Warren v Repatriation Commission

[2015] FCAFC 159

Summary of practice note
COURT Federal Court, Melbourne
JUDGE Collier, Jessup & Mortimer JJ
DATE OF DECISION 12 November 2015
DECISION The appeal was allowed
ISSUES Whether the Tribunal erred in law because it made a finding that the applicant did not experience a stressor in the SoP otherwise than being satisfied beyond reasonable doubt in accordance with stage four of Deledio


The applicant, Ms Warren (previously 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.

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.

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’s appeal to the Federal Court was dismissed. She now appeals to the Full Court of the Federal Court.

Grounds of appeal

The Court identified the applicant’s main challenges to the primary Judge’s reasons:

  1. The applicant’s contention that the Tribunal had taken an irrelevant consideration into account.
  2. An amendment which the applicant sought to make to her appeal under s44 of the AAT Act but which was rejected by the primary Judge.
  3. What Counsel for the applicant described as “the observation of critically injured people at the Dili hospital”.

The Court’s consideration

Ground 1

A question before the Tribunal had been whether the applicant had been “confronted” (to use the applicant’s terminology) by two Indonesian soldiers upon her arrival at Dili airport. Included in the factual material before the Tribunal was a Writeway report, which contained the following passage:

In the period 20 to 29 September 1999, the numbers of Indonesian Armed Forces (TNI) had reduced from 15,000 troops to a garrison of 1300 in Dili. Indonesian air force and marines had withdrawn from Comoro airfield and the port of Dili. INTERFET (International Forces East Timor) troops were in control of the airport from 28 September 1999. It is unlikely that any East Timorese civilians would have had weapons at the airport on 11 October 1999 when the applicant arrived.

The Tribunal was required to decide whether to accept the applicant’s evidence in preference to the conclusion in the Writeway report. The Tribunal indicated:

I accept that there were many occasions when the applicant was anxious and subjectively felt concerned for her safety. However, her recollection and description of events is inconsistent with a significant body of documents historical material, much of which was contemporaneously produced. Neither the applicant nor her representative challenged any of that material in this review, nor was the Writeway author called to give evidence. His report was based on his research of the historical material. I have had many occasions in reviews of veterans’ applications to read the reports of consultants engaged by the Writeway organisations. I was impressed by the quantity of documents and historical sources that were accessed in conducting the research. I also regard the report as balanced.

The applicant submitted before the primary Judge that it was apparent from this paragraph the Tribunal’s decision was, at least in a material respect, based on its reading of other “reports of consultants engaged by the Writeway organisation”. The question of law raised was:

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?

The primary Judge decided the impression referred to was the impression created by the Writeway report about the applicant, and not the impression created by other reports.

On appeal, it was submitted that the paragraph disclosed that the Tribunal had decided the applicant’s case by reference to material disclosed in Writeway reports that related to other people and other circumstances. The Court agreed with the view of the primary Judge. The Court also dismissed the submission that it was denial of natural justice for the Tribunal to have brought its acquaintance with previous work by Writeway to bear on its assessment of the work which actually related to the applicant.

Another submission by the applicant was that the Tribunal made an error of law by not calling the author of the Writeway report to give evidence. The Court agreed with the view of the primary Judge that there was no error, given counsel for the applicant did not seek to cross-examine or call the author.

It was also a ground of appeal that the Tribunal’s findings in relation to the Writeway report were made on the basis of “an assumed factual premise for which there was no evidence, namely that the contents of the report went uncontested” by the applicant. However, this did not raise a question of law.

Finally, the Court agreed with the primary Judge’s decision to dispose of the applicant’s other arguments that the Tribunal’s reasons in that paragraph were “irrational and illogical”, and, because the other Writeway reports were not in evidence, that the “finding” (as it was called) about the reliability of them was made without evidence.

Ground 2

In its reasons the Tribunal had said that the applicant had given evidence to the effect that “she was highly medicated on her arrival at Dili”. However, her evidence that she was medicated related to the period 2005-2007, not to 1999 (the time of her arrival in Dili). The primary Judge refused an interlocutory application to raise additional questions of law. The Court could not find error on the primary Judge’s part in disposing of the interlocutory application.

In the amended notice of appeal, the asserted error of law was a finding by the Tribunal that there were no Indonesian soldiers present on the applicant’s arrival at the Dili airport “on the basis of an assumed factual premise for which there was in fact no evidence, namely that (the appellant] was medicated in Dili…”. The Court did not accept that the Tribunal’s comment about the applicant being medicated on her arrival at Dili was a finding on a relevant question of fact. Rather, it may, at most, have reflected the Tribunal’s thinking about the reliability of the applicant’s evidence. The Court considered the comment did not give rise to an error of law sufficient to sustain an appeal under s44 of the AAT Act.

Ground 3

This ground of appeal was expressed as follows:

The learned trial judge erred in upholding the Tribunal’s findings that:

The Applicant (sic) did not suffer from war-caused PTSD, or war-cased GAD or war-caused Alcohol Dependence or Abuse because she did not witness critically injured casualties at the hospital in Dili, because the Tribunal:

3.1 Failed to recognise that, on the facts found by the Tribunal, the veteran met the diagnostic criteria for an injury or disease being PTSD or a stressor giving rise to PTSD or a stressor connected to the Applicant’s [sic] GAD or Alcohol Dependence or Abuse; and/or
3.2 Failed to give adequate or proper reasons for this material finding of fact.

It was submitted that 3.1 related to the meaning of the expression “critically injured casualty” in the definition of a category 1B in the relevant Statement of Principles concerning anxiety disorder, while 3.2 related to the adequacy of the Tribunal’s reasons in relevant respects.

It was the applicant’s factual case that she had viewed critically injured casualties as an eyewitness during the period of her operational service, including at a hospital in Dili.

The Court rejected ground 3.1 on the simple basis that it did not represent any respect in which the applicant had established that the primary Judge was in error.

Regarding 3.2, the Court considered the Tribunal’s reasons complied with s43(2B) of the AAT Act, and the primary Judge was correct to hold that it did so comply.

In another ground of appeal, the applicant argued that the Tribunal proceeded not by reference to the reverse beyond reasonable doubt standard, but by reference to a balance of probabilities standard, regarding the factual issue of whether the applicant had, as an eye witness, viewed critically injured casualties – it being contended by her that she had done so when she observed patients with missing limbs in the Dili hospital.

The Tribunal’s reasoning on this point included the following:

Irrespective of whether an application is pursued on the basis of clinical onset or clinical worsening, there must be a finding on the probabilities that events or circumstances occurred in service which – for the purposes of this review – constitute 1A or 1B stressors.

For reasons given above, I am not satisfied that the applicant did experience a category 1A or 1B stressor. That finding is fatal to the application, no less also to the submission of clinical worsening. Accordingly, I am satisfied beyond reasonable doubt that the conditions of Alcohol Use Disorder or GAD were not war-caused.

It seemed clear to the Court that, on the matter of the existence of the relevant stressor referred to in the SoP, the Tribunal did not apply the reverse reasonable doubt standard. The Court asked whether the Tribunal erred to have proceeded in this way? The primary Judge held not. The Court indicated:

…there was material before the Tribunal from which a finding that the applicant was an eyewitness to critically injured casualties might have been made. The first three stages of Deledio had been covered. The Tribunal then arrived at the point of moving beyond the mere existence of the material to a finding of fact whether the appellant had witnessed such casualties. In concluding that she had not, it proceeded on the balance of probabilities. This was, in my view, contrary to the requirements of s 120(1) of the VEA Act…What must be established beyond reasonable doubt is that “there is no sufficient ground” for determining that the veteran’s injury or disease was war-caused. If the material before the Tribunal, if accepted, would constitute a sufficient ground, the veteran is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt that the material does not represent the facts as they occurred. This is the situation no less in the case of stressors under the SoP as in the case of other facts that may bear upon the veteran’s entitlement.

The Court held that when the Tribunal found that the applicant had not viewed critically injured casualties as an eye witness, it erred in law because it made that finding otherwise than being satisfied beyond reasonable doubt of the fact referred to. The primary Judge likewise erred when his Honour held that it had not been an error of law for the Tribunal to have proceeded as it did.

The Court’s Decision

The appeal was allowed.

Editorial Note

Mortimer J agreed with the majority judgement above, except for Ground 2. His Honour agreed there was no error in the exercise of the primary Judge’s discretion on the interlocutory application. Ground 2 of the amended notice of appeal states:

The learned trial judge erred in upholding the Tribunal’s findings that:

  1. The Applicant did not suffer from war-caused PTSD, or war-caused Alcohol Dependence or war caused GAD because she did not witness Indonesian soldiers on her arrival at the Dili airport, because the Tribunal made the finding on the basis of an assumed factual premise for which there was in fact no evidence, namely that Ms McKinley was medicated in Dili whereas in fact there was no evidence to support that factual premise.

Mortimer J noted the Tribunal found that the event recounted by the applicant did not occur. That was its finding of fact. The Tribunal’s reasons supported that finding by reference to two matters – historical records (in the Writeway report) and its non-acceptance of the applicant’s account because she was medicated. In His Honour’s opinion, the Tribunal relied on two evidentiary bases for its finding of fact, and that finding was a material one as to its task on review. One of those evidentiary bases avowedly did not exist. Therefore, Ground 2 should be upheld.