FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2014] FCA 608

THE COURT ORDERS THAT:

1.    Leave is granted for the applicant to rely on the amended notice of appeal, filed in Court on 19 March 2014.

2.    The appeal is dismissed.

3.    The cross-appeal is dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        The applicant, Mr Summers, was a member of the Australian Army, and commenced service in Vietnam on 23 June 1968. While in Vietnam the applicant was notified of the death of his father. He left Vietnam on 12 October 1968 and returned to Australia to attend his father’s funeral. During this visit back to Australia he suffered some injuries which meant he did not return to Vietnam, but served out the rest of his time in the Army working at Victoria Barracks in Melbourne. His military service concluded on 11 July 1969.

2        Having had some claims for a range of war-caused injuries accepted, he made a claim that his conditions of post-traumatic stress disorder (PTSD) and alcohol dependence were war-caused and sought an increased rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (the Act). This claim has been dealt with by the Administrative Appeals Tribunal, the Federal Court at first instance and on appeal and again by the Tribunal. It returns to this Court by an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for the second time.

3        For the reasons I set out below, there will be orders dismissing both the appeal and the Repatriation Commission’s cross-appeal.

PROCEDURAL HISTORY

4        The Commission previously accepted claims by the applicant under the Act for a range of war-caused conditions including bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis, for which he continues to receive a disability pension at 100% of the general rate. On 10 December 2007, the applicant lodged a claim under the Act for PTSD and alcohol dependence, and sought a special rate of pension under s 24 of the Act. On 3 July 2008, the respondent rejected this claim. The applicant sought review of this decision with the Veteran’s Review Board (VRB), who refused his application on 21 April 2009.

5        On 12 June 2009, the applicant lodged an appeal with the Tribunal for review of this VRB decision and an earlier decision of the VRB to refuse to grant an increased rate of pension. On 20 October 2010, the Tribunal affirmed the decisions of the Repatriation Commission and the VRB: see Summers and Repatriation Commission [2010] AATA 803. The applicant appealed to this Court under s 44 of the AAT Act on 16 November 2010. The appeal was dismissed on 8 November 2011: see Summers v Repatriation Commission [2011] FCA 1451. On 29 November 2011, the applicant appealed to the Full Court of this Court who, on 31 July 2012, set aside the orders of the primary judge and remitted the matter back to the Tribunal: see Summers v Repatriation Commission (2012) 130 ALD 32; [2012] FCAFC 104. On 27 June 2013, the Tribunal decided that the PTSD suffered by Mr Summers was war-caused within the meaning of s 9 of the Act. The Tribunal otherwise affirmed the decisions under review. Critically for the applicant, the effect of the Tribunal’s decision was that he was not entitled to either an intermediate or a special rate of pension: see Summers and Repatriation Commission [2013] AATA 439.

6        By an amended notice of appeal filed with leave at the hearing of this matter, the applicant appeals again to this Court, on 10 questions of law, pursuant to s 44(1) of the AAT Act. By a notice of cross-appeal filed on 27 August 2013, the respondent appeals the decision of the Tribunal that the applicant’s PTSD was war-caused.

RELEVANT ASPECTS OF THE LEGISLATIVE SCHEME

7        Section 13(1) of the Act provides for the Commonwealth’s liability to pay pensions in accordance with the Act in circumstances where a veteran is “incapacitated from a war-caused injury or a war-caused disease”.

8        Relevantly for this proceeding, s 5C(1) provides that a person meets the definition of “veteran” for the purposes of the Act if the person has rendered “eligible war service” as defined in s 7. The term “eligible war service” in s 7 is defined to include “operational service”, which in itself is defined in ss 6A-6F of the Act. It was not in dispute in this proceeding that the applicant had rendered “operational service”, such as to bring him within the definition of “veteran” in s 5C(1).

9        Section 9 provides that an injury or disease suffered by a veteran shall be taken to be “war-caused” if:

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;

…

10        That causal question must be answered in accordance with the prescriptions set out in s 120 of the Act, as affected by s 120A of the Act.

120 Standard of proof

(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.

Note: This subsection is affected by section 120A.

…

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

11        Section 120A relevantly provides:

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces; or

(iii) the British nuclear test defence service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).

…

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

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

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

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

…

12        In respect of the applicant’s claims, the first applicable Statement of Principles in relation to s 120A was SoP No 5 of 2008, dealing with PTSD. It relevantly provided:

Factor 6 in Instrument No 5 of 2008 provides:

(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or

…

(c) having a significant other who experiences a category 1A stressor within the one year before the clinical onset of posttraumatic stress disorder; …

…

In paragraph 9 of the SoP:

“a category 1A stressor” means one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;

(b) being subject to a serious physical attack or assault including rape and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;

…

13        The second applicable Statement of Principles in respect of the applicant’s claims was SoP No 1 of 2009, in relation to alcohol dependence. It relevantly provided:

In SoP Nº 1 of 2009 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with the circumstances of a person’s relevant service are stated in paragraph 6:

(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

…

(g) having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(h) experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse;…

…

Paragraph 5 of the SoP states:

Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Paragraph 9 of the SoP states:

For the purposes of this Statement of Principles:

"a category 1A stressor" means one or more of the following severe traumatic events:

(a)    experiencing a life-threatening event;

(b)    being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)    being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

14         ’The definition of “alcohol dependence” in cl 3(b) of the SoP is critical to some of the matters raised by the applicant on this appeal, and is reproduced at [47] below.

15        There was an earlier version of a SoP in relation to alcohol dependence in force when the applicant made his claim, to which the Tribunal referred in its reasons. Ultimately, it did not need to consider this earlier SoP and it is unnecessary to refer to it further.

16        The applicant is currently receiving a disability pension at 100% of the general rate of pension, as defined in s 22 of the Act. Section 15 provides that a veteran who is in receipt of a pension under Part II of the Act in respect of her or his incapacity may apply for an increase in the rate of the pension on the ground that her or his incapacity has increased since the rate of pension was assessed.

17        Sections 23 and 24 set out the criteria to be applied in determining whether the rate of pension payable can be increased to the intermediate rate or special rate. Each deal with the same subject matter and the only difference between them is the extent of the veteran’s incapacity for work. Section 23 deals with a lesser level of incapacity than s 24.

18        For the purposes of considering this appeal, the parties agreed it was appropriate to examine the terms of s 24, which relevantly provides:

24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force;

…and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

…

19        The issues on this appeal revolve around the proper construction of s 24(1)(c), read with ss 24(2)(a) and (b), and the relevantly identical provisions in s 23.

THE TRIBUNAL’S DECISION

20        The orders of the Full Court involved a general remitter of the matter to the Tribunal to be heard and determined according to law. No orders were made pursuant to s 44(4) limiting the Tribunal’s review to a particular issue: cf Repatriation Commission v Nation (1995) 57 FCR 25 at 34 per Beaumont J; Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156 at [24]. Nor was any order made, if it could have been (cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11), directing that the matter be heard again by the same Tribunal member.

21        Nevertheless, the Tribunal was constituted by the Tribunal member who conducted Mr Summers’ first review in 2010. There is no evidence of any objection by either party to this member conducting the review. The fact that the same Tribunal member heard the second review, and indeed came to the opposite conclusion on whether Mr Summers suffered from PTSD and whether it was war-caused, may in part explain the respondent’s contention on the cross-appeal that the Tribunal did not comply with its obligations under s 43(2B) of the AAT Act.

22        The Tribunal identified three issues arising on the review:

• Does Mr Summers suffer from PTSD? If so, is the condition war-caused?

• Is [his] alcohol dependence war-caused?

• Does Mr Summers qualify for intermediate rate pension or special rate pension?

23        Neither of the parties to the appeal disputed the Tribunal’s characterisation of the issues on review.

24        In respect of his claim for PTSD, the Tribunal recorded Mr Summers’ reliance on five events during his three-and-a-half months’ service in Vietnam as capable of satisfying the criteria for PTSD in the relevant diagnostic manual, Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV). However one event assumed prominence both in the Tribunal’s review and on this appeal. It was described by the Tribunal as the “Watson’s Bay event”:

Mr Summers stated that after his father’s funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties. In a written statement dated 27 November 2007 Mr Summers said that he had been drinking in a hotel with a friend and was confronted by a group of sailors and became involved in a fight as they left the hotel to walk back to the army base near a cliff face. His friend ran off. He said that four or five sailors came at him. One picked up a branch and struck him in the head, fracturing his cheekbone. He said: I was bashed up and thrown down a cliff. In a further written statement dated 15 January 2013, Mr Summers said that he remembered the incident in about the third week of his hospitalisation and the memory distresses him enormously even now. What particularly distresses him is thinking about Australian service personnel acting this way against their own people by leaving him at the bottom of the cliff and not seeking medical assistance or informing the authorities.

In a written statement dated 24 January 2013, Mr Summers said that he was scared when the sailors...approached me and when I was hit with the branch of a tree with a diameter of 2 inches. He expressed amazement and shock when he was told of the circumstances of the incident, and said that he still thinks about the events a lot. He said:

When I think about the sailors leaving me at the bottom of the cliff I feel agitated, angry and wound up. I go through the events again over and over. I am very emotional and tears come and my legs start shaking. I hide in my “Men’s Cave” every day — my garage under the house. There I have my fridge, my television and my dog. I sit there in the darkness with the telly on.

Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. He said that he was in intensive care for four weeks and was then sent to Concord Rehabilitation Hospital for one week and three weeks of rehabilitation followed, after which he returned to Victoria.

Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson’s Bay event, but maintained that he did not remember making the statement as he was interviewed only 10 days after suffering serious injuries and was probably taking prescribed medication at the time. He also agreed that the investigating officer’s report dated 6 November 1968 referred to the injuries having occurred … as a result of a fall down a cliff face at South Head … following a brawl between Mr Summers and a sailor from HMAS Watson. The investigating officer noted:

After wrestling around on the ground they both fell over a cliff onto the rock ledge below. From the statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.

…

Mrs Summers said that after the incident Mr Summers’ personality and behaviour changed and he was not the young man whom she had known before he went to Vietnam because he was always angry and irritable with her, his family and friends. She explained that since the incident Mr Summers will not visit hospitals and will not discuss the incident at any length, although she said that he told her that he remembers one of the sailors coming towards him with a piece of wood. She described his anger, impatience and rudeness, and said that he has nightmares and has difficulty sleeping. Recently, she and Mr Summers were on a cruise ship and, knowing that Watson’s Bay would be visible, Mr Summers became anxious and suffered from flashbacks. She said that the incident was, and continues to be, a major part of their lives and that he thinks about it every day.

25         The Tribunal then considered the psychiatric evidence before it, from a number of psychiatrists who had examined the applicant. The two psychiatrists the Tribunal gives the most attention to in its reasons are Dr Strauss and Dr Velakoulis. Dr Strauss concluded the applicant did not have diagnosable PTSD, principally on the basis that none of the events were sufficiently severe to meet the criteria for a diagnosis of PTSD — that is, events involving actual or threatened death or serious injury. Dr Velakoulis ultimately (although not in his original report) diagnosed PTSD on the basis of the Watson’s Bay event. What the Tribunal appears to have seen as the key aspect of his evidence, appears at [31] of its reasons:

Dr Velakoulis told the Tribunal that Mr Summers described being fearful after the Watson’s Bay event and ruminating about being left alone at the bottom of the cliff, which caused significant stress that contributed to PTSD at a mild to moderate level. Under cross-examination he said that he disagreed with the proposition that recollection of an event is essential to ascribing emotions arising from that event. Dr Velakoulis said that issues such as anxious avoidance and alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic and other life events. He said that if the Tribunal finds that PTSD is not made out, neither generalised anxiety disorder nor a major depressive disorder is likely to be an appropriate diagnosis.

26        Accepting that the applicant suffered “life-threatening injuries” from the Watson’s Bay incident and was not discovered until the day after his altercation with the sailors, the Tribunal then focused in its reasons on the question of what, if anything, the applicant could recall about the event. The Tribunal had already noted earlier in its reasons that, for a diagnosis of PTSD there must be both a traumatic event of the kind described in DSM-IV and a “response of the required intensity” from the veteran. The Tribunal then explained its conclusion that the applicant satisfied the DSM-IV diagnostic criteria and suffered from PTSD:

Although there are inconsistencies in the accounts of the Watson’s Bay event given by Mr Summers over the years since 1968, the Tribunal takes into account that he was affected by alcohol during and after the incident. Mr Summers suffered life-threatening injuries and was hospitalised for several weeks. The Tribunal accepts the evidence from Dr Velakoulis that alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic events. Mr Summers has attempted to clarify the impact of the incident on his daily life, and in his statements dated 15 and 24 January 2013 he described his response to the event at the time and afterwards. His evidence was supported by Mrs Summers, whose evidence was frank and credible.

Having considered all the material, the Tribunal is satisfied that the additional evidence, provided at this hearing, overcomes the lack of reliable information identified by Dr Strauss. The Tribunal finds that Mr Summers was exposed to a traumatic event in which he experienced an event that involved actual or threatened death or serious injury, and that his response involved intense fear, helplessness or horror. Therefore, the Tribunal finds that Mr Summers satisfies the diagnostic criteria, and suffers from, PTSD.

27        The Tribunal then applied s 120(1) to this diagnosis in order to determine whether the applicant’s PTSD was war-caused. It did so by following the steps set out by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82, in relation to the relevant SoP concerning PTSD. Again, neither party suggested there was anything legally erroneous in the approach taken by the Tribunal to this task.

28        The Tribunal then turned to examine whether the applicant’s alcohol dependence was war-caused. Applying the SoP on alcohol dependence to the evidence, it determined it was not. This aspect of the Tribunal’s findings is challenged on appeal. It is important because, having found the applicant’s alcohol dependence was not war-caused, the Tribunal also found, for the purposes of ss 23 and 24 of the Act, that the applicant’s alcohol dependence was one of the reasons he was not able to work. This, in turn, meant the applicant could not satisfy s 23 for an intermediate rate of pension, nor s 24 for a special rate.

29        The Tribunal found that the applicant did not satisfy the three or more characteristics required to demonstrate the psychiatric condition of alcohol dependence set out in the definition of that term in cl 3(b) of SoP No 1 of 2009. It found he could satisfy only one: namely that the applicant developed a tolerance for alcohol by the date of his departure from Vietnam namely, 12 October 1968. For the purpose of identifying two more factors from the list in cl 3(b), it then took that date as the date from which the 12-month period referred to in cl 3(b) ran. It concluded:

Therefore as three (or more) of the SoP diagnostic criteria for alcohol dependence were not met in the same 12-month period following Mr Summers’ service in Vietnam or the Watson’s Bay event, the hypothesis advanced by Mr Summers is not reasonable and does not fit the template of either SoP No. 1 of 2009 or SoP No. 17 of 2008. Therefore, Mr Summers does not satisfy the third step from Deledio and there is no necessity for the Tribunal to consider the fourth step. The Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers’ alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers’ alcohol dependence was war-caused.

30        In this appeal, the applicant challenges the way the Tribunal undertook its decision-making about the factors in cl 3(b) of the 2009 SoP.

31        Having made its findings that only the applicant’s PTSD (and not the applicant’s alcohol dependence) was war-caused, the Tribunal then turned to ss 23 and 24 of the Act in order to determine whether the applicant was entitled to an intermediate or special rate of pension. The Tribunal set out the evidence before it about the applicant’s work history in the retail sector, the circumstances in which he came to move employment and his redundancy from Betta Electrical in 2005, and whether the applicant made any attempts after 2005 to seek remunerative work. It also set out the applicant’s own evidence that he lost a franchise business in 1985 because of his alcohol dependence.

32        The Tribunal then directed its attention to the approach to s 24(1)(c) of the Act set out by the Full Court of this Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, which, on the appeal, the applicant conceded was the correct approach:

1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

33        The reference by the Full Court in Flentjar 48 ALD 1 in point (3) above to “the only factor” is a reference to the “alone test” which is set out in s 24(1)(c) of the Act. In other words, the Tribunal was required to be satisfied that no factors other than the veteran’s war-caused injuries or disease could be identified as preventing the veteran from engaging in remunerative work.

34        The Tribunal was satisfied on the evidence that the applicant’s war-caused injuries (which it described as “accepted conditions”), including his PTSD, prevented him from continuing to undertake remunerative work. The Tribunal then found, however, that the applicant’s alcohol dependence had “contributed significantly” to his inability to work. This, as the Tribunal had already found, was not a war-caused condition. The Tribunal also found that the redundancy and Mr Summers’ decision to consider himself retired after the redundancy in 2005 “were important elements in the cessation of employment and in preventing him from continuing to undertake that work”. Accordingly, it was not satisfied of the matters set out in s 24(1)(c) of the Act, in particular by reference to step (3) as set out in Flentjar 48 ALD 1.

35        The Tribunal then dealt with the ameliorating provisions in s 24(2) of the Act. These provisions affect the operation of s 24(1)(c) by deeming a veteran within its terms as meeting the criteria in s 24(1)(c). The Tribunal referred to the observations of Gray J in Giesen v Repatriation Commission (2005) 216 FCR 435; [2005] FCA 846 at [21] on the effect of s 24(2)(b) being to bring a veteran within s 24(1)(c) if:

he or she can show that war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking.

36        The Tribunal also referred to the construction of the term “genuinely seeking” given by the Full Court in Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83 at [28]:

The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ’trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ’sincerely’ or ’honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.

37        It then made two findings, in the following terms:

The Tribunal takes into account that in 2009 Mr Summers made an approach to Retravision and a telephone call to a Harvey Norman store. The Tribunal does not consider that these approaches, four years after the redundancy, constitute genuinely seeking to engage in remunerative employment during the assessment period. Further, the Tribunal accepts Mr Summers’ evidence that the stores did not want him because of his age and the financial state of the retail industry at that time. The Tribunal is reasonably satisfied that Mr Summers’ incapacity from his accepted disabilities was not the substantial cause of his inability to obtain remunerative work in which to engage. For these reasons, the Tribunal finds that Mr Summers does not satisfy s 23(3)(b) or s 24(2)(b) of the Act.

38        The Tribunal’s decision, reflecting this reasoning, was that it set aside the decision of the VRB and substituted a decision that the applicant’s PTSD was war-caused, but otherwise affirmed the VRB decision.

APPLICANT’S QUESTIONS OF LAW AND ARGUMENTS ON THE APPEAL

39        The notice of appeal challenged two aspects of the Tribunal’s decision: first, its finding that the applicant’s alcohol dependence was not war-caused and, second, the Tribunal’s conclusion that the applicant was not entitled to either an intermediate or special rate of pension under ss 23 or 24 of the Act.

40        Four questions, said to be questions of law, were identified in respect of the Tribunal’s finding about the applicant’s alcohol dependence. Six questions, said to be questions of law, were identified in respect of the Tribunal’s findings about ss 23 and 24 of the Act.

41        Unless the questions in the notice of appeal are properly characterised as questions of law, this Court has no jurisdiction to determine them. In Watsford v Commissioner of Taxation [2013] FCA 1389 at [57]-[60], I referred to the necessity for the identification of questions of law said to arise on appeals under s 44(1) of the AAT Act, and the way questions of construction and meaning may not be as delineated as was once thought, and I need not repeat those observations.

The first four questions of law

42        The first question of law is expressed to relate to the Tribunal’s interpretation and application of the factors listed in cl 3(b) of the relevant SoP No 1 of 2009 concerning alcohol dependence. SoPs are legislative instruments and, as such, the construction of particular provisions within them can give rise to a question of law. If the Tribunal has correctly construed a provision of a SoP, whether the application of that provision to the facts as found by the Tribunal gives rise to a question of law receives different answers depending on the statute in question and the statutory task. In Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [24], Gleeson CJ, Gummow and Callinan JJ stated:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law . However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General:

“[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”.

43        Thus, putting construction issues to one side, it is only if the facts as found by the decision-maker or Tribunal must “necessarily” be within or outside the statutory term or phrase that a question of law will be raised: see Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247; [2012] FCAFC 153 at [39] per Lander and Foster JJ. Expressed this way, a question of law of this kind is in substance the same as a question of law which asserts it was not open on the evidence for the decision-maker or Tribunal to reach the conclusion it did in applying a statutory term or phrase.

44        In this case, the language of the SoP in cl 3(b) calls for the making of evaluative judgments. The Tribunal must determine matters such as a veteran’s “tolerance” for alcohol. It must reach qualitative conclusions, such as whether a “great deal of time” is spent by a veteran in activities necessary to obtain alcohol, whether alcohol is taken in “larger amounts” than intended or whether “important” social, recreational or occupational activities are given up or “reduced” because of alcohol use. These conclusions are ones of fact and degree. Framed in this way, the SoP allows for and contemplates the Tribunal will make evaluative judgments on which reasonable minds might differ. It would be a rare circumstance indeed, in relation to the cl 3(b) factors, for the facts as found by the Tribunal to be “necessarily” inside or outside the statutory description. The judgment of whether they are or are not is a question of fact for the Tribunal. Thus, only the construction of those provisions of the SoP identified by the applicant raises a question of law.

45        The second and third questions are expressed in terms of whether the Tribunal made a finding based on no evidence, and in that sense raise questions of law.

46        The fourth question relates to the Tribunal’s compliance with its obligations under s 43(2B) of the AAT Act and raises a question of law.

47        Returning to the first question, the applicant’s five contentions, set out in the question of law, focused on cls 3(b)(5),(6) and (7) of the 2009 SoP. It is appropriate to reproduce the whole of cl 3:

…

(b) For the purposes of this Statement of Principles:

“alcohol dependence” means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) Tolerance, as defined by either of the following: 

(a) a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or

(b) markedly diminished effect with continued use of the same amount of the alcohol.

(2) Withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for the alcohol; or

(b) the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.

(3) The alcohol is often taken in larger amounts or over a longer period than was intended.

(4) There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.

(5) A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.

(6) Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

(7) The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

48        Some of the applicant’s contentions ask whether the Tribunal correctly interpreted and applied a part of cl 3(b). For the reasons I have given above, I consider this Court has no jurisdiction under s 44 of the AAT to determine whether the Tribunal “correctly applied” one of these provisions, because that is doing no more than re-examining the fact finding of the Tribunal. This Court does, however, have jurisdiction to decide whether the Tribunal correctly interpreted, or construed, those provisions. The substance, rather than the form, of the applicant’s sub-questions of law under the first question mixed these concepts somewhat and I have attempted to separate them.

49        The following contentions in the first question, read fairly, can be considered by this Court. The applicant contends the Tribunal misinterpreted sub-cl (5) in that, properly construed, it called for a weighing and balancing of the material before the Tribunal, in order to determine whether a “great deal” of time had been spent by the veteran in the activities described in that sub-clause. The applicant contends the Tribunal misinterpreted sub-cl (6) because it required the veteran to have given up important social and occupational and recreational activities, or two of these three types of activities, when the provision is expressed in the disjunctive. The applicant contends the Tribunal misinterpreted sub-cl (7) as imposing an onus on the veteran to prove or persuade the decision-maker of the matters within sub-cl (7).

50        On the second and third questions, the applicant contends the Tribunal incorrectly concluded there was a “lack of any evidence” in respect of cl (3)(b)(3) and, further, that the Tribunal incorrectly concluded that the applicant demonstrated no persistent desire to cut down or control alcohol use. The fourth question impugned by reference to the Tribunal’s obligations under ss 43(2) and (2B) of the AAT Act what was said to be the paucity of reasons given by the Tribunal for its conclusion that Mr Summers did not meet sub-cls (3),(4),(6) and (7) of cl 3(b) of the 2009 SoP.

The remaining six questions of law

51        These questions raise several construction issues and a further challenge to the adequacy of the Tribunal’s reasons. The fifth question challenges the Tribunal’s interpretation of “loss” in ss 24(1)(c) and 24(2)(a) of the Act; the seventh question challenges the Tribunal’s interpretation of the phrase “genuinely seeking to engage in remunerative work” in s 24(2)(b) of the Act. The sixth, eight and tenth questions assert failure by the Tribunal to comply with its obligations under s 43(2B) of the AAT Act, in relation to its findings as to “loss” under ss 24(1)(c) and 24(2)(a), its conclusion that the applicant was not “genuinely seeking to engage in remunerative work” and its conclusion about what was the “substantial cause” of his inability to obtain remunerative work, for the purposes of s 24(2)(b). Finally, the ninth question contends, by referring to “the financial state of the retail industry” and the applicant’s age as causes for the purposes of identifying the “substantial cause” of his inability to engage in remunerative work, the Tribunal took into account irrelevant considerations.

52        I am satisfied that; read fairly, all those questions raise questions of law for the purposes of s 44(1) of the AAT Act. That is not to say that, as they were developed, the arguments were confined to questions of law. At times they strayed into the merits of the Tribunal’s fact finding. I deal with those matters in more detail below.

RESPONDENT’S QUESTION OF LAW AND ARGUMENTS ON THE CROSS-APPEAL

53        The respondent’s cross-appeal identified one question of law: whether the Tribunal had complied with its obligation under s 43(2B) of the AAT Act. The respondent contended the Tribunal had failed to comply with that obligation in three ways. First, the Tribunal did not identify the “event” it found the applicant experienced, and which the Tribunal also found involved actual or threatened death or serious injury, leading to its conclusion that the applicant meets the criteria for a diagnosis of PTSD. This was said by the respondent to be a critical omission by the Tribunal in terms of its identification of material findings of fact. Second, the reasons do not disclose why the Tribunal preferred the evidence of Dr Velakoulis over that of Dr Strauss and another psychiatrist whose evidence was considered by the Tribunal, Dr Pomorin, in respect of the conclusion the applicant suffered from PTSD, in particular given the opinion by Dr Strauss about the need for conscious recall of a traumatic event before a diagnosis of PTSD could be made. Third, the Tribunal’s reasons did not disclose which aspects of the evidence it relied on for the finding that the applicant responded to the event it identified at [36] with the requisite intense fear, helplessness or horror which a diagnosis of PTSD required.

CONSIDERATION

54        Several general points should be made at the outset, since they will recur in the considerations of several of the questions of law raised by the parties. It is well established that, in applying a SoP to the evidence and material before it, the decision-maker (whether at first instance or on review) is to form an opinion whether a veteran is or is not suffering from a particular condition: see O’Dowd v Repatriation Commission [2013] FCA 991 at [37] per Marshall J and the cases there referred to. The decision-maker does not delegate or defer to any medical evidence on this matter, although clearly such evidence may be given weight. For example, whether the applicant did or did not suffer from PTSD was a conclusion the Tribunal needed to reach for itself, applying the diagnostic criteria in DSM-IV and taking into account all the evidence and other material before it.

55        The nature of the reasons obligation imposed on the Tribunal by s 43(2) and s 43(2B) should be recalled. Section 43(2) imposes a general obligation to give reasons which are adequate to enable the parties to the decision to understand why it was made, and to facilitate the judicial supervision of the Tribunal’s decision-making which arises from s 44 of the AAT Act: see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137 at [40]-[41].

56        Where a statute requires a decision-maker to set out “its” findings on material questions of fact and the evidence or other material on which those findings were based (as the AAT Act does by s 43(2)), the statute is asking the decision-maker to reveal, not what it should have found and why, but what it did find, and why. It is an obligation to expose that particular decision-maker’s reasoning processes. In doing so, the decision-maker may reveal a failure to take relevant considerations into account or a misunderstanding of the law to be applied. If so, it will be because the reasons given reveal what the decision-maker considered to be material, and how the decision-maker approached her or his statutory task: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [38] per Gaudron J, at [69], [75] per McHugh, Gummow and Hayne JJ.

57        In Repatriation Commission v Holden [2014] FCA 605 at [76]-[77] I explained what I see as the content of the obligation imposed by s 43(2B). With due appreciation for the function of a busy administrative tribunal, the Tribunal’s reasons must disclose the findings of fact it considered material, setting out the evidence it relied upon and explaining why it reached the conclusions it did in a way which enables the parties and a reviewing court to understand its reasoning processes. That a tribunal’s reasons might be interrogated or criticised by reference to evidence it did not refer to, or by reference to matters a party considers should have been expanded upon, will not necessarily demonstrate non-compliance with ss 43(2) and (2B).

The approach to relevant aspects of clause 3 of the SoP

58         It is important to note that the function of the factors set out in (1) to (7) of cl 3(b) of the 2009 SoP is to act as indicators of the definition of “‘alcohol dependence’” given by the introductory words of cl 3(b). The principal aspect of the definition is that alcohol dependence is a “maladaptive pattern of alcohol use, leading to clinically significant impairment or distress”. The seven listed factors then act as indicators of two aspects of that definition: first, that the veteran’s alcohol use is maladaptive, and, second, the levels of effects on the veteran of that maladaptive use. The specification that there must be three factors present “at any time in the same 12-month period” is the way in which the SoP elucidates the requisite standard for severity and consistency of the alcohol dependence. That function should be borne in mind when construing each clause.

Whether the Tribunal erred in its construction in the way identified by the applicant (question 1)

59        Sitting at the forefront of the submissions made on behalf of the applicant about question 1 was a submission that the Tribunal erred in imposing, in its consideration of the factors in cl 3(b), a strict 12-month “limit”, running from the time it found the first factor to be present, which was 12 October 1968 (see [29] above). I accept this is what the Tribunal did: it is apparent from its reasons that, having found the factor in sub-cl (1) satisfied on 12 October 1968, the Tribunal then looked for two more factors to be present on the material in a 12-month period from that date, and did not find them.

60        The applicant submitted the Tribunal then confined itself to that one-year period, a submission I do not accept. It is apparent from its reasons that the Tribunal looked at events throughout the next several decades: the birth of the applicant’s child in 1976, his failed business in 1985, his taking of alcohol in large amounts at times it had identified earlier in its evidence. Clause 3(b) of the SoP does require that the decision-maker be satisfied that three or more of the factors in sub-cls (1)-(7) manifested themselves within the “same” 12-month period. The Tribunal was correct to appreciate this requirement. If it had looked only at evidence for one year from October 1968, then the applicant’s argument may have had some merit, but this is not what it did. Rather, it looked at the whole of the evidence and material, to see if there was any 12-month period where three or more of the factors in cl 3(b) manifested themselves. Unsurprisingly, having found one factor present in October 1968, it looked carefully for two more factors arising in the 12 months after that date. It found as a fact there were no three factors within one 12-month period and no error of law attaches to the approach it took.

61        As to questions 1(a) and (b), the applicant submitted that the factor in cl 3(b)(5) requires a “weighing and balancing” exercise. If what is meant by that is that the decision-maker must examine the evidence about how much time is spent, relative to the rest of the veteran’s life, on activities necessary to use, obtain or recover from the effects of alcohol, so much can be accepted. The decision-maker must make a factual finding about how much time the veteran spent on these activities and whether, proportionally to the rest of the veteran’s life, the decision-maker’s opinion is that it was a “great deal” of time.

62        In this factor, the Tribunal’s only finding was that there was “no material to suggest Mr Summers spent a great deal of time” on these activities. Earlier in its reasons the Tribunal had recited (and, I infer, accepted) evidence from Mr and Mrs Summers about high levels of alcohol consumption while in Vietnam and on his return, as well as events in their lives which were affected by Mr Summers’ drinking — such as him being unable to be located at the time of the birth of their second child and losing a furniture franchise because of his drinking. None of the evidence the Tribunal referred to descended to the level of specificity required by sub-cl (5). The Tribunal’s conclusion was expressed to depend on the absence of such material. There is nothing in the Tribunal’s approach to suggest it misunderstood the task required by cl 3(b)(5) — rather, it did not find evidence of sufficient specificity in the material before it. What the applicant identifies in question 1(b) (as reformulated) as “relevant considerations” are simply pieces of evidence and there is no substance to this aspect of the argument. That was part of its fact-finding task. How other Tribunals have approached the task in other Tribunal decisions does not assist the argument, because each case turns on its own facts and the Tribunal’s view of them.

63        As to question 1(c), there is no substance in this argument. It is apparent from the Tribunal’s reasons that it took each of the kinds of activities as disjunctive, not conjunctive. The applicant also appeared to submit the Tribunal had construed this factor too strictly, looking for explicit evidence of too many “activities”, rather than relying on general evidence about the applicant becoming distant or shunning social activities. In its reasons, the Tribunal referred to the evidence about the applicant leaving one social event in December 1968 for reasons that included alcohol consumption. It also referred to him not being present at the birth of his child in 1976 and losing the business franchise in 1985. It then disregarded the latter two events because they were not within the same 12-month period as the factor in sub-cl (1), being the one the Tribunal had found the applicant satisfied. That was a correct approach. This factor does require some specific identification of activities a veteran has foregone or avoided, and that is what the Tribunal looked for.

64        As to questions 1(d) and (e), in conducting its review and making its decision the Tribunal did not impermissibly impose any onus on the applicant. The statement that there was no “persuasive material” is nothing more than the Tribunal’s explanation of how it assessed the material before it. This kind of language reflects the “practical situation” which arises in the Tribunal on any review, where parties must adduce material, and make arguments, in order to persuade the Tribunal to make findings or reach conclusions one way or the other: see Deledio 83 FCR 82 at 95.

The “no evidence” questions (question 2 and 3)

65        These two questions also centre on the way the Tribunal went about its fact finding on the factors in cl 3(b). The two findings challenged by these grounds are:

    at [60], the Tribunal said “[i]n his evidence Mr Summers did not state that he often took alcohol in larger amounts or over a longer period than was intended, so he does not satisfy factor (3)”; and

    at [61], the Tribunal said “Mr Summers … demonstrated no desire or unsuccessful efforts to reduce consumption, so he does not satisfy factor (4)”.

66        Expressed as they are, these findings represent the Tribunal’s conclusion having examined the evidence. It is not suggested by the applicant that the Tribunal’s description of the evidence was even factually wrong, although that would not have been enough to demonstrate legal error. The Tribunal simply was pointing, as it was entitled to do, to gaps in the evidence which meant the applicant could not satisfy particular factors within cl 3(b).

Whether inadequate reasons (question 4)

67        The Tribunal explained in two paragraphs of its reasons why it was not satisfied the applicant met the criteria in cl 3(b) of the 2009 SoP. It had set out earlier in its reasons the evidence from the applicant and his wife, as well as the medical evidence, concerning the applicant’s alcohol consumption and the effects it had. There was no suggestion in argument that significant or material parts of the applicant’s evidence, or that of his wife, were overlooked or ignored by the Tribunal in that earlier part of its reasons. The description in the Tribunal’s reasons of evidence of the applicant and his wife suggests their evidence was at a relatively high level of generality. The written statements of the applicant and his wife before the Tribunal are in evidence before the Court, as are the principal medical reports. On the manifestations of his alcohol dependence, the contents of those statements, consistently with the Tribunal’s reasons, are at a level of generality not apt to assist the Tribunal in making the necessary findings for the purposes of cl 3(b). Their level of generality proved, at a factual level, to be problematic when it came to persuading the Tribunal of the matters in cl 3(b). In my opinion, this feature of the applicant’s evidence on review before the Tribunal is reflected in the way the Tribunal explained its reasoning on the factors in cl 3(b). Its reasons in those circumstances do not fail to comply with its obligations under ss 43(2) and (2B) of the AAT Act.

Construction of “loss” in sections 24 (1)(c) and 24 (2)(a) (question 5)

68        The fifth question of law purports to concern the Tribunal’s interpretation of the word “loss” in s 24(1)(c) and s 24(2)(a) of the Act. In relation to s 24(1)(c), the Tribunal proffered no particular construction of this term, because it did not reach this point in its analysis. The applicant accepted that the Tribunal took the correct approach by working through the steps set out by the Full Court in Flentjar 48 ALD 1. The Tribunal answered the first two steps favourably to the applicant; namely that the applicant was working as a retail salesperson and was prevented from continuing that work by reason of his war-caused conditions.

69        Where the Tribunal found against the applicant was on the third step in Flentjar 48 ALD 1: namely; — the “alone” test. It found his alcohol dependence (which it had found not to be war-caused) “contributed significantly” to the applicant’s incapacity to continue to undertake remunerative work. Having decided, as a matter of fact, that third step adversely to the applicant, the Tribunal then stated:

In view of its findings in respect of question (3) there is no necessity for the Tribunal to consider question (4).

70        Thus, the Tribunal did not address the question of whether the applicant was “suffering a loss” within s 24(1)(c) itself. There was, accordingly, no misconstruction.

71        The Tribunal then addressed s 24(2), to see if the applicant could obtain the benefit of the way it ameliorated s 24(1)(c). Having considered s 24(2)(b), at [86] of its reasons it then considered whether the applicant met the terms of s 24(2)(a) and its equivalent provision in relation to intermediate rate pension, s 23(3)(a). The applicant submits it took an erroneous approach to s 24(2)(a) by examining the applicant’s subjective intention, and by making a finding about that intention.

72        There is some difficulty about the Tribunal’s sequence of reasoning in this part of its decision, although it is not the difficulty to which the applicant points. The Tribunal considers the provisions in reverse order, which makes this part of its reasons difficult to follow. Section 24(2)(a) is a gateway provision to the ameliorating effect of s 24(2)(b). It sets out the circumstances in which a veteran can be eligible for the benefit of the ameliorating provision in s 24(2)(b). It does so by positing when a veteran will be outside the terms of s 24(1)(c) — essentially by restating in positive language the effect of the “alone” test in that provision: namely that there is a reason other than incapacity from war-caused injury which means the veteran cannot engage in remunerative work. The work of the ameliorating sub-section is then done by paragraph (b), in that the war-caused injury or disease need only be the “substantial cause” of the veteran not being able to engage in remunerative work.

73        The Tribunal found that the applicant “does not satisfy” s 24(2)(a) because the applicant did not cease employment because of his war-caused injuries. Rather, the applicant intended to work through the Christmas period of 2005, but was made redundant involuntarily. The Tribunal’s finding was based on the applicant’s own evidence.

74        In that sense, the deeming effect of s 24(2)(a) did operate in respect of the applicant and, having fallen outside the “alone” test in s 24(1)(c), the applicant needed to meet the “substantial cause” test in s 24(2)(b) to be able to qualify for an increased rate of pension. It was perhaps an infelicitous choice of words by the Tribunal to state that the applicant “does not satisfy” s 24(2)(a) when, by its own findings, the deeming effect of s 24(2)(a) did operate on the applicant.

75        Since the Tribunal had already found the applicant did not meet the “substantial cause” test in s 24(2)(b), its approach to its findings about s 24(2)(a) was not material to its conclusion that the applicant could not obtain the benefit of the ameliorating provision in s 24(2)(b).

76        The applicant’s criticism of the Tribunal’s reasoning however is different. He contends that the Tribunal made a finding about the applicant’s subjective desire to work, which should be seen as having infected its reasoning about what was the substantial cause of his inability to work.

77        That submission should be rejected. The Tribunal did not approach s 24(1)(c), nor s 24(2)(b), by reference to the applicant’s subjective desires. As the respondent submitted, it looked objectively for what was the cause of his inability to obtain remunerative work. Insofar as s 24(1)(c) was concerned, it found his alcohol dependence contributed significantly to his incapacity to keep working. Insofar as s 24(2)(b) was concerned, it found there were factors other than his war-caused injuries, such as his age and the financial state of the retail industry at the time.

78        Both those findings would, in and of themselves, also have supported the Tribunal’s finding that the deeming effect of s 24(2)(a) operated on the applicant. The Tribunal, however, at [86] of its reasons, went on and made a further finding about why the applicant was deemed not to have suffered a loss of salary and wages because of his war-caused injuries: namely, that he intended to keep working and was only prevented from doing so by reason of involuntary redundancy.

79        Although, as I have observed, this part of the Tribunal’s reasons is not as clear as it could be, there is no legally erroneous approach of the kind suggested by the applicant’s questions 5 and 6, nor for that matter of any other kind.

80        The fifth question of law is not to be answered favourably to the applicant.

Construction of “genuinely seeking to engage in remunerative work” (question 7)

81        The seventh question of law was framed by the applicant by reference to this Court’s decision in Leane 81 ALD 625; [2004] FCAFC 83, an extract of which appears in the Tribunal’s reasons. The applicant submitted Leane required that a veteran first, seek work and, second, do so honestly and in good faith. If those two matters were satisfied, the applicant submitted, the effect of Leane was that the test in s 24(2)(b) was also satisfied.

82        In Leane 81 ALD 625; [2004] FCAFC 83 at [30]-[32], the Full Court emphasised that the requirement in s 24(2)(b) does not involve a veteran satisfying the Tribunal she or he had been genuinely seeking to engage in remunerative work at all times during the assessment period. Rather, if the veteran could satisfy that criterion at a particular point in time during the assessment period, it did not matter that subsequently he or she might not, in fact, have been genuinely seeking to engage in remunerative employment. It also emphasised (at [28]-[29]) that no gloss should be put on the terms of s 24(2)(b) by introducing a notion that there must be “objective signs of active pursuit of remunerative work”.

83        Taking those observations into account, together with the extract from the Full Court’s reasons to which the Tribunal made reference, it is apparent that there is no misconstruction by the Tribunal of s 24(2)(b). The Tribunal did not impose any gloss, it did not look for evidence of the applicant genuinely seeking to engage in remunerative work at all times, and it understood that it was looking at the evidence to ascertain what the applicant “did”, and what his intention or purpose was.

84        It is clear in my opinion that, by the use of the present continuous tense in s 24(2)(b), the Parliament intends to convey an activity that may be ongoing, or incomplete, rather than one which is satisfied by a single attempt, such as a phone call. It contemplates in my opinion at least a course of conduct — what kind of conduct, as the Full Court observes in Leane 81 ALD 625; [2004] FCAFC 83 at [29], is not prescribed, but nevertheless the tense used and the context of the provision do suggest some level of ongoing conduct for some period of time.

85        The Tribunal’s findings on s 24(2)(b) at [85] of its reasons, which I have set out at [37] above, reflect the evidence the Tribunal saw as material and set out at [68]-[70] of its reasons:

Under cross-examination Mr Summers agreed that he told the VRB on 27 June 2007 that he had considered himself to be retired and that … I couldn’t hack going back to work to the sort of job that I wanted. I didn’t feel like, you know, retraining at that age. He reiterated in evidence that in 2005 he had considered himself retired … in a way, yes, yes. In relation to the redundancy, Mr Summers stated:

They said that they were getting rid of me because the business was bad, and because of the petrol situation. I think it was pretty bad then at the time. That was, I think, the main two reasons. So, “We’ve got to cut down and unfortunately you’ve got to go, Ron”. And I thought, oh well. It was, you know, unfortunate.

In relation to efforts to find alternative employment after his redundancy, Mr Summers agreed that he did not seek remunerative work between the date of his redundancy in 2005 and June 2007, and he had not registered with any employment agencies. He agreed that at the first hearing he told the Tribunal that in 2009 he started to look for work because he was bored at home. On 5 March 2013 he stated:

I probably didn’t want to be retired. I wanted, you know, to do something. So that I looked around, I — that’s when I went into Retravision, a couple of stores really.

Mr Summers acknowledged that he rang a Harvey Norman store and that no-one wanted to employ him because of his age, physical disabilities and the economic situation in the retail industry.

86        The applicant’s submission would mean that a decision-maker was obliged to find a veteran satisfied s 24(2)(b) if there was a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long) and no evidence that attempt was dishonest or disingenuous. I do not accept that is the proper approach to the construction of s 24(2)(b), nor the effect of Leane 81 ALD 625; [2004] FCAFC 83. Aside from the matters set out above, the Full Court set no minimum threshold for s 24(2)(b) and obviously so, because the assessment of the evidence is for the Tribunal and not the Court. Perhaps another Tribunal member, looking at the evidence, might have formed a different view whether the applicant had been “genuinely seeking to engage in remunerative work” when he rang a Harvey Norman store and made an approach to Retravision four years after he left Betta Electrical having considered himself retired. Perhaps not. The applicant’s submission in substance invites the Court to disagree with the Tribunal’s view of the evidence, which is no part of this Court’s function under s 44.

Adequacy of reasons (questions 6, 8 and 10)

87         The sixth question of law, like the fifth question of law, seeks to impugn a step the Tribunal did not take in its reasons — namely, the fourth step in Flentjar 48 ALD 1. As to the other two reasons challenges, the Tribunal had set out its findings on the material questions of fact for the necessary aspects of s 24(1)(c) and s 24(2), and earlier in its reasons had set out the evidence on which it relied. No explanation for a critical or necessary step or conclusion in its reasoning is omitted. It did not go to great lengths to explain the factual conclusions it had reached, that is true, but its reasons expose its reasoning process in a way which in my opinion complies with its obligations under ss 43(2) and (2B).

The irrelevant considerations argument (question 9)

88        This argument turned on a reference in the Tribunal’s reasons to the fact of the applicant’s age. The submission was that any reliance on the applicant’s age in applying the tests in s 24(1)(c) would be an irrelevant consideration. Reliance was placed on the terms of the Age Discrimination Act 2004 (Cth) (ADA), the submission being that the prohibition of discrimination on the basis of age in respect of Commonwealth programs imposed by s 31 of the ADA meant that to consider a veteran’s age in applying these tests under the Act would be to engage in unlawful discrimination. The submission that the provision of pensions under the Act brings the entire administration of, and decision-making under, the Act within the definition of Commonwealth programs for the purposes of the ADA would need to confront the express exclusion in s 41(j) of the ADA. Putting that difficulty to one side, the applicant’s submission is otherwise misconceived.

89        The Tribunal referred to the applicant’s age in three places in its reasons. It referred to the applicant’s own evidence that, when he rang a Harvey Norman store four years after his redundancy, one of the reasons no-one wanted to employ him was his age. The second reference is in the Tribunal’s account of an occupational physician who had examined the applicant in 2007 and expressed an opinion that he would have great difficulty returning to the workforce because of his respiratory condition, his age and lack of computer skills.

90        The third reference is in [85] of the Tribunal’s reasons, which is reproduced at [37] above, where the Tribunal considers whether the ameliorating terms of s 24(2)(b) can apply to the applicant. There, the Tribunal stated that it accepted the applicant’s own evidence that his age and the state of the retail industry were two factors leading “the stores” not to want to employ him. The purpose of this finding was as part of the Tribunal’s reasoning process in identifying whether there was causal relationship (the test being “substantial cause”) between the applicant’s ability to obtain remunerative work and his war-caused injuries. That was an entirely factual inquiry. The Tribunal could not evaluate, as the applicant’s submission seemed to suggest, the lawfulness of a store like Harvey Norman relying on the applicant’s age as a reason not to employ him. The Tribunal was undertaking a factual inquiry into why the applicant had not been able to find remunerative work. It was open to the Tribunal to accept the applicant’s own evidence on this issue, and to rely on it in forming its conclusions about the causal relationship for the purposes of the terms of s 24(2)(b). This conclusion applies equally to the applicant’s submission that the financial state of the retail industry was an irrelevant consideration. It was not a consideration at all. It was a piece of evidence, given by the applicant himself. The Tribunal was entitled to rely on it in forming its opinion on the factual inquiry about what caused the applicant to be unable to obtain remunerative work.

Cross-appeal

91        There is some irony in the applicant making four separate attacks on the adequacy of the Tribunal’s reasons, and the respondent resisting each of those attacks, yet in the cross-appeal raising its own issue about adequacy of the Tribunal’s reasons. Similarly, there is some irony in the applicant attacking repeatedly the adequacy of the Tribunal’s reasons and yet resisting an adequacy attack by the respondent on one part of the Tribunal’s reasons.

92        Like the applicant’s four questions of law concerning adequacy of reasons, the respondent’s cross-appeal seeks to impose on the Tribunal obligations beyond the requirements of ss 43(2) and (2B).

93        The question of law raised is whether the Tribunal failed to make material findings of fact (or failed to make them with “sufficient particularity”) for it to determine that the applicant suffered PTSD. The respondent thus challenges the finding of PTSD in favour of the applicant by the Tribunal, which was the finding the Tribunal had made against the applicant on the first review back in 2010.

94        The respondent contends the Tribunal did not identify the “traumatic event” about which it made the finding of PTSD. There is no substance in this contention. The applicant submitted that, when the reasons are read as a whole it is apparent that the Tribunal’s conclusion is directly preceded by a detailed discussion of the Watson’s Bay event. I accept that submission. The applicant also submitted that when dealing with the SoP criteria for alcohol dependence, which in themselves refer to a “clinically significant psychiatric condition”(in the applicant’s case, PTSD) the Tribunal refers expressly to the Watson’s Bay event, and it is clear that this is the event on which its reasoning turns. I accept that submission. Further, this event received the preponderance of attention in the Tribunal’s reasons. There is no fair and sensible way to read the Tribunal’s reasons other than that its focus in terms of the requisite traumatic event was the Watson’s Bay event.

95        The material question of fact identified by the respondent was the Tribunal’s decision to prefer the evidence of two psychiatrists who diagnosed the applicant with PTSD, over two who did not. In particular, the respondent contended an important issue was whether memory or conscious recall of the event said to be the traumatic event which triggered the PTSD was necessary. The respondent’s principal expert psychiatrist, Dr Strauss, was of the opinion memory or conscious recall was necessary, and that the applicant had no such memory or recall and therefore could not be said to meet the DSM-IV criteria for PTSD. The respondent contended the Tribunal noted the applicant had no clear memory and his accounts had many inconsistencies.

96        The respondent’s contention does not reflect all of the Tribunal’s findings about the applicant’s recollection of events. It also requires the Tribunal to explain, essentially to the respondent’s satisfaction, why it reached a conclusion the respondent contends it should not have reached on the merits. That is not what ss 43(2) and (2B) require.

97        In this case, Dr Velakoulis had re-examined the applicant for the purposes of the second Tribunal hearing and focused, on his own evidence, more significantly on the Watson’s Bay event than had been the case in his previous examination. The Tribunal records Dr Velakoulis’ evidence before it at [30]:

In his further report dated 20 February 2013, Dr Velakoulis stated that the psychological trauma related to the Watson’s Bay event fulfils the criteria for a diagnosis of PTSD. He said that Mr Summers’ recall of events prior to and after the Watson’s Bay event seems reasonably intact, although he appears to have suffered from a delirium in hospital as a result of his injuries, such that his recall during the early period of hospitalisation remains absent or patchy. Dr Velakoulis concluded that Mr Summers experienced several life threatening events and has re-experienced symptoms, psychological reactivity in the context of triggers, avoidance and numbing symptoms and a variety of hyperarousal symptoms including prominent irritability.

98        The Tribunal then noted his cross-examination about whether recollection of an event is essential to ascribing emotions arising from that event. His evidence was that both anxious avoidance and alcohol-related impairment can result in seemingly inconsistent recall of traumatic and other life events. It is apparent that the Tribunal took this opinion into account in assessing the applicant’s evidence and the inconsistencies in his accounts of the Watson’s Bay event, as it was entitled to do. At [33] of its reasons, it referred to the inconsistencies in the applicant’s account, and in his recollections of when he first remembered the incident when he woke up in hospital. The Tribunal then made the following findings:

Although there are inconsistencies in the accounts of the Watson’s Bay event given by Mr Summers over the years since 1968, the Tribunal takes into account that he was affected by alcohol during and after the incident. Mr Summers suffered life-threatening injuries and was hospitalised for several weeks. The Tribunal accepts the evidence from Dr Velakoulis that alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic events. Mr Summers has attempted to clarify the impact of the incident on his daily life, and in his statements dated 15 and 24 January 2013 he described his response to the event at the time and afterwards. His evidence was supported by Mrs Summers, whose evidence was frank and credible.

99        This passage reflects an acknowledgement of the inconsistencies, an acceptance of Dr Velakoulis’ explanation as to why they may have occurred, yet a basic acceptance that the applicant could describe “his response to the event at the time and afterwards” (emphasis added). It also relied, as it was entitled to, on the evidence of the applicant’s wife.

100         The Tribunal then found that, having considered all the material, the additional evidence presented at the second hearing “overcomes the lack of reliable information identified by Dr Strauss”. That is the Tribunal’s explanation of why it preferred the opinion of Dr Velakoulis, and how it took that opinion into account in considering the evidence of the applicant and his wife. The Tribunal discharged its obligations under ss 43(2) and (2B) of the AAT Act. The respondent’s contentions on the cross-appeal really sought to try and have the Court interrogate its findings on the merits or provide a further explanation to the satisfaction of the respondent.

101        There is no occasion to consider the competing submissions concerning relief if the cross-appeal were successful.

Conclusion

The appeal and cross-appeal will both be dismissed. Since both parties sought to impugn the decision of the Tribunal, and both were unsuccessful, there will be no orders as to costs.

Associate:

Dated:    12 June 2014