Budworth v Repatriation Commission S253/2001 [2002] HCATrans 303 (21 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S253 of 2001

B e t w e e n -

RONALD JAMES BUDWORTH

Applicant

and

REPATRIATION COMMISSION

Respondent

Office of the Registry

Sydney No S13 of 2002

B e t w e e n -

DAVID HEDLEY JEFFREY BENJAMIN

Applicant

and

REPATRIATION COMMISSION

Respondent

Applications for special leave to appeal

GLEESON CJ

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2002, AT 12.19 PM

Copyright in the High Court of Australia

________________

MR M.B. SMITH: If your Honours please, I appear in each matter with MR C.H.P. COLBORNE. (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR P.J. HANKS, QC: If your Honours please, in the first of those matters, I appear by myself, and in the second of those matters, I appear with my learned friend, MS R.M. HENDERSON, for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Thank you. Is it convenient to hear them together?

MR SMITH: It is, your Honour. I was going to invite your Honour to do so. They both involve the same question or; in our submission, raise the first question. They are both suitable vehicles for that question to reach the Court. If your Honours are of the view that the question deserves consideration by the Court, but only one of the cases should arrive in Canberra, then, in our submission, the second case, Benjamin, is the preferred vehicle.

GLEESON CJ: Well, on that basis, we would just stand the first one over.

MR SMITH: That is what we would be submitting, yes. I could elaborate why Benjamin is better. It is the most recent formulation by the Full Court of the proposition or the construction that is challenged, and it also encompasses a further question which, in our submission, also has a sufficient degree of importance and doubt in itself to warrant a grant, and involves the further application of the first

question. The ruling that is challenged is found in Benjamin, in the Benjamin application book at 65, paragraphs 54 and 55, of the Full Court's judgment. It is their Honours' ruling that section 120(1) of the Veterans' Entitlements Act:

assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused -

only, implicitly -

When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act -

that is, the more demanding standard.

GLEESON CJ: But when you are dealing with a disease like post-traumatic stress disorder, as I understand it - and my understanding is imperfect - there seems to be built into the description of the disease an explanation of, or an assumption about, its cause.

MR SMITH: Yes, your Honour. So the diagnostic criteria within itself requires a stressor of a certain sort and with certain potential.

GLEESON CJ: If you used a very old-fashioned term - but from a similar area of discourse - namely, "shell shock", presumably, that implies not only an effect but also a cause.

MR SMITH: Yes, so that in deciding if someone suffers from that disease, you are inevitably reaching factual conclusions about what has happened to this man in the past, and what has been the effects of what has happened to him. That is the nub of - - -

GLEESON CJ: Do I understand that, in the case of both of these applicants, the only possible trauma that could have explained PTSD, if they had PTSD, was trauma in war?

MR SMITH: Not entirely. Mr Budworth had had, in his adolescence, a very traumatic occurrence when he was responsible for the death of his mother, and there may have been a hypothesis in the material that that condition was aggravated, as it were, by his experiences in a war zone. Essentially, both of the cases claimed a psychiatric disorder attributable in one way or another - - -

GLEESON CJ: Does that make Mr Benjamin's case a cleaner case?

MR SMITH: Yes. I think the evidence is as clear, or clearer, too, in terms of a difference of opinion between psychiatrists as to what is needed for a PTSD, and whether it was found in the circumstances of Mr Budworth and Mr Benjamin. However, similar evidence is found in Mr Budworth's case, also. So the proposition that is made by the Full Court is that you can segregate out diagnosis, existence of disease, from causation, in all cases; that you can then apply different standards of proof to an initial one - - -

GUMMOW J: The question is whether that is what the section requires.

MR SMITH: The question is whether that is what is required. We make six points in relation to the doubt, in our submission, that is involved in the Full Court's ruling.

GUMMOW J: How do you make the section work in this case?

MR SMITH: We make the section work as, implicitly, Justice Brennan made the section work in Bushell - - -

GUMMOW J: It can be dangerous to look back to earlier cases, because the section has been changed all the time.

MR SMITH: Yes. The section is found, not in the Benjamin book anywhere, but it is found in the Budworth book, at page 61, and it is also found in the bundle. This is section 120.

MR HANKS: Page 36 of the bundle.

GLEESON CJ: What page of the bundle?

MR HANKS: Page 36, your Honour, in the bundle.

MR SMITH: In our submission, the language is to be read in this way. There is an opening clause, which then gives rise to a standard of proof to be applied to a determination that is described. The opening clause, in our submission, is describing injury or disease or death which is claimed to exist, not which is determined to exist, so that - and this is shown by the language - where a claim:

in respect of the incapacity from injury or disease of a veteran -

it is describing a sort of claim, not - - -

GLEESON CJ: If the disease is asbestosis, and you claim you got it on a ship in the Navy, then, presumably, on the Federal Court's approach, if there is an issue as to whether you have asbestosis, the claimant bears the onus of proof. But if there is an issue as to whether the asbestosis came from a ship in the Navy, then subsection (1) applies. Is that the way the court - - -

MR SMITH: Yes, that is right. That means that if experts disagree about whether you have asbestosis, and their disagreement comes back to how much of the person's history they have accepted, in terms of exposure - which may be very relevant to a diagnosis of an infectious condition - what is the history of exposure to infection may well control diagnosis - then the veteran will fail if he cannot establish, on the balance of probabilities, an exposure that satisfies the diagnostician. But if there is no disagreement that he has asbestosis, but there is disagreement about exposure, and that is only then seen as coming into the second wing of the Full Court's view, then he gets the benefit of doubt over that.

GLEESON CJ: Well, asbestosis is probably a bad example, because it is, in reality, difficult to imagine any room for argument about whether somebody has that. But suppose someone is claiming a soft tissue back injury, and it is alleged that he is a malingerer. He says, he got the soft tissue back injury in East Timor. Who bears the onus of proving that he is not a malingerer?

MR SMITH: Once again - and my friend does not like the word "onus", but it is there as a matter of practicality. The section itself rules out the use of the word "onus". As a matter of practicality, if a claimed history of trauma on service is relevant to diagnosis, so that - as it often can be, in soft tissue claims - then his claim will fail unless he satisfies the decision-maker as to that trauma. If the disease can be found by diagnosis, without having to assess the man's history, then it will be enough that he has a reasonable hypothesis that he incurred a trauma in his service. It is those sorts of distinctions that, in our submission, show that the construction is based on a fallacy.

GUMMOW J: What is the fallacy?

MR SMITH: The fallacy is that you can separate out diagnosis and aetiology in relation to disease.

GLEESON CJ: Well, sometimes you can and sometime you cannot, I suppose.

MR SMITH: Yes.

GLEESON CJ: It is easy to think of some cases in which they are separate issues, or separate questions.

MR SMITH: Certainly, one can well conceive of diseases that are a matter of objective discovery from a physical sign of some sort, in terms of current but the whole foundation of the Full Court's reasoning, going back to the first case where they made this ruling, in Repatriation Commission v Cooke, says, it makes sense to draw the distinction that their Honours do. In our submission, there is real doubt about whether it makes sense.

GLEESON CJ: Is there another question, and that is whether, even assuming the distinction does make sense, it makes sense to apply it to a disease such as post-traumatic stress disorder?

MR SMITH: Yes. That is, as it were, a middle ground question of construction. If one can, as it were - this is how Justice Madgwick thought that it might be possible to, as it were, work with - - -

GUMMOW J: I know how you criticise the Federal Court, but what do you say correctly should be done - - -

MR SMITH: In our submission - - -

GUMMOW J: - - - in working through the section?

MR SMITH: The reading is - this is a section that - - -

GUMMOW J: And in this particular sort of case, that the Chief Justice put to you.

MR SMITH: In this sort of case, the decision-maker has to find what are the claims that are made in the claim form, as to incapacity from disease connected to service of a certain sort - that is, an operational service. Once that sort of claim is found - - -

GUMMOW J: We are within the definition of disease?

MR SMITH: Yes.

GUMMOW J: Right.

MR SMITH: Well, no. A claim of a certain sort, that is - - -

GUMMOW J: Yes. If the claim is made, of something that falls within the definition - - -

MR SMITH: - - - that there is a disease, and then the decision-maker has to address definitions of "disease" and "war cause" in relation to, as it were, the hypothesis or assertion that is raised in the claim form. Issues going to disease and war cause - as per definitions - are what is within the determination that is referred to in that subsection, the determination that, in effect, the man has a war-caused disease.

GUMMOW J: Yes. Well, the claimant wins "unless".

MR SMITH: Unless it is proved, "beyond reasonable doubt", that there is no sufficient cause for making that finding. Then that is subject to the qualification in subsection (3), that in applying subsection (1):

the Commission shall be satisfied, beyond reasonable doubt, that -

he is not entitled -

if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service -

so that is where the reasonable hypothesis test comes in.

McHUGH J: Your argument must include the notion of death, as well.

MR SMITH: Yes, certainly.

McHUGH J: That the Commission must negative, beyond reasonable doubt, that the widow's spouse has died as a result of a war-caused event.

MR SMITH: Yes, although she has to point to a reasonable hypothesis that there is a death connected to service.

McHUGH J: But your case really starts by looking at sections 14 and then section 19, does it not?

MR SMITH: Yes. Certainly - - -

McHUGH J: The strength of your case seems to lie in the notion that the Act is concerned with incapacity, so far as injury is concerned, and the question that is to be determined is whether or not that incapacity resulted from a war-caused injury.

MR SMITH: Yes. He puts forward incapacity. How it is arrived at has to be addressed, in terms of eligibility, and he is given the benefit of the doubt about all the facts that he claims gives rise to eligibility - - -

GUMMOW J: Then what is there left for (4) to do?

MR SMITH: - - - in relation to that incapacity. I am sorry?

GUMMOW J: What is there left for subsection (4) to do?

MR SMITH: There is left for (4), in relation to such a person with operational service, a most important function, because it governs what amount of pension, if any, he is entitled to. It has never been disputed that, in the structure of section 120, questions of assessment of rate - - -

McHUGH J: Well, it says so specifically, does it not? Does not 120(4) actually refer to assessment?

MR SMITH: No, 120(4) applies to every determination "except" a determination - - -

McHUGH J: Yes, I know, but it specifically mentions assessment and rates of pension, does it not?

MR SMITH: Yes, "including the assessment", so it confirms that and makes it clear.

GUMMOW J: What else apart from that?

MR SMITH: So at the end of the day - - -

GUMMOW J: What else apart from that?

MR SMITH: In relation to veterans without operational service, they do not get the benefit of (1) and (2), at all.

GLEESON CJ: But what if they are - - -

MR SMITH: And then there is multiple - there is the whole area of service pensions and the other sorts of pensions that are covered in the Act, and allowances, et cetera, are all there to be - - -

GUMMOW J: Yes. Of course, subsection (4) is related to Part IV, as well as Part II.

MR SMITH: Yes, it covers all decision-making under the Act.

GLEESON CJ: Leave aside post-traumatic stress disorder, in other words, leave aside a disease part of the definition of which brings into play a consideration of its aetiology. What if there is an issue about whether a veteran suffers from the injury or disease referred to in the claim form, or - although I suppose this is a pretty remote possibility - about whether the person is dead.

MR SMITH: You mean, as the alternative?

GLEESON CJ: Yes.

MR SMITH: I am sorry - - -

GLEESON CJ: Suppose a - - -

MR SMITH: Our submission is that if a claim is being put forward for entitlement based on that asserted fact, then it has to be disproved beyond reasonable doubt, and subject to the reasonable hypothesis.

GLEESON CJ: Well, suppose a claim is made by a widow - a person who alleges that she is a widow - asserting the death of a veteran, and somebody says, "I do not believe your husband is dead".

MR SMITH: Well, it has to be investigated by the authorities - - -

GLEESON CJ: Yes, but do you say - - -

MR SMITH: - - - and the evidence has to be then assessed - - -

GLEESON CJ: Suppose she says, "Look, my husband is dead", and somebody says, "We do not believe you". Is the question whether the husband is, in truth, dead, determined pursuant to subsection (1)?

MR SMITH: It is, but her problem will be raising a reasonable hypothesis as to the causes of that death. Unless she can point to material pointing to a reasonable hypothesis that her husband has died from a war cause, then she will fail, under the reasonable hypothesis test.

GLEESON CJ: And you say that is the approach Justice Brennan took?

MR SMITH: Yes, quite clearly. I can take your Honours to his - it could not have been more clear in his Honour's opinion, as to the structure of the Act.

GLEESON CJ: What page of the bundle?

MR SMITH: In the bundle, at page 55. His Honour's judgment starts with an analysis of the basis of liability under this Act. At 423 point 4, having referred to the definition or provisions of section 13 and then 9 and 6, his Honour says:

An entitlement to a pension under s.13 thus depends upon three matters of fact: the veteran's operational service or eligible war service, the veteran's morbid condition and the connexion between the two.

His Honour then discusses the nature of the administrative proceeding which investigates and then addresses those facts. At 425 point 3, his Honour then refers to section 120 and the fact that it places no particular onus on a person - or presumption. His Honour then says:

In a case to which sub-s.(1) relates, however, the making of a finding on the material before the decision-maker is governed by sub-ss.(1) and (3). Sub-section (1) is a special provision governing claims by veterans who have rendered "operational service"; sub-s.(3) governs those claims -

et cetera -

Section 120 was introduced in order to reverse the decision of this Court in Repatriation Commission v O'Brien, but s.120 must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor -

and this is the key passage -

Sub-section (1) governs the finding of each of the relevant facts on which entitlement depends: the circumstances of the veteran's operational service, the veteran's morbid condition and, relevantly, the causal connexion between the two - - -

GUMMOW J: Now, was not section 120 amended after Bushell?

MR SMITH: No, subsections (1) and (3) were not altered at all. What was added was a qualification, that is indicated in the notes, as to how a reasonable hypothesis is tested - - -

GUMMOW J: That is right.

MR SMITH: - - - and that is where the Statement of Principle system comes into play. But the structure and language of 120(1) and (3) were unaltered, and the Full Court decisions on the most recent system, including these two cases but, in particular, the case of Deledio, which has explored how statements of principle are applied.

McHUGH J: Well, what do you say about the passage at 425, lower down, about point 7, where his Honour says:

Sub-section (3) is not directed either to the morbid condition of the veteran or to the circumstances of the veteran's operational service, but solely to the hypothesis connecting the two.

MR SMITH: Yes. Over the page, his Honour makes it quite clear:

The finding of these facts is governed solely by sub-s.(1).

There is no doubt his Honour's considered opinion - and, in our submission, it was not obiter. It was an essential part of his Honour's reasoning towards the rejection of the Repatriation Commission's submission in that case, which was to the effect that subsection (1) had no substantive effects.

GUMMOW J: This is not touched in the joint judgment, is it, in Bushell?

MR SMITH: The joint judgment is - it can at least be said - is not inconsistent with his Honour's view, but I accept that one cannot see a clear acceptance of the analysis that his Honour gives. Her Honour Justice Beazley first thought it did, and from 1993 to 1998, Justice Brennan's analysis was applied in the Tribunal and the court as the correct analysis. It was in 1998 that Repatriation Commission v Cooke decided not to follow either of those opinions.

GLEESON CJ: All right. Well, then, we will hear what Mr Hanks has to say at 2 pm. We will adjourn until 2 pm.

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ: Yes, Mr Hanks, it was your turn anyway.

MR HANKS: Yes, your Honour. Some of the matters which fell from your Honours before the luncheon adjournment caused us some concern, particularly the reference by your Honour to the onus lying on - - -

GLEESON CJ: I have seen what Justice Brennan had to say about that.

MR HANKS: Yes, your Honour. Well, his Honour was undoubtedly correct for the Act so provides; subsection (6) specifically says that no onus lies on any party and his Honour, of course, went on to say that it is in the nature of the proceedings of the Tribunal itself that it ought, appropriately, to be inquisitorial.

MR HANKS: Yes.

GLEESON CJ: But even so, if somebody says, "I have an injury", and somebody says, "I doubt you are telling the truth", a question arises as to what happens next.

MR HANKS: What happens next is that an investigation must be made, at the primary level, and a determination, based on that investigation. Now, if we were to hypothesise that the injury in question, as your Honour put it, was a soft tissue injury, that would be a matter for investigation by a suitably qualified medical practitioner and, no doubt, a history will be taken; there will be an examination; science and symptoms will be recorded - there may even be room for radiological assessment - but, ultimately, it is a question of fact to be determined, we would say, on the balance of probabilities, is that injury present? It is not a question of whether the injury occurred in a particular setting, but whether it is currently present, and the same investigation would occur with, for example, mesothelioma, your Honour.

GLEESON CJ: Now, where did you get that expression "on the balance of probabilities" from?

MR HANKS: It derives from a decision of the Full Federal Court in 1987 construing section 120(4). That is, from my memory, Repatriation Commission v Smith. Your Honour, I cannot give the precise references, it is around 16 FCR - - -

GLEESON CJ: But let us just address the statute.

MR HANKS: Yes, your Honour. It is to the "reasonable satisfaction" of the decision-maker, section 120(4). All other questions - it is said:

the Commission shall, in making any determination or decision -

other than one to which 121 or 122 apply, shall do so:

to its reasonable satisfaction.

And the Full Court said that imports the civil standard of proof. Not in this case, but in the case of Repatriation Commission v Smith.

GLEESON CJ: You have, I thought, taken some pains to point out that proof does not come into it.

MR HANKS: There is a standard of proof, your Honour. If your Honour looks at the heading to section 120, your Honour will see those very words used, "Standard of proof". So there is a standard by reference to which the decision-maker is to make a decision.

GLEESON CJ: But what is the concept of "proof" mean in this context?

MR HANKS: In the context of administrative proceedings there must be material which is sufficient to persuade the decision-maker that, in our situation, the veteran does suffer from the disease which is raised by the claim. Proof in that sense, your Honour.

GLEESON CJ: So, the essence of your submission is that subsection (1) has nothing to do with the question of whether the disease exists?

MR HANKS: That is right, your Honour; it has nothing to do with that question. Nothing to do with the question of whether (a) disease exists and, (b) what is the nature or proper diagnosis of that disease Those are questions to be determined to the reasonable satisfaction, first to the Commission and then, on review, by the Tribunal; that is our submission. That, as we understand it, is the effect of the reasoning in the three Full Court decisions which have brought us here today.

GLEESON CJ: Now, they are all inconsistent with what Justice Brennan said in Bushell, are they?

MR HANKS: They are, yes, your Honour, and deliberately so. In Cooke, as your Honours will have observed, the Full Court considered what Justice Brennan had to say in Bushell, was satisfied that what his Honour said was clearly obiter and that what his Honour said was not consistent with the requirements of the statute.

GLEESON CJ: What do you say where the nature of the disease in question is such that if it exists at all, it has been caused by trauma and if trauma occurred at all it must have occurred in war?

MR HANKS: Well, there is a peculiarity, we readily recognise that, your Honour a peculiarity in the context of certain diseases. They are, with respect, a narrow class of diseases, primarily psychiatric in origin or psychiatric in classification. History does play a central part, not only in determining causation of a particular psychiatric condition, but in determining its existence and its nature. There is, as your Honour knows, a document called the Diagnostic and Statistical Manual for Psychiatric Disorders, published by the American Medical Association, which is used as the basis for diagnosis and treatment - the primary diagnosis.

GLEESON CJ: And, as a matter of history, was that produced as a response to claims by Vietnam veterans?

MR HANKS: No, your Honour, no. It is called DSM and it is now in its fourth edition, so it is called DSM(4). It is used generally for the purpose of ensuring consistency in diagnosis.

GLEESON CJ: I understand, but when was it first prepared?

MR HANKS: When was DSM(1) first prepared? I cannot answer that, your Honour, I regret, but post-traumatic stress disorder is not a disease or disorder which is confined to veterans.

GUMMOW J: Ms Henderson knows the answer.

MR HANKS: In the 1980s, your Honour.

GLEESON CJ: And was it prepared in the 1980s as a result of claims being made by Vietnam veterans?

MR HANKS: Again I cannot answer that, your Honour. I cannot provide that deep history but - I will reframe from speculating, because I do not think we will be of any assistance. To take this case as an example, Mr Benjamin did claim the existence of post-traumatic stress disorder. He gave his evidence to the Tribunal. His evidence was, in part, supported by psychiatric experts and psychiatric experts were called by the Commission which opposed his evidence at least, opposed not the history which he gave, but opposed the drawing of the conclusion.

GLEESON CJ: But am I right in thinking that it was part of the nature of the disease that he claimed to be suffering from that it was war caused?

MR HANKS: The only history which he advanced, the only history in order to establish the existence of the disease, was related to his war service.

GLEESON CJ: He did not claim to have suffered, and no one suggested he suffered, trauma from any other occasion?

MR HANKS: That is right, your Honour. Now could I take your Honours partly in answer to this question, but to expand on a consideration of this point, to page 16 of the application book.

GLEESON CJ: Benjamin?

MR HANKS: That is so, your Honour. Like our learned friends, we will focus on Benjamin. Your Honours will see we have two paragraphs here from the reasons of the Tribunal, the decision-maker. Our friends say that the Tribunal erred in law in its approach. We say, it did not. Paragraph 46, eliding the irrelevant parts, your Honours:

the Tribunal does not consider, as a mater of fact, and is not reasonably satisfied that the events described to it by the applicant constitute "traumatic events" as that term is to be understood by reference to SoP No 15 of 1994.

So there was no doubt cast on the account or the history provided by the veteran; it was the significance of the history which the Tribunal said did not satisfy it. It was not satisfied that taking everything which he said at face value, there was a sufficient traumatic event as proscribed by the diagnostic criteria.

In the following paragraph, paragraph 47, the Tribunal referred to a second cumulative aspect of the diagnostic criteria. We are:

not reasonably satisfied that sub-paragraph (b) of the definition in the SoP could be met by the applicant.

And this part of the diagnostic criteria refers to recurrent symptoms; recurrent and current symptoms, that is, experiencing "recurrent distressing recollections", et cetera. So there were two matters which, as a matter of fact, the Tribunal said, went against diagnosis and, on each of those matters, the Tribunal was reasonably satisfied that the account as given to it by the veteran did not meet the diagnostic criteria. This is not a case in which the Tribunal said, "We do not believe you"; it is a case in which the Tribunal said, "We believe you" or "We accept what you say, but it does not meet the criteria."

GLEESON CJ: Can I take you back to the words of section 120(1).

MR HANKS: Yes, your Honour.

GLEESON CJ: And just see how those words work in the case of post-traumatic stress disorder, bearing in mind that the only alleged occasion of trauma is war, in the particular case.

MR HANKS: Yes.

GLEESON CJ:

Where a claim under Part II for a pension in respect of -

post-traumatic stress disorder - - -

MR HANKS: "relates to the operational service".

GLEESON CJ:

relates to the operational service . . . the Commission shall determine that the -

post-traumatic stress disorder -

was a war-caused -

post-traumatic stress disorder -

unless it is satisfied -

et cetera. Now, as I understand it, the Tribunal did not find against the applicant on the basis that he did not have a psychiatric illness; it found against him on the basis that contrary to his assertion as to the nature of his disease, it was not caused by a trauma and the only relevant trauma being war or an occurrence in the course of war.

MR HANKS: No, with respect, that is not what the Tribunal did, your Honour. We would say you need to look a little more closely at the basis for that conclusion. Rather, the Tribunal said, the event which this man describes as having experienced does not amount to trauma of the type contemplated by the diagnostic criteria. There was no conclusion or finding that he did not experience trauma but, rather, the conclusion was it did not meet the specific diagnostic criteria in the statements of principles. Your Honours know that in the application book the Statements of Principles appears at page 87 and it sets out at pages 88 to 89 the cumulative diagnostic criteria, of which we think there are six, and it was in relation to two of those, the first two, that the Tribunal said, "We are not satisfied that they are made out, but they are present on the history provided by the veteran."

In relation to the first of those, "The person has been exposed to a traumatic event", which has then two characteristics of "traumatic event", that is, witnessing or being "confronted with an event that involved actual or threatened death or serious injury, or threat to . . . physical integrity"; and, secondly, a response that involves "intense fear, helplessness or horror". So, with respect, your Honours, it goes beyond the question whether there was trauma, it goes to the question whether the trauma and the experience met the characteristics or had the characteristics which are prescribed in that definition.

GLEESON CJ: As I understand the argument against you, it is put in two ways: the first is that there is no such dichotomy between the disease and the cause of the disease for the purposes of subsection (1), as the Full Court held, an alternative argument which is the basis on which the judge at first instance decided the case - in one of these; I forget which one.

MR HANKS: The middle ground.

GLEESON CJ: Is that at least in the case of certain kinds of disease of which PTSD is an example, that dichotomy just does not work.

MR HANKS: Yes. Well, may I deal with the second point first. We would say that the Act requires a consistent approach from one disease to another and that the terms in which diagnosticians might care to describe a particular disease, whether they incorporate or do not incorporate elements of ethology in the diagnosis, cannot affect the construction of the statute. The statute directs, we would say, a common and consistent approach to be taken. It is an accident of two things, your Honour, in the present case: an accident of the description of the diagnostic criteria of this disease and of the particular history which this veteran advanced. It is an accident of that, that the diagnostic criteria coincide with those for causation. But that is purely an accident which should not affect the construction of the statute.

Turning to the primary basis on which the argument against us is put, we take the Court if we could to section 120A. Your Honours will note, before I do that, that section 120(1) and (3) carry a note:

This subsection is affected by section 120A

The note forms part of the Act for the Act so provides.

GUMMOW J: That was not there when Bushell was decided, was it? Section 120A?

MR HANKS: It took effect from 1 June 1994, your Honour.

GUMMOW J: That is post-Bushell.

MR HANKS: Yes, two years after Bushell. It is a consequence of Bushell, a direct consequence. The extrinsic material demonstrates that the government and the Parliament had in mind to overcome some of the effects of Bushell. The primary purpose of 120A was to displace, as it were, debates within the Tribunal between medical experts about typical causes of diseases and to provide a basis on which there would be a definitive statement of ethology. Nevertheless, if one considers that it is encumbered on the Commission and the Tribunal when deciding claims - it is incumbent to work through 120A; it cannot be avoided. When one sees that, immediately a question will be presented to the Commission and to the decision-maker, what is the kind of disease, the kind of injury, or the kind of death, in respect of which the claim has been made and that question must be identified, and we say that is a question which plainly must be determined to the reasonable satisfaction of the decision-maker. This is a question which precedes, as we see it, that is the application of 120A, any consideration of 120.

Your Honours will see in section 120(2) that where:

the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind -

if I might elide, a kind of disease, then:

the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind . . . unless or until the Authority -

has effectively completed its investigation. So it is essential at that point to identify what is the kind of disease in respect of which the claim has been made.

Secondly, under subsection (3), when proceeding to determine a claim, a hypothesis which is raised by the material before the decision-maker, and that is the inquiry which is mandated by 120(3), will be -

reasonable only if there is in force:

(a) a Statement of Principles -

that upholds the hypothesis. If one looks at 196B(2) of this Act, one sees that statements of principles are made in respect of particular kinds of disease. That appears on page 41 of the materials, your Honour, 196B(2). Statements of principles are made by the Authority in respect of:

particular kind of injury, disease or death -

The Authority has made some eight or nine hundred statements of principles, because of the, as it were, multiple classification of diseases.

Turning to section 120A(4), we are told that that requirement, that the hypothesis be upheld by a Statement of Principles:

does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles . . . nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury -

(b) the kind of disease -

(c) the kind of death -

So there is an essential inquiry which, in this case, the Tribunal would be required to undertake to identify the kind of disease in respect of which the claim is made, because only after doing that can the Tribunal pass the claim through the filter of the Statement of Principles and that identification is a question which necessarily precedes the question whether that disease is war caused. That identification is made for the purposes of 120A, it is made under section 120(4) and it precedes the inquiry - - -

GUMMOW J: Did the Full Court in its analysis give attention to 120A?

MR HANKS: Yes it did, your Honour.

GUMMOW J: I thought it did. And 196B?

MR HANKS: I cannot - - -

GUMMOW J: But at least 120A.

MR HANKS: Yes, your Honour. Perhaps I am engaging in wishful thinking here. Yes. Your Honour, paragraph 55.

GUMMOW J: Yes.

GLEESON CJ: Thank you, Mr Hanks. Yes, Mr Smith.

MR SMITH: If your Honour pleases, we apologise for not being here when the Court resumed.

GLEESON CJ: That is all right. Mr Smith, may I ask you this in relation to Justice Madgwick's approach. It occurs to me that a possible point of view is that you can preserve the dichotomy that was accepted in Repatriation Commission v Cooke in relation to PTSD by saying that a Tribunal might conclude, as it did in paragraphs 46 and 47 on page 16, that there was no trauma within the diagnostic criteria or you might have a case in which the Tribunal was prepared to accept that there was a trauma within the diagnostic criteria, but there was a question whether the trauma was connected with war and it is only in the latter kind of case that subsection (1) would come into play.

MR SMITH: Well, with respect, if one is assessing the application of the diagnostic criterion, and the issue is, is that criterion sufficiently stressful trauma, does it exist or does it not exist, that requires two aspects: firstly, an assessment of the man's story - how much of it do you accept or do not accept - and then there is an aspect as to, is, according to medical diagnostic opinion, that sufficient to meet the criterion.

GLEESON CJ: Let me give you an example.

MR SMITH: In the present case it was the latter - - -

GLEESON CJ: Suppose you had a case in which a man had been to Vietnam and come home and after his return home he was at a bank when some robbers burst in and started shooting and bullets were flying around his head in those circumstances and, sometime later, psychiatrists all agree that this man is suffering from post-traumatic stress disorder, but the question is whether it is related to his war service or to his experience in the bank hold-up. Then, in a case such as that, subsection (1) would operate in his favour, would it not?

MR SMITH: There would be no debate of the present sort; the existence of the disease would be proved as a probability and we would not be debating the evidence concerning that; we would be debating the contributory effect of his previous experiences.

GLEESON CJ: But Mr Benjamin failed here, as appears from paragraphs 46 and 47, not on that basis but upon the basis that he was never able to identify anything that, according to the Tribunal, satisfied the definition of "trauma" in the diagnostic criteria.

MR SMITH: Yes, that had the quality that the Tribunal thought, on the balance of probabilities, was required and that - - -

GLEESON CJ: Yes, so the Tribunal said, "We do not have to worry about whether what you are complaining of happened at war or in a bank hold-up; you are not telling us about anything that amounts to a trauma."

MR SMITH: That that is their assessment on the balance of probabilities and, in the course of that, they are resolving a conflict between expert psychiatrists - which is referred to in the evidence - as to what is needed to have a sufficient stress awe and was this man's history a sufficient stress awe. That is where the onus of proof became critical or very relevant to this man - - -

GUMMOW J: You are upsetting Mr Hanks now.

MR HANKS: I am very sensitive.

GLEESON CJ: Mr Hanks wants you to observe the difference between proof and onus of proof.

MR SMITH: Well, satisfaction I am happy to - I understand my friend's problem. So the standard of proof went to satisfaction of the facts, including the conflicting medical opinions, for the existence of the disease to which a diagnostic label could be attached. Justice Madgwick's middle ground, as it were, in my submission, draws on the apparent primacy of (1) and (2) over (4) in wanting causal issues to be given a beneficial standard of satisfaction. The other middle way, which was explored by Justice Wilcox in Meehan, which is referred to in our submission, is to say, accepting there is an issue as to existence disease that has to be positively found, it is merely the existence of a collection of symptoms before you get to the labelling of it, that has to be positively found, and that derives from the definition of "disease", which is a general definition, very common to compensation cases, and to say, once you have established a collection of symptoms amounting to an ailment, then what label you attach to it is part of your process of addressing war causation and therefore you get the benefit of doubts in relation to conflicts about that. So that is another middle way that has been explored in the cases.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take in this matter.

AT 2.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.32 PM:

GLEESON CJ: In both of these matters, we agree with the decision of the Full Court of the Federal Court and, for that reason, we would dismiss the applications.

Can you resist an order for costs, Mr Smith?

MR SMITH: No, your Honour.

GLEESON CJ: The applicants must pay the respondent's costs of the application in each case.

We will adjourn for a short time to reconstitute.

AT 2.32 PM THE MATTERS WERE CONCLUDED