FCA 28
|COURT||Federal Court, Victoria|
|DATE OF DECISION||29 January 2018|
|DECISION||The appeal was allowed|
|ISSUES||Application for disability pension – whether the Tribunal failed to consider the hypothesis the applicant advanced and/or which was pointed to or raised by the evidence – whether the Tribunal failed to have regard to the whole of the material before it or engaged in impermissible fact finding|
The applicant, John Saltmarsh, served between 1968 and 1971 in the Australian Army. He rendered operational service in Vietnam from 3 September 1969 to 10 September 1970. Mr Saltmarsh applied for a disability pension in relation to his back condition. The Repatriation Commission (the Commission) refused his claim, and the Veterans’ Review Board (VRB) affirmed that decision. The Administrative Appeals Tribunal (the Tribunal) set aside the decision under review and substituted a decision that Mr Saltmarsh is suffering from:
- lumbar spondylosis which is a war-caused disease; and
- spondylolisthesis L5/S1 and spondylolysis which are not war-caused diseases.
The applicant appealed to the Federal Court against that part of the Tribunal’s decision that determined that his spondylolisthesis L5/S1 is not war-caused.
Grounds of appeal
The grounds of appeal were:
- The Tribunal failed to accord procedural fairness to the applicant by failing to respond to a substantial, clearly articulated argument that the material before it raised a reasonable hypothesis connecting his spondylolisthesis with the circumstances of his operational service, that hypothesis being that the applicant had an inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:
- acute traumatic spondylolisthesis; or
- neurological manifestations,
within the meaning of clause 6(n) of Statement of Principles No 59 of 2015 and clause 6(k) of Statement of Principles No 5 of 2006 as a result of the time at which, and/or the circumstances in which, the applicant was returned to his pre-injury duties as a tank driver.
- The Tribunal failed to provide adequate reasons for its decision.
- In concluding that there was “nothing else in the material” that pointed to a material contribution to, or aggravation of, the applicant’s spondylolisthesis apart from the incident when he was hit by the gun of a Centurion tank, the Tribunal erred in misconceiving and/or misunderstanding its task in applying s 120(3) of the Act by failing to consider the whole of the material before it and/or embarking on fact-finding.
The Court's consideration
Ground 1 – Failure to address the hypothesis advanced by the applicant
Counsel for Mr Saltmarsh contended that the Tribunal failed to consider the hypothesis put forward by Mr Saltmarsh. Counsel also submitted that, irrespective of whether Mr Saltmarsh advanced that hypothesis, the material before the Tribunal pointed to or raised it.
Counsel for the Commission contended that the Tribunal did consider the hypothesis Mr Saltmarsh advanced but it was not satisfied that the hypothesis was consistent with the requirements of factor 6(n) of the Statement of Principles (SoP), as qualified by clause 7 (factors that apply only to material contribution or aggravation). The Commission identified specific paragraphs in the Tribunal’s decision. The Commission relied on Repatriation Commission v Money  FCAFC 11 in which the Full Federal Court considered the meaning of the expression “inability to obtain appropriate clinical management” in a SoP concerning idiopathic fibrosing alveolitis, where clauses 6(n) and 7 in the present case were analogous to those in Money. Finn and Edmonds JJ held:
- (at ), that the expression “appropriate clinical management” goes beyond positive treatment of an injury or disease and includes advice that could be given to a patient such as to desist from certain activities or to take other steps as measures to preclude aggravation or exacerbation of an injury or disease;
- (at  and ), that the inability to obtain appropriate clinical management must occasion the material contribution to, or aggravation of the injury or disease. That is, before an “inability to obtain appropriate clinical management” would qualify as a factor connecting idiopathic fibrosing alveolitis to a veteran’s service it had to be shown to have contributed in a material degree to, or aggravated, that injury or disease.
Dowsett J reached a similar conclusion at paragraphs  and , and said at :
The logical starting point is identification of the connection. It is to be found in the material before the Tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. Nonetheless, the connection must have a factual basis demonstrated in such material. For present purposes, it would not be sufficient to identify the connection as being simply “inability to obtain appropriate clinical management”. That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service. That process necessarily involves:
- identification of a discernible material contribution or aggravation; and
- description of the connection between such contribution or aggravation and the Veteran’s service.
The Court indicated there was no question that Mr Saltmarsh advanced the asserted hypothesis, and it was common ground that the Tribunal had a duty to consider any hypothesis Mr Saltmarsh advanced, in accordance with Hill v Repatriation Commission  FCAFC 23. In the Court’s view, it was also plain that the Tribunal failed to address the hypothesis Mr Saltmarsh advanced, essentially because it failed to correctly identify the hypothesis. Firstly, it could be seen in the Tribunal’s reasons at paragraph , which described the hypotheses Mr Saltmarsh advanced in reliance on several other parts of factor 6, but not the hypothesis advanced in reliance on factor 6(n). Secondly, at paragraphs  -  of the Tribunal’s reasons, it purported to set out the evidence relevant to Mr Saltmarsh’s hypothesis based on factor 6(n). The Court indicated it was significant that:
- the Tribunal said nothing in those paragraphs which indicates that it understood that Mr Saltmarsh advanced a hypothesis that the factor connecting his spondylolisthesis or spondylolysis to his operational service was an inability to obtain appropriate clinical management of his back condition because (after an initial period of time off work and light duties) he was returned to work as a tank driver, which involved some heavy duties including heavy lifting and sledge hammer use;
- the only treatment to which the Tribunal referred was the rest and light duties Mr Saltmarsh undertook in the immediate aftermath of the tank incident, which the Tribunal said (at ) was “beneficial and appropriate”. Mr Saltmarsh had not, however, advanced a hypothesis that the period of rest and light duties which he was provided somehow constituted inappropriate clinical management. His hypothesis related to the heavy work he said he was required to undertake when he returned to work as a tank driver;
- (at ) the Tribunal summarised the evidence given by Associate Professor Love, and it made no reference to his evidence that:
- it was inappropriate clinical management of Mr Saltmarsh’s condition to return him to the heavy work associated with the role of tank driver if undertaking such work caused back pain and he needed assistance from his workmates to undertake the heavy tasks; or
- it was more likely than not that performing heavy duties adversely affected the clinical course of Mr Saltmarsh’s spondylolisthesis.
That evidence was central to the hypothesis Mr Saltmarsh advanced under factor 6(n), not the evidence the Tribunal summarised; and
- (at ) the Tribunal summarised some of Mr Saltmarsh’s evidence about what took place after the tank incident but it made no reference to his being returned to pre-injury duties as a tank driver, which was central to the hypothesis he advanced. The Tribunal focused on Mr Saltmarsh having been largely confined to a tent for about four or five weeks and then assigned to duties at Special Headquarters.
Thirdly, there was nothing in the Tribunal’s reasons at paragraphs - to show that it considered the hypothesis Mr Saltmarsh advanced. The Court indicated the Tribunal only dealt with the evidence relating to Mr Saltmarsh’s hospitalisation and the period of rest and light duties he was provided, and made no reference to:
- Mr Saltmarsh’s evidence about his return to work as a tank driver and the difficulty he had with the heavy work involved in that role;
- Mr Milner’s evidence as to the assistance Mr Saltmarsh required to perform that work; or
- Associate Professor Love’s evidence that it is more likely than not that undertaking the heavy work associated with the role of tank driver aggravated Mr Saltmarsh’s spondylolisthesis.
The Court considered the Tribunal fell into error in several inter-related ways:
- in the first stage of the Deledio process the Tribunal’s task was to consider all the material before it and determine whether that material pointed to or raised a hypothesis that the spondylolisthesis Mr Saltmarsh suffered was connected with the circumstances of his service. The Tribunal failed to correctly identify the hypothesis which Mr Saltmarsh advanced under factor 6(n) of the SoP and also that the evidence before it pointed to or raised that hypothesis. As a result the Tribunal asked itself the wrong question and it misapplied s 120(3) of the Veterans Act: Hill at ; Grant v Repatriation Commission  FCA 1629; (1999) 57 ALD 1 at  (Merkel, Goldberg and Weinberg JJ);
- in the third stage of the Deledio process the Tribunal’s task was to form an opinion as to whether the asserted hypothesis is a reasonable one (s 120(3)) which involved consideration as to whether factor 6(n), as qualified by cl 7, upheld the hypothesis (s 120A(3)). Having incorrectly identified the hypothesis Mr Saltmarsh advanced and/or which was pointed to or raised by the evidence before it, the Tribunal considered an incorrect hypothesis and determined that it did not uphold the SoP. The Tribunal asked itself the wrong question and it misapplied ss 120(3) and 120A(3) of the Veterans Act; and
- by failing to respond to a substantial and clearly articulated argument the Tribunal also failed to provide Mr Saltmarsh with procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389;  HCA 26 at  per Gummow and Callinan JJ and  per Hayne J; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319;  HCA 41 at  (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Summers v Repatriation Commission (2012) 293 ALR 86;  FCAFC 104 at  (Gilmour, Perram and Jagot JJ).
Ground 3 – Failure to consider the whole of the material/ impermissible fact finding
Further, the Court noted that the Tribunal said at paragraph , putting aside Mr Saltmarsh’s symptoms, apart from the incident in which he was hit by the tank gun “there was nothing else in the material“ that points to a material contribution to, or aggravation of, his spondylolysis or spondylolisthesis. The Court considered that statement revealed further error by the Tribunal in one of two ways. Firstly, it indicated the Tribunal failed to have regard to the whole of the material before it, as there was some evidence before the Tribunal to the effect that when Mr Saltmarsh returned to work as a tank driver he performed heavy work and suffered back pain in doing so, and Associate Professor Love gave evidence it was more likely than not that by returning to perform heavy work in the presence of back pain Mr Saltmarsh aggravated his underlying spondylolisthesis. Alternatively, the Court considered the Tribunal engaged in impermissible fact-finding at stage 3 of the Deledio process.
Ground 2 – Adequacy of reasons
The Court considered it was unnecessary to decide this question, given its findings in relation to the first ground of appeal.
The Court’s Decision
The appeal was allowed.
The Court noted that the Tribunal’s reasons were not to be approached with an eye closely attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259;  HCA 6 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J).
Even so, the Court could not accept the Commission’s submission that, on a fair reading of the reasons, the Tribunal addressed the hypothesis Mr Saltmarsh advanced.