FEDERAL COURT OF AUSTRALIA Paddon v Repatriation Commission [2010] FCA 1147 Citation: Paddon v Repatriation Commission [2010] FCA 1147 Appeal from: Paddon and Repatriation Commission [2010] AATA 470 Parties: RICHARD BARRATT PADDON v REPATRIATION COMMISSION File number: QUD 294 of 2010 Judge: LOGAN J Date of judgment: 22 October 2010 Catchwords: ADMINISTRATIVE LAW – Veterans' Affairs – Eligibility for receipt of pension – Appeal from decision of the Administrative Appeals Tribunal – Whether Tribunal correctly applied the test required by s 120 and s 120A of the Veterans' Entitlements Act 1986 (Cth) – Consideration of "category 2 stressors" for the purposes of the Statements of Principles drawn up under the Veterans' Entitlements Act 1986 (Cth) – Whether Tribunal erred in construing aspects of relevant Statements of Principles – Where errors of law were present – Whether remittal to Tribunal should be ordered – Where remittal would be futile as conclusions reached on "clinical onset" for the purposes of the Statements of Principles were not under challenge Held: Appeal dismissed – Answers favourable on questions of law is a necessary but not sufficient basis for remittal to the Tribunal - Concession as to "clinical onset" finding fatal with respect to remittal Legislation: Veterans' Affairs (1994-1995 Budget Measures) Legislation Act 1994 (Cth) Veterans' Entitlements Act 1986 (Cth) ss 5AB, 120, 120A, 196A, 196B, 196M Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Repatriation Commission v Deledio (1998) 83 FCR 82 considered Repatriation Commission v Stoddart (2003) 134 FCR 392 applied Repatriation Commission v Warren (2008) 167 FCR 511 cited Woodward v Repatriation Commission (2003) 131 FCR 473 cited Date of hearing: 21 October 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr R Clutterbuck Solicitor for the Applicant: Haney Lawyers Counsel for the Respondent: Ms H Bowskill Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 294 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RICHARD BARRATT PADDON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: LOGAN J DATE OF ORDER: 22 OCTOBER 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 294 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RICHARD BARRATT PADDON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: LOGAN J DATE: 22 OCTOBER 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Mr Richard Paddon, the applicant, was a member of the Australian Regular Army between 8 May 1967 and 7 May 1970. He was discharged upon the expiry of his term of enlistment. At the time of his discharge, he had yet to attain his 21st birthday. 2 Mr Paddon's parent corps was the Royal Australian Engineers. He was posted to 32 Small Ships Squadron, which was an Army unit which operated, inter alia, a Landing Craft Medium (LCM) named AV Clive Steele. Mr Paddon's term of enlistment included two periods of operational service in South Vietnam as a member of the crew of the AV Clive Steele: 21 January 1969 to 27 April 1969 and 25 October 1969 to 7 December 1969. 3 During the Vietnam War, the AV Clive Steele voyaged between Sydney and South Vietnam carrying cargo. It also fulfilled a like role in riverine operations in South Vietnam. 4 Mr Paddon has made a claim under Pt II of the Veterans' Entitlements Act 1986 (Cth) (VEA) for an incapacity pension. The injuries or diseases which were said to be war caused for the purposes of that claim were originally post traumatic stress disorder and alcohol dependence. By the time Mr Paddon's case reached the Administrative Appeals Tribunal (Tribunal) after decisions adverse to him by the respondent Repatriation Commission (Commission) and the Veterans' Review Board as to the correct diagnosis of Mr Paddon's condition had changed, there was uncontradicted evidence before the Tribunal and the Tribunal found as a fact that he was suffering from generalised anxiety disorder and depression. 5 Having made this finding, the Tribunal addressed the question as to whether each or either of these conditions related to operational service rendered by Mr Paddon. In so doing, the Tribunal approached the answering of that question by reference to the standard of proof specified in s 120(1) and s 120(3), as affected by s 120A of the VEA, as the operation of those provisions in a case like the present is explained in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio). In so doing the Tribunal concluded that there was not in force a Statement of Principles (SoP) which upheld a hypothesis connecting Mr Paddon's conditions the circumstances of the eligible service rendered by him. Accordingly, it affirmed the decision to refuse his pension claim. 6 This appeal comes to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) by what is termed an appeal on a question of law. It was not submitted on behalf of Mr Paddon that the Tribunal had misunderstood the operation of the provisions of the VEA as explained in Deledio. Rather, after quite some revision of their initially pleaded form, the questions of law were identified as whether the Tribunal had misconstrued two particular paragraphs of relevant SoP. It will assist the comprehension of these questions if first some explanation of the SoP regime is given and pertinent extracts of the SoP concerned are set out. Another, related question was whether the Tribunal had given adequate reasons. 7 As enacted, the VEA did not make provision for SoP. Provision for their making was introduced by the Veterans' Affairs (1994-1995 Budget Measures) Legislation Act 1994 (Cth) (Budget Measures Act). The effect of the amendments introduced by that Act on the then existing provision in the VEA in respect of the standard of proof of a pension claim is fully described in Deledio (at 83-86). It would only add unnecessarily to the length of these reasons to repeat what is there stated. 8 What is critical for present purposes is the effect which s 120A(3), inserted into the VEA by the Budget Measures Act, has on the "reasonable hypothesis" test for which s 120(3) of the VEA provides. Materially, s 120A(3) states that: "[f]or 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 Statement of Principles determined under subs 196B(2)". 9 Sub-section 196B(2) of the VEA materially provides: Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). 10 The "Authority" mentioned in the sub-section is the Repatriation Medical Authority (RMA) established pursuant to s 196A. The Authority's membership is drawn exclusively from persons who are registered medical practitioners or medical scientists, with at least 10 years experience: see s 196M of the VEA. Subsection 5AB(2) of the VEA defines "sound medical-scientific evidence" as follows: sound medical-scientific evidence, in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2). (2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if: (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused—meets the applicable criteria for assessing causation currently applied in the field of epidemiology. 11 The effect of the Budget Measures Act was, subject to review of its determinations by the Specialist Review Council, to consign to the RMA, by its formulation of an SoP, the relating of particular kinds of injury or disease to the circumstances of operational service rendered by veterans for the purposes of the reasonable hypothesis test posited by s 120(3) of the VEA. Hitherto, the existence of such a relationship had been a matter for evidence at the time of assessment of a veteran's claim or upon later review. The amendments made by the Budget Measures Act appear to have been responsive to an apprehension by Parliament of the possibility that, under the VEA as it then stood, an hypothesis supported only by idiosyncratic scientific views may have had to be accepted as reasonable. One might, with respect, have thought that the introduction of a requirement that the hypothesis be supported by sound medical-scientific evidence, as has come to be defined would itself have addressed that apprehension. As it is, for the apprehended flaw in the legislation as it earlier stood has been substituted not only an expectation that the RMA will remain continually receptive to the evolution of medical science and its ramifications for connecting conditions with the circumstances of service but also new scope for controversy in disputes as to the meaning of the plethora of determinations that the RMA has made. This case is one such dispute. 12 The Tribunal (Reasons at para 52) concluded that, "the statement of the veteran that he had 'a terrible anxiety attack' when action stations were called on his first tour of duty and the entry by the veteran on the discharge medical examination form that he has 'frequent severe depression' is sufficient to point to … [an] hypothesis [connecting Mr Paddon's generalised anxiety disorder and depressive conditions with the particular operational service he had rendered]". Given those conditions, the Tribunal regarded the following SoP as relevant to its deciding whether there was an SoP that upheld that hypothesis: (a) SoP for Anxiety Disorder: Instrument No 101 of 2007; and (b) SoP for Depressive Disorder: Instrument No 27 of 2008. 13 It was common ground on the hearing of the appeal that the Tribunal had correctly understood how, having regard to Deledio, s 120 and s 120A of the VEA were to be applied and had, for that purpose, correctly identified the pertinent SoP. 14 Common to each of these SoP as one factor the presence of which could satisfy one of the mandatory criteria that must as a minimum exist before it could, for the purposes of the particular SoP, be said that a reasonable hypothesis had been raised connecting Mr Paddon's depressive disorder or, as the case may be, his anxiety disorder with the circumstances of his service was, "experiencing a 'category 2 stressor' within the one year before the clinical onset of [the condition]". Each SoP defines a "category 2 stressor" in the following way: "a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry: (a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness; (b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce; (c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment; (d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems; (e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy; (f) having a family member or significant other experience a major deterioration in their health; or (g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability; 15 The questions of law which came to be identified on behalf of Mr Paddon were whether, in relation to the definition of "category 2 stressor", the Tribunal had misconstrued: (a) paragraph (c) and in particular the phrase, "having concerns in the workplace …"; and (b) the word "chronic" in the opening part of that definition? 16 A further question of law which had been advanced on behalf of Mr Paddon related to the Tribunal's conclusion that there is no material before it which pointed to the clinical onset of a condition within the time periods specified in each SoP. That question was not pressed. Rather, it was conceded on behalf of Mr Paddon that the conclusion reached by the Tribunal on the subject of clinical onset was reasonably open to it and otherwise free from any error of law. It will be necessary further to consider that concession and whether, as was submitted on behalf of the respondent Commission, that carries with it the necessary consequence that remission of the matter to the Tribunal is pointless even if either or each of the questions of law is answered in favour of Mr Paddon. 17 To understand how each of the remaining questions of law arises it is necessary to excerpt that part of the Tribunal's reasons (Reasons, para 61 to 64) in which it addressed the subject of "stressors": STRESSORS 61. After reviewing the evidence before us we have concluded that the material does not disclose a category 1A stressor. Having regard to the definition of "a category 1A stressor" which is identical in each Statement of Principles, we have come to the conclusion that none of the events described by the veteran could be fairly regarded as a "life threatening event". The veteran was not present when the USS Tom Green County and the AV Clive Steele had been damaged by rocket fire. The fact that the veteran would have seen the damage of the attacks on both vessels is not in our view a life threatening event. We comment that the veteran voluntarily inspected the USS Tom Green County and was escorted around the vessel. Our findings in this respect are based on the fact that the veteran was not aboard the AV Clive Steele at the time when it was subject to rocket attack. We also consider that the veteran witnessing the helicopter attack on the third day of his tour could not be regarded as a life-threatening event. At the time when he saw the helicopter attack he was not under action stations. We do not consider that his life was under threat on that occasion. 62. We have also formed the view that the material does not disclose a category 2 stressor, the definition of which is identical in each Statement of Principles. This definition has two aspects: the stressor must be one of the listed "negative life events" and also the effects of the stressor must be "chronic in nature and cause the person to feel ongoing distress, concern or worry". We do not consider that the veteran witnessing the helicopter attack on the third day of his tour comes within the description of one of the listed "negative life events". We therefore consider that the veteran witnessing the helicopter attack on the third day of his tour is not a category 2 stressor. On behalf of the veteran it has been submitted that the incident on the third day of the veteran's tour was a category 2 stressor because of the effects that it had on the veteran. The veteran, in his statement, remarked: "During the night I had visions of the enemy with machetes coming over the stern and attacking us. I felt utterly vulnerable". The statement also contains the following comments: "I could not confide in anyone I was simply unable to sleep". We do not consider that there is material before us which shows effects which are chronic in nature and cause the person to feel ongoing distress; concern and worry. 63. In considering whether the material discloses a category 2 stressor, we have examined two discharge history questionnaires that have been signed by the veteran. The veteran has within a short period of time given different answers to one particular question. The material before us does not explain this change of answers. On the first questionnaire that was signed on 26 March 1970, the veteran has answered "no" to the question of whether he has or ever had "frequent severe depression". On the second questionnaire that was signed on 6 April 1970, the veteran has answered "yes" to the question of whether he has or ever had "frequent severe depression". The medical practitioner has in response to this question made the comment: "Mild manic depressive (but does not require treatment)". 64. The entry on the second discharge history questionnaire is certainly evidence that the veteran had at the time of his discharge a "mild manic depressive condition". The veteran was not referred to a specialist for the condition. The comment of the medical officer (R.A. Burston, a respected practitioner of some seniority) that the condition of the veteran was then "mild" and did not require treatment is significant. This is because a Category 2 stressor has to have effects which are "chronic" in nature; this is not the case in this depressive condition which has been regarded as "mild". The attention of Professor Jones was drawn to this notation by the medical officer. Professor Jones remarked that he did remember seeing the material but could not actually find any evidence that the veteran had any manic episodes. 18 It is not necessary to set out the definition in the SoP of "category 1A stressor". Suffice it to say it covers severe traumatic events. 19 At the general level of abstraction to which the observation is directed, there is no error in the Tribunal's observation in respect of the definition of "category 2 stressor" that, "[t]his definition has two aspects: the stressor must be one of the listed 'negative life events' and also the effects of the stressor must be 'chronic in nature and cause the person to feel ongoing distress, concern or worry'". Mr Paddon did not submit otherwise. Rather, he submitted that a misunderstanding of the meaning of paragraph (c) of the definition was evident in the sentence which followed in the Tribunal's denial that Mr Paddon's witnessing of a helicopter attack on the third day of his tour of duty in South Vietnam could come within the description of one of the listed "negative life events". Also part of that submission was that the events which the Tribunal found were not "category 1A stressors" (a finding which was not said to have been attended with legal error) were also capable of falling within paragraph (c) of the definition, properly construed, and that the Tribunal had erred in not so regarding them. 20 It was acknowledged on behalf of Mr Paddon that the Tribunal's selection of particular events for measuring against whether they amounted to a category 1A or, as the case may be, a "category 2 stressor" was responsive to the way in which Mr Paddon's case had been presented before it. Underpinning the submission as to these particular stressors was that, whatever error there was in putting them forward before the Tribunal as "category 1A stressors", the Tribunal's statutory task was to reach the correct or preferable decision in the application of the law to the facts it found. Having regard to the discussion of the subject by Lindgren and Bennett JJ (with whom in this regard I agreed) in Repatriation Commission v Warren (2008) 167 FCR 511 at [78] (Warren), the submission was that this was one of those cases where, if the true meaning of "category 2 stressor" was as contended, the Tribunal had erred in failing to address whether what had been put forward as "category 1A stressors" were nonetheless "category 2(c) stressors". 21 As a matter of first impression and with all due respect to the RMA, the language employed in the definition of "category 2 stressor" gives me pause for thought as to the extent to which the members of that authority appreciated that, in s 196B(2) of the VEA, the view described in that sub-section must be capable of being related to "operational service rendered by veterans". That is because, viewed as a whole, the "negative life events" described in the definition of "category 2 stressor" seem to owe more to the experience of civilian life than what one might expect to be circumstances arising in "operational service rendered by veterans". Note, for example, the references to "school" in contradistinction to "work" in the definition. There is a need, flowing from s 196B(2), to relate the view formed on the basis of sound medical-scientific evidence as to particular kinds of injury or disease to the forms of military service specified in this subsection when determining an SoP. 22 Be this as it may, the task to hand is to decide the meaning of the definition which has come to be employed in the SoP having regard to the language adopted, the context in which it appears and the purpose of an SoP as evident from the VEA. More particularly, the task requires determining whether, for example, Mr Paddon's witnessing a helicopter attack or the damage sustained by the USS Tom Green County and the AV Clive Steele could ever constitute "concerns in the work … environment" as that term is to be construed. 23 The expression "concerns in the work … environment" has about it a euphemistic quality sometimes encountered, in my experience, in the language of contemporary sociologists or psychologists or even some public administrators. That is quite apart from the surrealism attending a conception of a war zone as a "work environment". Further, read into the definition's opening words, paragraph (c) is capable of introducing an element of circularity – "having concerns in the workplace, the effects of which are chronic in nature and cause the person to feel on-going … concern". There are truly elusive qualities in the notion of having concerns that cause one to feel on-going concern 24 Neither party pointed to any precedent illuminating the meaning to give to "concerns" in the context in which it appears in paragraph (c). Nor was it submitted that the word had any special, technical meaning in medical science. The Oxford Dictionary's (Oxford English Dictionary, Online Edition, accessed 22 October 2010) definition of the word "concern" is divided as between the word as used in the context of a relation objective or subjective and as used in the context of a matter that concerns. It is the latter context in which the word is used in paragraph (c). Of the meanings given in that dictionary, meaning 7a strikes me as the most apt, "7. a. A matter or subject that affects or touches one, and that ought to engage one's active interest and attention". 25 Though the Macquarie Dictionary (Macquarie Dictionary, Online Edition, accessed 22 October 2010) does not expressly divide by context the definitions which it offers, it does contain a similarly apt definition, "4. a matter that engages one's attention, interest, or care, or that affects one's welfare or happiness". 26 What follows in an inclusory way in paragraph (c) of the definition in the SoP are examples of "concerns in the work or school environment". It was, somewhat reticently, put on behalf of the Commission that these examples limited the meaning of "concerns". That reticence was not, with respect, misplaced. Though it is possible to conceive how some of the experiences described in this part of the definition might arise in the course of operational or other eligible service, viewed as a whole the examples owe more to civilian rather than military life. Having regard to the purpose for which Parliament intends a SoP to be employed it is an unlikely construction to regard the inclusory examples as intended to be exhaustive of the meaning of "concerns in the work … environment". 27 Adopting as I do this construction of "concerns in the work … environment", it seems to me that the Tribunal has, in para 62 of its reasons, misunderstood the meaning of the word "concerns" in the context in which it is employed in paragraph (c) of the definition of "category 2 stressor". 28 The finding that the Tribunal made in relation to the helicopter event witnessed by Mr Paddon was that it was an attack. It was not, for example, part of a firepower demonstration in the course of a peacetime exercise in Australia. It was an attack occurring in a war zone, made at least because of a presumed enemy presence some 500 to 600 metres away from his position Further, it was nothing to the point, for the purposes of paragraph (c), that Mr Paddon was not on board either the USS Tom Green County when it had been attacked the previous day or on board the AV Clive Steele when it had been attacked shortly prior to his joining the ship. Physical evidence of those attacks remained and was seen by Mr Paddon. The Tribunal also had before it evidence that, when Mr Paddon joined the AV Clive Steele, the mood of the crew was and "subdued" as a result of these earlier attacks. Mr Paddon related being on a small ship plying waters in a war zone with a constant fear of again being attacked with results all too evident. His evidence was redolent of the anxiety that occasioned him at the time. The battle damage and the helicopter attack which he witnessed and being called on to man a machine gun on action stations on the AV Clive Steele were all facts found by the Tribunal. The account he gave was well capable of falling within the meaning of "concerns in the work … environment" as that term is to be construed. 29 It follows that the Tribunal's approach to finding whether Mr Paddon satisfied this aspect of each SoP has been tainted by an error of law as to the meaning of the term "concerns in the work … environment". Strictly, having regard to Warren, there is a separate error of law evident in the Tribunal's failure to appreciate that the events it dismissed as "category 1A stressors" were capable of being regarded as "category 2 stressors", as that definition was properly construed. 30 Some reference ought also to be made to the meaning to be given to the word "concern" as it appears in the recital to the definition of "category 2 stressor". Of the meanings given to the word in the Oxford Dictionary, meaning 5a in the first category of meaning strikes me as the most apt in context, " 5. a. Interest, solicitous regard, solicitude, anxiety; anxious, uneasy, or troubled state of mind, arising from regard to or interest in any person or thing. (Viewed as a condition that one is in or under, a sentiment that one has, shows, etc.)". The anxiety described by Mr Paddon was capable of falling within this meaning of "concern". 31 The next question which arises is whether the Tribunal has misconstrued the word "chronic" as it appears in the opening words of the definition of "category 2 stressor". The relevant paragraph of the Tribunal's reasons is para 64. The Tribunal's reasoning, evident in that paragraph, for not regarding Mr Paddon's conditions as "chronic" is compressed. That is not necessarily a fault, for brevity and precision of language in an administrator's reasons is to be encouraged. Further, the guidance at ultimate appellate level that an administrator's reasons are meant to inform and are not to be read narrowly and with an eye for error is salutary: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 32 As with the meaning to be given to "concerns", neither party submitted that any relevant precedent existed as to the meaning of "chronic" in the context in which it appeared. Each put forward definitions from the Oxford Dictionary with the commission additionally offering a definition of the word from a medical dictionary. Having regard to the regime in the VEA for the determination of SoP and to their intended purpose, I accept that it will often be relevant, when construing an SoP at least to consider whether a particular term is being employed in a technical sense: Woodward v Repatriation Commission (2003) 131 FCR 473 at [113]. 33 As it happens, there is no material difference between the meaning of the word "chronic" in ordinary English and the meaning given to it in a medical dictionary. As it happens, each meaning is true to the etymology of the word, which may be traced to the Latin, chronicus, "of or concerning time". Thus, the Oxford Dictionary relevantly defines the word to mean, "2. a. Of diseases, etc.: Lasting a long time, long-continued, lingering, inveterate; opposed to acute". Webster's Medical Dictionary gives a like meaning: "marked by long duration, by frequent recurrence over a long time, and often by slowly progressing seriousness; not acute". This is the meaning to give to the word "chronic" in the context in which it appears in the SoP. 34 Given this meaning, one might, with respect, have expected to find in the Tribunal's reasons a reference as to whether there was evidence that the condition noted in Mr Paddon's discharge documentation had persisted and, if so, for how long? As it is, the Tribunal has highlighted that the condition was noted to be "mild" and was not the subject of treatment. On behalf of Mr Paddon, this, it was submitted, indicated that the Tribunal either misunderstood the meaning of the word "chronic", attributing to the word the very meaning which it did not carry namely, "acute" or at least had not adequately explained its reasons. 35 I am conscious that the Tribunal as constituted for this case comprised not only a well qualified lawyer with lengthy military legal experience but also a medical practitioner with lengthy, senior military medical experience. I hesitate therefore to ascribe to the Tribunal an error in the understanding of the meaning of the word "chronic" in the context in which it appears. The criticism made on behalf of Mr Paddon does though, with respect, have substance as a matter of first impression. It was sought on behalf of the Commission to remove that impression by the submission that, read as a whole, what the Tribunal meant at para 64 of the Reasons in the highlighting of "mild" and an absence of a treatment requirement was that the condition was minor and transient. The difficulty with this submission is that it reads into para 64 of the Reasons an explanation which is neither there nor elsewhere for that matter. The answer must therefore be either that the Tribunal has misconstrued the word "chronic" or, at least, has failed to give adequate reasons for why the conditions were not "chronic". 36 As foreshadowed above, the Commission's submission was that, even if such errors of law as I have found were present, the concession as to the adverse finding with respect to "clinical onset" meant that, as a matter of discretion, there should be no remission because that was futile. The futility was said to arise from the need for there to be a SoP in force upholding the hypothesis. What remained in Mr Paddon's case, so it was submitted for the Commission, was a conceded failure on his part to satisfy the clinical onset aspect of either SoP. That being so, there was, for this reason alone, no SoP in force which upheld the hypothesis. 37 That an SoP does not uphold an hypothesis unless all of its essential elements are satisfied is a given. 38 As to whether there ought, in the circumstances, to be a remitter, each side relied upon the observations made by the Full Court in Repatriation Commission v Stoddart (2003) 134 FCR 392 at [43]: It is uncontroversial that it is open to the Court hearing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to dismiss the appeal if, having found an error of law, it nonetheless considers (i) the Tribunal's decision was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562; Harris v Repatriation Commission (2000) 31 AAR 270; or (ii) the same result would be inevitable on the remitter: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. But where "it is possible" for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; Arnott v Repatriation Commission (2001) 106 FCR 83; S115/00A v Minister for Immigration and Multicultural Affairs (2001) (2001) 180 ALR 561 at 567-568. 39 These observations, with respect, encapsulate the relevant considerations. I have found errors of law but a discretion remains to be exercised. 40 Here, it is conceded that the Tribunal was correct in finding that neither of the only relevant SoP upheld the hypothesis, if only because the conclusions reached in relation to clinical onset were open. That was reason enough for the Tribunal to have affirmed the decision under review. The errors of law which I have found do not intrude on the factual conclusion as to clinical onset reached by the Tribunal. The Tribunal has misunderstood what is capable of amounting to a "category 2 stressor" as defined and either misunderstood the meaning of "chronic" or at least inadequately explained its factual conclusion on that subject. However, neither of these errors affect the conclusion of fact as to when the clinical onset of the medical conditions from which the Tribunal accepted Mr Paddon suffered occurred. Had Mr Paddon succeeded also in exposing an error of law in the "clinical onset" conclusion then his claim for a remitter would have been compelling. That though is not the position. That he has answers favourable to him on questions of law is a necessary but not sufficient basis for the remitter of the matter. As it is, it is futile to remit the "matter" because a conceded basis for the Tribunal's affirming of the decision under review remains. 41 For these reasons, I dismiss the appeal. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 22 October 2010