato’s application. By identifying it as the relevant section for determining whether a condition is war-caused, it then proceeded to apply s 120(4) to the determination of whether there was a diagnosable condition. That was only necessary if s 9 applied, because under s 9 the threshold question is whether the veteran had an injury or disease. Under s 8, however, the threshold questions are different. As I have observed, here, once the kind of death was determined, the standard of proof erected by s 120(4) was not applicable. It is likely that, by identifying the wrong section at the start, the tribunal travelled down the wrong path, applying authorities relating to a different question.

Conclusion

46    In the result the first question should be answered “yes” and the second “no”. The appeal should be allowed and the matter be remitted to the tribunal to be determined according to law. The Commission should pay Mrs Onorato’s costs.

Associate:

Dated:    23 December 2011