Case: Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62
Outcome: applied
It is necessary, because of the jurisdictional issue raised by the Commission, to set out the questions of law and the grounds of appeal contained in Mr Masliczek's notice of appeal. They are: " 2. QUESTIONS OF LAW RAISED IN THE APPEAL 1.1 Was the Tribunal wrong in law in the methodology it adopted to ascertain whether the applicant was entitled to have the claimed condition of Post Traumatic Stress Disorder (PTSD) accepted as a war related disease. 1.2 Was the Tribunal wrong in law by applying incorrectly or not at all sections 119 , 120 (1) and (3), 120A of the Veterans' Entitlements Act 1986 (Cth) and the decision of Deledio v Repatriation Commission ? [This is a reference to the decision of the Full Court in Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 in which (at 97-98) the Court explained a four step process to be followed by the Tribunal in determining whether the applicant has established a link between his or her operational service and a medical condition which is relied on to support the payment of a pension]. 1.3 Was the Tribunal wrong in law in determining the diagnosis of the condition of post traumatic stress disorder (PTSD) by reference to the statements of principle alone without regard to the expert clinical medical evidence of the psychiatrists who had interviewed the applicant? 1.4 Was the Tribunal wrong in law in failing to apply or to apply correctly all relevant statements of principle for PTSD? 1.5 Was the Tribunal wrong in law in failing to give adequate and proper consideration to the applicant's claim for the condition of osteoarthrosis of the fingers of the right hand in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear? 1.6 Was the Tribunal wrong in law by applying Mines v Repatriation Commission which contradicted the High Court Decisions of Bushell v Repatriation Commission, Byrnes v Repatriation Commission and Repatriation Commission v O'Brian; and the full Federal Court Decisions of Repatriation Commission v Whetton and Deledio and Repatriation Commission ? 1.7 Was the Tribunal wrong in law by failing to provide adequate and sufficient reasons for its findings on material questions of fact and a reference to the evidence or other material on which those findings were based? 3. GROUNDS OF APPEAL 3.1 The Tribunal was wrong in law in the methodology it adopted in ascertaining whether the Applicant was entitled to have the claimed condition of PTSD as a war related disease. 3.1.1 The Tribunal was required to determine first whether the applicant was suffering from PTSD before proceeding to determine if the disease was war service related. 3.1.2 The Tribunal conflated the two questions depriving the Applicant the benefit of the doubt in ascertaining whether he suffered a stressful event during his service. 3.1.3 The test adopted by the Tribunal throughout was that of the balance of probabilities whereas because of his operational service some of the circumstances surrounding the stressful events had to be given the more generous test of a reasonable hypothesis. 3.2 The Tribunal was wrong in law in the application of, or in the failure to apply sections 119 , 120 (1), (3), and 120A of the Veterans' Entitlements Act and the decision of Deledio v Repatriation Commission . 3.2.1 These sections and the decision had application to determine the basis of a reasonable hypothesis whether the applicant had experienced a stressful event. The Tribunal erred in law in failing to apply the sections or the authority. 3.2.3 The Tribunal was required by law only to determine that the injuries claimed were not war caused if it was satisfied beyond reasonable doubt that there were no sufficient grounds for making such a claim (s 120(1) to do so it had to raise the test of a reasonable hypothesis based on all the material before it (s 120(3)). This the Tribunal failed to do. 3.2.4 The Tribunal was wrong in law in requiring the applicant to provide objective evidence that he had encountered the bodies of the children whereas the Tribunal was required to determine whether there was a reasonable hypothesis pointed out by the material that he had encountered the bodies. The Tribunal, although rejecting the event as being neither truthful nor accurate, did not challenge it pursuant to the requirements of s 120(1) , namely disprove it beyond reasonable doubt. 3.2.5 The Tribunal failed to apply s 120(1) to the circumstances of the applicant's case. 3.2.6 It was insufficient for the Tribunal to note that the circumstances of mortar and rocket fire did not accord with official records and that the events were not mentioned to two psychiatrists and to conclude that these were not traumatic events experienced by the applicant. It was not appropriate for the Tribunal to prefer the accuracy to the old official records of the events in relation to the shooting event. The Tribunal was required to ascertain whether the Applicant had been exposed or confronted with a traumatic event regardless of the position of the body or whether or not he had entered the tent. 3.2.7 The Tribunal appears to confuse between what constituted a traumatic event and whether or not the event took place. The Tribunal conflates these two questions to the detriment of the applicant. 3.3 The Tribunal was wrong in law in determining the diagnosis of the condition of post traumatic stress disorder by reference to the statements of principle rather than the clinical evidence of psychiatrists who had interviewed the applicant. 3.3.1 Post traumatic stress disorder was diagnosed by both the psychiatrists commissioned by the Applicant (Dr Cole and Dr Holwill) and the Repatriation Commission psychiatrists (Dr Walton and Dr Gelb). The Tribunal failed to take into consideration these reports and the evidence given. 3.4 The Tribunal was wrong in law in the application of the statements of principle for post traumatic stress disorder. 3.4.1 The Tribunal was required to determine the most favourable of the Statements of principle instead it used the more onerous. 3.4.2 The Tribunal was wrong in law in the standard of proof it adopted in determining whether the applicant met the requirements of the statements of principle for post traumatic stress disorder. 3.5 The Tribunal was wrong in law in failing to give adequate and proper consideration to the applicants claim for the condition of osteoarthrosis of the fingers of the right hand and in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear when there was a loss of hearing to the right side. 3.5.1 The Tribunal failed to provide clear reasons for rejection of osteoarthritis of the fingers of the right hand in which it needed to explain why, pursuant to s 120 of the Act , it was satisfied beyond reasonable doubt that it was not war caused. [The appellant did not press this ground insofar as it dealt with hearing loss]. 3.6 [This ground was not pressed]. 3.7 The Tribunal was wrong in law in failing to provide sufficient and adequate reasons for its decision. 3.7.1 The Tribunal was required to do so pursuant to section 43(2B) of the Administrative Appeals Act ." 17 In Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63] ; Repatriation Commission v Hill [2008] FCA 50 at [104] - [106] .