Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: applied
Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Court identified a four step process for applying these provisions as follows: 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. 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 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 neither 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. 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. For the purposes of para 5(b) of the SoP the applicant identified two potential stressors which allegedly occurred during his operational service. The first was his handling of casualty figures. The Tribunal summarized the relevant evidence as follows: Mr Renton was a radio keyboard operator in Saigon. He handled transmissions between Australia and the task-force, and between units in the field and headquarters. He says he scrutinised casualty lists each time they came across his desk. During the course of his evidence at the hearing, he explained he was looking for the names of his brother and other relatives who were also serving in Vietnam. He was worried they might have been injured or killed. I note one of his brothers had been shot and wounded some years earlier. The applicant said he was only worried about the names of relatives appearing on the casualty lists. He said he became distressed each time he scrutinised the lists but was relieved when he did not come across names he knew. None of his relatives were ever referred to on the lists. He said he was otherwise unaffected by the experience. The second event (the "Saigon incident") occurred outside a bar in Saigon in 1970. The Tribunal summarized the evidence of the incident as follows: This incident was the focus of the evidence led at the hearing. Mr Renton claimed the incident unfolded one night between 24 June and 14 July 1970. (The applicant was charged with disciplinary offences on each of those dates. He said he remembered he had been charged with an offence on 24 June before the incident occurred, but the second charge was not preferred until 24 July after the events in question.) He said he was making his way through the streets of Saigon to his billet after curfew when he came upon a hotel. There were two American servicemen outside making a fuss. He approached them to find out what was happening. They told him they were members of a Navy SEAL team. They said one of their comrades was inside being beaten by local toughs. Mr Renton says he looked through the locked gates into the building and saw an American serviceman being struck with lengths of timber. Mr Renton says he resolved to help. He says he climbed the fence which surrounded the establishment. It was made of wrought iron and was crowned with sharp decorative stakes. He then somehow scaled the wall of the building to the second level. He smashed a window to gain access. The men downstairs who were administering the beating to the American serviceman heard the sound of breaking glass and threw the man out. The applicant climbed down to the ground level and scaled the fence. Mr Renton says the American serviceman slipped while he was scaling the fence and one of the stakes plunged into his thigh. While the applicant and the two American servicemen on the street (who had remained behind to bang on the front gates of the establishment) struggled to release their injured colleague from the fence, the applicant says he heard someone fire a single shot. He says he saw a muzzle-flash come from the corner of a building across the street. He says it was unclear whether the shot came from inside the building, or from the street at one end. He says there was no one else on the street at the time. He also says he recognised the distinctive sound of an AK-47 rifle which was known to be the weapon of choice for the enemy. All four men (including the injured man) ran off. A short while later, the applicant said the fleeing men came across an American military police patrol. There were two MPs in a vehicle. The applicant and the other three servicemen told the MPs what had occurred. After the injured serviceman was despatched to hospital in another military police vehicle, the applicant says he and the other two men climbed into the rear of the police vehicle and drove back to the site of the incident. The MPs did not call for any assistance. They looked around the site. The police found nothing untoward and drove the men back to the American billet without further delay. They did not arrest the men for being out after curfew. The applicant says he stayed at the American quarters that night. The injured serviceman returned from the hospital during the course of the night with some stitches to his leg. They all discussed what had occurred, although Mr Renton says they did not drink. He claims the Americans speculated about what they might have done if circumstances were different and they were armed. Mr Renton says he has no doubt there would have been a gunfight, and he would have been caught in the middle. The Americans returned to the United States the following day, and Mr Renton went back to his accommodation. He never heard from them again. At para 2 of its reasons the Tribunal observed that: The parties agree the applicant suffers from an alcohol dependence condition. I accept the medical evidence to that effect. The question is whether the condition is related to his war service. That determination must be made having regard to s 120 of the Act. The Full Federal Court in Repatriation Commission v Deledio ... said it was necessary to follow a four-step reasoning process in the application of s120 where a claim is made in respect of the periods of operational service. In considering the first step prescribed by Deledio , the Tribunal identified the applicant's first hypothesis as being that the alleged stressors had caused his alcoholic dependence. The Tribunal concluded that the "material taken as a whole points to the hypothesis for which the applicant contends". The second hypothesis was that his alcohol dependence resulted from his attempts to cope with his anxiety condition. The Tribunal accepted that the material also pointed to that hypothesis. In connection with the second step contemplated in Deledio , the Tribunal identified the SoP and then proceeded to the third step. With respect to the applicant's handling of the casualty lists, the Tribunal was not satisfied that the events as he described them satisfied the definition of a severe stressor in the SoP on the basis that "none of the names he feared seeing were ever included on the list". Additionally, the Tribunal concluded that: A person with the background and experience of the applicant even one with a relative who had been hurt in the past would not have regarded the experience of reading the lists as a severe stressor of a kind or magnitude of the other examples given in the definition. (Original emphasis.) The Tribunal then considered the events in Saigon. It was common ground that an incident such this would have been a severe stressor for the purposes of the SoP. The Tribunal noted that the SoP required that the severe stressor have occurred within two years before the clinical onset of alcohol dependence. The Tribunal considered that there was evidence suggesting that his alcohol dependence arose in 1970 following the alleged incidents. However there was also evidence which, in the Tribunal's view, pointed to an earlier onset. Nonetheless, for the purposes of the third step, the Tribunal accepted that on the applicant's evidence, the severe stressor arguably occurred within the prescribed time frame. The Tribunal then considered the applicant's hypothesis based upon his anxiety condition, accepting that there was evidence suggesting that the condition arose out of the same circumstances as caused the applicant's alcohol dependence. On that basis, the Tribunal accepted that the hypothesis was "capable of fitting the template of the SoP". The Tribunal proceeded to the fourth step prescribed in Deledio , considering whether it was satisfied beyond reasonable doubt that there was no sufficient ground for deciding that the applicant's alcohol dependency was war-caused. It concluded that the applicant's account of the Saigon incident was implausible. It did not accept that the incident had occurred. This left the hypothesis that his anxiety condition had been caused by his alcohol dependence. The Tribunal concluded that the onset of such dependence was prior to the Saigon incident. The anxiety condition had been allegedly caused by that incident. Thus the applicant could not have been suffering from it at the time of onset of his alcohol dependence. Counsel had submitted that the Tribunal should also consider whether the applicant's alcohol dependence had been aggravated by his experiences in Vietnam and his anxiety condition. The Tribunal found no evidence of such aggravation. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"), a party may appeal from a decision of the Tribunal "on a question of law".