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Federal Court of Australia - Full Court |
Last Updated: 24 April 2008
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Warren [2008] FCAFC 64
ADMINISTRATIVE LAW – whether
Administrative Appeals Tribunal (the Tribunal) was entitled to rely on
concession made by Repatriation Commission –
true meaning and effect of
concession – concession made that evidence satisfied all criteria but one
for veteran’s entitlement
to pension and that Tribunal need concern itself
only with that one
Held: Tribunal entitled to act on concession, and
no error of law in failing to satisfy itself independently that the other
criteria were
satisfied
VETERAN’S AFFAIRS
– whether Administrative Appeals Tribunal (the Tribunal) was entitled
to rely on concession made by Repatriation Commission –
true meaning and
effect of concession – concession made that evidence satisfied all
criteria but one for veteran’s entitlement
to pension and that Tribunal
need concern itself only with that one
Held: Tribunal entitled to act
on concession, and no error of law in failing to satisfy itself independently
that the other criteria were
satisfied
Administrative Appeals Tribunal
Act 1975 (Cth) s 44(1)
Veterans’ Entitlements Act 1986 (Cth)
ss 5D, 9(1), 13(1), 120, 120A,
196B
Bird v Commonwealth of Australia
[1988] HCA 23; (1988) 165 CLR 1 cited
Budworth v Repatriation Commission (2001) 63
ALD 422 cited
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
cited
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
cited
Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 cited
Federal
Commissioner of Taxation v Perkins (1993) 26 ATR 8 cited
Federal
Commissioner of Taxation v Raptis [1989] FCA 381; (1989) 20 ATR 1262 cited
Ferriday v
Repatriation Commission (1996) 69 FCR 521 followed
Grant v
Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 cited
Kim v Minister for
Immigration & Multicultural & Indigenous Affairs [2004] FCA 31; (2004) 38 AAR 304
cited
Kuswardana v Minister for Immigration and Ethnic Affairs (1981)
35 ALR 186 considered
Lodowski v Comcare (1998) 53 ALD 371
cited
Peacock v Repatriation Commission [2007] FCAFC 156
cited
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
discussed
Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690
considered
Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635
cited
Repatriation Commission v Warren [2006] FCA 866
considered
Stafford v Repatriation Commission (1995) 56 FCR 121
cited
Tefonu Pty Ltd v Insurance and Superannuation Commissioner
[1993] FCA 412; (1993) 44 FCR 361 cited
Thomas v Repatriation Commission (1994) 50
FCR 112 distinguished
REPATRIATION COMMISSION v MICHAEL ANTHONY
WARREN
QUD 189 OF 2007
LINDGREN, BENNETT AND LOGAN
JJ
24 APRIL 2008
BRISBANE
THE COURT ORDERS THAT:
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.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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REPATRIATION COMMISSION
Appellant |
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AND:
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MICHAEL ANTHONY WARREN
Respondent |
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JUDGES:
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LINDGREN, BENNETT AND LOGAN JJ
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DATE:
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24 APRIL 2008
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
LINDGREN AND BENNETT JJ
INTRODUCTION
1 The appellant (the Commission) appeals from a judgment of Kiefel J in this Court (Repatriation Commission v Warren [2006] FCA 866). Her Honour dismissed an appeal by the Commission under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal). The respondent (Mr Warren) had claimed a pension under Pt II of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) in respect of diseases relating to his operational service in Vietnam. The diseases were post traumatic stress disorder (PTSD) and alcohol dependence (AD).
2 The Tribunal had decided that Mr Warren suffered from war-caused PTSD and war-caused AD, set aside the Commission’s decision to reject his claim, and remitted the matter to the Commission for determination of the rate of pension.
3 The appeal raises questions as to:
• the true meaning of concessions made by the Commission in the course of the hearing before the Tribunal; and
• whether the Tribunal was entitled to act on those concessions.
BACKGROUND
4 Mr Warren had served in the Australian Regular Army between 1963 and 1972. He saw "operational service" in South Vietnam between January 1971 and March 1972. He was discharged from the Australian Regular Army in June 1972.
5 On 15 October 2002 Mr Warren made a disability pension claim under the VE Act. In the claim form, his disability was described as "stress", "depression" and "anxiety". One of the symptoms was said to be "alcoholism". He claimed to have been diagnosed as suffering from war-caused PTSD and major depression – conditions that were said to have had their origin in Mr Warren’s service in South Vietnam.
6 A delegate of the Commission determined that neither PTSD nor AD were "related to Mr Warren’s operational service". That determination was affirmed by the Veterans’ Review Board. It was the Board’s decision that gave rise to Mr Warren’s application to the Tribunal.
LEGISLATIVE FRAMEWORK
7 Section 13(1) of the VE Act provides, relevantly, that where a veteran has become incapacitated from a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension by way of compensation to the veteran in accordance with the VE Act.
8 Section 5D of the VE Act defines "disease" to mean, relevantly, any mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
9 Section 9(1) of the VE Act provides, relevantly, that subject to ss 9 and 9A, for the purposes of the VE Act a disease contracted by a veteran is to be taken to be war-caused if:
(a) the ... disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the ... disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
10 Sections 120 and 120A of the VE Act provide a method and standard of proof for determining whether there is a link between a disease and a veteran’s service, that is to say, whether a disease was war-caused.
11 Subsection 120(1) provides:
(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.
12 Subsection 120(3) provides:
(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...; or
...
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person.
13 Section 120A of the VE Act, which applies in the present case, provides in subs (3):
For the purposes of subsection 120(3), a hypothesis connecting ... a disease contracted by a person ... with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
14 Subsection 196B(2) provides for the determination of Statements of Principles (SoPs) by the Repatriation Medical Authority (the Authority) established under Pt XIA of the VE Act. Section 196B(2) provides, relevantly, that if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to operational service rendered by veterans, the Authority must determine a SoP in respect of that kind of disease, setting out ‘the factors that must as a minimum exist’ and ‘which of those factors must be related to service rendered by a person’, before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of that service.
15 The Authority has determined SoPs under s 196B(2) with respect to PTSD and AD, and each of those SoPs is structured by reference to that statutory provision. Each sets out in cl 2 the factors that must as a minimum exist, and, in cll 4 and 5, which of those factors must be related to service rendered by a person.
16 The relevant SoP for PTSD is Instrument No 3 of 1999. It suffices to note the following extract:
Kind of injury, disease or death2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
attracting ICD-9-CM code 309.81. Basis for determining the factors(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:
...
(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:
...
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
...
(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,
Factors that must be related to service3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, ...
Factors4. Subject to clause 6 [cl 6 is not presently relevant], at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
[emphasis in original]
17 In cl 8 of the SoP for PTSD the expression "DSM-IV" is defined to mean the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. In the same clause, the expression "experiencing a severe stressor" is defined to mean:
The person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
It will be noted that this definition is very similar to subpara 2(b)(A)(i), but does not repeat subpara 2(b)(A)(ii).
18 The relevant SoP for AD is Instrument No 76 of 1998 headed "Alcohol Dependence or Alcohol Abuse".
19 The SoP for AD follows a structure similar to that of the SoP for PTSD. Again, we need not quote extensively from the SoP and it suffices that we set out the following:
Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles,
"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
...
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows [:]
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12 month period:
...
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
[emphasis in original](a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
20 Clause 8 of the SoP for AD includes the same definitions of "DSM-IV" and "experiencing a severe stressor" (see [17] above), but with the addition to the latter of the words ‘which event or events might evoke intense fear, helplessness or horror’. These additional words are similar to those of subpara 2(b)(A)(ii) of the SoP for PTSD that were set out at [16] above.
21 The criteria listed in the two SoPs reflect those identified in DSM-IV as necessary to a diagnosis, albeit in summary form. Her Honour, the primary judge, noted (at [13]) the following passage in the introduction to DSM-IV (at xxxii):
DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.[our emphasis]
22 The operation of ss 120 and 120A of the VE Act and of SoPs made under s 196B of that Act has been discussed in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (Deledio) and subsequent cases. In Deledio, the Full Court laid down a course comprising four steps that should be followed in an assessment of whether the incapacity of a veteran from, relevantly, a disease is related to service rendered by that person. It was common ground on the hearing that the Deledio four steps are preceded by an inquiry as to whether a veteran is incapacitated from a "disease". Thus, it was common ground that this pre-Deledio step of whether there is a diagnosis of a disease as a matter of clinical assessment, must be resolved before Deledio requires the four steps noted at [26] below to be taken to determine the question of connection with service.
23 Sections 120 and 120A of the VE Act address claims in respect of particular diseases suffered, not disease in general. This assumes that a diagnosis has been made. "Diagnosis" is "The process of determining the nature of a disease etc; the identification of a disease from a patient’s symptoms etc; a formal statement of this" (The New Shorter Oxford English Dictionary). In Mr Warren’s case, the diagnosis was of PTSD and AD.
24 While s 196B(2) (summarised at [14] above) speaks only of the relationship or connection between kinds of injury or disease and service, it empowers the Authority to make SoPs setting out ‘the factors that must as a minimum exist’ as well as ‘which of those factors must be related to service rendered by a person’ before it can be said that there is a reasonable hypothesis of connection. The former is apt to suggest criteria against which the clinician’s diagnosis is to be tested for the purposes of entitlement to pension. This seems to be a harmless and convenient way of viewing matters, although strictly and in terms, the former like the latter, goes to the hypothesis of connection with service (see s 120A(3) set out at [13] above).
25 It may be unlikely that a clinician’s diagnosis of PTSD would not be supported by reference to the SoP’s statement of ‘the factors that must as a minimum exist’. The reason is that the clinician’s diagnosis can be expected to be based on DSM-IV, from which the SoP’s statement of the factors that must as a minimum exist is derived. If the medical evidence is framed in terms of meeting the criteria of the SoP without reference to the respective factors in terms, the Court may find that, implicitly, the criteria have been met (Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690). The possibility must be acknowledged, however, that the clinician’s diagnosis will not be supported by the SoP. Where a SoP has been determined for a particular kind of disease and the veteran’s disease has been diagnosed as being of that class, s 120A(3) applies. That is the position in the present case. If the clinician’s diagnosis of PTSD is not upheld by the SoP for the kind of disease known as PTSD, there will not be a reasonable hypothesis connecting Mr Warren’s disease with his service for the purposes of s 120(3) of the VE Act.
26 The following are the four steps established by Deledio (our paraphrase):
1. Regarded over all, the material before the Tribunal must point to a hypothesis connecting the disease with the circumstances of the particular service rendered by the person. No question of fact arises at this stage. If no such hypothesis arises, the application fails.
2. If the material raises such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP. If there is not, the hypothesis will be taken not to be reasonable and the application fails.
3. If there is an SoP in force, it must be asked whether the hypothesis of connection that is raised is a reasonable one. It will be reasonable if the hypothesis fits, that is to say, is consistent with, the "template" to be found in the SoP. To be consistent with that template, the hypothesis raised must contain the factors that the Authority has determined to be those that must as a minimum exist (cl 2 of the SoPs for PTSD and AD), and of those factors the hypothesis must contain the factors that the Authority has determined to be the minimum related to the person’s service that must exist (cll 4 and 5 of the SoPs for PTSD and AD). If the hypothesis fits the template in these respects, it cannot be said to be contrary to proved known scientific facts or otherwise fanciful. If, on the other hand, the hypothesis fails to fit the template in these respects, it will be deemed not "reasonable" and the application fails.
4. The Tribunal must then consider under s 120(1) whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury (or that the death was not war-caused). If the Tribunal is not so satisfied, the application must succeed. If it is so satisfied, the application must fail. It is only at this fourth stage that the Tribunal is required to find facts from the material before it, and in its doing so no question of onus of proof or the application of any presumption is involved.
It has subsequently been pointed out that the last sentence in para 2 is inaccurate in one respect (not relevant to the present case). Mere inaction by the Authority does no more than render s 120A inapplicable: see Gosewinckel at [26] per Weinberg J.
THE REASONING OF THE TRIBUNAL
27 The Tribunal found that Mr Warren suffered from PTSD (at [6]) and from AD (at [36]). Paragraph [6] of the Tribunal’s reasons for decision stated:
At the outset of the hearing there was an issue as to whether Mr Warren was properly to be diagnosed as suffering from post traumatic stress disorder however in the course of submissions Mr Stoner, who appeared for the Commission, conceded that diagnosis. In my view that concession was rightly made.
28 The Tribunal then stated (at [7]) that in the circumstances of the case where Mr Warren had rendered operational service, the issue was whether Mr Warren’s PTSD was caused by operational service. The Tribunal said that that question was to be decided by reference to the four step process identified in Deledio. At [8]–[32], the Tribunal purported to take those four steps in relation to Mr Warren’s PTSD.
29 We need not discuss the Tribunal’s reasoning in detail. It suffices to note that Mr Warren had been exposed to two incidents in South Vietnam. In one there was an unauthorised discharge of a firearm in his presence, and in the other he was confronted menacingly by a South Vietnamese guard.
30 The Tribunal’s conclusion (at [32]) was that the Tribunal was not satisfied that the hypothesis advanced on behalf of Mr Warren had been excluded beyond reasonable doubt. Accordingly, the Tribunal decided that Mr Warren’s PTSD was war-caused within the meaning of s 9 of the VE Act.
31 In relation to the diagnosis of AD, the Tribunal referred (at [33]–[36]) to the medical evidence. Preferring that of Dr Gillman and Dr Rogers to that of Dr Mulholland, the Tribunal decided that Mr Warren’s condition was properly diagnosed as AD (at [36]).
32 The Tribunal then stated (at [37]):
The Commission, as I understand its submissions, accepted that if I concluded that Mr Warren had alcohol dependence that it would be open to me to find that factor 5(a) of the Statement of Principles in relation to alcohol dependence or abuse was satisfied. Given the findings that I have made in relation to post traumatic stress disorder that concession is proper. In those circumstances it is not necessary to undertake any further analysis in relation to this claimed condition beyond noting that it also must be regarded as being war-caused.
33 In the result, the Tribunal concluded (at [38]) that Mr Warren suffered from PTSD and AD and that both conditions were war-caused. Accordingly, the Tribunal set aside the Commission’s determination, determined that the PTSD and AD were "accepted conditions with effect from 15 July 2002", and remitted the matter to the Commission for determination of the rate of payment of pension.
THE APPEAL TO THIS COURT AND THE REASONS OF THE PRIMARY JUDGE
34 An appeal from a decision of the Tribunal to this Court lies only ‘on a question of law’: s 44(1) of the AAT Act. In its notice of appeal, the Commission purported to state twelve questions of law, but several of the questions stated were not questions of law at all. The primary judge noted that the Commission sought to identify further the legal nature of the alleged errors by the Tribunal in written submissions and sought leave to amend its notice of appeal. Mr Warren objected to the proposed amendments. Her Honour remarked (at [20]) that ‘[a]part from the withdrawal of one allegation, the amendments [were] superficial [and did] not in any event properly reflect the nature of the applicant’s case’.
35 The primary judge attempted to distil the questions of law raised as follows ([21]):
The applicant’s case on appeal may be stated shortly. Its focus is upon the diagnostic criteria in each of the two SoP. It is contended that in each case the Tribunal was required to be satisfied that the criteria were met, by reference to the SoP. In the case of the PTSD it is alleged that the Tribunal failed to consider the SoP criteria at all. With respect to the condition of alcohol dependence, there was either no evidence to support such a conclusion or the findings made were not consistent with the requirements of the SoP criteria. If the respondent did suffer from alcohol dependence, it is submitted that there was no evidence that the respondent suffered from a psychiatric disorder at the time of clinical onset of alcohol dependence, as par 5(a) of the SoP requires. This contention is therefore connected to the Tribunal’s findings concerning the respondent’s PTSD.
36 Her Honour noted (at [22]) that the question raised by the VE Act, to which the appeal was directed, was not one of causation, but the threshold question arising from ss 13 and 9, whether Mr Warren suffered from the disease upon which his claim to a pension was based. Her Honour said (at [23]) that the question that the appeal raised was ‘whether it [was] necessary that the Tribunal make its findings, as to the existence of the disease claimed, expressly and in detail, by reference to the criteria in the SoP’. Her Honour referred (at [25]) to the question whether the veteran suffered from the disease as claimed as an "anterior" or "threshold" question in the nature of a separate statutory precondition to any entitlement to a pension, and said that there was no provision of the VE Act which expressly required the Tribunal to have regard to the SoP criteria in determining that question.
37 The primary judge considered (at [26]) that the Commission’s case had to be that it was to be inferred, as a matter of statutory construction, that the SoP diagnostic criteria were to be applied to a finding with respect to this anterior statutory question. Her Honour considered (at [28]) that the threshold question in each case was whether the diagnosis was one properly made having regard to DSM-IV, and (at [29]) that once the Tribunal had made its finding, the VE Act did not require the diagnosis to be assessed against the SoP definition as if the latter were a check list. Her Honour stated (at [29]):
There is nothing in the operation of the relevant provisions of the [VE Act] which requires the SoP definition to be utilised by the decision-maker in determining the existence and nature of the DSM-IV classified condition. The possibility of a lack of correspondence should not arise.38 If her Honour was saying that the disease as diagnosed did not have to satisfy the relevant SoP for the purposes of the VE Act, we respectfully disagree. It had to satisfy both "the factors that must as a minimum exist" requirement and the "which of those factors must be related to service rendered by a person" requirement, in order for a reasonable hypothesis of connection between disease and service to be supported.
39 According to her Honour (at [30]), the only question in the case was whether there was evidence on which the Tribunal could reasonably be satisfied that Mr Warren suffered from PTSD and AD. The primary judge recorded (at [30]) that the evidence of Dr Rogers was not only that of a diagnosis of each condition, but also that each diagnosis was made in accordance with DSM-IV. Her Honour observed (at [30]) that those assertions were not challenged by the Commission and that no aspect of Dr Rogers’ diagnoses was identified as being outside the purview of DSM-IV.
40 Her Honour noted (at [32]) that the Tribunal had been "clearly prepared to act upon" the evidence of Dr Rogers and said as much, with the result that a certain concession that had been made before the Tribunal by the Commission’s representative did not necessarily arise for consideration before her Honour. Nonetheless, she proceeded to discuss the concession.
41 After noting the parties’ competing submissions, her Honour concluded (at [35]) that there was nothing to prevent the Tribunal accepting the Commission’s concession of fact, which was clear in its terms and was made against the background of evidence of a diagnosis of PTSD, which, her Honour said, the Tribunal ‘was in any event intending to act upon’. In reaching this conclusion, the primary judge rejected the Commission’s submission that the Tribunal was not entitled to act upon the concession and had a statutory duty to decide for itself the question whether Mr Warren suffered from the condition.
42 In relation to AD, her Honour observed (at [42]) that the Commission had conceded in its Statement of Issues before the Tribunal that if the Tribunal should find that PTSD and AD were both present, it would be open to the Tribunal to find that "fact 5(a)" of the SoP relating to AD was satisfied.
THE PRESENT APPEAL
43 The notice of appeal complains that the primary judge erred in failing to consider and determine grounds of appeal 3.5 and 3.6 that had been before her Honour. Ground 3.5 had related to PTSD and Ground 3.6 to AD. It is convenient to identify those grounds of appeal by reference to the summary of them in the Commission’s written submissions:
22. Ground 3.5 of the appeal required the primary Judge to consider and determine whether, in finding that PTSD was war-caused, the Tribunal erred in law because:
22.1. the Tribunal failed to consider whether Mr Warren was suffering from PTSD as defined in clause 2(b) of SoP No 3 of 1999;22.2. the material before the Tribunal was incapable of pointing to Mr Warren suffering from PTSD by reference to its features and symptoms as prescribed by SoP No 3 of 1999;
22.3. the Tribunal consequently failed to address the questions prescribed by s 120(3) and s 120A(3) of the VE Act and SoP No 3 of 1999.
23. Ground 3.6 of the appeal required her Honour to consider and determine whether, in finding that AD was war-caused, the Tribunal erred in law because:
23.1. the Tribunal failed to consider whether Mr Warren was suffering from AD as defined in clause 2(b) of SoP No 76 of 1998;23.2. the Tribunal failed to consider, by reference to that definition, the time of clinical onset of Mr Warren’s putative AD;
23.3. the material before the Tribunal was incapable of pointing to the clinical onset of AD, as defined in SoP No 76 of 1998, after Mr Warren’s operational service;
23.4. the Tribunal failed to consider whether, at the time of clinical onset of AD, Mr Warren was suffering from PTSD as defined by SoP No 3 of 1999;
23.5. the material before the Tribunal was incapable of pointing to Mr Warren suffering from PTSD, as defined by SoP No 3 of 1999, at the time of clinical onset of AD;
23.6. the Tribunal consequently failed to undertake the inquiries prescribed by s 120(3) and s 120A(3) of the VE Act and SoP No 3 of 1999.
44 The issue which occupied most of the time on the hearing of the appeal was whether the Tribunal was entitled to act on the concessions made before it by counsel for the Commission. The Commission contended that the Tribunal was not entitled to do so and was obliged to satisfy itself that both cll 2 and 5 of the respective SoPs were satisfied.
45 We invited the parties to make supplementary submissions on the question of whether an administrative tribunal such as the Tribunal is entitled to act upon a concession made by a party. The parties provided supplementary written submissions accordingly.
WHAT WAS THE TRUE MEANING OF THE CONCESSIONS MADE BY THE COMMISSION BEFORE THE TRIBUNAL?
46 On the hearing before us, there was a dispute as to whether the Commission’s concessions before the Tribunal went only to the pre-Deledio diagnostic step or whether they also embraced the symptoms referred to in cl 2 of the SoP for PTSD. In order to answer this question we must refer in some detail to the course of submissions before the Tribunal.
47 Following the conclusion of the evidence, Mr Honchin, counsel for Mr Warren, and Mr Stoner, counsel for the Commission, made oral submissions. Mr Honchin referred to Dr Rogers’ diagnosis of PTSD when he filled in the relevant part of the claim form. The Tribunal accepted that a ‘balance of probabilities’ standard of proof was to be applied to diagnosis. Mr Honchin observed that ‘we should be acting under the DSM-IV regime at this point for diagnosis’, that DSM-IV was not to be used ‘as a cookbook’, and that psychiatrists reach conclusions on the basis of their experience and with DSM-IV in the background.
48 Mr Honchin said that following Dr Rogers’ diagnosis of a constellation of symptoms that could be labelled PTSD and AD, and on the basis that Mr Warren had qualifying service, the issues under subs 120(1) and (3) of the VE Act arose and the principles laid down in Deledio were activated. He said ‘it seems that a proper application of Deledio will meet the requirements of subsection (3) and subsection (1) of section 120’.
49 Then, over some nine pages of transcript (T59-68), Mr Honchin addressed the four steps of Deledio. In particular, he addressed the various criteria within cl 2(b) of the SoP for PTSD (see [16] above). When addressing cl 2(b)(C)(ii) Mr Honchin quoted from that paragraph ‘efforts to avoid activities, places, or people that arouse recollections of the trauma’ and began to refer to evidence in support of the existence of that symptom, when the following exchange occurred:
THE D PRESIDENT: Perhaps I’ll see what Mr Stoner has to say and if Mr Stoner wants to argue to the contrary, you can take me to it with more precision if necessary. MR HONCHIN: Yes. In my submission, the Tribunal can be satisfied, reasonably satisfied on the basis of Dr Rogers’ reports and the statement of the applicant that he meets all of those diagnostic criteria. The next test that the Tribunal has to address of course then is whether or not he’s been exposed to a traumatic event which he experienced, witnessed or was confronted with and the event or events that involved actual threatened [sic – actual or threatened] death or serious injury, and the person’s response involved intense fear, helplessness or horror.Counsel’s last reference was a reference to cl 2(b)(A)(ii) of SoP for PTSD, which, it will be recalled, did not appear in cl 8’s definition of cl 5(a)’s "experiencing a severe stressor" (see [16] and [17] above).
50 Mr Honchin said that the question he was addressing was whether the hypothesis of PTSD fitted the SoP for PTSD. He also said that the effect of the provisions of the VE Act and Deledio was that if the SoP for PTSD was met, the Tribunal was bound to be satisfied that the PTSD was war-caused, unless it was satisfied beyond reasonable doubt that there were no grounds for being so satisfied.
51 At the outset of his oral submissions, Mr Stoner for the Commission conceded that if the Tribunal should find that PTSD and AD were both present, it would be open to the Tribunal to find that the AD was related to service.
52 The Deputy President asked Mr Stoner what were the principal points at which he and Mr Honchin diverged. That question was followed by the following passage:
MR STONER: Well, the first is diagnosis. THE D PRESIDENT: Yes. MR STONER: The advice available to the Commission is that there is no form of psychiatric diagnosis that can be made. THE D PRESIDENT: What do I make of the fact though that we’ve got Dr Rogers has diagnosed the condition and, you know, you didn’t require Dr Rogers for cross-examination, did you? MR STONER: No, no. THE D PRESIDENT: So, how could I not accept Dr Rogers’s report[?] ...53 There followed discussion between the Deputy President and Mr Stoner as to the problem which the Deputy President thought confronted him when Mr Stoner had not cross-examined Dr Rogers. The following passage occurred:
MR STONER: Well, I’ll tell you what, I’ll put our case on the basis that we don’t oppose the diagnosis and I’ll put our case on the basis that we oppose the satisfaction of the statement of principles.
THE D PRESIDENT: All right. Well, that then takes us to, what, step 4 – stage 4 or is it steps?
MR STONER: No, I would like to take you in some detail through the Deledio test as my friend ---
THE D PRESIDENT: That’s right. Diagnosis is a pre-step step. That’s right, isn’t it?
MR STONER: Diagnosis is – just excuse me a moment.
THE D PRESIDENT: I’m sorry, I’m going to drive you fellows [mad] this week but ---
MR STONER: No, we’re only too happy to help you, Deputy President, and in fact, we’ve had some discussions amongst ourselves that we, perhaps, should be a little bit fulsome in the first few cases to help you. So there’s no problem there. But the process is this: it’s well established now that first of all, the Tribunal must be reasonably satisfied about diagnosis. Once you have formed a view about diagnosis, and only then, can you turn your attention to the issue of causation. Once you turn your attention to the issue of causation, the time for diagnosing is over...
54 In the early part of this exchange, Mr Stoner and the Deputy President seem to have been ad idem that the concession was limited to pre-Deledio diagnosis and left the four steps of Deledio untouched.
55 In similar vein, not long afterwards, the following exchanges occurred:
THE D.PRESIDENT: That is, you do the diagnosis bit and whatever level you stop at the diagnosis, then you go through the stages of Deledio?
MR STONER: In relation to that diagnosis or diagnoses.
THE D.PRESIDENT: That diagnosis, yes.
...
THE D.PRESIDENT: Now, do you accept – well, perhaps I should give you some time to think about it. I don’t want you to think that I’ve brow beaten you into this, but do you accept the diagnosis of PTSD?
MR STONER: Yes. Yes, I accept what you say and you’re not browbeating me; let me put that on the record.
...
MR STONER: I’ve been around the traps long enough to know when there’s going to be a finding made against me anyway, too, but I’m happy to put the Commission’s case on whether or not the condition of PTSD is related to service through the Statement of Principles having regard to Deledio and the other cases, and I also put our case on the basis that there is no diagnosis present of an alcohol disorder.
...
THE D.PRESIDENT: So no causation on PTSD and then no diagnosis of alcohol abuse. Is that your case in a nutshell?
MR STONER: Yes.
THE D.PRESIDENT: All right. So no causation ---
MR STONER: And we are not saying that the events didn’t happen; we’re saying the events are not sufficient. Not trying to prove beyond reasonable doubt that a bullet wasn’t fired or that there wasn’t an angry guard on the gate. We’re saying that when one has a look at the whole of the evidence, those events are not sufficient and the ---and I just ask you to read our facts and contentions ---
THE D. PRESIDENT: Yes, I ---
MR STONER: --- in the light of what I’ve just said.
[our emphasis]
56 Mr Stoner then referred the Tribunal to paragraph 25 of the Commission’s "Facts and Contentions" document. That paragraph addressed factor 5(a) of the SoP for PTSD (see [16] above). Paragraph 25 set out the SoP definition of "experiencing a severe stressor". Succeeding paragraphs addressed the question of "experiencing a severe stressor". So did Mr Stoner’s oral submissions to the Tribunal.
57 Although the initial exchanges set out above may be ambiguous, the later ones and Mr Stoner’s references to the notion of "experiencing a severe stressor" in his written submissions to which he referred make it clear that the only issue that was by now being agitated by the Commission was whether the two incidents in which Mr Warren was involved in Vietnam (to which we referred at [29] above) constituted "severe stressors". That issue arose under cl 5(a) of the SoP for PTSD. It was not suggested that the issue related to cl 2(b)(A). Consistently with the position thus taken by the Commission through its counsel, the Commission’s submissions were directed to the question whether in the light of Mr Warren’s being an experienced soldier, the Tribunal should accept that the two incidents satisfied the characterisation of "severe stressor" in cl 5(a) of the SoP.
58 At T94, there is recorded an exchange that is to be understood in the light of paragraph 30 of the Commission’s "Facts and Contentions" document. That paragraph asserted that it was not reasonable, objectively, to consider that an experienced career soldier placed as Mr Warren was, should have perceived himself to be under threat of serious injury or death (a concept relevant to both cl 2(b)(A)(i) and cl 5(a) of the SoP). The exchange was as follows:
THE D.PRESIDENT: So where do you say, in the Deledio continuum, that that kicks in, your paragraph 30? On the material.
MR STONER: You’d have to put that – to be fair, you’d have to put that in stage 4.
THE D.PRESIDENT: Yes. I mean, on the material, there is a hypothesis, so that’s tick stage 1. There is a statement of principle, so that’s tick to stage 2 – step 2. It is ---
MR STONER: It’s really in 3 and 4, because what we’re saying, effectively, is that the statement of principles doesn’t uphold the hypothesis. Now, there is material, though, that says that – the material says that the hypothesis is upheld by the statement of principles, and Mr Honchin has taken you to that. So I would have to concede that on the particular facts in this case – unless you are satisfied beyond reasonable doubt, you would have to find in favour of Mr Warren. You know, essentially, we make the same submissions about each of the events.
59 The "events" referred to were, again, the two incidents to which we referred at [29] above.
60 In the passage quoted above, Mr Stoner began by acquiescing to the Deputy President’s statement that steps 1 and 2 of Deledio were satisfied and that only steps 3 and 4 required attention. He then conceded that there was material to which Mr Honchin had taken the Deputy President, showing that the pre-Deledio diagnosis was "upheld" by the SoP. He can only have meant upheld by cl 2(b) of the SoP. In the result, it was only step 4 that remained to be considered. From that point on, counsel’s submissions related exclusively to the question whether the two incidents in Vietnam constituted "severe stressors" within cl 5(a) of the SoP for PTSD.
61 The only qualification that this last statement calls for, one not related to PTSD, is that the Deputy President asked Mr Stoner whether he (the Deputy President) could not be satisfied of a diagnosis of AD, to which Mr Stoner replied that Dr Rogers’ diagnosis of AD in 2002 to 2004 was "unchallenged" and that Dr Gillman had diagnosed AD in 1997, but that Mr Warren had given evidence contrary to that diagnosis.
62 The Commission contends that Mr Warren did not fulfil the criteria for a diagnosis of PTSD according to cl 2(b) of the SoP for PTSD and that the medical evidence did not substantiate such a diagnosis. Clause 2(b)(C) requires three or more criteria to be satisfied. Clause 2(b)(D) requires two or more symptoms to be present. The Commission submits that these requirements were not satisfied.
63 In effect the Commission argues that because it reserved its rights as to causation and causation required an analysis by reference to all of the criteria in the relevant SoP, the Tribunal was also obliged to consider cl 2(b) of the SoP’s application to diagnosis.
64 As the primary judge observed, the SoP provides a diagnostic basis for ‘particular kind[s] of injury, or disease or death’ (s 196B(2)) for the purposes of entitlement to pension under the VE Act. The SoP for PTSD is derived from DSM-IV but it is an independent source of criteria having effect under the VE Act. Clause 2(b) makes that clear by providing that, for the purposes of the SoP, PTSD means a psychiatric condition meeting the description that follows (derived from DSM-IV).
65 Did the concession made by the Commission extend to an admission that Mr Warren suffered from PTSD meeting the description in the SoP for PTSD? We think that the passages from the transcript which we have set out at length above demonstrate that it did. Indeed, the question may be asked, what would be the purpose in the circumstances of admitting the diagnosis of PTSD otherwise?
66 The Commission did not argue before the Tribunal that, despite its concession, Mr Warren did not relevantly suffer from PTSD for the purposes of the SoP for PTSD. Why would the Commission have failed to draw to the Tribunal’s attention the need to consider the criteria in cl 2(b) of the SoP and, in particular, cll 2(b)(C) and 2(b)(D), if they remained a relevant consideration?
67 It was reasonable for the Tribunal to understand that the concession, made in a hearing to determine the issue of an entitlement under the VE Act, extended to the factors that cl 2(b) of the SoP stated must as a minimum exist for the purposes of that determination.
68 We conclude that the concession made and accepted by the Tribunal was that, for the purposes of the SoP for PTSD, Mr Warren suffered from PTSD characterised and defined by the factors referred to in cl 2(b) of that SoP. There is some overlap between cll 2(b)(A) and 5(a). The "severe stressor" connection criterion (the connection between the PTSD and the war service) described in cl 5(a) remained to be satisfied, and to the extent that it is satisfied by the satisfaction of cl 2(b)(A), so be it.
69 The effect of the express concessions set out at [55] and [58] above and the course of the Commission’s submissions before the Tribunal (including the failure to make submissions directed to cl 2(b)) was that Mr Warren was entitled to succeed unless the Commission was satisfied beyond reasonable doubt that cl 5(a) of the SoP for the PTSD was not satisfied.
70 There was no reason for the Tribunal to assume that any part of cl 2 of the SoP for PTSD needed further consideration. Only causation, in the sense of the connection between disease and service, remained in issue. Any one of the three factors specified in cl 5 of the SoP had to be present before it could be said that a reasonable hypothesis had been raised connecting PTSD with the veteran’s service. That raised the relevance of the events experienced in Vietnam, as referred to in the transcript. The Tribunal dealt with the requirements of cl 5 and found that cl 5(a) was satisfied (at [17]).
71 On the appeal there was no dispute as to the true meaning of the concession concerning AD. That concession was that if the Tribunal should determine that Mr Warren was suffering from AD and should also determine the PTSD issue in his favour, it would be open to the Tribunal to find that cl 5(a) of the SoP relating to AD was satisfied.
WAS THE TRIBUNAL ENTITLED TO ACT ON THE CONCESSIONS?
72 We use the plural "concessions" to refer to the concessions referred to above:
1. that the factors referred to in cl 2(b) (sometimes referred to as the SoP’s "diagnostic criteria") were present; and
2. that unless Mr Warren failed Deledio step 4, that is to say, unless the Tribunal was satisfied beyond reasonable doubt that his incapacity did not arise from the two incidents in Vietnam, Mr Warren was entitled to succeed.
73 The Commission submits that, notwithstanding its concessions, the Tribunal was obliged to determine for itself that all of the conditions of entitlement to a pension under the VE Act were satisfied.
74 In its submissions, the Commission summarises its contentions as follows:
Applying the principles to be drawn from the authorities:
1. The VE Act required the Tribunal, in the shoes of the Commission, to consider whether the hypothesis of connection between Mr Warren’s PTSD and his operational service was upheld by the template of the SoP:[Stafford v Repatriation Commission (1995) 56 FCR 121; Ferriday v Repatriation Commission (1996) 69 FCR 521; Lodowski v Comcare (1998) 53 ALD 371].
2. The question of construction of s 120(3) and s 120A(3) of the VE Act and of the relevant SoP was central to the task to be performed by the Tribunal and was a threshold issue: [Ferriday]. It was a statutory precondition to the success of Mr Warren’s claim in respect of PTSD: [Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186].
3. The Tribunal was bound to determine whether the template of the relevant SoP upheld the hypothesis notwithstanding the submissions of either side:
[Lodowski; Budworth v Repatriation Commission (2001) 63 ALD 422; Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 31; (2004) 38 AAR 304].
4. The Tribunal was bound to determine whether the template of the relevant SoP upheld the hypothesis notwithstanding any misapprehension of the law by the parties:
[Thomas v Repatriation Commission (1994) 50 FCR 112].
5. The Tribunal was bound to determine whether the template of the relevant SoP upheld the hypothesis irrespective of the issues identified by the parties:
[Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1; Kim].
6. A concession as to causation of PTSD (which was not made by the Commission) would not preclude the issue being raised on appeal: [Kuswardana; Budworth].
7. The Tribunal was bound to determine whether the template of the relevant SoP upheld the hypothesis even if the point was not taken by the Commission:
[Kuswardana].
75 The Tribunal was obliged to consider whether the hypothesis of connection between Mr Warren’s claimed PTSD and his operational service was upheld by the SoP for PTSD, and it was obliged to do so notwithstanding any misapprehension of the law that might influence the case presented by one or both parties. The SoP was central to the task to be performed by the Tribunal and by reason of the VE Act, established the conditions of MrWarren’s entitlement (ss 120(3) and 120A(3)).
76 The Commission contends that the material before the Tribunal fell short of establishing the factors laid down in the SoP for PTSD. If so, the hypothesis of war-caused PTSD would not be upheld by the SoP and would be deemed not reasonable (Gosewinckel at [67]). The presence of the SoP factors might be established expressly or by implication from the evidence, including the medical evidence; see Gosewinckel at [58].
77 In their supplementary written submissions, the parties referred the Court to many authorities on the question of whether an administrative tribunal is at liberty to rely on concessions. We do not find it necessary to discuss them all.
78 The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties:
• The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana at 194 per Bowen CJ).
• A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana at 195 per Bowen CJ and at 199 per Fox J).
• Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court (Federal Commissioner of Taxation v Raptis [1989] FCA 381; (1989) 20 ATR 1262 at 1267 per Gummow J).
• A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J).
• There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 at 367 per Beazley J).
• Even though the parties may be ‘able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it’ (Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [23]);
• A concession ‘does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions’ (Peacock at [23]; and see Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at 337 – 338).
• The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:
(a) the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday at 527–528 per Lee J);(b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or
(c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana) .
79 The present case cannot be characterised as one in which the Commission omitted to canvass factual matters before the Tribunal. Moreover, there was no misapprehension on the part of counsel who appeared for the Commission. Mr Stoner:
• knew the effect of the relevant provisions of the VE Act and of the two SoPs;
• knew that there was a pre-Deledio question, namely, whether there was a clinical diagnosis that Mr Warren was suffering from PTSD; and
• knew the four steps of Deledio.
80 At T94 (the passage set out at [58]) above) Mr Stoner began by saying that it was only steps 3 and 4 that were in issue but then said that there was material before the Tribunal that established that the PTSD hypothesis was upheld by the SoP and that unless the Tribunal was ‘satisfied beyond reasonable doubt’ it would have to find in favour of Mr Warren. Mr Stoner spoke in terms of the Tribunal being quite ‘satisfied beyond reasonable doubt’ when he identified the one remaining issue by the Tribunal. This was the language of the Deledio fourth step – see [26] above.
81 Mr Stoner’s concessions were:
(1) that the material before the Tribunal satisfied Deledio steps 1, 2 and 3; and
(2) that on the basis of Dr Rogers’ reports and Mr Warren’s own statement, the Tribunal could be satisfied:
(a) that Mr Warren’s condition satisfied the diagnostic factors relating to PTSD in cl 2(b) of the SoP; and(b) that the only matter with which the Tribunal needed to concern itself was that of "causation" in the sense of "connection" in terms of cl 5(a).
82 There was no reason for the Tribunal to question the concessions or to doubt that they were justified (cf Fiedler at [331])
83 Acting on the concessions, the Tribunal concerned itself with the nature of the two incidents in Vietnam and their effect on Mr Warren. The Commission conceded that the diagnosis accorded with the factors laid down in the SoP, that is to say, that the required diagnostic factors were present on the evidence, for the purposes of cl 2(b) and, to the extent that they were replicated, cl 5(a). In our view, the Commission has not established any error of law on the part of the Tribunal in failing to disregard the concessions and to assume for itself the task of checking, one by one, that the various diagnostic factors laid down in cl 2(b) of the SoP for PTSD were present on the evidence. If the parties had agreed that the SoP for PTSD was not relevant, the Tribunal would have been bound to disregard their agreement. However, the concessions made were of a factual nature that did not undermine the statute. They were of the same nature as, for example, a concession that Mr Warren had served in Vietnam or that he had experienced the two events there. The parties and the Tribunal did not proceed on an incorrect understanding of the provisions of the VE Act or of their application. The concessions were of facts susceptible of admission.
84 The Tribunal did not err in law in failing to have regard to a material fact or to pose for itself the correct question. The conformity of Mr Warren’s PTSD with the criteria of cl 2(b) of the SoP for PTSD, was conceded. The Tribunal correctly understood that it needed to consider causation. It did so by considering cl 5 of the SoP.
85 In the absence of the concession, or if the concession were only of a medical diagnosis that did not conform with cl 2(b) of the SoP, the Tribunal would have been obliged to determine for itself whether each of the factors in cl 2(b) had been established on the evidence. This would have been the case whether or not the matter had been raised by the parties (Grant) and the Commission would have been entitled to raise the Tribunal’s omission on appeal (Thomas; Ferriday).
86 There is a distinction between failing to rely on non-satisfaction of a statutory requirement at trial, and a concession of satisfaction of a statutory test. A party who has conceded a matter should only be allowed to make the absence of what has been conceded to be present the basis for overturning the result in exceptional circumstances (Kuswardana). There are no such exceptional circumstances in the present case.
87 In relation to AD we noted the Commission’s concession before the Tribunal at [71] above. Having determined the PTSD issue in favour of Mr Warren, the Tribunal was left with the question whether Mr Warren was suffering from AD. If he was, the Commission accepted that the clinical onset of the AD was preceded by the clinical onset of the "psychiatric disorder" PTSD and was thereby war-caused within cl 5(a) of the AD SoP. The Tribunal accepted that the concession was properly made and the Commission does not resile from it in the present appeal. The concession was one of fact: that the clinical onset of PTSD preceded the AD. Once the Tribunal found (at [36]; [38]) that Mr Warren had AD and it was accepted that the AD was preceded by the clinical onset of PTSD, cl 5(a) of the AD SoP was satisfied. It followed, and the Tribunal was entitled to find, that the AD was war-caused.
88 For the reasons already given, the Tribunal was not required to consider independently whether the concession of fact in relation to AD was properly made. It was not obliged independently to consider the timing of the clinical onset of PTSD relative to the AD, or whether cl 5(a) was satisfied, before determining that Mr Warren’s AD was war-caused.
CONCLUSION
89 For the above reasons, the application should be dismissed. The
appellant is to pay the respondent’s costs.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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REPATRIATION COMMISSION
Appellant |
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AND:
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MICHAEL ANTHONY WARREN
Respondent |
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JUDGES:
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LINDGREN, BENNETT AND LOGAN JJ
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DATE:
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24 APRIL 2008
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
LOGAN J
90 I agree that this appeal should be dismissed with costs.
91 I had reached this view before having the advantage of reading in draft the reasons for judgement of Lindgren and Bennett JJ. I respectfully agree with their analysis of the course of proceedings before the Administrative Appeals Tribunal ("the Tribunal"), with their analysis of relevant case law and with their conclusion that a concession was made upon which the Tribunal was entitled to act in reaching its decision.
92 An additional reason for the conclusion as to the extent of the concession made by the Repatriation Commission is offered by regard to the Statement of Facts and Contentions ("Statements") lodged with the Tribunal and served inter partes prior to the commencement of the hearing in accordance with the Tribunal’s General Practice Direction. These Statements formed the background against which each party conducted its case and interchanged with the Tribunal in the course of the hearing.
93 The Statement lodged on behalf of Mr Warren affirmed that the claimed conditions were post traumatic stress disorder and alcohol abuse/dependence. It identified the issues for the Tribunal as follows:
(a) what condition(s), if any does Mr Warren currently suffer from; and(b) whether such conditions are war-caused within the meaning of s. 9 of the VEA?
94 Mr Warren’s Statement further identified the relevant Statement of Principles ("SoP") to be:
(a) Instrument No. 3 of 1999 – Post traumatic stress disorder (PTSD) "(factor 5(a))";(b) Instrument No. 76 of 1998 –Alcohol abuse/dependence "(factors 5(a) and (b))"
[emphasis added]
95 The bold "factors" which I have emphasised in the passages quoted from Mr Warren’s Statement were added parenthetically by that document’s author after the SoP references. They were obviously intended to highlight particular paragraphs of the SoP which Mr Warren apprehended were controversial.
96 Mr Warren’s Statement further identified five "stressors" which were alleged to have occurred during the course of his war service in South Vietnam. Only two of these ultimately came to have prominence in the Tribunal’s determination of the review application. He then propounded the following hypothesis in his Statement:
10. The Applicant’s hypothesis is that he witnessed, experienced or confronted events which he says involved a death or the threat of death or serious injury to either himself or others and which ultimately rise to the condition of post traumatic stress disorder. Alternatively, the said events caused the Applicant to experience substantial distress and in the following months (and in any event within 2 years of the said events) experienced a range of symptoms consistent with anxiety disorder. In addition the Applicant commenced consuming significant quantities of alcohol and in the following months (and in any event within 2 years of the said events) became dependant upon, or abused, alcohol.97 Extensive written contentions were then made by reference to appropriate authority and the SoP on the subject of Mr Warren’s entitlement to the claimed pension.
98 The way in which the Repatriation Commission chose to cast its Statement, which followed in time and was responsive to Mr Warren’s Statement, is highly significant.
DIAGNOSIS... ... POST TRAUMATIC STRESS DISORDER18. The applicant does not actually have a psychiatric disorder: reports of Dr Mulholland dated 27 September 2005 and 17 January 2006.
25. If the diagnosis is PTSD, factor 5(a) of Statement of Principles ("SoP") No 3 of 1999 am No 54 of 1999 is not satisfied, in that no event relied on constitutes "experiencing a severe stressor", which is defined to mean:
the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as severe stressors include:(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
... ALCOHOL DEPENDENCE26. None of the incidents relied on is of the class envisaged by the definition, and while the class is not a closed one, it is not satisfied by something less: White v Repatriation Commission [2004] FCA 633, at [30] in particular.
ASSESSMENT31. If the Tribunal finds that PTSD and alcohol dependence are both present, it would be open to the Tribunal to find that factor 5(a) of SoP No 3 of 1999 am No 76 of 1998 is satisfied.32. Absent a finding that PTSD is present, factor 5(b) is not satisfied for the same reasons, mutatis mutandis, as set out at [24]-[29] above in relation to PTSD.
33. If the Tribunal finds that either or both conditions is/are related to service, the matter should be remitted to the Repatriation Commission for assessment of pension.
[emphasis added]
99 Recalling the particular reference made in Mr Warren’s Statement to factor 5(a) in the post traumatic stress disorder SoP, it is noteworthy that, in its Statement, the Repatriation Commission also made particular reference to absence of satisfaction of one particular aspect of this factor even if the Tribunal were to conclude that Mr Warren suffered from post traumatic stress disorder.
100 The Tribunal’s General Practice Direction was expressed to have "the dual purpose of attempting to obtain an agreed resolution of a matter where possible and ensuring that appropriate steps are taken to prepare for the hearing of those matters that do not settle". Under that rubric, the obvious intendment of a Statement in the Tribunal’s practice and procedure was to identify what truly were the points of difference between an applicant for review and a respondent, the resultant issues that required the Tribunal’s determination and the contentions of those parties in respect of those issues. By a narrowing of controversial issues in that fashion the public resources invested in external merits review and administrative decision-making by the Tribunal might most efficiently be employed without compromising its procedural fairness obligation.
101 Where I respectfully differ from Lindgren and Bennett JJ is solely in relation to whether it is open to contend that because the diagnosis that a clinician has made does not fit a SoP template, there is no SoP in respect of the disease for which the veteran has made his or her claim. As that difference does not affect the outcome in this appeal, I propose only briefly to detail its basis.
102 Subsections 120A(3) and 120A(4) of the Veterans’ Entitlements Act 1986 ("VEA") provide:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
103 There was no disagreement before us and it is the case that whether or not a veteran suffers from a particular injury or disease is a question of fact which falls for determination as a matter of fact to the reasonable satisfaction of the Repatriation Commission or merits review tribunal as required by s 120(4) of the VEA. The basis for that "reasonable satisfaction" will usually be a diagnosis by a clinician of that injury or disease although it is possible to imagine cases where a need for such a diagnosis may be superfluous, e.g. traumatic loss of a digit or limb or sight as a result of wounds suffered in the course of operational service.
104 The clinicians in this case cast their opinions as to whether Mr Warren suffered from post traumatic stress disorder by reference to the publication known as DSM-IV. They evidently did so because this publication was accepted in their speciality as offering definitive assistance in the making of such a diagnosis.
105 An SoP made under the VEA had no role to play in the making of this diagnosis.
106 Within s 120A(4) of the VEA the expression "kind of" is employed. That expression establishes a genus, class or description of injury, disease or death in respect of which a SoP has been determined. If an injury or disease is defined in an idiosyncratic, narrow way in an SoP, all that means is that the genus, class or description of injury, disease or death is correspondingly and idiosyncratically narrow. If an injury or disease or death is the subject of a claim by or on behalf of a veteran, is known to medicine but falls outside the "kind of" injury, disease or death as defined in a SoP, all that means, per force of s 120A(4) of the VEA, is that s 120A(3) does not apply. That means that there will be no requirement that the question of whether, pursuant to s 120(3), a hypothesis connecting that injury, disease or death of a person with the circumstances of any particular service rendered by the veteran is reasonable will not fall for determination by reference to a SoP which upholds that hypothesis. Instead, the question of whether that injury, disease or death is war caused will fall for determination by reference to ss 120(1) and 120(3) of the VEA alone. The meaning and application of those subsections is explained in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.
107 Where, in terms of s 196B(2) of the VEA, the Repatriation Medical Authority ("RMA") is of the view that sound medical-scientific evidence indicates that a particular kind of injury, disease or death can be related to particular service its task is to determine a SoP in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. If it has sound medical evidence to support that view, that authority might permissibly determine a SoP in respect of an injury, disease or death which is defined in a more narrow way than general medicine would so do. If it does, the "factors" set out in that SoP will only relate to that narrow class. What remains of that injury, disease or death as general medicine would describe it will not be the subject of a SoP. If, on the other hand, the sound medical-scientific evidence before the RMA engenders in it the view that only when particular factors exist can an injury or disease or death known to general medicine be related to particular service, the SoP ought to specify that injury, disease or death in that general way and then set out the necessary factors. If this course is adopted the SoP will be applicable to each and any claim in respect of that injury, disease or death.
108 Such an approach to the construction of the VEA is in conformity with the beneficial approach counselled by the High Court in respect of legislation directed to the compensating of veterans and their families for injury, disease or death: Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635, at 648 per Aickin J, Gibbs CJ, Mason and Stephen JJ agreeing; Bird v Commonwealth of Australia [1988] HCA 23; (1988) 165 CLR 1, at 6 per Mason CJ, Brennan and Toohey J.
109 As it happens, I do not construe the definition of "post traumatic stress disorder" in the SoP as intending to create some idiosyncratic, narrow class in respect of that medical condition. So much is apparent from the statement that the definition is derived from DSM-IV. Were I of a different view, it would follow from my construction of s 120A and s 196B of the VEA that reference to the SoP in the course of the proceedings before the Tribunal was but a distraction.
110 Thus, the practical effect of the concession made before the Tribunal was that it left only the question of whether factor 5(a) in the post traumatic stress disorder SoP was satisfied.
111 It is regrettable, given the concession made before the Tribunal by the
Repatriation Commission, that a claim made as long ago
as 15 October 2002 by a
veteran found to be suffering from war caused post traumatic stress disorder has
taken this long to resolve.
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I certify that the preceding twenty-two (22) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Logan.
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Associate:
Dated: 24 April 2008
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Solicitor for the Appellant:
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Australian Government Solicitor
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Counsel for the Respondent:
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Mr D W Honchin
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Solicitor for the Respondent:
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Purcell Taylor Lawyers
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Date of Final Submissions:
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6 December 2007
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/64.html