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No.12 April 2008

Repatriation Commission v Warren

[2008] FCAFC 64

COURT Federal Court, Brisbane
JUDGE  Lindgren, Bennett and Logan JJ
DATE OF DECISION 24 April 2008
DECISION Appeal dismissed
ISSUES Whether AAT was entitled to rely on a concession made by the Commission - true meaning and effect of the concession

Facts

Mr Warren rendered operational service in South Vietnam between January 1971 and March 1972. He made a disability pension claim for post traumatic stress disorder (PTSD) and major depression.  His claim was rejected by a delegate of the Repatriation Commission (Commission) and the Veterans’ Review Board (VRB).  Mr Warren sought review by the Administrative Appeals Tribunal (Tribunal).

At the hearing before the Tribunal, the advocate for the Commission conceded the diagnosis of PTSD. As a result, the Tribunal decided that Mr Warren suffered from war-caused PTSD and war-caused alcohol dependence and set aside the Commission’s decision to reject his claim.

Federal Court’s reasoning 

The Commission appealed to the Federal Court on the issue of diagnosis. It contended that the Tribunal was required to be satisfied that the diagnostic criteria for PTSD and alcohol dependence were met, by reference to the relevant SoPs. Further, the Commission contended that the Tribunal was not entitled to act upon the concession, as it had a statutory duty to decide the question of whether the respondent suffered from the condition for itself.  Justice Kiefel held that diagnosis of a psychiatric disease is to be based on the descriptions in DSM-IV, and that was there was nothing to prevent the Tribunal accepting the Commission’s concession, which was clear in its terms and was made in the background of evidence of a diagnosis of PTSD. As such, the appeal was dismissed.

Grounds of appeal

The Commission appealed to the Full Federal Court. It contended that the Tribunal was not entitled to act on the concession made by the Commission, and so was obliged to satisfy itself that both clause 2 and 5 of the respective SoPs were satisfied.  Specifically, the Commission contended that Mr Warren did not fulfil the criteria for a diagnosis of PTSD according to clause 2(b) of the SoP for PTSD and that the medical evidence did not substantiate such a diagnosis.

The Court’s consideration  

Lindgren and Bennett JJ

What was the true meaning and effect of the concession?

Their Honours considered that the concession made and accepted by the Tribunal was that, for the purposes of the SoP for PTSD, Mr Warren suffered from PTSD characterised and defined by the factors referred to in cl 2(b) of that SoP.  The effect of the concession was that Mr Warren was entitled to succeed unless the Commission was satisfied beyond reasonable doubt that cl 5(a) of the SoP for the PTSD was not satisfied.

Was the Tribunal entitled to act on the concession?

In their Honours’ opinion:

[83]… the Commission has not established any error of law on the part of the Tribunal in failing to disregard the concessions and to assume for itself the task of checking, one by one, that the various diagnostic factors laid down in cl 2(b) of the SoP for PTSD were present on the evidence. If the parties had agreed that the SoP for PTSD was not relevant, the Tribunal would have been bound to disregard their agreement. However, the concessions made were of a factual nature that did not undermine the statute. They were of the same nature as, for example, a concession that Mr Warren had served in Vietnam or that he had experienced the two events there. The parties and the Tribunal did not proceed on an incorrect understanding of the provisions of the VE Act or of their application. The concessions were of facts susceptible of admission.

[85] In the absence of the concession, or if the concession were only of a medical diagnosis that did not conform with cl 2(b) of the SoP, the Tribunal would have been obliged to determine for itself whether each of the factors in cl 2(b) had been established on the evidence. This would have been the case whether or not the matter had been raised by the parties (Grant) and the Commission would have been entitled to raise the Tribunal’s omission on appeal (Thomas; Ferriday).

[86] There is a distinction between failing to rely on non-satisfaction of a statutory requirement at trial, and a concession of satisfaction of a statutory test. A party who has conceded a matter should only be allowed to make the absence of what has been conceded to be present the basis for overturning the result in exceptional circumstances (Kuswardana). There are no such exceptional circumstances in the present case.

Logan J

Justice Logan agreed that the appeal should be dismissed.  Specifically, his Honour considered that the practical effect of the concession made before the Tribunal was that it left only the question of whether factor 5(a) in the PTSD SoP was satisfied. However, his opinion differed from Lindgren and Bennett JJ in relation to:

[101]… whether it is open to contend that because the diagnosis that a clinician has made does not fit a SoP template, there is no SoP in respect of the disease for which the veteran has made his or her claim.

His Honour’s comment above was made in reference to Lindgren and Bennett JJ observation:

[25]…If the clinician’s diagnosis of PTSD is not upheld by the SoP for the kind of disease known as PTSD, there will not be a reasonable hypothesis connecting Mr Warren’s disease with his service for the purposes of s 120(3) of the VE Act.

Justice Logan noted that in relation to an injury or disease or death that falls outside the "kind of" injury, disease or death as defined in a SoP, the question of whether that injury, disease or death is war caused will fall for determination by reference to ss 120(1) and 120(3) of the VEA alone. The meaning and application of those subsections is explained in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564. His Honour did not consider that this difference affected the outcome of the appeal.

Formal decision

Their Honours held that the Tribunal was entitled to act on the concession, and that there was no error of law in failing to satisfy itself independently that the other criteria were satisfied.  As such, the Commission’s appeal was dismissed.

Editorial Note

The Commission’s appeal to the Full Federal Court in Warren essentially concerned step 2 of Deledio, identifying the statement of principles.   At step 2 of Deledio, if a hypothesis of connection is raised, it is important for the decision maker to carefully consider the definition set out in the relevant SoP to determine whether or not it covers the applicant’s injury or disease.

In this case, the Full Court considered that the Commission’s concession before the Tribunal was not limited to “pre Deledio diagnosis” but also encompassed stage 1, 2 and 3 of Deledio. The only issue that was not covered by the Commission’s concession concerned step 4 of Deledio, which the Tribunal addressed by considering clause 5 of the SoP concerning PTSD.

In cases that involve PTSD, it is relevant to keep in mind that the diagnostic criteria includes identification of a causal factor. As diagnosis of a claimed condition must be determined on the balance of probabilities, where PTSD is accepted as the correct diagnosis its connection to service will  usually be a mere formality.1

Further reading: Please see VeRBosity Volume 23 No 1 pages 42 to 44 for further discussion regarding Justice Kiefel’s decision in Warren.


1Mines v Repatriation Commission [2004] FCA 1331

All Practice Notes