FEDERAL COURT OF AUSTRALIA Brennan v Repatriation Commission [2004] FCA 1431 VETERANS ENTITLEMENTS ACT – Statement of Principles – Application of Deledio – Identification of relevant hypothesis – Whether hypothesis consistent with Statement of Principles – Whether error of law. Veterans Entitlements Act 1986 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Repatriation Commission v Hancock [2003] FCA 711 Repatriation Commission v Deledio (1998) 83 FCR 82 Woodward v Repatriation Commission (2003) 200 ALR 332 GREGORY ARTHUR BRENNAN v REPATRIATION COMMISSION No VID 1030 of 2003 SELWAY J 4 NOVEMBER 2004 ADELAIDE (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1030 OF 2003 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GREGORY ARTHUR BRENNAN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 4 NOVEMBER 2004 WHERE MADE: ADELAIDE (HEARD IN MELBOURNE) THE COURT ORDERS THAT: 1. Appeal dismissed. 2. The applicant to pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1030 OF 2003 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GREGORY ARTHUR BRENNAN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: SELWAY J DATE: 4 NOVEMBER 2004 PLACE: ADELAIDE (HEARD IN MELBOURNE) REASONS FOR JUDGMENT 1 This is an "appeal" from a decision of the Administrative Appeals Tribunal ("AAT") comprising a non-Presidential member, delivered on 16 October 2003. The issue before the AAT was whether the applicant was entitled to an increase in the pension payable under the Veterans Entitlements Act 1986 (Cth) ("the Act"). The applicant claimed that he was suffering from anxiety and depression which were caused by his war service in addition to other injuries which had previously been accepted were caused by that service. The AAT affirmed the previous decision of the Veterans Review Board to dismiss the applicant's claim and to continue his pension at the then existing rate. 2 The issue raised by this "appeal" is whether there was an error of law in the reasoning of the AAT: see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). For the reasons given below the appeal is dismissed. 3 Various alleged grounds of appeal have been raised. Only two of them have any possible substance and are discussed in more detail below. However given the breadth of the issues raised in the grounds of appeal and in the applicant's submissions, it is sensible to discuss the broad approach taken by the AAT in this case. 4 The applicant's claim required consideration of at least s 119, s 120 and s 120(a) of the Act. Those sections have received detailed consideration by the Court on many occasions. I refer to my own analysis in the case of Repatriation Commission v Hancock [2003] FCA 711 (Hancock). At par 9 of my reasons in Hancock I pointed out that the AAT must be satisfied on balance of probabilities in relation to the preconditions for making a claim other than causation. In this case the AAT determined that the applicant was a war veteran who had seen war service. "On 1 October 1941 he enlisted in the Australian Army and served in New Guinea and postings in Australia until his discharge on 8 January 1946. His service constitutes operational service for the purpose of s 9 of the Veterans Entitlements Act 1986 (the Act)." 5 The AAT also properly determined on balance of probabilities what kind of injury the applicant was suffering. The medical evidence before the Tribunal identified two possibilities. The first was a depressive disorder; the second was a generalised anxiety disorder. In relation to those possibilities the Tribunal determined that the applicant was not suffering from a depressive disorder but was suffering from a generalised anxiety disorder. "The Tribunal prefers the evidence of Dr Kenny and finds on the balance of probabilities that the applicant does not suffer from a depressive disorder. In respect of anxiety disorder the Tribunal accepts the overwhelming psychiatric evidence that the applicant is suffering from a generalised anxiety disorder." 6 In relation to that injury, the inquiry that the AAT was required to undertake was explained by the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97]. The Full Court there identified a four step process: "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 [Statement of Principles] determined by the authority under s 196(b)(2) or subs (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 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 s 196(b)(2), subs (d) and subs (e). If the hypothesis does contain these factors it could neither be said to be contrary or proved to no scientific fact, more 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." 7 The first step in this process, involves the identification of the reasonable hypothesis. In this case two were suggested. The first was that the anxiety disorder arose from a back injury suffered by the applicant during his war service. The second was that the anxiety disorder arose from the applicant being informed during his war service that his brother had been killed whilst his brother was on war service. 8 The AAT then took the second step in accordance with Deledio and properly identified the relevant Statement of Principles ("SoP") being SoP No 1 of 2000 relating to anxiety disorders. 9 The AAT considered both of the claimed hypotheses. It is clear that the AAT was relevantly only seeking to apply step 3: "Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the applicant's injury or disease with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable." 10 It came to the view that the hypothesis involving back injury did not fit within the template. It also decided that there was no factual basis for the claimed hypothesis based upon the death of the applicant's brother. The applicant says that in doing so the AAT either misunderstood the relevant SoP or alternatively wrongly engaged in a fact finding exercise at the point when it was only purporting to perform step 3 of the Deledio process. 11 In this case the relevant SoP is that for a generalised anxiety disorder. Paragraph 5 of that SoP provides: "The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder where the circumstances of a person's relevant service are: (a) for a generalised anxiety disorder or anxiety disorder not otherwise specified only … (ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or … (iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder." 12 The words "major illness or injury" are defined in cl 8 of the SoP to mean "a disease or injury that is life threatening or seriously disabling". 13 The words "severe psychosocial stressor" are also defined and mean "an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems". 14 In relation to the hypothesis based upon back injury, the applicant argued that that back injury comprised a "major illness or injury" for the purposes of the SoP. In relation to that argument the AAT said: "In respect of factor 5(a)(iv) of the SoP, in relation to having a major illness or injury, the Tribunal notes the evidence from Mr Dooley that the applicant's back injury causes minimal trouble and no specific treatment is required for this or the applicant's right knee. The Tribunal also takes into account the applicant's oral evidence that he played golf until four years ago, and that his back pain occurs on and off and did not prevent him from undertaking full time employment before retiring at the age of 65 years. Therefore the back condition does not fit within the definition of major illness or injury. Similarly there is no evidence that the anxiety experienced by the applicant could be described as life threatening or seriously disabling that would bring the condition within the definition." 15 It is noted that the reference by the AAT to the "anxiety" being "life threatening or seriously disabling" seems to involve some misunderstanding. The issue before the AAT was not whether the anxiety disorder was life threatening or seriously disabling but whether the back injury was. However it does not seem to me that anything much turns on this. The Tribunal clearly did address the question of whether the back condition fitted within the "template". 16 Mr De Marchi, who appeared on behalf the applicant before me, argued that there was evidence before the AAT that the applicant had informed at least two psychiatrists that it was not worthwhile "going on" by reason of his back pain. However the relevant hypothesis has to be looked at in the overall context of the claim being put. Plainly enough, if there are disputes in the evidence then the hypothesis at least at the third step of the Deledio analysis must take the best view possible from the applicant's perspective. However, where, as here, all evidence relating to his condition is ultimately derived from the applicant himself and none of that evidence is relevantly in dispute, it is plainly appropriate to look at all of it to determine what the relevant hypothesis is. This is what the AAT did. Looked at as a whole, it is plain that the applicant's case was that he had a chronic back condition as a result of his army service. That chronic back condition had caused him significant difficulties during his life but he had lived with what pain it caused. In his statement to one of the treating doctors he described the back pain as a "nuisance". He had learned to live with it. It was clear that he continued in his employment until retirement age, notwithstanding his back pain. It was clear that he continued to play golf even after that. In the circumstances it seems to me to have been open to the Tribunal to find, as it did, that the "hypothesis" put forward by the applicant was not one involving a back pain which was "life threatening or seriously disabling". Consequently, even assuming that there was evidence that he had suffered the anxiety disorder within two years after suffering the back injury as required by the SoP (a matter which seems to me to be open) it nevertheless seems to me that the AAT was correct in its conclusion that the hypothesis based on back pain did not fit within the template of the SoP. In any event, any relevant error by the AAT would seem to be an error in understanding the claim as put by the applicant. That does not involve an error of law for the purposes of s 44 of the AAT Act. 17 The other suggested hypothesis put forward by the applicant was based upon his reaction to the death of his brother. It must be said that this hypothesis was only faintly suggested on the evidence or material before the AAT. Nevertheless the AAT dealt with it. "In respect of factor 5(a)(1)(ii) of SoP, Number 1 of 2000, in relation to experiencing a severe psychological stressor, the Tribunal takes into account that in reports by medical practitioners the applicant's anxiety and worry were concerned primarily with his back pain and his concerns for his wife's health and his future well being. In his oral evidence, the applicant did not refer to the death of his brother as a cause of particular anxiety, although there was a brief mention in Dr Kenny's report dated 7 June 2000 that the applicant said that he sometimes worried about his war time experiences such as the loss of his brother. The Tribunal does not consider that any of these experiences come within the definition of severe psychological stressor, and there were no other identifiable occurrences that would satisfy the definition." 18 In the report of Dr Kenny that is referred to by the AAT, Dr Kenny said that he had been told by the applicant that "he couldn't think of any other serious traumas he had experienced during his time in the army", other than an event involving a vehicle accident in New South Wales. The report also says "He did not tell me of any anxieties that he experienced while in New Guinea, although he was obviously worried by the death of one brother in a bombing raid. Whether one would regard the stressors that he ran into while he was training recruits, as sufficient to cause an anxiety disorder in my view is uncertain. I am inclined to think the fact that he felt anxiety at those times is a function more of his personality than of the stresses that he experienced. So on balance I accept that he has a very mild anxiety disorder, not otherwise specified, consistent with Dr Parkin's view. But I find myself simply unconvinced this is due to his war service." 19 The only other mention of this incident was in re-examination of the applicant when he was giving evidence before the AAT. He was asked: "You told Dr Kenny, too, that when you came back from New Guinea you were a little bit – well, you were certainly finding it difficult to go to sleep; you were having bad dreams, is that right? --- Yes. And also there was one concern that you had, there was the death of your brother in a bombing raid, is that correct? --- Yes. Whereabouts did that occur? --- It happened at the bombing of Pantelleria in Italy. Right? --- As a matter of fact, it was his maiden voyage – maiden's lot. He was the skipper of the plane." 20 It is not at all obvious that these references to the death of his brother can sensibly be said to constitute an "hypothesis" for the purposes of steps 1-3 of Deledio. It would not appear that the applicant himself has claimed to any medical practitioner at any time that his anxiety disorder is derived from the news of his brother's death. Nor did Dr Kenny make that claim. Although the Tribunal purported to be referring to the SoP, it would seem from its reasons that the AAT did not treat the death of the applicant's brother as an hypothesis that arose on the material before it. In my view it was right to reach that conclusion. 21 The AAT did comment that news of the death of the applicant's brother was not capable of being a "severe psycho social stressor". In my view that conclusion was also open to it, even assuming that there was a "hypothesis". The death of a relative is specifically referred to in the definition of "severe psycho social stressor" within the SoP. Nevertheless, that receipt of the news of that death must be related to the applicant's war service. In this case it was suggested that the relevant "relationship" was established by s 196B(14) of the Act which provides: "A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service." 22 The evidence in this case was totally inadequate to enable the AAT to identify what the relevant "factor" was and whether that "factor" was the result of the applicant's war service. If, for example, there was evidence that the news of his brother's death was received during the applicant's war service, that this caused him stress and anxiety, that that stress or anxiety, resulted in a generalised anxiety disorder and that he suffered from that generalised anxiety disorder within two years of that stress or anxiety then this might well be the basis for identifying a relevant hypothesis which was consistent with the SoP. None of that evidence was before the AAT. It was correct in its conclusion that the hypothesis which was before it, such as it was, was not consistent with the "template" within the SoP. 23 Finally I should mention one other of the grounds of appeal. The applicant argued that the reasons of the AAT were insufficient or inadequate and that this involves an error of law. In my view the reasons were and are sufficient to identify both what the AAT decided and why it did so. That ground of appeal also is not made out. 24 In all the circumstances it seems to me that none of the appeal grounds are made out. The appeal must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 4 November 2004 Counsel for the Applicant: D De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: A McMahon Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 October 2004 Date of Judgment: 4 November 2004