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23 VeRBosity81

VeRBosity Volume 23 No. 2July – December 2007

ContentsVRB welcomes new Members 82

ArticlesOperation Vigilance non-warlike

service 83Representatives of approved

philanthropic organisations 83Guide to war widow’s pensions 84

Administrative Appeals TribunalHowlett (experiencing a stressor) 92Cunningham(experiencing a stressor) 94Scott (experiencing a stressor) 99Davis (experiencing a stressor) 102Moseley (experiencing a stressor) 104Dunn (Deledio steps) 107

Federal Court of AustraliaFarley-Smith (procedural fairness) 110Brady (diagnosis – application SoP) 115Gardiner (fact finding) 118Gittins (Deledio steps) 119Sergeant (Deledio steps) 121Hall (Deledio steps) 123Robertson (Defence service) 125Peacock (practice and procedure) 127Collins (Deledio steps- fact finding) 128Byrne (test in Byrnes) 131

Repatriation Medical AuthorityStatements of Principles 134Investigations 136

Index of AAT & Court cases 139

Editor’s notes

Recently, the Federal Court commented onthe difficulties of interpreting legislation inthe Veterans’ jurisdiction. In Byrne, a casereported in this edition, Justice Gyles said:

[1] One can only have sympathy for themembers of the AdministrativeAppeals Tribunal … who are calledupon to apply ss 120, 120A and 120B ofthe Veterans’ Entitlements Act 1986 (Cth)… as they have been interpreted by theauthorities of the High Court and thisCourt. The reasoning required wouldconfuse most philosophers …

To assist you in navigating the complexitiesof our jurisdiction, this edition of VeRBosityincludes a helpful guide to war widows’pensions.

On a personal note, Bruce Topperwienrecently left the VRB after 9 years as itsExecutive Officer, including 5 months asActing Principal Member to take up a legalposition with DVA. Bruce was with the VRBat its inception in 1985 and has made asignificant contribution to both the VRB andthe veteran community through hisinnovation, commitment to continuingeducation of staff, members and advocates,involvement with the Training andInformation Program (TIP), editorship ofand contributions to VeRBosity, papers andarticles, and the VRB website. We wishBruce well in his new role with DVA.

Trina McConnell and Katrina HarryEditors

VRB welcomes new members

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VRB welcomes new membersThe Minister for Veterans’ Affairs,Bruce Billson, announced theappointment of eight new Members tothe Veterans’ Review Board (VRB) onMonday 1 October 2007. Mr Billson said :

‘These new appointees have theexperience and knowledge to make aneffective contribution to the VRB,’Mr Billson said. ‘They include a mix ofstrong military backgrounds, extensivelegal experience, and an understandingof merits review procedures that isnecessary in such a position.

‘The addition of new Members willensure that veterans who choose toreview the outcome of a claim willcontinue to receive the highest standardof procedural fairness,’ Mr Billson said.

‘I congratulate the new Members of theBoard, and welcome the experience andknowledge they will bring to the VRB,’Mr Billson said. The appointments are:

Mr Ivan Cahill

Senior full-time Member (ACT)

Mr Cahill is a graduate of the Universityof Queensland, Macquarie Universityand the Royal Military CollegeDuntroon, and was most recently theDirector of Litigation with theDepartment of Veterans’ Affairs. Hepreviously served in the ADF for 25years, including two tours of duty inVietnam and one in Papua New Guinea.

Mr Edward Bentram Mark Jolly

Senior part-time Member (SA)

Mr Jolly has a Masters in Law fromMelbourne University, and is currently aBarrister in private practice. He servedas a Legal Officer in the Australian Armyfrom 1993-1998 and has retained hiscommission as a Major.

Ms Andrea Marilyn Hall-Brown

Senior part-time Member (QLD)

Ms Hall-Brown is a graduate in Lawsand Science, and is currently a Barristerin private practice. She is a former seniormember of the Veterans’ Review Board,having held the position from 1998-2006.

Ms Amanda MacDonald

Senior part-time Member (NSW)

Ms MacDonald has a Masters ofAdministrative Law and Policy from theUniversity of Sydney. She is currently aMember of the Migration Review andRefugee Review Tribunals, after acting asa Senior Member of those Tribunals from2005-2006.

Mr Gary Charles Barrow

Part-time Member (WA)

Mr Barrow served as a permanent officerin the Royal Australian Navy from 1960-1986. In 1983 he graduated from theUniversity of Sydney Law School, andalso qualified as a Legal Officer in theRAN. He has been in private practice as asolicitor since 1986 and has continued toserve as a Naval Reserve officer.

VRB welcomes new members

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Mr Graham Michael Barter

Part-time Member (NSW)

Mr Barter is a Barrister in private practicecurrently on full time military duty withthe Command Legal Office, LandHeadquarters. He is a graduate of theUniversity of New South Wales, andserved in the Australian Army LegalCorps from 1981-1989, and again from1999.

Mr Andrew Harding Braban

Part-time Member (QLD)

Mr Braban has a Masters in Law from theUnited States Army Judge AdvocateGenerals School, and previously servedas Chief Legal Officer to the Commanderof the International Forces East Timor.He continues to work for Defence LegalServices and is the Principal Legal Officerfor the Queensland College of Teachers.

Mr Victor Kent Patrick RFD

Part-time Member (SA)

Mr Patrick was a Stipendiary Magistrateand Deputy Coroner of South Australiafrom 1986-2007. He also served as aLegal officer in the Australian Armyfrom 1974-1977, and reached the rank ofLieutenant Colonel in the Army Reservebefore reaching retirement age.

Operation Vigilance‘non warlike service’The Minister for Defence recentlydetermined service by the ADFsupporting the whole of Governmentoperation to enhance international peaceand security to be ‘non warlike service’.The Minister made the determinationunder the Military Compensation and.Rehabilitation Act 2004.

Representatives ofapproved philanthropicorganisationsThe Minister for Veterans’ Affairsrecently determined certain accreditedrepresentatives of approvedphilanthropic organisations are to betreated as full time members of thedefence force rendering continuous full-time service that was warlike service forthe purposes of the VEA.

The Minister also determined certainaccredited representatives of approvedphilanthropic organisations are to betreated as full time members of thedefence force in an operational areadescribed in items 9, 10, 11, 12, 13 and 14of Schedule 2 of the Act, during a periodspecified in column 2 of that Scheduleopposite to the descriptions of the area incolumn 1, as if the person was a memberof the Defence Force who was renderingcontinuous full-time service in anoperational area for the purposes of theVEA.

Guide to war widows’ pensions

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Guide to war widows’ pensionsThe VEA enables a tax-free, non means-tested pension to be paid to the widow orwidower of a veteran if:

• the veteran’s death is acceptedas related to eligible war service;

• the veteran died as a result of aninjury or disease that is acceptedas related to eligible war service;

• the veteran was in receipt of, orentitled to receive, the extremedisablement adjustment (EDA),the special rate disabilitypension or an increased pensionunder VEA s.27(1) (doubleamputees) at the time of death;or

• the veteran was a prisoner ofwar (POW).

For widows or widowers of veteranswithin the last two categories, no claimis required and the war widow(er)’spension is paid automatically upon theveteran’s death.

If the veteran dies as a result of an injuryor disease that is accepted as related toeligible war service, a claim is requiredso that this factual issue can be verified.A claim is also required if the questionof whether the veteran’s death wasservice-related must be determined.

The VEA also makes provision forpayment of orphan’s pensions to thechildren of veterans in one of the abovecategories if the children are under 16,

or over 16 but under 25 and in full-timeeducation.

Similar provisions covering the paymentof the defence widow(er)’s pension andorphan’s pension resulting from thedeath of members of the Forces servingon peacetime service between 7December 1972 and 7 April 1994,members of the Forces with hazardousservice on or after 7 December 1972 ormembers of a Peacekeeping Force.

To be eligible for a pension, the widowor widower must be of the oppositegender to the veteran or member.

Re-marriage provisions — cautionregarding eligibility

The VEA does not enable a widow orwidower to lodge a claim for, or begranted, a war widow(er)’s pensionafter remarriage (or marriage in the caseof a partner who was living with aveteran in a marriage-like relationship atthe time of the veteran’s death ). This isbecause a ‘dependant’ under the VEAdoes not include a widow or widowerwho remarries or marries.

Only widows who remarried or remarryafter 28 May 1984 can retain theirpensions.1 Widowers became eligible toclaim in respect of their spouse’s deathwith effect from 22 January 1991. Suchwidowers are not eligible to claim ifthey remarried before 22 January 1991.2

1 Subsection.13(8A), VEA.2 Subsection 13(8B), VEA.


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Death claim decision-making process

Claim received at DVA

Check eligibility of veteran or member onwhose death the claim is based.

Check eligibility of claimant as a ‘dependant’.

Determine the ‘kind of death’.

Does the material raise a hypothesis or contention ofconnection between the kind of death and service?

Claimrejected

No

Yes

Is there a SoP for the kind of death?

No Yes

Is a factor in the SoP raised by the material?

Yes

Is the hypothesisreasonable?

Yes

Claimrejected

No

Is the hypothesis orcontention disprovedbeyond reasonable

doubt?

YesClaimrejected

Yes

Claimgranted

Is the contention upheldon balance ofprobabilities?

No


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Eligible dependants

To be recognised as the widow orwidower of a veteran a claimant needsto have been validly married to theveteran at the time of the veteran’sdeath and not to have remarriedbetween the time of the veteran’s deathand the time of lodging a claim inrespect of the veteran’s death.3 A simpledeclaration from the claimant that he orshe has not re-married is usuallysufficient proof that the person has notre-married but if there is any suspicionthat this is not so, the official marriagerecords would be checked from the dateof the veteran’s death. Should it befound after a decision has been made toaccept the veteran’s death as war-causedthat the claimant had re-married prior tolodging the claim, the decision to grantpension is void.4

The VEA includes the following asdependants of a veteran (or a member ofthe Forces, or a member of aPeacekeeping Force):5

• the partner;

• a non-illness separated spouse;

3 Section 11 and s 13(8), VEA. See Finn vRepatriation Commission (1990) 6 VeRBosity 101; ReHoskins and Repatriation Commission [2002] AATA755; Re Goodenough and Repatriation Commission (20April 2000); Re Macdonald and RepatriationCommission (15 July 1994).4 Subsection 13(8), VEA.5 Dependants for the purposes of the VEA aredefined in section 11. That section relatesdependency to a ‘veteran’. The section also appliesto dependants of a ‘member of the Forces’ or a‘member of a Peacekeeping Force’: see s 11(3).

• a widow or widower (other thanone who marries or remarries);or

• a child.

A dependant can claim a pension underPart II or Part IV of the Act only inrelation to the death of a veteran ormember. This means that only the lasttwo categories can claim a dependant’spension. Previously disability pensionwas payable to the dependants ofveterans who were in receipt of disabilitypensions. This ceased in 1985 and manytook the option of receiving a one-offlump sum in place of on-going pension.

A dependant of a deceased veteran willreceive a pension without needing tomake a claim if:

• the veteran had been a prisonerof war;6

• the veteran was in receipt ofdisability pension:7

– with the extreme disablementadjustment (EDA);8

– at the special rate;9 or

– the rate of which wasincreased because the veteranwas a double amputee;10 or

• the dependant claiming thepension is a child of a veteranwho rendered operationalservice and is not being

6 Subsection 13(2A), VEA.7 Subsection 13(2), VEA.8 Subsections 13(2) and 22(4), VEA.9 Section 24, VEA.10 Items 1 to 8 of s 27(1), VEA.


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maintained by a parent,adoptive parent or step-parent.

If a pension is not payable on any ofthese grounds, the dependant wouldneed to make a claim for pension on theground that the death of the veteran ormember was war-caused or defence-caused.

VRB jurisdiction in claims for warwidow’s pension

The VRB has jurisdiction to consider aclaim for war widow(er)’s pension onlyon the ground that the person’s deathwas war-caused or defence-caused.

The VRB cannot consider a claim basedon any of the other grounds, such asautomatic payment because the personwas a prisoner of war or in receipt ofspecial rate of disability pension. Suchmatters are not the subject of claims forpension, and decisions concerning themare not made by delegates of theRepatriation Commission, but are madeby officers of DVA on behalf of theCommonwealth.11

Orphans

An orphan’s pension is a non means-tested pension payable to a person onthe same basis as the war widow’spension, except that, instead of being thepartner of the veteran or member, theclaimant must be the child of the veteranor member.

An orphan’s pension can be claimed bya child who is under 16 years of age or a

11 Subsections 13(2) and 13(2A), and s 13A, VEA.

full-time student under 25 years of age,where the child: 12

• is the natural or adopted childof the veteran or member; or

• was wholly or substantiallydependant on the veteran ormember at the time of death.

The widow or widower, or a natural oradopted child need not have beenfinancially dependent on the veteran ormember to be regarded as ‘dependants’under the VEA.13

If the child is under 18 years of age, theclaim must be made by a parent orguardian of the child, or someoneapproved by the parent or guardian. Ifthere is no parent or guardian, theCommission may approve someone tomake the claim on the child’s behalf.14.

Kind of deathIn order for the death of a veteran ormember to be accepted as being relatedto service, one of the links to service setout in s 8 or s 70 of the VEA must bemet. However, before applying thoseprovisions relating to causation, it isnecessary to determine the kind of deathapplicable to the veteran or member.

The 1994 amendments of the VEA thatbrought in SoPs, introduced the conceptof ‘kind of death’ into the VEA.

For a death to be war-caused or defence-caused under the VEA, or a ‘service death’under the MRCA, the hypothesis or

12 Section 10, VEA.13 Section 11, VEA.14 Paragraph 16(d), VEA.


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contention said to connect the person’sdeath with their service must be‘upheld’ by (or must ‘fit the template’of) a factor in the relevant SoP.

To determine which, if any, SoP applies,it is necessary to know whether theRMA has made a SoP about the ‘kind ofdeath’ suffered by the veteran ormember.

This means that the‘kind of death’ met bythe person must bedetermined beforeconsidering aconnection, if any,between the person’sdeath and theirservice.

The ‘kind of death metby the person’ is apreliminary issue tobe decided on thebalance ofprobabilities,15 but notby reference to theSoPs.16 This wasamplified by Selway Jin Hancock, setting outthe correct approach as follows:First, … determine, on balance ofprobabilities, whether the pre-conditionsother than causation, had been made out...

15 Repatriation Commission v Hancock (2003)19 VeRBosity 82; Repatriation Commission v Codd(2005) 21 VeRBosity 68.16 Benjamin v Repatriation Commission (2001) 17VeRBosity 119, Hancock (2003) 19 VeRBosity 82; Codd(2005) 21 VeRBosity 68.

Next, … determine on balance ofprobabilities what kind of deathMrHancock had suffered. Thisinvolved the identification, on thebalance of probabilities, of any and allStatements of Principles … and anyother ‘kinds of death’ which wereapplicable to that death.

If one or more Statement of Principleswere applicable, then the methodology

in Deledio is applicable inrelation to those ‘kinds ofdeath’. …

If no Statement ofPrinciples… is applicableat all to a particular kindof death then themethodology in Byrnes isapplicable… .

The ‘kind of death’ is the‘the real or operativecause of death asopposed to the finalstage of the process ofdying’.17

The ‘kind of death’ isdeath from the particularinjury or disease, if any,that is said to have

contributed to the death of the person. Aperson may have had more than onekind of death if more than one conditioncontributed to their death.18

17 Re Brown and Repatriation Commission [2004]AATA 1010 at paragraph [6].18 Hancock (2003) 19 VeRBosity 82; Codd (2005)21 VeRBosity 68.

Mr Hancock had inoperable cancer. Hedied within 3 weeks of major surgeryand within 2 weeks of suffering a stroke.As he was unable to exercise properly dueto osteoarthrosis of his knees, it wassuggested that this lack of exercisereduced his life expectancy.

For the claim to succeed on this basis,it first had to be established on thebalance of probabilities that hisosteoarthrosis contributed to his death inthis way. If that could be found, then MrHancock’s ‘kind of death’ could becharacterised as ‘death fromosteoarthrosis of the knees’. Only thencould the decision-maker considerwhether a hypothesis had been raisedconnecting his operational service with hisdeath from osteoarthrosis of the knees.Repatriation Commission v Hancock(2003) 19 VeRBosity 82.


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Example: Mr Brown wasadmitted to hospital, for the finaltime, he had been diagnosedwith dementia from Alzheimer’sdisease and was sent to palliativecare. In other words he wasregarded as dying. His finalillness was bronchopneumonia.Medical evidence was thatbronchopneumonia is the mostlikely cause of death in peoplewith Alzheimer’s disease. The‘kind of the death’ in Mr Brown’scase was dementia in whichbronchopneumonia was but theend of the dying process and notan operative cause.

Re Brown and RepatriationCommission [2004] AATA 1010.

A person’s death may be contributed toby an injury or disease if that conditionhastened their death.19

If the material suggests that a person’sdeath was contributed to by a particularinjury or disease, thefact of that manner ofdeath must beestablished beforeconsideration can begiven to a hypothesis,or contention, ofconnection betweenthat injury or diseaseand the person’sservice.

The question whetherthe injury or diseasecontributed to theperson’s death is notpart of thehypothesis20 orcontention21 of aconnection to service. It is a preliminaryissue to be decided on the balance ofprobabilities.

When the kind of death suffered byveteran or member is determined,attention then turns to addressingwhether there is any causal connectionarising out of or attributable to his or herservice and the kind of death suffered.

Deciding whether a SoP applies

SoPs usually define ‘death from’ therelevant injury or disease in a non-

19 Repatriation Commission v Doolette (1990)6 VeRBosity 66.20 Subsection 120A(3), VEA.21 Subsection 120B(3), VEA.

exhaustive way to include ‘death from aterminal event or condition that wascontributed to by’ that injury or disease.

SoPs define ‘terminal event’ to mean‘the proximate or ultimate cause of

death’. If a person’s death isfound to have been contributedto by a particular injury ordisease for which there is a SoP,then there is a SoP in respect ofthat ‘kind of death’ and s120A(3) or s 120B(3) applies.

A death certificate usuallycontains two parts:

• the first indicates thedirect and antecedentcauses of death;

• the second indicatesother significantconditions contributingto the death, but notrelated to the disease or

condition causing it.

While the death certificate is notdefinitive and can be contradicted byother more cogent evidence,22 both partsof the death certificate can be taken toindicate conditions that may havecontributed either directly or indirectlyto the death, and so may point to one ormore ‘kinds of death’ in a particularcase.

22 Nicolia v Commissioner for Railways [1972] ALR185 at 186 and 187.


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Death certificatesHow the Death Certificate iscompleted

Death Certificates in Australia comprisetwo separate forms; a medical certificatewhich indicates the cause or causes ofdeath, and a questionnaire providingpersonal information about thedeceased.

The medical certificate is completedeither by a doctor who was inattendance at the time of death or whocan certify as to the cause of death, or bythe coroner when the death wasunexpected or unexplained.

The personal information questionnaireis completed by the next of kin. Thisnormally takes place at the funeralparlour with the help of the funeraldirector. Both forms are collected by theRegistrar of Births and Deaths in eachstate and territory.

What is on the medical certificate ofcause of death

There are two parts to the standardmedical certificate of cause of death.

Part I is the area ‘above the line’. Thisis where the disease or conditiondirectly leading to death is statedfollowed by any conditions which havegiven rise to this disease or condition(these are called antecedent causes). Anyconditions listed above the line shouldform what is termed the ‘morbid train ofevents’ that have led to death. That is,they will form a sequence starting at thedisease or condition which directly ledto death. This condition may then havebeen ‘due to (or as a consequence of)’ anantecedent cause which was in turn,

‘due to (or as a consequence of)’ anotherantecedent cause et cetera. The‘Underlying Cause’ is the cause which islisted last. That is, it is the cause that isdeemed to have started the morbid trainof events.

Part II is the area ‘below the line’. Thisarea is to be used to list other significantconditions which have contributed tothe death but which are not deemed tobe part of the morbid train of eventsleading to the death.

Chain of causationrelating to kind ofdeathOnce a ‘kind of death’ has beendetermined, it is necessary to considerwhether the material raises a hypothesisor contention of a connection betweenthat kind of death and the veteran’s ormember’s service.

In McKenna, 23 the Federal Court heldthat if a hypothesis relies on a sub-hypothesis or sub-hypotheses, each partof the causal chain is required to satisfythe relevant SoPs along that causalchain.

The fact that an injury or disease withina causal chain might have been acceptedpreviously as war-caused or defence-caused does not create a presumptionthat it is related to service for thepurposes of another claim.24 The Board

23 McKenna v Repatriation Commission [1999] FCA323.24 Langley v Repatriation Commission (1993) 43 FCR194, 9 VeRBosity 40.

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must consider the entire chain ofcausation afresh.

SoP for ‘kind of death’

If the kind of death is covered by a SoP,the Board must apply that SoP andwhen considering other injuries ordiseases in a chain of causation leadingto the ‘kind of death’, the Board mustapply the relevant SoP for each of thosedisabilities.25

For example, if the veteran died from acardiac arrest caused by ischaemic heartdisease that was said to be contributedto by hypertension, that was said to becontributed to by alcohol dependencethat was said to be brought about byeligible war service, the Board wouldhave to apply the SoPs in the followingmanner. The Board would first look tothe SoP for ischaemic heart disease andsee whether it contains a factor forhypertension. If so, and if that factorwere met, the Board would then look tothe SoP for hypertension. If that SoPcontained a factor concerning alcoholconsumption, and if that factor weremet, and the alcohol consumption wasrelated to the veteran’s alcoholdependence, the Board would then lookat the SoP for alcohol dependence to seewhether there was a factor in that SoPthat could relate the veteran’s alcoholdependence to the circumstances of hisservice.

No SoP for ‘kind of death’

If the kind of death is not one coveredby a SoP, and the hypothesis relies on a

25 McKenna v Repatriation Commission [1999] FCA323.

sub-hypothesis that has a relevant SoP,the decision maker need not haveparticular regard to that SoP.26

Nevertheless, Casey’s case27 indicatesthat it is not an error of law to haveregard to a SoP when assessing thereasonableness of the hypothesis eventhough the Board is not bound to applythe SoP provided that it is raised withthe applicant in the course of thehearing and the applicant is given anopportunity to make submissions inrelation to it. It would certainly be anerror to treat the SoP as if the Boardwere bound by it.

26 Spencer v Repatriation Commission [2002] FCA 229,(2002) 18 VeRBosity 21.27 Casey v Repatriation Commission (1995) 60 FCR510, 11 VeRBosity 86.

Veterans’ Review Board2008 Veterans’ Law

Conference5th and 6th November 2008

CanberraMore information comingto our website soon!

Administrative Appeals Tribunal

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AdministrativeAppealsTribunal

Jarvis, Deputy President

[2007] AATA 17366 September 2007

Operational service – review byrespondent of earlier decision toaccept PTSD and alcohol dependenceas war caused – asserted stressorsshooting of sampan by Americangunboat and scare charge event

Facts

Mr Howlett joined the Royal AustralianNavy on 20 June 1970 aged 17 years.He was engaged in operational serviceon HMAS Sydney in Vung Tau Harbourin November 1970 and February 1971.

In a decision dated 11 May 2001,a delegate of the RepatriationCommission (‘the Commission’) acceptedMr Howlett’s post traumatic stressdisorder (‘PTSD’) and alcoholdependence as war caused.

Subsequently, pursuant to section 31 ofthe VEA, another delegate of theCommission undertook a review of theearlier decision. The delegate consideredfurther evidence that had emerged afterthe Commission made the initialdecision. This included:

• Writeway Research reports; and

• the outcome of an AAT decision inwhich another veteran relied uponone of the events Mr Howlett hadrelied upon.

In a decision dated 31 March 2006, thedelegate was not satisfied thatMr Howlett’s PTSD and alcoholdependence were war caused.Accordingly, he reassessed Mr Howlett’spension and reduced it from theintermediate rate to 40% of the GeneralRate.

The Veterans’ Review Board affirmed thedecision dated 31 March 2006.Mr Howlett appealed to the AAT forreview of the Commission’s decision.

Applicant’s position

Mr Howlett put forward a hypothesisconnecting his PTSD and alcoholdependence with the circumstances ofhis service via his exposure to twotraumatic events whilst in Vietnam:

• shooting of a sampan by anAmerican gunboat; and

• explosion of a scare charge when hewas in an engine compartment of alanding barge attending to itsbatteries.

Respondent’s position

The Commission said that the newevidence indicated that the sampanincident did not occur. Further, that thescare charge event would not meet thecriteria set out in the relevant SoP, andtherefore, at stage 3 of Deledio the AATshould find that the hypothesis was notreasonable.

Re Howlett andRepatriation Commission


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Issues before the AAT

The issues for the decision maker were:

• whether he was satisfied that theevidence before the delegate whomade the initial decision to acceptconditions as war caused was false ina material particular; and

• whether, having regard to anymatterthat was not before the Commissionwhen the initial decision was made,pension should be decreased on thegrounds that PTSD and alcoholdependence were not war caused?

The AAT’s reasons

Diagnosis

There was no issue as to diagnosis. TheCommission accepted the diagnosis ofPTSD and alcohol abuse.

Step 1 – is there a hypothesis?

The AAT was satisfied that on aconsideration of all of the material beforeit, a hypothesis was pointed toconnecting Mr Howlett’s PTSD andalcohol abuse with the circumstances ofhis service via one or more of theasserted events whilst he was inVietnam.

Step 2 - Relevant SoPs?

The AAT identified:

• SoP in respect of PTSD no 3 of 1999as amended by no 54 of 1999; and

• SoP in respect of alcohol dependenceno 76 of 1998.

Step 3 - is the hypothesis consistent with thetemplate set out in the relevant SOPs?

The relevant factor in the PTSD SoP was5(a):‘experiencing a severe stressor prior tothe clinical onset of post traumaticstress disorder’

The relevant factor in the alcoholdependence SoP was 5(a):‘suffering from a psychiatric disorderat the time of the clinical onset ofalcohol dependence.’

The Commission did not dispute thatMr Howlett was suffering from PTSD atthe time of clinical onset of his alcoholdependence.

In considering whether the materialbefore the AAT pointed to therequirements in the SoP definition of‘severe stressor’ Deputy President Jarvissaid:41. ‘In the present matter, there isevidence that Mr Howlett wasconfronted with an event that causedhim to be terrified for his own safety, inthat he thought that either the Sydneyor the landing barge was under attackand was also concerned about the riskof injury from acid in the battery; thathe was in a situation that he had neverpreviously experienced, because hewas in a confined space below thewater line in a small vessel; and thatthe noise of the explosion was such asto result in a loss of hearing for 20 to 30minutes. His service record indicatesthat this event happened on only hissecond trip to Vietnam, and that he wasonly 17 years of age at the time…Anumber of the above aspects of thescare charge event differentiate it from


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the circumstances existing on otheroccasions when sailors on board theSydney in Vung Tau Harbour mighthave experienced the use of scarecharges.

43. Taking into account the evidencebefore me as to the above matters,including the evidence as toMr Howlett’s state of knowledge at thetime, I conclude that there is evidencebefore me that the scare charge eventmeets the criteria of experiencing asevere stressor, within the meaning ofthe PTSD SoP…’

Step 4 – satisfaction beyond reasonable doubt

The AAT considered that there was noevidence to disprove the scare chargeevent, nor were there any facts that wereinconsistent with that event, in order todisprove the hypothesis based on thatevent.

The AAT noted that the Commission hadnot made any contention regarding theapplicant’s credibility. Specifically, that ifthe AAT made any adverse finding inrelation to the sampan event, it shouldreject Mr Howlett’s evidence regardingthe scare charge event. In any event, theAAT considered that Mr Howlett gaveclear evidence as to the scare chargeevent and his evidence appeared to becredible.

Formal decision

The AAT decided that the hypothesisarising from the scare charge event wasreasonable and was not disprovedbeyond reasonable doubt. The AAT wasnot satisfied that the new evidenceobtained by the Commission displacedthe conclusion that Mr Howlett’s PTSDand alcohol abuse were war caused. As

such, it was not appropriate to reduceMr Howlett’s pension.

Editor’s note:

Diagnosis of PTSD

It is relevant to keep in mind that thediagnostic criteria for PTSD includesidentification of a causal factor. Asdiagnosis of a claimed condition must bedetermined on the balance ofprobabilities, where PTSD is accepted asthe correct diagnosis its connection toservice will usually be a mere formality.Nonetheless, in some situations theremay be a different cause for PTSD otherthan that alleged to have occurred duringthe relevant service. 28

Mr B.H Pascoe, Senior Member

[2007] AATA 179021 September 2007

Operational service – peptic ulcerdisease, hiatus hernia, irritable bowelsyndrome, depressive disorder –asserted psychosocial stressor seasickness

Facts

Mr Cunningham was born on3 January 1952 and joined the RoyalAustralian Navy on 7 July 1968 aged16 ½ years. He rendered two periods ofoperational service aboard HMASVoyager from 17 November 1969 to5 December 1969 and 16 February 1970 to5 March 1970.

28Mines v Repatriation Commission [2004] FCA 1331.

Re Cunningham andRepatriation Commission


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The application for review by the AATwas a decision of the RepatriationCommission (‘the Commission’) refusingMr Cunningham’s claims for pepticulcer, hiatus hernia, irritable bowelsyndrome, depressive disorder withsome features of anxiety and alcoholdependence or abuse.

However, Mr Cunningham advised theAAT that he was no longer pursuing theclaim for alcohol dependence or abuse.Further, the Commission had accepted aclaim for gastro oesophageal refluxdisease.


Mr Cunningham put forward ahypothesis connecting his depressivedisorder with the circumstances of hisservice via his:

• Chronic sea sickness experiencedduring operational service; and

• Subsequent social isolation anddepression at the possibility of beingunable to serve at sea.

In addition, Mr Cunningham putforward a hypothesis connecting hispeptic ulcer disease with service via hiscontracting helicobacter pylori infectionduring his operational service.

Finally, Mr Cunningham said his hiatushernia should be accepted as theCommission had accepted his claim forgastro oesophageal reflux disease.


It was accepted that the claim for irritablebowel syndrome relied on the claim fordepressive disorder being acceptedpursuant to Instrument No.103 of 1996.



• Whether Mr Cunningham sufferedfrom peptic ulcer, hiatus hernia,irritable bowel syndrome,depressive disorder with somefeatures of anxiety; and

• If so, whether his peptic ulcer, hiatushernia, irritable bowel syndrome,depressive disorder with somefeatures of anxiety were war caused.

The AAT’s reasons

Depressive disorder

Diagnosis

The reasons for the AAT’s decision madeno reference to the issue of diagnosis.


The AAT identified the hypothesis reliedupon by Mr Cunningham. Specifically,that his depressive disorder wasconnected with the circumstances of hisservice via chronic sea sickness andsubsequent isolation.


The AAT identified the SoP in respect ofdepressive disorder no 58 of 1998 and17 of 2007.


The AAT first considered SoP no 58 of1998. The relevant factor in that SoP was5(b): ‘experiencing a severe psychosocialstressor or stressors within the two yearsimmediately before the clinical onset ofdepressive disorder’.


23 VeRBosity96

The AAT noted the definition of a severepsychosocial stressor in clause 8 of theSoP as:‘ an identifiable occurrence that evokesfeelings of substantial distress in anindividual, for example, being shot at,death or serious injury of a close friendor relative, assault (including sexualassault), severe illness or injury,experiencing a loss such as divorce orseparation, loss of employment, majorfinancial problems or legal problem.’

In considering step 3 of DeledioSenior Member Pascoe said:

‘[10]…Here the hypothesis ofdepression arising from severeseasickness is reasonable under theterms of the SoP. The question there iswhether the Tribunal can be satisfiedthat the seasickness was notattributable to operational service andwhether the clinical outset of adepressive disorder was within the twoyears of that stressor. In relation to thelatter question the records show adiagnosis of an acute anxiety state inMarch 1971. … However, it is clear thatMr Cunningham experienced the onsetof seasickness on the two voyages priorto operational service…Thatconstitutional predisposition was thecause of the seasickness and thesubsequent depression on therealisation that his long-held ambitionto be a sea going sailor was not to beachieved. Being a pre-existingcondition with the symptoms wellestablished prior to operational service,I am satisfied that the seasickness wasnot war-caused. As such the depressivedisorder cannot be accepted as war-caused under Instrument 58 of 1998.’

The AAT then went on to consider theSoP no 17 of 2007. The relevant factorrelied upon was ‘experiencing a category 2stressor within the one year before the clinicalonset of depressive disorder’.

The AAT noted the definition of acategory 2 stressor in clause 9 of the SoPas:‘one or more of the following negativelife events, the effects of which arechronic in nature and cause the personto feel on-going distress, concern orworry:

(a) being socially isolated andunable to maintain friendships orfamily relationships, due to physicallocation, language barriers, disability,or medical or psychiatric illness’.

In considering step 3 of Deledio inrelation to the alternative SoP SeniorMember Pascoe said:‘[11]…Here it could be said that thehypothesis is reasonable under theterms of the SoP. The evidence of MrCunninghamwas that, while seasick onboard HMAS Sydney he stuck tohimself most of the time and was thesubject of constant comments andlaughter from his shipmates. This canbe readily accepted. However, theeffects of the stressor must be chronic,i.e. continuing a long time. It is clearthat the word chronic is used todifferentiate from acute being brief andsevere. While Mr Cunningham’sevidence of some social isolation whilston the voyager can be accepted, there isno evidence of any ongoing difficultieswith his ability to maintain friendshipor family relationships. I am satisfiedthat his relatively brief periods ofsticking to himself and laughter


23 VeRBosity97

directed at him cannot be seen tosatisfy the requirements of the SoP.’

Peptic ulcer disease

Diagnosis



The AAT identified the hypothesis reliedupon by Mr Cunningham. Specifically,his peptic ulcer disease was connectedwith his service via his contractinghelicobacter pylori infection.


The AAT identified the SoP in respect ofpeptic ulcer disease as no 21 of 1999. Noreference was made to the current SoP no57 of 2006.


The AAT noted the relevant factor was:‘having Helicobacter pylori infection atthe time of the clinical onset of pepticulcer disease’.

In considering step 3 of Deledio SeniorMember Pascoe said:‘[13]….having such an infection at thetime of the clinical onset of peptic ulcerdisease provides a reasonablehypothesis connecting peptic ulcerdisease with the veteran’s relevantservice. The evidence of Dr R. Knight, agastroenterologist, was that MrCunningham had contractedHelicobacter pylori infection whichwas eradicated by antibiotic therapy inthe 1990’s. Dr Knight said that it wasbelieved that the infection was spreadby human excretions, including

vomiting. While Dr Knightacknowledged that a person can beinfected as an infant but not be affecteduntil a later age and there was no wayof knowing when or how MrCunningham was infected, he said thatit is conceivable that he contracted theinfection during naval service in 1969and 1970 related to living in confinedquarters, sharing of utensils andpotential contamination from otherinfected individuals. The evidence ofMr Cunningham was that, with some680 naval crew and over 500 armypersonnel on board during the voyagerto and from Vietnam, he slept in ahammock close to many other on thehanger deck of Sydney.’

Stage 4 – satisfaction beyond reasonabledoubt

In considering step 4 of DeledioSenior Member Pascoe said:‘[14]…While it is clear that there is noevidence of contracting of Helicobacterpylori infection during operationalservice and it is just as possible that MrCunningham contracted the infectionas an infant, I cannot be satisfiedbeyond reasonable doubt that it wasnot contracted aboard Sydney duringoperational service. Consequently, theclaimed condition of peptic ulcerdisease should be accepted as war-caused...’

Hiatus hernia

Diagnosis



The AAT noted Mr Cunningham’sassertion that his hiatus hernia should be


23 VeRBosity98

accepted as the Commission hadaccepted his claim for gastro oesophagealreflux disease.


The AAT identified the SoP in respect ofhiatus hernia no 17 of 2004.


The AAT noted the relevant factors werefactor 5(a): ‘undergoing a surgical procedureto the region of the oesophageal hiatus of thediaphragm within the two years immediatelybefore the clinical onset of hiatus hernia’ and5(d) ‘having gastro-oesophageal refluxdisease at the time of the clinical worsening ofhiatus hernia.’

In considering step 3 of Deledio SeniorMember Pascoe said:‘[15]…. There is no evidence of anyclinical findings of the existence of thehiatus hernia until May 1998. There isno evidence of any clinical worseningof hiatus hernia after that date..Consequently, I am satisfied that MrCunningham does not meet that factorwith no clinical worsening. In 1998 MrCunningham’s ulcer was treated withhighly selective vagotomy which wasunsuccessful. Whilst this procedureappears to satisfy the surgicalprocedure requirement of factor 5(a),there is no evidence of any clinicalfindings of hiatus hernia until some tenyears later... It cannot be said that thehiatus hernia followed the surgicalprocedure, but clearly, predated thatprocedure. As a result, I am satisfiedthat the hiatus hernia does not satisfythe requirements of the relevant SoP.’

Formal decision

The AAT affirmed the decision inrelation to the claim for depressivedisorder, and in view of its findingsaffirmed the decision in relation toirritable bowel syndrome also. Further,the decision in relation to hiatus herniawas affirmed. However, the AAT setaside the decision in relation to the claimfor peptic ulcer disease.

Editor’s note

Diagnosis

A decision maker must determine, on thebalance of probabilities, the diagnosis ofa claimed condition before consideringwhether it is related to service.

In Mines v Repatriation Commission [2004]FCA 1331, Justice Gray said:‘[54]… the first task of the Tribunal,before it embarked on the stepsreferred to in Deledio, was to decidewhether it was reasonably satisfied thatthe applicant was suffering from adisease, even if, as the Full Court inBudworth said at [19], the Tribunalonly identified the collection ofrelevant symptoms which it wassatisfied constituted the disease whichthe appellant had contracted. It was notnecessary for the Tribunal to name thedisease, or attach a traditional medicallabel to the collection of symptoms. Itwas necessary, however, for theTribunal to make a finding as towhether some disease was suffered. Atthat stage, the question of a hypothesis,or its reasonableness, did not arise.’

This is an important to step becausewithout determining diagnosis thedecision maker cannot then decidewhether a statement of principles


23 VeRBosity99

applies, and if so, which one or whichfactors apply.

Application of the Statements of Principles

The decision maker must apply the SoPin force at the date of its decision. If aclaim cannot succeed under the currentSoP, the claimant has a right to apply theSoP in force at the time of the decisionunder review.

In this matter, the AAT was required toconsider the SoP 17 of 2007 in relation todepressive disorder. Only if the claimcould not succeed under that SoP, couldMr Cunningham seek to apply the SoPno 58 of 1998. Similarly, in relation topeptic ulcer disease the AAT wasrequired to consider the SoP in force atthe time of its decision no 57 of 2006.Only if the claim could not succeedunder that SoP, could Mr Cunninghamseek to apply the SoP no 21 of 1999.

M J Carstairs, Senior MemberDr J BMorley, RFD, Member

[2007] AATA 170128 August 2007

Operational service - whetherdepressive disorder, diabetes andhypertension were service related –asserted stressor martial breakdown

Facts

Mr Scott was engaged in several periodsof operational service between 1960 and1962 and in Vietnam between 1965 and1972. In addition, Mr Scott rendered

defence service from 1972 until hisdischarge in July 1978.


Mr Scott put forward a hypothesisconnecting his depressive disorder withhis service via his marriage break upwhich occurred while he was renderingoperational service.

In addition, Mr Scott contended that ifthe AAT accepted that his depressivedisorder was related to service, therewould be no dispute that hishypertension was war caused on theground that he satisfied factor 5(o) of therelevant SoP.

Further, Mr Scott contended that hisdepression led to increased eating anddrinking and that his diabetes could berelated to service on the basis of factor5(b) in the relevant SoP concerningobesity.


The issues for the AAT were:

• Whether Mr Scott suffered fromdepressive disorder, diabetesand hypertension; and

• If so, whether his depressivedisorder, diabetes andhypertension were war caused.

The AAT’s reasons

Diagnosis

The Commission accepted the diagnosisof Type 2 diabetes and hypertension.

However, in relation to Mr Scott’spsychiatric condition, there was evidencethat he had a complex condition ofseveral psychiatric entities. In particular,

Re Scott andRepatriation Commission


23 VeRBosity100

Mr Scott was diagnosed with PTSD forwhich liability had been accepted undermilitary compensation legislation.Nonetheless, the AAT was reasonablysatisfied that Mr Scott suffered frommajor depressive disorder.


The AAT was satisfied that on aconsideration of all of the material beforeit, a hypothesis was pointed toconnecting Mr Scott’s depressivedisorder with the circumstances of hisservice via a marital break up.


The AAT identified the SoP fordepressive disorder no 17 of 2007(replacing instrument no 58 of 1998 ineffect at the time of Mr Scott’s claim).


The relevant factor in the PTSD SoP was6(f): ‘experiencing a category 2 stressorwithin the one year before the clinical onset ofdepressive disorder.’

The AAT noted that the definition of acategory 2 stressor included ‘experiencinga problem with a long-term relationshipincluding: the break-up of a close personalrelationship, the need for marital orrelationship counselling, marital separation,or divorce.’

The evidence before the AAT was thatMr Scott had married his first wife at theage of 18. She left him in 1965 when hewas aged 24 years and they had threechildren under the age of 5. Mr Scott’sfirst trip to Vietnam was in May 1965.When he returned to Australia his wifetold him that she had met someone else.

He and his wife discussed the future oftheir relationship, and he thought theproblems were resolved. He asked for acompassionate posting but was refused.He then returned to Vietnam inSeptember 1965. On arrival in Vung Tau,he received a letter from his wife tellinghim she had left him. His first reactionwas to drink a bottle of aftershave mixedwith cordial. His drinking increased afterthe marriage break up.

The AAT considered that the hypothesisraised was reasonable. The marriagebreak up was considered to come withinthe definition of a category 2 stressor.The AAT noted that Mr Scott’s evidenceabout his distress and its ongoing naturewas not seriously challenged. Further,the AAT observed that some materialpointed to the required onset and someto clinical worsening.


The AAT decided that the hypothesiswas not disproved beyond reasonabledoubt. The AAT considered Mr Scott’sevidence was truthful, it was notcontradicted by any other evidence andwas supported by two psychiatrists.

Hypertension


The AAT was satisfied that on aconsideration of all of the material beforeit, a hypothesis was pointed toconnecting Mr Scott’s hypertension withthe circumstances of his service via hisservice related depression.


The AAT identified the SoP forhypertension no 35 of 2003 (as amended).


23 VeRBosity101


The relevant factor in the hypertensionSoP was 5(o) ‘suffering from a clinicallysignificant depressive disorder for the sixmonths immediately before the clinical onsetof hypertension’.

The AAT noted that Mr Scott’s generalpractitioner confirmed that Mr Scott hada systolic reading of 150/90 in 1983 andthereafter his blood pressure had beenfluctuating.

The AAT decided that factor 5(o) of theSoP for Hypertension was met.


The AAT noted that there was noevidence refuting the conclusion thathypertension was war-caused.

Diabetes Mellitus


The AAT was satisfied that on aconsideration of all of the material beforeit, a hypothesis was pointed toconnecting Mr Scott’s diabetes mellituswith the circumstances of his service viahis service related depression.


The AAT identified the SoP forhypertension no. 11 of 2004.


The relevant factor in the hypertensionSoP was 5(b) ‘ in relation to type 2 diabetesmellitus, being obese for a period of at leastfive years before the clinical onset of diabetesmellitus’.

The AAT noted entries in Mr Scott’sservice medical records indicatingobesity and that Mr Scott relates hisbinge eating to his marriage break-up .

The AAT found that obesity was relatedto Mr Scott’s service as being a reactionto a psychiatric condition that was foundto be related to service.


The AAT made no reference to stage 4 ofDeledio.

Formal decision

The AAT found that Mr Scott sufferedfrom depressive disorder, diabetes andhypertension and that these conditionswere war caused.

Editor’s note:

It is not sufficient for a decision makermerely to identify an event that occurredduring a person’s relevant service thatmight be characterised as severelystressful. In this case, the AAT wasrequired to consider, pursuant to clause 5of the SoP, whether the material before itpointed to Mr Scott’s marital break upbeing related to his relevant service.

In respect of personal matters, servicemust be more than merely the setting inwhich it occurs. Specifically, service mustcontribute to the cause of the personalmatter.29

In this case the decision maker to wasrequired to consider whether all of thematerial before it pointed to Mr Scott’srelevant service contributing to hismartial break up. If there was no material

29 Holthouse v Repatriation Commission (1982) 1 RPD287


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pointing to Mr Scott’s marital break upbeing related to his relevant service, thenit was open to the decision maker to findthat the hypothesis was not reasonable.As such, the claim would fail.

G D Friedman, Senior Member

[2007] AATA 172224 July 2007

Operational service – whethergeneralised anxiety disorder warcaused – asserted stressors - whetherserious default, wilful act or breach ofdiscipline

Facts

Mr Davis served in the Australian Armyas a National Serviceman. He renderedoperational service in Vietnam from6 January 1969 to 28 November 1969.


Mr Davis put forward a hypothesisconnecting his generalised anxietydisorder with his service via severalevents that occurred while he wasrendering operational service.These included:

• witnessing a Buddhist monk self-immolating (‘immolation incident’);

• witnessing a South VietnamesePoliceman shoot two youngpeople (‘the shooting incident’);

• dislocating his right thumbapprehending a youngVietnamese

man who stole his watch (‘watchincident’);

• striking a Vietnamese woman onthe face after she disclosed hiscards, after which he wasescorted from the bar atgunpoint (‘the bar incident’);

• confrontation by a man wieldinga sword in a threatening manner;after which he drew his rifle andshot the man in self defence (‘thesword incident’);

• witnessing the arrival of ahelicopter and seeing a woundedsoldier covered in blood (‘thecasualty incident’).


The Commission obtained evidencewhich indicated the events did not occurin the way described by Mr Davis.Further, in submissions it was contendedthat some of the incidents involvedactions by Mr Davis that amounted to abreach of discipline, serious default orwilful act.

The AAT’s reasons

Diagnosis

The Commission accepted that Mr Davissuffered from generalised anxietydisorder (‘GAD’).


The AAT was satisfied that on aconsideration of all of the material beforeit, a hypothesis was pointed toconnecting Mr Davis’ GAD with thecircumstances of his service via theevents outlined above.

Re Davis andRepatriation Commission


23 VeRBosity103


The AAT identified the SoP for GADno 1 of 2000.


The relevant factor in the GAD SoP was5(a)(ii): ‘experiencing a severe psychosocialstressor within the two years immediatelybefore the clinical onset of anxiety disorder’.

The AAT noted that the definition of asevere psychosocial stressor in clause 8 ofthe SoP.

In relation to the immolation incident theevidence before the AAT was that in 1969Mr Davis witnessed a person in anorange robe who was on fire, that he hasflashbacks of the incident, he awakessweating, and the smell of bacon makeshim recall the incident. In relation to thebar incident Mr Davis feared for his life.

In addition, two reports were before theAAT. The first was a report of Dr Strauss.He reported that Mr Davis had a numberof stressful incidents in Vietnam thatcould be classified as severe psychosocialstressors, and that the SoP for GAD couldbe met.

The second, was a report from WritewayResearch Services. It stated thatimmolation incidents were rare, and theonly one believed to have occurred wasin 1967. Further, the bar incident wouldprobably have been reported and that theabsence of a report was a strongindication that it did not occur.

The AAT considered that all of thematerial was consistent with factor5(a)(ii) and that Mr Davis satisfied thethird step in Deledio.


In assessing the weight and credibility ofthe material before it, the AATconsidered that Mr Davis was a truthfulwitness who described the incidents in aforthright and candid way. However,only the immolation and bar incidentswere considered to have had therequisite impact on him required by thedefinition in the SoP. The AAT notedthat the evidence of Dr Strauss wasgenerally not disputed.

However, in relation to the WritewayResearch report the AAT noted that ithad difficulties with the conclusionsreached in that report. Specifically, theauthor had little practical experience inSaigon. Accurate records or witnessesstatements were not available andresearch regarding the immolationincident was limited. For these reasons,the AAT placed little weight on theWriteway report and found that thefourth step in Deledio was satisfied.

Finally, the AAT rejected theCommission’s submission that theincident relied upon by Mr Davisamounted to a breach of discipline,serious default or wilful act. The AATnoted that the issue was not raised beforeor at any time during the hearing.

As such, there was insufficient evidenceto support a finding that section 9(3) ofthe VEA applied.

Formal decision

The AAT found that Mr Davis’ GAD waswar caused.


23 VeRBosity104

Editor’s note:

The AAT’s rejection of the Commission’ssubmissions regarding section 9(3) of theVEA raises an important proceduralissue. In a court, the so-called ‘rule inBrowne v Dunn’30 requires that a witnessbe given the opportunity during theirgiving of evidence to answer anyproposed attack by a party on theirevidence or credibility.

While that rule of evidence does notapply to the VRB or AAT,31 nevertheless,procedural fairness indicates that anapplicant have an opportunity to answerthe case against them. That is, it shouldbe made clear by a party, or by the VRBor AAT in their investigative functions,before or while the witness is givingevidence that the evidence of a particularwitness is to be challenged or notbelieved. However, a ‘tribunalconducting an inquisitorial hearing is notobliged to prompt and stimulate anelaboration which the applicant choosesnot to embark on.’32

30 (1894) 6 The Reports 6731 Re Minister for Immigration & Multicultural Affairs;Ex parte Plaintiff S154/2002 [2003] HCA 60; Lawrancev Centrelink [2005] FCA 1318; and s 33(1)(c) of theAdministrative Appeals Tribunal Act 1975.32 Re MIMA; Ex parte Plaintiff S154/2002 [2003] HCA60 at para [58].

G J ShortDr E T Eriksen

[2007] AATA 189829 October 2007

Facts

Mr Moseley joined the Australian Armyat age 18 in 1967. He renderedoperational service in Vietnam from4 September 1971 to 24 February 1972. Inaddition, he rendered eligibledefence service from 7 December 1972until 25 August 1975.

In a decision dated 4 January 2006, adelegate of the Repatriation Commission(‘the Commission’) refused Mr Moseley’sclaim for pension on the grounds thatPSTD, alcohol dependence, alcoholhepatitis and gynaecomastis were notwar caused.

The Board affirmed the Commission’sdecision. Mr Moseley appealed to theAAT.


Mr Moseley put forward hypothesesconnecting his PTSD and alcoholdependence with the circumstances ofhis service via his exposure to twotraumatic events whilst in Vietnam:

• On his first night in Nui Dat hewas required to attend for picketduty at a site locatedapproximately 100 meters insidethe first perimeter. At 8pm he

Re Moseley andRepatriation Commission


23 VeRBosity105

heard explosions and could seeflashes and the movement ofdirt. He and his companion weretold that a mortar attack hasoccurred and that they shouldreturn to camp. He thought theexplosions were 50 meters infront of his position. This was afrightening event and his wholelife changed after this incident.

• One week later, he was workingat a cleaning bay when he hearddistant explosions. He located hiscamera and took some pictures.He thought the explosions wereenemy mortar. He then left thearea.


The Commission submitted thatMr Moseley had not experiencedincoming mortars and that consequentlyhis claim for acceptance of PTSD andother conditions should fail.



• Whether Mr Moseley sufferedfrom PSTD, alcohol dependence,alcohol hepatitis andgynaecomastis; and

• If so, were these conditions warcaused?

The AAT’s reasons

Diagnosis

The AAT first considered whether, on thebalance of probabilities, Mr Moseleysuffered from PTSD. It recognised thatMr Moseley may have fabricated theevents relied upon, or may have beenconvinced of events which did not occur.

As such, the AAT was not satisfied thatMr Moseley experienced explosionseither on his first night in Vietnamand/or later which involved actual orthreat of death or serious injury or athreat to his or another’s personalphysical integrity. The AAT was notsatisfied that Mr Moseley suffered fromPTSD.

The Commission agreed, on the basis of asupplementary report provided for theresumed hearing, that the applicantsuffered from generalised anxietydisorder (‘GAD’), alcohol dependence,alcohol hepatitis and gynaecomastis.

Causation

Generalised anxiety disorder


The AAT considered that on all of thematerial before it, a hypothesis waspointed to connecting Mr Moseley’sGAD and alcohol abuse with thecircumstances of his service viathe asserted events whilst he was inVietnam.


The AAT identified:

• SoP in respect of GAD no 101 of 2007and 1 of 2000; and

• SoP in respect of alcohol dependenceno 76 of 1998.

Step 3 - is the hypothesis consistent with thetemplate set out in the relevant SoPs?

The AAT noted that the relevant factor inthe GAD SoP no 1 of 2000 was 5(a)(ii):‘experiencing a severe psychosocialstressor within the two years


23 VeRBosity106

immediately before the clinical onset ofanxiety disorder’.

The AAT did not make any reference tothe definition of a severe psychosocialstressor in clause 8 of the SoP.

Further, the AAT noted the historyprovided to the psychiatrist and MrMoseley’s evidence that he experiencedexplosions in close proximity andfeelings of fear and distress.

In considering whether the materialbefore it pointed to the requirements ofthe relevant factor of the SoP the AATsaid:

‘In this case it is suggested that MrMoseley experienced a severepsychosocial stressor within two yearsof the clinical onset of generalizedanxiety disorder. The history providedto Dr Ewer and Mr Moseley’s evidenceto this Tribunal included theexperience of explosions in closeproximity to Mr Moseley and MrMoseley’s feelings of fear and distress.This Tribunal considers that thehypothesis is reasonable in that it meetsthe template found in the SoP.’


The AAT considered that the relevantquestion was whether it was satisfiedbeyond reasonable doubt that one ormore of the facts necessary to support thehypothesis were disproved beyondreasonable doubt.

The AAT noted that it was unlikely thatexplosions occurring on or around theperimeter would go unrecorded and alsothat it would seem unlikely that a personsuffering from significant alcoholdependence and GAD would not have

the symptoms or practical effects of theseconditions recorded in their servicerecord.

Nonetheless, the AAT was not satisfiedbeyond reasonable doubt that any of thebases upon which the hypothesis rest didnot exist. Specifically, no other factswhich were inconsistent with thehypothesis had been proved beyondreasonable doubt. As such, the AATfound that Mr Moseley’s GAD was warcaused.

Alcohol Dependence


The AAT noted that two hypotheseswere suggested. One related to theclinical onset of alcohol dependencewithin two years after experiencing asevere stressor. The second related tosuffering from a psychiatric disorder atthe time of the clinical onset of alcoholdependence.


The AAT identified the SoP no 76 of 1998concerning alcohol dependence or abuse.

Step 3 - is the hypothesis consistent with thetemplate set out in the relevant SoPs?

The AAT noted that the relevant factor inthe alcohol dependence SoP no 76 of1998 was 5(a):

‘suffering from a psychiatric disorderat the time of the clinical onset ofalcohol dependence...’

It found that Mr Moseley suffered from apsychiatric disorder, in this casegeneralised anxiety disorder, at the timeof the clinical onset of alcohol


23 VeRBosity107

dependence. In this circumstance thethird step in Delediowas satisfied.


The AAT found that the basis uponwhich the hypothesis rested had not beendisproved beyond reasonable doubt andno other fact which was inconsistent witha necessary basis for the hypothesis hadbeen proved beyond reasonable doubt.As such, alcohol dependence was warcaused.

Alcohol hepatitis and gynaecomastis


The AAT noted that it was commonground that if Mr Moseley was found tosuffer from war caused alcoholdependence then alcohol hepatitis andgynaecomastis should also be found tobe war caused as stemming from hisalcohol dependence.


The AAT was unable to find an SoP foralcohol hepatitis and gynaecomastis. Assuch, the AAT proceeded to determinethe claim in accordance with theapproach set out in Byrnes.

The AAT considered the evidence beforeit and noted the opinion of Mr Moseley’slocal medical officer (which was notcontested by the Commission) thatalcohol hepatitis and gynaecomastis werecaused by alcohol dependence. Asalcohol dependence was determined tobe war caused the AAT also determinedthat alcohol hepatitis and gynaecomastiswere war caused.

Formal decision

The AAT set aside the decision underreview. It varied the diagnosis of PTSDto GAD and substituted a decision thatGAD, alcohol dependence, alcoholhepatitis and gynaecomastis were warcaused.

S D Hotop, Deputy PresidentDr P A Staer, Member

[2007] AATA 199628 November 2007

Prostate cancer – high fat diet –material needed to raise a connectionbetween the diet and service

Facts

The late veteran, rendered operationalservice in the Royal Australian Navy(‘RAN’) from 12 July 1947 to 30 June 1951and from 2 November 1953 to 16 July1954. The late veteran’s claim formalignant neoplasm of the prostate wasrejected by a delegate of the RepatriationCommission and was affirmed by theVRB. Mr Dunn died and his widowcontinued his claim by appealing to theAAT.

The AAT set aside the VRB’s decisionand, in substitution therefor, decided thatthe veteran’s malignant neoplasm of theprostate was war-caused. The AAT’sdecision was, however, set aside by theFederal Court of Australia on8 December 2006 and the matter was

Re Dunn andRepatriation Commission


23 VeRBosity108

remitted to the AAT for hearing anddetermination according to law.


Mrs Dunn put forward a hypothesisconnecting her late husband’s malignantneoplasm of the prostate with thecircumstances of his service as follows:

• from the commencement of his RANservice (including his operationalservice), the late veteran wasintroduced to a daily service dietwhich contained a substantiallyhigher level of animal fat than hisdaily pre-service diet, and hemaintained that daily diet for theduration of his RAN service(including his operational service);

• after his discharge from the RAN, hemaintained a diet with a high animalfat content (similar to his RANservice and operational service diet)until January 1984 because heassociated that diet with the ‘caringfamily environment’ which heenjoyed in the RAN;

• his maintaining that high animal fatdiet until January 1984 contributed ina material degree to his subsequentlycontracting malignant neoplasm ofthe prostate.

The AAT’s reasons

Diagnosis

There was no issue as to diagnosis.

Is there a hypothesis?

The AAT was satisfied that onconsideration of the whole of thematerial before it a hypothesis waspointed to connecting the late veteran’s

malignant neoplasm of the prostate withthe circumstances of his service via theinstances outlined above.

The relevant SoPs?

The AAT identified the SoP concerningmalignant neoplasm of the prostateno 28 of 2005.

Is the hypothesis consistent with the templateset out in the SoP?

The AAT, having considered the wholeof the material before it, was of theopinion that that material raised ahypothesis that was consistent withclause 5(c) and clause 4, of the SoPNo 28 of 2005. Specifically, the AATidentified material which pointed to:

• a pre-service diet of 42.1 grams ofanimal fat per day;

• a post-service diet of 224.8 grams ofanimal fat per day;

• maintenance, after discharge, of adiet containing an amount of animalfat at least as high as that containedin his RAN service (including hisoperational service) diet untilJanuary 1984;

• having maintained due to the ‘caringfamily environment’ which heenjoyed during his RAN service(including his operational service);and

• diagnosis of malignant neoplasm ofthe prostate in 1995.

Satisfaction beyond reasonable doubt

The AAT, considered the whole of thematerial before it, and regarded theanalysis, opinions and conclusions set


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out in Dr English’s report, and her oralevidence, as cogent, and accepted them.

The AAT noted that there was no expertevidence before it which contradictedDr English’s analysis, opinions andconclusions.

More specifically, the AAT, on the basisof Dr English’s report, was satisfied,beyond reasonable doubt, that:

• the reported pre-service dailydiet substantially understatedthe amount of animal fat actuallyconsumed, and, accordingly, itcould not be regarded as reliable;

• the standard diet providedduring RAN service (includingoperational service) was at least108.8 grams of animal fat per day;

• the amount of animal fatconsumed on a daily basisimmediately prior to, and as atthe commencement of, the lateveteran’s operational service wasat least 108.8 grams per day (andprobably greater than thatamount).

In short, the AAT was satisfied, beyondreasonable doubt, that the late veteran’sconsumption of animal fat did not, duringthe period of his RAN service (includinghis operational service), increase by atleast 40%, or at all, compared with theamount of animal fat consumed by him inthe period immediately prior to, and as atthe commencement of, his operationalservice.

In relation to, the post-service period, theAAT on the basis of Dr English’s report,was satisfied, beyond reasonable doubt,

that the veteran’s reported diet of 224.8grams of animal fat substantiallyoverstated the amount of animal fatactually consumed on a daily basis and,accordingly, it could not be regarded asreliable.

Further, the AAT was satisfied, beyondreasonable doubt, that any increase in thelate veteran’s animal fat consumptionoccurred solely by reason of his ownvoluntary choice and was not related tohis operational service.

Accordingly, the AAT was satisfied,beyond reasonable doubt, that the factualfoundation of the raised hypothesisconnecting the veteran’s malignantneoplasm of the prostate with thecircumstances of his operational servicewas disproved, and that, therefore, therewas ‘no sufficient ground’ fordetermining that the veteran’s malignantneoplasm of the prostate was a war-caused disease.

Decision

The AAT affirmed the RepatriationCommission’s decision to refuse the lateveteran’s claim for malignant neoplasmof the prostate.

Editor’s note

For further reading on issues concerningprostate cancer matters please see:

• the case summary of the FederalCourt’s decision in this matter whichwas reported in VeRBosity Volume22 no 4 [pp. 139-202]; and

• the commentary concerning theprostate cancer group actionsreported in VeRBosity Volume 21 no4 from page 140.

Federal Court of Australia

23 VeRBosity110

Federal Courtof Australia

Middleton J[2007] FCA 105818 July 2007

Whether hypothesis reasonable –procedural fairness

Facts

Mr Farley-Smith served in the Armyduring World War 2 in an anti-aircraftregiment in the Northern Territory. Hedied in 2001 from myelofibrosis. TheAAT accepted that the veteran’s deathwas war-caused on the basis of ahypothesis linking his death frommyelofibrosis with his exposure tobenzene during his service.

Grounds of appeal

The Repatriation Commission appealedthat decision to the Federal Court on anumber of grounds, which the Courtsummarised as amounting to thefollowing issues:

• whether the decision was not open tothe AAT on the evidence before it asit had failed to consider the relevantconnection with the veteran’s service;

• whether the AAT had applied thewrong test in asking itself whetherthere was proof that benzene does

not cause myelofibrosis and whetherthe relevant connection was false;and

• whether the AAT had failed toaccord procedural fairness to theCommission in considering materialon which the Commission had noopportunity to respond.

The first issue-sufficiency of evidence

The facts raised by the material wereessentially that the veteran used petroland petroleum products during hisservice; the duration, extent and quantityof usage was unknown; the petroleumcontained benzene; the period of possibleduration was about 12 months; theveteran contracted myelofibrosis 52 yearslater; and he died from that condition.

The issue was whether there wassufficient material before the AAT topoint to a reasonable hypothesisconnecting the veteran’s death with thecircumstances of his service havingregard to these raised facts.

The Court then considered the medicalevidence and noted that the Commissionhad called two experts, Professor Fox (ahaematologist) and Professor Peach (anepidemiologist), both of whom deniedthat there was any connection betweenbenzene and myelofibrosis. Mrs Farley-Smith introduced into evidence in theAAT written reports from Dr Collins.He did not give oral evidence as theCommission did not seek to cross-examine him. The Court said:

[25] In his first report, Dr Collins madetwo important statements:

It has been generally accepted that inprimary myelofibrosis, there is no

Repatriation Commission vFarley-Smith


23 VeRBosity111

definitively known cause and hence theuse of various terminologies for thiscondition, such as ‘idiopathic’ or‘agnogenic’ although with recentresearch these descriptive terms wouldappear somewhat inappropriate. Thedevelopment of this form of the diseasehas been linked to exposure topetroleum derivatives, particularlytoluene and benzene, or to ionizingradiation (see accompanying examplearticle by Tondel).

It has been suggested that, as a Boforsgunner during the war, the late MrFarley-Smith may have been exposedto petrol/benzene. If such a suggestioncan be appropriately substantiatedthen, in my opinion, there is a realpossibility his death was warassociated through the link betweenbenzene exposure causing toxic effectson the bone marrow which thenresulted in myelofibrosis.

[26] I observe that the reference to thearticle by Tondel (Tondel, et al,‘Myelofibrosis and Benzene Exposure’(1995)) is only by way of example tosupport his conclusion. I also observethat Dr Collins was aware that theveteran’s exposure to benzene was as ‘aBofors gunner’ and during the war,and thus was aware of the substantialgap in years between exposure anddeath, and probably between exposureand the time the veteran contractedmyelofibrosis, and of the generalnature of the veteran’s exposure.

[27] Further, in his second report dated15 June 2004, he referred to the reportof Professor Peach dated 26 March2004, where Professor Peach raised thetemporal issues in the followingmanner:

The widow is hypothesising that arelatively short, intermittent exposureto benzene can cause myelofibrosismore than 50 years after such exposurehas ceased.

Nevertheless, Dr Collins stillmaintained his view as to the causallink between benzene andmyelofibrosis. It cannot be said that DrCollins was not aware of the temporalissues, and that his view should bedisregarded on this account.

[28] Before me, an attack was sought tobe made of Dr Collins on the basis thathe was not qualified at all, andcertainly not as qualified as the expertwitnesses called by the applicant. Thiswas not raised before the Tribunal and,as I have said, his reports weretendered without objection. I note thatDr Collins is described in his reports asa Consultant Forensic Pathologist.

[29] In my view, it is too late nowbefore this Court for the applicant to besubmitting that Dr Collins was notsufficiently qualified to express hisview and to rely, as the applicant does,on the comments of Menzies J inCommissioner for Government Transport vAdamcik (1961) 106 CLR 292 at 302:

It would be going too far to say thatany legally qualified medicalpractitioner is to be regarded assufficiently qualified as an expert toexpress an opinion upon any matter ofmedical science...

[30] It was further contended by theapplicant that the Tondel article wascontradicted by subsequent papers, notby Tondel himself, but apparently byhis ‘supervisors and senior staff’,according to Professor Peach. It wasalso contended that Dr Collins, in any


23 VeRBosity112

event, only raised the ‘possibility’ ofthe relevant causal connection, whichwas not sufficient to give rise to areasonable hypothesis. The respondentpointed out that in response toProfessor Peach, Dr Collins stated that:

Whilst I agree with Prof. Peach’s viewthat the proposed relationship betweenbenzene exposure and the subsequentdevelopment of myelofibrosis is basedon epidemiological studies andindividual case reports, such acorrelation does not necessarily excludea definitive causal connection.

[31] As I have indicated, the Tondelarticle was merely an example of onereference material relied upon by DrCollins. I do, however, accept that theTondel article could not assist directlyon the temporal issues as it concerned acase study about one man who hadbeen exposed to benzene for 17 years asa petrol station attendant and whocontracted myelofibrosis 13 years afterthat exposure.

[32] However, Dr Collins expressedhimself, knowing of the temporalissues in this case, more definitivelythan the applicant submitted. DrCollins spoke of a ‘real possibility’, notjust a ‘possibility’ or ‘mere possibility’,that the veteran’s death was relevantlyconnected to his exposure to benzene.Dr Collins’ above response to ProfessorPeach does not detract from theopinion of Dr Collins, which he did notrecant, in favour of the hypothesisproposed by the respondent, beingcognisant of the temporal issues.

[33] In any event, this was not the onlymaterial before the Tribunal thatsupported the hypothesis connectingthe veteran’s death with his warservice, although Dr Collins’ evidence

was the only material before theTribunal to address the temporal issuesin the way I have indicated above.

[34] The other expert called by therespondent was Dr Parkin. Dr Parkinprovided a letter to the respondentdated 24 April 2003, which letter wastendered in evidence before theTribunal. Dr Parkin was ahaematologist at HeidelbergRepatriation Hospital and he identifiedfour reports that linked benzene withmyelofibrosis. Dr Parkin concludedthat there was support for thehypothesis that benzene exposurecontributed to the veteran developingmyelofibrosis. The Tribunal does notseem to expressly take Dr Parkin’sevidence into account, but that wasmaterial before the Tribunal.

[35] In addition there was the surveymaterial from Sweden referred to in theTondel article, and the UnitedKingdom survey referred to (althoughalso discounted) by Professor Peach,and the bundle of documents producedby the respondent which werespecifically relied upon by theTribunal. Even accepting the criticismsof the applicant in respect of thecontent of the material, it doesnevertheless show that the hypothesis(putting aside temporal issues) was notcontrary to known scientific facts, norwas so obviously fanciful, impossible,incredible or untenable, or too remoteor too tenuous: see Bushell vRepatriation Commission (1992) 175CLR 408 at 414 and East 16 FCR at 533.

[36] In addition to the concessionregarding the veteran’s exposure tobenzene, the Tribunal also referred toother decisions of the Tribunal (onwhich no objection was taken) where it


23 VeRBosity113

seemed clear that access to petroleumwas readily available and its usage wasprobably without protective clothing orbreathing apparatus: see Whitworth vRepatriation Commission [2002] AATA861; Prestegar v Repatriation Commission(unreported, Northrop J, 14 February1997). All this material was available tothe Tribunal to support the hypothesis.

[37] There was also the study in theUnited Kingdom of 24,500 maleemployees in oil distribution centres ofthree petroleum companies in the UKbetween 1950 and 1975 (Rushton andAlderson, ‘Epidemiological survey ofOil Distributions Centres in Britain’(1983)), which was referred to byProfessor Peach. The Tribunal referredto this study by reference to three‘petroleum refineries’ but I do not thinkanything turns upon this incorrectreference to petroleum refineriesinstead oil distribution centres. It wasnot a mistake which necessarily givesrise to an error of law and does not inmy view impact upon the relianceplaced by the Tribunal upon the study.This study concluded that havingregard to the instance of myelofibrosisin the UK, it was expected that therewould be 3 deaths within the totalnumber surveyed, but in fact therewere 5 deaths. Professor Peach, whilstacknowledging that the greater numberof deaths than expected would nothave been ‘a chance finding’, said thatthe study did not conclude anassociation between myelofibrosis andbenzene. In fact, Professor Peach saidthat there had been studies conductedwithin the Australian petroleumindustry which had concluded thatthere was no association betweenmyelofibrosis and benzene and where

there had been a measure of the extentof benzene exposure. Nevertheless, theTribunal was entitled to attribute lessweight to Professor Peach’s view, andrely upon the study itself (which itdid).

[38] Finally, there was the bundle ofdocuments produced by therespondent. Putting aside thecircumstances of reliance by theTribunal upon those documents (towhich I will return) that material doescontain some general references to theconnection between benzene and thecontraction of myelofibrosis, althoughagain not in respect of the temporalissues.

[39] Against this material before theTribunal, the Tribunal heard the verystrong views of Professors Fox andPeach concerning the connectionbetween benzene and myelofibrosis.Professor Peach, in particular, did notagree with Dr Collins and criticised hisconclusions. However, the Tribunal didnot find the evidence of Professors Foxand Peach to be of such a ‘superiorreliability’ that there was not sufficientground to determine the death waswar-caused. Both were subject to cross-examination, and one adversecomment was made implicitly ofProfessor Peach by the Tribunal in theTribunal stating that Professor Fox wasfar less rigid than Professor Peach inexpressing his opinions.

[40] In any event, it was not for theTribunal to necessarily determineopposing views, just have regard tothem in examining the validity of thereasoning which supports thehypothesis: see Bushell 195 CLR at 413-416. This, in my view, was the task theTribunal undertook.


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The second issue – the absence ofevidence

The Commission submitted that the AATasked itself the wrong question when ittested the hypothesis of connection byasking whether there was ‘proof thatbenzene does not cause myelofibrosis’and ‘proof that the connection is false’.It was argued that the absence ofevidence to disprove a hypothesis cannotelevate it to a ‘reasonable’ hypothesis.The Court said:[45] In my view, the Tribunal did notask the wrong question or pose thewrong test.

[46] The Tribunal needed to test thehypothesis to determine whether it wasreasonable. The Tribunal could relyupon the material before it to so test thehypothesis. The absence of evidence,whilst not elevating in itself ahypothesis as being reasonable nototherwise supported by sufficientmaterial, could be taken into account indetermining whether the hypothesiswas reasonable. The Tribunal raised theissue of the absence of proof inconnection with whether thehypothesis relied upon was contrary toproven scientific facts or to the knownphenomena of nature. In my view, thiswas appropriate. It accepted that thecontents of the report of Dr Collins, thesurvey material from Sweden referredto in the report of Tondel, the UnitedKingdom survey referred to byProfessor Peach, and the bundle ofdocuments produced by therespondent supported or pointed to areasonable hypothesis connecting theservice of the veteran and his exposureto benzene to his subsequent deathfrom myelofibrosis. When the Tribunal

said that there was no proof thatbenzene does not cause myelofibrosisand no proof that the connection isfalse, the Tribunal was not postulatinga test, but merely observing that thehypothesis was not contrary to provenscientific facts or to the knownphenomenon of nature, which was arelevant enquiry.

The third issue – breach of proceduralfairness

The Court said:[49] The [Commission] submitted thatthe bundle of documents referred to at[95] of the Tribunal’s reasons shouldnot have been relied upon by theTribunal in its reasons as it was notgiven copies of such material at thehearing, not given the opportunity tomake submissions in relation to them,and not given the opportunity ofputting the documents to ProfessorsPeach or Fox. Further, the[Commission] submitted that, despiteobjecting to the tender of the materialat the hearing, and the Tribunal statingthat it would hear the applicant on thequestion of the weight to be given tothe material, the Tribunal did not hearthe applicant further on this matter,and proceeded to rely upon thedocuments. In this regard, theapplicant submitted that it had beendenied procedural fairness and therehad been a breach of s 39(1) of the AATAct. In my view, this submissionshould be upheld.

Mrs Farley-Smith argued that the AATdid not need to rely on these documentsto reach its conclusion. The Courtrejected that submission and said:

[58] An analysis of the Tribunal’sreasons show, in my view, the bundle


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of documents was relied upon in atleast two respects. One was to impactparticularly upon the acceptance of theevidence given by Professor Peach. Theother was to show the connectionbetween benzene and myelofibrosiswas ‘more than a possibility’, whichwas a critical issue. …

[60] In addition, the Tribunal did seemto single out this bundle of documentsas at least assisting in the Tribunalconcluding that the hypothesis was‘more than a possibility’. Iacknowledge that the Tribunal did laterrefer to other material, which in itselfmay have been sufficient to assist in theconclusion reached (particularly thereliance on Dr Collins), but I cannot besatisfied as to the comparative weightgiven to all the material relied upon bythe Tribunal to reach its ultimateconclusion. Having regard to theseparate and specific treatment given tothe bundle of documents by theTribunal, it may well be that theTribunal was finally persuaded by theinformation in the bundle to reach theconclusion it did.

Decision

The Court remitted the matter to theAAT to be reheard by a differentlyconstituted tribunal.

What this case means

Apart from highlighting the effects ofprocedural errors (first, by theCommission in failing to challenge theexpertise of a witness as a preliminaryissue at the hearing, and secondly, by theTribunal in failing to allow the parties tomake submissions in relation to materialthat it considered), this case emphasisesthe nature of the evidence required to

raise a reasonable hypothesis if there isno relevant Statement of Principles to beapplied.

A hypothesis will be ‘reasonable’ if it israised by the whole of the material, it ismore than a mere possibility, and is ‘notcontrary to known scientific facts, nor …obviously fanciful, impossible, incredibleor untenable, or too remote or tootenuous’. The fact that there are contraryviews expressed by eminent experts doesnot render a hypothesis unreasonable.

Gordon J[2007] FCA 108731 July 2007

Diagnosis of claimed disease –alcohol abuse – alcohol dependence –anxiety disorder not otherwisespecified – generalised anxietydisorder – necessity to identify thecorrect disorder in order to apply aSoP

Facts

Mr Brady claimed a disability pension inrelation to an alcohol problem, posttraumatic stress disorder andanxiety/depression. The AAT found thathe did not suffer from post traumaticstress disorder, and affirmed that part ofthe decision under review, but grantedthe claim in respect of ‘generalisedanxiety disorder and alcohol dependenceor alcohol abuse’, finding that thoseconditions were war-caused.

Repatriation Commission v Brady


23 VeRBosity116

Grounds of appeal

The Commission appealed this decisionon the grounds that the AAT had erredin law:

1. in finding that the veteransuffered from alcoholdependence or alcohol abuse;

2. in determining that ‘generalisedanxiety disorder’ was war-caused when it had found thatthe veteran suffered from aseparate disorder, namely,‘anxiety disorder not otherwisespecified’;

3. in determining that ‘generalisedanxiety disorder’ was war-caused when there was no orinsufficient evidence to supportsuch a finding.

The Court’s consideration

Alcohol abuse or alcohol dependence

In relation to the first ground of appeal,the Commission argued that, in terms ofthe definition in the relevant Statement ofPrinciples, alcohol abuse can bediagnosed only if the symptoms ofalcohol dependence have never beenmet.

It was argued on behalf of Mr Brady thatnothing really turned on the descriptionof the disease because the same factors inthe Statement of Principles applied forwhichever disorder was diagnosed. TheCourt disagreed. Gordon J said:[28] The question raised by this appealwas whether it was necessary for theTribunal to find which of the twoconditions was applicable to theveteran and if so, whether the

Tribunal’s failure to do so was an errorof law?

[29] The answer to each question is yes.… [I]t was an error of law for theTribunal to fail to make a finding as towhich of the two conditions wasapplicable to the veteran.

The Court then considered whether thematter should be remitted, and said thatit should for the following reasons:[32] First, the conditions are distinctand are to be diagnosed on the basis ofdifferent criteria. …

[33] Secondly, the observations of theFull Court in Repatriation Commissionv Butcher [2007] FCAFC 36 at [19] inrelation to s 44(7) of the AAT Act areapposite:

The Tribunal had fallen into legal error,and in our view, the appropriate courseof action in this case was for theTribunal to reconsider the evidencehaving regard to any furthersubmissions or evidence which theparties wished to advance. In caseswhere a wrong principle has beenapplied by an administrative tribunal,it will generally follow that the mattershould be referred back, except in caseswhere it would be futile to do so orwhere there could be no other outcome.

[34] Each of those observations appliesto the present case. The Tribunal hadfallen into legal error. Not only did theTribunal fail to make a finding aboutwhich of two disorders the veteransuffers but, in some paragraphs,appeared to approach the matter as ifthe veteran suffered from both. … Thatis not possible.

[35] Thirdly, the evidence before theTribunal was not entirely satisfactory.


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Paragraph 5 of the Alcohol SoP sets outthe factors that must as a minimumexist before it can be said that areasonable hypothesis has been raisedconnecting alcohol dependence oralcohol abuse with the circumstances ofa person’s service. In the present case,the factor relied upon was (para (b))that the veteran ‘experience[ed] asevere stressor within the two yearsimmediately before the clinical onset ofalcohol dependence or alcohol abuse.

[36] I accept the contentions of theCommission that in determiningwhether that factor existed, it wasnecessary for the Tribunal:

(1) to distinguish between the twodisorders; and

(2) to have before it (and it appearsthat it did not) evidence from a medicalpractitioner determining for thepurposes of the Alcohol SoP whetherthe disease is or was present at aparticular time: RepatriationCommission v Milenz (2006) 93 ALD107 at [34] citing RepatriationCommission v Cornelius [2002] FCA750 at [26].

[37] The latter requirement imposed amedical-scientific standard, not a laystandard, which in the present caserequired evidence from a medicalpractitioner identifying the date of theclinical onset of the disease the veteranhad contracted within two years fromOctober 1970 (being the date of ahelicopter incident in Vietnam).Moreover, such a diagnosis wouldhave to take into account the criteriaprescribed by the Alcohol SoP for eachrelevant disorder – alcohol dependenceor alcohol abuse.

The Court said that for those reasons, thematter had to be remitted to the AAT tobe reheard. It then went on to discuss theother grounds of appeal.

Anxiety disorder diagnosis

The Court noted that:

[40] … At para [91], the Tribunalrecords its finding on the balance ofprobabilities that the appropriatediagnosis was that of ‘anxiety disordernot otherwise specified’. The Tribunalnotes at [94] that the Anxiety SoP iswith respect to ‘generalised anxietydisorder’ (which it is). However, it thenrefers to the disorder as ‘anxiety’ (at[108], [109], [111], [113]) and then setsaside the decision of the VRB and, insubstitution, decides that the injury ordisease is not that of ‘anxiety disordernot otherwise specified’ but of‘generalised anxiety disorder’. As theAnxiety SoP makes clear, the disordersare different.

The Court noted that the third ground ofappeal was in essence the same as thesecond and that it too would succeed.

Decision

The Court allowed the appeal, set asidethe AAT’s decision and remitted thematter to be reheard by a differentlyconstituted tribunal.


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Sackville J[2007] FCA 129021 August 2007

Whether AAT engaged inimpermissible fact finding

Facts

Mr Gardiner was born on11 September 1923. He enlisted in theAustralian Army on 12 February 1942and served until 11 November 1944.service included a period in New Guineaas an artillery gun layer.

On 10 August 1975, Mr Gardiner diedwhen the tractor he was drivingoverturned, pinning him face down onthe ground, causing asphyxiation. A postmortem examination identified the causeof death as ‘asphyxiation due to cerebralconcussion.’

The AAT affirmed the decision of theRepatriation Commission thatMr Gardiner’s death was not war causedand that a pension was not payable to hiswidow, Mrs Gardiner.

Grounds of appeal

Mrs Gardiner appealed that decision tothe Federal Court. The case concernedone issue:

• Did the AAT engage in animpermissible process of factfinding?

The AAT’s reasons

Mrs Gardiner’s case before the AAT wasthat her late husband was so restricted inmovement by his war caused lumbarspondylosis that when the tractor he wasdriving ‘rolled’, he was unable to jumpclear, becoming pinned underneath theoverturned tractor and suffocated.

The AAT observed that little was knownof Mr Gardiner’s state of health on theday of his death, and that no mentionhad been made at the inquest of any lackof mobility on his part. Nor had the issuebeen raised when Mrs Gardiner madeher first claim for pension in the 1980s.Further, the AAT noted that Mr Gardinerhad been in sufficiently good health onthe day of his death to use a tractor toplough a field.

In addition, the AAT referred to aconsulting engineer’s report noting thatthe opportunity for a tractor driver of thedeceased’s age to exit a tractor in theprocess of overturning was an extremelyshort period of time even for an ablebodied man.

The AAT said:‘…[to] say that it was his lumbarspondylosis that prevented himjumping clear of the tractor so as toavoid fatal injury when all he had wasone to two seconds in which to takethat action is, on what is known in thismatter, mere speculation and incapableof raising an hypothesis properlycategorised as reasonable’.


Justice Sackville considered that the AATfound, as a matter of fact, that all of thematerial before it did not point to the

Gardiner v RepatriationCommission


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applicant’s hypothesis as a reasonableone. His Honour found that the AAT hadnot rejected the analysis in the consultingengineer’s report, neither had it madefindings on any disputed issue of fact norhad the AAT preferred some evidenceover other evidence. In his Honour’sopinion the AAT did not engage in factfinding when considering whether ahypothesis was raised by the material. Itwas only saying what the authoritieshave said: the material must point to theconnecting hypothesis, rather than theconnection remaining purely in the realmof conjecture or speculation.As such, his Honour found thatMrs Gardiner had failed to establish thatthe AAT had erred in law.

Editor’s note:

Subsection 120(3) of the VEA requires thedecision maker to form an opinion thatthe material before it does or does notraise a reasonable hypothesis connectinga person’s death with the circumstancesof their service. There is no doubt thatthe decision maker is required to look atall of the material, not just some of it.However, it cannot at this point make afinding on any disputed issues of fact.Nonetheless, in performing the taskrequired by s120(3) the decision makerwill need to assess the factual materialbefore it. This involves reaching anopinion about a matter, and it is in thatsense, a question of fact.

In this case the AAT properly dischargedit statutory duty. The AAT did not treatthe opinion of those who investigated theaccident as unreliable, inaccurate orspeculative. The AAT did not describethe evidence of any witness as unreliable,

inaccurate or speculative. Its finding thatMrs Gardiner had not raised a reasonablehypothesis connecting her late husband’sdeath with his war service was a findingof fact and so could not be challenged onappeal to the Court.

Marshall J[2007] FCA 138030 August 2007

Whether AAT erred finding noreasonable hypothesis - applicationof the Deledio steps

Facts

Mr Gittins was a veteran who served inthe Australian Army from July 1949 untilDecember 1971. He had served onoperations in Japan from July 1953 untilJuly 1955. Mr Gittins died in 1997 as aconsequence of a low grade non-Hodgkin’s lymphoma. The AATaffirmed a decision that Mr Gittins’ deathwas not war caused and that pensionwas not payable to his widow.

Mrs Gittins appealed to the FederalMagistrate’s Court. Federal MagistrateRiley dismissed her appeal.

Grounds of appeal:

Mrs Gittins appealed to the FederalCourt. The case concerned two issues:

• was there only one cause of death;and

• had the AAT correctly applied theDeledio process?

Gittins v Repatriation Commission


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The AAT’s reasons

Mrs Gittins contended before the AATthat her husband’s kind of death wasnon-Hodgkin’s lymphoma; and that hisdeath was war caused as he had aninability to obtain appropriate clinicalmanagement because of his fear orphobia of doctor’s or hospitals, arisingout of his experiences when hospitalisedin Japan.

In the course of the hearing Counsel forMrs Gittins changed the emphasis on thehypothesis raised. Submitting that thelate veteran’s war caused phobia ofmedical intervention resulted in himfailing to obtain adequate andappropriate treatment for his non-Hodgkin’s lymphoma.

The AAT found that Mr Gittins diedfrom non-Hodgkin’s lymphoma. It thenconsidered the two hypothesis.

In relation to the first hypothesis theAAT found:

• there was material before it pointingto a hypothesis connecting the deathwith war service;

• the hypothesis was that Mr Gittinswas unable to obtain appropriateclinical management for hislymphoma;

• there was an SoP in force relevant tosuch a hypothesis – SoP 37 of 2003;

• the hypothesis was not consistentwith the template found in the SoPbecause of the lack of evidence thatMr Gittins had contracted the diseasebefore his operational service; and

• as the hypothesis failed to fit thetemplate of the SoP, the claim couldnot succeed.

In relation to the second hypothesis theAAT found:

• There was an absence of an SoP forfear or phobia of that kind (ie.medical intervention);

• nonetheless, the absence of an SoPdid not prevent it consideringwhether the hypothesis wasreasonable; and

• the hypothesis was too tenuous andtoo remote to be reasonable.

The Federal Magistrate’s Court

Federal Magistrate Riley considered thatthere was only one cause of death, non-Hodgkin’s lymphoma and that therelevant SoP applied. Mr Gittins did notdie of phobia.

In relation to the first hypothesis, herHonour considered that the AAT hadproperly applied the first three Delediosteps. As the claim did not fit within thetemplate of the SoP it failed. It wasunnecessary for the AAT to considerfourth step of Deledio.

In relation to the second hypothesis, herHonour held that the AAT had erred. Itshould have given no furtherconsideration to the alternativehypothesis. She concluded that:

• where there is only one cause ofdeath, and

• an SoP applies to that kind of death,

• that SoP governs the determinationof whether the hypothesis isreasonable.


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In any event, her Honour considered thatthe AAT’s error was of no consequence.

The court’s consideration

Counsel for Mrs Gittins argued beforethe Federal Court that the AAT had‘implicitly’ found that phobia was one ofthe causes of death. Justice Marshallconcluded that a finding in relation to akind of death should be precise notimplicit. Further, his Honour held thatFederal Magistrate Riley was correct indetermining that:

• there was only one cause ofdeath;

• that AAT had properly appliedthe first three Deledio steps; and

• the SoP that applies to the kindof death found governs thedetermination of whether thehypothesis that death arose fromthe relevant service is reasonable.

Editor’s note

Kind of death

The first question in cases such as this isto ascertain the kind of death. It is opento find that a late veteran may have hadmore than one kind of death . However,there was a very clear finding in this casethat Mr Gittins’ kind of death was nonHodgkin’s lymphoma. The ‘kind ofdeath’ was not fear or phobia.

The second hypothesis

The SoP for non-Hodgkin’s lymphomaset out the matters that needed to existfor a claim based on the relevant kind ofdeath to succeed. The relevant SoP didnot set out phobia or fear as a factorcapable of connecting Mr Gittins’ kind of

death from non-Hodgkin’s lymphomawith the circumstances of his service. TheAAT was not permitted to consider thesecond hypothesis without reference tothe relevant SoP. This was an error oflaw. However, ultimately this was notmaterial to the decision made by theAAT. It would appear that the AAT wasled into error by a confusion betweenMr Gittins’ kind of death and thecircumstances of his death.

The Deledio steps

There was no error of law made by theAAT in its consideration of the firsthypothesis, or the methodology appliedin accordance with the Deledio steps.Only if the hypothesis is found to bereasonable because it fits the template setout in the SoP will the decision maker berequired to consider s120(1) - step four ofDeledio.

Collier J[2007] FCA 140810 September 2007

Identification of hypothesis - whethersecond step in Deledio satisfied

Facts

Mr Sergeant was a veteran who served inthe Royal Australian Air Force from22 October 1943 to 5 June 1946. He servedin Morotai from 7 April 1945 until lateOctober 1945 as a radio operator.

Repatriation Commission v Sergeant


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Mr Sergeant died in 2004. The deathcertificate records the causes of death as:

‘1(a) ? Cerebrovascular accident with ?seizure (b) Hypertension (c) Epilepsy 2.Ischaemic heart disease, cerebralhaemorrhage, transient ischaemicattack’.

The AAT set aside the decision of theBoard and decided that the death of thelate Mr Sergeant was war-caused andthat pension was payable to his widow.

Grounds of appeal

The Repatriation Commission appealedto the Federal Court. The case concernedtwo issues:

• did the AAT identify the relevanthypothesis; and

• had the AAT correctly appliedthe second step in Deledio?

The AAT’s reasons

The AAT found that a cerebrovascularaccident was Mr Sergeant’s main cause ofdeath. The AAT did not identify therelevant hypothesis. However, it couldbe inferred that the relevant hypothesiswas:

• the cerebrovascular accident wascaused by hypertension;

• the hypertension was caused byeither an anxiety disorder orpanic disorder;

• anxiety or panic disorder wascaused by Mr Sergeant’soperational service.

The AAT made a finding that the secondstep in Deledio was satisfied. However, itonly identified three SoPs relevant to theclaim, namely:

• SoP for CerebrovascularAccident (No 57 of 2003 and No51 of 2006)

• SoP for Ischaemic Heart Disease (No 53 of 2003 as amended by No9 of 2004)

• SoP for Hypertension (No 35 asamended by No 3 of 2004).


Justice Collier concluded that the AATdid not identify the relevant hypothesis.Further, to the extent that a hypothesiswas identifiable, the AAT had notproperly identified the SoPs that upheldthe whole of that hypothesis.

In providing guidance for the AAT inrehearing the matter her Honourindicated that if, for example, one of thelinks in the relevant hypothesis was thatMr Sergeant’s hypertension was causedby an anxiety or panic disorder that linkin the hypothesis would need to besupported by the relevant SoPs.

What this case means

Once a kind of death has beendetermined, it is necessary to considerwhether the material raises a hypothesisthat consists of a link or links whichconnect, at one end, the type of deathsuffered by the late veteran with thecircumstances of their service.

If a hypothesis relies on a sub-hypothesisor sub hypotheses, each of the links inthe chain must be supported by an SoP.33

33 McKenna v Repatriation Commission [1999] FCA323.


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In this case it was necessary for the AATto have regard to the SoPs concerninganxiety disorder (No 1 of 2000)34 andpanic disorder (No 9 of 1999). However,the AAT made no reference to theseSoPs. Accordingly, contrary to thefinding of the AAT, the second Delediostep was not satisfied.

Gyles J[2007] FCAFC 202118 December 2007

Whether death was attributable toeligible service – did AAT err in lawby failing to satisfy itself beyondreasonable doubt, that there was nosufficient ground for determining thatthe veterans’ alcohol dependencearose out of his war service?

Facts

Mr Butler served in the Royal AustralianNavy between 4 March 1948 and14 June 1973. He had many periods ofoperational service, commencing on27 June 1950 in Korea and ending on25 May 1969 in Vietnam. He died on17 December 2002 from cerebrovasculardisease.

His widow's claim for pension wasrejected by the Repatriation Commissionand the AAT affirmed the rejection.The issue in contention before the AAT

34 Please note the new SoP concerning AnxietyDisorder no 101 of 2007 was given effect on 19 Sept07.

had concerned whether the late veteran’salcohol consumption was a causal resultof his operational service.

Grounds of appeal

Mrs Hall appealed to the Federal Courtfrom the decision of the AAT. The appealconcerned one issue:In relation to it’s statement that ‘…wewere not satisfied beyond reasonable doubtthat such alcohol consumption was warcaused ‘ did the AAT misdirect itself asto the meaning of ‘beyond reasonabledoubt’ and apply the wrong standardof proof ?

The Commission’s position

The Commission stated that this sentencewas a mistake or drafting error and didnot reflect the actual reasons for decision.Specifically, the key to the AAT’sdecision was it’s finding that the lateveteran had commenced drinking in 1949because he had ‘acquired a taste for it’and that operational service, whichcommenced in June 1950, did not lead toan increase in drinking.


Justice Gyles found that the AAT’sstatement could not be ignored andtreated as a slip of the pen. His Honoursaid:‘There were various bases for a linkbetween operational service andalcohol dependence in the materialbefore the Tribunal . The Tribunalconsidered and dealt with some ofthose bases and not others . There areoccasions where primary facts allegedto support a hypothesis might bepositively rejected and the hypothesis,or an essential integer of it, negatedbeyond reasonable doubt (Byrnes v

Hall v Repatriation Commission


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Repatriation Commission (1993) 177CLR 564 at 570) . That is not themanner in which the Tribunalproceeded and, having in mind theobjective circumstances of the case, itcould hardly have proceeded to findthe relevant circumstances disprovedin that sense.

In my opinion, the parties were correctin focusing argument before theTribunal on the existence of thenecessary hypothesis, as occurred inBull 188 ALR 756, but the Tribunalended up misdirecting itself as to theinterplay between s 120(1) and s 120(3)and so applied the wrong standard ofproof. The remaining grounds ofappeal are best seen as aspects of thatfundamental problem. I have remarkedelsewhere upon the difficult task thatthe Tribunal has in applying thesesections as they have been interpretedby the relevant authorities of the HighCourt and this Court (Byrne vRepatriation Commission [2007] FCAFC126, 97 ALD 359 at [1]).

In my opinion, the Tribunal did applythe wrong standard of proof whenarriving at the decision and, havingfound that a reasonable hypothesisexisted, and having dealt with the factsin the way it did, the Tribunal,properly directed as to the meaning of‘beyond reasonable doubt’, could nothave rejected the claim pursuant to s120(1) .’

Formal decision

The appeal was allowed and the decisionof the AAT set aside. The appeal wasstood over to enable the parties to makesubmissions as to the appropriate ordersto be made.

Commentary

Step 3 of Deledio

As noted by his Honour, the partiessubmissions before the AAT hadfocussed on step 3 of Deledio. At thispoint the AAT was required to determinewhether the material before it, taken as awhole, pointed to every essential elementof the relevant SoP factor existing in thelate veteran’s case, and whether therewas any evidence pointing to a linkbetween that factor and his eligibleservice.

If the AAT found that all of the materialdid not point to every essential elementof the relevant SoP factor (including therelationship to service) then it wouldopen to find that the hypothesis was notfairly raised by the material and couldnot be deemed reasonable. As such,the claim would fail.

Step 4 of Deledio

Step 4 of Deledio required the AAT toassess the material before and, in effect,decide whether the hypothesis had beendisproved beyond reasonable doubt. If ithad, the claim would fail.

Conversely, if the hypothesis had notbeen disproved beyond reasonabledoubt, the claim would succeed.

It is important to note that there is noonus of proof on the RepatriationCommission at this step in Deledio tosatisfy the AAT beyond reasonable doubtthat an essential aspect of the hypothesis(including the relationship to service)does not exist.


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Cowdroy J[2007] FCA 16744 December 2007

Whether conditions related to eligibleservice – wrong test identified andapplied by AAT – findings made in theabsence of evidence – whether futileto remit to AAT upon possibility ofdifferent outcome being reached

Facts

Mr Robertson served in the RoyalAustralian Navy from January 1965 toMarch 1988. He trained as a diver. On3 June 1969 Mr Robertson was serving inHMAS Melbourne when it collided withUSS Frank E Evans. As a diver his dutiesimmediately following the collisionincluded recovery of survivors, bodiesand body parts. Subsequently heexperienced psychological stressorscaused by his involvement in a divingincident in Hong Kong; being inproximity to HMAS Melbourne andexperiencing a fire in HMAS Supply.

Mr Robertson claimed to suffer frompost traumatic stress disorder (‘PTSD’),alcohol dependence and majordepression and that they were related tohis service in the RAN.

The AAT set aside the decision of theVRB and determined thatMr Robertson ’s PTSD, alcoholdependence and major depression wererelated to his ‘eligible service’.

Grounds of appeal

The Commission appealed to the FederalCourt from the decision of the AAT. Theappeal concerned three issues:

• Did the AAT err in findingMr Robertson’s service was‘eligible service’ as referred to insection 9(1)(e) of the VEA ratherthan finding he had ‘defenceservice’ as defined in section68(1) of the VEA?

• Did the AAT fail to apply thecorrect test pursuant to section70(5)(d) in determining whetherMr Robertson’s condition wascontributed to in a materialdegree or was aggravated by hisdefence service rendered after hedeveloped PTSD?

• If the clinical onset of PTSD wasfound to have occurred in 1994,was the AAT’s inquiry into theintervening stressors irrelevant?

Mr Robertson’s position

Mr Robertson agreed with theCommission that the AAT haderroneously referred to section 9(1)(e) ofthe VEA. However, he submitted that theerror made no difference because thestatutory provisions contained in section9(1)(e) and 70(5) were virtually the samefor ‘eligible war service’ and ‘defenceservice’. In any event, Mr Robertsonsubmitted that the subsequent stressorshe experienced satisfied section 70(5)(a)of the VEA.


Justice Cowdroy found that the testwhich should have been applied by the

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AAT was that prescribed by section 70(5)of the VEA. Further, he noted that thereference to section 9(1)(e) of the VEAdemonstrated an obvious error by theAAT as entitlement to pension was basedon ‘defence service’ and not ‘eligible warservice’ as considered by the AAT. HisHonour said:‘[29] Even though the text of s9(1)(e)and of s70(5)(d) are similar, thiscircumstance does not detract from theconclusion that the wrong test wasapplied by the Tribunal. The failure ofthe Tribunal to refer to the correctstatutory provision demonstrates thatthe Tribunal asked itself the wrongquestion. Jurisdictional error thereforeexists in its decision…’

His Honour went onto note that theAAT’s observations appeared to beinconsistent. Specifically, references tothe later stressors suggested that theAAT was only considering whether MrRobertson’s defence service aggravatedhis PTSD. However, the AAT’s findingthat the clinical onset of PTSD did notoccur until 1994 indicated that the AAThad actually considered that any one oflater stressors could have causedMr Robertson’s PTSD.

In relation to alcohol dependence, hisHonour found that there was no materialbefore the AAT capable of supporting itsfinding that the clinical onset of MrRobertson’s alcohol dependenceoccurred at a time when he had PTSD. Inthis respect, the AAT had erred.

In respect of major depressive disorder,his Honour found that the AAT hadagain misdirected itself. The AAT’sfindings in relation to depressive illness

were dependent upon the existence ofPTSD being defence caused. In thatrespect, as noted above, the AAT haderred.

The final issue considered was whetherthe whole matter should be referredback to the AAT. His Honour was notsatisfied that if the AAT had addressedthe correct questions, its decision wouldbe the same irrespective of the error:Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321.‘[48]…The errors of the Tribunalinclude the reference to eligible serviceunder s 9(1) when the correct test wascontained in s70(5) of the Act; thereference to ‘war service’ when theonly service relevant was MrRobertson’s ‘defence service’; thefailure to refer to the correct provisionsof s 70(5) of the Act; and the findingmade in the absence of any evidence ofMr Robertson’s alcohol dependence.The Tribunal did not identify thecorrect issues which it was required todetermine and accordingly fell intojurisdictional error: see Minister forImmigration and Multicultural Affairs vYusuf (2001) 206 CLR 323 at 347-8.

[49] In view of the above findings oferror in the decision of the Tribunal,the court is not of the opinion that itwould be ‘futile to remit the matter’:see Arnott v Repatriation Commission(2001) 106 FCR 83 at [36]. Rather theCourt considers that there is apossibility that a different result wouldbe reached on such remitter: see SantaSabina College v Minister for Education(1985) 58 ALR 527 at 540; and Nguyen vMinister for Immigration andMulticultural Affairs (1998) 88 FCR 206at 213-214.’


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Formal decision

The Court ordered that the AAT’sdecision be set aside and the proceedingsbe remitted for determination by adifferently constituted Tribunal pursuantto section 44(5) of the AdministrativeAppeals Tribunal Act 1975 (Cth).

Commentary

Section 70 of the VEA sets out theconnections for a person’s injury, diseaseor death with the circumstances of theirdefence service.

For the ‘arose out of, or attributable to’connections to apply pursuant to section70(5)(a), the relevant circumstance ofservice must have contributed to thecause but need not be the sole, dominant,direct or proximate cause of the injury,disease or death.35

For ‘aggravation or materialcontribution’ provisions to applypursuant to section 70(5)(d), theaggravation must:

• relate to a pre-existing injury ordisease;

• be of a permanent nature; and

• worsen the injury or diseaseitself rather than merely worsenits symptoms or have only atemporary worsening effect onthe injury or disease.36

In addition, when considering Statementsof Principles, the only factors that relate toaggravation ormaterial contribution are:

35 Repatriation Commission v Law (1980) 31 ALR 14036 Repatriation Commission v Yates (1995) 38 ALD 80,21 AAR 331

• clinical worsening of the injury ordisease; or

• inability to obtain appropriateclinicalmanagement.

Further, pursuant to subsection70(9)(b)(ii) VEA a person must have atleast 6 months defence service for aninjury or disease to be accepted asdefence-caused on the grounds ofmaterial contribution or aggravation bydefence service or peacekeeping service.

Downes, Lander and Buchanan JJ[2007] FCAFC 15626 September 2007

practice and procedure – extent ofreview on remittal

Facts

Mr Peacock was a Vietnam veteran whoserved from 1966 to 1967. He becameentitled to a disability pension andapplied for an increase in pension at thespecial rate.

The Board and AAT affirmed thedecision that pension was not payable atthe special rate. Mr Peacock appealed tothe Federal Court and was successful.The matter was remitted to the AAT.However, on rehearing the AAT againaffirmed the decision that pension wasnot payable at the special rate.

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Grounds of appeal

Mr Peacock appealed the second decisionof the AAT to the Full Federal Court.The case concerned one issue:

• Did the AAT exceed its jurisdictionby addressing a matter on rehearingthat had been conceded at theoriginal hearing?

The Full Court’s consideration

Their Honours considered that the wholematter was remitted to the AAT. It wasnot confined to issues relating to thatquestion of law before the Federal Court.In addition, their Honours noted that itwould be a rare case where a limitationcould be inferred from the reasons of ajudgment. In the absence of some expresslimitation, the AAT was required todetermine all questions of fact and law.

Further, their Honours noted that aconcession does not permit the AAT toavoid its duty to make the correct orpreferable decision on all relevantaspects of the matter before it.Specifically, where the parties invite theAAT to make a decision in accordancewith an agreed terms under section 42Cof the AAT Act, the AAT is neverthelessrequired to satisfy itself that the decisionis within its power.

Editor’s note

Parties to a matter before the FederalCourt should routinely put submissionsin relation to the following matters:

• Whether the whole case should beremitted, or only part;

• if so, which part; and

• if there is to be further evidence.

Lindgren, Emmett, Allsop JJ[2007] FCAFC 111

27 July 2007

Whether hypothesis reasonable –Application of the Deledio steps –fact-finding

Facts

Mrs Collins claimed a war widow’spension on the ground that her latehusband’s death from myocardialinfarction was contributed to byhypertension that was contributed to bypost traumatic stress disorder, thatresulted from a severe stressor, namely,serving in a ship when it was sunk byenemy action in World War 2.

The AAT’s reasons

The Tribunal had said:[52] In the view of the Tribunal, theposition in relation to the Statement ofPrinciples Concerning PTSD on all thematerial is as follows: Mr Collins wasexposed to a traumatic event, namelythe sinking of the vessel, and thissatisfies the requirements of Factor A ofthe requirements for PTSD. We are alsosatisfied that Factor B is satisfied in thatthe traumatic event was persistently re-experienced by way of recurrent andintrusive and distressing recollections.

[53] In relation to Factor C, the Tribunalis not satisfied that there was persistentavoidance of stimuli associated withthe trauma and a numbing of general

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responsiveness. There is some evidencefrom Mr Liprini’s statement that theveteran made efforts to avoidconversations associated with thetrauma. However, the evidence as tothe veteran maintaining an interest inUS navy vessels is inconsistent withavoiding activities, places or peoplethat arouse recollections of the trauma.In addition, Mr Collins remained inmaritime engagement after the sinkingof the vessel in 1941. There is noevidence that he had an inability torecall an important aspect of thetrauma. It is doubtful whether he had amarkedly diminished interest orparticipation in significant activities.He was able to engage in taxi drivingfor many years and on the evidence ofMrs Collins, he got along well withalmost anybody over that period. Theveteran was a good reader, took aninterest in horses and gambling, andenjoyed television. Nor is the Tribunalsatisfied that he had a feeling ofdetachment or estrangement fromothers. The evidence does not indicatethat Mr Collins had a restricted rangeof affect, for example, being unable tohave loving feelings. The veteran didmaintain a warm and lovingrelationship with the applicant for avery substantial period of time. Thereis no evidence that he had a sense of aforeshortened future, in the sense ofnot expecting to have a normal lifespan. Accordingly, Factor C is notmade out, and therefore the applicationmust fail.

[54] In relation to Factor D, there isevidence that the veteran experienceddifficulty sleeping. This satisfies one ofthe criteria under Factor D. However, itis doubtful that the veteran exhibited

signs of irritability or anger in thecontext of this provision, as opposed tobeing merely agitated. The fact that hewas a good reader and was able todrive a taxi for a substantial period oftime indicates that the veteran did nothave undue difficulty concentrating.There was evidence that Mr Collinswas highly strung, but there is noevidence that he had an exaggeratedstartle response. In relation to this lastfactor, the evidence is to the contrary,as the veteran was described as‘placid.’ Therefore, Factor D has notbeen made out on the evidence as onlyone symptom under this section hasbeen established where two arerequired.

[55] For these reasons, having regard toall the material before us, includingthat of the psychiatrists, the Tribunal isnot satisfied that there is a reasonablehypothesis raised. …

Grounds of appeal

This case concerned the questionwhether the Tribunal had correctlyapplied the Deledio process when itfound that Mr Collins’ death was notwar-caused, or whether the Tribunal hadengaged in fact-finding at one of theearlier stages of the process on thebalance of probabilities standard.


Allsop J (with whom Lindgren andEmmett JJ agreed) said:[48] … I take the following as settledand uncontroversial principlesconcerning the undertaking of the taskin s 120(3) as affected by the existenceof a SoP under s 196B and by s 120A(3):

(a) The Tribunal must consider thewhole of the material before it: s 120(3).


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(b) The Tribunal is to form anopinion whether the material raises areasonable hypothesis connecting theinjury, disease or death wit thecircumstances of service: s 120(3).

(c) The formation of that opinioninvolves consideration as to whether arelevant SoP upholds the hypothesis: s120A(3).

(d) At the stage of formation of theopinion in (b), involving theconsideration in (c), no question of factfinding arises: Deledio …

(e) The formation of the opinioninvolves the reaching of a factualconclusion: Bull … and involves theassessment of all the material beforethe Tribunal, but not the finding offacts or rejecting material: Bull.

[49] As has been shown in a number ofcases concerning ss 120(3) and 120A,the dividing line betweenimpermissible fact finding andrequired assessment of all the materialin the formation of an opinion as towhether a hypothesis is reasonable inconnecting the injury, disease or deathwith the circumstances of service andas to whether a relevant SoP upholdsthe hypothesis is not necessarily easy todiscern. …

[78] … the task in s 120(3) … mayinvolve looking at conflicting material,but not for the purpose of preferringone opinion over another. …

Lindgren J, in agreeing with Allsop J,said of the Deledio process:[8] At the first three stages, theTribunal is required to deliberate at alevel of abstraction and it is only at thefourth stage that it is required todescend to the resolution of evidentiary

conflict, and it is then required to do soaccording to the ‘beyond reasonabledoubt’ standard.

Allsop J examined the Tribunal’s reasonsand said:[79] Here, not only did the Tribunalprefer one medical opinion overanother …, but the opinion that waspreferred … had within itself preferredsome facts … to others which heviewed as ‘inadequate, inaccurate andinconsistent’ …

[80] In my respectful view, the Tribunalwent further at this stage than it waspermitted to. It resolved competingmedical opinions by preferring onewhich had itself expressed a preferencefor the rejection of inconsistent factswhich were also before the Tribunal.The rejection of the hypothesis in [53]and [54] can be seen as taken from DrDelaforce’s (and the Tribunal’s)resolution of the underlying facts. …

[82] In my view, this approach was oneof factual resolution, not theassessment of the hypothesiscontemplated by ss 120(3) and 120A(3)of the Veterans Act.

Emmett J, who also agreed with Allsop J,said:

[20] The Tribunal examined theevidence of two psychiatrists who gaveconflicting opinions concerning thepresence of post traumatic stressdisorder so far as the veteran wasconcerned. The Tribunal appears tohave weighed that evidence on thebalance of probabilities. The Tribunaldid not engage in the task of firstforming an opinion as to whether thewhole of the material before it raised areasonable hypothesis connecting the


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veteran’s death with his war service.That is not a fact finding exercise.

Decision

The Court allowed the appeal andremitted the matter to be reheard by theTribunal. The Commission was orderedto pay the applicant’s costs.

Editor’s note

In this case the veteran’s ‘kind of death’was ‘death from myocardial infarction’or ‘death from ischaemic heart disease’.While it was hypothesised that posttraumatic stress disorder was acontributory cause of the veteran’sischaemic heart disease, the Tribunal didnot have to find that the ‘kind of death’was ‘death from post traumatic stressdisorder’ for the claim to succeed. It stillhad to apply the post traumatic stressdisorder Statement of Principles(McKenna’s case ), but all that theTribunal was required to do was todetermine whether or not the material‘pointed to’ or ‘raised’ the facts, ratherthan proved on the balance ofprobabilities, that the veteran sufferedfrom post traumatic stress disorder, thatit was related to his service, and that itcontributed to the cause of the veteran’sischaemic heart disease. This processdoes not involve preferring one expertopinion over another, although theopinions of other experts can beconsidered in relation to examining thevalidity of the reasoning of a supportivemedical opinion (Bushell’s case ).

Gyles, Edmonds, Buchanan JJ[2007] FCAFC 12613 August 2007

Application of the test in Byrnes37

Facts

Mr Byrne served in the Australian Armyfrom 1 April 1942 until 26 February 1946.A coronial inquiry found that Mr Byrnehad died in an accident when his boatoverturned during a fishing trip in 1962.His cause of his death was drowning.

The AAT affirmed the decision to refuseMrs Byrne’s claim for a pension, uponbeing satisfied that her late husband’sdeath was not service related.

Mrs Byrne appealed to the Federal Court.Justice Bennett dismissed her appeal.

Grounds of appeal

Mrs Byrne appealed to the Full FederalCourt. No issue was raised in relation tothe AAT’s treatment of the first twohypotheses. The case concerned only oneissue in relation to the third hypothesis:

• Was it open to the AAT to find that itwas satisfied beyond reasonabledoubt that Coronary Artery Disease(‘CAD’) was not a contributing factorto Mr Byrne’s death by drowning?

37 Byrnes and Repatriation Commission (1993) 177 CLR564

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The AAT’s reasons

It was only in the course of finalsubmissions before the AAT that counselfor Mrs Byrne raised the third hypothesisthat ‘Coronary Artery Disease (‘CAD’)impaired Mr Byrne’s ability to surviveonce he was in the water.’

The AAT found Mr Byrne’s kind of deathwas drowning. It accepted that Mr Byrnehad CAD but did not consider it to be akind of death. The AAT found that thethird hypothesis was reasonable andacknowledged that Mrs Byrne’s claimwould succeed unless the hypothesis wasdisproved beyond reasonable doubt inaccordance with the principlesenunciated in Byrnes. It went on to rejectthe premises on which the thirdhypothesis was based. Specifically,finding that CAD did not contribute toMr Byrne’s death by drowning. Once itmade this finding the third hypothesiscould not stand.

Federal Court’s reasons

Justice Bennett found that the AATcorrectly determined that the kind ofdeath was drowning and that itunderstood that the question fordetermination was whether it wassatisfied that the third hypothesis hadbeen disproved beyond reasonabledoubt. Her Honour found that the AATcorrectly set out the test as enunciated inByrnes.

The Full Federal Court’s consideration

Justice Buchanan

The first issue considered by JusticeBuchanan was whether the AAT hadaddressed the third hypothesis at all. His

Honour found that the AAT hadeffectively rejected the third hypothesis.The second issue considered by hisHonour was whether, on the evidence, itwas open to the AAT to reject the thirdhypothesis beyond reasonable doubt. HisHonour considered some of the evidencegiven by two general practitioners beforethe AAT, and noted that it wassupportive of the hypothesis that had notbeen rejected by the AAT. The onlyqualified cardiologist to give evidence tothe AAT had not been asked to addressthe third hypothesis. His Honour foundthat it was not open to the AAT toconclude, on the evidence, that the thirdhypothesis had been disproved beyondreasonable doubt.

Justice Edmonds

The first issue considered by JusticeEdmonds was whether the AAT hadaddressed the third hypothesis at all. HisHonour found that it had not beenaddressed, and agreed with JusticeBuchanan that, on the evidence, it wasnot open to the AAT to conclude that thethird hypothesis had been disprovedbeyond reasonable doubt.

Justice Gyles

The first issue considered by JusticeGyles was whether the AAT hadaddressed the third hypothesis at all. HisHonour stated that the AAT had notaddressed the third hypothesis, and onthat basis he found that Mrs Byrne’sappeal had to be allowed.

Justice Gyles noted that the Court shouldnot make findings in this appeal basedon ‘snippets of evidence that were notdirected to the issue in question’ (at [3]).


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Further, his Honour expressed that hehad a fundamental difficulty with thethird hypothesis as framed, and that ‘thisdeath by drowning as such had nothingwhatever to do with operational serviceor service rendered by Mr Byrne’ (at [5]).

Editor’s note

In this case it is worth noting that thethird hypothesis arose as the evidence onautopsy demonstrated that Mr Byrne hadsome atheroma present. However, nocardiac disability or incapacity resultedfrom the atheroma. If there had been,Mr Byrne would have met the diagnosticcriteria set out in the SoP for IschaemicHeart Disease.

As there was no SoP in force for ‘CAD’and the SoP for IHD did not apply, theAAT was required to apply the processidentified by the High Court in Byrnesand Repatriation Commission (1993) 177CLR 564.

• First, the decision maker must decidewhether all of the material before itraises a reasonable hypothesisconnecting the person’s disease withtheir service – the section 120(3)question.

• Secondly, if a reasonable hypothesisis raised by the material, thedecision maker must decide whetherthe factual foundation for thehypothesis has been disprovedbeyond reasonable doubt – thesection 120(1) question.

The first question of whether areasonable hypothesis is raised is to bedetermined on the whole of the materialbefore the decision maker. Further, areasonable hypothesis is more than an

hypothesis – it is a hypothesis pointed to,and not merely left open, by the materialbefore the decision maker. A reasonablehypothesis is also one that is not tooremote, too fanciful or too tenuous.

As the Full Court said in Hill :

‘…The AAT is not required to trawlthrough voluminous documentation,with a view to seeing whethersomewhere within that body ofmaterial there might be a semblance ofan hypothesis connecting theapplicant’s condition with thecircumstances of his or her service.There is a substantial differencebetween a hypothesis raised by thematerial, and one that can only bepostulated on the basis of speculationor conjecture.

…An hypothesis is neither pointed to,or raised, unless it emerges bothobviously and directly from theevidence in question…’

What the AAT was required to do was todetermine whether the whole of thematerial before it (including all the expertevidence) pointed too:

• the late Mr Byrne suffering CAD;

• that it was related to his service;and

• that it contributed to hisaccidental drowning.

If the AAT found that all of the materialdid not point to these factors then itwould be open to find that thehypothesis was not fairly raised by thematerial and could not be deemedreasonable. As such, the claim would fail.

Repatriation Medical Authority

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Statements of Principles issued bythe Repatriation Medical Authority

July to December 2007

Number of Description of InstrumentInstrument

89 & 90 of 2007 Revocation of Statements of Principles (Instruments Nos 53 & 54 of 2003 asamended by 9 & 10 of 2004) and determination of Statements of Principlesconcerning ischaemic heart disease and death from ischaemic heart disease.

91 & 92 of 2007 Revocation of Statements of Principles (Instruments Nos 47 & 48 of 1998) anddetermination of Statements of Principles concerning hallux valgus and deathfrom hallux valgus.

93 & 94 of 2007 Revocation of Statements of Principles (Instruments Nos 13 & 14 of 1994 asamended by 221 & 222 of 1995) and determination of Statements of Principlesconcerning ingrowing nail and death from ingrowing nail.

95 & 96 of 2007 Revocation of Statements of Principles (Instruments Nos 23 & 24 of 2000) anddetermination of Statements of Principles concerning malignant neoplasm of thebladder and death frommalignant neoplasm of the bladder.

97 & 98 of 2007 Revocation of Statements of Principles (Instruments Nos 69 & 70 of 1995 asamended by 191 & 192 of 1995) and determination of Statements of Principlesconcerning lipoma and death from lipoma.

99 & 100 of 2007 Revocation of Statements of Principles (Instruments Nos 129 & 130 of 1995 asamended by 183 & 184 of 1996 and 45 & 46 of 2003) determination of Statementsof Principles concerning malignant neoplasm of the endometrium and deathfrom malignant neoplasm of the endometrium.

101 & 102 of 2007 Revocation of Statements of Principles (Instruments Nos 1 & 2 of 2000) anddetermination of Statements of Principles concerning anxiety disorder and deathfrom anxiety disorder.

103 & 104 of 2007 Determination of Statements of Principles concerning peritoneal adhesions anddeath from peritoneal adhesions.

105 & 106 of 2007 Determination of amended Statements of Principles concerning shin splints.

107 & 108 of 2007 Revocation of Statements of Principles (Instruments Nos 35 & 36 of 1998) anddetermination of Statements of Principles concerning cirrhosis of the liver.

109 & 110 of 2007 Revocation of Statements of Principles (Instruments Nos 43 & 44 of 1994) anddetermination of Statement of Principles concerning external bruise.

111 & 112 of 2007 Revocation of Statements of Principles (Instruments Nos 5 & 6 of 1995 and No.125 of 1995) and determination of Statements of Principles concerningopisthorchiasis.


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The VRB’s PrincipalRegistry has moved!

We are now located at

280 Elizabeth StreetSURRY HILLS NSW

GPO Box 1631SYDNEY NSW 2001

113 & 114 of 2007 Revocation of Statements of Principles (Instruments Nos 7 & 8 of 1995) anddetermination of Statements of Principles concerning clonorchiasis.

115 & 116 of 2007 Revocation of Statements of Principles (Instruments 288 & 289 of 1995) anddetermination of Statements of Principles concerning sarcoidosis.

117 & 118 of 2007 Revocation of Statements of Principles (Instruments 314 & 315 of 1995) anddetermination of Statements of Principles concerning presbyopia.

119 & 120 of 2007 Revocation of Statements of Principles (Instruments 13 & 14 of 1996) anddetermination of Statements of Principles concerning otosclerosis.

121 & 122 of 2007 Revocation of Statements of Principles (Instruments 73 & 74 of 2007) anddetermination of amended Statements of Principles concerning loss of teeth.

Copies of these instruments can be obtained from Repatriation Medical Authority, GPO Box 1014, BrisbaneQld 4001 or at http://www.rma.gov.au/


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Conditions under Investigation bythe Repatriation Medical Authority

as at 31 December 2007Description of disease or injury SoPs under consideration GazettedAccidental hypothermia Instrument Nos. 376/95 & 377/95 27-06-07Accommodation disorder Instrument Nos. 296/95 & 297/95 2-05-07Acquired cataract Instrument Nos. 37 & 38 of 2001 as amended

by 32/02 & 33/021-03-06

Acute sinusitis Instrument Nos. 209/95 & 210/95 asamended by 328/95 & 329/95

27-06-07

Addison’s disease — 20-12-06Adjustment disorder Instrument Nos. 57/96 & 58/96 8-12-06Alcohol dependence or alcohol abuse Instrument Nos. 76/98 & 77/98 8-11-06Alzheimer’s disease Instrument Nos 17/01 & 18/01 28-03-01Analgesic nephropathy Instrument Nos. 56/94 & 57/94 as amended

by 277/95 & 278/9528-06-06

Ancylostomiasis Instrument Nos. 137/95 & 138/95 2-05-07Animal envenomation Instrument Nos. 162/95 & 163/95 2-05-07Ascariasis Instrument Nos. 135/95 & 136/95 2-05-07Benign neoplasm of the eye Instrument Nos. 1825/95 & 183/95 28-06-06Benign prostatic hypertrophy Instrument Nos. 133/95 & 134/95 28-06-06Binge eating disorder — 15-06-05Bipolar disorder Instrument Nos 128/96 & 129/96 24-03-04Bronchiectasis Instrument Nos. 59/01 & 60/01 20-12-06Buerger’s disease Instrument Nos. 73/95 & 74/95 2-05-06Cardiac myxoma Instrument Nos. 13/98 & 14/98 28-06-06Cerebral meningioma Instrument Nos. 207/95 & 208/95 2-05-07Cervical spondylosis Instrument Nos 50/02 & 51/02, as amended

by Nos 64/02, 81/02 &82/0216-11-05

Chilblains Instrument Nos. 265/95 & 266/95 2-05-07Chronic lymphoid leukaemia Instrument Nos 9/05 & 10/05 09-03-05Chronic rhinosinusitis -Chronic sinusitis Instrument Nos 21/03 & 22/03 11-06-03Cushing’s syndrome Instrument Nos. 249/95 & 250/95 2-05-07Deep vein thrombosis Instrument Nos. 5/01 & 6/01 as amended

by 38/04 & 39/048-11-06

Dental malocclusion Instrument Nos. 372/95 & 373/95 27-06-07Depressive Disorder Instrument Nos. 17/07 & 18/07 10-01-07Dislocation Instrument Nos. 290/95 & 291/95 2-05-07Diverticular disease of the colon Instrument Nos. 67/94 & 68/94 as amended

by 87/97 & 281/9528-06-06

Drug dependence or drug abuse Instrument Nos. 78/98 & 79/98 8-11-06Eating disorders -Effects of lightning Instrument Nos 151/95 & 152/95 as

amended by 197/95 & 198/952-05-07


23 VeRBosity137

Description of disease or injury SoPs under consideration GazettedFibromuscular dysplasia Instrument Nos. 51/97 & 52/97 28-06-06Fibrosing alveolitis -Frostbite Instrument Nos. 166/95 & 167/95 2-05-07Gout Instrument Nos. 11/00 & 12/00 as amended

by 43/03 & 44/0315-10-03

Haemorrhoids Instrument Nos. 26/04 & 27/04 20-12-06Hepatitis B Instrument Nos 11/99 & 12/99 8-11-06Hepatitis C Instrument Nos 43/95 & 44/95 as amended

by 9/97 & 10/978-11-06

Hepatitis D Instrument Nos 45/95 & 46/95 8-11-06Herpes simplex Instrument Nos 342/95 & 343/95 27-06-07Idiopathic fibrosing alveolitis Instrument Nos 15/98 & 16/98 15-06-05Idiopathic thrombocytopaenic purpura Instrument Nos. 19/97 & 20/97 28-06-06Immersion foot Instrument Nos. 168/95 & 169/95 2-05-07Influenza Instrument Nos. 267/95 & 268/95 2-05-07Macular degeneration Instrument Nos. 25 and 26 of 2003 1-03-06Malaria Instrument Nos. 172/95 & 173/95 2-05-07Malignant neoplasm of the brain Instrument Nos 17/03 & 18/03 8-11-06Malignant neoplasm of the cerebral meninges Instrument Nos 205/95 & 206/95 2-05-07Malignant neoplasm of the liver Instrument Nos 171/96 & 172/96 8-11-06Malignant neoplasm of the ovary Instrument Nos 43/97 & 44/97 27-06-07Malignant neoplasm of the renal pelvis Instrument Nos 155/95 & 156/95 27-06-07Methaemoglobinaemia Instrument Nos. 284/95 & 285/95 2-05-07Migraine Instrument Nos. 74/99 & 75/99 30-08-06Nephrolithiasis 178/95 & 179/95 2-05-07Non fatal effects of electric shock and Instrument Nos.149/95 & 150/95death from electrocution

2-05-07

Non-Hodgkin’s lymphoma Instrument Nos. 37/03 & 38/03 20-12-06Osteoarthrosis Instrument Nos. 31/05 & 32/05 20-12-06Panic disorder Instrument Nos. 9/99 & 10/99 as amended

by 58/99 & 59/998-11-06

Personality disorder Instrument Nos. 143/95 & 144/95 asamended by 13/97 & 14/97

8-11-06

Pilonidal sinus Instrument Nos. 176/95 & 177/95 asamended by 312/95 & 313/95

2-05-07

Poisoning and toxic reaction from plants Instrument Nos. 164/95 & 165/95 2-05-07Polymyalgia rheumatica Instrument Nos. 89/96 & 90/96 28-06-06Relapsing polychondritis Instrument Nos. 1/97 & 2/97 28-06-06Rheumatic heart disease Instrument Nos. 93/95 & 94/95 2-05-07Rheumatoid arthritis Instrument Nos. 32/04 & 33/04 30-08-06Sarcoidosis Instrument Nos. 288/95 & 289/95 28-06-06Schistosomiasis Instrument Nos. 255/95 & 256/95 2-05-07Schizophrenia Instrument Nos. 132/96 & 133/96 8-11-06Scrub typhus Instrument Nos. 25/95 & 26/95 27-06-07Sickle-cell disease Instrument Nos. 109/95 & 110/95 as

amended by 193/95 & 194/9528-06-06


23 VeRBosity138

Description of disease or injury SoPs under consideration GazettedSinus barotrauma Instrument Nos. 316/95 & 317/95 2-05-07Smallpox Instrument Nos. 141/95 & 142/95 8-11-06Soft tissue sarcoma Instrument Nos 13/06 & 14/06 10-05-06Spasmodic torticollis Instrument Nos. 33/97 & 34/97 28-06-06Strongyloidiasis Instrument Nos. 282/95 & 283/95 2-05-07Subarachnoid haemorrhage Instrument Nos. 39/03 & 40/03 20-08-03Substance induced mood disorder — 28-02-07Suicide or attempted suicide Instrument Nos. 71/96 & 72/96 as amended

by 177/96 & 178/968-11-06

Trigeminal neuralgia Instrument Nos. 23/95 & 24/95 28-06-06Ureteric calculus Instrument Nos. 180/95 & 181/95 2-05-07

23 VeRBosity139

AAT and Court decisions –July to September 2007

AATA = Administrative Appeals TribunalHCA = High Court of AustraliaFCA = Federal CourtFCAFC = Full Court of the Federal CourtFMCA = Federal Magistrates CourtSRCA = Safety, Rehabilitation and CompensationAct 1988Seafarers RCA

= Seafarers Rehabilitation and Compensation Act 1992

Allowances and benefitstreatment

- review rightsrefusal to provide circulation socksMiller D[2007] AATA 1753 11 Sept 2007

Recreation Transport AllowanceCobley, T[2007] AATA 1968 19 Nov 2007

CarcinomaNon hodgkin’s lymphoma

Gittins, A (Army) (death)[2007] FCA 1380 30 August 2007

brain tumour- solvent

Turner, R[2007] AATA 1446 20 June 2007

colon- obesity

Hunt, V (RAAF) (death)[2007] AATA 1404 6 June 2007

pancreas- smoking

Griffiths, Marie[2007] AATA 1871 18 Oct 2007

prostate- contribution by chronic bronchitis

LPR of McNeill, F (RAAF) (death)[2007] AATA 1984 23 Nov 2007

- high fat dietTunks, V (Navy) (death)[2007] AATA 1416 8 June 2007Ryan, J (Navy) (death)[2007] AATA 1648 8 August 2007Dunn, D. E (Navy) (death)[2007] AATA 1996 28 Nov 2007

Circulatory disorderatrial fibrillation

- alcoholNoud, K D (Army)[2007] AATA 1408 6 June 2007Beaumont, A E R (RAAF)[2007] AATA 1475 27 June 2007

cardiomyopathy- alcohol

Noud, K D (Army)[2007] AATA 1408 6 June 2007

cerebrovascular accident- alcohol

Markham, B (Navy) (death)[2007] AATA 1422 8 June 2007Hall, R (Navy) (death)[2007] AATA 1514 6 July 2007Hall, R ( Navy) (death)[2007] FCA 2021 18 Dec 2007Lonergan, M (Army) (death)[2007] AATA 1924 5 Nov 2007

- hypertensionSergeant, J (RAAF) (death)[2007] FCA 1408 10 Sept 2007

Cairns, A (Army) (death)[2007] AATA 1682 21 August 2007

- inability to undertake physical activityCondon, M P (death)[2007] AATA 1647 8 August 2007

- intracerebral space occupying lesionHadfield, M (Army) (death)[2007] AATA 1559 18 July 2007Fremantle, C (Navy)[2007] AATA 2109 21 Dec 2007

- intracranial surgeryFremantle, C (Navy)[2007] AATA 2109 21 Dec 2007

- smokingMarkham, B (Navy) (death)[2007] AATA 1422 8 June 2007

23 VeRBosity140

Coronary artery disease- whether contributed to death by drowning

Byrne, M (Army) (death)[2007] FCAFC 126 13 August 2007

hypertension- anxiety disorder

Stewart C J (Navy)[2007] AATA 1598 27 July 2007Sergeant, J (RAAF) (death)[2007] FCA 1408 10 Sept 2007Collins, E[2007] FCAFC 111 27 July 2007

- depressive disorderScott A (Navy)[2007] AATA 1809 13 September 2007

Caldwell, J (RAAF)[2007] AATA 1640 6 August 2007

ischaemic heart disease- inability to undertake physical activity

Bell, M[2007] AATA 1720 31 August 2007

- hypertensionCollins, E[2007] FCAFC 111 27 July 2007

- smokingBeaumont, A E R (RAAF)[2007] AATA 1475 27 June 2007Rupenovic, W L (Navy)[2007] AATA 1711 29 August 2007

Rowe, M A (RAAF)[2007] AATA 1992 29 Nov 2007

Deathaccidental death

- boating accidentWhether coronary artery diseasecontributed to drowningByrne, M (Army) (death)[2007] FCAFC 126 13 August 2007

- tractor accidentWhether lumbar spondylosis affectedability to jump clearGardiner, P (Army) (death)[2007] FCA 1290 21 August 2007

- train collision- lack of concentration due to anxietydisorderCodd (Gordon J)[2007] FCA 877 15 June 2007

- standard of proof- balance of probabilitiesWillman, M[2007] AATA 1480 28 June 2007

kind of death- correct diagnosis

Willman, M[2007] AATA 1480 28 June 2007

- death by road accidentCodd (Gordon J)[2007] FCA 877 15 June 2007

- meaningCodd (Gordon J)[2007] FCA 877 15 June 2007

Eligible servicequalifying service

- whether allotted for duty in an operationalarea

Lobegeiger, R[2007] AATA 1593 26 July 2007Upton, J[2007] AATA 1573 23 July 2007

- whether incurred danger from hostileforces of the enemy- flights over BalikpapanStrawhorn, L A (RAAF)[2007] AATA 1793 21 Sept 2007

Endocrine disorderDiabetes mellitus

- smokingDaniel, G W (Army)[2007] AATA 1548 16 July 2007

- inability to undertake psychical activityNicks, F R (Army)[2007] AATA 1970 19 Nov 2007

- obesityScott A (Navy)[2007] AATA 1809 13 September 2007

Evidence and proofstandard of proof for determining death fromaccepted disability- reasonable satisfaction (balance ofprobabilities)

Willman, M[2007] AATA 1480 28 June 2007

23 VeRBosity141

standard of proof for determining kind of injuryor disease- reasonable satisfaction (balance ofprobabilities)

Warren (Kiefel J)[2007] FCA 866 8 June 2007

Gastrointestinal disorderirritable bowel syndrome

- psychiatric disorder- alcohol dependenceWatson, J (Army)[2007] AATA 1688 23 August 2007White, C (Army)[2007] AATA 2003 30 Nov 2007

Haematological disorderMyelofibrosis

- benzene exposureFarley-Smith, G[2007] FCA 1058 18 July 2007

Haemochromatosis- alcoholShanahan, F (navy) (death)[2007] AATA 2028 10 Dec 2007

Injury or diseaseclinical onset

- meaningWarren (Kiefel J)[2007] FCA 866 8 June 2007

Jurisdiction and powersAdministrative Appeals Tribunal

- refusal to provide circulation socks- no jurisdictionMiller D[2007] AATA 1753 11 Sept 2007

Musculoskeletal disorderchondromalacia patellae

- appropriate clinical managementRiley, D (Army)[2007] AATA 1689 24 August 2007

Cervical spondylosis- trauma

Bailey, T R (Navy)[2007] AATA 2089 21 Dec 2007

Lumbar spondylosis- trauma

Watt, I (Navy)[2007] AATA 1536 11 July 2007Bailey, T R (Navy)[2007] AATA 2089 21 Dec 2007

osteoarthrosis- hip

- liftingNewson, C (RAAF)[2007] AATA 1539 11 July 2007

- knee- liftingNewson, C (RAAF)[2007] AATA 1539 11 July 2007

Practice and procedureFailure to accord procedural fairness- Not allowing parties to make submissions inrelation to material considered

Farley-Smith, G[2007] FCA 1058 18 July 2007

Extent of review on remittal- not confined to the question of law considered

Peacock, G[2007] FCAFC 156 26 Sept 2007

Psychiatric disorderadjustment disorder

- experiencing psychosocial stressor- heart condition

Hardman, G (Navy)[2007] AATA 2069 19 Dec 2007

- no clinical worseningHassett, S J (RAAF)[2007] AATA 1608 31 July 2007

23 VeRBosity142

alcohol abuse or dependence- clinical onset

Caldwell, J (RAAF)[2007] AATA 1640 6 August 2007

- diagnosis- diagnostic criteria not metDaines, R H (Navy)[2006] AATA 716 18 August 2006Brady, W[2007] FCA 1087 31 July 2007

- experiencing a severe stressor- casualties observedCostello, G J (Army)[2007] AATA 1673 17 August 2007

- chronic painHarp, N (Navy)[2007] AATA 1612 31 July 2007

- civilian airline incidentWarner, R (Navy)[2007] AATA 1756 13 Sept 2007

- danger from minesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- drills and exercisesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- drunken superiorStewart C J (Navy)[2007] AATA 1598 27 July 2007

- guard duty unarmedFanna, F D (Army)[2007] AATA 1665 13 August 2007

- handling casualty figuresRenton, D K (Army)[2007] AATA 1621 2 August 2007

- hit by a whisky bottleRichardson, R[2007] AATA 2057 14 Dec 2007

- machine gun incidentStewart C J (Navy)[2007] AATA 1598 27 July 2007

- mortar explosionsMoseley (Army) 29 October 2007[2007] AATA 1898 29 October 2007

- picket dutyMoseley (Army) 29 October 2007[2007] AATA 1898 29 October 2007

Richardson, R[2007] AATA 2057 14 Dec 2007

- rifle trained on East Timorese civiliansWhite, C (Army)[2007] AATA 2003 30 Nov 2007

- rocket attackRichardson, R[2007] AATA 2057 14 Dec 2007

- sampan blown upRushworth, K M (Navy)[2007] AATA 1466 25 June 2007Holt, L J (Navy)[2007] AATA 1546 13 July 2007

- shooting incidentRenton, D K (Army)[2007] AATA 1621 2 August 2007Stewart C J (Navy)[2007] AATA 1598 27 July 2007

- shooting of restaurantFanna, F D (Army)[2007] AATA 1665 13 August 2007

- threat of air attackPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- threatened by soldier with macheteWatson, J (Army)[2007] AATA 1688 23 August 2007

- video of casualtiesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- inability to obtain appropriate clinicalmanagement

Carroll, G F (Army)[2007] AATA 1532 10 July 2007

- psychiatric disorder- post traumatic stress disorderWoodward, G (Navy)[2006] AATA 1099 20 December 2006

Howlett J A (Navy)[2007] AATA 1736 6 Sept 2007

anxiety disorder- diagnosis

- diagnostic criteria not metDaines, R H (Navy)[2006] AATA 716 18 August 2006Nicholson, G[2007] AATA 1518 6 July 2007Knight, B W[2007] AATA 1520 6 July 2007Brady, W[2007] FCA 1087 31 July 2007

23 VeRBosity143

- no stressor identifiedDencher, P[2007] AATA 1530 10 July 2007

- experiencing a severe psychosocial stressor- apprehending thiefDavis, W[2007] AATA 1722 24 July 2007

- bar incidentDavis, W[2007] AATA 1722 24 July 2007

- causalities observedDavis, W[2007] AATA 1722 24 July 2007

- civilians affected by militia violenceKeep, K M (Army)[2007] AATA 1409 6 June 2007

- drunken superiorStewart C J (Navy)[2007] AATA 1598 27 July 2007Fanna, F D (Army)[2007] AATA 1665 13 August 2007

- handling casualty figuresRenton, D K (Army)[2007] AATA 1621 2 August 2007

- immolation incidentDavis, W[2007] AATA 1722 24 July 2007

- Loading coffins/body bagsMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- machine gun incidentStewart C J (Navy)[2007] AATA 1598 27 July 2007Higgs, R L (Army)[2007] AATA 1538 11 July 2007

- murder scene visit

Keep, K M (Army)[2007] AATA 1409 6 June 2007

- Night flying training exercisesMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- Operation Iron FoxMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- patrolling in East TimorKeep, K M (Army)[2007] AATA 1409 6 June 2007Salkeld, P (Navy)[2007] AATA 1482 28 June 2007

- Periods of high alertMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- perimeter guard dutiesMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- Re-supply of convoy vehiclesMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- Re-supply sorties to fire support baseMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- rocket attacksMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- SAS or army battalion insert sortiesMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- sea sicknessCunningham (Navy)[2007] AATA 1790 21 Sept 2007

- shooting incidentRenton, D K (Army)[2007] AATA 1621 2 August 2007Stewart C J (Navy)[2007] AATA 1598 27 July 2007

Davis, W[2007] AATA 1722 24 July 2007

- shooting at restaurantFanna, F D (Army)[2007] AATA 1665 13 August 2007

- Sniffer missions over Long Son IslandMaclean, R J (RAAF)[2007] AATA 1855 16 Oct 2007

- sword incidentDavis, W[2007] AATA 1722 24 July 2007

- psychiatric condition- depressive disorderWallace, I J (Army)[2007] AATA 1697 27 August 2007

Depressive disorder- experiencing a severe stressor

- bombardment missions in KoreaGiger, V (Navy) (death)[2007] AATA 2000 30 Nov 2007

- casualties observedSpencer, J (Army) 17 Sept 2007[2007] AATA 1769

23 VeRBosity144

Wallace, I J (Army)[2007] AATA 1697 27 August 2007

- caribou crashCaldwell, J (RAAF)[2007] AATA 1640 6 August 2007

-chronic painHarp, N (Navy)[2007] AATA 1612 31 July 2007

- clearance patrolSpencer, J (Army) 17 Sept 2007[2007] AATA 1769

- civilians affected by militia violenceKeep, K M (Army)[2007] AATA 1409 6 June 2007

- danger from minesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- drills and exercisesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- downed helicopterSpencer, J (Army) 17 Sept 2007[2007] AATA 1769

- fire support baseSpencer, J (Army) 17 Sept 2007

[2007] AATA 1769- flare incident

Spencer, J (Army) 17 Sept 2007[2007] AATA 1769

- flying missions in India/PakistanCaldwell, J (RAAF)[2007] AATA 1640 6 August 2007

- jungle eventSpencer, J (Army) 17 Sept 2007[2007] AATA 1769

- martial breakdownScott A (Navy)[2007] AATA 1809 13 September 2007

- murder scene visitKeep, K M (Army)[2007] AATA 1409 6 June 2007

- patrolling in East TimorKeep, K M (Army)[2007] AATA 1409 6 June 2007

- sampan blown upRushworth, K M (Navy)[2007] AATA 1466 25 June 2007

- South Vietnamese Re-education facilitySpencer, J (Army) 17 Sept 2007[2007] AATA 1769

- threat of air attackPress, J W (RAAF)[2007] AATA 1457 22 June 2007

- wet canteen incidentSpencer, J (Army) 17 Sept 2007[2007] AATA 1769

- video of casualtiesPress, J W (RAAF)[2007] AATA 1457 22 June 2007

pathological gambling- psychiatric disorder

- anxiety disorderKeep, K M (Army)[2007] AATA 1409 6 June 2007

- depressive disorderKeep, K M (Army)[2007] AATA 1409 6 June 2007

Phobia of medical interventionGittins, A (Army) (death)[2007] FCA 1380 30 August 2007

post traumatic stress disorder- diagnosis

Caldwell, J (RAAF)[2007] AATA 1640 6 August 2007Ellis, M (RAAF)[2007] AATA 1714 30 August 2007Drew, B[2007] AATA 2040 11 Dec 2007White, A J (Navy)[2007] AATA 1949 14 Nov 2007

- experiencing a severe stressor- American serviceman blown up by amine in the harbour at Vung TauMidgley (Navy)[2007] AATA 2029 10 Dec 2007- Bombay incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- diving incident in Hong KongRobertson, P (Navy)[2007] FCA 1674 4 Dec 2007

- fire in HMAS supplyRobertson, P (Navy)[2007] FCA 1674 4 Dec 2007

- garbage run incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- general fear of minesMidgley (Navy)[2007] AATA 2029 10 Dec 2007

23 VeRBosity145

- grenade attackGrant, R H (Army)[2007] AATA 1847 10 Oct 2007

- hit by a whisky bottleRichardson, R[2007] AATA 2057 14 Dec 2007

- Hong Kong incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- lack of recognition by the Australianpublic of Vietnam VeteransMidgley (Navy)[2007] AATA 2029 10 Dec 2007- picket dutyRichardson, R[2007] AATA 2057 14 Dec 2007

- propeller incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- proximity to HMAS MelbourneRobertson, P[2007] FCA 1674 4 Dec 2007

- rifle trained on East Timorese civiliansWhite, C (Army)[2007] AATA 2003 30 Nov 2007

- rocket attackRichardson, R[2007] AATA 2057 14 Dec 2007

- sampan incidentHowlett J A (Navy)[2007] AATA 1736 6 Sept 2007

- scare chargeHowlett J A (Navy)[2007] AATA 1736 6 Sept 2007

- self-immolation of monkGrant, R H (Army)[2007] AATA 1847 10 Oct 2007

- sentry dutyLea, R (Navy)[2007] AATA 1358 24 May 2007

Falzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- shooting by White Mice in VietnamNoud, K D (Army)[2007] AATA 1408 6 June 2007

- Subiac Bay incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- tugboat incidentFalzun, P (Navy)[2007] AATA 1743 7 Sept 2007

- warning of incoming missileSchizophrenia

- clinical managementHoward, N[2007] AATA 1500 2 July 2007

Remunerative work & special rate ofpensionameliorating provision

Trewartha, K[2007] AATA 2080 20 Dec 2007

earnings on his or her own account- income protection policy payments

Nelson, K A[2007] AATA 1597 27 July 2007

- partnership incomeMcDonald, J. A[2007] AATA 1980 23 Nov 2007

- projected and actual earningsStanhope, H[2007] AATA 1916 2 Nov 2007

ceased to engage in remunerative work- war-caused conditions

Goodwin, M[2007] AATA 1619 2 August 2007Godwin, J R[2007] AATA 1701 28 August 2007

kind of work the person was undertaking- transport industry

- truck driverDobson, K L[2007] AATA 1414 7 June 2007

remunerative work- able to work at least 8 hours a week

Pill, G[2007] AATA 1989 28 Nov 2007

- able to work more than 20 hours a weekStrugnell, E[2007] AATA 2094 21 Dec 2007

- part-time remunerative work same type asthe full-time remunerative work

Mitchell, C L[2007] AATA 2087 21 Dec 2007

23 VeRBosity146

- remunerative or therapeutic workWhitehead, S[2007] AATA 2077 20 Dec 2007

- whether real or substantiveMorris, J R[2007] AATA 1445 20 June 2007

- whether genuinely seeking to engage inremunerative work- domestic arrangement rather than genuineattempt

Neilsen, N[2007] AATA 1451 21 June 2007

whether prevented by war-caused disabilitiesalone- effects of non-accepted disabilities

Barry, R[2006] AATA 834 28 September 2006Buhagiar, M C[2007] AATA 1406 6 June 2007Horsley, D G[2007] AATA 1461 22 June 2007Hamence, R D[2007] AATA 1735 6 Sept 2007Cameron, I[2007] AATA 2067 19 Dec 2007Miller, S[2007] AATA 2058 11 Dec 2007

- financial benefitsThirkell, N J[2007] AATA 1552 17 July 2007

- redundancyMilke, P[2007] AATA 1534 11 July 2007Tronc, K[2007] AATA 1940 12 Nov 2007

- retirementCameron, P[2007] AATA 1836 5 Oct 2007

- subsequent injurySchafferius, N[2007] AATA 2001 30 Nov 2007

- time out of the workforceGibbs, B[2007] AATA 1899 30 Oct 2007

Respiratory disorderchronic bronchitis

- smokingBeaumont, A E R (RAAF)[2007] AATA 1475 27 June 2007

Pneumonia- smoking

Cowan, M (Army)[2007] AATA 1928 6 Nov 2007

Service pensionassets test

- compensation by Court orderJefferis, J[2007] AATA 1932 9 Nov 2007

- stakeholding and loan in companyMein, J[2007] AATA 1560 18 July 2007

- unrecoverable loansWoolley, A J[2007] AATA 2059 14 Dec 2007

- value of metropolitan taxi licenceMurray, E M[2007] AATA 1618 1 August 2007

Overpayment- failure to notify change in circumstances

Hutton, R[2007] AATA 2108 24 Dec 2007

pension bonus scheme- ineligible if received age pension

De Lisle, R B[2007] AATA 1453 21 June 2007

- accrual of bonus periodKelly, L[2007] AATA 1998 30 Nov 2007

verbosity - veterans' review board · guide to war widows’ pensions 23 verbosity 85 death...

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