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McKinley v Repatriation Commission

[2015] FCA 145

COURT Federal Court, Melbourne
JUDGE Pagone J
DATE OF DECISION 2 March 2015
DECISION The appeal was dismissed
ISSUES Claim for PTSD and alcohol abuse – whether Tribunal failed to afford procedural fairness – whether Tribunal took into account an irrelevant consideration – whether decision affected by actual or apprehended bias – whether findings irrational, illogical or manifestly unreasonable – whether Tribunal failed to make independent inquiries – whether Tribunal failed to provide adequate reasons for its factual findings – whether Tribunal failed to apply the correct standard of proof in relation to factual findings

Facts

The applicant, Ms McKinley, served in the Australian Army from 12 February 1986 to 12 October 2005. Relevantly, she had operational service in East Timor from 10 October 1999 to 1 February 2000. The applicant suffered injuries to her knee and ankle which were accepted as war-caused, and receives a disability pension at 60% of the general rate for those injuries.

On 30 November 2012 the applicant applied to have posttraumatic stress disorder (PTSD) and alcohol abuse accepted as war-caused, and to have her pension increased to the special rate. Her previous claim for PTSD in 2005, which a delegate of the Repatriation Commission diagnosed as generalised anxiety disorder, was refused, and that decision was affirmed by the Veterans’ Review Board (VRB). The VRB’s decision was affirmed by the Administrative Appeals Tribunal (Tribunal). The evidence in that application to the Tribunal included a statement by the applicant dated 17 October 2005 and a report by Writeway Research Service Pty Ltd dated 11 August 2006, which was also part of the material before the Tribunal in the present case.

On 3 December 2012 a delegate of the Repatriation Commission decided the appropriate diagnoses were generalised anxiety disorder and alcohol dependence, and found that neither condition was war-caused. The decision was affirmed by the VRB, and that decision in turn was affirmed by the Tribunal. The applicant appealed to the Federal Court.

Grounds of appeal

The appeal challenged the Tribunal’s use of the Writeway report, contending the Tribunal had committed a number of errors of law:

  1. Did the Tribunal fail to afford the applicant procedural fairness because it did not give the applicant sufficient notice that it would place considerable reliance on the Writeway report in preference of the Applicant’s evidence?
  2. Did the Tribunal take into account an irrelevant consideration in assessing the reliability of the Writeway report, namely its impression of previously prepared Writeway reports?
  3. Was the decision of the Tribunal actuated by real or apparent bias in considering the Writeway report favourably (and preferentially) in light of previous experiences with the Writeway company?
  4. Did the Tribunal make a finding that was irrational or illogical and/or manifestly unreasonable in determining that the applicant did not suffer from a category 1A or 1B stressor linking her [general anxiety disorder] to her service for the purposes of the applicable Statement of Principle as a result of preferring a Writeway report to the applicant’s evidence?
  5. Did the Tribunal fail to make its own independent inquiries, as it was bound to do by law, by neglecting to suggest that the author of the Writeway report be called to give evidence given the weight it intended to attach to the content of the report, to the prejudice of the applicant?
  6. In considering the applicant’s evidence of observing injured persons at the hospital in Dili (at [93]), did the Tribunal err in any of the following respects:
    1. By failing to find that the material, particularly Ms McKinley’s evidence, disclosed and pointed to a reasonable hypothesis that the applicant had indeed witnessed critically injured casualties?
    2. By failing to provide adequate or sufficient reasons for its finding that the applicant did not witness critically injured patients or patients who had lost limbs, and in doing so breaching s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)?
  7. Did the Tribunal give adequate and sufficient reasons as it was obliged to under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) for its determination that the applicant:
    1. Did not suffer from an injury or disease being [post-traumatic stress disorder]?
    2. Did not suffer from war-caused General Anxiety Disorder or alcohol abuse or dependence?
  8. Did the Tribunal satisfy itself beyond reasonable doubt, as it was required to do under s 120 of the Veterans’ Entitlements Act 1986 (Cth), that the applicant’s [general anxiety disorder] and alcohol dependence were not war-caused?

The Court's consideration

Question 1

The Court indicated it was clear from the Tribunal’s decision that the applicant was afforded procedural fairness in relation to the Writeway report. The report had been included in the documents before the Tribunal and had been provided to the applicant, and her legal advisers, for the proceeding. It was clearly known to the applicant’s legal representative that the respondent was relying on the report in answer to her claim, and was encouraging the Tribunal to accept material in the report in preference to her evidence.

Question 2

It was submitted for the applicant that the Tribunal had taken into account its personal view about other reports written by Writeway. In paragraph [76] the Tribunal indicated:

…I have had many occasions in reviews of veterans’ applications to read the reports of consultants engaged by the Writeway organisation. I was impressed by the quantity of documents and historical sources that were accessed in conducting the research…

Looking at the whole of paragraph 76, the Court considered the impression referred to was the impression created by the Writeway report about the applicant, and not the impression created by other reports.

Question 3

The ground relied on was that the decision of the Tribunal was “actuated by real or apparent bias”, because the Tribunal preferred by Writeway report over the applicant’s evidence, “owing to his positive impression of past Writeway reports”. For the reasons considered in the context of question 2, the Court indicated the Tribunal did not reveal a predisposition in favour of reports written by the Writeway organisation. Therefore, there was no foundation for the claim that the Tribunal decided the questions before it while actuated by “real” or “apparent” (apprehended) bias.

Question 4

The Court referred to the relevant paragraphs, [78]-[93], of the Tribunal’s decision which defeated the ground advanced by the applicant that the Tribunal’s finding was because of a preference for the Writeway report to the applicant’s evidence.

Question 5

The Court indicated there was no reason for the Tribunal to call or suggest that the author of the Writeway report be called to give evidence beyond the fact, obvious to all in the proceeding, that the Writeway report was being relied upon by the respondent. There was nothing suggested to the Tribunal, or to this Court on appeal, that would have caused the Tribunal to consider it necessary to call the author of the Writeway report where the applicant’s legal representative was not seeking to do so.

Question 6 & 7

The Court considered the material before the Tribunal permitted the findings it made, and the Tribunal adequately explained why it reached the contrary conclusion to the applicant’s evidence. The Court considered the Tribunal’s reasons regarding its conclusions that the applicant did not suffer an injury or disease being PTSD, and that she did not suffer from war-caused general anxiety disorder or alcohol abuse or dependence, were also adequately explained in its reasons.

Question 8

The Court was satisfied the clear language used by the Tribunal demonstrated that it did apply, and was conscious of, the correct standard of proof required in reaching its ultimate conclusion.

The Court's Decision

The appeal was dismisssed.

Editorial Note

This appeal dealt with a number of procedural issues relating to the Tribunal’s decision. Five out of eight of the grounds of appeal related to the Writeway report. Ultimately none of the grounds of appeal were successful. The reference in Question 4 to the Tribunal’s finding being “irrational or illogical and/or manifestly unreasonable” was discussed in the High Court case of Minister for Immigration and Multicultural Affairs; Re Ex Parte Applicant S20/2002 [2003] HCA 30. However, in the present case the Court was satisfied the Tribunal’s conclusions could not be said to be “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds” such that the decision-maker misconceived his or her purpose or function.

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