FEDERAL COURT OF AUSTRALIA

Linwood v Repatriation Commission [2016] FCA 90

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s objection to competency is dismissed.

2.    The appeal is allowed.

3.    The decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 September 2015 is set aside.

4.    The matter is remitted to the Tribunal for further hearing and determination according to law.

5.    The respondent pay the applicant’s travel expenses related to the applicant’s appearance at court which are fixed in the sum of $60.00 for return rail travel and car travel.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Mr Mark Linwood (Mr Linwood) served between 1987 and 1997 in that part of the Australian Army known as the Regular Army. Initially, he rendered that service as a member of the Royal Australian Infantry Corps. In 1990, he corps-transferred, rendering the balance of his service in Royal Australian Survey Corps units (absorbed in 1996 into the Royal Australian Engineers).

2    In December 2012, Mr Linwood applied for a disability pension under Part IV of the Veterans’ Entitlements Act 1996 (Cth) (the Act). For this purpose, he sought the acceptance by the Repatriation Commission (the Commission) that he was incapacitated by a number of injuries which he alleged were defence-caused. For present purposes, it is only necessary to mention one of these, “depressive disorder”.

3    On 23 May 2013, a delegate of the Commission within the Department of Veterans’ Affairs (the Department) determined, materially, that the depressive disorder was not related to Mr Linwood’s military service. That decision was affirmed by the Veterans’ Review Board (VRB) on 12 February 2014. Mr Linwood then sought the review by the Administrative Appeals Tribunal (the Tribunal) of the Commission’s decision as affirmed by the VRB. On 11 September 2015, for reasons published in writing that day, the Tribunal decided to affirm the decision under review.

4    Mr Linwood has now sought to appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against the Tribunal’s decision. He appeared on his own behalf.

5    Such an appeal only lies on a question of law. The existence of a question of law goes to jurisdiction: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175. Drawing a distinction between a question of law and one of fact when conferring a right of appeal has about it a superficially attractive simplicity as a means of preventing re-agitation on the merits of factual controversies but in practice the boundary between the two can be elusive. Determining what amounts to a question of law was an enduringly controversial subject even prior to the enactment of s 44 of the AAT Act. Its jurisdictional feature in respect of a s 44 appeal has meant that this has not infrequently and then unavoidably proved to be so in this Court in such cases.

6    Recently, in Haritos v Commissioner of Taxation (2015) 233 FCR 315 (Haritos) (Special Leave refused, 11 December 2015, Haritos v Commissioner of Taxation [2015] HCATrans 337), the Full Court sought at least to limit the scope for controversy on that subject in appeals of the present kind. In other jurisdictions, the parliament has done so by, for example, allowing that an additional basis for an appeal as of right is on a “question of mixed fact and law”: see, for example, s 14(1)(b) of the Supreme Court Act 1975 (PNG). Be this as it may, Haritos, at [62], affirms that, “any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction … but to the exercise of that jurisdiction” and that “whether or not the notice of appeal is on a question of law is to be approached as a matter of substance rather than form”.

7    Mr Linwood’s notice of appeal specifies many alleged questions of law:

Questions of law

1.    Psychological evaluation five years prior to the applicants acceptance into the Army in 1987 (p37), would it be an assumption that the condition was still relevant as there is no mention or reference to this condition in the successful application in 1987 (p79)?

2.    Should the psychological evaluation be admissible, given the time frame of 5 years and the fact the applicant was accepted 100% fit, both physically and psychologically in 1987? There are also references in early training assessments of being a 'mature soldier' , should this also negate the prior evaluation in 1982 (p37) as well as, confirming authorities comments 'class 1 fit for enlistment on (p79).

3.    It is shown within evidence that there were very severe assaults that occurred while in the battalion, after all training was completed. Could it be more likely that these assaults were a major contributing factor to the psychological conditions? Rather than coming to a conclusion with an unsupported reference to a condition in 1982 (p37)?

Clinical onset of depressive disorder, the statement of principles defines a severe psychological stressor is an identifiable occurrence that evokes feelings of substantial distress in an individual. Assault (including sexual assault) is defined as one of the major stressors.

4.    Could it be assessed and reasonably accepted then that there was no such condition on enlistment and that the assaults perpetrated on the applicant are the main or only reasons for his psychological conditions then and throughout the applicant's life within the Service?

5.    Could it also be considered that after these assaults, and the severity of these assaults, the applicant could have had flashbacks, evoking substantial distress when conflict or discipline was imminent or occurring? And, therefore stressors would be occurring during these situations, as well as, all through the remaining time in the military. These stressors could reoccur regularly but be unnoticed, unseen or undiagnosed by medical staff?

6.    Could it also be reasonably accepted or assessed that the feelings of isolation was forced on the applicant through the assaults and bullying, and because of the personal and professional circumstances surrounding the applicant in his situation in the battalion. And not pre-existing as it is being claimed?

7.    Could it be assessed in 1992 that the 'transient situational disturbance' referred to on (p68) is also a symptom, or a consequence of, and related to the assaults through the period of 1987-89? Page 68 states further,

He has been socially isolated in Adelaide, withdrawn and alcohol dependant on relieving stress, predictably since his charge and debt. He is depressed and demoralized. Feels unable to face being with friends because of this social isolation.

8.    Could this situation be considered a consequence, or a direct relationship to the treatment (assaults, bullying) handed out during the period 1987-89 in the Battalion?

9.    In regards to 'No Sequelae' (p67), is this diagnosis by an Army Medical Officer (AMO) a qualified diagnosis?

10.    Is an AMO qualified to diagnose a No Sequelae? Could the right conclusion, without a psychiatrist report or qualified assessment from a psychiatrist, be attained by an A MO?

11.    Can an AMO make an informed and proper diagnosis, or should the applicant have been sent to a psychiatrist before the assessment of No Sequelae could be related or diagnosed?

Sequelae (plural), is a pathological condition resulting from a disease, injury, or other trauma. Typically, a sequela (singular) is, in medical language, a chronic condition that is a complication of an acute condition that begins during that acute condition. In ordinary language it may be described as a further condition that is different from, but a consequence of, the first condition. In timing a sequela contrasts with a late effect, where there is a period, sometimes as long as several decades, between the resolution of the initial condition and the appearance of the late effect.

12.    With a definition, can it be more relevant that it is more the responsibility of a psychiatrist to refer to 'No sequelae' in reference to such a severe condition than an AMO?

13.    And, did this decision stop any further help that would be required and needed for treatment and a full and proper recovery after the many severe assaults?

14.    It seems that many documents have been dismissed or deemed irrelevant. These documents relate to psychological conditions at work with medications causing stress and sickness. All these difficulties encountered in relation to the last few months in service, as an example, (p106 dated 28/04/1997)?

Other examples:

(p116 dated 06/03/1997) shows many symptoms that can be associated with stressors.

(p117 dated Aug 93) prolonged depression is noted.

(p121) relates to side effect of medication.

(p127 dated 11/01/1997) 'Schizophrenic form psychosis' 'major depression/reactive depression

(p136 dated 09/07/1996) 'Acute severe depression requiring counselling and medication'

Documents relating to Dr Chalk:

(p96 dated 5/8/ 1997), (p97 dated 3/7/1997), (p102 dated 1nt1997), (p104 dated 28/5/1997) (p105 dated 10/6/1997), (p99 dated 18/8/1997), (p107 no date), (p112 dated 25/3/1997) (p115 dated 7/3/1997), (p124 dated 7/2/1997), (p125 dated 21/2/1997), (page126 dated 28/2/1997).

Does dismissing or deeming irrelevant these medical reports, psychiatric reports from Dr Chalk and medical staff, give a true, accurate and full diagnosis through proceeding? Or could these reports show the relevant detail needed to asses all conditions properly, during the period the applicant was under the care of Dr Chalk and medical staff?

15.    Does relying on a report from Dr Leonard Marinovich date 19 November 1996 (p45) identify the real reasons for the depressive disorder and ultimately discharge? Or, could circumstances before and after Dr Marinovich report relate more to the applicants conditions? Also, should the more recent information, diagnosis and treatment, regarding the applicant's psychological condition, with the proper and the latest conclusions, be sought through reports from Dr Chalk and Dr Jenkins?

16.    Dr Chalk was the follow up practicing Psychiatrist diagnosing and treating the applicant after Dr Marinovich for the depressive disorder. Therefore, would it be more appropriate that Dr Chalk's diagnosis and treatment be relied upon more so, until discharge took effect in September 1997?

17.    During all of the hearings, why is it, none of Dr Chalk's reports or diagnosis are referenced or referred to? There are many Unreadable medical documents that most likely are indicating medications , diagnosis and references to psychiatric condition both daily and long term, that could indicate stressors and if they occurred within the required time frame?

18.    Should Dr Chalk's, who had input and was advising during the final medical board on discharge, have his diagnosis referenced as more relevant during considerations?

Documents relating to Dr Chalk:

(p96 dated 5/8/1997), (p97 dated 3/7/1997), (p102 dated 1/7/1997), (p104 dated 28/5/1997), (p105 dated 10/6/1997), (p99 dated 18/8/1997), (p107 no date), (p112 dated 25/3/ 1997), (p115 dated 7/3/1997), (p124 dated 7/2/1997), (p125 dated 21/2/1997), (page126 dated 28/2/1997)

19.    Should the more recent reports and diagnosis from Dr Jenkins referring to the current conditions of the applicant not be dismissed, as it seems they have, or should they be given further consideration for an accurate assessment of the condition of the applicant?

20.    Should consideration also be given more to the similarities of the recent diagnosis by Dr Jenkins and the diagnosis given during and throughout the applicant's service?

21.    Should further remarks stated in the final report from the medical board also be referenced? Such as, the disabilities were not present before service. And, that there is no evidence that any of the disabilities were concealed on entry into the service.

22.    Could it also be considered that Dr Chalk was involved with the final medical boards report and that this was his diagnosis? Dr Chalk was the applicant's psychiatrist during this period. So should he be considered the most likely input during the final medical board?

23.    Whether, on the evidence before the Tribunal, the Tribunal’s finding at paragraph [21] of the decision that there was insufficient evidence to be satisfied that the Applicant experienced a category two stressor connected with his workplace in the six months before 1996 or 1992 was manifestly unreasonable.

8    As originally filed, the notice of appeal contained only questions one (1) to twenty-two (22). That moved the Commission to object to the competency of the appeal. Had the notice of appeal remained in that form, there would, even after Haritos, have been substance in this objection. For those 22 questions do nothing more than specify a series of factually argumentative propositions each soliciting, impermissibly, a review on the merits. They are not questions of law.

9    The objection having been taken and in the course of the interlocutory case management of the appeal, it was suggested to Mr Linwood that he might benefit from a consultation with the Queensland Public Interest Law Clearing House. Thereafter, he came to foreshadow that he would seek, on the hearing of the appeal, an amendment to the notice of appeal so as to add question 23. This he did. That amendment was not opposed by the Commission. I gave leave at the hearing for the notice of appeal to be amended so as to add question 23.

10    That amendment having been permitted, and on reflection during the course of the hearing, the Commission came not to press its objection to competency. That was the correct course in law to take. Question 23 does specify a question of law. If, in a s 44 proceeding, the notice of appeal specifies at least one question which is a question of law, the Court’s jurisdiction will have been invoked validly, even if each and every other specified question is not one of law: Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352; Cocoa Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221. The objection to competency must now, consequentially, be dismissed.

11    It is only necessary to answer question 23. Entailed in answering that question is whether, having regard to the Tribunal’s role as an administrative review forum not bound by the rules of evidence, the issues which arose in this case and the material before it there was not sufficient evidence before the Tribunal for it, without error of law, to set aside the Commission’s decision as affirmed by the VRB. Or was the case before the Tribunal merely one within what has come to be termed a “zone of discretion” in relation to the finding of facts? That term was adopted by the Full Court in Haritos at [201], by reference to pertinent High Court authority, in observations which are apposite and salutary:

As Brennan J said in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36:

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The merits, in our view, are the zone of discretion to which Gleeson CJ, Gummow, Kirby and Hayne JJ referred in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [43]. It may, however, be the case that in exercising its jurisdiction under s 44 of the AAT Act the Court has to consider how the Tribunal has gone about its fact finding and the choices that it has made in order for the Court to assess, in deciding a question or questions of law, whether the Tribunal has stayed within the zone of discretion. For this purpose the Court does not consider whether the Tribunal should have made a particular finding of fact but whether it may lawfully have done so.

12    Answering question 23 requires some elaboration of the Tribunal’s reasons. Those reasons must not be read critically and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Further, as the recitation of the subsequent fate of Mr Linwood’s pension application discloses, the Tribunal formed part of an administrative decision-making continuum: Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J. Because of that and even though the Tribunal was obliged to reconsider the merits of that pension application afresh, the particular issues which arose before the Tribunal were necessarily influenced by the course of earlier stages in that continuum and by the positions adopted before it by the parties to the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. In reading the Tribunal’s reasons, it is also necessary to bear in mind that they are responsive to issues which have evolved or emerged in this way.

13    It was not in issue before the Tribunal that Mr Linwood suffered from a depressive disorder. The issue was whether it was defence-caused. The circumstances of Mr Linwood’s military service were such that, in making its decision in respect of whether he was suffering from an injury which was defence-caused and thus eligible for compensation by way of a disability pension (s 70 of the Act refers), the Tribunal was obliged to decide the matter to its reasonable satisfaction: s 120(4) of the Act, read with s 43(1) of the AAT Act.

14    On an issue as to whether an injury suffered or disease contracted by a person was defence-caused, the application of s 120(4) of the Act is affected by s 120B(3), which materially provides:

(3)    In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was … defence-caused only if:

(a)    the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)    there is in force:

(i)     a Statement of Principles determined under subsection 196B(3) or (12);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

15    Section 196B provides for the determination of Statements of Principles (SoP) by a statutory agency known as the Repatriation Medical Authority (RMA). The SoP regime was introduced into the Act by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth), The motivation for that regime was expressed in the Explanatory Memorandum (p 3) in this way:

It has become apparent that lay tribunals do not deal with medical – scientific issues consistently and that the adversarial approach to fact-finding in administrative tribunals is inappropriate for determining the medical – scientific issues that call for detailed technical knowledge.

The repatriation medical authority will provide the appropriate forum for the resolution of technical medical – scientific issues. This will ensure that there will be consistency on medical – scientific issues at all levels of the determining system.

…

The authority will prepare Statements of Principles based on sound medical – scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.

…

This change is aimed at ensuring that medical opinion supported by little or no medical – scientific evidence do not prevail over the carefully developed mass of medical – scientific opinion.

16    Since the SoP regime was introduced, a plethora of SoP have been determined, repealed and re-determined. Within the limits of their language and application, they do achieve a consistency of sorts, but for those administering the Act or advisors, let alone an Australian Defence Force member who has rendered service covered by the Act or his or her dependents, they have also in practice added an additional layer of complexity to the already elaborate provisions of the Act. It is all a long way from the 16 terse sections expressed in the six pages of the War Pensions Act 1914 (Cth) (repealed) under which, a century ago, many millions of pounds were paid, in the course of The Great War, by the Commonwealth to wounded and afflicted members of our Defence Force and to the dependents of those who were killed or died on active service.

17    In 2008, the RMA determined an SoP (No 28 of 2008) in relation to a depressive disorder condition. In 2015, after the hearing before the Tribunal had concluded but before it gave its decision, a new SoP with respect to this condition was determined by the RMA (No 84 of 2015). Quite properly, the Tribunal afforded Mr Linwood and the Commission an opportunity to be heard, before it gave its decision, about which SoP was applicable and, if the more recent, its application in the particular circumstances of the case. As it happened, the material language of the two SoPs was such that the Tribunal ultimately found it unnecessary to determine which was applicable. Neither party suggested any such necessity arose with respect to the determination of the appeal. The subject is not one raised as a question of law in the notice of appeal. The Tribunal’s view of the language of the two SoPs accords with my own. In these circumstances, I expressly refrain from reaching a conclusion as to whether the 2008 SoP or the 2015 SoP was applicable. Instead, as the Tribunal found, it is convenient to resolve this matter by reference to the terms of the 2015 SoP.

18    The following provisions of the 2015 SoP should be set out:

9    Factors that must exist

At least one of the following factors must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service:

(1)    for major depressive disorder, major depressive episode, persistent depressive disorder, premenstrual dysphoric disorder, other specified depressive disorder and unspecified depressive disorder only:

...

(e)    experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder;

10    Relationship to service

(1)    The existence in a person of any factor referred to in section 9 must be related to the relevant service rendered by the person.

…

Schedule 1 - Dictionary:

…

category 2 stressor means one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a)    being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

…

(c)    having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

(d)    experiencing serious legal issues including being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;

19    The Tribunal found as a fact that Mr Linwood had experienced “social isolation, disharmony and bullying while he was in the infantry” (Reasons, [19]). Given the language in which it was expressed, this finding was made by reference to para (a) and (c) of the definition in the SoP of “category 2 stressor”.

20    The finding was based on acceptance of Mr Linwood’s oral evidence, which the Tribunal summarised earlier in its reasons, notably at para [8]. That acceptance occurred even though, based on observations of him during the course of his oral evidence, the Tribunal regarded Mr Linwood as a “poor historian in the witness box” who was “combative and did not have a clear recollection of dates and incidents”. Credibility assessments such as this are just as much “par excellence” for the Administrative Appeals Tribunal in a veterans’ entitlements review as they were for the Refugee Review Tribunal (whose functions have recently been absorbed by it) in an asylum refusal review: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67], McHugh J.

21    This is the summary offered by the Tribunal at para 8 of evidence given by Mr Linwood of his experiences during his military service following his corps-transfer:

8.    The applicant transferred from the infantry in 1990. He was initially posted to a survey and engineering unit in Adelaide, although he also spent time in Darwin. He was charged in respect of his involvement in a fist fight in 1992, which prompted further psychological assessments (see exhibit one at p 68). (Interestingly, Mr Linwood did not argue the fist fight was evidence of any subjective distress: he said he was baited by the other party over a long period, and he responded entirely reasonably. He said the seriousness of the encounter had been exaggerated.) He agreed in his oral evidence that he had ongoing trouble completing the basic fitness assessment and he said he thought his officers reprimanded him more and treated him more strictly than other soldiers. He said in his statement that he failed two promotion courses in 1996. In is oral evidence, he added that he was told he would never be promoted.

22    In assessing Mr Linwood’s oral evidence the Tribunal took into account and inferentially accepted, at least in this particular regard, a report from Dr Jenkins, Mr Linwood’s treating psychiatrist. Dr Jenkins stated that Mr Linwood’s “capacity to present sequential coherent historical information is impaired” (Tribunal reasons, para. [11] and Exhibit Four before the Tribunal). Having found that Mr Linwood’s account of his military service was affected in this way, the Tribunal stated (Tribunal reasons, para [12] – [13]):

12.    The Army records do not disclose clear evidence of bullying, which is not altogether surprising, but the Army medical records do include references to a serious suicide attempt in August 1992 (exhibit one at pp 66, 67; exhibit 5) that was obscurely described as an “acute transient situational disturbance”. The report from Dr Marinovich, a psychiatrist, dated 19 November 1996 suggested only that the earlier incident was connected to “problem areas in his life at that time” while the incident in 1996 was precipitated by the break-up of his relationship: exhibit one at p 45. A final report from the medical board suggested the depression was “related to Army service, Personal life and a personality disorder”: exhibit one at p 43. That is not very helpful.

13.    Mr Linwood says he continues to suffer serious psychiatric illness. He experienced a number of incidents of self-harm since he was discharged. He said he did not seek psychiatric help until comparatively recent times. He has been seeing Dr Jenkins since 2013. Dr Jenkins acknowledged there were other factors contributing to the onset of the applicant’s condition but concluded the circumstances of Mr Linwood’s service played the most significant role. Dr Jenkins diagnosed the condition as major depression with psychosis which commenced in 1992: exhibit one at p 186; see also exhibit 4. While Mr Linwood did report some symptoms of depression as early as 1990, none of the medical experts were prepared to say a diagnosis of depression was able to be made at that point.

23    The Commission submitted that the Tribunal had found that the clinical onset of Mr Linwood’s depressive disorder had occurred in 1992. That is not how I read the Tribunal’s reasons. There was certainly an evidentiary basis for such a finding in the medical records concerning Mr Linwood, particularly if, in this regard also, the Tribunal accepted Dr Jenkins’ opinion of 19 March 2013. However, the approach of the Tribunal was deliberately to refrain from making an affirmative finding about exactly when the clinical onset occurred. This is apparent from para [23] of the Tribunal’s reasons, where the conditional tense is used in relation to Dr Jenkins’ opinion on the subject, “If I accept Dr Jenkin’s view that depression was properly diagnosed in 1992 …”. Instead, what the Tribunal did, reacting in my view to the way the issues in the case were presented, was to examine how the SoP applied in two alternative scenarios, clinical onset in 1992 or clinical onset in 1996.

24    The alternative scenario examination occurs between para [20] and [23] of the Tribunal’s reasons:

20.    Factor 9(1)(e) says the category two stressor must have occurred within six months before the clinical onset of the applicant’s depressive condition. A careful review of the medical evidence shows the applicant experienced social difficulties and personal inhibitions before he joined the Army: see exhibit one at p 37. But he was ultimately allowed to enlist. While the applicant recalls having a difficult time when he served in the infantry unit, the first diagnosis of a psychiatric problem was in 1992 when he experienced the “acute transient situational disturbance”. (He was also referred for psychological evaluation after a brawl in 1992 but Mr Linwood indicated in his oral evidence that the incident was not the product of any subjective distress on his part, but was an entirely reasonable response to niggling behaviour from another soldier in a bar.) Mr Linwood went on to develop more serious psychiatric issues by 1996.

21.     Almost all of the examples of category two stressors that Mr Linwood described in his oral evidence occurred in the infantry unit. He left that unit in 1990, well over a year before severe psychiatric problems manifested themselves in 1992. While he spoke about failing promotion courses between 1992 and 1996, and described a sense that his superiors were treating him more harshly than his contemporaries, his recollection of this period was much less specific and prone to generalisation. I do not have sufficient evidence to be satisfied the applicant experienced a category two stressor connected with his workplace in the six months before 1996 (or even in the six month period before he was involved in a brawl or experienced the acute transient situational disturbance in 1992).

22.    While there are some differences between the current SoP and the former one, I am not satisfied the applicant would fare any better by reference to factor 6(a)(v) of the old SoP which is relevantly the same as the current SoP.

23.    Mr Wise, for the applicant, also referred to the existence of the ankle injury that is noted in exhibit one at p 163. The report suggests the incident occurred in 1995. Mr Wise said the ankle injury might have been a factor in the onset of depression. If I accept Dr Jenkin’s view that depression was properly diagnosed in 1992, it is difficult to see how the applicant can argue his subsequent ankle injury was a factor in the onset of depression. But if I accept the depression was not diagnosed until 1996, or clinically worsened at that point, the applicant could succeed if he were able to satisfy factor 9(h) or (j) in the current SoP (or the equivalent provisions in the old SoP). Factor 9(h) refers to “having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive order” while factor 9(j) refers to “having a severe, chronic medical condition for the five years before the clinical onset of depressive disorder”. There is no evidence to suggest the ankle injury was “life threatening” or resulted in “serious...disability”, or that it was “severe”.

[Emphasis added]

25    The end to which the Tribunal’s alternative, 1992 or 1996 scenario examination in these paragraphs of its reasons was directed in my view, to the deciding of whether or not one or more of the “factors” specified in cl 9 of the SoP, related to relevant service (as required by cl 10 of the SoP) was present in relation to either or each of these scenarios. As to a “factor” being related to service, s 196B(14) of the Act provides:

(14)    A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)    it resulted from an occurrence that happened while the person was rendering that service; or

(b)    it arose out of, or was attributable to, that service; or

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

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

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

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

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

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

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

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

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

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

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

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

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

26    The relevant inquiry, dictated by s 196B(14) of the Act, was, in this case, not whether there was a connection between Mr Linwood’s service and his psychiatric disorder but rather whether there was a connection between that service and a factor posited in cl 9 of the SoP: Repatriation Commission v Knight (2012) 202 FCR 451 at [13], referring with approval to Knight v Repatriation Commission (2010) 52 AAR 547 at [47], Katzman J.

27    Put another way, in Repatriation Commission v Warren (2007) 95 ALD 606 at [24] (Warren), in a passage approved by the Full Court in Repatriation Commission v Bawden (2012) 206 FCR 296 at [44] (Bawden), Kiefel J observed:

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.

Warren and Bawden entailed claims under the Act based on operational service and whether a claimed injury or disease was war-caused, whereas Mr Linwood’s case concerns defence service other than operational service and whether his injury was defence-caused. Even so, the effect of the Act is that the SoP perform an analogous role in his case. To adapt the language used in Warren to the present case, the SoP identified the minimum factors which had to exist in the circumstances of his case to provide the necessary linkage between his depressive disorder and his defence service. Also by analogy with Warren, it is important to distinguish between the determination of the injury or disease suffered by a veteran (which is not the province of the SoP regime) from whether that injury or disease was defence-caused.

28    It is to the words emphasised in para [21] of the Tribunal’s reasons that question 23 of the notice of appeal is directed.

29    It was no part of Mr Linwood’s challenge that the Tribunal used the word, “evidence” in para [21] of its reasons in the sense of evidence admissible under the rules of evidence applicable in a court proceeding. The Tribunal is not bound by those rules: s 33(1)(c) of the AAT Act. Where the AAT Act elsewhere uses the word, “evidence”, that word is not being used in the sense of evidence admissible under those rules. It is in that non-technical sense that I consider the Tribunal used the word, as for that matter did the Commission in its submissions. I employ the word in that same way in this judgement.

30    As to the alleged sufficiency of evidence on the defence-caused issue, the grounds specified in Mr Linwood’s notice of appeal make particular reference to the summary offered by the Tribunal at para [8] of its reasons, set out above. Even though, to my direct observation, he found the process stressful, Mr Linwood elaborated further, in his always courteous oral submissions, on the subject of what he alleged was a sufficiency of evidence. He pointed to his having been accepted as suitable for recruitment in 1987 and to his condition at the time of his discharge in 1997. I interpolate there was evidence of each of these facts before the Tribunal and that the Tribunal made these findings. Mr Linwood submitted that his experiences in the Army during the intervening decade must therefore at least have been a contributing factor. This submission was not just rhetorical but also, as I understood it, a submission that such an inference was available to the Tribunal which, in conjunction with his oral evidence and the other material before the Tribunal, provided a sufficient foundation for acceptance by the Tribunal that his depressive disorder was defence-caused. As to the other material, Mr Linwood pointed to the body of medical evidence (including the reports of yet another psychiatrist, Dr Chalk) and hospital admission and other clinical notes before the Tribunal.

31    For its part, the Commission submitted that an absence of sufficient evidence was a conclusion reasonably open to the Tribunal.

32    Once the function of an SoP is understood, some of Mr Linwood’s submissions cannot be accepted. However logical it may be, given his having been assessed as physically and mentally fit for enlistment in 1987, that the circumstances of his military service played at least some role in his having a depressive disorder a decade later at the time of his discharge, the employment of that logic is not permitted in relation to deciding whether that disorder was caused by or contributed to by that service. The material question was whether one or more of the minimum, SoP specified factors were present?

33    Mr Linwood was not obliged to prove to demonstration that a particular factor was present. Nor was he obliged, given the preamble in cl 9 of the SoP, to prove that more than one specified factor existed during his service. Materially, all that was necessary was that there be before the Tribunal material to engender reasonable satisfaction that at least one factor had effects which were chronic in nature and caused him to feel on-going distress, concern or worry. Indeed, to use the word “prove” at all is to import into an administrative review process a term from adversarial litigation in a court. It was in Mr Linwood’s interest to place before the Tribunal such evidence as he could to support the outcome which he sought but he was not subject to any formal onus so to do: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [115], Flick and Perry JJ. If that evidence were already present in the material before the Tribunal as, for example, a result of the lodgement by the Commission, pursuant to s 37 of the AAT Act, of material before it and the VRB, the absence of any further evidence from Mr Linwood would not preclude the making of a decision in his favour.

34    Given this, a question which emerges is what evidence is necessary in an administrative review of this nature to make a finding of fact without error of law? It is such evidence which will be “sufficient”.

35    There was once a time when any statement by the Judicial Committee would have bound courts in Australia likewise so to conclude. In relation to this case, the material statement is that in Mahon v Air New Zealand [1984] AC 808 at 820-821 (Mahon) that, even though not bound by the rules of evidence, the rules of natural justice were such that a person making a finding of fact when exercising administrative power was obliged to base his decision on material that tended logically to show the existence of a particular fact found. In relation to the High Court of Australia, the time when such a statement would bind it had passed even by the time Mahon was decided.

36    After Mahon and with respect to judicial review of findings of fact by an administrative official or tribunal, Mason CJ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 observed, at 355-356:

The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (46); Australian Gas Light Co. v. Valuer- General. (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v. Bathurst City Council (48). This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd (49). So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden (50).

But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth (51), per Brennan J. Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White (52):

“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

On the other hand, there are statements in the English cases which support a "no sufficient evidence" test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah (53). It remains to be seen whether these statements convey any more than a "no probative evidence" test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow (54); Cooper v. Stubbs (55); British Launderers' Research Association v. Borough of Hendon Rating Authority (56); Ashbridge Investments Ltd. v. Minister of Housing and Local Government (57). Further, in Mahon v. Air New Zealand (58) the Judicial Committee stated that natural justice requires that "the decision to make [a] finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

[Footnote references omitted; emphasis in original]

37    In TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361 at [97] – [98] (TCL), the Full Court, referring to Mahon and to these observations made by Mason CJ in Bond stated:

97.    In Bond at 355-356, Mason CJ (with whose reasons Brennan J agreed at 365 and Toohey and Gaudron JJ generally agreed at 387) discussed the nature of error of law in the finding of facts in the absence of probative material, and the difference between that and the error of fact in the demonstrable making of wrong factual findings even by illogical reasoning. At 356-357 Mason CJ also referred to the expression of opinion of Diplock LJ and Deane J in Moore, Mahon, and Pochi and said: “The approach adopted in these cases has not so far been accepted by this Court.”

98.    This comment of the Chief Justice may have been directed to the question of taxonomical characterisation of making a finding of fact without evidence, as well as the question as to whether the “no evidence rule” was one based on no evidence or no suffıcient probative evidence, also involving questions of logical supportive reasoning. It is to be read, in our view, as at least extending to the former.

[Emphasis added]

After a searching review of Australian authority, the Full Court stated in TCL, at [106], that, “until the High Court decides otherwise, this Court should respect the binding character of what was said by Mason CJ in Bond”. Yet, as the Full Court also held in TCL at [82], by reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; and FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754, “It is also now to be recognised that legal unreasonableness in statutory decision-making may also be an error of law, and a jurisdictional error.”

38    What I derive from this is that to make a finding of fact for which there is no evidence is an error of law but, subject to legal unreasonableness, no error of law is entailed if there is some evidence for that finding by the administrative official or tribunal concerned. Thus Mr Linwood’s question 23 can only be answered in his favour if the Tribunal’s conclusion that there was no sufficient evidence to support a finding of fact that one or more of the requisite SoP “factors” was present if, having regard to the evidence which was present, an error of law is necessarily entailed in that conclusion.

39    Before turning to the evidence which was before the Tribunal, it is desirable first to consider the meaning and effect of the material factors specified in the SoP.

40    The language employed by the RMA in its description in the SoP of what amounts to a “category 2 stressor” is not, with respect, terribly well adapted to the nature of military service. And that is so even apart from the surreal notion, applicable in other cases, that, in the administration of the Act, a theatre of war is to be regarded as falling within the generic description of “workplace”. Even in relation to a claim arising from peacetime service, the surreal is present. For example, the terrible fire which occurred on board HMAS Westralia on 5 May 1998 (qv Report of Board of Inquiry, Defence Publishing Services, 1998) must at the very least have been a “negative life event”, which occasioned “concerns in the workplace” for the ship’s company. Such terrible accidents apart, the very essence of a field, air combat or naval exercises can be to generate “concerns in the workplace” so as to test participants and prepare them for the physical and mental demands of operational service. Under the SoP, the military training area, cockpit and ship must be regarded also as a “workplace”, as must the barracks, air base and shore establishment. The point of this is that a need, flowing from the language employed, first to engage in the metaphysical when construing an SoP is apt to make the task of deciding whether material before an administrator reasonably admits of a factual conclusion that a “factor” is present more difficult than it otherwise might be.

41    It is convenient first to examine the 1992 scenario considered by the Tribunal.

42    In respect of the six month period which preceded Mr Linwood’s hospital admission in 1992, the Tribunal identified that he had been involved in a brawl in a bar which was “not the product of any subjective distress” (reasons, para 20, quoted above). It also referred to his having described in evidence, in respect of the period between 1992 and 1996 and in a non-specific way, “a sense that his superiors were treating him more harshly than his contemporaries” (reasons, para 21).

43    As it happens, this was not the full extent of the evidence before the Tribunal as to events in 1992. The material before the Tribunal included a Royal Adelaide Hospital admission and discharge record of 22 August 1992 (same day admission and discharge) (T5, AB, p 126) in respect of a suicide attempt the previous night. The following annotations appear in that record:

Reluctant historian … some recent stressors in his life. However would not elaborate (? assault 2/52 ago). Not attempted suicide previously. Last night took 48 Panadeine tablets & 30g alcohol. Felt unwell … Referred to RAH but returned to Barracks. Army officer brought him into RAH. Neurodegenerative features of depression. family history. Admits to trying to harm himself with OD. Undecided as to whether he regrets the failed attempt. …

[Emphasis added]

44    Mr Linwood’s pre-discharge “medically unfit”, medical assessment of 9 September 1997 (T5, AB, p 125) includes this summary by the examining medical officer, “Depressive illness which began in 92 associated [with] several suicide attempts …” and also, “Depression related to Army service, personal life and a personality disorder.” [Emphasis added]

45    After his discharge from the Royal Adelaide Hospital in August 1992, Mr Linwood was referred by an Army medical officer to a specialist psychiatrist. In a report of 29 August 1992 from the specialist (T5, AB, p 101), the following appears:

This man’s O/D was precipitated by his interview with his 2IC, but also as a culmination of events of the last 2/12.

He has been socially isolated in Adelaide, withdrawn and alcohol dependent on relieving stress, particularly since his charge and debts.

He is depressed and demoralised, feels unable to face being in the Army because of the O/D & social isolation.

[Emphasis added]

“O/D”, I infer, is an abbreviation for overdose.

46    The entries in the 2 Field Hospital clinical notes of 1 November 1996, made following Mr Linwood’s transfer to that Army medical facility following his transfer there as a sequel to his October 1996 suicide attempt in Darwin, include (T5, AB, p 89) the following note:

Took a Panadol O/D some years ago when he was found guilty of a military charge of assault. Saw a psychiatrist. Given two weeks off duty and recovered [with] medication.

[Emphasis added]

47    Also in the evidence before the Tribunal were two reports furnished by Dr Jenkins, the report of 19 March 2013 (T10, AB pp 217-220) and a supplementary report of 17 September 2014 (Exhibit 4, AB pp 248–249). In Dr Jenkins’ earlier report are to be found these background notes and related expert opinions:

Mr Linwood served in the Australian Army between 1987 and 1997 as a Private. He states that when he commenced in the Army he was highly motivated but then subsequently developed a depressive illness which required persistent treatment during his Army service and has persisted since that time including requiring hospital admissions.

I note that a final medical board report from the Army dated 9 September 1997 indicates that Mr Linwood’s depressive illness commenced in 1992 and was associated with several suicide attempts as well as psychotic features. On that particular report, I note that it indicates ‘depression related to Army service, personal life, and a personality disorder’.

A further complicating factor is that after Mr Linwood was inducted into the Army he gradually developed significant asthma. According to Mr Linwood this caused him a lot of stress as well as confrontation due to his inability to perform some duties as a result of his asthma. Eventually this lead to a medical downgrade. He was then from that point on unable to work in any capacity where he felt he could contribute and also became clear that he was no longer able to make the Army his career. Apparently he was accepted by the Core of Engineers and commenced as a cartographer. From 1992 on he suffered recurrent and depressive episodes which significantly impaired his performance.

It is my understanding that he suffered a series of Category (2) stressors as indicated above which resulted in his depression. It is clear that he became increasingly socially isolated at work due to his asthma and depression. There is also ongoing evidence of ongoing disharmony with work colleagues and a lack of social support and a perceived lack of control over tasks performance and stressful work loads.

…

Mark Linwood is a 50 year old ex-serviceman who suffers from DSM 4 TR major depression with psychosis. The psychosis is currently absent but the major depressive aspects have persisted. This disorder has been present since 1992 and occurred throughout his service time as a result of Category (2) stressors.

[Emphasis added]

48    Dr Jenkins’ supplementary report records in respect of Mr Linwood that, “As part of his condition his capacity to present sequential coherent historical information is impaired.” It was this particular opinion of his that the Tribunal’s reasons disclose was certainly accepted.

49    It may be said of Dr Jenkins’ 2013 report that it assumes, rather than states with the chronological and factually descriptive precision dictated by the SoP, the presence of “category 2 stressors” in the six months prior to the August 1992 suicide attempt.

50    Taken collectively, and bearing in mind that the Tribunal was not obliged to apply the rules of evidence and only required to be reasonably satisfied as to matters of fact, the passages which I have quoted above (especially those emphasised) from Army hospital and medical records and Dr Jenkins’ reports were “sufficient”, if accepted, to establish that:

(a)    the “clinical onset” of Mr Linwood’s depressive disorder was on or about 22 August 1992;

(b)    in the six months prior to that time and related to, or arising out of, or attributable to his military service he had experienced one or more of the following, the effects of which were chronic and caused him to feel ongoing distress, concern or worry:

(i)    social isolation due to location or psychiatric illness (or both) – category 2 stressor (a);

(ii)    concerns in the workplace including on-going disharmony with work colleagues – category 2 stressor (c);

(iii)    serious legal issues including a court appearance associated with personal legal problems – category 2 stressor (d).

51    More particularly, the evidence before the Tribunal was “sufficient”, if accepted, reasonably to admit of a factual conclusion, either directly or by inference, that a sequel to the “brawl” to which Mr Linwood referred was being brought up before the second in command (2IC) of his unit and later being dealt with under the Defence Force Discipline Act 1982 (Cth) in respect of a service offence of assault. As a matter of construction and bearing in mind the context in which it falls for application, a “legal issue” as mentioned in category 2 stressor (d) is apt to include being dealt with in respect of a service offence or other breach of discipline. The “military charge”, to adopt the term found in the material before the Tribunal, would appear to fall within the embrace of this particular factor.

52    For like reasons and recalling the characteristic employment of ill-adapted language in the SoP, the word, “court” in paragraph (d) of the definition of “category 2 stressor” is apt to include an appearance before a discipline officer, subordinate summary authority, superior summary authority, Defence Force Magistrate, court martial or the Defence Force Discipline Appeal Tribunal, as well as a Chapter III or other court. In context, that word is not being employed so as to refer only to a forum in which judicial power is exercised.

53    In an appeal of the present kind, it is not for me but rather it was for the Tribunal, in place of the Commission, to be reasonably satisfied with respect to whether the qualifying conditions for the disability pension applied for were present. If so satisfied, the decision under review had to be set aside and a decision favourable to Mr Linwood substituted; if not, the decision under review had to be affirmed.

54    Unlike in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, the outcome before the Tribunal was not the result of its having chosen to prefer one body of evidence over another. Rather, it was the result of the Tribunal’s failing to appreciate that, within the “zone of discretion”, there was before it some evidence which, if accepted, reasonably admitted of a conclusion that his depressive disorder was defence-caused. That was so because that material supported a factual conclusion that one or more of the requisite category 2 stressors were present before August 1992. In this sense, there was evidence which was capable of being regarded as “sufficient”. To conclude that the evidence before it was not “sufficient” was, in these circumstances, manifestly unreasonable.

55    Another way of describing the error is that, in the face of the evidence which the Tribunal did have, the Tribunal must have misconceived both the meaning and effect of s 33(1)(c) of the AAT Act in terms of what was “sufficient” in order to be reasonably satisfied that Mr Linwood’s claim was established. Yet another is that, as in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088, the Tribunal did not take into account all of the “integers” of Mr Linwood’s application for a disability pension under Part IV of the Act, one of which was that the circumstances of his service before August 1992 were such that his depressive disorder ought to be accepted as defence-caused. It is therefore also open to conclude that the Tribunal failed to take account of a relevant consideration.

56    The position in relation to the 1996 scenario is different. The evidence before the Tribunal discloses that the most proximate precipitating event prior to Mr Linwood’s 1996 suicide attempt was the breakdown of a close relationship which he had formed with a woman in Darwin. That occurrence was not service-related. That apart, the evidence relating to events in Mr Linwood’s military service is indeed as the Tribunal describes it in its reasons. The evidence is at such a level of generality that there was nothing unreasonable in the Tribunal concluding that it was not “sufficient” to establish one or more category 2 stressors related to his military service were present within a specified period before the 1996 hospital admission. Even so, that same evidence also admits of a conclusion that, by then, Mr Linwood was already suffering from a depressive disorder and that the effects of the pre-1992 suicide attempt “factors” were chronic.

57    It was not necessary for the Tribunal to find that each of the 1992 and 1996 scenarios it posited was made out in order for it to find that Mr Linwood’s depressive disorder was defence-caused.

58    It is for the Tribunal, not in an appeal of this nature for me, to decide whether it ought to accept and act upon the evidence (quoted above) which, if accepted, admitted of factual conclusions that there were one or more “category 2 stressors” present in the six months which preceded the August 1992 suicide attempt. It is also for the Tribunal to decide whether to accept Dr Jenkins’ opinions in all respects. If accepted, they show that the effects of the then factors were chronic. The material to which I have referred does though carry with it a prospect for Mr Linwood that his application for review might, after all, succeed. That being so, there is utility in setting aside the Tribunal’s decision and remitting it to the Tribunal for further consideration according to law: Stead v State Government Insurance Office (1986) 161 CLR 141 at 147.

59    How the Tribunal is constituted for that purpose is a matter for its President. For his assistance I do nothing more than record that the outcome in this case turned on an error of law as to whether the evidence was sufficient in order to find that Mr Linwood’s depressive disorder was defence-caused as he claimed. That error would not, in my view, mandate that the Tribunal be differently constituted.

60    While these will be the formal orders of the Court, it is, of course, possible for the Commission to make a policy value judgement that, on reflection, the present is a case where, in hindsight and having regard to the evidence which was before the Tribunal, it ought to have been reasonably satisfied that Mr Linwood was eligible for the pension which he sought under Part IV of the Act.

61    I do not consider that I would do justice in this case either to the Senior Member who constituted the Tribunal or to the Commission if I did not add the following.

62    Neither Mr Linwood nor the Commission was legally represented before the Tribunal. Mr Linwood was represented by a veterans’ advocate and the Commission by an advocate from the Department. In a case where, as the Tribunal found, the very nature of Mr Linwood’s depressive disorder made him a poor historian much therefore turned on a thorough examination of the s 37 documents and an investigation and presentation of third party material in relation to the issue of whether that condition was defence-caused. Those tasks were first and foremost for the advocates. The Tribunal’s “core function” was that of review, not investigation. Identifying what evidence was relevant to that issue was complicated by a need to master not just the criteria found in the Act but also those in the SoP. A further complication was that many of the medical and hospital records were handwritten, not readily legible and abbreviated. As it happens, neither the submissions of the advocates nor the examination the Tribunal felt moved to conduct itself disclosed that there was indeed in the evidence before the Tribunal material which, if accepted, reasonably admitted of a factual conclusion that one or more requisite factors were present. It is of the nature of a judicial determination in respect of the error found that the presence of that material has a clarity in hindsight that was difficult to discern in prospect.

63    Clarity in respect of the presence of that material was assisted on the hearing of the appeal by the submissions of counsel for the Commission. This was a continuation of model litigant behaviour on the part of the Commission and its legal advisers evident from the very inception of this appeal when the Australian Government Solicitor, noticing its presence in the court list but in circumstances where Mr Linwood had not effected service on the Commission, voluntarily attended so as to assist in the administration of justice. In my view, the judicial and executive branches of government were each well served by that behaviour in this case, as was an ex-serviceman, Mr Linwood.

64    There will be orders accordingly.

Associate:

Dated:    16 February 2016