Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: applied
The interaction of s 120 and s 120A has been considered in many cases, but most notably in Repatriation Commission v Deledio (1998) 83 FCR 82 which provided an exposition of the proper application of the provisions which, as in the present matter, is now regularly applied by the Commission and the Tribunal. The four steps the Court identified (at 97-98) are often referred to as "the Deledio steps". They are: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could never be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 10 The appeal is concerned primarily with the third of these steps. 11 Before turning to each of the diseases in issue there is one further matter of a general character to which I need refer. It relates to SoPs. The function of an SoP for s 120(3) purposes is to prescribe a medical-scientific standard with which a hypothesis must be consistent: Deledio , at 96. Accentuating the "medical-scientific" character of the standards set in the three presently relevant SoPs, the factor or factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the relevant disease with a person's service, are all related in some way (usually by time) to the " clinical onset" or the " clinical worsening" of the disease. Diagnostic criteria, or else prescribed symptoms, are in turn specified for each of the diseases. 12 I emphasise the above for this reason. The essence of the Commission's challenge to the Tribunal's reasons in relation both to alcohol abuse and the depressive condition is that the clinical judgment and diagnostic standards prescribed in the two relevant SoPs were simply not made or applied respectively in raising the s 120(3) reasonable hypothesis. Because the Tribunal found that the clinical onset of each disease pre-dated war service, the relevant factor the SoP in each instance required to exist was tied to "the clinical worsening" of the respective diseases. As will be seen, the proper construction of this formula is central to this appeal. 13 For ease in exposition I will deal separately with the appeal as it relates to each of the three diseases. 16 Though Mr Milenz gave somewhat inconsistent histories of his drinking habits to those who provided expert reports, the evidence clearly established this problem predated both his operational service and the event on HMAS Yarra. In consequence, the Tribunal's focus in par 5 of the SoP above was upon factor (d). For Deledio step three purposes, the Tribunal was satisfied that a reasonable hypothesis had been raised that (a) Mr Milenz had experienced a "severe psychosocial stressor" in the "action stations" event; (b) he suffered from alcohol abuse; (c) there was material pointing to alcohol abuse existing prior to operational service being worsened by service; and (d) the hypothesis was consistent with the template in the SoP. 17 For the purposes of Deledio step four, the Tribunal was satisfied that (i) the psychosocial stressor was an identifiable event that evoked feelings of distress in Mr Milenz: Reasons [75]; and (ii) there had been a clinical worsening of the alcohol abuse: Reasons [77]. As to the latter, it commented at [78]: "The history of alcohol consumption is confusing and inconsistent, however, it was consumed prior to operational service. On occasions the quantity was immodest. But after operational service, the quantity, type and frequency of alcohol consumed was far greater. It follows that there has been a clinical worsening of alcohol abuse. The worsening, in my view is referable to him having experienced a severe stressor, as defined and within two years of the worsening. There was an event which objectively did occur and from which Mr Milenz suffered a subjective reaction. His increased alcohol consumption was an element of that reaction:" emphasis added. 18 In consequence the Tribunal was not satisfied beyond reasonable doubt that the Commission had established that the condition of alcohol abuse was not war-caused. 19 Three psychiatrists, Drs Percival, Ratnayake and Strauss provided reports for the Commission and two of them (Drs Percival and Strauss) gave brief oral evidence. Mr Milenz did not call any medical witnesses.