Meehan v Repatriation Commission [2002] FCA 996

FEDERAL COURT OF AUSTRALIA

Meehan v Repatriation Commission [2002] FCA 996 VETERANS' ENTITLEMENTS – whether generalised anxiety disorder was war-caused – function of the Administrative Appeals Tribunal in determining reasonableness of hypothesis assessed by reference to Statement of Principles Veterans' Entitlements Act 1986 (Cth) ss 120(1), 120(2), 120(3), 120(6), 120A Bushell v Repatriation Commission (1992) 175 CLR 408 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 applied Repatriation Commission v Deledio (1998) 83 FCR 82 applied Bull v Repatriation Commission (2002) 34 AAR 326 referred to Arnott v Repatriation Commission (2001) 106 FCR 83 referred to East v Repatriation Commission (1987) 16 FCR 517 cited

JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION N 457 OF 2002 GYLES J SYDNEY 30 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 457 OF 2002

BETWEEN: JAMES SYDNEY MEEHAN

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 30 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The matter is to be remitted to the Administrative Appeals Tribunal to be considered according to law. 2. The respondent is to pay the costs of the applicant of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 457 OF 2002

BETWEEN: JAMES SYDNEY MEEHAN

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: GYLES J

DATE: 30 JULY 2002

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 This is an appeal from the Administrative Appeals Tribunal ("the Tribunal") on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal affirmed a decision to decline a claim by James Sydney Meehan ("the applicant") for a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"). The matter had been returned to the Tribunal following litigation in this Court which culminated in orders as follows (so far as is relevant): "2. The matter being the question whether the appellant's generalised anxiety disorder is war caused be remitted to the Veterans Appeals Division of the Administrative Appeals Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law. 2A. The Tribunal is directed to determine whether the disease of general anxiety disorder which has been found to exist by the Tribunal, is war- caused." 2 The issue arises pursuant to s 13(1) as elucidated by s 9(1) of the Act. The question of law which has been identified is whether the Tribunal failed to apply s 120(3) of the Act as it has been construed in the authorities. As I have been able to form a view as to the correct answer to this question, having considered the comprehensive arguments of counsel on either side, the long history of this matter makes it appropriate that I deliver judgment today, even if my reasons may be briefer than would otherwise have been the case and may contain imperfections of expression. 3 The applicant is a "veteran" as defined in s 5C(1) of the Act. He had operational service within the meaning of s 6C of the Act from 8 to 15 February 1969 and from 8 to 30 May 1969 during two voyages to Vietnam on HMAS Sydney. 4 On 18 December 1995 the applicant lodged a claim for pension on the basis of various conditions. As the result of prior proceedings, it is accepted that the applicant suffers from the disease of generalised anxiety disorder. As is clear from the orders of the Court remitting the matter to the Tribunal, the question for consideration was whether that disease was war-caused. The critical section for determination of that question is s 120, the relevant parts of which are as follows: 120 Standard of proof (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. … (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. … (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." 5 Section 120A relevantly provides: 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles … (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. …" 6 The Statement of Principles pursuant to s 196B which is referred to in s 120A (as it was applicable to this case) provided: "1. Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder … can be related to operational service rendered by veterans … the Repatriation Medical Authority hereby determines … that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder … with the circumstances of that services, are: … (b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder." 7 It is agreed that these difficult sections have been authoritatively considered by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and Byrnes v Repatriation Commission (1993) 177 CLR 564 as further elucidated by decisions in this Court such as Repatriation Commission v Deledio (1998) 83 FCR 82 and Bull v Repatriation Commission (2002) 34 AAR 326. There is no need for me to restate or refer to the principles set out in these cases save insofar as is necessary to follow this judgment. 8 The Tribunal accepted (as was inevitable) that the time in Vietnam in 1969 was "experiencing a stressful event", so the practical question at issue was the time of the onset of the disease of generalised anxiety, and, in particular, whether that was within two years of the stressful event. 9 The applicant's case has been summarised by his counsel as follows: "9. Mr Meehan's evidence included evidence of his father having been killed in the Korean War when he was 18 months old. He testified that he was raised mainly by his grandparents. He first drank some beer at the age of 8. At the age of 12 he has [sic] sent to a juvenile detention Centre for 3 years after he assaulted an older boy with a bottle of beer. 10. Just before his sixteenth birthday, Mr Meehan enlisted in the Navy. On his first trip to Vietnam he was not quite 17 years old and he was 17 years and 3 months old on the second trip. In his evidence to the Tribunal, he referred to being afraid that he could be killed while a sentry on the upper deck and while a bowman on landing craft. He also gave evidence of scare charges being very loud and frightening and of seeing 2 rockets being fired on shore and of seeing bags which he assumed contained bodies. 11. Following his service in Vietnam, Mr Meehan testified that he smoked and drank a lot more to block out his Vietnam experiences. He said his drinking increased on the way home on the first trip and by the second trip he had increased his smoking from 12 to 15 cigarettes a day to about 80 a day. 12. Mr Meehan also testified that coming back on one of the trips his sleeping pattern changed and he had only been able to sleep for a couple of hours a night, due to nightmares and waking in a sweat and with the shakes. 13. Mr Meehan's case relied largely on the evidence of Dr A Dinnen, Consultant Psychiatrist. When Mr Meehan's case was first heard by the Tribunal, Dr Dinnen expressed the opinion that Mr Meehan suffered from GAD that had predated but been aggravated by his service. In his evidence on the first occasion he testified that - (1) The GAD was present during service but masked and effectively treated by heavy alcohol consumption. (2) Mr Meehan's history was that his exposure to operational service as a youngster had a very marked effect on him and it must be seen as contributing to the anxiety disorder and aggravating the alcoholism. (3) Mr Meehan's history was that his drinking became worse after Vietnam so the anxiety and heavy drinking were established as being worse within 2 years of the operational service. (4) It certainly is a reasonable hypothesis that he had an anxiety state during service because its [sic] bolstered by the documentation concerning the enuresis, falling asleep on watch and drinking to the point where it interfered with the performance of his duties – it is not a picture of a well adjusted serviceman. (5) The reference in the clinical notes of 18 October 1973 to "O/E v. Nervous" can be relied on to mean that the patient was anxious or had anxiety type problems. (6) The only conclusion one can draw with regard to the history of Mr Meehan's adjustment prior to entering the navy is that he suffered GAD prior to service. (7) There were signs of Mr Meehan having GAD within 2 years of his operational service, sleeping on duty, falling and getting concussion [after drinking]. (8) His opinion, that there was a clinical worsening of GAD within 2 years of operational service, was based on – (a) Mr Meehan coming to attention because of his alcoholism; (b) his claim that his drinking became worse after operational service; (c) his description of the apprehension he felt due to his operational service; (d) the fact that a traditionally acceptable way for people in the service to cope with unavoidable apprehension is to drink; and (e) he took up smoking seriously at that time. 14. Dr Dinnen re-examined Mr Meehan prior to the second Tribunal hearing and prepared a further report. He concluded that the GAD was not present prior to service but that developed as a consequence of his operational service and was dealt with at the time by alcohol abuse. Mr Dinnen again gave evidence, which included – (1) During his first examination of Mr Meehan he had focussed on the diagnostic formulation to explain his problems and on the second occasion the focus was more on the history of his symptoms. (2) Mr Meehan's account now was clear that he was apprehensive and affected by anxiety symptoms on the trip to Vietnam and his habitual excessive use of alcohol was a quantity to mask any clear symptoms of GAD. (3) His reported inability to sleep [properly] coming back from Vietnam was consistent with an anxiety state. (4) Mr Meehan reported that his feeling of apprehension didn't go away because of the fact that he made another trip and it was clearly dealt with at the time by a pattern of heavy drinking. His account was that it was the circumstances of those two trips that led to the emotional disturbance which he identifies now as being consistent with those anxiety symptoms which he now experiences. He was afraid to go back, his stomach seemed to go at the time, he had changed, he was subdued, he was different in his attitude and about what he was doing in the navy. He had seen it as a game beforehand and now it was for real and so on. I think it is all a reasonable pattern that he now discribes [sic] although clearly not described or evident a [sic] the time. (5) The anxiety state has been identified as being present over the past 12 or 13 years, since he stopped drinking, but it is more probable than not that it was present but swamped by alcohol from the time of operational service. (6) His account was that he did not feel those feelings of anxiety he felt in Vietnam when he was going through his turbulent adolescent years. (7) He gave a consistent account of being apprehensive and terrified and frightened while in Vietnam. (8) The fact that completed 12 months recruit training is a good pointer to him not having major problems of disturbance at that time. (9) Mr Meehan had no symptoms of anxiety state within 2 years of his operational service in that they were not identified or recorded at that time but he is now able to identify symptoms which he experienced then which now would qualify him as having an anxiety disoreder [sic] within 2 years of operational service." 10 Much of this (and some other material) is set out in pars [7] to [26] (inclusive) of the decision of the Tribunal. The Tribunal had earlier referred to the four steps set out in Deledio at 91. The critical portions of the Tribunal decision are pars [29] to [32] (inclusive): "29. Applying the Deledio, supra, steps to this matter I find: (i) The hypothesis is that the applicant's service aboard HMAS Sydney whilst that vessel was in Vung Tau harbour caused or contributed to the diagnosed condition of generalised anxiety state. (ii) The second Deledio step requires a finding as to whether the hypothesis is reasonable. As subsection 120A(3) VEA points out, a hypothesis cannot be reasonable unless it conforms to a so called Statement of Principles. In passing I must state that I have difficulty in understanding the terminology used by the Federal Court in the second Deledio step where the Court refers to "assuming the raised facts to be true". Evidence may be adduced and that evidence either accepted or rejected but just what is an "untrue fact"? (iii) In this matter there is no evidence sufficient to satisfy me that the applicant's anxiety state developed within two years of the second of his voyages to South Vietnam? (iv) What is clear from the various histories that the applicant has given psychiatrists and their subsequent reports is that he had a predilection towards alcohol stemming from his childhood. Access to alcohol was no doubt restricted whilst in juvenile detention at Mt Penang and whilst undergoing recruit training. Once posted to HMAS Sydney he was again able to have access to alcohol albeit that such access was in defiance of naval regulations as he was then under age. Having obtained access to alcohol he was unable to control his drinking and has now accepted the fact he is an alcoholic. (v) Dr Dinnen has stated that his alcoholism masked his anxiety state. However, Dr Dinnen also said in re-examination that the applicant did not exhibit any symptoms of an anxiety state within two years of operational service. That the applicant can now identify symptoms of an anxiety state must take into account that he has a history not only of alcoholism but of a break up with his first wife ("they were always arguing"). He had been the subject of disciplinary proceedings whilst in the navy and had been told it was it was [sic] unlikely he would be re-engaged when his initial period of 12 years service had expired. He has also been guilty of acts of violence and dishonesty and served terms of imprisonment. (vi) Added to the above is the fact that at no time during his naval service was the applicant recognised as having any anxiety state. He was investigated for alcoholism but no history was taken of commencing to drink after the voyages to South Vietnam, nor did the applicant volunteer any history of apprehension or anxiety during his visits to Vung Tau harbour to naval medical authorities. In 1973 he was diagnosed as having alcoholism and a personality disorder, not anxiety. 30. For the reasons set out above, I find that the applicant does not meet the tests set out in the relevant Statement of Principles for generalised anxiety disorder as there is no sufficient material to raise as a fact, whether true or not, that the said condition had a clinical onset not more than two years after his final voyage to South Vietnam. 31. Similarly, there is no evidence that he had an anxiety state before or during his operational service, so paragraphs 1(c) and 1(d) of the Statement of Principles do not apply. 32. There being no reasonable hypothesis connecting the applicant's generalised anxiety disorder with the circumstances of his operational service I am deemed to be satisfied beyond reasonable doubt that there is no sufficient ground to determine that the said disease is war-caused. The decision under review is therefore affirmed." 11 It is submitted for the applicant that the Tribunal has plainly misunderstood the construction given to s 120 by the decision in Deledio and has so misconstrued that section in its application to the case. In my opinion, this is correct. I agree with the submission that subpar [29(iii)] of the decision demonstrates that the Tribunal did not approach the matter as it should. The test there applied is not part of the function of the Tribunal pursuant to s 120(3) as it has been construed. The Tribunal has impermissibly entered upon the fact-finding process in similar fashion to that explained by Merkel J in Arnott v Repatriation Commission (2001) 106 FCR 83 at [27]. 12 Counsel for the respondent submitted that counsel for the applicant has seized upon infelicity of expression to demonstrate error, contrary to the proper approach to the statement of reasons by administrative tribunals. In my opinion, the subparagraphs of [29] which follow subpar (iii) demonstrate that there was no infelicity of expression but that, rather, the Tribunal did undertake a process of weighing and evaluating evidence. This is borne out by other comments in the earlier narrative – one example given by counsel for the applicant is par [15], which dealt with notes of examination of the applicant in 1973. What was said was as follows: "The said notes contained the entry "O/E (on examination) nervous". Without more I place no particular relevance upon this entry. It does not, to my mind, justify an inference that at that time the applicant had an anxiety state or any symptoms of an anxiety state." See also, for example, the opening sentence of par [22] and the last sentence of par [23]. 13 I should add that the substance of subpar [29(ii)] confirms the evident difficulty which the Tribunal had in comprehending and applying the so-called Deledio steps. In saying this, I have sympathy with the member of the Tribunal concerned. The sections involved, and the concepts lying behind them, are difficult to comprehend and analyse. Minds can certainly differ as to whether the manner in which the sections have been construed is correct, but the High Court and the Full Court of this Court have settled the principal questions of construction no matter what difficulties of application this may cause. I also accept that there is some danger in applying the statement of the Full Court in Deledio as if it were a statute in a case like this. 14 Counsel for the respondent has submitted that the application of s 120(3) necessarily involves elements of judgment both as to whether a hypothesis is raised and whether it is reasonable, particularly as the opinion is to be formed after consideration of the whole of the material before the decision-maker. She also relied upon the reasoning of the Full Court in Bull in submitting that the formation of the relevant opinion was for the Tribunal as it viewed the whole of the material. It was submitted that merely to allege a fact or facts was not to "raise" those facts or an hypothesis. Merely leaving an hypothesis open is not to point to an hypothesis (East v Repatriation Commission (1987) 16 FCR 517 at 532). It was submitted that passages at 571 of the joint judgment in Byrnes illustrate that something more than mere statement of a fact is required. Counsel for the applicant submitted that those passages from Byrnes, when properly understood, are consistent only with the assessment of the hypothesis being made without any process of weighing or fact-finding at that point. 15 In the present case, the Tribunal did not consider whether facts appearing in the material before it would (if correct) point to an hypothesis that the disease was war-caused. In the present case, for reasons I have explained, the question to be explored was the time of clinical onset of the generalised anxiety disorder. Although formation of the opinion is a matter for the Tribunal, there are plainly a number of facts which (if correct) could be seen as pointing in that direction. The circumstance that all (or any) of those facts might not be proved if the applicant bore an onus of proof, or that there is countervailing material which would point in the other direction, does not mean that the facts which would form the basis for the favourable hypothesis can be ignored or put to one side for the purposes of s 120(3) . 16 The approach of the Tribunal is tantamount to treating the factors referred to in the Statement of Principles as being, in effect, jurisdictional facts which must be found by the Tribunal to actually exist before it can be said that a reasonable hypothesis has been raised. The respondent has not submitted that that would be the correct approach, and so it is not necessary to examine that question fully. However, such an approach would seem to misunderstand the use of a Statement of Principles for the purposes of s 120A(3). It needs to be borne in mind that s 120A(3) is only relevant for the purposes of s 120(3) and the role of the Statement of Principles is to uphold the hypothesis referred to in that subsection rather than any proven version of the facts. That view is supported by consideration of ss 120(1) and (6). I have been referred to no authority which would support a contrary proposition. 17 In my opinion, the applicant has established that the Tribunal erred in law. The matter is to be remitted to the Tribunal to be considered according to law. The respondent should pay the costs of the applicant of this application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.