Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
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 ." 18 Once the Tribunal had concluded that the traumatic events described by Mr Masliczek had not occurred and that he was not suffering from PTSD there was no occasion for the Tribunal to embark on the four step process which is outlined Deledio in order to determine whether a non-existent medical condition could be linked to operational service. 19 Mr Masliczek submitted that it was not open to the Tribunal, having regard to the specialist medical evidence, to find that he did not suffer from PTSD. This submission must be rejected. Only one psychiatrist gave oral evidence. That was Dr Walton. Dr Walton made a diagnosis of PTSD on the basis of the bodies' event, the shooting event and the firing event as described by Mr Masliczek. He did not consider that the taxi event or the casualty event were stressful in the necessary sense. Drs Holwill, Cole and Gelb, whose reports were before the Tribunal, also diagnosed PTSD principally on the basis of the bodies' event. As the Tribunal found, this event did not occur. The fifth doctor, Dr Kenny, did not diagnose PTSD. The evidence did not, therefore, compel a finding that Mr Masliczek suffered from PTSD. 20 During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions. 23 Grounds 3.5 deals with Mr Masliczek's claim that the osteoarthrosis of the fingers from which he suffers was service related. The Tribunal held that Mr Masliczek did "not satisfy the first step" which was identified in Deledio . 24 In Deledio the Full Court explained the first step as follows (at 97): "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." 25 The Tribunal noted that Mr Masliczek had attributed his painful fingers to injuries sustained while playing volleyball in Vietnam. It noted the reports of medical examinations conducted shortly after he was discharged from the Army in 1968. Those reports did not detect any injuries to his hand. The Tribunal also considered Mr Masliczek's evidence. The Tribunal determined that "the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him." This conclusion was open to the Tribunal. None of the material pointed to the necessary connecting hypothesis. 26 Ground 3.7, as developed in argument, directed attention to the way in which the Tribunal had explained (or failed to explain) its reasons relating to Mr Masliczek's general anxiety and depressive disorders and his osteoarthrosis. 30 Paragraph 42 of the Tribunal's reasons has already been examined above at [23] to [25]. The Tribunal has adopted some shorthand expressions such as "the first step from Deledio ". Nonetheless its reasoning processes, as I have earlier summarised them, are sufficiently clear, in my opinion, to satisfy its obligations under s 43(2B) of the AAT Act . 31 The appeal should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 22 October 2008 Counsel for the Appellant: Mr D De Marchi Solicitor for the Appellant: De Marchi and Associates Counsel for the Respondent: Ms J Macdonnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2008 Date of Judgment: 22 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1535.html