FEDERAL COURT OF AUSTRALIA

Kaluza v Repatriation Commission [2014] FCA 1137

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the Application.

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

REASONS FOR JUDGMENT

Introduction and Background

1    This proceeding is an appeal to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), on two questions of law, from a decision of the Administrative Appeals Tribunal (Tribunal) given on 24 June 2013 (Kaluza v Repatriation Commission [2013] AATA 424) (Kaluza No 3). Such an “appeal” lies in the original jurisdiction of this Court and is not an appeal in the strict sense.

2    On 9 October 2003, the applicant, Mr Kaluza lodged a claim with the Repatriation Commission (Commission), which is the sole respondent in the present proceeding, for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VEA). In a decision given on 12 February 2004, a delegate of the Commission accepted Mr Kaluza’s claim that he was suffering from bilateral sensorineural hearing loss and bilateral tinnitus and that these conditions were service related. Upon that basis, the delegate found that Mr Kaluza was entitled to a disability pension and allowances. At the same time, the delegate also decided that the post traumatic stress disorder (PTSD), hypertensive cardiovascular disease and alcohol dependence from which Mr Kaluza claimed he was then suffering were not related to his service in the Australian armed forces. The pension which he was granted by the Commission related only to his hearing loss and his tinnitus.

3    Mr Kaluza served in the Royal Australian Air Force between 29 August 1963 and 31 October 1983—a little over 20 years.

4    During the Vietnam war, Mr Kaluza served with No 37 Squadron Richmond. He did not serve in Vietnam. He may have travelled to and from there on a couple of occasions.

5    In Kaluza No 3, the Tribunal found (and the Commission now accepts) that Mr Kaluza travelled to and from Vietnam in the period 21–24 February 1969. The Commission also accepts that, for some time in that period (probably on 24 February 1969), Mr Kaluza rendered “operational service” within the meaning of s 6C of the VEA. Section 120(1) of the VEA relevantly provides that, where a claim under Pt II for a pension in respect of the incapacity from injury or disease of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the injury or disease is a war-caused injury or disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Sections 120(3) and 120A qualify to some extent the operation of s 120(1).

6    On 15 March 2004, Mr Kaluza applied to the Veterans’ Review Board (VRB) for review of the delegate’s decision to reject his claim to a pension calculated upon the basis that the conditions of PTSD, hypertensive cardiovascular disease and alcohol dependence from which he said he was suffering were not war-caused. In a decision given on 27 April 2006, the VRB:

(a)    Varied the diagnosis of hypertensive cardiovascular disease to hypertension; and

(b)    Affirmed the decision given by the Commission’s delegate on 12 February 2004 in relation to PTSD, alcohol dependence and hypertension.

7    The effect of the decision of the VRB was that the outcome arrived at by the Commission’s delegate remained unchanged.

8    On 10 July 2006, Mr Kaluza sought review of the decision of the VRB in the Tribunal. In a decision published on 14 May 2008 (Kaluza v Repatriation Commission [2008] AATA 392), the Tribunal varied the decision of the VRB and found that Mr Kaluza suffered from anxiety disorder, alcohol abuse and hypertension but that he did not suffer from PTSD or alcohol dependence. The Tribunal also found that none of the conditions claimed or diagnosed was war-caused.

9    As a result of two successful appeals brought by Mr Kaluza to this Court under s 44(1) of the AAT Act, the Tribunal was required to reconsider Mr Kaluza’s application for review of the 2006 decision of the VRB on two further occasions. The decision of the Tribunal in Kaluza No 3 was the third occasion upon which the Tribunal was called upon to consider Mr Kaluza’s claims.

10    Section 13(1)(b) of the VEA relevantly provides that, where a veteran is “… incapacitated from a war-caused injury or war-caused disease …” the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the VEA. That liability is subject to the VEA.

11    Mr Kaluza claimed that his conditions were war-caused. He said that they were caused by events which occurred while he was undertaking operational service and that, for that reason, he is entitled to a higher rate of pension under the VEA.

12    At the third hearing before the Tribunal which resulted in Kaluza No 3, Mr Kaluza contended that he undertook operational service on one or two other occasions in addition to the occasion which took place in the period 21–24 February 1969 to which I have referred at [5] above. In the end, however, the Tribunal was satisfied that the only occasion when he undertook operational service was on a flight in February 1969 when the aircraft upon which he was serving transported a coffin with a dead soldier inside and three SAS soldiers from Butterworth Air Base in Malaysia to Pearce Air Base in Western Australia. The Tribunal did not accept that he undertook operational service at any other time. Those conclusions are not challenged in this proceeding.

13    Mr Kaluza did not see the dead soldier inside the coffin. He could not be sure that there was a dead soldier inside the coffin. However, he believed that there was a dead soldier inside the coffin and conjured up images of the corpse. He believed that the dead man was an Aboriginal sapper who had been shot by an SAS trooper. During the trip, Mr Kaluza and the SAS soldiers he was transporting played a card game on top of the coffin. The dead man was invited to join in the card game. The dead man was dealt a hand and invited to take it up.

14    According to the Tribunal, in the review application with which it dealt in Kaluza No 3, Mr Kaluza claimed that he was suffering from war-caused PTSD, alcohol dependence and hypertension. In addition, at the hearing before the Tribunal, he also claimed that he suffered from generalised anxiety disorder and alcohol abuse. There was no dispute between Mr Kaluza and the Commission in the review proceeding before the Tribunal the determination of which is found in Kaluza No 3 that Mr Kaluza suffered from hypertension. However, the Commission did not concede that he suffered from any of the other claimed conditions. Further, the Commission consistently maintained that none of the conditions claimed by Mr Kaluza was war-caused within the meaning of s 13(1)(b) of the VEA.

15    By Kaluza No 3, the Tribunal varied the VRB’s decision of 27 April 2006 and decided that Mr Kaluza was suffering from generalised anxiety disorder, alcohol dependence and hypertension, but not from PTSD or alcohol abuse. The Tribunal also decided that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension were not war-caused.

16    In his Notice of Appeal filed in this Court on 19 July 2013, Mr Kaluza appealed from that part of Kaluza No 3 whereby the Tribunal decided that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension were not war-caused. At first blush, it appears to me that Mr Kaluza did not appeal from that part of Kaluza No 3 whereby the Tribunal decided that he was not suffering from PTSD or from alcohol abuse. However, Mr Kaluza also appeared to raise issues concerning the Tribunal’s treatment of his alternative case that, at least at some time, he had suffered from alcohol abuse.

17    The questions of law, orders sought and grounds relied upon by Mr Kaluza in his Notice of Appeal were specified by him in that document in the following terms:

Questions of law

1.    In determining whether there were some fact or facts which supported an hypothesis that Mr Kaluza suffered from war-caused alcohol abuse, did the Tribunal err by confining itself to a consideration of the medical evidence?

2.     In determining whether there were some fact or facts which supported an hypothesis that Mr Kaluza reacted to the coffin incident with intense fear, helplessness or horror, did the Tribunal err by having regard to the material as a whole?

Orders sought

1.    The decision of the Tribunal be set aside.

2.    The matter be remitted to the tribunal to be determined according to law.

3.    The Respondent pay the Respondent’s [sic] costs as agreed or taxed.

Grounds relied on

1.    One issue was whether Mr Kaluza suffered from war-caused alcohol abuse at the time of the clinical onset of generalised anxiety disorder or alcohol dependence or both. In respect of hypertension, an issue was whether Mr Kaluza had a war-caused consumption of alcohol that met the requirements of the applicable Statements of Principles, at the time of the clinical onset of hypertension. In determining whether there was some fact or facts pointing to the clinical onset of alcohol abuse, the Tribunal ignored relevant material and confined itself to the medical evidence. The Tribunal should have formed its own view, on all the evidence, about whether and when the clinical onset of alcohol abuse, as defined in the Statement of Principles, occurred.

2.    For alcohol abuse to be war-caused there had to be some fact or facts which supported an hypotheses [sic] that Mr Kaluza responded to the coffin incident with intense fear, helplessness or horror. The Tribunal dealt with this issue in respect of alcohol dependence but its finding was equally applicable to alcohol abuse. In making its finding, the Tribunal considered all the relevant evidence going to his response. The Tribunal should have confined itself to any fact or facts that supported the hypothesis.

18    In submissions before me, Counsel for Mr Kaluza said that the only issue in the appeal was whether there was a reasonable hypothesis linking operational service to the conditions that were found to exist. He said that one of the hypotheses proposed by Mr Kaluza before the Tribunal was that the coffin incident led to alcohol abuse which, in turn, could have led to the conditions found to exist (generalised anxiety disorder, alcohol dependence and hypertension). Both questions of law were said to raise the question whether the Tribunal misapplied s 120(3) of the VEA.

19    For the purposes of assessing a veteran’s entitlement to a pension under the VEA, the condition known as alcohol dependence and the condition known as alcohol abuse are regarded as separate and different conditions. It appears to be common ground that a veteran cannot be suffering from both conditions at the same time although he or she may suffer from alcohol abuse for a period of time and thereafter may suffer from alcohol dependence. According to the relevant criteria, a veteran cannot suffer from alcohol dependence and then subsequently suffer from alcohol abuse.

20    Before me, the Commission contended that neither of the so-called questions of law specified by Mr Kaluza in his Notice of Appeal filed in this Court was, in truth, a question of law. For that reason, the Commission contended that Mr Kaluza’s appeal in this Court was incompetent. On 22 October 2013, the Commission filed a Notice of Objection to Competency which raised these objections.

21    The Commission also submitted before me that Mr Kaluza’s case in the Tribunal had been run on the basis that, in the years immediately following 1969, Mr Kaluza had suffered from either alcohol dependence or alcohol abuse. Senior Counsel for the Commission submitted that it had been no part of Mr Kaluza’s case before the Tribunal that alcohol dependence and alcohol abuse were conditions which could both be suffered by Mr Kaluza at the same time. As I noted at [19] above, as a matter of principle, at any given point in time, he could suffer from only one of these conditions and not from the other. Senior Counsel submitted that Mr Kaluza’s primary contention before the Tribunal had been that he suffered from alcohol dependence although, as a fall back or alternative position, Mr Kaluza had also submitted that it was open to the Tribunal to find that he suffered from alcohol abuse.

22    In argument before me, Counsel for Mr Kaluza accepted that, in principle, Mr Kaluza could not suffer from both alcohol dependence and alcohol abuse at the same time. He also accepted that, in Kaluza No 3, the finding of the Tribunal was that, as at 2013, Mr Kaluza was suffering from alcohol dependence. Counsel agreed that that was the finding of the Tribunal and that that was the finding with which Mr Kaluza was obliged to live. Mr Kaluza did not challenge that finding in this proceeding.

23    However, Counsel for Mr Kaluza submitted that there was an available sub-hypothesis which had not been properly considered by the Tribunal viz that Mr Kaluza had suffered from alcohol abuse from the late 1960s or early 1970s and that that condition preceded his suffering alcohol dependence and his anxiety state or hypertension. Counsel submitted that it was open to the Tribunal to make a finding that Mr Kaluza had suffered alcohol abuse within two years of the February 1969 flight and that that condition had been war-caused. He submitted that a finding that alcohol abuse was war-caused would mean that Mr Kaluza may satisfy factors in the Statement of Principles (SoP) for alcohol dependence, anxiety disorder and hypertension, upon the basis that this was a sub-hypothesis.

24    Senior Counsel for the Commission answered these contentions by submitting that Mr Kaluza had not advanced a sub-hypothesis case of this kind before the Tribunal. Counsel for Mr Kaluza asserted that he had advanced such a case before the Tribunal.

25    In due course, it will be necessary for me to decide whether such a case was advanced before the Tribunal.

The Decision of the Tribunal in Kaluza No 3

26    The Tribunal which determined Kaluza No 3 was constituted by Ms N Bell, Senior Member, and Dr SH Toh.

27    After dealing with certain introductory matters, at [9] of its Reasons the Tribunal set out the issues which it proposed to address in the following terms:

ISSUES

The issues for us to consider are:

(i)     What was Mr Kaluza’s operational service?

(ii)     From what conditions does Mr Kaluza suffer?

(iii)     Are those conditions war caused?

28    The Tribunal dealt with Issue 1 (What was Mr Kaluza’s operational service?) at [10]–[26] of its Reasons for Decision. At [25]–[26], the Tribunal said:

We do not consider that the evidence and inferences urged on us are sufficient to satisfy us that on the balance of probabilities Mr Kaluza was on the flight on 14 February 1968. We find that they do not “do more than give rise to conflicting inferences of equal degrees of probability”. We find “that the choice between them is a matter of conjecture”. There is too much of a speculative nature. Nor are we satisfied that he was on the medical evacuation flight in January 1968 whose departure was delayed because of unserviceability.

Mr Kaluza also said he had operational service on a flight in February 1969 that he says transported a coffin and SAS soldiers from Butterworth to Pearce. There is now no dispute that he was on a flight to Vietnam on 21-24 February 1969 and that he had operational service for those days. Mr Kaluza relied on events on that flight in relation to his claimed psychiatric condition and his alcohol related condition.

29    As I have already mentioned, Mr Kaluza does not challenge the findings which the Tribunal made at [25]–[26] of its Reasons. For present purposes, therefore, it is common ground between Mr Kaluza and the Commission that Mr Kaluza undertook operational service during the period 21–24 February 1969 and that, on one of those days, the coffin incident occurred.

30    At [27]–[80], the Tribunal discussed and determined Issue 2 (From what conditions does Mr Kaluza suffer?).

31    At [27]–[33], the Tribunal said:

27    Through the course of these proceedings Mr Kaluza has raised as possible diagnoses post traumatic stress disorder, generalised anxiety disorder, anxiety disorder not otherwise specified, alcohol dependence and alcohol abuse. There is no dispute that he suffers from hypertension.

28    In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Court said:

While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.

29    We consider that this observation applies to all of the diagnoses urged on the Tribunal by Mr Kaluza at different stages in these proceedings. We must reach our conclusion as to the kind of disease(s) suffered by Mr Kaluza to the standard of reasonable satisfaction. In this regard we note the clear distinction drawn by the Full Court in Bawden between questions of diagnosis, all aspects of which are to be determined to the standard of reasonable satisfaction or on the balance of probabilities, and, on the other hand, questions of causation which are to be determined in accordance with the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. As the Full Court in Bawden said, that four step process is not concerned with the issue of whether the disease or injury occurred; rather, the question of diagnosis is governed by section 120(4) of the Veteran’s Entitlements Act 1986 which requires determination to the standard of reasonable satisfaction.

30    We also had regard to the Full Court’s judgment in Summers v Repatriation Commission [2012] FCAFC 104 in which the Court said that the question of whether Mr Summers had PTSD was “at least on its face, one of diagnosis involving expert medical opinion.” After extracting the definition of PTSD in clause 3 of the Statement of Principles concerning Post Traumatic Stress Disorder (SoP No. 5 of 2008), the Court said:

For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).

31    In addition, we had regard to the judgment of the Court in Repatriation Commission v Warren [2007] FCA 866 in which Kiefel J said:

The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be “those specified in DSM-IV, and are as follows”. The criteria are intended as part of the definition for the purpose of the application of the SoP.

The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.

32    We note that the above paragraphs of the judgment in Warren were quoted in full by the Full Court in Summers.

33    From these statements of the Court we take that we must:

•    Decide the question of what diseases or injuries are suffered by Mr Kaluza as a separate question that is a precondition to any entitlement to pension;

•    Determine all aspects of that question to the standard of reasonable satisfaction;

•    Determine the question by reference to evidence of clinical diagnosis by medical experts that have, in turn, had regard to the diagnostic criteria provided for the relevant disease by DSM-IV and which in the cases of PTSD and anxiety and alcohol related disorders have been adopted in the definition part of the relevant SoPs.

32    At [34]–[35], the Tribunal referred to the fact that Mr Kaluza had been allowed an adjournment in order to enable him to adduce further medical evidence in light of certain final submissions made by Senior Counsel for the Commission in her final address. Mr Kaluza availed himself of that opportunity and filed a report by Dr Dinnen and a further report by Dr Roberts. Mr Kaluza subsequently sought a further adjournment but this was refused.

33    At [36], the Tribunal noted that Mr Kaluza contended that he suffered from two broad sets of symptoms: Stress or anxiety related symptoms, on the one hand, and alcohol related symptoms, on the other hand.

34    At [37]–[65], the Tribunal discussed and drew conclusions about the psychiatric symptoms which Mr Kaluza contended were manifest in his case. At [37], the Tribunal noted that, over the years, Mr Kaluza had contended diagnoses of PTSD and other anxiety symptoms. At [38], the Tribunal noted that the various diagnoses made were helpfully summarised by Mr Kaluza’s Counsel in his Written Submissions. The Tribunal attached those Submissions as Appendix 1 to its Reasons for Decision.

35    At [39]–[53], the Tribunal referred to the medical evidence and submissions relied upon by Mr Kaluza in support of his contention that he suffers from PTSD caused by the coffin incident. After referring to that evidence, the Tribunal expressed its conclusions in relation to that matter in the following terms (at [51]–[53]):

51    In relation to the event experienced by Mr Kaluza [referring to the coffin incident], we note the view of the Full Federal Court in Bawden, citing the Full Court in Woodward v Repatriation Commission [2003] FCAFC 300, that a person need not experience or witness an event in order to be “confronted” by it; a person may be brought “face to face” with an event either physically or in the mind. Consequently, we are not concerned by Mr Kaluza’s not being present when the soldier in the coffin was killed or that he may have been mistaken about the soldier’s identity or the way in which he was killed or that he did not actually view the corpse. We are satisfied that he was confronted by a soldier’s death, although we understand from Dr Reinhardt that the aspect of his death that most disturbed him was the disrespect to the dead soldier in having a card game played on top of his coffin, an activity Mr Kaluza regarded as very disrespectful and inappropriate but with which he went along for reasons that are understandable in the circumstances.

52    However, we remain concerned as to whether Mr Kaluza responded to that confrontation with death with “intense fear, helplessness or horror” as required by the diagnostic criteria in DSM-IV, as reproduced in the SoP.

53    Various descriptors have been used by Mr Kaluza, his treating psychiatrist, Dr Reinhardt, and other examining psychiatrists to describe his response to the coffin incident. They include “stirred”, “funny”, “astounded”, “guilty”, “not amused” (as per Dr Koller in December, 2003), “helpless” (but not intensely so, according to Dr Reinhardt), “horrified”, and “very emotionally upset”. Mr Kaluza described his own “bravado” on the occasion. To our minds, this falls short of the required “intense fear, helplessness or horror” (our emphasis). We do not find that he responded to the event in the intense manner required by the diagnostic criteria. Consequently, we do not find Mr Kaluza’s experience of the card game on the coffin on the 1969 flight to have been a “traumatic event” within the meaning of the DSM-IV definition. It follows that we are not reasonably satisfied that he suffers from PTSD.

36    At [54] ff of its Reasons, the Tribunal turned to consider whether Mr Kaluza suffers from generalised anxiety disorder. At [65], the Tribunal recorded its conclusion that it was satisfied that Mr Kaluza suffers from generalised anxiety disorder.

37    At [66]–[79], the Tribunal considered whether Mr Kaluza suffers from alcohol dependence or alcohol abuse.

38    At [66], the Tribunal noted that, once again, Counsel for Mr Kaluza had helpfully summarised the evidence and reports relating to his alcohol related symptoms. Counsel’s Submissions were attached to the Tribunal’s Reasons as Appendix 2. In Appendix 2, Counsel referred in detail to the medical evidence before the Tribunal. That material included histories given to treating doctors from time to time by Mr Kaluza. Counsel also referred to other non-medical evidence relevant to Mr Kaluza’s condition caused by the abuse or over-consumption of alcohol.

39    At [67], the Tribunal summarised Mr Kaluza’s case in relation to alcohol dependence and alcohol abuse in the following terms:

It was submitted on Mr Kaluza’s behalf, first, that he suffers from alcohol dependence and, if not, that he suffers from alcohol abuse. It was also submitted that his condition fluctuated between the two at different times.

40    At [68], the Tribunal noted that the criteria for alcohol abuse make it clear that diagnoses of alcohol dependence and alcohol abuse must be exclusive of each other. The Tribunal said that, in particular, the diagnostic criteria for alcohol abuse require that the symptoms have never met the criteria for alcohol dependence.

41    At [70], the Tribunal noted that the medical evidence in relation to Mr Kaluza’s alcohol related condition (if any) was unhelpful. It said that no medical practitioner had provided a diagnosis that referred to specific signs by reference to the history taken and that expressly related those signs to specific diagnostic criteria.

42    At [71]–[73], the Tribunal referred to and summarised the evidence of Dr Roberts, Dr Reinhardt and Dr Dinnen relevant to Mr Kaluza’s alcohol related symptoms.

43    The Tribunal then looked at other reporting to ascertain whether the evidence elsewhere supported the presence of the relevant signs and features. At [74]–[79], the Tribunal said:

74    In the face of this medical opinion that does refer to particular diagnostic criteria, but makes only broad reference to history taken, we considered it permissible to look to other reporting to ascertain whether the evidence elsewhere supports the presence of these signs and features.

75    We note that Dr Reinhardt took a history of a need for increased amounts of alcohol, as did Dr Koller and Dr Dinnen in an earlier report of his. This satisfies us of the presence of tolerance as defined in the diagnostic criteria.

76    In October 1972, service medical records noted “LFT's show some mild liver damage probably secondary to [alcohol]”. In his report in February 2012, Dr Dinnen referred to Mr Kaluza’s persistent use of alcohol despite adverse physical effects, including the development of peripheral neuropathy which had improved during a period of abstinence from alcohol. In 2003, Dr Reinhardt referred to Mr Kaluza’s emerging cognitive problems. In 2005 Dr Wong, Occupational Physician, reported on Mr Kaluza’s neuro-psychological assessment and the indication that he suffers from cognitive impairment as a result of chronic alcohol abuse. Dr Wong also noted that, after a few months of abstinence, Mr Kaluza had resumed heavy drinking and was likely to continue to do so with the likely result that his cognitive impairment will be permanent. These reports satisfy us that Mr Kaluza engaged in continued alcohol use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.

77    We are satisfied of Mr Kaluza’s attempts to cease using alcohol. These attempts are evidenced by his variously reported periods of abstinence and his admissions to St John of God Hospital.

78    We are satisfied that Mr Kaluza suffers from alcohol dependence.

79    As mentioned above, it is a diagnostic criteria of alcohol abuse that “the symptoms have never met the criteria for alcohol dependence”. Consequently, it is unnecessary, and would be incorrect, for us to consider whether Mr Kaluza suffers from alcohol abuse.

44    The Tribunal then moved on to consider whether Mr Kaluza suffered from hypertension. At [80], the Tribunal recorded that there was no dispute that Mr Kaluza suffered from hypertension.

45    Having found that Mr Kaluza suffered from generalised anxiety disorder, alcohol dependence and hypertension, at [81] of its Reasons, the Tribunal commenced its consideration of Issue 3 (Are Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension war-caused?). In this section of its Reasons, the Tribunal did not consider whether any other of the claimed conditions were war-caused. The Tribunal confined itself to those conditions from which it found Mr Kaluza was in fact suffering.

46    At [81]–[82], the Tribunal set out, in general terms, the approach which it would adopt in considering Issue 3. In those paragraphs, the Tribunal said:

81    We must consider whether Mr Kaluza’s diagnosed conditions were caused by his operational service. In doing so we must apply the standard of reasonable hypothesis by identifying the applicable Statement of Principles (SoP), in this case SoPs No. 101 of 2007 concerning Anxiety Disorder (and, if unsuccessful, then SoP No. 1 of 2000); SoP No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse (and, if unsuccessful, then SoP No. 76 of 1998); and SoP No. 35 of 2003 concerning Hypertension. We must consider whether any hypotheses raised by the material before us conform with one of the factors in the relevant SoPs and, if so, whether that factor was related to Mr Kaluza’s operational service. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war caused.

82    In so doing we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.

47    At [83]–[114], the Tribunal dealt with the issue of whether Mr Kaluza’s generalised anxiety disorder was war-caused. At [114], the Tribunal concluded that there was no reasonable hypothesis of war-causation of Mr Kaluza’s generalised anxiety disorder.

48    The Tribunal began by setting out the relevant portions of cl 6 of SoP No 101 of 2007 which sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person’s relevant service. The Tribunal addressed each of those factors in turn.

49    At [90], the Tribunal recorded a submission made on behalf of Mr Kaluza to the effect that the Tribunal should conclude that the raised facts point to the onset of anxiety disorder in 1968 or 1969 or, alternatively, in 1972.

50    At [91]–[95], the Tribunal explained the approach which it intended to take to the question of the date of clinical onset of a disease. The Tribunal said:

91    This submission gave rise to further submissions on how the Tribunal should approach the question of the date of clinical onset of a disease.

92    We were directed by Counsel for the Commission to the judgments of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331, Repatriation Commission v Cornelius [2002] FCA 750, Repatriation Commission v Milenz [2006] FCA 1436, Repatriation Commission v Brady [2007] FCA 1087, Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408, Sloan v Repatriation Commission [2012] FCA 1079.

93    Counsel for Mr Kaluza relied on the Federal Court’s judgment in Onorato v Repatriation Commission [2011] FCA 1507 which we did not find helpful on the question of clinical onset.

94    Our reading of the above authorities is that, on questions of clinical onset, we must:

•    find material pointing to all of the symptoms of a condition which enable a clinician to conclude that a person suffers from the condition before it can be said that clinical onset is pointed to (Lees); and

•    approach clinical worsening (and, we consider, by extension, clinical onset) as a medical-scientific question and not a lay one; the question is a diagnostic one that addresses the features and symptoms of the condition as defined in the relevant SoP and requires that a clinical judgment be made (Milenz);

•    have evidence from a medical practitioner that takes into account the criteria prescribed for the relevant disease by the relevant SoP (Brady);

95    We also note that the Federal Court in Repatriation Commission v Gosewinkel [1999] FCA 1273, held that there cannot be clinical onset of a disease before the condition satisfies all of the requirements of the definition of the disease in the relevant SoP.

51    At [96]–[102], the Tribunal discussed the medical evidence relevant to the question of the clinical onset of Mr Kaluza’s generalised anxiety disorder.

52    In the context of discussing Dr Dinnen’s evidence, at [102] of its Reasons, the Tribunal said:

Similar deficiencies were apparent in relation to Dr Dinnen’s answers to similar questions in respect of the clinical onsets of alcohol dependence and alcohol abuse, one or other of which we were also urged to hypothesise had its clinical onset at a time that conforms to factor 6(a)(vi) [which specified as a factor having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder].

53    At [103]–[104], the Tribunal said:

103    It follows that we are unable to find that the material before us points to Mr Kaluza having had a clinically significant psychiatric condition within the ten years before the clinical onset of generalised anxiety disorder.

104    In addition, we found no material pointing to the clinical worsening of Mr Kaluza’s generalised anxiety disorder and no material pointing to the time of clinical worsening.

54    At [105], the Tribunal then moved to consider SoP No 1 of 2000. The Tribunal extracted cl 5(a)(ii) from that SoP which provided that one of the factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person’s relevant service was experiencing a severe psychological stressor within the two years immediately before the clinical onset of anxiety disorder.

55    At [106], the Tribunal concluded that the same difficulties which it had noted at [103]–[104] of its Reasons obtained in respect of the factor specified in cl 5(a)(ii) of SoP No 1 of 2000.

56    At [110]–[114], the Tribunal explained why, even if it was wrong in relation to clinical onset and in relation to whether the material before it pointed to a diagnosis of anxiety disorder not otherwise specified, it did not consider that the material pointed to Mr Kaluza having experienced a severe psychological stressor on operational service. The Tribunal said:

110    … In SoP No. 1 of 2000 “severe psychosocial stressor” is defined as:

[A]n identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems

111    There is no material pointing to Mr Kaluza having been shot at, to the death or serious injury of a close friend or relative, to assault, major illness or injury or to the losses or problems described. We do not consider that the factor requires those specific occurrences, or that the list is exhaustive, but they are an indication of the type of occurrence that is intended by the definition.

112    The sole occurrence that can be relied on by Mr Kaluza is the incident of the card game on the coffin. We do not accept that the incident of the card game is comparable to the occurrences listed in the definition. We accept that the material points to his having experienced distress on the occurrence but the range of descriptors of that distress contained in the material before us and discussed above does not point to the type or degree of subjective distress set out in the definition.

113    As to the factors urged by Counsel for Mr Kaluza that involve clinical worsening of his generalised anxiety disorder, we do not find that the material points to the clinical worsening of the condition or to the time of any such clinical worsening, that time being an essential element of the factors.

114    For these reasons, we consider there is no reasonable hypothesis of war causation of Mr Kaluza’s generalised anxiety disorder.

57    At [115]–[124], the Tribunal addressed the question of whether Mr Kaluza’s alcohol dependence was war-caused.

58    At [115], the Tribunal extracted the relevant portion of cl 6 of SoP No 1 of 2009. Relevantly, a factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service was:

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

…

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

59    The Tribunal rejected Mr Kaluza’s arguments in this regard. At [116]–[117], the Tribunal said:

116    Counsel for Mr Kaluza stated, in his outline of submissions, his reliance on factors 6(a) and (c) of this SoP. Factor 6(a) is attended by the same problems in relation to clinical onset as are described above in relation to all of the Axis 1 disorders contended by Mr Kaluza. In his report of October 2012, Dr Dinnen does refer to the diagnostic criteria for alcohol dependence, but gives his opinion only about the clinical onset of alcohol abuse – without reference to the diagnostic criteria for that disease. We cannot find material pointing to conformity with this factor.

117    Nor is there conformity with factor 6(c) because we have found that the material does not point to Mr Kaluza having experienced a category 1B stressor. We reached the same conclusion in relation to a category 1A stressor and for that reason nor is there conformity with factor 6(b).

60    It then addressed cl 5 of SoP No 76 of 1998. Factor 5(b) was described as “ experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. “Experiencing a severe stressor” was defined in the SoP as:

[T]he person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.

61    In that context, at [122], the Tribunal said:

We are mindful that, here, as in all considerations of causation, we are not engaged in fact finding. We must only consider whether the material before us points to the elements of the factor. We consider that the material does point to Mr Kaluza having been confronted with an event (the card game on the coffin) that involved actual death. However, we do not consider that the material points to the event being one which might evoke intense fear, helplessness or horror. The material points to the event having been a card game played on the coffin of a man whom Mr Kaluza mistakenly thought was someone who had been shot by the SAS. He was asked to join the game and did so. The descriptors of Mr Kaluza’s response to the event that feature in the material before us do not point to an evocation of intense fear, helplessness or horror or to the possibility (in the sense of “might”) that he or another man with his knowledge and experience might have that intensity of response. Coffins are not an uncommon sight in everyday life. Mr Kaluza’s evidence at its highest was that he was “horrified”. We do not consider that being “horrified” equates to having a reaction of “intense horror”. Other evidence he has given and histories he has given to medical experts sets his reaction at a significantly lower level of intensity. We are reminded of Dr Reinhardt’s evidence that “his main preoccupation was with feeling guilty and ashamed at being so disrespectful to a fellow serviceman” (transcript p. 34). We do not find that the material as a whole points to the event having amounted to one that might evoke intense fear, helplessness or horror.

62    The findings in respect of Mr Kaluza’s reaction to the coffin incident which the Tribunal set out at [122] of its Reasons were all findings of fact.

63    At [123]–[124], the Tribunal expressed its conclusions in respect of the question of whether Mr Kaluza’s alcohol dependence was war-caused. The Tribunal said:

123    We also note that the same difficulties with date of clinical onset arise in relation to this factor.

124    For these reasons, we consider there is no reasonable hypothesis of war causation of Mr Kaluza’s alcohol dependence.

64    At [125]–[133], the Tribunal addressed the question of whether Mr Kaluza’s hypertension was war-caused. At [133], the Tribunal noted that it had already concluded that none of the anxiety disorders hypotheses raised by Mr Kaluza conformed to the relevant SoPs. It then said:

… It follows that the hypothesis as to hypertension does not conform to factor 5(n) because any anxiety disorder relied on by Mr Kaluza, as a link in a chain of hypotheses, must itself be war caused.

65    At [134], the Tribunal said that, if its analysis of the reasonableness of Mr Kaluza’s hypertension hypothesis was wrong, then it considered that the hypothesis, even if reasonable, was disproved beyond reasonable doubt.

66    At [135], the Tribunal recorded its conclusion that any alcohol dependence relied upon by Mr Kaluza as a link in his hypertension hypothesis must itself be war-caused and that the Tribunal had concluded that alcohol dependence was not war-caused.

67    At [139], the Tribunal recorded its ultimate conclusions in the following terms:

The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.

Consideration

The Tribunal’s Task

68    In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take in respect of Mr Kaluza’s case as it was then known. In principle, the explanation of that task given by the Full Court applied to the way in which the Tribunal in Kaluza No 3 was obliged to carry out its task. The Full Court said:

Mr Kaluza’s key conditions pertinent to this appeal are anxiety disorder and alcohol abuse. As he contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows (adopting largely the submissions for Mr Kaluza):

1    The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCATrans 303)).

2    If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the Veterans’ Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the Veterans’ Act as qualified by s 120(3) and s 120A (Budworth (at [19])).

3    In applying ss 120(1), 120(3) and 120A of the Veterans’ Act, the Tribunal was to consider all the material and determine whether:

(i)    it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and

(ii)    that hypothesis can be regarded as reasonable, if the “raised facts” are true.

(Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).

4    If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCATrans 302)).

5    If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is ‘upheld’ by the SoP in the sense of being ‘consistent with the “template” to be found in the SoP’ (Deledio step three (at 97G)).

6    If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.

69    In Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio), at 83–85, the Full Court explained the legislative scheme embodied in s 120 and s 120A of the VEA. At 97–98, the Full Court set out a description of the approach which the Tribunal should take in cases such as the present. The Full Court said:

At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:

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

2    If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3    If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

70    The passage which I have extracted at [69] above has been referred to in subsequent cases as Steps 1–4 in Deledio.

Competency of the Application

71    The Commission submitted that Mr Kaluza’s current application is incompetent because it raises no question of law within the meaning of s 44(1) of the AAT Act.

72    The Court’s jurisdiction is enlivened only by the existence of a question of law. For that reason, the question or questions of law posed by the applicant must be articulated with precision (see Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247 at 250 [13], and the cases cited therein, per Lander and Foster JJ; and Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260 at [58] per Katzmann J).

73    In Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 59–60 [13]–[16], Branson and Stone JJ said:

13    In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:

I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal “grounds” which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state “briefly, but specifically, the grounds relied upon in support of the appeal”. The distinction is recognised by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only “the grounds relied upon in support of the order sought”. In the present case the order sought is that “the Decision of the Tribunal be set aside”. Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.

14    His Honour went on (at 524) to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.

15    Further, his Honour expressed the view that (at 527):

… it simply begs the question of law to commence it with the words “Whether the Tribunal erred in law.” If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.

16    We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.

74    In Repatriation Commission v Bawden (2012) 206 FCR 296 at 307–308 [51], the Full Court said:

As to the issues raised by Mr Bawden’s notice of contention, to the extent that diagnosis involves a clinical judgment, there was opinion evidence before the Tribunal from Dr White and Dr Been to the effect that Mr Bawden suffered from PTSD associated with the sampan incident. As Dr White acknowledged in his evidence, his diagnosis of PTSD was dependent on accepting that the sampan incident was a traumatic incident. The Tribunal was not disposed to accept that the sampan incident was of that character. That decision was a decision on a matter of fact. As noted above, the appeal from the Tribunal lies “on a question of law”. Where a choice falls to be made between two conclusions open on a consideration of the facts, the question is one of fact. See Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 2012 ATC 20-359 at [39].

75    I now turn to deal with the competency of the appeal. I intend to apply the principles referred to at [72]–[74] above when considering the Commission’s objections to competency.

76    The first question of law posed by Mr Kaluza depends upon the Court being satisfied that, in determining whether there were some fact or facts which supported an hypothesis that Mr Kaluza suffered from war-caused alcohol abuse, the Tribunal confined itself to a consideration of the medical evidence. Whether the Court should be so satisfied is a question of fact. If the Tribunal did not confine itself to the medical evidence, the first question of law posed by Mr Kaluza would be moot. If the Tribunal was not required to consider the connection between Mr Kaluza’s claimed alcohol abuse and his operational service, the first question of law would be moot for that reason.

77    Further, provided that there was some evidence before the Tribunal that supported its conclusions concerning the raised facts which were required to be considered in respect of the hypotheses brought forward on behalf of Mr Kaluza in respect of his alleged war-caused diseases, it was a matter for the Tribunal to determine which fact or facts it considered had been appropriately raised for that purpose in accordance with the correct approach to the task with which it was charged as outlined in Kaluza v Repatriation Commission (2011) 280 ALR 621 and in Deledio.

78    It was accepted by both parties before the Tribunal and also before me that, for the purposes of applying the relevant statutory provisions and the relevant SoPs, a veteran cannot suffer from both alcohol abuse and alcohol dependence at the same time. In addition, according to the relevant criteria, although a veteran might suffer from alcohol abuse and then subsequently suffer from alcohol dependence, a veteran cannot suffer from alcohol dependence and then subsequently suffer from alcohol abuse.

79    The first question of law posed by Mr Kaluza assumes that, when considering the question of the connection between Mr Kaluza’s conditions of disease or injury and his operational service, the Tribunal was required to consider hypotheses which related to the disease of alcohol abuse. But the Tribunal found that, at all times relevant to his claim for a pension at the higher rate, Mr Kaluza was suffering from alcohol dependence. It made no specific finding as to whether he had ever suffered from alcohol abuse. The Tribunal was required to assess whether the condition of alcohol dependence (and only that condition) was war-caused. In the circumstances, Mr Kaluza was required to bring forward hypotheses which addressed that condition and that condition only. The fact that the Tribunal regarded alcohol dependence and alcohol abuse as alternative cases propounded by Mr Kaluza was the direct result of the way in which Mr Kaluza ran his case before the Tribunal.

80    The Tribunal considered the case which Mr Kaluza had advanced before it was that he was suffering either from alcohol dependence or alcohol abuse (but not both) and that, whichever was the correct diagnosis, the condition was war-caused. Mr Kaluza ran a case before the Tribunal which gave primacy to the proposition that he was suffering from alcohol dependence. His case that he was suffering from alcohol abuse was put as an alternative to the primary case relied upon by him viz that he was suffering from alcohol dependence.

81    After the hearing before me had concluded, Mr Kaluza’s lawyers made available to me certain extracts from the Submissions made by his Counsel before the Tribunal. The Commission then forwarded a complete copy of both parties’ Written Submissions made to the Tribunal.

82    I have carefully considered those submissions.

83    There is no doubt that, before the Tribunal, Mr Kaluza submitted that he suffered from alcohol abuse from the late 1960s which then evolved into alcohol dependence over time. He also submitted that the alcohol abuse constituted a psychiatric disorder at the time of the clinical onset of alcohol dependence and that either his alcohol dependence or alcohol abuse contributed to the onset or aggravation of his anxiety state. However, those submissions were made in circumstances where Mr Kaluza’s primary case before the Tribunal was that, at the time he made his pension claim in 2003 and at all times subsequently, he was suffering from alcohol dependence. They were not advanced as part of a case based upon one or more sub-hypotheses.

84    Even if the submissions to which I have referred at [83] above amounted to the raising of a sub-hypothesis for the purposes of the correct application of s 120 of the VEA in the present case, the questions raised are all questions of fact. Mr Kaluza did not argue that there was no evidence to support the approach which the Tribunal took in respect of those facts which were raised for the purposes of the hypotheses relied upon by Mr Kaluza.

85    For all of the above reasons, I do not think that question 1 raises any question of law.

86    The second question of law does no more than raise a quarrel with how the Tribunal considered material favourable to Mr Kaluza when undertaking the task required of it by Steps 1–4 of Deledio. Mr Kaluza endeavoured to frame the second question in such a way as to characterise the question as one involving a failure on the part of the Tribunal to answer the question required to be answered by the VEA. I have serious reservations as to whether the second question of law raised by Mr Kaluza is, in fact, a question of law. However, for present purposes, I propose to assume that the second question of law raised by him is, in fact, a question of law.

87    Notwithstanding its contention that Mr Kaluza’s appeal is incompetent, the Commission addressed detailed submissions to each of the questions of law raised by Mr Kaluza.

88    Against the possibility that I may be wrong in the conclusion which I have reached in relation to the first question of law raised by Mr Kaluza and in deference to the detailed submissions addressed by the parties to the questions of law raised by him, I now turn to address those questions of law upon the basis that Mr Kaluza’s appeal is competent.

The First Question of Law

89    The applicant submitted that, before the Tribunal, he had relied upon an hypothesis that the coffin incident had led to alcohol abuse on his part within two years of the flight (ie by no later than February 1971). The applicant then submitted that a finding that alcohol abuse was war-caused would mean that Mr Kaluza may satisfy factors in the SoPs for alcohol dependence, generalised anxiety disorder and hypertension that meant that those conditions were also war-caused.

90    After referring to the relevant SoPs and the definitions of experiencing a severe stressor and alcohol abuse, Counsel for Mr Kaluza submitted that, in order to satisfy the relevant SoP, there had to be some fact or facts that supported the hypothesis that:

(a)    Mr Kaluza experienced a severe stressor on the February 1969 flight; and

(b)    Clinical onset of alcohol abuse occurred within two years of that experience.

91    Counsel for Mr Kaluza then made detailed submissions in support of the proposition that the two elements described at [90(a)] and [90(b)] above were raised facts before the Tribunal. In particular, it was submitted on behalf of Mr Kaluza that the evidence of Mr Kaluza himself and the statement of Mr Young (a witness called in Mr Kaluza’s case) supported Dr Dinnen’s hypothesis of a diagnosis of alcohol abuse from 1969–1970 in that that evidence pointed to Mr Kaluza having a maladaptive pattern of alcohol use that led to a failure to fulfil major role obligations at work and recurrent social problems.

92    Counsel for Mr Kaluza submitted that the Tribunal had effectively ignored the evidence of Mr Kaluza and Mr Young and relied entirely upon the evidence of Dr Dinnen. It was then submitted that the Tribunal erred by confining itself to the medical evidence and by not having regard to the evidence as a whole when determining whether there were some facts which supported an hypothesis that the clinical onset of alcohol abuse occurred within two years of Mr Kaluza experiencing a severe stressor in February 1969.

93    Senior Counsel for the Commission submitted that the Tribunal had made no finding that Mr Kaluza was suffering from alcohol abuse. She then submitted that, for that reason, no issue arose in relation to whether alcohol abuse was war-caused or whether the raised facts satisfied SoP No 76 of 1998 concerning the Psychoactive Substance Abuse or Dependence template with respect to alcohol abuse. Senior Counsel argued that questions which were directed to whether that template was met with respect to raised facts pointing to the clinical onset within two years of the coffin incident did not arise at all before the Tribunal and thus could not arise as a question of law before the Court. It was submitted that the point is moot.

94    I think that the point is moot for the reasons submitted on behalf of the Commission. The first question of law does not arise.

95    Senior Counsel went on to make further submissions for the consideration of the Court in the event that the Court took the view that the point was not moot. She submitted that the Tribunal made no error in its consideration of the hypotheses advanced by Mr Kaluza in relation to alcohol dependence and alcohol abuse. In particular, the following submissions were made at pars 73–79 of the Written Submissions filed on behalf of the Commission:

73     The Commission submits that this ground of appeal discloses no error on the part of the Tribunal.

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

75     Secondly, it is well accepted that the clinical onset of such a condition is a diagnostic issue requiring medical opinion. Reliance on medical evidence is consistent with the approach discussed in Repatriation Commission v Robertson [2007] FCA 1674 at [43] Repatriation Commission v Cornelius [2002] FCA 750 at [28], Lees v Repatriation Commission (supra), Repatriation Commission v Milenz (2006) AAR 565 at [34] Repatriation Commission v Brady [2007] FCA 1087 at [36].

76     In Repatriation Commission v Warren (supra) at [23] Kiefel J referred to Repatriation Commission v Codd (supra) at [48] and Repatriation Commission v Gosewinckel (supra) at [55]. Her Honour observed that it may be expected that this Tribunal will act upon medical opinion as to the diagnosis of a condition.

77     Thirdly, in his submissions before the Tribunal the Applicant relied on the medical evidence. He submitted to the Tribunal that the ‘alcohol hypothesis’ and the date of clinical onset was supported by Dr Dinnen’s evidence.

78     Fourthly, the Applicant does not identify any evidence which displaced the medical evidence or rendered the evidence irrelevant. The Commission refers to the Tribunal's reasons at AB Part A, Tab 2 [66], [70]-[78] and [115]-[124].

79     Finally, a fair reading of the Tribunal’s reasons reveals that the Tribunal did not consider it was ‘confined’ to the medical evidence but rather understood that issue of clinical onset was an issue to be informed by the medical evidence because it was relevant to the diagnostic criteria for the disease.

96    These submissions are correct and I accept them.

97    Accordingly, for all of the above reasons, even if question 1 raises a question of law which is relevant to the disposition of Mr Kaluza’s case and is not moot, I am of the view that the Commission made no error of the kind alleged against it.

The Second Question of Law

98    Counsel for Mr Kaluza submitted that, when the Tribunal came to consider the coffin incident, it reviewed a range of material and concluded that the material as a whole did not point to the relevant response being felt by Mr Kaluza. He then submitted that the Tribunal erred by reviewing all the material before it for this purpose. Counsel went on to argue that, when the Tribunal came to consider the coffin incident, it was required to determine whether the material before it pointed to some fact or facts which supported the hypothesis that Mr Kaluza had experienced a severe stressor. He said that the Tribunal had found that the hypothesis pointed to Mr Kaluza being confronted with an event that involved actual death. It was then submitted that the Tribunal erred by having regard to the material as a whole and by not considering whether there was any material (ie any fact or facts) that pointed to the hypothesis that the event evoked intense fear, helplessness or horror in Mr Kaluza. Counsel placed reliance upon Constable v Repatriation Commission [2005] FCA 928 (per Dowsett J at first instance) and Repatriation Commission v Constable (2006) 151 FCR 391 (Constable) at 401 [39] (per the Full Court).

99    After referring to the relevant SoP and the definition of experiencing a severe stressor, the Commission pointed to [122] of the Tribunal’s Reasons and submitted that the Tribunal had identified all of the relevant material before it. Senior Counsel for the Commission then submitted that, when the Tribunal concluded [122] of its Reasons by saying “We do not find that the material as a whole points to the event having amounted to one that might evoke intense fear, helplessness or horror”, it is clear that the Tribunal had in mind the totality of Mr Kaluza’s evidence taken at its highest. By that reference, so it was submitted, the Tribunal intended to encompass all matters relevant to the question of whether the material before it raised facts which supported an hypothesis which shifted the onus of proof to the Commission in accordance with s 120 and s 120A of the VEA. Senior Counsel for the Commission emphasised that all of the matters identified by the Tribunal at [122] of its Reasons were favourable to Mr Kaluza and focussed on his subjective response, consistent with the principles articulated by the Full Court in Constable (2006) 151 FCR 391. It was submitted that the reference by the Tribunal to “material as a whole” was not a reference to adverse material weighing against Mr Kaluza. It was said that the approach taken by the Tribunal was consistent with Deledio (Step 1).

100    On a fair reading of the Tribunal’s Reasons for Decision as a whole, I do not think that the Tribunal failed to apply the reasoning of the Full Court in Kaluza v Repatriation Commission or the reasoning of the Full Court in Deledio. In particular, at [81]–[82] and again at [122], the Tribunal spelt out the approach which it was adopting to the question of causation posed by s 120(1) and s 120A of the VEA. The Tribunal’s description of the approach which it intended to adopt and which it did, in fact, adopt to that question is entirely consistent with the decisions in Kaluza v Repatriation Commission and Deledio.

101    The submissions made on behalf of the Commission which I have summarised at [99] above are correct and I accept them. It follows that, even if Question 2 raises an appropriate question of law, the Tribunal did not err in the manner alleged by Mr Kaluza.

Conclusions

102    I have held:

(a)    The first question of law posed by Mr Kaluza is not a question of law;

(b)    Even if the first question of law posed by Mr Kaluza is a question of law, it does not arise in the present case;

(c)    Even if the first question of law posed by Mr Kaluza is a question of law and does arise in the present case, the Tribunal did not err in the manner alleged in the first question of law; and

(d)    The Tribunal did not err as alleged in the second question of law (assuming that it is a question of law).

103    For those reasons, Mr Kaluza’s Application must be dismissed with costs.

Associate:

Dated:    23 October 2014