Case: Fogarty v Repatriation Commission [2003] FCAFC 136 ; (2003) 37 AAR 363
Outcome: applied
On 11 December 2007, for reasons that it then published, the Tribunal, constituted by Mr Kenny, Member, affirmed the decision under review. 4 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) enables an appeal to be brought to this Court from a decision of the Tribunal on a question of law. The questions of law identified in the notice of appeal which has been filed in the court are as follows: (1) whether the Tribunal erred in law by failing to: (a) consider the written statement of the Applicant in evidence before it (exhibit 2); or (b) evaluate the sworn evidence given by the Applicant in his statement (exhibit 2) against that given viva voce when determining whether the applicant experienced "intense fear, helplessness or horror" for the purposes of the diagnosis of post-traumatic stress disorder. (2) whether the Tribunal erred in law by failing to refer in its reasons for decision that the Tribunal had regard to the sworn statement of the Applicant contained in exhibit 2. (3) whether the Tribunal erred in law, and failed to comply with its obligations under section 43 (2B) of the Administrative Appeals Tribunal Act 1975 , by failing to explain how it treated the Applicant's viva voce evidence of his reaction to the alleged stressor as against the description of said reactions given by the Applicant in his sworn statement (exhibit 2). 5 Section 13 of the Veterans' Entitlements Act renders the Commonwealth liable to pay a pension to a veteran where the veteran has become incapacitated from a war-caused injury or disease. The circumstances in which a disease or injury is taken to be war-caused are set out in s 9 , subs (1), of the Veterans' Entitlements Act . 6 The standard of proof to be applied by the Commission and on review by the Veterans' Review Board or the Tribunal to the question of whether a disease is a war-caused disease is provided for in s 120 of the Veterans' Entitlements Act . Section 120 of that Act provides materially: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (2) Where a claim under Part IV: (a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or (b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; 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 injury, disease or death with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV , decide the matter to its reasonable satisfaction. 7 In Fogarty v Repatriation Commission [2003] FCAFC 136 ; (2003) 37 AAR 363 at 373, paragraphs 34 and 35, Kenny J, with the agreement of Spender and Tamberlin JJ, observed the following in relation to s 120 and its impact on the standard of proof to be applied by administrators in respect of the determination of claims or their external review: The authorities establish that, where there is an issue as to whether or not a veteran is suffering from a claimed injury or disease, then the commission (and, on review, the board or the AAT) must decide the issue to its reasonable satisfaction, as required by section 120(4) of the Act: see Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 34 AAR 270 at 282 per Moore, Emmett and Allsop JJ, Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; 28 AAR 400 at 403-404 per French, Drummond and Carr JJ, Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 at 204-205; [2001] FCA 1421 ; 33 AAR 476 at 480 per Ryan, Marshall and Conti JJ, Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at 598-599 per Black CJ, Drummond and Kenny JJ, and Repatriation Commission v Gosewanckel [1999] FCA 1273 ; (1999) 59 ALD 690 at 700-702 per Weinberg J. As the Full Court said in Benjamin (at 634; 282): " Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision maker, in accordance with section 120(4) of the Act: see Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 at 204 [15] ; [2001] FCA 1421 ; 33 AAR 476 at 480 [15] ," Although the AAT is not bound by the rules of evidence the Full Court held in Repatriation Commission v Smith (1987) 15 FCR 327 at 335; 7 AAR 17 at 26, that the requirement in section 120(4) that the AAT must be "reasonably satisfied" imports the civil standard of proof. 8 This is a case where there was at issue in the proceeding the threshold question as to whether or not the Applicant was suffering from an injury or disease. In particular, that threshold question came to be whether or not he was suffering from post-traumatic stress disorder. Accordingly, the question of whether he was suffering from that condition fell for determination as required by s 120(4) of the Veterans' Entitlements Act according to the reasonable satisfaction of the Tribunal in the way explained in the passage which I have quoted from Fogarty . 19 In the submissions on behalf of the Applicant, much was made of the following passage in Fogarty at para 41: I accept that the AAT was bound to take the report into account in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 in deciding whether or not the veteran suffered from a generalised anxiety disorder. Providing it did so, it was for the AAT to determine what weight should attach to the report. There is, however, no mention of the report in the AATs reasons. On account of this, and on account of the AATs failure at the outset to address the diagnosis issue by reference to the evidence, and on account of the "methodological confusion" (as the respondent termed it) in the AATs reasons generally, I will infer that the AAT indeed failed to have regard to the report. In the circumstances of the case this failure constitutes a material error of law. 20 The report in that case was a medical report, but the submission made on behalf of the Applicant was that there was no relevant distinction to be drawn in terms of principle as between the medical report in that case and the written statement to the accuracy of which Mr Drew swore in his oral evidence before the Tribunal. It is true that there is no explicit reference to that statement in the Tribunal's reasons. I was though very helpfully provided, on behalf of the Respondent, with what one might term a "matrix" in which analysis is made of the Tribunal's reasons and corresponding references in the written statement which became part of the evidence before the Tribunal. It is quite plain from that that the Tribunal has had regard to the written statement and, indeed, adopted particular passages from it in its reasons. 21 Assuming, therefore, that the written statement might, in terms of the Peko-Wallsend case, be classified as a relevant consideration, I am quite satisfied that the Tribunal did have regard to it in reaching its decision. 23 His Honour observed: As it is now well understood, any court reviewing a decision of the tribunal cannot turn "a review of the reasons of the decision-maker upon proper principles into a reconsideration for merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. Those quite "proper principles" do not allow a doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingim [1999] FCA 794 ; (1999) 93 FCR 220 at 257, "a tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." Likewise those "proper principles" do not require that it be shown that all matters raised in the proceeding before the tribunal are dealt with in the reasons. For the purposes of section 43(2B) of the AAT Act, the tribunal is not obliged to give a "line by line refutation" of an applicant's evidence either generally or in those respects where there is evidence contrary to find things that material fact made by the tribunal: Re Minister for Immigration and Multicultural Affairs Ex Parte Durairajasingham (2000) 58 ALD 609 ; 168 ALR 407: see generally, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 62 ALD 225 ; 180 ALR 1. 24 Though I have, in the manner indicated earlier, some difficulty with the reference by the Tribunal in para 22 of its reasons to the statement of principles, it is tolerably clear from that paragraph that the Tribunal has, against the background of the written statement before it, gained particular assistance from the oral evidence which Mr Drew came to give in addition to that written statement. As it happened, that oral evidence put the Tribunal in the position of not being reasonably satisfied that he suffered from post-traumatic stress disorder. The Tribunal's chain of reasoning on matters of fact appears to have been this. There was a consensus of medical opinion that a diagnosis of post-traumatic stress disorder ought to be made, having regard to criteria in DSM-IV. Those criteria concern matters of primary fact. In particular, one of those primary facts was that described in paragraph (a)(ii) of the DSM-IV publication, and as it happened, the Tribunal, in taking account of all of the evidence before it, and particularly the oral evidence, was not satisfied as a matter of fact that the experience in response of the veteran met the description in (a)(ii). It followed from this that having regard to the medical opinion as to the utility of DSM-IV, no factual foundation for a finding of post-traumatic stress disorder was present. 25 That process of reasoning seems to me to have been both logical and reasonably open on the evidence before the tribunal.