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Repatriation Commission v Holden

[2014] FCA 605

COURT Federal Court, Melbourne
JUDGE Mortimer J
DECISION The appeal was allowed
ISSUES Widow’s pension claim - whether Tribunal erred in construction of phrase “sufficient to warrant ongoing management” - whether there was no evidence on which the Tribunal’s conclusions could be based - whether the Tribunal complied with the requirement to give reasons under s43 of the AAT Act


Mr Holden had operational service during WWII with the Australian Army from 17 April 1944 to 12 November 1946, primarily on small army ships in the south-west Pacific region. 

After Mr Holden’s death in August 2011, Mrs Holden lodged a war widows’ claim.  Her claim was refused by a delegate of the Repatriation Commission (the Commission).  The Veterans’ Review Board affirmed the Commission’s decision.  Mrs Holden sought further review by the Administrative Appeals Tribunal (the Tribunal), and she was successful.  The Tribunal set aside the Commission’s decision and substituted a decision that Mrs Holden be granted a war widow’s pension.  The Commission appealed to the Federal Court.

The Tribunal’s decision

The hypothesis put forward on behalf of Mrs Holden was that Mr Holden’s death from ischaemic heart disease (IHD) was war-caused, because there were events during his service which caused him to develop post traumatic stress disorder (PTSD), and PTSD was a factor in his development of IHD. 

On review the Tribunal identified three issues.  Firstly, the “kind of death” suffered by the veteran, which the Tribunal found to be ischaemic heart disease.  This was not contested on appeal. 

Secondly, whether the veteran suffered from PTSD and, if so, whether it was war-caused.  The parties accepted this question involved a posthumous diagnosis, mainly by reference to accounts by Mrs Holden and documentary information, including clinical records.  The Tribunal focussed on one “traumatic event” for the purposes of a diagnosis of PTSD, which was Mr Holden’s experience of a severe storm off the coast of Papua New Guinea which flooded the supply ship to which he was assigned and made everyone on board sick.  The ship had to be towed to safety and repaired.  Accounts given by Mr Holden to his wife in 2010, and a psychiatrist in 2009, involved descriptions that he thought the ship was going to sink and he was terrified he would die.  The Tribunal preferred the opinions of two psychiatrists (one of whom had undertaken a consultation with Mr and Mrs Holden before Mr Holden died) over the opinion of a neuropsychologist, in concluding Mr Holden met the diagnostic criteria set out in the relevant Statement of Principles (SoP) concerning PTSD.  The Tribunal then went through the Deledio steps and concluded that Mr Holden’s PTSD was war-caused, finding the clinical onset  of PTSD occurred after Mr Holden’s operational service. 

Thirdly, whether the veteran’s PTSD contributed to his death from IHD.  The questions of law raised by the Commission on appeal relate to paragraphs [47] - [49] of the Tribunal’s reasons:

In relation to the third step from Deledio the Tribunal has considered all the material and forms the opinion that the hypothesis raised is a reasonable one. Therefore the veteran satisfies the third step.

In relation to the fourth step from Deledio, the Tribunal finds that the veteran’s PTSD was sufficient to warrant ongoing management, even though there is no evidence that he visited a psychiatrist, clinical psychologist or general practitioner. Consequently the veteran’s PTSD was a clinically significant anxiety spectrum disorder and the veteran satisfies factor 6(rr)(iv) of SoP Nº 89 of 2007 (as amended by SoP Nº 43 of 2009) and satisfies the fourth step. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that the veteran’s IHD contributed to his death. Therefore his death was war-caused within the meaning of s 8 of the Act. Consequently there is no need for the Tribunal to make a finding as to the causal connection between the veteran’s IHD and hypertension.

(Emphasis added.)

The Court’s consideration

The first question of law was whether the Tribunal correctly construed the phrase “sufficient to warrant ongoing management” for the purposes of the relevant SoP.  The Court was of the opinion that the Tribunal’s reasons did not disclose any misconstruction of that phrase.  The parties agreed that the phrase is not directed solely at whether in fact a veteran obtained management for a clinically significant anxiety spectrum disorder, rather “sufficient to warrant” refers to an objective judgment to be made by the Tribunal on the basis of the evidence at the time of the review.  Counsel for the Commission conceded the phrase does not require that there be any expert or medical opinion that management of the condition is warranted, and accepted that “warrant” means in this context “justify”.  The Court indicated that, construed as a whole, the phrase is clearly intended to require a decision-maker to form an opinion about the level or severity of the PTSD condition suffered by the veteran.  The Court considered a fair reading of earlier parts of the Tribunal’s reasons shows an awareness of the need to look for a level of PTSD which was clinically significant, and which required ongoing management as an indicator of severity.

Through its second question of law, the Commission contended that the Court should find there was no evidence on which the Tribunal’s conclusions at [47] - [48] of its reasons were based.  The Commission conceded that this contention presented a high threshold, as well as involving an analysis which, if not carefully delineated, could slide into a review of the merits of the decision.  The Court considered the real problem was the failure of the Tribunal to identify the evidence or material on which it based its findings, and it was not a case where there was no foundation in the evidence or material on which the Tribunal could base its finding that Mr Holden’s PTSD was a disorder of sufficient severity to warrant ongoing management.  The Court gave examples of medical evidence from Mr Holden’s treating doctor and the two psychiatrists, which, together with Mrs Holden’s evidence, were all capable of providing an evidentiary foundation for the Tribunal’s findings.

The third question of law concerned the Tribunal’s obligations to give reasons pursuant to ss 43(2) and 43(2B) of the AAT Act.  Regarding s 43(2B), the Court considered the obligation was twofold:

[77] …The Tribunal must set out its findings on material questions of fact, and it must include “a reference” to the evidence or other material on which those findings are based… 

After reviewing the relevant case law regarding the s 43(2B) obligation, the Court considered there was only partial, and insufficient, compliance by the Tribunal with s 43(2B).  At [48] of its reasons, the Tribunal made a finding on material facts, but it did not explain why it had done so, or include any reference to the evidence or other material on which its finding was based.  The Tribunal was required to record in more detail its explanation of the findings it made.

The Court’s Decision

The appeal was allowed.  The Tribunal’s decision was set aside, and the Court directed the Tribunal to provide further reasons for its findings at [48] and make a fresh decision under s 43(1), together with those further reasons.

Editorial Note

The Court noted its decision preserves the ability of the Tribunal to make a different decision on the review if, after further exposition of its reasoning process, it considers a different decision to be the correct or preferable one.  It strikes a balance between addressing the complaint made by the Commission, which the Court upheld, preserving the Commission’s appeal rights if error is revealed, but gave effect to the clear merits of the decision as seen by the Tribunal.

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