Repatriation Commission v Hill [2002] FCAFC 192 (18 June 2002)

Last Updated: 12 July 2002

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Hill [2002] FCAFC 192

VETERANS' ENTITLEMENTS - post-traumatic stress disorder - claim for a pension in respect of war-caused disease - appeal from decision at first instance setting aside a decision of the Administrative Appeals Tribunal that, inter alia, the post-traumatic stress disorder was not a war-caused disease for the purposes of s 9(1) of the Veterans' Entitlements Act - where no dispute before the Tribunal that claimant for pension suffered from post-traumatic stress disorder - whether there was material pointing to a hypothesis that fitted the relevant template in the applicable Statement of Principles - nature of the question to be asked in the inquiry mandated by ss 120(3) and 120A(3) of the Veterans' Entitlements Act - whether Tribunal committed an error of law by asking the wrong question about the existence of the disease instead of about the causal connection between the disease and claimant's war service - error not inconsequential

Veterans' Entitlements Act 1986 (Cth), s 9(1), s 13(1), s 120, s 196B

Administrative Appeals Tribunal Act 1975, s 44(1)

Federal Court Rules, O 52, r 22(3)

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 discussed

Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 referred

East v Repatriation Commission (1987) 16 FCR 517 discussed

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 discussed

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 discussed

Deledio v Repatriation Commission (1997) 47 ALD 261 referred

Repatriation Commission v Bey (1997) 79 FCR 364 discussed

Repatriation Commission v McKenna (1998) 52 ALD 72 discussed

McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144 referred

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 referred

Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61 referred

Repatriation Commission v Stares (1996) 66 FCR 594 referred

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 referred

The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 referred

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 referred

Repatriation Commission v Cooke (1998) 160 ALR 17 referred

Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 referred

Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271 referred

REPATRIATION COMMISSION v KENNETH NORMAN HILL

D 1 of 2002

BLACK CJ, DRUMMOND & KENNY JJ

18 JUNE 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	D 1 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	KENNETH NORMAN HILL Respondent
JUDGES:	BLACK CJ, DRUMMOND & KENNY JJ
DATE OF ORDER:	18 JUNE 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Orders 2 and 3 of the orders made by the learned primary judge be set aside and the following orders be substituted:

(a) The decision of the Veterans Appeals Division of the Administrative Appeals Tribunal to the extent that it decided that

(i) the respondent's post-traumatic stress disorder is not a war-caused disease or a defence-caused disease; and

(ii) the respondent's psychoactive substance abuse or disorder is not a war-caused disease or a defence-caused disease,

be set aside.

(b) The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.

2. The appeal otherwise be dismissed.

3. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	D 1 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	KENNETH NORMAN HILL Respondent

JUDGES:	BLACK CJ, DRUMMOND & KENNY JJ
DATE:	18 JUNE 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an appeal from the judgment of a judge of the Court, setting aside the decision of the Administrative Appeals Tribunal ("the Tribunal") that, amongst other things, the post-traumatic stress disorder suffered by Mr K N Hill was not a war-caused disease as defined in s 9(1) of the Veterans' Entitlements Act 1986 (Cth) ("the Act").

factual background

2 Mr Hill was seventeen years of age when he joined the Royal Australian Navy on 23 October 1965. He served until 19 March 1978. He had two periods of operational service, both aboard HMAS Melbourne, from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966. These periods of operational service constituted eligible war service, as defined in s 7 of the Act. He also rendered defence service (as defined in Part IV of the Act) from 7 December 1972 to 19 March 1978.

3 Mr Hill joined the Melbourne on 5 February 1966. He had previously completed a three months' training course. His position in the ship was that of ordinary seaman, electrical mechanic.

4 Mr Hill's claim, which was lodged on 24 September 1997, was for a pension under s 13 of the Act in respect of three conditions, namely, (1) post-traumatic stress disorder ("PTSD"); (2) psycho-active substance abuse or dependence; and (3) electrocution. His claim was rejected by the Repatriation Commission ("the Commission") on 14 January 1998, by the Veterans' Review Board ("the Board") on 18 September 1998, and by the Tribunal on 20 November 2000.

5 On appeal from the Tribunal, the learned primary Judge stated in his reasons for judgment ([2001] FCA 1775) at [7] that:

The material before the Tribunal leaves no doubt that the applicant had been suffering from alcohol abuse for a long period of time. He gave evidence that he started drinking in 1966, and his drinking became progressively worse. In his early days he drank spirits but in the years 1969 to 1971 he developed a liking for beer and had stayed with beer ever since. By the time of his employment with Telstra [in about 1979] he said that when in town he was a regular drinker, consuming about eighteen cans of beer a day, sometimes as much as twenty-four cans. Naval medical records show that alcoholism was provisionally diagnosed in 1974. ... . Before the Tribunal there was medical evidence from four medical practitioners regarding the applicant's mental state; ... . Each of these medical practitioners diagnosed PTSD. The Tribunal found that there was material before it pointing to the applicant having an inability to recall an important aspect of the `trauma' on which his PTSD claim was based, that being one of the indicia of PTSD.

6 On appeal, the Commission did not challenge these observations. In the Tribunal, the Commission did not dispute that Mr Hill suffered from PTSD and that PTSD was a disease for the purposes of the Act. On the contrary, the Commission conceded in this Court that the Tribunal erred in so far as it considered whether the material before it pointed to the existence of the condition, although the Commission maintained that the error was inconsequential.

7 In making the claim, Mr Hill relied on three incidents in his service career. He suffered electrocution on board HMAS Melbourne on 16 March 1966. The very next month, he witnessed an incident in which a man drowned when a Sea Venom aircraft sank in the ocean and, some years later, he was involved in responding to a riot in New Guinea.

Electrocution

8 Mr Hill's evidence before the Tribunal was that, on joining the Melbourne, he was allotted to the "Café Party". This involved duties in the cafeteria, such as scrubbing tables, emptying plates, washing up and sweeping and mopping the deck. The Tribunal summarised his evidence about the electrocution in the following terms:

On the night of the electrocution, he had been working in the cafeteria and the evening meal was served from 6.30pm. It continued to be served until approximately 9.30pm or 10.00pm as the squadrons were on board. ... .

...

In giving his evidence, Mr Hill said that he had been assisting with emptying garbage bins down the chute into open waters. After returning to the cafeteria, he attempted to turn off a pedestal fan. The switch was located behind a hatch that had been opened. As he did so, he got an electric shock and another crew member had to knock him off with a broomstick. Mr Hill recalled shaking violently and he believed that his grip had been frozen by the contraction.

Mr Hill said that he woke up the next day in the ship's sick bay wondering where he was. When he awoke, he was tired and anxious as he did not know where he was. ... Mr Hill said that he had a burn under his right arm. He thought that he was released from the sick bay on the morning following the electrocution. He was not given any advice or recommendations on his discharge and there was no follow-up.

...

Mr Hill said in giving his evidence that he returned to his normal duties in the Café Party but could not recall for what period. He was later moved to the foretop of the ship and worked on the weather decks of the Melbourne. The move occurred before the ship reached Singapore.

The electrocution did not occur when Mr Hill was rendering eligible war service or defence service.

Sea Venom Incident

9 After the Melbourne left Singapore, Mr Hill was performing duties on the weather deck when he witnessed an incident involving a Sea Venom aircraft. He described the incident in the following terms:

As part of my duties I was surveying an area of 2-deck which required repainting as determined by one of my superiors. Whilst I was in the vicinity of one of their after sponsons I was aware that there were aircraft landing and I heard what sounded like an aircraft come in to land and then what sounded like the arrester wire snap and I was so very close to one of the sponson doors - these sponsons are an annex platform out on the side of the ship below the flight deck level. They used to carry anti-aircraft guns in its previous life. That sponson was actually clear and there were no gun apparatus on that sponson and I ducked out the hatch onto the sponson, staying under the eve of the flight deck, if you like, in time to see the Sea Venom. It occurred to me that he thought he'd snapped something and he'd given it full power to take off from the deck to try and fly around again and work things out or maybe even fly to a shore base somewhere if he got an assessment of the damage. He'd attempted to whack on full power and he seemed to have done that. The next thing I know is that the roar of the engines and the aircraft appeared over the side of the flight deck and he was suspended by his arrester hook. He was just hanging there. The arrester hook snapped and the aircraft plummeted down into the water. By this stage they decided to stop the ship and for some minutes I saw the aircraft floating out to the side of - directly below where I was standing and I saw a person in there trying to punch his way out through the canopy. That's been very disturbing to me. ... . The aircraft sank. Went to the bottom of the South China Sea, I assume.

This event occurred when Mr Hill was rendering eligible war service.

10 Mr Hill's evidence was that he believed that the pilot had died in the Sea Venom. When he was asked by his representative how he was affected by the incident at the time and what emotions he felt, Mr Hill replied:

Well, I really don't know, I really don't. ... . No, I don't know. It's - I guess it was the confusion, a feeling of confusion. I could see it happening there, it wasn't happening to you but it [was] happening to somebody and you couldn't do anything about it.

11 The Tribunal summarised the remainder of Mr Hill's evidence about the Sea Venom incident as follows:

In cross-examination, Mr Hill said that he first saw the Sea Venom hanging by its arrester hook and saw the hook pressed and snapped. The aircraft went down into the water and floated away. The Melbourne was put into reverse and the aircraft went alongside. He could see a man in the aircraft trying to punch his way out of the cockpit. It was easy to see inside the canopy. He was not aware that there had been two men in the aircraft and could not explain how one could escape. He disagreed with the account of the accident given by Mr Straczek [as to which, see below] ... .

12 Mr Hill gave evidence before the Tribunal that HMAS Melbourne proceeded to Vietnamese waters, although it did not dock in Vietnam but went on to Hong Kong. When he went on shore leave, he became very drunk for the first time in his life "... to drown memories" of "... the electric shock incident, and secondly of seeing a bloke trapped inside a canopy and no way of helping him".

13 In relation to the Sea Venom incident, the Commission provided the Tribunal with a copy of a publication called "Sea Fury, Firefly and Sea Venom in Australian Service". The publication, written by Stewart Wilson, included an historical account of De Havilland's Sea Venom aircraft. (This aircraft was, so the Tribunal said, a two seater aircraft accommodating a pilot and a radar operator/navigator sitting to the right of, and slightly behind, the pilot.) The publication included an entry, at p 138, in the following terms:

WZ900, 28 April, 1966; Landing accident aboard Melbourne in Philippine Sea. Aircraft caught wire but the knuckle broke; insufficient power to go around so crew ejected; aircraft crashed into sea, observer killed.

According to Mr Wilson, by 1966 the Sea Venom aircraft had been fitted with "two Martin Barker Mk.4A ejection seats" and the cockpit canopy was a "[j]ettisonable (bi-cartridge) rear hinging cockpit canopy".

14 The Commission also provided the Tribunal with a letter, written by Mr JH Straczek, Department of Defence, Naval History Directorate, that stated:

It is confirmed that one of HMAS Melbourne's Sea Venom aircraft was lost on 28 April 1966. De Havilland Sea Venom WZ900 of 816B Squadron crashed over the side of the Melbourne on landing.

A listing of naval aviation incidents complied by a former naval aviator states that the aircraft made a good approach and engaged the number two arrester wire on landing. However, the port knuckle parted and the pilot applied full power in an attempt to overshoot the flight deck, but the aircraft crashed over the side. Both aircrew ejected at sea level. The pilot, Lieutenant (P) JR Da Costa RAN, was rescued by helicopter. The observer, Lieutenant (O) EG Kennell RAN, disappeared and his body was not recovered.

This accident would be recorded in the ship's log and monthly Reports of Proceedings. Unfortunately, recent attempts to locate the then Department of the Navy file on the accident have been unsuccessful. (Exhibit 5)

We observe that Mr Straczek's account of the incident differed in material respects from the account in Mr Wilson's publication.

New Guinea Incident

15 Mr Hill was based in New Guinea in the years 1968-1969 and 1971-1972. One night in New Guinea, he was required to defend the Captain's house during a riot that he regarded as a life-threatening situation. This incident did not occur while Mr Hill was rendering eligible war service or defence service.

A Further Incident at HMAS Cerberus

16 Naval records, which were before the Tribunal, indicated that on 17 August 1966 Mr Hill was admitted to the infirmary after collapsing at HMAS Cerberus. He gave a history of having fainted a few days before, and an outpatient record dated 26 August 1966 recorded a provisional diagnosis of hysteria. A subsequent examination by a psychiatrist noted that there was "no real psychiatric disability".

17 Mr Hill's claim before the Tribunal was that his psyco-active substance abuse or dependence (i.e., his alcoholism) and PTSD arose out of or were attributable to the Sea Venom incident; alternatively, from a combination of his electrocution followed by the Sea Venom incident, the latter contributing to a material degree and aggravating the effects of the former.

legislative context

18 Pursuant to s 13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran where a veteran has become incapacitated from a war-caused injury or disease. (This case is concerned with a disease.) Section 9 of the Act sets out the circumstances in which a disease is taken to be war-caused. Relevantly, s 9(1)(a), (b) and (e) provide as follows:

9 War-caused injuries or diseases

(1) Subject to this section, 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;

...

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war 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 eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

19 In its reasons for decision, the Tribunal considered Mr Hill's claim only with reference to s 9(1)(b) of the Act. The primary judge observed in this regard, at [19]-[20], that:

Counsel for the respondent suggests that the Tribunal probably did so as the applicant's claim had more prospect of succeeding under s 9(1)(b) than under the other provisions of the section. That is probably so in relation to s 9(1)(a), but I do not think the same can be said about s 9(1)(e). Having reached a conclusion that the applicant's claim failed under s 9(1)(b) the Tribunal was required to consider the alternative claim which was made under s 9(1)(e).

Counsel for the applicant complains that because the Tribunal did not make express reference to s 9(1)(e) that the Tribunal omitted to consider its application to the alternative claim which contended that the Sea Venom incident led to the clinical worsening of PTSD that had already been suffered as a result of the electric shock. Whilst the Tribunal did not expressly refer to s 9(1)(e), it did address the alternative claim in a manner consistent with the provisions of s 9(1)(e) in par 95 of the reasons for decision, and concluded that the alternative claim failed because even if the applicant was already suffering from PTSD as a result of the electrocution, there is no material that points to a clinical worsening of the condition as a result of the Sea Venom incident. This particular finding has not been challenged in this appeal.

On this appeal, counsel for Mr Hill reiterated a submission that the Tribunal had "wrongly limited the possibility of connection with service to s 9(1)(b) and not s 9(1)(a) or (e)". No notice of contention was, however, filed on Mr Hill's behalf as O 52, r 22(3) of the Federal Court Rules would require.

20 Provision is made in s 120 of the Act for the standard of proof to be applied by the Commission, and on review by the Tribunal, in connection with the question whether a disease is a war-caused disease. Relevantly for this case, s 120(1) and (3) provide:

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

...

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

...

(b) that the disease was a war-caused disease ...

... 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 ... disease ... with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

Subsection 120(6) provides that nothing in the Act "shall be taken to impose" "any onus of proving any matter that is, or might be, relevant to the determination of the claim".

21 Because Mr Hill's claim was lodged after 1 June 1994, s 120A applies to his claim: see s 120A(1). Subsection 120A(3) relevantly provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a veteran with the circumstances of his particular service is reasonable only if there is in force a Statement of Principles (determined under subss 196B(2) or (11)) "that uphold the hypothesis". A Statement of Principles ("SoP") is made by the Repatriation Medical Authority under s 196B of the Act in respect of particular kinds of injury, disease or death.

22 In support of his claim for a pension on account of his PTSD, Mr Hill relied on SoP No 15 of 1994 as amended by SoP No 225 of 1995 ("the PTSD SoP"). The PTSD SoP was made under s 196B(2) of the Act. Where a SoP is made under s 196B(2), the SoP must set out the factors that must as a minimum exist, and which of those factors must be related to service, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of the relevant kind with the circumstances of that service.

23 According to cl 1 of the PTSD SoP, "the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting [PTSD] ... with the circumstances of [operational service]" are:

(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or

(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder.

24 The term "experiencing a stressor" is defined in cl 4 of the PTSD SoP as meaning:

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror.

25 The PTSD SoP also provides, in cl 4, that "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from the 4^th ed. of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders):

(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (e.g. unable to have loving feelings);

(vii) sense of a foreshortened future (e.g. does not expect to have a career, marriage, children, or a normal life span); and

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

The Tribunal's decision

26 At the commencement of its consideration of Mr Hill's claim, the Tribunal observed, at [86] of its reasons for decision, that:

[T]he incidents that occurred outside the periods of Mr Hill's eligible war service or defence service are not relevant in the context of these proceedings. That is to say, account can not be taken of the electric shock Mr Hill suffered on 16 March, 1966 or of the events in New Guinea. The only incident that occurred during either Mr Hill's war-caused [sic] or defence-caused [sic] service was the loss of the Sea Venom.

27 The Tribunal identified the issue for its determination as "whether any PTSD from which Mr Hill suffers arose out of, or was attributable to, his eligible war service". According to the Tribunal, at [88]:

The hypothesis put forward on his behalf is that his seeing the pilot unsuccessfully struggling to escape from the cockpit of the crashed Sea Venom either led to his suffering from PTSD or led to the clinical worsening of PTSD that he had already suffered as a result of the electric shock he had suffered.

28 After these observations, the Tribunal stated that it would "begin with the first limb of the hypothesis and consider whether the material points to the hypothesis and that is answered in this case by reference to SoP 15 as amended by SoP 225". At [89] of its reasons, the Tribunal found:

There is material pointing to a Sea Venom's having crashed in the sea when Mr Hill was on the Melbourne in the Philippine Sea. That is found both in the literature I have set out above and in Mr Hill's evidence. There is also material pointing to the observer's having been lost at sea and that is found in the same sources. Mr Hill's evidence of seeing a man in the cockpit is the material pointing to a person's being trapped. All of the material points to his having witnessed an event that involved actual and threatened death to those on board the Sea Venom. It does not, however, point to Mr Hill's having a response that involved intense fear, helplessness, or horror. He described his reaction as a feeling of confusion and a feeling that he could not do anything about it. That may be a response of helplessness but is not one that could be described as `intense' as required by SoP 15 as amended by SoP 225. As the traumatic event must be both an event of a certain sort and leading to a person's having the specified response; the event involving the Sea Venom does not, for Mr Hill, amount to a traumatic event to which he has been exposed.

29 As the primary judge noted, the description of a "traumatic event" in par (a) of the definitional description of PTSD in cl 4 of the PTSD SoP is materially the same as the definition of "experiencing a stressor". If there were no error in the Tribunal's analysis at [89] of its reasons, then Mr Hill's claim failed since, according to the Tribunal, the material before it did not point to the "intense fear, helplessness or horror" referred to in these definitions.

30 At the same time, the Tribunal found that, although the evidence before it met paragraphs (b); (c) (i) and (iii); (d) (i), (ii) and (iii); (e); and (f) of the definition of PTSD in cl 4 of the PTSD SoP, it did not meet all the criteria for this condition. It concluded, at [93] of its reasons, that:

It follows that, although the material points to Mr Hill's meeting some of the criteria required for a finding of PTSD, it does not point to his meeting all of them. There is, therefore, no material pointing to Mr Hill's PTSD arising out of, or being attributable to the Sea Venom incident or event in his eligible war service.

31 According to the Tribunal, the second limb of Mr Hill's hypothesis was that he "was already suffering from PTSD as a result of suffering an electric shock". As to this, the Tribunal concluded, at [95], that:

If it is the case that he was already suffering from PTSD, there is no material that points to a clinical worsening of the condition.

This finding and another finding concerning the appropriate clinical management of PTSD were not challenged in this Court.

32 The Tribunal ultimately found, at [96], that if it were incorrect in these conclusions, then it was "satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt". At [96] of its reasons for decision, the Tribunal stated:

That relates to the man who Mr Hill said was trapped in the cockpit. Having regard to the material in the publication, Sea Fury, Firefly and Sea Venom, by Stewart Wilson, as well as the extract from HMAS Melbourne 25 Years by Ross Gillett, I ... find beyond reasonable doubt that the Sea Venom was a two seater aircraft. On the same basis, I also find that the model of aircraft that crashed had both ejection seats and an ejection canopy. I also find that both the pilot and observer ejected from the aircraft. As there were only two people in the aircraft and as they had ejected, there could not have been any person trapped under the canopy. Even if only one person had ejected, one could not be trapped under the canopy as it must have ejected when the other person ejected. Mr Hill could not have seen a person trying to get out of the aircraft as it sank. It follows that I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt.

For these reasons, the Tribunal concluded that any PTSD suffered by Mr Hill was not war-caused (or defence-caused) within the meaning of the Act.

The decision of the primary judge

33 The primary judge held that, in reaching its decision, the Tribunal erred in three significant respects. His Honour stated, at [26] of his reasons for judgment, that:

First, I consider that the Tribunal erred at the third stage of the four stage approach in that it engaged upon a fact finding exercise. At the third stage the Tribunal should still be dealing with the hypothesis. Fact finding, insofar as it is necessary, does not arise until the fourth stage. Moreover, in doing so, the Tribunal departed from the requirement of s 120(1) which requires that the Commission (and in turn the Tribunal) shall determine that a disease was a war caused disease unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. Secondly, I consider the truth of the fact about which the Tribunal was satisfied was not a fact inconsistent with the hypothesis that disproved it beyond the reasonable doubt. Thirdly, the Tribunal failed to consider at all the claim based on psycho-active substance abuse or dependence, the SoP requirements for which are considerably less onerous than those for PTSD.

34 The primary judge considered that, in addressing each of the paragraphs of the definitional description of PTSD, the Tribunal embarked upon stage three of the approach approved by the Full Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98 ("Deledio"). His Honour concluded, at [31], that:

[T]he Tribunal erred in finding that the hypothesis did not fit the template requirement of par (a) in the way that it did. The hypothesis advanced by the applicant was that he did suffer an emotion of helplessness that was intense, and sufficiently so to cause him recurrent distressing recollections of the event. As an hypothesis, it fitted the requirement of par (a), and that was sufficient to meet the third stage requirement. It was not until the fourth stage that the Tribunal should have engaged upon the fact finding exercise of whether in truth the applicant's emotion of helplessness was `intense'. At that stage, it was for the Commission to disprove the fact beyond reasonable doubt. That is a very different burden of proof to the one which the Tribunal has applied in its reasoning in [[89] of the reasons of the Tribunal].

35 In relation to the Tribunal's finding (at [91]) that Mr Hill "only comes within two, and not three, of the factors set out in paragraph (c)" of the definition of PTSD, his Honour said at [34]:

Again, the Tribunal has erroneously engaged upon a fact finding exercise at the third stage. Moreover, the observation that `Mr Hill must, however, bring himself within two of the other sub-paragraphs of par (c)' imposes a standard of proof which is contrary to the requirement of s 120(1). ... .

36 The primary judge also held that the Tribunal erred in concluding that the truth of a fact inconsistent with the hypothesis had been proved beyond reasonable doubt. His Honour observed at [36]:

It is impossible to tell from the evidence what may have been in the water which may have led the applicant to gain the impression which he did about what happened if, indeed, his present recollection of events is erroneous. The brief description of the incident in Sea Fury, Firefly and Sea Venom, is inadequate. It implies that the crew ejected whilst the aircraft was airborne. This is contrary to the description of the incident from the Naval History Directorate which says that the aircraft had crashed over the side of the ship, and ejection occurred at sea level. The Naval History Directorate does not indicate the source of this account. It does not rule out that the best eyewitness to what happened in the water was the applicant. On the applicant's account of what happened, it is not difficult to contemplate ways in which the ejection process may not have cleared one of the occupants from the plane. The evidence does not disclose any other explanation for the loss of the observer. The respondent under s 120(1) carried the burden of establishing that the relevant fact did not occur. The relevant fact in this case would be that the veteran had experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury, or that the veteran's response involved intense fear, helplessness or horror. In my opinion a finding beyond reasonable doubt that there could not have been any person trapped under the canopy of the plane as described by the applicant does not disprove these facts. The finding would do no more than indicate that the applicant's perception of what happened was on a matter of detail wrong. The finding does not deny that the applicant witnessed the plane crash which involved actual death. The finding says nothing about the emotional feelings experienced at the time by the applicant. It would be a strangely insensitive person who witnessed a person being drowned who did not experience intense helplessness. The Tribunal's finding does not justify a rejection of the hypothesis at the Deledio fourth stage.

37 Finally, his Honour held that the Tribunal had erred in failing to consider Mr Hill's alternative claim for psycho-active substance abuse or dependence. On appeal, the Commission conceded that the Tribunal erred in this regard and, for this reason alone, part of the Tribunal's decision should be set aside.

The parties' submissions

38 The present appeal is principally concerned with that part of his Honour's orders that set aside the Tribunal's decision with respect to Mr Hill's PTSD. The Commission challenged his Honour's decision in this regard on three main bases.

39 First, the Commission submitted (and counsel for Mr Hill denied) that the primary judge erred in holding that ss 120(3) and 120A(3) of the Act required merely a hypothesis connecting a veteran's injury or disease with his war service that fitted an applicable SoP (assuming there was one). In doing so, the Commission noted the requirement that a hypothesis, to be reasonable, must be raised or pointed to by the material. In written submissions, the Commission contended that:

[T]he primary Judge proceeded on the basis that it was enough for Mr Hill to advance a hypothesis that was consistent with the SoP; and that the AAT erroneously engaged in fact-finding when it made a finding of fact that the material did not point to Mr Hill's reaction at the time involving `intense ... horror' that being a component of a reasonable hypothesis as prescribed by the SoP.

40 In written submissions in reply, counsel for the Commission again referred to the requirements of ss 120(3) and 120A(3) of the Act. Counsel submitted that, in order to satisfy these provisions:

The hypothesis must be one that is pointed to by the material and, as pointed to by that material, must be consistent with the relevant SoP. If both conditions are met, it is a reasonable hypothesis.

Whether or not the material did raise a hypothesis of the type required by an applicable SoP was, so counsel for the Commission contended, a question of fact for the Tribunal to determine.

41 Secondly, the Commission contended (and counsel for Mr Hill denied) that the primary judge erred in imposing on the Commission a burden of proof. Counsel for the Commission explained this contention in written submissions as follows:

The primary Judge's objection to the course adopted by the AAT was partly driven by his Honour's assumption that it was for the Commission to disprove beyond reasonable doubt, at the 120(1) stage, that Mr Hill's emotion of helplessness was intense.

42 Thirdly, the Commission submitted that his Honour erred in holding that it was not open to the Tribunal to declare itself satisfied beyond reasonable doubt of a fact inconsistent with the hypothesis relied on by Mr Hill to support his claim for a pension. Again, counsel for Mr Hill contended that, on the contrary, there was no error shown in his Honour's approach in this regard.

What do ss 120(3) and 120A(3) require of a decision-maker?

(i) The authorities

43 Section 120(3) was introduced into the Repatriation Act 1920 (Cth) (by way of amendment to s 47 of that Act) by s 16 of the Repatriation Legislation Amendment Act 1985 (Cth) in response to the decision of the High Court in Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 ("O'Brien"). As the Full Court of this Court explained in East v Repatriation Commission (1987) 16 FCR 517 ("East") at 522:

The consequence of the majority view in O'Brien was that in any case where, at the end of the day, it was impossible to determine the cause of an incapacity or death - or, in the case of an incapacitating or fatal disease, the cause of that disease - the application must succeed. Cause being unknown, the Commission could not negative, beyond reasonable doubt, the possibility that there was a causal relationship between the veteran's war service and his or her subsequent incapacity or death. Where cause was unknown claims would, therefore, have to be allowed even though there were no facts to suggest a connection between the incapacity or death and the war service; and such claims were, quite properly, allowed in the period immediately following O'Brien.

44 The Court added at 532:

The obvious intention of the 1985 amendment was to reverse, to some extent, the trend towards improvement of the position of claimants. Parliament wished to retain the requirement that the Commission should negative claims beyond reasonable doubt but to limit the operation of that requirement to cases where there was some reason to believe in the existence of a causal connection.

45 The High Court considered the operation of ss 120(1) and (3) (prior to the introduction of s 120A(3)) in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 ("Bushell"). In a joint judgment, Mason CJ, Deane and McHugh JJ stated at 413-6:

Sub-section (3) is concerned with whether `the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis. Its principal purpose is to overcome the effect of the judgment of this Court in [O'Brien]. ... .

...

The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (`the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. ... .

...

If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused `unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination'. The use of the terms `the material' and `raise' strongly suggests that sub-s (3) is not concerned with the proof or satisfaction of a claim but with whether there is some `material' which calls for a determination under s 120(1). ...

...

[I]t is the duty of the Commission under s 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s 120(1). But once the material raises such a hypothesis, the operation of s 120(3) is spent and the case falls to be determined in accordance with s 120(1). That is to say, the Commission must determine that the injury etc. was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.

46 In Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 ("Byrnes"), Mason CJ, Gaudron and McHugh JJ observed at 569-70, again in a joint judgment, that:

The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.

47 Their Honours summarised the position at 571:

(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

48 Section 120A (and associated provisions such as s 196B) were introduced into the Act by the Veterans' Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994 (Cth). The purpose of the 1994 amendments was discussed by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 268-271 and, subsequently, by the Full Court on an appeal from his Honour's judgment.

49 At 95-96, the Full Court in Deledio expressly agreed with Heerey J (at 275) that:

[I]t 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. ... the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.

50 At 97-98, the Full Court summarised what ss 120(1) and (3), together with s 120A(3), required of a decision-maker (in this case the Tribunal). Relevantly the Court said:

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

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

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

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

(ii) The case at hand

51 In this case, the Tribunal was required to measure any hypothesis raised (or pointed to) by the material before it against the "template" of the PTSD SoP; and, if the hypothesis as raised (or pointed to) by the material fitted the template, then the Tribunal could accept the hypothesis as a reasonable hypothesis for the purposes of s 120(3) of the Act. If the hypothesis did not fit (because it did not contain the factors which the SoP set out as the minimum that must exist and be related to the veteran's service), then the hypothesis would not be reasonable for the purposes of s 120(3) and Mr Hill's claim would fail. That is, before Mr Hill could succeed on his pension claim for PTSD, the Tribunal had to be satisfied that the material before it raised a hypothesis of connection that was upheld by the PTSD SoP. (If the Tribunal was so satisfied, then it had to go on to consider whether it was satisfied beyond reasonable doubt that the factual basis upon which the hypothesis depended did not exist.)

52 Since the Commission did not dispute that Mr Hill was suffering from PTSD, the main issue before the Tribunal concerned the connection between Mr Hill's PTSD and his service. Mr Hill's position was that the material before the Tribunal raised a hypothesis that fitted cl 1 (a), (b), or (c) of the PTSD SoP because the material pointed to either his "experiencing a stressor" (as defined in cl 4 of the PTSD SoP) prior to the clinical onset or worsening of PTSD, or to his inability to obtain appropriate clinical management for the condition. Given that the Tribunal's rejection of the clinical worsening and clinical management hypotheses was unchallenged in this Court, the only possibility that fell for consideration by the primary judge was whether Mr Hill experienced a stressor prior to the clinical onset of PTSD. Before this hypothesis could warrant consideration under s 120(1) of the Act, the Tribunal had to be satisfied, amongst other things, that the material pointed to Mr Hill "witnessing" an event that involved "actual or threatened death", and that he responded with feelings involving "intense ... helplessness or horror": see [9]-[10] and [23]-[24] above. The hypothesis put forward by Mr Hill was that he had witnessed the crash of the Sea Venom aircraft on 28 April 1966 and had seen a man's unsuccessful attempt to escape from the cockpit; that he had responded with a feeling of what could be properly described as intense helplessness or horror; and that his response was experienced prior to the clinical onset of his PTSD or the clinical worsening of it. As a mere hypothesis, this fitted one of the templates in the PTSD SoP: cf stage 3 of the Deledio approach set out at [50] above.

53 As already noted, the primary judge stated, at [31] of his reasons, that it was sufficient to satisfy ss 120(3) and 120A(3) of the Act that the hypothesis relied on by Mr Hill fitted the SoP in this way. As the authorities show, however, in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must "raise" or "point to" such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. Although the terms of [31] of his Honour's reasons may signify error, we doubt that his Honour in truth failed to appreciate this latter requirement. Rather, as we see it, his Honour was focussing on another aspect of the matter (as to which, see below).

54 As already noted, the authorities have made the position with regard to ss 120(3) and 120A(3) of the Act clear enough. In Repatriation Commission v Bey (1997) 79 FCR 364 (which did not involve s 120A(3)), the Full Court reiterated earlier observations in East (at 531-32) and in Bushell (at 414) when it said at 372-3:

A `reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at 533.

55 Where s 120A(3) of the Act applies to a claim and there is a relevant SoP in force, whether or not an element is essential to a hypothesis will depend upon the terms of the SoP. As Goldberg J said in Repatriation Commission v McKenna (1998) 52 ALD 72 at 80:

For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by the Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles. ... .

On appeal, the Full Court approved these propositions: see McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144 at 150-1. Put another way, a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: see Deledio v Repatriation Commission at 274-275, Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 at 704 per Weinberg J, and Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61 at 68-70.

56 Counsel for Mr Hill referred to Byrnes at 569-70 and Repatriation Commission v Stares (1996) 66 FCR 594 ("Stares") in support of the proposition that, in some cases, a hypothesis may assume the occurrence of certain facts and that the making of the assumption does not necessarily render the hypothesis unreasonable. This was the position prior to the introduction of ss 120A and 196B: see Stares at 601. For example, in Byrnes at CLR 570, the High Court held that:

[T]he appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.

Section 120A did not, however, apply to the claims made in Byrnes or Stares.

57 Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.

58 In order for Mr Hill to succeed, the hypothesis raised by the material before the Tribunal had to fit the template set out in the PTSD SoP. Mr Hill relied (and continues to rely) on a template that included the elements set out in cl 1(a) of the SoP (namely, that he experienced a stressor (as defined in cl 4) prior to the clinical onset of PTSD). In Mr Hill's case, "experiencing a stressor" was an essential ingredient of the hypothesis connecting PTSD with his war service. Amongst other things, this ingredient required a response to the witnessing of a particular kind of event that involved "intense fear, helplessness or horror". In consequence, in order to satisfy ss 120(3) and 120A(3), the material before the Tribunal had to point to a response of this kind. A question for the Tribunal was, therefore, whether the material before it raised (or pointed to) the witnessing by Mr Hill of an event of the kind described in par (a) of the definition of "experiencing a stressor", and his responding by emotions of the kind referred to in par (b) of the definition. The Tribunal apparently found that there was material pointing to Mr Hill's witnessing of an event of the kind described in par (a) of this definition, but not to his responding in the manner required by par (b). But for one matter, this approach would conform to the requirements of ss 120(3) and 120A(3) of the Act.

59 Plainly enough, before making a finding of this kind, the Tribunal must consider all the material before it. Having done so, the question whether the material raises or points to a relevant hypothesis of connection is essentially a matter for the Tribunal. As the primary judge emphasised, proof of facts is not in issue at this stage: Byrnes at 571 and Deledio at 97-98. The Tribunal may conclude that the material does not raise or point to a hypothesis that fits the template of a relevant SoP and that the hypothesis cannot, therefore, be accepted as reasonable. This decision cannot be the subject of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), unless, in making it, the Tribunal has acted otherwise than in accordance with the law. If a tribunal falls into an error of law "which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers": see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. An error of law of this kind may support an appeal under s 44 of the AAT Act on a question of law: cf The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 231-232 per Wilcox, Burchett and French JJ.

60 The critical question in this appeal is whether the reasons of the Tribunal, when read as a whole, disclose an error of law of a relevant kind: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 280-1 per Brennan CJ, Toohey, McHugh and Gummow JJ and 292 per Kirby J. Although the primary judge may have expressed the question a little differently at [31] and [34], his Honour held, in substance, that the Tribunal had either identified the wrong issue and asked itself the wrong question, or had regard to irrelevant considerations and ignored relevant considerations: cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [4] per Gleeson CJ, [83]-[84] per McHugh, Gummow and Hayne JJ and [38]-[44] per Gaudron J and the Notice of Appeal dated 20 December 2000, ground (f).

61 We agree with his Honour that, when read as a whole, the Tribunal's reasons disclose an error of law, although we would characterise the error differently. In the circumstances of this case, the Tribunal erred by identifying the wrong issues in considering whether the material before it fitted a template in the PTSD SoP. As the final sentence of [89] of its reasons illustrates, in this paragraph, the Tribunal was not turning its mind to cl 1 of the PTSD SoP and to "experiencing a stressor". Rather, in [89] to [93], the Tribunal was considering whether the material before it pointed to the elements of "post-traumatic stress disorder" as defined in cl 4 of the PTSD SoP. This inquiry was not the correct one. The inquiry would have been relevant if there had been a dispute before the Tribunal as to whether or not Mr Hill was actually suffering from PTSD. As already noted, however, there was no such dispute (see [52]). As counsel for the Commission observed on the hearing of this appeal, the matter proceeded in the Tribunal on the basis that Mr Hill's condition was not in issue. Quite plainly, the discussion at [89]-[93] of the Tribunal's reasons addressed the wrong issue or issues.

62 As noted already, the Commission in fact conceded that the Tribunal fell into error in this regard, but it submitted that the error was inconsequential. We reject this submission. We note, first, that ss 120(1) and (3) (together with s 120A(3)) are directed to the standard of proof for establishing a causal connection between, amongst other things, a veteran's disease and his war service, assuming the existence of the relevant condition: see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20 and Gosewinckel at 72. These provisions do not require any consideration of the question whether the veteran in fact suffered from the disease.

63 It should be borne in mind that the issue whether a particular disease exists is governed by s 120(4) of the Act, not ss 120(1) and (3). That is, the issue whether or not a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke at 20 and Gosewinckel at [49]. In this case, the relevant question under ss 120(3) and 120A(3) was whether there was material pointing to a hypothesis that fitted the relevant template in the PTSD SoP. The primary judge was clearly correct when he said, at [31], that the Tribunal should not engage in a "fact finding exercise" at this stage.

64 The conclusion that was critical to the Tribunal's decision was stated at [93] of its reasons. This was that there was "no material pointing to Mr Hill's PTSD arising out of, or being attributable to the Sea Venom incident or event in his eligible war service" because the material did not point to Mr Hill's meeting all of the criteria required for a finding of PTSD. In reaching this conclusion, the Tribunal identified the wrong issues and asked itself the wrong question. Put another way, the Tribunal determined that there was no material pointing to a causal connection between Mr Hill's PTSD and war service by reference to the wrong matters (i.e., matters irrelevant in law).

65 Counsel for the Commission submitted that, notwithstanding the error, the fact was that, at [89] of its reasons, the Tribunal had expressly found that the material before it did not point to a response of intense fear, helplessness or horror (i.e., that Mr Hill had not "experienced a stressor" as required by the causation requirement). Accordingly, counsel for the Commission submitted that the Tribunal had discharged its task under ss 120(3) and 120A(3) of the Act and that Mr Hill's claim must fail. Hence, so counsel submitted, any error on the Tribunal's part was inconsequential.

66 As counsel for the Commission observed, the definition of "experiencing a stressor" was materially the same as par (a) of the definition of PTSD. Hence, if one ignored (wrongly) the differences between the inquiry about causal connection and about the existence of the disease, then one might conclude that a finding concerning par (a) of the definition of PTSD would also be a finding about "experiencing a stressor". This appears to have been the Tribunal's approach in this case. In this way, the finding in [89] apparently conformed to the requirements of ss 120(3) and 120A(3), notwithstanding that the Tribunal was mistakenly directing itself to an issue about the existence of the disease. (In entering upon an inquiry as to the existence of PTSD, the Tribunal would have been wrongly entering "upon the fact finding exercise" to which the primary judge referred.)

67 The Commission's submission, so it seems to us, tends to obscure the fundamental nature of the error made by the Tribunal in failing to address the issues to which the case before it actually gave rise. The correct issue was, assuming Mr Hill suffered from PTSD as defined in cl 4 of the SoP, did the material raise or point to his "experiencing a stressor", as defined, during his operational service? There was no dispute that Mr Hill had PTSD. Had the Tribunal considered the matter on this basis, it may, perhaps, have reached a different conclusion (although this really does not matter). The fundamental character of the error invalidates the finding of the Tribunal on the question to which ss 120(3) and 120A(3) give rise. As the Full Court said in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 at 182:

The Administrative Appeals Tribunal is ... required by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), when giving its decision, to state the reasons for it, to set out its findings of fact and to make reference to the evidence upon which those facts were found. That is an obligation which the Tribunal undertook in the present case and its reasons are lengthy, careful and detailed. Such reasons ought not to be examined with an unduly critical or technical eye but should be read fairly with each sentence being weighed up and considered in the context of the whole.

If, on the reading of such reasons, an error of law appears, either by express statement or by necessary implication and if that error of law affected the decision reached, then the decision must be set aside. If a material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis ... .

other matters

68 It is unnecessary to discuss in detail the Commission's submissions that the primary judge erred (1) by imposing a burden of proof on the Commission; and (2) in holding that it was not open to the Tribunal to declare itself satisfied beyond reasonable doubt of a fact inconsistent with the hypothesis that was said to connect Mr Hill's PTSD with his war service.

69 Plainly enough, the primary judge did refer to the burden of proof at a number of places in his reasons for judgment. For example, in connection with s 120(1), his Honour described the Commission's task as "to disprove the fact [of an appropriate emotional response] beyond reasonable doubt" ([31]); and stated that the Commission "under s 120(1) carried the burden of establishing that the relevant fact did not occur" ([36]). If, as counsel for the Commission submitted, his Honour had intended to impose a legal onus on the Commission or on any other party, then his Honour would have been in error. The Act, in s 120(6), makes it plain that no party to a claim bears any onus of proof in relation to any matter that is, or may be, relevant to the determination of a pension claim. On the contrary, ss 120(1) and 120(3) provide that the decision-maker (in this case the Tribunal) is responsible for reaching the requisite satisfaction upon the matters identified in the Act. As the Full Court commented in Deledio at 94:

Consequently decision-makers at each level of merits review of veterans' entitlements must gather for themselves or have presented to them in proceedings by parties, material relevant to such claims and which is able to assist the decision-makers in their functions under s 120(1).

70 Read, as they must be in their entirety, his Honour's reasons do not show that he was under any misapprehension that the Commission or anyone else carried a legal onus. In relation to a similar submission to that made by the Commission on this appeal, the Full Court in Deledio observed at 95:

References to parties and burdens placed on them in this context amount to no more than accepting the practical situation which occurs in proceedings before the Tribunal where parties present, often in a legal adversarial way, material relevant to the decision-maker's task under s 120(1). They also frequently take pro and contra positions on all the relevant issues.

This observation is apt in the present case.

71 Finally, we reject the submission that his Honour erred in holding that, upon the basis of the matters to which the Tribunal referred, it was not open to the Tribunal to declare itself satisfied beyond reasonable doubt of a fact inconsistent with the hypothesis that was said to connect Mr Hill's PTSD with his war service. Whilst it is for the decision-maker alone to determine whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that a veteran's disease was war-caused, in determining whether it was so satisfied, the decision-maker must act in accordance with the law. At [36] of his Honour's reasons for judgment, his Honour noted the following matters:

* The Tribunal expressed itself as satisfied beyond reasonable doubt about some but not all features of the Sea Venom aircraft that were, or might have been, relevant to Mr Hill's account of what he had seen when the Sea Venom crashed.

* The two other accounts of the incident were very brief; their primary source was unstated; and they were inconsistent with one another.

* There was no evidence that might explain how the observer lost his life.

* A finding beyond reasonable doubt that, contrary to Mr Hill's account, no-one was trapped in the aircraft when it sank signified only that Mr Hill's perception was wrong on this point and not that he did not experience the relevant emotion.

72 We agree with these remarks. They show that, in finding that it was satisfied beyond reasonable doubt of a fact inconsistent with the hypothesis (mentioned above) connecting Mr Hill's PTSD with his war service, the Tribunal ignored relevant considerations (for example, the absence of evidence concerning the observer) and relied upon irrelevant considerations (that no-one had died in the aircraft). There is no need to consider whether there was error of the kind referred to in Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271 at [23] per Emmett and Allsop JJ.

summary

73 For the reasons already given, the Tribunal in this case identified the wrong issue or issues when it entered upon the inquiry mandated by ss 120(3) and 120A(3) of the Act, and fell into relevant error. For the reasons given in the preceding paragraph, it also fell into error when it held itself satisfied beyond reasonable doubt of a fact inconsistent with the hypothesis that was said to connect Mr Hill's PTSD with his war service. It follows that, save for one matter, we would not interfere with the orders made by the primary judge.

74 The Commission did not dispute that the Tribunal had erred in failing to consider Mr Hill's claim for a pension in respect of his psycho-active substance abuse or dependence and that the Tribunal's decision should, for this reason, be set aside and remitted to it in order that it might consider the claim in accordance with law. We accept, however, that the primary judge did not hold that the Tribunal had fallen into error in rejecting Mr Hill's claim for a pension in respect of his electrocution whilst on board HMAS Melbourne. We accept, as counsel for the Commission submitted, that his Honour did not intend to set aside the Tribunal's decision with respect to this claim. The orders made by his Honour should be varied to reflect this.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:

Counsel for the Appellant:	Mr P J Hanks QC with Ms E Ford
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr D De Marchi
Solicitor for the Respondent:	Mr Bill Piper
Date of Hearing:	9 May 2002
Date of Judgment:	18 June 2002