FEDERAL COURT OF AUSTRALIA

Forrester v Repatriation Commission [2013] FCA 898

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

Nature of the proceeding and summary of conclusions

1    Mrs Forrester is the widow of the late Mr Duncan Arthur Forrester, who was a member of the Australian Defence Force and served in Vietnam. On 21 October 2010, following her husband’s death, she applied for a pension under the Veterans’ Entitlements Act 1986 (Cth) (the Act). Her application was refused by the Commission on 20 December 2010 and she applied to the Administrative Appeals Tribunal for review of that decision. On 30 November 2012 the Tribunal affirmed the decision under review.

2    By an amended Notice of Appeal filed with leave at the hearing of this matter, Mrs Forrester now appeals to this Court, on four questions of law, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

3    Not all the questions in the amended Notice of Appeal raise questions of law in terms. However, a Notice of Appeal under s 44(1) should be read as a whole and in context to determine whether it fairly raises questions of law: Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at [14] and the authorities there referred to. Taking the amended Notice as a whole, in conjunction with the submissions made on behalf of the applicant, the three matters raised on her behalf, and which I set out at [39] of these reasons below, raise sufficiently questions of law. The appeal was argued by both parties before me on the basis of those three matters, and no submission was made by the respondent that the Court’s jurisdiction under s 44(1) had not been validly invoked.

4    I am not persuaded that any of the identified questions of law, nor the grounds specified in support of the orders the applicant seeks to have made, should be answered in favour of the applicant.

5    For the reasons I set out below, there will be orders dismissing the appeal.

relevant ASPECTS of the Legislative Scheme

6    Section 13 of the Act provides for the Commonwealth’s liability to pay pensions in accordance with the Act. Relevantly to the circumstances before the Court, that liability is dependent upon the condition that “the death of a veteran was war-caused”.

7    A person will be a “veteran” if the person has rendered “eligible service”: see s 5C(1), read with s 7. The term “eligible service” in s 7 is defined to include “operational service”, which in itself is defined in ss 6A–6F of the Act to cover service in a variety of circumstances. There was no debate in this case that Mr Forrester had rendered “operational service” during his time in Vietnam.

8    In respect of the death of a veteran, the term “war-caused” is defined in s 8. Section 8(1)(b), which is the aspect of the definition relevant to Mrs Forrester’s claim, provides that a death shall be taken to have been war-caused if:

the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

9    In a situation such as the claim by Mrs Forrester, the key statutory task for the Commission (and for the Tribunal on review) is to determine the answer to the causal question posed by s 8(1)(b), in the context of the obligation contained in s 13. In performing that task the Commission (and the Tribunal on review) must apply the complicated convolutions of the statutory standards and prescriptions on causation set out in s 120 and s 120A of the Act. It is only the establishment of any causal connection between injury, death or disease and the veteran’s war service that is subject to these detailed prescriptions. All other matters, including question of diagnosis, are dealt with by the reasonable satisfaction standard in s 120(4).

10    Given that the questions of law relied on by Mrs Forrester all centre on the Tribunal’s understanding and application of ss 120(1) and (3) of the Act, it is necessary to pay close attention to those provisions.

11    Section 120 neither imposes a presumption that a death is war-caused, nor an onus on a claimant to prove that it is: Repatriation Commission v Deledio (1998) 83 FCR 82 at 98. However the structure of s 120, in particular s 120(1), requires the Commission to determine a death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.

12    Section 120(3) then provides for one circumstance in which the Commission is obliged to find there is “no sufficient ground” for the purposes of s 120(1). The Commission is obliged to find there is no sufficient ground that a death was war-caused if:

after consideration of the whole of the material before it, [the Commission] 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.

13    Section 120(3) effectively prescribes a circumstance in which satisfaction beyond reasonable doubt for the purposes of s 120(1) is deemed to have been established (and, therefore, the requisite causal connection is deemed not to exist). In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ (at 413–414) described the limited but important effect of s 120(3) thus:

Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether “the material” raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. …

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

14    In East v Repatriation Commission (1987) 16 FCR 517 at 532, the Full Court noted that, as early as 1985, the Veterans’ Review Board in Re Stacey (unreported, Nos V83/0396, V84/0821 and V28/072, 26 June 1985) had identified what subsequently became the accepted construction of the threshold required by the phrase “does not raise a reasonable hypothesis connecting” in s 120(3). The Board observed that the relevant hypothesis must “find some support” in the material and that the material must “point to, and not merely leave open” the hypothesis relied upon: see the extract in East 16 FCR 517 at 532; see also Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615–616.

15    In Bushell, the High Court recognised the difficulties for the Commission in determining whether, on the basis of medical and scientific information and opinion, facts raised by a veteran supported a hypothesis connecting service with injury, disease or death.

16    After Bushell, in 1994 s 120A was introduced into the scheme. Its purpose was to provide the necessary basis for a finding that a hypothesis was “reasonable” in a medical or scientific sense. Relevantly, s 120A(3) provides:

(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);

…

that upholds the hypothesis.

17    Section 120A must be read with s 196B, which relevantly provides:

196B    Functions of Authority

…

Determination of Statement of Principles

(2)    If the 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.

…

(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

(c)    it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey;

          (i)    to a place for the purpose of performing duty; or

          (ii)    away from a place of duty upon having ceased to perform duty; or

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

(e)    in the case of a factor causing, or contributing to, an injury — it resulted from an accident that would not have occurred:

          (i)    but for the rendering of that service by the person; or

          (ii)    but for changes in the person’s environment consequent upon his or her having rendered that service; or

(f)    in the case of a factor causing, or contributing to, a disease — it would not have occurred:

          (i)    but for the rendering of that service by the person; or

          (ii)    but for changes in the person’s environment consequent upon his or her having rendered that service; or

(g)    in the case of a factor causing, or contributing to, the death of a person — it was due to an accident that would not have occurred, or to a disease that would not have been contracted:

       (i)    but for the rendering of that service by the person; or

       (ii)    but for changes in the person’s environment consequent upon his or her having rendered that service.

18    In a comprehensive summary subsequently endorsed by the Full Court, Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 263–271 explained the intent of the 1994 amendments introducing s 120A. His Honour rejected a submission that in substance there was a change to the beneficial intent of the standard of proof provisions, and characterised the effect of s 120A in a more limited way. His Honour concluded (at 275):

it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent — so that the SoP can “uphold” the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.

Therefore when s 196B(2) says a factor “must … exist” and “must be related to service”, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

     (i)    contrary to proved or known scientific facts,

     (ii)    obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

     (iii)    (since 1994) inconsistent with (not upheld by) an applicable SoP.

19    In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262–263 per Heerey J; East 16 FCR 517 at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established. The scheme imposes particular processes and standards of proof to establish that requisite connection, but the use of the double negative in s 120(3), combined with the imposition of the highest standard of satisfaction known to the law, makes plain that the process of establishing that causal connection is intended to operate beneficially towards applicants’ claims.

applicable principles IN RESPECT OF SECTIONS 120 AND 120A

Use of Two Statements of Principles

20    It was accepted by both parties before me that s 120(3) can be construed (relying on the presumption contained in s 23 of the Acts Interpretation Act 1901 (Cth)) so as to allow two Statements of Principles (SoPs) to operate sequentially to uphold a hypothesis put forward by a veteran: see McKenna v Repatriation Commission (1999) 86 FCR 144 at 151–152 per Branson, Sundberg and Kenny JJ.

21    In the present case, the application of that approach means the Commission accepted Mrs Forrester could rely on the SoP concerning Aortic Aneurism (Instrument No 66 of 1998), in combination with the SoP concerning Hypertension (Instrument No 35 of 2003, as amended). Instrument No 66 identifies suffering from hypertension before the clinical onset of aortic aneurysm as a factor that must at a minimum exist and be related to the veteran’s service. Instrument No 35 (as amended) relevantly identifies the consumption of an average of at least 300 g of alcohol per week at the time of the clinical onset of hypertension as a factor that must at a minimum exist and be related to the veteran’s service.

22    The reliance on a second SoP meant, in substance, that in this case the statutory task in s 120(3), read with s 120A, was to be performed by examining whether the material before the Tribunal “pointed to” or “supported” the consumption of an average of 300g of alcohol per week (with the other consumption limits set out in the SoP) by Mr Forrester at the onset of his hypertension, and also pointed to or supported the proposition that such consumption arose out of or was attributable to Mr Forrester’s service in Vietnam (in particular, in whole or in part, the five events set out at [61] of the Tribunal’s reasons). In that sense the hypothesis did not, as I understand the concession by the Commission, have to be measured directly against the SoP for aortic aneurism only.

Identifying a Hypothesis

23    To engage the process in ss 120(1) and 120A, a particular hypothesis must be identified. The language of “hypothesis” is significant: it is a textual indication of at least two matters. First, the scheme’s recognition of the difficulties associated with establishing an injury, disease or death as war-caused, sometimes long after the relevant service; second, the beneficial threshold set by ss 120 and 120A. A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: Repatriation Commission v Stares (1996) 66 FCR 594 at 601 per Black CJ, Ryan and Einfeld JJ.

24    In the present case, the “ultimate fact” is Mr Forrester’s death from an aortic aneurysm. The supposition or conjectural explanation for that death is (reducing the hypothesis as set out at [61] of the Tribunal’s reasons to its essential components) that Mr Forrester commenced drinking heavily during his operational service in Vietnam partly or wholly as a result of five identified “stressors” he encountered during his service, each of which involved tasks he was said to have been charged with or events in which he was said to have been involved while in Vietnam. This heavy drinking is said to have continued on his return from Vietnam and to have caused him to develop hypertension, which in turn caused the aortic aneurysm.

The Deledio Steps

25    A Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97–98 set out the manner in which s 120(1), read together with the provisions that qualify it, is to be applied. The Court identified four steps:

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

     2.    If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a 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 a 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.

26    In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [31], Allsop J pointed out that the second sentence in the second paragraph is not correct. Otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.

27    It is especially important to understand the difference between the first and fourth steps in Deledio, although the line between them is far from bright: see Collins 163 FCR 35 at [49] per Allsop J.

28    At the first Deledio step, the authorities are clear that the Tribunal is not to engage in “fact finding”: Bull v Repatriation Commission (2001) 66 ALD 271 [2001] FCA 1832; Repatriation Commission v Deledio (1998) 83 FCR 82. The fourth Deledio step is the point at which there needs to be fact finding by the decision-maker, and will occur only once the Tribunal is satisfied a reasonable hypothesis has been raised. Recalling the beneficial nature of the process established by s 120, even that task remains a confined exercise. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ described the fact-finding exercise in the following terms:

The claim will succeed unless (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

29    Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as “pointing to” or “supporting” the hypothesis advanced, involves some level of factual assessment.

30    Whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption: Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR 564 at 569, the Full Court stated (66 FCR 594 at 601):

By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.

31    Importantly for the resolution of the issues in this case, the use of the verb “raise” in s 120(3), and the subsequent approach of asking whether material “points to” or “supports” a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey (1997) 79 FCR 364 at 372, 375.

32    The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53]. The manner in which these two aspects of reasonableness operate assists in resolving the third argument raised by the applicant.

THE TRIBUNAL’S DECISION

33    The Tribunal’s reasons for decision are compact. It rejected Mrs Forrester’s claim at the first step of the Deledio process. It set out the hypothesis advanced by Mrs Forrester at [61] of its reasons:

It is put on behalf of Mrs Forrester that the material before us points to the following hypothesis:

a.    Forrester commenced drinking heavily during his operational service in Vietnam, partly or wholly as a result of various stressors he encountered during his service in Vietnam, including:

i.    discord between him and his superior, Col Hooten (Hooten);

ii.    being ordered to inspect brothels by his superior, which he refused to do;

iii.    having the task of sending home the effects of the deceased, and writing letters to their parents;

iv.    being involved in a Court Martial for a soldier he felt some sympathy for; and

v.    having been shot at by the soldier the subject of the court martial.

b.    Forrester continued drinking heavily, approximately 6 cans of heavy beer almost every night, and no less than 6 cans of heavy beer during the weekend, when he returned from his ‘operational service’.

c.    This drinking continued up to the onset of hypertension, which occurred no earlier than 1973 and no later than 1993.

d.    Forrester’s hypertension caused his aortic aneurysm.

e.    Forrester died from aortic aneurysm.

34    At [64] it expressed its conclusion on the first step:

Having considered all of the material before us we determine that it does not point to a hypothesis connecting Mr Forrester’s death from aortic aneurysm to his operational service.

35    At [65] and [66] the Tribunal focused on the argument inherent in the hypothesis as expressed at [61]: namely, that there were particular events during Mr Forrester’s service in Vietnam which were stressors for him and which led to him starting to drink much more heavily. It found at [66] that:

The material before us does not “point to” or “support” the hypothesis that Mr Forrester increased his consumption of alcohol on an ongoing basis as a result of all or any of the events said to have caused him particular stress. The evidence of Mrs Forrester, Ms Swan and Mr Swan indicates that there was friction between Mr Forrester and his superior officer and that he found some of the tasks he was required to undertake as part of his duties to be distressing. This material also indicates that he was angry as a result of events which occurred during his operational service, particularly the incident involving the Court Martial. The material does not point to any connection between the soldier firing his weapon in the vicinity of Mr Forrester and Mr Forrester’s consumption of alcohol. There is no material which points to any change in Mr Forrester’s drinking habits as a result of all or any of these events.

36    Finally, at [69], the Tribunal reiterated its conclusion, in slightly different language:

The hypothesis put forward links the particular events in Vietnam with a substantial increase in Mr Forrester’s alcohol consumption and subsequent hypertension. This hypothesis must be considered in the light of all the material before us. On this basis the linking of the hypertension with the particular events of the operational service is too remote and too tenuous.

37    It should be noted that, in this final passage in particular, the Tribunal is careful to base its conclusion on the “particular events” in Vietnam identified by the hypothesis set out in [61] of the reasons.

38    At [72] of its reasons, the Tribunal dealt with what it would have done in respect of the subsequent tasks under ss 120(1), 120(3) and 120A, had it reached a different conclusion on the first Deledio step. Paragraph [72] is reproduced at [66] below.

THE APPLICANT’S ARGUMENTS

39    The applicant sought and was granted leave to rely on an amended Notice of Appeal at the hearing of the appeal. The amended Notice raised four questions of law and three grounds, each seeking to impugn the Tribunal’s rejection of the hypothesis at the first Deledio stage. However, as the submissions were developed in oral argument by counsel for the applicant, Ms Ryan, there were ultimately three points made. It was submitted:

a.    In the circumstances, there was only one conclusion available to the Tribunal at the first Deledio step: namely that the whole of the material did point to, or support, the hypothesis relied upon. The applicant submitted it was “not open” to the Tribunal to find otherwise. The applicant submitted this argument involved questions of law 3 and 4 and ground 1 of the amended Notice of Appeal.

b.    It was also not open to the Tribunal to find, as it did at [69] of the reasons, that the linking of the hypertension with the particular events in Vietnam was “too remote and too tenuous”. This argument was said to involve question of law 2 and ground 3 of the amended Notice of Appeal.

c.    The Tribunal’s finding at [72] of its reasons was inconsistent with its conclusion that the material did not point to or support the hypothesis relied on by Mrs Forrester. This argument was said to involve question of law 1 and ground 1 of the amended Notice of Appeal.

40    Ms Dowsett, who appeared for the respondent, contended that the conclusions reached by the Tribunal were open to it on the material, and were questions of fact. As to the third argument, the respondent submitted this involved a misunderstanding of the purpose and effect of [72] of the Tribunal’s reasons.

The First Argument: Whether the Material before the Tribunal Pointed Only to One Conclusion.

41    This argument centred on what the applicant submitted was the inference the Tribunal should have drawn from the whole of the material. It was submitted that the first Deledio step, in requiring the Tribunal to determine whether the whole of the material “pointed to” or “supported” the hypothesis advanced, was in effect asking the Tribunal to draw inferences from the material before it.

42    The applicant submitted “an inference was available” that Mr Forrester’s increased consumption of alcohol had been caused by the circumstances of his service because the material before the Tribunal revealed:

(a)    he was a social drinker before operational service;

(b)    upon his return from operational service he was drinking every day and was a heavy drinker of alcohol;

(c)    the veteran’s drinking habits upon his return from Vietnam became a cause of friction between him and the applicant, whereas his drinking before Vietnam had not been an issue;

(d)    the veteran told the applicant that “the Americans had a problem with drugs but we Australians had a problem with drinking”;

(e)    he was exposed to various stressors during operational service.

43    If such an inference was “available”, the applicant submitted, that was sufficient for the material to “point to” or “support” the hypothesis advanced.

44    The respondent submitted that this argument was answered by the proposition from Bey referred to at [31] above in these reasons. The respondent submitted the argument impermissibly required the Tribunal to find the first step of Deledio satisfied when all the material did was leave open the possibility advanced by the hypothesis rather than “point to” or “support” it. The Court was referred to evidence and material before the Tribunal which provided, the respondent submitted, an alternative explanation for why Mr Forrester began drinking more heavily, and indeed evidence and material which suggested he did not drink as heavily as the hypothesis asserted.

45    The resolution of this ground is not assisted by the brevity of the Tribunal’s reasons. The respondent’s argument confronts the problem that much of the material to which it referred the Court does not appear in the Tribunal’s reasons. The Court is entitled to take the reasons of an administrative tribunal as setting out the findings on questions of fact which the Tribunal itself considered were material to its decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34] and [68].

46    Indeed the Tribunal’s reasons do not suggest it reached a conclusion on any alternative explanation for Mr Forrester’s drinking, nor do they suggest the Tribunal positively rejected the element of the hypothesis about the level of Mr Forrester’s drinking. While it is true, as the respondent submitted, that at [64] and [69] of its reasons the Tribunal does refer to the “whole” or “all” of the material before it, there is otherwise nothing in its reasons to suggest it actively considered and adopted any alternative explanation. There is nothing in the reasons to suggest the Tribunal did not accept Mr Forrester was drinking at the level set out in the SoP, although there may indeed have been evidence before the Tribunal which could have enabled it to reach a conclusion that he was not. To reach that conclusion as a matter of fact at the first Deledio step may well have been erroneous in any event: see Deledio 83 FCR 82 at 97; Bushell 175 CLR 408 at 413–414.

47    What can be seen from its brief reasons is that the Tribunal correctly used and applied the language of the first Deledio step to the material before it and at [66] briefly discussed the particular events relied on for the hypothesis. It concluded at [69] there was no link between these events and a substantial increase in Mr Forrester’s alcohol consumption and subsequent hypertension. Read fairly, these conclusions are based on the recitation of what the Tribunal itself identified as the most pertinent material before it, which it set out at [4] to [43] of its reasons. As the observations in Yusuf make clear, that is what the obligation to give reasons entails. The conclusion at [69] was one of fact. Although its conclusion could have been explained in more detail, I find the conclusion was open to the Tribunal on the material before it, and to which it referred.

48    I reject the applicant’s submission in her first argument that the Tribunal was “bound to find” that the material supported the hypothesis advanced. Such a proposition relies on a much more difficult question of law to that involved in her second argument (see [51] below). To succeed on her first argument, the applicant must confront the limits inherent in any attack on fact finding, as they are described in Vetter v Lake Macquarie City Council (2001) 202 CLR 439. Where a tribunal is applying a statutory expression (here, s 120(3), as construed in Deledio) to the evidence or material before it, there will be no error of law in the conclusion or determination reached if it is reasonably possible to arrive at different conclusions or determinations: see Vetter 202 CLR 439 at 451 per Gleeson CJ, Gummow and Callinan JJ and the authorities there referred to. An error of law (and therefore a question of law about the orders and decision made by the Tribunal) will arise if on the facts only one conclusion was open. This in turn requires characterisations at the level of perversity, irrationality or illogicality to be applied to the Tribunal’s reasoning and factual conclusion.

49    Whether the whole of the material before the Tribunal “pointed to” or “supported” the hypothesis contended for — especially the asserted link between the five particular events and an increase in Mr Forrester’s drinking — was a factual question on which it was reasonably possible to reach different conclusions, given the nature of the material before the Tribunal. Subject to any misunderstanding of the applicable legal principles (which in my view is what is raised, in substance, in the applicant’s second argument), the conclusion reached by the Tribunal was one of several reasonably open to it on the material before it.

50    The adequacy of the Tribunal’s reasons (and its compliance with the obligations in s 43(2B) of the AAT Act) was not put in issue. Brief though they are, what emerges from the Tribunal’s reasons is that the particularity of the events relied upon in the hypothesis as “stressors” was what led the Tribunal to the conclusion that the material before it did not point to or support a hypothesis that connected those events (in whole or in part) during Mr Forrester’s operational service with any increase in his drinking.

The Second Argument: Whether It was Open to the Tribunal to Find the Link between the Events and Operational Service was “Too Remote and Too Tenuous”

51    This argument relied heavily on the Full Court’s decision in Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832. It was submitted that, by using the phrase “too remote and too tenuous”, the Tribunal misdirected itself because that characterisation, according to Bull, was reserved for hypotheses that were fanciful or irrational. The hypothesis at [61] of the Tribunal’s reasons, it was submitted, could not be characterised in that way.

52    The applicant placed some emphasis on the similarity between the applicant’s case and the factual circumstances in Bull. She relied in particular on the Full Court’s reasons in Bull 66 ALD 271; [2001] FCA 1832 at [40] where, having set out what the material disclosed about the veteran’s drinking habits in that case, Emmett and Allsop JJ stated:

the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to … above was by no means fanciful or impossible or incredible or untenable. He drank lightly before the war, experienced stress in the war, spoke in guarded and repressed terms of the war and drank more heavily after the war. It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol.

53    In effect, the applicant submitted that, given the factual similarities with Mrs Forrester’s claim about her husband’s drinking, this passage established that the hypothesis put forward on behalf of Mrs Forrester was not capable of being characterised as “too remote” or “tenuous”.

54    The respondent pointed out that the paragraphs of the Court’s reasons in Bull that followed (66 ALD 271; [2001] FCA 1832 at [41]–[46]), read with what the Court earlier set out of the Tribunal’s reasons in that case (at [27]), reveals that the Full Court accepted these were very much factual questions for the Tribunal and that they did not give rise to a question of law.

55    That submission could have force but, once again, the brevity of the Tribunal’s reasons in Mrs Forrester’s case undermines the strength of the respondent’s argument. Unlike the Tribunal’s reasons in Bull, the Tribunal in Mrs Forrester’s claim did not articulate other explanations for an increase in the veteran’s drinking. If it had done so, that would have been the end of this ground. The absence of explanation requires further inquiry into why the Tribunal characterised the link as too remote and too tenuous.

56    If it is apparent from a tribunal’s reasons that in applying a provision or aspect of a statutory scheme (here, s 120(3) as construed in Deledio) the tribunal has misunderstood the question posed by the provision, then this error is jurisdictional: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 574. Whatever the differences might be between the constitutional review jurisdiction and a statutory jurisdiction to appeal on questions of law (as to which see McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [58]), an error of this nature will invalidate a decision in either setting. Although not as precisely expressed as it may be, I accept that this is the intent of question of law 2 in the amended Notice of Appeal, as developed in argument on behalf of the applicant. The applicant submitted the Tribunal misunderstood the operation of s 120(3) because it rejected a hypothesis that was rational, using the phrase “too remote and too tenuous” in a way not justified by s 120(3), properly construed.

57    Despite the absence of a detailed explanation for the finding at [69], I find that, when read in the context of the whole of its reasons, paragraph [69] does not disclose a misunderstanding of s 120(3). An examination of the evidence and material relied on by the Tribunal and set out at [4] to [43] of its reasons reveals contradictory material about Mr Forrester’s drinking habits, about what caused him stress before, during and after the war. The evidence and material there referred to also reveals Mr Forrester’s history of anxiety, problems with his weight, and his anger about some of the positions and tasks he was assigned while he was in the army.

58    For example, the Tribunal records:

a.    At [38], that a consultant psychiatrist Mr Forrester saw in 1996 reported that alcohol did not present as a clinical problem;

b.    At [36], that in October 1973 an army medical history sheet reports Mr Forrester as consuming 12 cans of beer per week;

c.    At [10], Mrs Forrester’s evidence was that on his return from Vietnam she regarded her husband as a heavy drinker when that had not been the case before he went to Vietnam. Her evidence was that Mr Forrester was drinking six cans (375ml) during the week and another six over the weekend;

d.    At [41], Mr Forrester’s own evidence to the Board was that soon after his discharge he was drinking heavily, then abstained for 12 months, then returned to social drinking;

e.    At [9], Mrs Forrester’s evidence that prior to Vietnam Mr Forrester suffered a lot of anxiety;

f.    At [18], Mr Forrester’s son-in-law Mr Swan’s evidence that Mr Forrester had told him he was greatly distressed by having to pack away the personal effects of dead soldiers and having to write to their families;

g.    At [34], that his job performance records from the army showed variable levels of performance, some levels of anxiety and dissatisfaction, and at [35] that his medical reports in 1967 concluded Mr Forrester showed a very low tolerance for stress; and

h.    At [40], that a consultant psychiatrist who examined Mr Forrester concluded in 1997 that Mr Forrester had a long history of anxiety disorder.

59    This list is not exhaustive. What it reveals is the Tribunal’s identification of some evidence that might satisfy s 120(3) as explained in Deledio, and some that might not, as well as evidence that could positively suggest the material did not support the asserted hypothesis.

60    The terms “too tenuous” or “remote” are orthodox terms to use in this context: see East 16 FCR 517 at 532; Bushell 175 CLR 408 at 414; Byrnes 177 CLR 564 at 570. In my opinion, these terms are not synonymous with irrationality, but rather suggest a different problem with a causal link between war service and the veteran’s death. The notion of “remoteness” is a key concept in causation analysis: see Cattanach v Melchior (2003) 215 CLR 1 at [179] per Kirby J.

61    Further, even if those descriptions could not be applied to the hypothesis put forward by Mrs Forrester, as the Full Court pointed out in Bull 66 ALD 271; [2001] FCA 1832 at [18], it does not necessarily follow that the asserted hypothesis is a reasonable one:

It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis …

62    There is nothing in the Full Court’s decision in Bull that assists the applicant’s argument. The Full Court (at [22], citing Bey 79 FCR 364 at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904) made it clear a factual exercise was involved:

The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact …

63    At [23] the Full Court in Bull also referred to a large number of authorities dealing with the proposition to which I have referred less fulsomely at [48] above. Again, minds may reasonably differ on whether a hypothesis is too remote or tenuous.

64    In Bull the Full Court concluded (66 ALD 271;[2001] FCA 1832 at [46]) that Gyles J had been correct to determine that the Tribunal was permitted to reach the view that the material before it did not point to a hypothesis connecting war service and service drinking, and so war service and death. Any error, the Full Court held, was an error of fact. This is despite what the Full Court had said at [40], the passage relied on by the applicant.

65    It is important to recall that the hypothesis in Mr Forrester’s case sought to link, in whole or in part, five particular events in Vietnam with the change in Mr Forrester’s drinking habits. That is why [40] of Bull, even if it could be taken as some kind of general endorsement for the purposes of s 120(3) of hypotheses of the kind with which it deals (and I do not consider it could be so taken), does not assist the resolution of the question of law in the present case. In the present case, what the Tribunal was saying at [69] was too remote or tenuous was, in its own words, the link between “the particular events of operational service” relied on by the applicant, and Mr Forrester’s alcohol consumption and hypertension. That conclusion was open to it and no misunderstanding of s 120(3) is disclosed by that conclusion.

Third Argument: Whether [72] of the Tribunal’s Reasons is Inconsistent with Its Conclusion on s 120(3) at [69]–[70]

66    At [72] of its reasons, the Tribunal stated:

Had it been necessary we would have found that Statement of Principles No 9 of 2012 (aortic aneurysm) and Statement of Principles No 35 of 2003 as amended by 3/2004 and 11/2008 are in force and are relevant. We would have determined that the hypothesis put forward is consistent with the templates in these Statements. We would not have been satisfied beyond a reasonable doubt that Mr Forrester’s death was not war-caused.

67    The applicant contended, and the respondent conceded, that the penultimate sentence at [72] was the Tribunal’s reasoning at step 3 of the Deledio test: namely, that a decision-maker will find a hypothesis to be reasonable if it “fits, that is to say, is consistent with the ‘template’ to be found in the SoP”: Deledio 83 FCR 82 at 97.

68    The applicant contended, and the respondent conceded, that the last sentence at [72] was the Tribunal’s reasoning at step 4 of the Deledio test: namely, the fact-finding stage, where the decision-maker determines if it is satisfied beyond reasonable doubt that the death was not war-caused: Deledio 83 FCR 82 at 97–98; Byrnes 177 CLR 564 at 571.

69    The applicant submitted that a hypothesis cannot be found to be consistent with the template of a SoP if a tribunal has already found that the material before it does not “point to” or “support” the hypothesis. The finding at [72] (especially the last two sentences) was submitted to be so irreconcilable with what appears at [69] of the Tribunal’s reasons (and, I understand, [64]), the Court can safely infer that in some way the Tribunal has misdirected itself so as to bring about a failure of jurisdiction. The applicant relied on House v The King (1936) 55 CLR 499 at 504–505 per Dixon, Evatt and McTiernan JJ.

70    At first reading, an inconsistency does seem apparent. The Tribunal appears to be saying at [72] that it would have found first that the SoP upheld the hypothesis and second, that, insofar as the s 120(1) exercise was concerned, it would have been obliged to find Mr Forrester’s death was war-caused. Yet on the least demanding test — whether the whole of the material pointed to or supported the hypothesis that Mr Forrester’s death was connected to his increased consumption of alcohol and hypertension because of what he experienced during his service in Vietnam — it found adversely to Mr Forrester.

71    As the applicant submits, cl 4 of the Hypertension SoP (No 35 of 2003), read with the definition of “related to service” in s 196B(14)(b), relevantly required that the factor of consuming at least 300 g of alcohol per week for a continuous period of six months before the clinical onset of hypertension must arise out of or be connected to the veteran’s operational service. The applicant then submitted:

The hypothesis cannot be consistent with the template if the material before the Tribunal did not point to a connection between the veteran’s death and his operational service.

72    To “fit” a SoP, the hypothesis must “fit” the causal aspect of the SoP and in that sense identify a relationship between the factor or factors relied on in the SoP and the veteran’s war service. The hypothesis will then be reasonable (in a medical or scientific sense), because it is consistent with what the relevant medical experts have determined is a relationship between a disease, injury or death, and factors causative of that disease, injury or death and war service.

73     However this step in Deledio simply involves comparison between the hypothesis as articulated and the relevant SoP: after the introduction of s 120A, this aspect of determining reasonableness of the hypothesis largely centres on a matching exercise between the asserted hypothesis and the SoP, without a view being formed of particular facts.

74    In contrast, although it may not amount to fact finding, the first step in Deledio has a factual element particular to the material before the decision-maker about the veteran. It is, as I have pointed out at [32] above, a separate but integral aspect of determining the reasonableness of the asserted hypothesis. It involves a different comparison to the third step, and centres much more on the specific factual material relied on by the veteran. The different exercises involved mean, in my opinion, that a decision-maker could reach a conclusion adverse to a veteran on the first step, and — assuming against itself and moving to the following steps — a conclusion favourable to the veteran at the third step. That is because they are distinct aspects of reasonableness.

75    An asserted inconsistency between a Tribunal’s conclusion on the first Deledio step and a conclusion on the fourth Deledio step may indeed be problematic. That is because both involve an assessment of factual material — the former to a lesser degree than the latter. This would focus more attention on the last sentence at [72] of the Tribunal’s reasons, rather than on the penultimate one. However, the applicant did not focus on this sentence, although in answer to a question from me, the applicant did submit that the last sentence supported this argument.

76    Read in isolation, the last sentence in [72] suggests the Tribunal would have engaged in the fact-finding exercise required by the fourth step in Deledio (and by s 120(1)) to reach a factual conclusion favourable to Mr Forrester. Yet on the first step —also factual, but involving no fact finding and a much lower threshold — it found against Mr Forrester.

77    However the last sentence in [72] cannot, and should not, be read in isolation. It appears in the reasons after the Tribunal has spent most of its time evaluating the material for the purposes of the first step in Deledio. That was the Tribunal’s focus and the subject matter of its decision to affirm the decision under review. As it said at [71], having reached that conclusion it was unnecessary for the Tribunal to consider the further issues.

78    The Tribunal then referred to a concession made by the Commission. After oral argument in this matter, and on my request, the parties filed a joint note concerning the substance of that concession before the Tribunal. In that note, the parties agreed on the following summary of the concession made on behalf of the respondent:

The Respondent’s then advocate, Mr Rudge, conceded that in this case should the Tribunal find that the evidence as a whole pointed to a reasonable hypothesis, then the Respondent would not submit that it was beyond all reasonable doubt that there was no sufficient ground for the Tribunal to make a determination that the claimed condition was a war-caused condition.

79    Having determined that Mrs Forrester’s application failed because the material before the Tribunal did not point to or support the hypothesis advanced, in its reasons at [71] and [72] the Tribunal was acting out of an abundance of caution and indicating there would have been no other obstacles to the claim being accepted. The brevity with which this part of its reasons is expressed has given rise to the question over what it meant.

80    Read fairly and in context, this last sentence is no more than a recognition by the Tribunal of the effect of the reverse standard of proof in s 120(1), and the very high level of satisfaction required to reject a veteran’s claim at that stage. The respondent submitted this is why the concession was forthcoming from the Commission: it acknowledged that at the s 120(1) stage (or, to put it another way, the fourth Deledio step), assuming all other criteria had been met, the standard of satisfaction required to find positively that Mr Forrester’s death was not war-caused would not be met. However, in assessing this part of the Tribunal’s reasons it is important to recall that the Tribunal is considering what it might have found, had its conclusion on the first Deledio step been different. Contrary to the applicant’s characterisation, it is not actually engaging in fact finding in these paragraphs.

Conclusion

81    The Tribunal’s failure to expose its reasoning on critical issues at anything but a minimalistic level has not assisted the resolution of this appeal. However I am satisfied that none of the questions of law in the appeal should be answered in favour of the applicant and the appeal should be dismissed.

82    The respondent has sought an order for costs if the appeal is dismissed. In my opinion, there should be no order as to the costs of the appeal. I have emphasised that the Tribunal’s reasons barely expose how it reached the conclusions it did. It is understandable that Mrs Forrester and those advising her might consider the Tribunal’s reasoning disclosed legal error because of the way the reasons were expressed, and because of their brevity. The Court’s discretion on the question of costs is broad and ample. In my opinion, the Tribunal’s failure to explain its reasons in detail so as to give an impression of error where there was none should not result in a costs consequence for the applicant: see Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 73–74 per Woodward J dissenting; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 439 in respect of different, but in my opinion comparable, circumstances.

Associate:

Dated:    6 September 2013