FEDERAL COURT OF AUSTRALIA

Hunt v Repatriation Commission [2019] FCA 1191

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Tribunal be set aside and the matter be remitted to the Tribunal differently constituted for determination according to law.

2.    The respondent pay the applicant’s costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The applicant, Mr Gordon Hunt, appeals from a decision of the Administrative Appeals Tribunal (the “Tribunal”) given on 3 May 2018. In that decision, the Tribunal affirmed a decision of the Veterans’ Review Board (the “Board”) (which had affirmed a decision made by the respondent (the “Commission”) on 14 May 2012) refusing the applicant’s claim for a pension by way of compensation on the basis that the conditions afflicting him were not “war-caused” for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). Those conditions being psychiatric illness (denoting depressive, anxiety and adjustment disorder), irritable bowel syndrome and rectal polyps (together, the “Conditions”).

2    The applicant appeals to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The five questions of law and nine grounds of appeal in the amended Notice of Appeal impugn the Tribunal’s understanding and application of ss 120 and 120A of the Act.

Background

3    The applicant served in the Australian Army from 21 February 1966 to 20 February 1972. He rendered operational service in Vietnam from 5 November 1969 to 6 May 1970.

4    The applicant was posted to Nui Dat immediately on arrival in Vietnam as a clerk in the Cash Office. On his account, on his first day, he came into contact with a Warrant Officer Church who was the senior non-commissioned officer. The applicant said that during his time in Nui Dat there was ongoing disharmony between himself and Warrant Officer Church that commenced “from day one”. This culminated in the applicant, it was said, being coerced by Warrant Officer Church to accept a demotion from his rank of Corporal to Private and a transfer to Saigon.

5    On arrival in Saigon in March 1970, the applicant was billeted to a building called the Bachelor Enlisted Quarters (the “BEQ”), also colloquially called the “Canberra Hotel”. He claims that soon after his arrival, he witnessed two distressing incidents involving Vietnamese military police and civilians:

(1)    The first incident occurred when the applicant was on guard duty near the front door of the BEQ. He alleges that he witnessed the Vietnamese military police open fire at a fleeing Vietnamese civilian. Shots were fired which the applicant said came close to his position and ricocheted, with some bullets “hitting the façade of the building”. The applicant believed that the civilian had been shot and killed. I will refer to this as the “First Incident”.

(2)    The second incident is said to have occurred one to two weeks after the First Incident. The applicant was at gun post on night duty. He said that, on this evening, two Australian Army trucks were parked in front of the BEQ against a traffic island between the service road running along the front of the BEQ and the main part of the boulevard. The applicant claims that he and a fellow member apprehended a Vietnamese civilian, in possession of a screwdriver, between the two parked Australian Army trucks. Before the civilian could be escorted into the BEQ, Vietnamese military police arrived in a truck and demanded that the civilian be handed over to them. The applicant and his colleague obliged. As the men were returning to their gun post, the applicant said he heard a gunshot and saw the civilian lying on the ground with a gunshot wound to his chest. The military police then picked up the civilian’s body and put it in their truck. The applicant believed the civilian had been killed. I will refer to this as the “Second Incident”.

6    The applicant’s entitlement to a pension rests on whether a causal link is taken to exist under the Act between the aforementioned events and the Conditions now afflicting him.

Legislative Provisions

7    Section 13(1) of the Act provides that where a veteran is incapacitated from war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. The circumstances in which an injury or disease are taken to be “war-caused” are set out in s 9 of the Act, which relevantly provides as follows:

War-caused injuries or diseases

(1)    Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)    the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)    the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

but not otherwise.

It is uncontentious that the applicant rendered “operational service” in Vietnam (which is taken to be “eligible war service” pursuant to s 7 of the Act) and is a “veteran” for the purposes of the Act.

8    To answer the causal question posed by s 9, the Commission — and the Tribunal on review — must apply “the complicated convolutions of the statutory standards and prescriptions on causation” set out in ss 120 and 120A of the Act: Forrester v Repatriation Commission [2013] FCA 898 at [9] per Mortimer J.

9    Section 120 of the Act is relevantly in these terms:

Standard of proof

(1)    Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

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

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

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

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

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

Note: This subsection is affected by section 120A.

(4)    Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

(5)     Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)    an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b)    a disease contracted by a person is a war-caused disease or a defence-caused disease;

   (c)    the death of a person is war-caused or defence-caused; or

(d)    a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)    Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)    the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

…

10    As the applicant’s claim was made after 1 June 1994, s 120A is also applicable and has a bearing on the task prescribed by s 120(3). That provision relevantly provides:

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

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

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

…

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

…

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

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

…

that upholds the hypothesis.

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

…

11    Section 196B of the Act relevantly provides:

Functions of Authority

(1)    This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the [Military Rehabilitation and Compensation Act 2004 (Cth)].

Determination of Statement of Principles

(2)    If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)    operational service rendered by veterans; or

…

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)    the factors that must as a minimum exist; and

(e)    which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

…

12    Owing to the centrality of ss 120 and 120A to this appeal, it is necessary that I make a few observations about the applicable statutory scheme. As will become apparent, the process of establishing the causal connection between the veteran’s injury or disease and their service is intended to operate beneficially towards the veteran making the claim.

13    The effect of s 120(1) is that where a veteran makes a claim under Pt II (including s 13 of the Act) for a pension in respect of incapacity from injury or disease, related to the operational service rendered by the veteran, he or she has the benefit of a reverse criminal law standard of proof in relation to whether the injury or disease is war-caused: Summers v Repatriation Commission (2015) 230 FCR 179 at 185-186 [25] per Kenny, Murphy and Beach JJ. In other words, s 120(1) requires the decision-maker to determine that an injury or disease was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. The rationale for the reverse criminal law standard of proof is the special recognition given in the Act to the risk of injury or death to which service men and women are exposed: Summers at 187 [31].

14    Section 120 does not, however, go so far as to impose a presumption that the veteran’s injury or disease is war-caused: s 120(5) of the Act. Nor does it place an onus on the veteran to prove that his or her injury is war-caused: s 120(6) of the Act.

15    Section 120(3) operates as a decision heuristic or threshold inquiry in the application of s 120(1). To use the language of Toohey J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 438, it is “epexegetical” of s 120(1), but it is not exhaustive of the content of s 120(1). It effectively prescribes a circumstance in which satisfaction beyond reasonable doubt for the purposes of s 120(1) is deemed to have been established: Forrester at [13] per Mortimer J. That is, where the material before the decision-maker does not raise a “reasonable hypothesis” connecting the injury or disease with the circumstances of the veteran’s service, the requisite causal connection is deemed not to exist. In East v Repatriation Commission (1987) 16 FCR 517, Jenkinson, Neaves and Wilcox JJ explicated the “reasonable hypothesis” concept at 532-533 [28]:

… The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/082l and V28/0n, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:

“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.

The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of [at] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.”

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

16    Following the High Court’s decision in Bushell, s 120A was introduced in 1994 to provide the necessary basis for a finding that a hypothesis was “reasonable” in a medical or scientific sense. The limited function of the Statement of Principles (the “SoP”) was explained by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 (at 275):

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

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

(i)    contrary to proved or known scientific facts,

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

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

His Honour’s observations were approved by the Full Court on appeal in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio (1998)”).

17    Where the material does raise a “reasonable hypothesis”, the operation of s 120(3) is spent and the case falls to be determined in accordance with s 120(1). In Bushell, Mason CJ, Deane and McHugh JJ observed 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. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s. 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.

(Footnote omitted.)

18    In a similar vein, Mason CJ, Gaudron and McHugh JJ observed in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570:

Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.

(Emphasis added and footnotes omitted.)

19    In Deledio (1998), a Full Court of this Court constituted by Beaumont, Hill and O’Connor JJ helpfully distilled some of the foregoing principles into a four-step analytical framework (the “Deledio Steps”) (at 97-98):

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

2.    If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11) …

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

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

(Emphasis added.)

20    It was common ground that the Deledio Steps provide the proper framework for applying ss 120 and 120A. The locus of the dispute in this appeal is the Tribunal’s application of steps 3 and 4 of the Deledio Steps and, ultimately, whether the applicant’s Conditions are war-caused.

The Tribunal’s Decision

21    Before the Tribunal, the applicant advanced his claim as follows:

(1)    The ongoing disharmony with Warrant Officer Church in Nui Dat constituted a category 2 stressor as defined in each of the relevant SoPs relating to psychiatric illness.

(2)    The First Incident constituted a category 1A stressor as defined in each of the relevant SoPs for psychiatric illness.

(3)    The Second Incident constituted a category 1B stressor as defined in each of the relevant SoPs for psychiatric illness.

(4)    The irritable bowel syndrome (“IBS”) was connected to his operational service in Vietnam because he suffered a specified psychiatric condition (defined to include anxiety and depressive disorder) that was war-caused within 6 months before the clinical onset of his IBS, and therefore satisfied factor 6(b) of the SoP concerning IBS.

(5)    The rectyl polyps or colorectal adenoma was connected to his operational service in Vietnam because his service caused him to increase his alcohol consumption from the time of his service until he stopped drinking in 1992. The applicant said that, consequently, he had consumed at least 250 kg of alcohol before the clinical onset of his colorectal adenoma, and therefore satisfied factor 6(b) of the SoP concerning colorectal adenoma.

22    It was accepted by both parties that several SoPs were relevant to the applicant’s claim with respect to his psychiatric illness. The SoPs concerning depressive, anxiety and adjustment disorder were similar in form and provided that at least one of the listed factors had to exist as a minimum before it could be said that a reasonable hypothesis had been raised connecting the applicable disorder with the circumstances of a veteran’s relevant service.

23    In the applicant’s case, the following listed factors were relevant:

    Experiencing a category 1A stressor within: (i) the five years before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder.

    Experiencing a category 1B stressor within: (i) the five years before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder.

    Experiencing a category 2 stressor within: (i) the one year before the clinical onset of depressive or anxiety disorder; or (ii) the three months before the onset of adjustment disorder.

24    The dictionary of the relevant SoPs for the psychiatric illnesses defined the stressors mentioned above as follows:

category 1A stressor means one of the following severe traumatic events:

 (a)    experiencing a life-threatening event;

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

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

category 1B stressor means one of the following severe traumatic events:

(a)    killing or maiming a person;

(b)    being an eyewitness to a person being killed or critically injured;

(c)    being an eyewitness to atrocities inflicted on another person;

(d)    participating in the clearance of a corpse or a critically injured casualty; or

(e)    viewing a corpse or a critically injured casualty as an eyewitness;

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:

…

(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;

…

25    I note at this juncture that the Tribunal had before it a research report (the “Robottom Report”), which had been commissioned by the Board. Ms Ryan of Counsel, who appeared for the applicant before the Tribunal and before me, objected to the Robottom Report being taken into consideration by the Tribunal below. The Tribunal acknowledged the Robottom Report’s shortcomings including that parts of it were effectively “hearsay on hearsay” and that its author did not “appear to understand the principles of the Act and the standard of proof provisions set out in section 120”. Nevertheless, it decided to admit the Robottom Report as “a relevant document provided under section 37 of the AAT Act”. The relevance of the Robottom Report will become clear in due course.

First and Second Deledio Steps

26    The Tribunal considered the question of whether the applicant’s conditions were war-caused by reference to the Deledio Steps. It accepted that the first and second Deledio Steps were satisfied, relevantly concluding:

53.    There is a low threshold at this stage [(Deledio Step 1)] of applying the methodology (as Tamberlin J stated in McLean v Repatriation Commission [2001] FCA 243 at [24]). Having considered all the material before the Tribunal, it is open to me to conclude that the experiences of Mr Hunt when posted at Nui Dat and subsequently on piquet duty in Saigon precipitated a depressive condition, and that his consumption of alcohol while on operational service, keeping in mind that he enlisted at the age of 17 and had not had experience of drinking alcohol before joining up, raise, in my mind, a reasonable hypothesis. In coming to this conclusion, I take account of the professional opinion of three consultant psychiatrists who, while they differ in the precise diagnosis, all concluded that Mr Hunt has some form of depressive or anxiety disorder, and I note that the Respondent accepted that position.

…

62.    It would appear that the Applicant’s claim, on the material before the Tribunal, fits the general template of the relevant SoP.

Third Deledio Step

27    With respect to the third Deledio Step, there is an internal inconsistency in the Tribunal’s reasons for decision. At [63] and [68], the Tribunal stated:

63.    On the face, the Tribunal finds that Mr Hunt’s application satisfies the requirements in the third Deledio step …

…

68.    On balance, even taking into account this element of vagueness of the date of clinical onset, I am satisfied that there is a reasonable hypothesis of a connexion to the Applicant’s military service.

However, at [96]-[97] of the reasons for decision under the heading “Conclusion”, the Tribunal stated:

96.    I am satisfied, applying section 120(3) of the Act, for the reasons set out above that, on the whole of the material before the Tribunal, there is no reasonable hypothesis raised that the claimed conditions of the Applicant are war-caused. In coming to this conclusion, I am mindful of the Full Court’s conclusion in East v Repatriation Commission (1987) 16 FCR 517, at 533:

... A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not provided beyond the balance of probabilities.

97.    The particular claims of bullying by WO Church outlined by the Applicant are not consistent with the known facts, because Mr Church was not present serving with the Applicant at the time the instances of bullying Mr Hunt cited took place. I do not find that a reasonable hypothesis is raised in relation to the two claimed incidents in Saigon because of the lack of any corroborative evidence and the facts about the location of Army vehicles there at night that point away from such a hypothesis.

I shall return to this disconnect.

Fourth Deledio Step

28    After concluding that the third Deledio Step was satisfied at [68], the Tribunal then proceeded to consider the applicant’s claim under the fourth Deledio Step. The Tribunal described its task at this step as follows at [69]:

The Tribunal must now weigh the evidence before it to see whether or not it is satisfied beyond reasonable doubt that Mr Hunt’s claimed conditions were not war-caused. There are two circumstances in which a decision-maker can be satisfied beyond reasonable doubt. The first is the existence of a fact or facts inconsistent with the reasonable hypothesis. The second is the non-existence of a fact essential to the reasonable hypothesis.

Bullying at Nui Dat

29    With respect to the applicant’s account of being bullied in Nui Dat by Warrant Officer Church from November 1969 to 4 March 1970, the Tribunal concluded it was satisfied beyond reasonable doubt that such bullying “did not take place”. It rejected the applicant’s account because:

    army records showed that Warrant Officer Church did not arrive in Vietnam until 21 January 1970, which erected “an insurmountable factual obstacle to accepting the evidence given by the applicant about bullying he experienced from WO Church “from day one””. When cross-examined about this, the applicant simply refused to accept that date (at [70]-[71]);

    the applicant failed to mention the bullying by Warrant Officer Church: (i) to his treating psychiatrist, Dr D’Ortenzio, whom he saw “eight or nine times” over approximately 14 months; and (ii) in his 2012 application for a pension to the Department of Veterans’ Affairs (at [79]); and

    the applicant’s contention that he pointed a loaded rifle at Warrant Officer Church out of frustration and anger (as recounted to another consultant psychiatrist, Dr Walton, on 3 February 2014) without any apparent disciplinary action was not credible. This was especially so as Warrant Officer Church, when interviewed by a consultant engaged by the Board to prepare the Robottom Report, did not mention the incident as described (at [80]).

30    The Tribunal concluded at [81]-[82]:

81.    The Tribunal is satisfied beyond reasonable doubt, in relation to Mr Hunt’s contentions about being bullied in Nui Dat by WO Church, that the chain of bullying conduct that he set out at the hearing commencing in November 1969 to the date of his demotion and transfer to Saigon on 4 March 1970 did not take place. In saying this, I accept on the evidence that the Applicant and Mr Church clashed in the period of about five weeks when they served together in Nui Dat and that conclusion is supported by Mr Hunt naming Church and Taylor in his later Redress of Wrongs application for rank reinstatement several months later. However, I conclude that Mr Hunt has since confused events and dates because for much of the time he contended WO Church bullied him, they were factually not in the same country, let alone posted together. I do not conclude that this misremembering is some deliberate action by the Applicant. It is understandable given the extended passage of time that has elapsed that timelines, events and particular persons involved in events have become blurred, but in this particular respect the Tribunal relies on the independently prepared Nominal Roll that stipulates the dates when Mr Church was serving in Vietnam.

82.    I therefore find that there is an absence of fact which renders me unable to accept as credible the particular contentions the Applicant made about bullying by Church.

First and Second Incidents in Saigon

31    The Tribunal also concluded that it was satisfied beyond reasonable doubt that the facts underpinning the facts relating to the First and Second Incidents had been disproved. It reached that conclusion based on, amongst other things, the absence of corroborating records or accounts to confirm that these two incidents at the BEQ took place (at [84]). The two incidents were not recalled in interviews by others posted to the BEQ at the same time and who were interviewed in the preparation of the Robottom Report (at [84]).

32    In particular, the Tribunal cited the following written (but not signed) evidence of the “OIC Military Police in Saigon at the time, WO2 Ian Laurie” contained in the Robottom Report (at [85]). It was recorded that Mr Laurie stated:

... At its rear was a secure vehicle compound, virtually the back yard of the Canberra, where all Australian vehicles were habitually parked. The entire frontage of the BEQ was secured by a chain wire apron, oversighted by sentry posts manned 24 hours a day. No vehicle stopping nor· parking along the frontage was allowed or tolerated.

At the time of the alleged incidents I was a Sergeant in the RAA Provost Corps, posted to Saigon as the Detachment Commander and Special Investigations Branch Investigator. Any incident of the nature of those mentioned would most certainly have been noted in the daily guard report at the Canberra and would have been common Australian, American and Vietnamese Military knowledge. It would certainly have featured in the local press. Our Detachment interpreter, Sgt Cao Van Lai, was a constant source of information as to events in the ARVN. It is unavoidable that I would have known of these incidents had they occurred, and there is no doubt in my mind that they did not occur.

33    Critically, the Tribunal said at [87]-[89]:

87.    The Tribunal cannot be satisfied with Mr Hunt’s contention that bullets, even ricocheting bullets, could have hit the façade of the BEQ during the first incident, and that no records exist or recollections apparently corroborate such a relatively significant incident. Given the importance of the military vehicles in time of war and the possibility of sabotage or simple disablement of them, as Mr Laurie wrote I am satisfied that Australian Army vehicles were not in fact left, essentially unprotected, on the open street at night when there was a secure compound behind the BEQ where the vehicles were kept overnight. Mr Hunt accepted in evidence that the general practice was to park the vehicles in this secure yard at night. It also seemed incongruous to the Tribunal that vehicles would be parked in front of the building at night, effectively blocking the posted guards from a line of sight and being able to protect it, which was their job.

88.    I note that although Dr Walton refers to the experience of the Applicant ‘seeing a man killed’ in terms of examining the experience against the Category 1A Stressors, that does not square with Mr Hunt’s actual evidence to the Tribunal. Mr Hunt was at pains to make clear in the hearing that he did not see someone being shot. In terms of the first incident, Mr Hunt said he “thought the man had dropped to avoid being shot ... I don’t know if he was shot or lying doggo”. In terms of the second incident, Mr Hunt said he heard a gunshot and then saw a man lying on the road with a gunshot wound to the chest. However, in spite of witnessing such incidents being something that would objectively be concluded to be traumatic, the Applicant did not cite them in his application in 2012. There are no contemporary accounts which corroborate either of these events occurring and the statement by the most senior Australian Military Police officer in charge at the BEQ at the relevant time that he would certainly have heard of such events and they would have been recorded by the guard commander weighs strongly against the Tribunal concluding that they did, in fact, occur. In relation to these two described incidents I am satisfied that the raised facts are disproved beyond a reasonable doubt.

89.    Mr Hunt gave extensive evidence to the Tribunal about his successful career in business after discharge from the Army, including running his own sawmill and then trucking business, and holding other responsible positions. I also note that, apart from his marriage ending after some 20 years, he gave evidence of regular contact with his two sons and a loving and good relationship with them and his grandchildren. All of this weighs against a conclusion that his diagnosed psychiatric condition was caused by service in 1969-70. In saying that, I do not question the professional diagnosis, but my task in this review is to decide whether Mr Hunt’s depressive condition is war-caused, and on the weight of the evidence as outlined, in particular the lack of evidence to satisfy the category 1A, 1B and 2 stressors in the SoP which are mandatory, I am not satisfied on the whole of the evidence before the Tribunal that it is. The SoP stipulates that a category 1A or 1 B stressor must be experienced, in the case of depressive disorder and anxiety disorder within 5 years before the clinical onset of the condition, or in the case of adjustment disorder, within 3 months of the clinical onset. In the case of the category 2 stressor for depressive disorder and anxiety disorder, the experience must be within one year before the clinical onset of depressive disorder. In the case of a category 2 stressor for adjustment disorder, the experience must be within 3 months of the clinical onset. The Tribunal is satisfied that the evidence points away from this and to a much more recent date of clinical onset.

Irritable Bowel Syndrome

34    Having found that the applicant’s psychiatric condition was not war-caused, the Tribunal then concluded that the applicant failed to satisfy factor 6(b) of the SoP concerning IBS, which is in these terms:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service is:

…

(b)    having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome; or

…

35    The Tribunal was therefore satisfied beyond reasonable doubt for the purposes of s 120(1) of the Act that there was no sufficient ground for determining that the applicant’s IBS was war-caused.

Alcohol Use Disorder and Colorectal Adenoma

36    Finally, the Tribunal was satisfied beyond reasonable doubt that there were “insufficient grounds” for a determination that the applicant’s alcohol use disorder (in remission) was war-caused. That conclusion was based, in whole or in part, on the Tribunal’s finding that the period during which the applicant may have over-consumed alcohol whilst in Vietnam was limited to the period from when he arrived in Saigon on 4 March 1970 to the time he was admitted to the Australian Field Hospital on 10 April 1970, which equated “to some four weeks, minus the two days on which he was on piquet duty as he said he didn’t drink on those days”. Because this was characterised as a “relatively short period”, the Tribunal concluded that “on balance” it was satisfied that the “raised facts” about the applicant’s alcohol consumption at that time was disproved. It was difficult to determine what “raised facts” the Tribunal had in contemplation. With respect, the reasons for decision were not marked by clarity on this issue. Prompted by a question asked by me about the identity of those “raised facts”, Ms Ryan suggested that the Tribunal was referring to the raised fact that the applicant’s operational service was causative of his increased level of alcohol consumption. Ms Maud of Counsel, who appeared for the Commission, suggested that the Tribunal was referring to those raised facts at [53]:

... his consumption of alcohol while on operational service, keeping in mind that he enlisted at the age of 17 and had not had experience of drinking alcohol before joining up, raise, in my mind, a reasonable hypothesis.

In other words, the “raised facts” were that the applicant, as a young and inexperienced drinker, consumed a lot of alcohol whilst rendering service in Vietnam, and this led to an ongoing pattern of drinking after he returned from service which caused him to consume at least 250 kg of alcohol before the clinical onset of his colorectal adenoma. The Tribunal accepted the raised fact that there was consumption of alcohol whilst on operational service, but rejected the raised fact that such consumption was sufficient to lead to an ongoing pattern of drinking.

37    In the result, the Tribunal affirmed the decision of the Board to deny the applicant’s claim for a pension by way of compensation for the Conditions.

Questions of Law and Grounds of Appeal

38    As aforementioned, the amended Notice of Appeal raised five questions of law and nine grounds of appeal. The questions of law were:

1.    Whether it was open to the Tribunal in light of its finding that the applicant and Mr Church clashed in the period of about five weeks when they served together in Nui Dat to conclude that it was satisfied beyond reasonable doubt that ongoing disharmony had not occurred within the meaning of a category 2 stressor in accordance with Statement of Principles No 83 of 2015.

2.    Whether the Tribunal’s finding that the applicant had a successful career in business after discharge, had regular contact with his sons and a loving and good relationship with them and his grandchildren permits a conclusion beyond reasonable doubt:

  (a)    that the applicant’s depressive disorder was not war-caused;

(b)    that the date of clinical onset of the depressive disorder was not within 5 [years] or 3 months of the applicable stressor.

3.    Whether a finding that the applicant’s over-consumption of alcohol was limited to four weeks of his operational service constitutes proof beyond reasonable doubt that his alcohol abuse was not war-caused.

4.    Did the Tribunal err in its application of s 120(3) of the Act or in reference to the decision making process set out by the Full Court in Repatriation Commission v. Deledio (1998) 83 FCR 82?

5.    Did the Tribunal fail to correctly apply the reverse beyond reasonable doubt standard of proof provided for by s 120(1) of the Act?

39    The nine grounds of appeal were argued under the rubric of the applicable question of law. Hence, I will not reproduce the grounds in full here but consider them below. In oral submissions, Ms Ryan clarified that with respect to questions 1 to 3 above, the case was put on the basis that the Tribunal applied the wrong standard of proof or, alternatively, the findings made by the Tribunal were not open to it because there were “not rationally supportable” or, put another way, “illogical or irrational”.

Consideration

40    I will address the questions of law posed seriatim, albeit in an order that is different to that in which they appear in the amended Notice of Appeal. This is because the resolution of some of the questions later in the numerical sequence have a bearing on the earlier questions.

Question 4, Grounds 7 and 8

41    Ground 7 alleges that the Tribunal misapplied s 120(3) of the Act by making findings of fact at the third Deledio Step. Ground 8 attacks the disconnect between the conclusion at [96]-[97] and the Tribunal’s earlier findings that the applicant’s application satisfied the first to third Deledio Steps.

42    The essence of the applicant’s argument was that the Tribunal engaged in illicit fact finding in applying s 120(3) of the Act with the result that it had exceeded the statutory task and defeated the beneficial standard of proof embodied in s 120(1) of the Act. In that respect, it was said that [96]-[97] of the Tribunal’s reasons for decision (reproduced above) disclosed the error. It will be recalled that in those paragraphs, the Tribunal concluded that “on the whole of the material before [it], there is no reasonable hypothesis raised that the claimed conditions of the Applicant were war-caused” with reference to the facts found by the Tribunal (as opposed to the raised facts). This conflicted with its earlier finding that the material did raise a reasonable hypothesis of connection for the purpose of s 120(3) at [63] and [68].

43    The Commission, properly, conceded that there was a “clear disconnect” between the conclusions expressed at [96]-[97] and the remainder of the Tribunal’s reasons. It was said, however, that those paragraphs are an “obvious error” but “not a material error” when considered in the light of the Tribunal’s reasons as a whole. Two reasons were said to make good that proposition. First, those paragraphs are otiose as the reasoning process leading up to the ultimate conclusion — that the decision under review should be affirmed — was compliant with the statutory scheme and is set out fully in at [50]-[95]. Secondly, even if there was a misapplication of s 120(3), the Tribunal went on and determined the matter at the fourth Deledio Step.

44    I am inclined to generally agree with the submission put forward by the Commission that [96]-[97] of the reasons do not disclose impermissible fact finding in the application of s 120(3). Reading the Tribunal’s reasons as a whole and fairly, I am persuaded that it was only in the context of the fourth Deledio Step (at [69]-[95]) that the Tribunal engaged in the process of fact finding by reference to the evidence before it. At the third Deledio Step, I am satisfied that the Tribunal: (i) considered the material in the abstract without impermissibly delving into the resolution of conflict in the evidence; and (ii) found that reasonable hypotheses connecting the applicant’s conditions and service were raised on the material. This is supported by the structure of the reasons which show that the Tribunal reached its conclusions at the third Deledio Step expeditiously at [63] and [68] without recourse to making findings of fact and then proceeded to the fourth Deledio Step.

45    In my view, [96]-[97] disclose an erroneous and, with respect, rather unfortunate use of language given that this statutory scheme demands precision in expression. That is to say, it is very unfortunate that the Tribunal closed its reasons by adopting language that is used in the context of s 120(3) and the third Deledio Step and which was plainly inconsistent with its earlier findings at [62], [63] and [68]. In my view, it illustrates the Tribunal suffering from the “complicated convolutions of the statutory standards and prescriptions on causation”, to use the language of Mortimer J in Forrester. Notwithstanding this, on this occasion, given the length of reasoning at the fourth Deledio Step in the Tribunal’s reasons for decision, I am willing to accept that the true fact finding occurred at that stage and not at an antecedent stage of the analysis.

46    To be clear, I am in no way condoning this practice of blurring the distinctions between the Deledio Steps even if such statements prove superfluous to the reasons for decision. Moreover, I am not foreclosing the possibility that the statements at [96]-[97] betray a deeper misunderstanding of the interplay between s 120(1) and (3). In that respect, I agree with the applicant that those paragraphs in the reasons underscore the Tribunal’s confusion. It appears the Tribunal believed, having completed the fourth Deledio Step, it should trace back to s 120(3) to ask whether a “reasonable hypothesis” exists. That was a clear error. As previously stated, once the decision-maker concludes that the material does raise a “reasonable hypothesis”, the case falls to be determined in accordance with s 120(1). There is no need to revisit s 120(3) once it has served its purpose.

Question 5, Grounds 6 and 9

47    Ground 6 alleges that the Tribunal misapplied s 120(1) by imposing a requirement that the applicant’s direct evidence about the claimed stressors be corroborated. Ground 9 alleges that the Tribunal failed to apply correctly the reverse criminal law standard of proof provided by s 120(1) of the Act.

48    The applicant submitted that once reasonable hypotheses were raised pursuant to s 120(3), his claim was entitled to succeed unless in respect of each raised hypothesis:

(a)    one or more of the facts necessary to support the hypothesis was disproved beyond reasonable doubt; or

(b)    the truth of another fact in the material, which was inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

See Byrnes at 571 per Mason CJ, Gaudron and McHugh JJ.

49    The Tribunal, it was said, misdirected itself in its application of s 120(1) by: (i) applying the civil standard of proof (that is, on the balance of probabilities); or (ii) assuming it did apply the standard of “beyond reasonable doubt”, applied a “positive beyond reasonable doubt” standard of proof. In that respect, the applicant relied on the following to impugn the Tribunal’s approach in relation to:

    the bullying at Nui Dat, the Tribunal said at [80]: “In the absence of any corroborating evidence about such a major action as pointing a loaded rifle at a fellow solider or placing a loaded firearm in the mouth of a fellow serviceman, the Tribunal is satisfied beyond reasonable doubt that neither of these particular events occurred as described”.

    the First and Second Incidents, the Tribunal said at [88]: “There are no contemporary accounts which corroborate either of these events occurring and the statement [in the Robottom Report] by the most senior Australian Military Police officer in charge at the BEQ at the relevant time that he would certainly have heard of such events and they would have been recorded by the guard commander weighs strongly against the Tribunal concluding that they did, in fact, occur”.

    the causal connection between the applicant’s psychiatric illness and war service, the Tribunal said at [89]: “I also note that, apart from his marriage ending after some 20 years, he gave evidence of regular contact with his two sons and a loving and good relationship with them and his grandchildren. All this weighs against a conclusion that his diagnosed psychiatric condition was caused by service in 1969-70 … my task in this review is to decide whether the applicant’s depressive condition is war-caused, and on the weight of the evidence as outlined … I am not satisfied on the whole of the evidence before the Tribunal that it is”.

50    The applicant contended that the Tribunal’s language of “weighs strongly against”, “weighs against a conclusion” and “on the weight of the evidence”; its conclusions as formulated at [96]-[97]; and its degree of reliance on the absence of corroborating evidence (at [80] and [88]) indicated that the Tribunal had erroneously applied a standard of proof based upon the balance of probabilities. That is, it purported to reach the state of satisfaction required by s 120(1) in circumstances where the factual foundation of the hypothesis had been disproved only on the balance of probabilities. With respect to the applicant’s alternative argument that the Tribunal had applied a “positive beyond reasonable doubt” standard of proof, he relied upon the phrases “weighs strongly against the Tribunal concluding that they [the First and Second Incidents] did, in fact, occur” and “my task is to decide whether the applicant’s depressive condition is war-caused … I am not satisfied on the whole of the evidence before the Tribunal that it is”. That is, the Tribunal decided questions of fact implicitly and practically on the basis that the necessary facts had to be established by the applicant. Thus, the Tribunal’s persistent search for corroborating material. This was said to deny the applicant the benefit of the standard of proof to which he was entitled pursuant to s 120(1).

51    The applicant urged that I ought not characterise the Tribunal’s manner of expression as merely imprecise. The problem was, it was said, graver in that it highlighted the Tribunal’s confusion about its statutory task. In that respect, the applicant relied on the observation of Gyles J in Hall v Repatriation Commission [2007] FCA 2021 at [19]:

… mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen. Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative …

In that case, the following paragraph, amongst other things, was said to disclose the Tribunal’s error:

(e)    The claim does not succeed. A hypothesis postulating that Mr Butler’s kind of death was caused and/or contributed to by the consumption of alcohol in specific quantities was found to be reasonable. However, we were not satisfied beyond reasonable doubt that such alcohol consumption was war-caused.

(Emphasis in the original.)

His Honour held that the Tribunal had applied the wrong standard of proof when arriving at its decision. The emphasised sentence was said to reveal that the Tribunal had reversed the effect of s 120(1) of the Act. Further, the Tribunal’s reasoning disclosed that it had sought to establish the necessary causal link rather than disprove it.

52    The Commission submitted that the applicant’s submissions refer selectively to parts of the Tribunal’s reasons for decision so as to convey a “misleading impression of the Tribunal’s reasoning in relation to s 120(1)”. It was said that the applicant had hived off those parts of the reasoning from other parts which showed that the Tribunal properly appreciated it had to be satisfied beyond reasonable doubt for the purposes of s 120(1). Reliance was placed on:

    the Tribunal’s conclusion at [81] that it was “satisfied beyond reasonable doubt, in relation to the applicant’s contentions about being bullied in Nui Dat by WO Church, that the chain of bullying … did not take place” and the preceding reasoning said to underpin this conclusion at [70]-[72], [79] and [80] (see [29] above); and

    the Tribunal’s conclusion at [88] that “[i]n relation to these two described incidents I am satisfied that the raised facts are disproved beyond reasonable doubt” and the preceding reasoning at [84], [85], [87] and [88] (see [31]-[33] above).

Ms Maud submitted that, in light of the foregoing, the presence of some “looseness of language” should not be taken as indicating an application of the wrong standard. Further, she submitted that it was incorrect of the applicant to allege that the Tribunal relied only upon the absence of corroboration as a “sufficient basis” for the Tribunal’s findings that the events asserted by the applicant did not occur. Absence of such evidence was only one of numerous considerations that the Tribunal relied upon in reaching its state of satisfaction.

53    Reading the impugned excerpts against the whole of the reasons for decision, I am persuaded that the Tribunal did not apply the correct standard of proof. With respect, its misunderstanding of the statutory task is exposed from the very first paragraph under its analysis under the fourth Deledio Step at [69]. There, critically, the Tribunal said:

There are two circumstances in which a decision-maker can be satisfied beyond reasonable doubt. The first is the existence of a fact or facts inconsistent with the reasonable hypothesis. The second is the non-existence of a fact essential to the reasonable hypothesis.

(Emphasis added.)

54    It appears the Tribunal sought to capture the propositions articulated by Mason CJ, Gaudron and McHugh JJ in Byrnes at 570, but it made one fatal error: it did not properly appreciate that in both of those circumstances, the standard of proof is beyond reasonable doubt. I agree with the applicant that on this occasion I cannot simply dismiss statements such as these as imprecision in drafting. And it is apparent in the reasons for decision that the Tribunal did not substantively apply the prescribed standard of proof at the fourth Deledio Step. There was a clear dilution in the standard of proof with the effect that s 120(1) was misapplied.

55    Recently, in R v Dookheea (2017) 262 CLR 402, the High Court reiterated that “beyond reasonable doubt” is the highest standard of proof known to the law, and therefore requires a much higher state of satisfaction than proof on the balance of probabilities. At 426 [41], their Honours stated that, in the criminal context, in order for a jury to be:

satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.

56    To transpose this to the present context, in order for the Tribunal to be satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved does not simply mean either concluding that: (i) the fact or fact relied upon to support the hypothesis may not be true or even that it is more likely than not that it is not true; or (ii) a fact inconsistent with the hypothesis may be true or even that it is more likely than not to be true. What is required to reject a veteran’s claim is a much higher state of satisfaction, which, in my view, and with respect, the Tribunal in the present case did not reach.

57    On the subject of the claimed bullying at Nui Dat, the Tribunal said that it was satisfied beyond reasonable doubt that the chain of bullying “did not take place” relying on: evidence that Warrant Officer Church arrived in Nui Dat on 21 January 1970 (being after the date the applicant claimed); the applicant’s failure to mention the bullying to a psychiatrist and include it in his 2012 application for a pension; and the incident with the loaded rifle lacking credibility because of the absence of corroborating evidence. The Tribunal also made a finding that the applicant “clashed” with Warrant Officer Church in the period of about five weeks when they served together in Nui Dat (i.e. after 21 January 1970). Given that finding, it is difficult to see how the Tribunal could properly have been satisfied on the evidence that claimed bullying after 21 January 1970, when both the applicant and Warrant Officer Church were both at Nui Dat, had been disproved beyond reasonable doubt. How could the Tribunal on the one hand accept that there had been a period of clashing yet simultaneously conclude that bullying had been disproved to the highest standard known to the law? There was no compelling evidence before the Tribunal that incontrovertibly demonstrated that the bullying as claimed by the applicant was without factual foundation. Hence, notwithstanding its intermittent assertions about requiring proof beyond reasonable doubt, it appears the Tribunal reached its conclusion by applying the lower civil standard of proof. It is tolerably clear that it reasoned that because the applicant did not disclose the bullying to his psychiatrist nor in his 2012 pension application and because the incident with the loaded rifle lacked credibility, it was unable to “accept as credible the particular contentions the Applicant made about bullying by [Warrant Officer] Church”. In substance, the Tribunal rejected the applicant’s claim on the basis of disproof on the balance of probabilities. That is a clear misapplication of s 120(1) which entails disproof of entitlement beyond reasonable doubt.

58    The Tribunal also fell into error when it concluded that it was satisfied beyond reasonable doubt that the First and Second Incidents were disproved. It reached that conclusion based on: the absence of corroborating records or accounts (particularly in the guard report at the BEQ); the fact that the two incidents were not recalled by people interviewed in the preparation of the Robottom Report; the statement of Mr Laurie providing that Australian Army vehicles were “habitually parked” behind the BEQ (in relation to the Second Incident); and the omission of the First and Second Incidents in the applicant’s 2012 pension application. With respect, I find it surprising that the Tribunal could be satisfied on that evidence that the First and Second Incidents had been disproved beyond reasonable doubt. The existence of those enumerated facts, even taken cumulatively, is not inconsistent with the occurrence of the First and Second Incidents as claimed by the applicant. To illustrate the point, even setting aside the difficulties associated with an unsigned and untested statement, and accepting that Australian Army vehicles were “habitually parked” behind the BEQ, does not foreclose the possibility, the probability of which we do not know, that two vehicles were parked in front of the BEQ on the night of the Second Incident as the applicant asserted. The Tribunal, however, concluded that “Australian Army vehicles were not in fact left, essentially unprotected, on the open street at night when there was a secure compound behind the BEQ where the vehicles were kept overnight”. The evidence did not support such a categorical finding against the applicant. Again, the Tribunal’s path to disproof was the product of misapplying the statutorily prescribed standard of proof.

59    Lack of corroborating evidence is also not inconsistent with, or capable of preventing the Tribunal from accepting, the applicant’s evidence on the First and Second Incidents. As Hunt J observed in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 10-11:

It is, of course, important in many cases in determining whether or not the evidence of the taxpayer should be accepted to consider whether it is corroborated … it is not obligatory for a taxpayer … to call all the material witnesses and to produce all the material documents which support his evidence … It is certainly wiser for the taxpayer to do so in most cases so as to ensure that his own evidence is accepted, but even where he does not do so the tribunal of fact may nevertheless be sufficiently impressed with the taxpayer as a witness that his evidence is accepted without such corroboration or without the whole of such corroboration. If his evidence as to his purpose is accepted, then he has discharged his onus of proof whatever corroborative evidence he has or has not called.

There is no requirement of law that a taxpayer on a taxation reference or appeal is obliged to produce other evidence or corroborate his own evidence, nor should there be any rule of practice adopted in such cases by which such corroboration is required. That was apparently a requirement of Canon Law under the influence of Roman Law, but (except in prosecutions for perjury) there is no such requirement in the Common Law: Cross on Evidence, 2nd Aust ed (1979), pars 9.2, 9.3, at pp 183, 184.

Whilst his Honour made such observations in the context of a different statutory scheme, I draw on the general proposition that evidence of an otherwise credible witness, in this case the applicant, can be accepted without corroborative evidence in his favour.

60    I accept that in view of the factors described above — the absence of corroboration, a statement that Australian Army vehicles were “habitually parked” behind the BEQ and an omission in the 2012 pension application — it could be open to a Tribunal to conclude that the applicant’s claims about the First and Second Incidents may not be true. That is, the facts as asserted could, on the balance of probabilities, be regarded as disproved. But that is not enough to reject a veteran’s claim under s 120(1). Beyond reasonable doubt is an exacting standard and requires a much higher standard of satisfaction than when applying proof on the balance of probabilities.

61    I also find it difficult to see how the applicant’s post-Vietnam life touched by a successful career, a 20-year marriage and positive familial relationships could underpin the Tribunal’s conclusion at [89] that it was satisfied beyond reasonable doubt that the claimed timing of the onset of the applicant’s psychiatric illness had been disproved. It is all the more surprising a conclusion given that a psychiatrist, a Dr Weissman, had given evidence that the applicant’s psychiatric symptoms commenced in Vietnam and such evidence had not been expressly rejected by the Tribunal. In the face of such evidence, the Tribunal’s conclusion on the clinical onset of the psychiatric illness is only explicable by reasoning that relied upon disproof on the balance of probabilities.

62    In light of the above, the Tribunal applied the wrong standard of proof and failed to carry out the mandate of s 120(1). Because I am of this view, it is unnecessary for me to consider in any detail whether the Tribunal inverted the inquiry in s 120(1) to ask whether it was positively satisfied beyond reasonable doubt that the applicant’s conditions were war-caused. If it matters, I consider that the Tribunal did, in parts of its reasoning, seek to establish the necessary causal nexus rather than to disprove it particularly when one looks at the language in [89] and the Tribunal’s persistent search for corroborating material.

63    In so concluding, the remaining questions of law and grounds can be dealt with briefly.

Question 1, Ground 1 and Question 2, Grounds 2 and 3

64    Ground 1 alleges that the Tribunal erred in finding that it was satisfied beyond reasonable doubt that the applicant had not experienced a category 2 stressor, in circumstances where it accepted on the evidence that he had “clashed” with Warrant Officer Church in the period of about five weeks when they served together in Nui Dat.

65    Grounds 2 and 3 allege that the Tribunal erred in finding that it was satisfied beyond reasonable doubt that: (i) the applicant’s depressive disorder was not war-caused; and (ii) the date of clinical onset of the applicant’s depressive disorder was not within 3 months or 5 years of the claimed stressors. The applicant developed this argument on two alternative bases. First, it was submitted that the Tribunal applied the wrong standard of proof in making those findings. Secondly, it was submitted that, even if the Tribunal applied the reverse criminal standard of proof, the findings were not open to it to make on the evidence.

66    Having regard to my reasons above that the Tribunal applied the wrong standard of proof in its application of s 120(1), grounds 1, 2 and 3 are made out on that basis.

Question 3, Grounds 4 and 5

67    Grounds 4 and 5 allege that the Tribunal erred in finding that it was satisfied beyond reasonable doubt that the applicant’s: (i) rectal polyps were not war-caused; and (ii) alcohol use disorder was not war-caused. The framing of these grounds was different from the preceding grounds. Ms Ryan submitted that the Tribunal’s state of satisfaction on these matters was not rationally supported by its findings of fact. It was submitted that a finding that the applicant’s over-consumption of alcohol was limited to four weeks during operational service does not, without more, constitute proof beyond reasonable doubt that his increased alcohol consumption was not linked to his service in Vietnam.

68    The respondent submitted that it was open on the evidence for the Tribunal to find that the applicant only over-consumed alcohol for “some four weeks” whilst in Vietnam and this was apt to dispel the hypothesis that his drinking habit after he returned home was formed during his service in Vietnam. It was further submitted that this Court should not substitute its own judgment on that factual question under the guise of determining that the Tribunal’s findings were not capable of supporting the requisite state of satisfaction.

69    I note that the Tribunal’s reasons and the parties’ submissions on these issues focussed almost exclusively on the applicant’s alcohol consumption with only a passing reference to the SoP for colorectal adenoma. I infer the Tribunal’s analysis was elided as the applicant’s claim regarding the rectal polyps was contingent on the factual foundation that his service in Vietnam caused him to increase his alcohol consumption.

70    The Tribunal’s failure to set out clearly its reasoning has not assisted in the resolution of this matter. It is unclear to me what exactly the Tribunal took into account to be satisfied beyond reasonable doubt that the over-consumption of alcohol in Vietnam was not causative of the applicant’s continued alcohol issues. The words “on balance” in the last sentence at [93] could be construed as suggesting that the Tribunal considered other matters in arriving at its decision. During the hearing, Ms Maud contended that the Tribunal looked at the evidence of the applicant’s drinking pattern during his service in Vietnam and afterwards. In that respect, the Court was referred to [30] where the Tribunal stated:

Mr Hunt said on his return to Australia he initially slowed his drinking but it slowly picked up over the years. However, he stopped drinking alcohol completely in 1992.

In these circumstances, I am uncertain whether the Tribunal reasoned that a limited period of over-consuming alcohol in Vietnam in and of itself was sufficient to prove beyond reasonable doubt that the applicant’s alcohol issues were not connected to his operational service. That being so, I make no adjudication on whether the Tribunal reasoned in an illogical or irrational way in concluding that it was satisfied beyond reasonable doubt that the applicant’s alcohol disorder and rectal polyps were not war-caused.

71    For the foregoing reasons, the appeal should be allowed with costs.

Associate:

Dated:    2 August 2019