FEDERAL COURT OF AUSTRALIA Repatriation Commission v Parr [2003] FCA 970 REPATRIATION COMMISSION v PHILIP PARR N 176 of 2003 MOORE J 15 SEPTEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 176 OF 2003 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: PHILIP PARR RESPONDENT JUDGE: MOORE J DATE OF ORDER: 15 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal of 3 February 2003 be set aside. 2. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law. 3. No order as to costs. 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 176 OF 2003 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: PHILIP PARR RESPONDENT JUDGE: MOORE J DATE: 15 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an appeal by the Repatriation Commission ("the Commission") under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal ("the Tribunal") of 3 February 2003. The respondent's claim for a disability pension was lodged on 21 September 2000. The delegate of the Commission refused the respondent's application on 27 October 2000. The Veteran's Review Board affirmed that decision on 13 November 2001. The respondent appealed to the Tribunal. The Tribunal set aside the decision of the delegate and substituted a decision, effective 15 June 2000, that the respondent suffered from generalised anxiety disorder and alcohol abuse which were war caused. The Commission appealed to the Federal Court on 3 March 2003. The parties have agreed that the Tribunal's decision should be set aside. They disagree about the form of order remitting the matter to the Tribunal. Factual background 2 The following is the respondent's account of his service history (drawn from material in the appeal book) which appears not to have been in issue before the Tribunal. The respondent was born in the United Kingdom on 13 March 1943. When he was two weeks old his father, who was an aircraft pilot for the Navy, was killed. His mother remarried after approximately two years. The respondent's stepfather also served in the British Navy. 3 In about 1948, the respondent's family relocated to Australia. When the respondent reached the age of 15 years and 10 months, he left school and enlisted in the Royal Australian Navy ("the Navy") (at the behest of his stepfather) as an apprentice fitter and turner. The respondent served in the Navy from 5 January 1959 to 30 December 1971. 4 The respondent's service commenced with four years' training in his trade at HMAS Nerimba, a shore station near Blacktown. He was then posted to HMAS Anzac. As an engine room artificer, he worked in the boiler room of ships, steaming the boilers. After about 18 months, the respondent was promoted and put in charge of the engine room. In about 1964, when the respondent was on the HMAS Anzac, some four or five trainee officers had gone sailing in a whaler, which disappeared. The Anzac searched for the whaler for a week. When it was eventually found, it contained the bloated bodies of two of the men. The two bodies were brought aboard the HMAS Anzac and placed near the engine room, which the respondent found very distressing. The bodies were later moved, before being taken ashore at Cooktown. 5 In 1966 the respondent was posted to the HMAS Yarra as a petty officer. In that same year, the HMAS Yarra sailed to Vietnam twice, escorting the HMAS Sydney. The HMAS Yarra did not come under attack during these trips. While in Vietnam, the HMAS Yarra was anchored in Vung Tau Harbour. Scare charges were dropped every couple of minutes, and the HMAS Yarra was kept on instant notice to sail. The scare charges made the living quarters like living "in a drum", and it was difficult to tell the charges apart from a bomb or a mine. This resulted in the respondent getting very little rest. The respondent's operational service in Vietnam took place from 25 April 1966 to 9 May 1966, and 26 May 1966 to 9 June 1966. People noticed he was different when he got back from Vietnam, and told him that he seemed tense, nervous and moody. The respondent was smoking a packet of cigarettes a day and drinking substantially. 6 After returning from Vietnam on the HMAS Yarra, the respondent decided he did not want to go back. He successfully applied for a transfer to submarine service, despite having no previous experience on submarines. In 1967 he was sent to Portsmouth in the United Kingdom for twelve weeks of submarine training. Following his training the respondent was drafted to the HMAS Olympus, an Oberon class submarine in the Royal Navy. While serving on the Olympus the respondent was promoted to Chief Petty Officer. 7 The respondent stated that he found it difficult to get to sleep from the time he started with the submarine service. Two incidents occurred whilst the respondent was in the submarine service that he found very stressful. The first incident occurred approximately 15 months after the respondent joined the HMAS Olympus. The submarine was travelling under the ice north of Scotland when the vessel's height sounder located a hole in the ice. While surfacing in the hole to recharge its batteries, the HMAS Olympus bent its periscope and significantly damaged its fin. This experience was very frightening for the respondent, as he and the crew "knew there was no escape". The second incident occurred approximately three months later on the HMAS Olympus in the English Channel outside Portsmouth. The submarine had been loaded with torpedos. However the weight calculations were faulty, leading to the bow being overloaded. When the submarine dived, the bow dropped very rapidly, resulting in a very fast descent. The submarine hit the sea floor and bounced a number of times. 8 In 1969 the respondent was drafted to the HMAS Neptune, a shore depot near Glasgow. As a member of the spare crew he went to sea twice in this period. Later in 1969 the respondent returned to Australia and married in March 1970. He was then drafted to the HMAS Ovens, and then the HMAS Platypus, a shore depot. The respondent had experienced tension, insomnia and nerves on the HMAS Ovens. In January 1971 the respondent went to see Dr McGeorge, a psychiatrist, who diagnosed him with phobic anxiety state and recommended that he be transferred to general service. The respondent's next posting was to the HMAS Water Hen, a shore depot, where he ran a torpedo recovery vessel with a crew. He was discharged from the Royal Australian Navy after 13 years of service. 9 After he left the Navy, the respondent worked at a power plant at Kurnell doing shift work, and later became a Boiler Inspector. At the time of his application he was a self employed Boiler Inspector working an average of 30 hours per week. The Tribunal's reasoning 10 The Tribunal commenced its reasons with a summary of the respondent's evidence of his military service, with particular emphasis on the pattern of drinking that had developed while the respondent was serving in the Navy. It then turned to consider the medical evidence, noting that the respondent had seen a number of doctors over time. It ultimately expressed the view (at [57]) that the respondent suffered from generalised anxiety disorder and alcohol abuse. It then went on to consider whether those conditions were war caused. In considering this question, the Tribunal had to address (having regard to the relevant Statement of Principles) the date of clinical onset of both the respondent's anxiety disorder as well as his alcohol abuse. As to the former it said at [76] and [77]: 76. As to the date of clinical onset of the [respondent's] anxiety disorder, the Tribunal notes the [respondent's] evidence that it was on his first trip to Vung Tau that he began to suffer insomnia, increased his smoking fivefold to give him "some relief" and began to drink with a view to "wiping thought out". He described a high level of stress and apprehension at this time. Dr Dinnen's evidence was that the clinical onset of the [respondent's] anxiety disorder is evidenced by the [respondent's] desire to transfer to submarines rather than to return to Vietnam. On this basis, the Tribunal is satisfied that there is before it material pointing to the clinical onset of the [respondent's] anxiety disorder being within two years immediately after the stressor experienced by him on operational service in Vung Tau. 77. On this basis, the Tribunal considers that the [respondent's] hypothesis of war causation in relation to his anxiety disorder is in conformity with and upheld by SoP No. 1 of 2000. It follows that the hypothesis is reasonable. 11 As to the latter it said at [81] and [82]: 81. As to whether the clinical onset of the [respondent's] alcohol abuse was within two years of the severe stressor, the [respondent's] evidence was that he was disciplined in the United Kingdom for drinking. This occurred within two years after his trips to Vung Tau. 82. Alternatively, the Tribunal has already concluded that there is material before it that points to the [respondent] having developed anxiety disorder from the time of his trips to Vung Tau. It follows that there is material before the Tribunal that points to the [respondent] suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse. There is no material before the Tribunal to suggest that the [respondent's] alcohol abuse was present before his trips to Vung Tau. I now turn to consider the agreed error and what orders should be made. The agreed error 12 The parties have agreed that the Tribunal's approach to the question of clinical onset, both of the generalised anxiety disorder and the alcohol abuse was deficient, and reveals an error of law having regard to the judgment of the Full Court in Lees v Repatriation Commission (2002) 36 AAR 484. That matter concerned one of the Statement of Principles considered by the Tribunal in the present matter. The Court concluded that the Tribunal had not erred in determining when there had been "clinical onset". The Tribunal had said that the features of a generalised anxiety disorder referred to in clause 8 of SoP No. 1 of 2000 were "cumulative and so the material must point to his suffering from all of them in the two years after his experiencing the severe psychosocial stressors before it can be said that there is material pointing to the clinical onset of his generalised anxiety disorder in the relevant period." 13 In approving this approach the Full Court said (at [16]): The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. 14 In the present matter I am satisfied that the Tribunal has erred as the parties have agreed. In relation to both alcohol abuse and generalised anxiety disorder the Tribunal did not, in substance, address the question of when the identified symptoms or features of each had manifest themselves and whether they had done so within the requisite period of two years. Competing orders 15 Counsel for the Commission submitted that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal, differently constituted, to be decided in accordance with law. Counsel for the respondent submitted a different order should be made, referring to orders made by a Full Court in Repatriation Commission v Meehan on 12 November 2001 which were in the following terms: 1. The appeal be allowed in part. 2. By consent the orders made by [the primary judge] on 25 May 2001 be varied as follows: (i) varying order 2 to add after the word "matter" [referring to the matter being remitted to the Tribunal] the words "being the question whether the appellant's generalised anxiety disorder is war-caused". (ii) adding order 2A: 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. … 16 Counsel for the respondent submitted that the order in this matter should be in terms which ensure the Tribunal only considers when there was clinical onset of the generalised anxiety disorder and alcohol abuse, and whether that occurred within the requisite two year period. It was contended that to follow any other approach would potentially expose for reconsideration the Tribunal's findings about the existence of both conditions, and not simply when there was clinical onset of each. Counsel for the respondent also submitted that the Tribunal should be directed to determine the matter without receiving further evidence. 17 In my opinion I should not make an order that, in express terms, constrains what the Tribunal can consider. I should, as commonly occurs, make an order remitting the matter for further hearing and determination by the Tribunal according to law, which reflects a formulation of the order sought by the Commission. However the Tribunal will no doubt be made aware that the error of law alleged by the Commission in its notice of appeal only arose "when [the Tribunal was] determining the time at which the clinical onset of generalised anxiety disorder and alcohol abuse occurred". It will be a matter for the Tribunal, aided by submissions of the parties, to determine the scope of what it can consider having regard to the terms of the order: see Repatriation Commission v Nation (1995) 57 FCR 25. The Tribunal may well take the view that it is possible to divorce the question of whether a person suffers from a disease or disorder from the question of when clinical onset of the disease or disorder occurred. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 15 September 2003 Counsel for the Applicant: R M Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: C H P Colborne Solicitor for the Respondent: Rockliffs Solicitors & Attorneys Date of Hearing: 17 June 2003 Date of Judgment: 15 September 2003