Dunlop v Repatriation Commission [2003] FCAFC 201 (27 August 2003)

Last Updated: 27 August 2003

FEDERAL COURT OF AUSTRALIA

Dunlop v Repatriation Commission [2003] FCAFC 201

VETERANS' ENTITLEMENTS - Appeal from primary Judge dismissing application for review of Administrative Appeals Tribunal ("AAT") decision - claim by appellant for war widow's pension - AAT determined that death of veteran was not war-caused - AAT concluded that no reasonable hypothesis had been raised connecting the death of the veteran with the service rendered - primary Judge found no error in AAT's decision - whether a reasonable hypothesis was raised on the material before the AAT - whether AAT provided adequate reasons - whether primary Judge erred

Veterans' Entitlements Act 1986 (Cth) ss 8, 9 and 120

East v Repatriation Commission (1987) 16 FCR 517 referred to

Repatriation Commission v Bey (1997) 79 FCR 364 cited

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

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

Repatriation Commission v McKenna (1998) 28 AAR 7 referred to

Hill v Repatriation Commission [2001] FCA 1775; (2001) 66 ALD 293 referred to

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 cited

ITA SYLVIA DUNLOP v REPATRIATION COMMISSION

V 845 OF 2002

SPENDER, TAMBERLIN AND KENNY JJ

MELBOURNE

27 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 845 OF 2002

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

BETWEEN:	ITA SYLVIA DUNLOP APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGES:	SPENDER, TAMBERLIN & KENNY JJ
DATE OF ORDER:	27 AUGUST 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs.

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	V 845 OF 2002

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

BETWEEN:	ITA SYLVIA DUNLOP APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGES:	SPENDER, TAMBERLIN & KENNY JJ
DATE:	27 AUGUST 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of Ryan J dismissing an appeal from a decision of the Administrative Appeals Tribunal ("AAT") which determined that the death of Raymond Dunlop ("the veteran") had not been war-caused. Raymond Dunlop was the husband of the appellant. They were married on 12 December 1944. The veteran committed suicide in 1972.

2 The veteran was born on 25 April 1922. He was graded as medically Class 1 on enlistment and served approximately twenty-two months in a regiment in Western Australia. On 23 March 1944 he embarked at Townsville for operational service in Merauke, a small village on the south coast of (what was then) Dutch New Guinea, approximately sixty nautical miles north-west of the boundary with Papua. After returning from war service in Merauke, the veteran served in infantry training battalions in New South Wales until his discharge on 20 November 1945. He was diagnosed with depression in early 1970 and for a period of about six months he used anti-depressant tablets. The veteran died from a self-inflicted gunshot wound on 24 November 1972 at the age of fifty.

3 On 2 October 1998 the appellant lodged a claim for a war widow's pension and on 4 January 1999 the Repatriation Commission ("the Commission") decided that the death of the veteran was not related to service. The appellant then appealed to the Veterans' Review Board and on 21 October 1999 that Board affirmed the decision of the Commission. The appellant appealed that decision to the AAT on 8 December 1999 and on 17 May 2001 the AAT affirmed the Commission's decision. The appellant then lodged a Notice of Appeal on 13 June 2001 to this Court which was dismissed on 15 November 2002 by Ryan J.

THE AAT DECISION

4 The relevant history is set out in the Appeal Book as follows:

"So far as may be gleaned from the T-documents and from a large body of historical data provided by the respondent prior to the hearing - including the report and associated documents of Mr Piper a military historian - the deceased was an apprenticed ironworker when he was called up for service in the Army on 5 November 1941. He was then aged 19 years and 7 months. It appears that the deceased was the youngest in a family of 6 children. The deceased's father served in the Great War as a soldier, but was mainly confined after discharge in the Repatriation General Hospital suffering from `shellshock'. The deceased rarely saw his father. It appears also that the deceased was close to his mother and sisters. He had a number of brothers who, having regard to their respective ages, were much older than the deceased.

On enlistment the deceased was graded as medically class 1 and his first posting was to an anti-tank unit. After a sea voyage to West Australia, he was transferred to a Light Anti-Aircraft (LAA) regiment. He served approximately 22 months in West Australia and his battery then travelled by rail to the Eastern States and embarked at Townsville on 23 March 1944 for Merauke, a small village on the south coast of (then) Dutch New Guinea, approximately 60 nautical miles (`n.m.') northwest of the boundary with Papau [sic].

The role of the LAA units was the protection of air fields from enemy aircraft. Their weapons were the Bofors 40mm gun. In addition to his battery having guns at Merauke, the battery had posts at locations considerable distances away. One post was at Tanahmerah, about 140 nm due north by air but almost twice this distance by sea and then upriver and another was at Eilanden River about 240 nm northwest up the coast from Merauke.

It is not known whether the Veteran served at these remote posts. His battery was withdrawn from Merauke after a period of about 7 months on 19 October 1944. There is no record of the battery having fired in anger during his tour of duty, or being fired upon. The Veteran then served in infantry training battalions in New South Wales until his discharge on 20 November 1945. During his period of service he was married on 12 December 1944.

On his discharge medical examination, the veteran stated that he had suffered from malaria and dysentery during service as well as tonsillitis, infected tooth sockets and dermatitis. No abnormalities were detected in his central nervous system nor were any emotional type injuries recorded."

5 The AAT described the appellant's observations of the veteran noting that:

"She described her husband prior to enlistment as being `clean cut, good looking, wonderful and not rude'. She said he did not drink or smoke cigarettes. Mr Dunlop apparently had a dry sense of humour and a number of close friends. He was not interested in sports. He was the youngest of six children and there was eight years between him and the next youngest sibling. On return from service Mrs Dunlop described her husband as being `grown up and more mature'. She said he retained his sense of humour and had a kind personality.

Prior to service Mr Dunlop was an iron worker in a pram factory but she said that he `hated' his job. He eventually left it and was unemployed for one week but was contacted by another pram manufacturer and employment was offered. Thereafter Mr Dunlop returned to that industry but did not enjoy the work. He eventually became employed repairing musical instruments."

6 The AAT referred to the appellant's account of the veteran's development of depression and noted her observations that "her husband was not depressed on return from service but eventually became depressed." Then followed a summary of the veteran's medical treatment, first from a general practitioner, Dr Jansz, and then from Dr Cunningham, a psychiatrist. The appellant recalled the veteran's attendance, on the recommendation of Dr Jansz, at weekly meetings or "recovery groups" of persons suffering from depression or anxiety. In respect of the veteran's war service, the AAT summarised the appellant's recollections in these terms:

"Mrs Dunlop knew little about her husband's service. She said there were many occasions where she attempted to engage him in conversation about the circumstances of his service but he would frequently respond by saying that it was `over' or that he `wanted to forget' about it. He also told her that he had no wish to discuss the circumstances. She did however learn from time to time that there were occasions where he would be engaged in `long marches' and that he was required to man a Bofors gun. She understood that there were `head hunters' in the district where he served overseas which caused him to be `petrified'. Mrs Dunlop said that her husband wrote to her daily when he was overseas and whilst he never referred to events of service, he frequently told her that he wanted to return home. She said there were occasions where he spoke about his colleagues having sustained injuries in `accidents' and she assumed that this may have been associated with `cleaning guns' or `playing sport'.

Mrs Dunlop said that her husband did not want to enlist or travel to Merauke because he feared that he would `end up like his father'. That is to say, because his father suffered injuries, which confined him as an inpatient in the Repatriation Hospital following World War I, he did not want to risk suffering a similar consequence. Additionally, Mrs Dunlop said that her husband wanted to be independent of doctors or hospitals associated with the Repatriation Commission because of the experiences endured by his father, which caused the deceased to take out private health insurance and be treated by doctors of his choosing."

7 The following part of the AAT's reasons summarised the medical and other evidence in relation to the application. It stated the evidence of Dr Cole, a psychiatrist who had been called by the appellant, in these terms:

"Doctor Cole said that the history he obtained of the deceased refusing to talk about service and suffering from insomnia and a restless sleep pattern with nightmares were important diagnostic features of post traumatic stress disorder. He said that the deceased probably was also depressed, but depression is a separate diagnosis to PTSD and persons with PTSD are not necessarily depressed.

He also thought that the deceased suffered from an `adjustment disorder' as a consequence of his return to civilian life after he was discharged from service.

Doctor Cole said that he understood that the deceased's service was `active' but he was not aware of the particular circumstances of it. He thought that the circumstances faced by the deceased after discharge from service was sufficient to satisfy the condition of `adjustment disorder' as it appears within the definition of `depression' within Instrument No. 71 of 1996. That is to say, the history given to him by Mrs Dunlop of the reaction of the deceased to his return to civilian life was sufficient to give rise to a diagnosis of `adjustment disorder'.

In cross-examination Doctor Cole said that he was not aware of the report prepared by Mr Piper, the military historian relied upon by the respondent. When he was informed that there were no reports of any enemy activity in Merauke after the deceased commenced his overseas service, Doctor Cole said that, whilst he would agree that there was no recorded account of any stressful event, and that his opinion as to the relationship between service and PTSD and depression would be strengthened if there was such evidence, he said that nothing was known about how the deceased `reacted as an individual' to service.

In re-examination Doctor Cole was asked whether he had heard anything in cross-examination which would `remove the reasonableness of the hypothesis'. Doctor Cole said he had not, but acknowledged that it was `more difficult' to maintain the `reasonableness' of the hypothesis that he had expressed in his report and in earlier evidence. He remained satisfied that the evidence of the applicant suffering disturbed sleep and refusing to talk about service was consistent with PTSD. He also thought that the applicant suffered from `depression' and had satisfied factor 5(b) of Instrument No. 71 of 1996 and also suffered from `adjustment disorder'."

8 In relation to the evidence of Dr Walton, another psychiatrist who had given evidence at the request of the Commission, the AAT noted that he had been unable to connect the veteran's depression with his war service, and observed that the deceased may have "suffered something, but I don't know it." Dr Walton expressed an inability to comprehend how Dr Cole had concluded that the veteran had been suffering from Post-Traumatic Stress Disorder ("PTSD") in respect of which he said that night sweats, insomnia and refusal to talk about war-time experiences were not necessarily indicators. Dr Walton was unable to discern from the report of Dr Cunningham, the veteran's treating psychiatrist, or any other material, anything to indicate that the deceased had been depressed before 1969. The AAT then noted:

"Doctor Walton said that he had learnt from Mrs Dunlop of the possibility of her husband being exposed to `head hunters' in Merauke, but he was not aware whether there was any actual contact or whether the deceased was in any `meaningful danger'.

When he was asked to refer to the discharge medical documents and the history of Mrs Dunlop that her husband had retained his sense of humour at discharge and was a quiet, mature person, Doctor Walton said that this did not indicate to him that the deceased at discharge was depressed."

9 Dr Walton excluded the possibility that the veteran had experienced "a severe psycho social stressor within two years immediately before the clinical onset of depressive disorder" which was one of the factors required by the Statement of Principles ("SoP") contained in Instrument No 58 of 1998 in relation to "Depressive Disorder." The definition of "severe psychosocial stressor" for that SoP was the same as that inserted into the SoP related to "Suicide or Attempted Suicide" by Instrument No 71 of 1996 as amended by Instrument No 177 of 1996. However, Dr Walton accepted that the veteran had been severely depressed, in the sense of suffering a major depressive disorder, at the time of his death and in that respect satisfied factor 5(b).

10 Finally, the AAT recounted the evidence of Mr Robert Piper, a military historian, whose research revealed that 172 LAA Battery, to which the veteran had been attached, had been stationed at Merauke from March 1944. Although physical conditions there were unpleasant and difficult, Japanese air raids had ceased in 1943 and Mr Piper's research indicated that the location was generally quiet. However, he did note an entry in the Battery diary for 30 June 1944 in relation to an incident whereby an officer "fatally drowned at post VI, body buried at sea." There was no evidence the deceased was aware of this. As to that entry, according to the AAT, Mr Piper said;

"... there was nothing by that entry to indicate that the unit was under attack, or under threat, or that persons stationed there were in danger. He said if there was a drowning it could have occurred during leisure activity, or in a fast flowing stream. Alternatively, he said it was not beyond possibility that the officer could have been killed as a result of a crocodile attack and the entry of drowning would be in the circumstances less `shocking'. He said it would be unusual to bury a body at sea, when more usually any death during service would have been buried on land."

11 As to the suggestion that the veteran had been exposed to "head hunters", the AAT noted that Mr Piper had said;

"... that any native person who had a `bone through their nose' were described by the Dutch who colonised the area as `head hunters'. He said between four and five thousand Australians were in Dutch/New Guinea between 1943 and 1944 and there was never a report of any problem associated with `head hunters'. (Mr Piper referred to a photograph at page 47 of the book `My Back Seat War' which depicts a native person described as `a Merauke local - head hunter by trade'. The person is seated with his legs crossed and smiling. It would appear that the person is located at a military camp by reason of the presence in the photograph of a military vehicle and persons in uniform)."

12 Under the heading "Conclusion & Reasons For Decision", the AAT noted that s 8(1) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") provides that the death of a veteran shall be taken to have been war-caused if:

".....

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

..."

13 The AAT accepted that s 8(1)(b) required only that war service should have made some contribution, of whatever degree, to the death of the veteran. It then made these findings of fact:

"In the present case, little is known about the deceased's service in Merauke. He did not discuss it with his wife and positively discouraged any conversation concerning the service. Mrs Dunlop did tell us that on the rare occasions that he spoke about Merauke, he referred to accidents or injuries involving other service personnel. She understood that he was fearful of `head hunters' and being on bivouac. Whilst he wrote letters daily to Mrs Dunlop and wrote that he was anxious to return home, he did not refer to his circumstances in Merauke.

What may be learnt from other information available to us is that the deceased arrived in Merauke in 1944, yet the last recorded Japanese air raid was in 1943. There is no material available to us which points to any hostility or the use of weapons against the enemy. There is documented information concerning instruction to troops by an officer in charge of local conditions, yet it suggests no more than instructions given with respect to local circumstances. There is a reference in the war-diary to a soldier drowning and being buried at sea, yet on the evidence of Mr Piper - even if that did occur as recorded - it could have been associated with some leisure activity. The reference to `head hunters' suggests an importance or significance has been attached which is not warranted. On the evidence of Mr Piper the term `head hunter' is unfortunate, and probably not deserved. The reference to establishing an Australian Rules football team is in our view inconsistent with hostility and is more likely to be consistent with recreation and establishing or improving morale."

14 The AAT discussed the need created by s 120(3) of the Act for a "reasonable hypothesis" to be raised connecting the death of the veteran with the circumstances of the particular service rendered by the veteran. It noted, after referring to East v Repatriation Commission (1987) 16 FCR 517 ("East") and Repatriation Commission v Bey (1997) 79 FCR 364, that a reasonable hypothesis involves more than a mere possibility and must be "pointed to by facts even though not proved upon the balance of probabilities."

15 In relation to SoPs, the AAT referred to the judgment of a Full Court of this Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 ("Deledio"), from which it quoted this passage, at 97-98, as to the correct approach to the legislation:

"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

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

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

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

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

16 The AAT then identified the hypothesis relied on by Mr De Marchi, who appeared for the appellant before it and on this appeal, as being that "the deceased suffered depression or post traumatic stress disorder per factor 5(b) and (c) of Instrument No. 71 of 1996." After noting that it is a "rare application" where no hypothesis is raised in the sense of the first stage discussed in the extract from Deledio quoted at [15] above, the AAT concluded that this was such a case. It derived support for that conclusion from this passage from the judgment of Kenny J in Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61 ("Connors"), at 68:

"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material.... If the material does raise the hypothesis, then the decision-maker must determine whether it is reasonable". (Emphasis added)

17 The AAT further relied in this context on these observations by Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7, at 15-16:

"For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a 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 and if need be by more than one Statement of Principles. ..." (Emphasis added)

18 After those references, the AAT concluded:

"For the purposes of the present application, there is a missing `link' or element in the hypothesis namely, material, which points to a contribution by service. It is not enough that the deceased suffered depression, which probably contributed to his suicide. The depression must be connected to service. We can find no material, which points to that connection. No hypothesis therefore arises.

In the alternative if we were to assume that something or some event occurred in service which raises a hypothesis we could not be satisfied that it is `reasonable'. At best it would be a hypothesis `left open' (refer East).

We could not find that the third stage of Deledio is satisfied because even if a hypothesis has been raised it does not contain `one or more of the factors which the authority has determined to be the minimum which must exist and be related to the persons [sic] service (as required by sub-section 196B(2)(d) and (e)') refer Deledio.

Additionally, we could not be satisfied that paragraph 4 of Instrument No. 71 of 1996 has been satisfied. It records-

`The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person'.

The expression `related to service' is found at s 196B(14). We could not be satisfied that paragraph (g) is satisfied in the present case. That sub-paragraph reads as follows-

`A factor causing or contributing to an injury, disease or death is related to service rendered by a person if-

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

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

(ii) but for changes in the persons [sic] environment consequent upon his/her [sic] having rendered that service'.

In all of the circumstances the decision under review should be affirmed."

DECISION OF RYAN J

19 His Honour rejected a submission that s 9(1) of the Act applied to the present claim. This was because no determination had been made before the death of the veteran that the injury or disease from which the veteran died was an injury or disease determined in accordance with s 9 to have been a war-caused injury.

20 His Honour also rejected a submission that the AAT had failed to distinguish "operational service" from "war service". He considered that there could be no suggestion in this case that the death of the veteran resulted from an occurrence that happened "while he was rendering operational service" so as to come within s 8(1)(a) of the Act. He pointed out that all the remaining paragraphs of s 8(1) were predicated on a connection with the rendering of eligible war service. The reference by the AAT to "eligible war service" in its reasons was therefore, in his Honour's view, entirely appropriate and did not indicate any failure to take into account the evidentiary provisions in ss 120(1), 120(3) and 120A. His Honour did not accept that the AAT had failed to exhaust all the possible connections with war service indicated by s 8(1).

21 A submission was made for the appellant that the AAT had wrongly imposed an onus on the appellant to raise a reasonable hypothesis but this was rejected by his Honour having regard to the terms of the decision. Referring to the decision in Deledio, his Honour observed that all that was entailed by the first of the Deledio principles is that the AAT will commit a reviewable error if the material before it reasonably points to a hypothesis connecting the death with the veteran's war service and the AAT does not then proceed to the second stage of the inquiry directed by the second principle in Deledio. His Honour considered that the AAT had formed the view that the material before it did not raise or suggest any link between the veteran's war service and the depression which was presumed to have led to his death. He pointed out that in this case the hypothesis sought to be raised by the appellant depended on the assumed fact that either or both the veteran's fear "of head hunters" or the death of an officer from his unit precipitated the onset of depression which ultimately resulted in his death. He pointed out that the material before the AAT did not include evidence that the veteran suffered from depression at the time of his return to civilian life and that this was a matter which the AAT was entitled to take into account as part of the circumstances bearing on the reasonableness of the hypothesis.

22 A submission was made that the AAT had failed to take into account relevant considerations related to the veteran's fear of "head hunters", the accidental death of the officer from his unit, and the remote and hostile environment in which he had been required to serve. It was also submitted that the AAT had taken into account irrelevant considerations, including the fact that the last recorded Japanese raid had been in 1943 and that there had been "no hostility or the use of weapons against the enemy". His Honour rejected these submissions and pointed out that the hypothesis asserted was unable to identify any particular exigencies in the veteran's war service as disclosed by the material which, in the light of his known history, could reasonably be regarded as having had the effect of precipitating depression or PTSD. He also rejected a submission that the AAT had "carried over" or "accumulated" doubts in relation to the reasonableness of one part of the hypothesis and applied those doubts to consideration of other parts of the hypothesis. In response to a submission that the reasons of the AAT were unsatisfactory, his Honour concluded it could not succeed.

23 A submission was made that the AAT had been confused in applying the steps set out in Deledio and that there had been an overlapping and confusion of the steps which were said to be discrete. His Honour noted that the AAT pointed out that there was absent from the facts in the present case any proximity in time between war service and the onset of depression or some other fact connecting the veteran's death with war service. He considered that it was open to the AAT to conclude that no reasonable hypothesis had been raised. His Honour observed that there may be some circularity in the AAT's alternative finding that any hypothesis which might have been raised did not establish the relation necessitated under the relevant SoP, but he considered this was because cl 4 of the SoP relating to suicide, which dictates that the factors set out in at least one of the paragraphs in cl 5 must be related to any relevant service, requires a relationship to the relevant service rendered by the veteran and therefore imports into the SoP the first test postulated by the Full Court in Deledio.

24 His Honour did not discern any error in the AAT's primary finding that the material did not raise or point to the requisite hypothesis. He considered a number of other matters but rejected them as lacking substance. Finally, his Honour turned to the question of whether the AAT had wrongly required the appellant to raise or point to a reasonable hypothesis and concluded that, on a proper reading of the AAT's reasoning, there was no such error by the AAT. The primary Judge rejected arguments that the AAT had wrongly imposed an evidentiary onus on the appellant.

25 It was also contended that the AAT had fallen into error in stating that it could not be satisfied that the hypothesis connecting death with war service was reasonable. His Honour considered that the use of the word "reasonable" was no more than a restatement of its conclusion that his war service did not raise the essential link between depression which precipitated death and the circumstances of war service.

26 Finally, his Honour dismissed an argument based on a decision in Hill v Repatriation Commission [2001] FCA 1775; (2001) 66 ALD 293 on the basis that it was distinguishable from the present case.

27 His Honour concluded that no error of law had been identified in the AAT reasons and therefore he dismissed the application with costs because the conclusion reached by it was reasonably open to it.

REASONING ON APPEAL

28 The primary question for consideration is whether a reasonable hypothesis was pointed to on the material before the decision-maker within the principles set out in the first step in Deledio. If this requirement is not satisfied then there is no need to consider the other arguments raised for the appellant.

29 Section 120(1) of the Act requires that where a claim for a pension in respect of the incapacity from disease or death of a veteran relates to operational service the Commission must determine that the injury was a war-caused injury unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

30 By virtue of subs (3), in applying subs (1) the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or death was war-caused if after consideration of the whole of the material before it, it is of opinion that the material does not raise a reasonable hypothesis connecting the disease or death with the circumstances of the particular service rendered by the person.

31 By subs 120A(3) a hypothesis connecting a disease contracted by a person or death with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles, determined under subs 196(B)(2) or (11), that upholds the hypothesis.

32 The principal submission for the appellant is that the AAT misapplied the evidentiary provisions referred to above and the directions of the Court in Deledio as to the staged process by which a determination must be made. It is said that the AAT prematurely proceeded to evaluate the material supporting the hypothesis in undertaking the first stage of its consideration rather than reserving this for the last stage. This is because, so it is said, the AAT combined or telescoped the discrete steps to be taken at different stages thereby making it impossible to properly consider whether the material pointed to the hypothesis of connection and whether it was reasonable given the provisions of the SoP for suicide. It is submitted that the AAT did not examine the whole of the material to see whether it pointed to a hypothesis of connection with service. It is said that the AAT did not consider Dr Cole's report and evidence, the statement of the appellant or her oral evidence, or the inferences which could reasonably be drawn to support the hypothesis in relation to the first step. It is argued that the AAT dismissed the possibility of making a reasonable assumption by erroneously categorising it as a hypothesis which was simply left open. This, so it is submitted, ignores the fact that it is necessary to see whether the material points to the hypothesis being reasonable. At Stage 1 of Deledio the AAT was not permitted to make value judgments on the material but it did so. This is said to have occurred by accepting the evidence of the military historian and rejecting that of the widow that there were "head hunters".

33 There is no doubt that the AAT had regard to the principles in Deledio. It applied the first step and the third step and found against the appellant's claim. There is no legal necessity for the AAT to proceed from step to step in any mechanical manner. The AAT reasons do not indicate that any onus was placed on the appellant. The AAT cited East where the Full Court pointed out that a reasonable hypothesis requires more than a possibility, something which is not fanciful or unreal, or inconsistent with the known facts and must be a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. The AAT appreciated that it would be a "rare" case where a hypothesis could not be established connecting service with injury, disease or death and went on to say:

"However, on the material before us we struggle to comprehend what the hypothesis could be in the present circumstances."

34 This statement indicates that the AAT had regard to the material before it and asked itself the correct question, namely, whether the material raised the necessary hypothesis, with a full appreciation that the task of raising an hypothesis did not pose a high threshold. The AAT was conscious that it was necessary to determine whether each essential element in such a hypothesis had been raised or pointed to by the material as indicated by its reference to the quotation from Kenny J in Connors at [16]. In [60] of the AAT reasons in this case, it is apparent that the decision was based on the absence of an essential "link" or "element" in the hypothesis, namely, the absence of material which pointed to contribution by service. The AAT, in our view, correctly considered that the depression suffered by the veteran must be connected to service by a reasonable hypothesis to that effect and it determined that there was insufficient material which pointed to that connection and concluded therefore that there was no reasonable hypothesis. This was a decision for the AAT, and not for this Court.

35 In reaching its conclusion the AAT did not, on a fair reading of its reasons, reject or evaluate the comparative weight or acceptability of the material but simply found that on examination of all the material no reasonable hypothesis was raised or pointed to. There is no reference in its reasons to weighing the evidence or comparing the evidence at that point.

36 The material before the AAT indicated that:

* the veteran was in Merauke as a member of a light ant-aircraft battery for only seven months from March 1944;

* there was no record of engagement with the enemy or hostile fire;

* the appellant said that when the veteran returned from war service he was not depressed but was grown up and more mature and retained a sense of humour on his return;

* the veteran did not mention any incident in New Guinea but did refer to accidents;

* Mr Piper, the military historian, said the conditions were quiet during service;

* there would not have been a problem with "head hunters" and the troops had time to relax in safety; and

* the first treatment for depression by a general practitioner was in June 1969.

37 Dr Cole, a psychiatrist, reported that the symptoms described by the appellant pointed to post-traumatic stress disorder but the information was incomplete and he was not aware of the stress during the war but assumed service was stressful. He could not identify a particular stressor and this created diagnosis difficulties. Dr Cole speculated that a person separated from family for several years enduring hardships could come to suffer from depression. He said there was an interval of seven years between discharge from the army and onset of clinical depression.

38 Dr Walton could find nothing to connect the depression with war service. He accepted the material pointed to symptoms of depression in 1969 and there was difficulty adjusting to civilian life, but this did not point to depression. The retention of a sense of humour and greater maturity did not indicate depression.

39 It was open to the AAT to make a finding that there was no connection raised or pointed to by the material between the disease and death with war service of the veteran. It is clear that the AAT appreciated that his service was operational service and was eligible service. It is also clear that his service was within the description "eligible service" and also "operational service."

40 After [60] in its reasoning, the AAT considered an alternative approach on the assumption, which it was not prepared to find was made out namely, that there was some material which raised a hypothesis. The AAT however said that it could not be satisfied that such a hypothesis was reasonable because at best it would be a hypothesis "left open", which is not sufficient, and reference was made to East.

41 Where the term "reasonable" is mentioned in [61] we consider that the reasons are referring to a requirement for a hypothesis which is not "fanciful or unreal" and which is consistent with the known facts. There is no error in adopting that approach consistent with authority. The reasons proceed in [62] to find that the third stage of Deledio was not satisfied because the hypothesis does not contain one or more of the factors which are required as a minimum under the SoP. We can discern no error of law in this determination. Nor is there any substance in the submission that the finding involved any importing of doubt from one part of the exercise or hypothesis to another element. The statements in the final paragraphs of the reasons are in the alternative and there is no reference to acceptance or rejection of any evidence.

42 We do not accept in this case that the AAT has failed to provide reasons as to why it affirmed the Commission's decision that the veteran's death was not war-caused because these are disclosed with sufficient particularity in the final paragraphs of its reasons for decision. This is not a case where it is necessary to speculate or make inferences as to the way in which the AAT reached its decision in order to be able to challenge the basis for the findings and determinations of the AAT. The findings of fact and the recitation of the evidence, together with the conclusions and reasons for decision do not disclose any omission which could amount to an error of law.

43 The appellant's counsel advanced a submission that the depression and death might be attributed to separation from his family during his war service but we see no basis in the evidence for any such hypothesis in this case.

44 It is necessary, of course, to approach the decisions of the AAT with an eye not attuned to finding error. It is not sufficient for the appellant to simply point to a failure to deal with any argument that might have been raised or with every possibility that could have been adverted to, provided that the AAT addressed and dealt with the substance of the significant issues raised. The AAT in this case has sufficiently indicated the process of reasoning and its findings on material questions of fact in support of its decision: cf McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. The conclusion of the AAT was open to it on the evidence.

45 For the above reasons we are not persuaded that any error of law has been disclosed in the reasoning of the AAT or of his Honour, the primary Judge. Therefore, the appeal is dismissed with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin and Kenny.

Associate:

Dated: 27 August 2003

Counsel for the Appellant:	D De Marchi
Solicitor for the Appellant:	De Marchi & Associates
Counsel for the Respondent:	P Hanks QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 May 2003
Date of Judgment:	27 August 2003