FEDERAL COURT OF AUSTRALIA

Warren v Repatriation Commission [2018] FCA 1193

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    The appeal be allowed in part:

(a)    Questions of Law 3 and 4 in the Amended Notice of Appeal dated 18 August 2017 (“the Notice of Appeal”) be answered in the affirmative; and

(b)    paragraph 1 of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 June 2017 be set aside.

2.    Questions of Law 1 and 2 in the Notice of Appeal be dismissed without determination of their merits.

3.    The respondent pay the applicant’s costs (as agreed or taxed) relating to the appeal allowed in part (Questions of Law 3 and 4) up to and inclusive of 1 December 2017.

THE COURT NOTES THAT:

4.    The reviewable errors, made by the Tribunal and identified by the parties, are summarised in the parties’ attached statement in support of the consent orders.

THE COURT ORDERS THAT:

5.    Paragraph 2 of the decision of the Tribunal dated 15 June 2017 be set aside.

6.    The matter be remitted to the Tribunal to be heard and decided again in accordance with law with the hearing of further evidence as required.

7.    The respondent pay the applicant’s costs (as agreed or taxed) relating to the appeal to the extent that it dealt with the jurisdiction of the Tribunal.

THE COURT DECLARES THAT:

8.    The Tribunal has jurisdiction to review the decision of the Veterans’ Review Board including the issues of entitlements raised by the applicant before the Repatriation Commission and not considered by the Veterans’ Review Board.

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

STATEMENT IN SUPPORT OF THE CONSENT ORDERS

1.    This statement is prepared in support of the draft consent orders (“the proposed orders”), attached to this statement, to outline the matters the parties say justify the making of the proposed orders.

2.    The decision sought to be reviewed is a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 June 2017, in which the Tribunal:

2.1.     affirmed a decision to reject the applicant’s claim to have her psychological conditions accepted as “war caused” for the purposes of the Veterans Entitlements Act 1986 (Cth) (“the VE Act”); and

2.2.     held that it did not have jurisdiction to consider the applicant’s claims made under s 70 of the VE Act, that her psychological conditions were “defence caused” for the purposes of the VE Act.

Grounds of appeal

3.    Relevantly to the consent orders, the applicant’s Amended Notice of Appeal (“the Notice of Appeal”) alleged that the Tribunal had:

3.1    failed correctly to apply the standard of proof in s 120(1) of the VE Act (Question 3, supported by Ground 3); and

3.2    denied the applicant procedural fairness by failing to consider hypotheses advanced by the applicant (Question 4, supported by Ground 4) and fairly raised on the material.

Error

Standard of proof

4.    The substantive issue before the Tribunal was whether the applicant’s generalised anxiety disorder and alcohol abuse disorder were “war caused”. Pursuant to s 120(1) of the VE Act, the Tribunal was required to find that the applicant’s claimed diseases were war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. The Tribunal found at [168] that the applicant’s evidence was incomplete, contradictory and unreliable, and at [172], concluded that it was satisfied beyond reasonable doubt that there is no sufficient ground for accepting the raised facts as the evidence on which they are based is so unreliable that their existence is unsubstantiated.

5.    At [169] and [170] of its reasons for decision, the Tribunal referred to Bushell v Repatriation Commission (1992) 175 CLR 408 and Meehan v Repatriation Commission (2003) FCA 1371; [2003] FCA 1371, authorities regarding how the unreliability of the material before the Tribunal may be factored into the determination to be made under s 120(1) of the VE Act. In Bushell, Mason CJ, Deane and McHugh JJ held (at 416):

The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. …

6.    The language used by the Tribunal in [153], [159] and [164] of its reasons for decision indicates that the Tribunal was looking for evidence that could satisfy it beyond reasonable doubt that the generalised anxiety disorder and alcohol abuse disorder were war-caused. That is, the Tribunal reversed the test. Adopting the language from Bushell, the Tribunal did not say that it was satisfied beyond reasonable doubt that it could not accept the raised facts regarding each of the incidents relied upon by the applicant because of the unreliability of the evidence. Rather, it said that, because of the unreliability of the evidence, it was not satisfied beyond a reasonable doubt that the generalised anxiety disorder and/or alcohol use disorder were caused by those incidents.

Hypothesis advanced by the applicant

7.    Combining the Applicant’s Statement of Facts and Contentions dated 13 June 2016 and the closing submissions made by Mr De Marchi on behalf of the applicant, the particular hypotheses were put forward on behalf of the applicant in relation to the “war-caused” diseases were:

8.    In summarising Mr De Marchi’s submissions, the Tribunal at [102] and [103] of its reasons for decision, in the context of discussing the category of stressors into which the events fell, described the stressors in the following manner:

... the presence of soldiers at the Dili Airport on her arrival; her experiences while walking through the corridors of the Dili Hospital; her duties riding armed guard on a truck between Oili and Balibo; the requirement that she conduct patrols around the base; her knowledge of the existence of pipe-bombs; and her perception that the commanding officer did not want her as his assistant/linguist ...

… [her] perception that there were armed opposition soldiers at Balibo ...

9.    At [105] of its reasons for decision the Tribunal referred to Mr De Marchi’s submission that the applicant suffered a pre-existing anxiety disorder that had been aggravated by her service in East Timor, referring to the “living or working in a hostile or life­threatening environment” factor in Statement of Principles 102 of 2014. See also [107].

10.    The Tribunal (at [143]-[144]) identified the Dili Airport Incident, the Balibo incident, the Dili Hospital incident and her participation in perimeter controls as factors connecting the applicant’s service to the claimed diseases.

11.    The Tribunal then turned to s 120(1) of the VE Act, and considered the evidence relating to each of those incidents (at [145] to [166]) of its reasons for decision). Subject to the error in its application of the standard of proof in s 120(1), the Tribunal thereby considered hypotheses relying upon each of those incidents. The Tribunal did not comply with its duty to consider the particular hypothesis (or hypotheses) put forward by the applicant: Hill v Repatriation Commission (2005) 218 ALR 251 at 269 [2005] FCAFC 23 at [96] (Wilcox, French and Weinberg JJ).

12.    The Tribunal:

12.1    did not address the hypothesis based upon the applicant’s relationship with her commanding officer;

12.2    restricted its consideration of the hypothesis relying upon “living or working in a hostile or life-threatening environment” factor to the perimeter patrols. The hypothesis advanced was put on a broader basis (fear of “pipe bombs”/improvised explosive devices, being socially isolated and unable to maintain friendships and family relationships); and

12.3    did not address the hypothesis that the applicant’s alcohol use disorder was connected to her operational service via her generalised anxiety disorder.

Hypotheses fairly raised on the material

13.    Further, the Tribunal failed to address the hypotheses fairly raised on the material before the Tribunal connecting the anxiety disorder and/or alcohol use disorder the applicant experienced as a result of her operational service in East Timor to her later suicide attempts in 2004-2005. This failure denied the applicant procedural fairness and constituted a constructive failure to exercise jurisdiction: see W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 80-81; [2002] FCAFC 103 at [37]-[39] (Black CJ, Wilcox and Moore JJ).

Balance of appeal

14.    The applicant does not press Questions of Law 1 and 2. On that basis, the parties agree that Questions of Law 1 and 2 in the Notice of Appeal be dismissed without determination of their merits.

15.    The remaining Questions of Law (Questions 5 to 8) concern the Tribunal’s decision that it did not have jurisdiction to consider the applicant’s claims, made under s 70 of the VE Act, that her psychological conditions were “defence caused” for the purposes of the VE Act. The parties seek procedural orders in respect of those Questions.

REASONS FOR JUDGMENT

TRACEY J:

1    This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of the Veterans’ Review Board (“the VRB”) which had, in turn, affirmed a decision of the Repatriation Commission (“the Commission”) which had refused a claim by the applicant, Ms Jennifer Warren, for a pension for incapacity under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”): see McKinley and Repatriation Commission (Veterans’ entitlements) [2017] AATA 872.

2    The Tribunal also found that it did not have jurisdiction to hear Ms Warren’s claim to the extent that it was made in reliance on s 70 of the Act.

3    The original application was made by Ms Warren in 2012 and led to a series of adverse findings by a delegate of the Commission, the VRB and the Tribunal. The decision of the Tribunal, presently under consideration, was made following a successful appeal to this Court: see Warren v Repatriation Commission (2015) 238 FCR 124; [2015] FCAFC 159 (Collier, Jessup and Mortimer JJ).

4    I interpolate at this point that, over the long history of this litigation, Ms Warren has changed her surname on a number of occasions. It will be convenient, however, to refer to her, in these reasons, by her present surname.

5    Ms Warren’s Amended Notice of Appeal dated 18 August 2017 raised what were said to be questions of law relating to the application of s 120(1) of the Act and to the Tribunal’s decision that it did not have jurisdiction to hear her claims under s 70 of the Act. There was a further complaint that the Tribunal had failed in its statutory duty to give adequate reasons for its decision: see s 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

6    The parties were agreed that the Tribunal’s decision was affected by legal error. In dealing with s 120 it had erred in its application of the standard of proof, failed to address two relevant hypotheses and had restricted its consideration errantly in relation to another. A summary of reasons outlining the error, agreed by the parties, is contained in the statement attached to the orders of the Court.

7    The remaining issue related to the Tribunal’s finding that it did not have jurisdiction to hear what it referred to (at [117]) as “the expanded claims under s 70 of the Act, relating to eligible but non-operational defence service.” This issue continued to be pressed in the Further Amended Notice of Appeal dated 7 December 2017.

8    Section 70(1) of the Act relevantly provides that:

70    Eligibility for pension under this Part

(1)    Where:

...

(b)    a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

...

(d)    in the case of the incapacity of the member—pension by way of compensation to the member;

in accordance with this Act.

9    Section 70(5)(d)(i) and (ii) relevantly provides:

(5)    For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

...

(d)    the injury or disease from which the member … is incapacitated:

(i)    was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii)    was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or ...

10    The Tribunal’s reasons for concluding that it lacked jurisdiction to deal with the s 70 claim are set out at [112]-[124]:

112.    As previously stated, the Tribunal was first advised of Ms McKinley intention to pursue several claims under s 70 of the Act in mid-December 2016. An amended Statement of Facts, Issues and Contentions was lodged by Ms McKinley on 3 February 2017 and addressed Ms McKinley’s eligible defence service, said to be part of her claim lodged on 22 May 2012.

113.    The Tribunal acknowledges that the delegate of the Commission considered both the operational service and defence service in reaching their determination of 3 December 2012; wherein the delegate determined that none of Ms McKinley’s conditions arose from her service, be it operational or defence. At review by the VRB, the Board limited its consideration to the operational service. Ms McKinley’s advocate, Mr Meurer, had advised that only the operational service claim was being pursued. In its decision of 30 May 2013 the VRB specifically referred to this limitation placed by the advocate.

114.    The Administrative Appeals Tribunal is limited to review of the decisions of a primary decision-maker as provided by the relevant legislation and is empowered to stand in the shoes of the decision-maker in relation to the decision under review.

115.    Section 43(1) of the AAT Act states:

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

116.    The Tribunal, while not bound by the applicant’s grounds for review (Drake v Minister, Department of Immigration and Ethnic Affairs (1979) 2 ALD 60), does not have greater powers than the original decision-maker.

117.    Before proceeding to its consideration of the applicant’s operational service claim, the Tribunal considers it must address the jurisdictional question. Having done so, it finds that it does not have jurisdiction to hear the expanded claims under s 70 of the Act, relating to eligible but non-operational defence service.

118.    The applicant had advanced the expanded claims to cover the following:

(a)    developed or suffered a clinical worsening of anxiety disorder as a result of the defence service; and

(b)    attempted suicide as result of her defence service; and

(c)    developed a depressive disorder as a result of her defence service; and

(d)    may have experienced a clinical worsening of pre-existing anxiety disorder following her service in East Timor.

None of these new claims or hypotheses underlying them had been considered by the VRB.

119.    The Veterans’ Entitlement Act under s 175(1) vests the Tribunal with jurisdiction over matters which have been subject to a decision by the Commission and reviewed by the VRB in most instances. The Act provides in s 175(1A)–(5) for Commission decisions that may be determined directly by the AAT. These relate essentially to assessment matters i.e. rate of pension, the amount of pension, allowances and benefits. The requirement for internal review of a primary decision-maker’s decision extends to all areas of the Tribunal’s jurisdiction.

120.    Mr De Marchi, in his application to the Tribunal to proceed under s 70, has relied on the decision in Stafford. The Tribunal in Re Stafford and Repatriation Commission [1993] AATA 9053 had commented that the Act provides:

40     ... a comprehensive statutory framework for review of Commission decisions by the VRB, at first instance and, in turn, by the Tribunal. The consideration by the Tribunal of particular issues of entitlement expressly not before the VRB would have the effect of circumventing a chain in the review process. Such a development is clearly contrary to the purpose and intent of the legislation.

The Full Federal Court in Repatriation Commission v Stafford (1995) implicitly upheld this reasoning and determined that the VRB had not completed its task of reviewing Mr Stafford’s claim and remitted the matter to the Board to be heard in accordance with the law.

121.    Mr De Marchi also relied on the Full Federal Court’s decision in Grant v Repatriation Commission (1999) 57 ALD 1 where the Court said:

... the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: ...

This Tribunal does not perceive the finding in Grant to address the Tribunal’s jurisdiction. In Grant the question before the court related to whether the applicant satisfied the alone test of s 24 of the Act. This decision would now be decided differently in light of the more recent decisions of the Federal Court in Richmond v Repatriation Commission and Summers v Repatriation Commission.

122.    Ms Dowsett relied on the decisions in Lees and Davenport which clearly relate to the question of jurisdiction.

123.    In Davenport, Lee J confirmed that only an unambiguous withdrawal of a medical condition potentially the subject of an application for review would relieve the VRB of the obligation imposed on it by s 139(2). It was also held that such an election requires the electing party to be cognisant of the rights to be forgone by the act of election. As a result, the VRB had not performed the function required of it by the Act, and the matter was remitted to the VRB for rehearing, the decision having been set aside.

124.    The Tribunal therefore does not have jurisdiction to hear the s 70 claims or new hypotheses dependent on the s 70 claim.

11    It is to be noted that the statement at the end of [120] that the Full Federal Court in Stafford had remitted the matter to the VRB is incorrect. It did not. The primary judge had remitted the further hearing of the matter to the Tribunal: see Stafford v Repatriation Commission (1995) 56 FCR 121 at 131; [1995] FCA 44 at 24. On appeal the Full Court expressly upheld this order: see Repatriation Commission v Stafford (1995) 56 FCR 132 at 143-144; [1995] FCA 537 at 32-33 (Jenkinson, Ryan and Lee JJ).

12    There was a further non-operational claim considered by the delegate. Earlier in its reasons (at [8]) the Tribunal had said that Ms Warren had made a new claim relating to events during her defence service at the Queenscliff Army Base in 2004. The Tribunal said that the “new application raised the question of the Tribunal’s jurisdiction to hear such a claim.” This Queenscliff claim, arising out of her defence service, was not new. It had been made before the delegate and should have been considered by the VRB.

13    The reason that these s 70 claims were not considered by the VRB appears in [21] of the VRB’s reasons where it was said:

It was noted at the onset [sic] that the veteran was only relying on a connection between her psychiatric conditions and her operational service in East Timor. Therefore, the Board did not consider any possible connection between the conditions and her defence service.

14    This assumption was based, it appears, on a written statement by Ms Warren’s advocate before the VRB. That statement referred only to operational service matters. It also appears to be based on the response given by the advocate at the VRB hearing where, having been asked whether there was anything he wished to add to or comment about in relation to the written submission, he responded confining himself only to operational service matters.

15    The delegate’s decision had related to both eligible defence service and operational service. Her appeal to the VRB was not confined to operational service. She wrote that she wished to appeal the delegate’s decision “in relation to my claim for PTSD and Alcohol Abuse.”

16    Her appeal to the Tribunal was from the decision of the VRB dated 30 May 2013.

17    The Tribunal appears to have misunderstood the decision of this Court in Stafford and failed to apply the election test posed in Davenport v Repatriation Commission (1995) 39 ALD 560; [1995] FCA 930.

18    The first instance decision in Stafford v Repatriation Commission (1995) 56 FCR 121; [1995] FCA 44 was made by Northrop J. His Honour held (at 129) that:

… there was but one claim and the one decision of the delegate was to refuse the claim. The application to the Veterans’ Review Board was for review of one decision, namely the “rejection of claim for disability pension”. The Review Board should have reviewed the one decision. It did not do so. It reviewed part only of that decision but in adopting that course, it is impermissible for the Commission to claim now that the Tribunal has no jurisdiction to review the decision of the delegate of the Repatriation Commission because the Review Board had not reviewed part of the matters forming the basis of the decision of the Commission. It would be a strange result if a veteran could be deprived of a right of review by the Tribunal where the Review Board failed to consider parts of the decision being reviewed by it but nevertheless affirmed the decision of the Commission. A veteran should not be compelled to recommence the process seeking a pension in order to have the matter proceed from the Commission, to the Review Board and to the Tribunal.

19    As already noted his Honour ordered the matter be remitted to the Tribunal for further consideration according to law. This would not have occurred had the Court not considered that the Tribunal had jurisdiction to deal with the matters which the VRB should have, but did not, consider. In these circumstances it is difficult to understand how the Tribunal, in the present matter, could have come to the view (at [120]) that the Full Court had implicitly upheld what the former Tribunal had determined in 1993.

20    If the Tribunal lacked jurisdiction to affirm, vary, substitute or set aside and remit the decision under s 43 of the AAT Act to the VRB to complete its task, some fresh proceeding would have to have been commenced (perhaps mandamus against the VRB) requiring the VRB to complete the task. Alternatively the veteran could, possibly, have made a new application to the Commission. The imposition of the latter requirement was rejected by Northrop J in Stafford (at 129). Such courses would be inappropriate and unnecessary in the present case and would only serve to further delay the resolution of Ms Warren’s claims.

21    Northrop J’s decision was upheld on appeal to a Full Court: see Repatriation Commission v Stafford (1995) 56 FCR 132; [1995] FCA 537 (Jenkinson, Ryan and Lee JJ).

22    In my view the Tribunal had jurisdiction to deal with the s 70 claims which had been raised before the delegate but not considered by the VRB. No basis has been established for distinguishing Stafford.

23    In Davenport, as the Tribunal records at [123], Lee J held that the VRB was required to consider all medical conditions covered by the application to it unless the claim had unambiguously been withdrawn. This was because of the requirement in s 139(2) of the Act that “in reviewing a decision of the commission, [the VRB is] to satisfy itself with respect to, or to determine, as the case requires all matters relevant to the review.”

24    The statements made by Ms Warren’s advocate to the VRB (recorded above at [12] and [13]) were, to some extent ambiguous. They may have been understood by the VRB as indicating that Ms Warren was no longer pursuing the s 70 claims which she had raised before the delegate. The representative’s statements did not, however, amount to an unambiguous withdrawal of those claims which remain undetermined by the VRB. So much was conceded by the Commission in submissions to this Court. The claims should be considered and dealt with by the Tribunal.

25    The orders proposed by the parties should be made. It should be further ordered and declared that the Tribunal has jurisdiction to deal with all outstanding issues raised by Ms Warren’s original claim to the Commission, whether or not they had been considered by the VRB.

26    In finding that the orders proposed by the parties should be made I note one caveat. During the hearing counsel for Ms Warren contended that the terms of proposed order 1(c) should be different from those which had been previously agreed (in which agreement counsel was not involved). The extant form of the agreed orders was:

The questions of whether the Applicant’s generalised anxiety disorder and/or alcohol use disorder are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) be remitted to the Administrative Appeals Tribunal to be heard and decided again with the hearing of further evidence as required.

27    During the hearing I asked that her preferred form of words be provided to chambers after the hearing. An amended form of words was subsequently provided to chambers on 16 March 2018. The new proposed form was as follows:

The question of whether the applicant’s psychological conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) be remitted to the Administrative Appeals Tribunal to be heard and decided again with the hearing of further evidence as required.

28    In support of this amendment counsel for Ms Warren contended that the order should not be confined because there was material before the Commission, the VRB and Tribunal relating to a diagnosis of post-traumatic stress disorder (“PTSD”). She referred to [65], [70] and [100] of the Tribunal’s reasons which referred to a hypothesis that Ms Warren’s PTSD, which was diagnosed in 1997 and which arose from a motorcycle accident, had not resolved by 1999. These paragraphs provide:

65.    Dr Burges Watson, who saw Ms McKinley on 13 October 2000, also diagnosed PTSD and depression in June 1997 and when seen again in September of 2000 he regarded her as having suffered from PTSD for 12 to 18 months and still had residual symptoms. In the course of the history he took, Ms McKinley made no reference to her recent service in East Timor or to her alcohol intake.

…

70.     In his second report dated 22 November 2006, Dr Strauss confirmed that he did not accept that she had suffered a severe psychosocial stressor during her time in East Timor but had subsequently developed major depression, an obsessive compulsive disorder and substance abuse relating to her personal circumstances and not to her military service. His second report was in response to having received the reports from the Austin Hospital regarding Ms McKinley. The Austin Unit had made a diagnosis of PTSD attributed to her Army experience. He also reviewed Dr Debenham’s report, noting that there was no reference in this report to any incidents that might have caused PTSD although reference was made to the motorcycle accident.

…

100.    Based on these authorities, Ms Dowsett submitted that it was open to this Tribunal to remit the claim regarding the various conditions said to be defence-caused to the VRB for consideration.  This also applied to the new claims raised at the hearing in relation to attempted suicide and the alternative hypothesis that Ms McKinley’s PTSD diagnosed in 1997 and arising from a non-service related motorcycle accident had not resolved by October 1999 and that her experiences in East Timor had resulted in an aggravation of the anxiety symptoms that are a feature of PTSD (given that PTSD is classified by DSM-V as being an anxiety disorder). 

29    Counsel also contended that, in light of the Commission’s concession that Question of Law 4, supported by Ground 4, be answered in the affirmative, the remittal should not be confined to two specific psychiatric diagnoses. The particulars subjoined to Ground 4 in the Amended Notice of Appeal detailed hypotheses fairly raised on the evidence that concerned a wider range of psychological injuries or diseases, including the applicant’s suicide attempts (particular 4(a)(iii)) and post-traumatic stress disorder (particulars 4(a)(iv) and (v)). Restricting the remittal, she said, to generalised anxiety disorder and alcohol use disorder would be to deny Ms Warren consideration of hypotheses raised by the material which the Tribunal failed to consider.

30    Further, she said, Ms Warren had made a claim for compensation for psychiatric injury. Upon remittal the Tribunal must determine, as at the date of hearing, from what, if any, psychiatric injury or disease she suffers and whether such injury or disease is caused by service. Narrowing the remittal to two specific diagnoses denies Mr Warren review of the decision to reject her compensation claim for psychiatric injury.

31    The Commission did not consent to an order being made in the terms proposed. It noted that, by instructing her solicitor to sign the proposed consent orders dated 28 November 2017, Ms Warren had made a choice as to the course of action she wished to adopt in this proceeding. That choice involved:

    consenting to the dismissal of Question of Law 1, which included at subparagraph (a) a question regarding the existence of post-traumatic stress disorder; and

    agreeing that, insofar as any psychiatric or psychological disability was concerned, confining the terms of the remittal to the questions of whether her generalised anxiety disorder and/or alcohol use disorder was war-caused.

32    The Commission submitted that Ms Warren took the benefit of that choice through the confined nature of the hearing on 15 March 2018. She should not now be permitted to resile from her choice and seek remittal in broader terms than previously agreed.

33    In considering the terms of the order it is useful to consider the terms of Ms Warren’s initial application to the Commission. As mentioned this application was made in 2012. In the form which she filled out she was asked about the type of application she was making. She ticked a box which stated “Claim for Disability Pension for disabilities that have not yet been accepted as service related”. She indicated that the new disabilities that she was now claiming were war or defence caused were: (1) PTSD (with signs and symptoms of depression, panic attacks, nightmares and flashbacks); and (2) alcohol abuse (with signs and symptoms of drinking every day, binge drinking on weekends and blackout periods involving loss of memory). Details of her medical treatment were provided, including treatment for two suicide attempts in 2005 and anxiety from 2005 to the time of the application. She claimed that these disabilities affected her ability to seek employment.

34    The reasons for decision of the delegate of the Commission dated 3 December 2012 noted that she had “lodged a claim for ‘PTSD’ and ‘Alcohol Abuse’.” It then recorded that the delegate was “satisfied that the appropriate medical diagnoses for the claimed conditions are: [g]eneralised anxiety disorder; and alcohol dependence.” The delegate’s reasons concluded that, having considered all of the relevant evidence, he was satisfied beyond reasonable doubt that neither her generalised anxiety disorder nor her alcohol dependence were related to her operational or eligible service.

35    As already mentioned Ms Warren’s application to the VRB for review of the delegate’s decision stated that she wished to “appeal the decision made on 3rd December 2012 in relation to my claim for PTSD and Alcohol Abuse”.

36    In its reasons for decision dated 30 May 2013 at [1] the VRB stated that Ms Warren had applied for review of a Commission decision “which refused a claim for medical treatment and pension for incapacity from generalised anxiety disorder and alcohol dependence on the ground that the conditions were not war caused”. It may be observed that the terms of her claim to the Commission were broader than that summarised by the VRB. The VRB at [31] found that it was “reasonably satisfied that the veteran is not suffering from a war-related post traumatic stress disorder”. At [33] it found that it preferred the medical evidence which supported diagnoses of generalised anxiety disorder and alcohol dependence and found that she suffered from those conditions. At [40] the VRB affirmed the decision under review.

37    Ms Warren’s application to the Tribunal for review of the VRB’s decision stated that she sought review of the “[d]ecision of Veterans’ Review Board (Melbourne) dated 30 May 2013.”

38    Following her application the series of events detailed above at [3] occurred. Following remittal by the Full Court to the Tribunal the decision presently under review was made. At [125] and [134] of the Tribunal’s reasons it stated:

125.    The parties have agreed that the correct psychiatric disorders as diagnosed are generalised anxiety disorder and an alcohol abuse disorder. The earlier 1997 diagnosis of PTSD following a motorcycle accident is accepted as the actual event was clearly life- threatening and thus meets the required definition of a Category 1A stressor to found such a diagnosis. The diagnosis of PTSD was made by Dr Stern in June 1997, some three months after the motorcycle accident and was confirmed by Dr Burges Watson in October 2000. Dr Burges Watson found the PTSD in remission except for a few residual symptoms. This particular disorder relating to the motorcycle accident is not service related.

…

134.    The Tribunal, having accepted the diagnosis of a generalised anxiety disorder and an alcohol abuse disorder, must now consider whether these conditions were caused by Ms McKinley’s operational service in East Timor for a period of four and a half months in 1999-2000. The Tribunal must do so in accordance with the four-step process enunciated by the Full Court of the Federal Court in the Deledio decision.

39    Question of Law 1 in Ms Warren’s Amended Notice of Appeal was:

1.    Whether the Tribunal misconceived and/or misunderstood its task when determining the question of diagnoses in accordance with s 120(4) of the Veterans Entitlements Act 1985 (Cth) (VE Act) by failing to:

(a)    examine the collection of symptoms complained of by the applicant in order to determine whether, according to the standard of reasonable satisfaction set by s 120(4), she suffered from posttraumatic stress disorder; and/or

(b)    determine in accordance with s 120(4) whether it was reasonably satisfied that the applicant had attempted suicide on one or more occasion[s], and if so, whether the applicant’s suicide attempts were “attempted suicide” as defined in the Statements of Principles concerning Suicide and Attempted Suicide (numbers 65 and 66 of 2016).

40    In the consent orders filed with the Court the parties sought an order that “Questions of Law 1 and 2 in the [Amended] Notice of Appeal be dismissed without determination of their merits”. The Commission relied on this agreement to claim that Ms Warren should not have the benefit of the more fulsome remittal to the Tribunal which she now sought.

41    The Commission also relied on her agreement, in those same orders, that the terms of the remittal be confined to the questions of whether her generalised anxiety disorder and/or alcohol use disorder was war-caused.

42    Ms Warren, for her part, argued that the Commission’s concession that Question of Law 4, supported by Ground 4, should be answered in the affirmative, meant that the remittal should not be confined to two specific psychiatric diagnoses. Question of Law 4, as it appears in the Amended Notice of Appeal, provides:

4.    Did the Tribunal deny the applicant procedural farness and/or constructively fail to exercise jurisdiction by failing to consider hypotheses advanced by the applicant and/or fairly raised by the evidence?

43    Ground 4 in the Amended Notice of Appeal provides:

4    The Tribunal denied the applicant procedural fairness and/or constructively failed to exercise jurisdiction when it failed to consider hypotheses advanced by the applicant and/or fairly raised by the evidence.

(a)    The Tribunal failed to consider the following hypotheses that were advanced by the applicant and/or fairly raised by the evidence:

i.    A hypothesis that the applicant’s anxiety disorder was contributed to by her living and working in a hostile or life-threatening environment (as defined in the statement of principles for anxiety disorder no. 102 of 2014) in East Timor for a cumulative period of at least four weeks within the five years before the clinical onset or clinical worsening of the anxiety disorder.

ii.    A hypothesis that the applicant’s anxiety disorder was contributed to by experiencing a category 2 stressor within the one year before the clinical onset or clinical worsening of the anxiety disorder, namely:

I.    being socially isolated and unable to maintain friendships or family relationships during her operational service in East Timor due to physical location, language barriers, disability or medical or psychiatric illness;

II.    having concerns in the work environment during her operational service in East Timor including on-going disharmony with fellow work colleagues perceived lack of social support within the work environment and perceived lack of control over tasks performed.

iii.    A hypothesis that the applicant’s suicide attempts in 2004-2005 were contributed to by her experiencing a category 2 stressor during her operational service in East Timor within the five years before the suicide attempts, namely:

I.    being socially isolated and unable to maintain friendships or family relationships during her operational service in East Timor due to physical location, language barriers, disability or medical or psychiatric illness;

II.    having concerns in the work environment during her operational service in East Timor including on-going disharmony with fellow work colleagues, perceived lack of social support within the work environment and perceived lack of control over tasks performed.

iv.    A hypothesis that the applicant’s posttraumatic stress disorder was contributed to by her living and working in a hostile or life-threatening environment (as defined in the statement of principles for posttraumatic stress disorder no. 82 of 2014) in East Timor for a cumulative period of at least four weeks before the clinical onset or the clinical worsening of the posttraumatic stress disorder.

v.    Hypotheses connecting the applicant’s posttraumatic stress disorder and attempted suicides to her operational service in East Timor on the basis that she experienced a life-threatening event during that service and/or viewed critically injured casualties as an eye witness.

44    As can be seen, Ground 4 details the range of hypotheses on which Ms Warren relied. These hypotheses involve her claimed post-traumatic stress disorder and suicide attempts.

45    The Commission agreed that the Tribunal had erred. The solicitors for both parties signed a minute of proposed consent orders, on 28 November 2017, which sought an order that Question of Law 4 be answered in the affirmative.

46    The scope of the Commission’s agreement in relation to the Tribunal’s error is evident from the terms of the agreed Statement in Support of Consent Orders which accompanied those proposed orders and which was signed by the solicitors for both parties on 30 November 2017. That statement is annexed to the orders made in this proceeding. While this statement refers to hypotheses involving generalised anxiety disorder, alcohol abuse disorder and suicide attempts, it does not refer to post-traumatic stress disorder.

47    In this proceeding the orders I have made set aside paragraphs 1 and 2 of the Tribunal’s decision. Those paragraphs provide:

1.    The Tribunal affirms the decision under review.

2.    The Tribunal does not have jurisdiction to hear the claim under section 70 of the Veterans’ Entitlements Act 1986.

48    As noted the order setting aside paragraph 1 is made with the parties’ consent.

49    Having set aside the Tribunal’s decision it is appropriate that an order for remittal to the Tribunal also be made: see s 44(5) of the AAT Act.

50    The Tribunal’s role upon remittal will be to exercise its powers afresh. It will consider all of the material before it. It will not be bound by the findings made in its earlier decision (including in relation to Ms Warren’s diagnoses). Nor, of course, will it be bound by the diagnoses earlier determined by the VRB. Its task will be to consider all of the material before it, including the medical evidence, and to make a decision as to Ms Warren’s claims in relation to the war-caused and defence-caused injuries or diseases from which she says she suffers. It is, therefore, appropriate that the order remitting the matter to the Tribunal not be confined in its terms.

Associate:

Dated:    13 August 2018