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Forrester and Repatriation Commission [2012] AATA 846 (30 November 2012)

Last Updated: 3 December 2012

[2012] AATA 846

DECISION

The decision under review, being the decision of the Repatriation Commission made 20 December 2010 rejecting Mrs Forrester’s claim for a pension in accordance with the Veterans Entitlement Act 1986 (Cth), is affirmed.

..........[sgd]..............................................................
Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – whether death was war-caused – whether material raises an hypothesis connecting the death with the circumstances of the operational service – material must point to the hypothesis – hypertension – aortic aneurysm – decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 9, 120 and 120A

CASES

Borrett v Repatriation Commission [2000] FCA 1829

Bull v Repatriation Commission [2001] FCA 1832

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 565

Kaluza v Repatriation Commission [2011] FCAFC 97

Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364

Repatriation Commission v Codd [2007] FCA 877

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140

Repatriation Commission v Owens [1996] HCATrans 290

Tunks v Repatriation Commission [2008] FCA 521; (2008) 102 ALD 274

SECONDARY MATERIALS

Statement of Principles No. 9 of 2012 (aortic aneurysm)

Statement of Principles No. 35 of 2003 as amended by 3/2004 and 11/2008

REASONS FOR DECISION

Deputy President J W Constance
Dr K J Breen, Member

30 November 2012

INTRODUCTION

1. Mrs Forrester is the widow of the late Mr Forrester who was a member of the Australian Army and who served in Vietnam.
2. Mrs Forrester has applied for a pension under the Veterans’ Entitlement Act 1986 (Cth). Her application has been refused by the Commission and Mrs Forrester has applied to this Tribunal for a review of that decision.
3. For the reasons which follow the decision under review will be affirmed.

MATERIAL BEFORE THE TRIBUNAL

Mr Forrester’s service records

4. Mr Forrester served as a member of the Australian Army from 8 June 1959 until 14 August 1976. He served in Vietnam from 3 September 1970 to 22 July 1971.

Mrs Forrester’s evidence

5. Mr and Mrs Forrester were married in England in 1951. From the time they first met Mr Forrester was an introverted personality who tended not to maintain friendships.
6. At the time of the marriage Mr Forrester was a member of the British Army. Mrs Forrester understands that prior to the marriage Mr Forrester served in India and that this posting was shortened as he suffered some form of nervous condition. For a period after they were married Mr Forrester was posted to West Africa. Again Mr Forrester suffered from a nervous condition and was repatriated. He was hospitalized for two to three weeks for treatment.
7. In 1957 Mr Forrester retired from the British Army and the couple migrated to Australia.
8. During his first seven years in the Australian Army (1959-1966), Mr Forrester’s consumption of alcohol was “infrequent and light”.^[1] The pattern of his drinking changed in 1966 when he was promoted to the rank of Major. He engaged in more social drinking, including in the mess after work, at dining-in nights, at social dinners and at a local hotel on Saturday afternoons; he usually drank approximately ten stubbies per week. He did not drink excessively and Mrs Forrester cannot recall that he was ever drunk or that his mood was affected by alcohol. She does recall that he always drank full-strength beer.
9. Prior to his tour of duty in Vietnam Mr Forrester suffered a lot of anxiety, and he would become angry quickly over incidents which Mrs Forrester described as “odd things”.^[2]
10. Mrs Forrester described Mr Forrester’s drinking habits upon his return from Vietnam in July 1971 as follows:

Duncan was drinking virtually every day by his return to Australia from Vietnam. He tended to drink at home during the week and on those occasions would consume on average six small cans (375mL) of beer. I recall that his consumption was at the rate of approximately six cans of beer on average (because I would clear the cans in the morning and place them in the rubbish). On weekends he would also consume at the hotel on Saturdays for approximately one hour in addition to drinking six cans on Saturday and Sunday at home. In short, I regarded Duncan as a heavy drinker of alcohol on his return from Vietnam and I disliked this. He became verbally aggressive when he drank and his drinking habits were a cause of friction between us. We had never had an argument about his alcohol consumption before he served in Vietnam because it had not been an issue.^[3]

Mr Forrester’s drinking pattern did not change until 1996 when he began taking medication for a heart condition. He then stopped drinking alcohol on medical advice.

11. When Mr Forrester returned from Vietnam it appeared to Mrs Forrester that he had gained considerable weight and was overweight. He had not been overweight when he left for Vietnam.
12. On his return from Vietnam Mr Forrester told Mrs Forrester that there had been friction between himself and his superior officer in Vietnam. He told her that this friction arose from several instances:
    • he had been ordered to monitor the use of brothels by troops, which he had refused to do;
    • he had been required to arrange the return of the personal effects of deceased soldiers and to write to next-of-kin which he found upsetting;
    • he was required to be involved in the court martial of a soldier for whom he felt sympathy.

He also told Mrs Forrester that “the Americans had a problem with drugs but we Australians had a problem with drinking.”^[4]

13. Mr Forrester was posted to Broadmeadows after his service in South Vietnam. Mr Forrester informed Mrs Forrester that he had “a great upset"^[5] there but he did not tell her what had happened. He was then posted to the Dental Corps in Melbourne.
14. Mr Forrester’s leaving the Army in 1976 was a crisis in his life and he began to drink alcohol on a daily basis but not heavily.^[6]
15. Mr Forrester’s abdominal aortic aneurysm was first diagnosed on 26 June 2009 when he was hospitalized for a respiratory condition. He refused surgery to treat the aneurysm.

Mr Swan’s evidence

16. Mr Swan is the son-in-law of Mr Forrester. They first met in 2004.
17. Mr Forrester told Mr Swan that there had been friction between himself and his superior officer Hooton in Vietnam. He said that “senior officers forced him to be part of a prosecution of a soldier despite the fact that he wished to protect the soldier because he felt he understood why the soldier had committed the relevant offence.”^[7]
18. Mr Swan was also told by Mr Forrester that he was greatly distressed by having to pack the personal effects of deceased soldiers and having to write to their families.
19. Mr Forrester was “a complex person ... [who] exhibited anxiety”.^[8]

Ms Swan’s evidence

20. Ms Swan is Mr Forrester’s daughter.
21. Prior to his going to Vietnam Mr Forrester was a “social light drinker.”^[9] He would consume alcohol at weekends and occasionally during the week. At times he would consume approximately six beers per night. On his return the frequency of his drinking sessions increased and he consumed larger quantities of alcohol than previously. He became more argumentative and antagonistic when he had been drinking.
22. When he returned from Vietnam Mr Forrester looked “very puffy and he looked very overweight.”^[10]
23. Mr Forrester had “issues of anxiety and depression” all his life.^[11]

Mr Laurie’s evidence

24. Mr Laurie was posted to the AFV Provost Unit, Vietnam from 30 September 1969 to 1 October 1970 and from 29 June 1971 until 12 March 1972.
25. The responsibility of supervising the conduct of Australian service personnel outside the Australian Logistics Support Group area (including their conduct in the areas containing brothels and bars in the vicinity) was vested in the Provost Unit directly answerable to the ALSG Commander. The Officer in Charge Headquarters Company was not involved in these operations.

Mr Tilbrook’s evidence

26. Mr Tilbrook is the author of a Writeway Research Service report dated 8 January 2012.^[12]
27. The report includes the following:

9. The OC of HQ Coy 1 ALSG (MAJ A.D. Forrester) framed a total of eleven charges laid against PTE P.J. Barrow arising out of the unlawful shooting episode and threatening personnel with a loaded firearm. It is likely that the Garrison Sergeant Major (GSM) at HQ 1 ALSG (WO1 K.K. Hunter) would have assisted MAJ Forrester in determining each of the military offences committed by PTE BARROW. For ease of reference copies of the AAF A4 Charge Reports (4 pages) bearing MAJ A.D. Forrester’s signature have been provided at Attachment 5 to this report.
10. Once the Summary of Evidence for the prosecution case against PTE P.J. Barrow was completed by the OC of 110 SIG SQN on 22 Dec 70, an application to convene a District Court Martial (DCM) was then made to the COMD AFV (as Formation Commander) by the COMD 1 ALSG. A copy of the request for DCM dated 24 Dec 70 is provided as Attachment 6 to this report.
11. This Application for convening a DCM would most likely have been drafted for COL J.G. Hooten’s signature by the OC HQ Coy 1 ALSG (MAJ Forrester), and outlined the circumstances of the case for a decision by the COMD AFV.
...
23. The official records that accompany this Report confirms that the late Veteran, MAJ A.D. Forrester, did have an involvement in the shooting incident at the 1 ALSG base on 6 Dec 70, and was instrumental in framing the charges against PTE P.J. Barrow which were dealt with by a District Court Martial convened at Vung Tau on 19 Jan 71.^[13]

28. The report also refers to the role of Mr Forrester:

13. It has been confirmed that (then) MAJ A.D. Forrester was posted to HQ 1 ALSG as the OC of HQ Coy. In this capacity the late Veteran would have been responsible to the Commander of 1 ALSG for the efficient administration of the Headquarters, for the physical security of military assets, maintenance of proper stores accounting practices, pay and allowances and oversight of the personnel management function for both military and Vietnamese locally employed civilians (LEC); as well as rationing, catering and accommodation for the HQ 1 ALSG troop population as well as administering VIP military visitors and personnel in transit. This would have been a demanding appointment because of the diverse mix of soldiers, Australian public service staff, philanthropic organisation staff and the oversight of the various sub-units placed under administrative command of HQ 1 ALSG.
...
16. The AAF A26 Annual Confidential Report for MAJ A.D. Forrester for the period ending 30 Apr 71 was compiled by COL J.G. Hooten. His “word picture” of MAJ Forrester indicates that he was an “adequate performer” in his posting as OC of HQ Coy. This would indicate that COL Hooten did not rank MAJ Forrester as being amongst the best of his officers, as “adequate” represents a score below categories such as “fight to get”, “Prefer to Most”, “Happy to Have”.^[14]

Mr Barsley’s evidence

29. Mr Barsley is the author of a Writeway Research Service report dated 25 April 2012.^[15]
30. Mr Barsley reported, in part:

... if the deceased soldier was a posted member of either HQ 1 ALSG or HQ Coy 1 ALSG, then MAJ Forrester would have had an administrative responsibility to see that the task of collection, taking of inventory, packing and dispatch of those effects back to the deceased soldier’s [next-of-kin] in Australia was carried out.^[16]

31. There were 29 Australian soldiers killed during Mr Forrester’s posting in Vietnam. He would have had responsibility for the administrative action required to return their personal effects to Australia. This was part of his duties as Force Personal Effects Officer.

Medical records of Mr Forrester’s weight and blood pressure readings

32. Mr Forrester’s service records^[17] indicate his weight to have been as follows:
    • April 1959 (enlistment) 11st 11lb (74.8kg)
    • September 1967 88.6kg
    • April 1971 abdomen described as “obese”
    • July 1973 89.5 kg
    • September 1973 13 ½ stone (85.7 kg)
    • October 1973 87.7 kg
    • June 1974 85.9 kg
    • May 1975 92.7 kg
    • July 1975 88.6 kg
    • August 1975 83.9 kg.
    • June 1976 91.3 kg^[18].
33. Mr Forrester’s service and civilian records indicate the following records of his blood pressure:
    • August 1959 135/80 ^[19]
    • April 1971 130/80 ^[20]
    • July 1973 140/85 ^[21]
    • October 1973 140/85, 150/80 ^[22]
    • September 1973 140/100 ^[23]
    • September 1973 140/80 ^[24]
    • June 1974 140/85 ^[25]
    • July 1975 145/90 ^[26]
    • September 1975 140/90, 120/80, 130/85, 138/74.^[27]
    • June 1976 140/85 ^[28]
    • October 1984 140/90 ^[29]
    • June 1994 170/90 ^[30].

Service Reports

34. Between April 1969 and April 1974 several reports were prepared in relation to Mr Forrester. Relevantly these reports disclosed:
    • Reports in 1969 and 1970 indicated that Mr Forrester was performing well^[31];
    • In May 1971 Col. Hooton reported that Mr Forrester was “a good and kindly man, who lacks the drive, general education and military experience to make an adequate commander.”^[32]
    • In May 1971 Mr Forrester was relieved of his duties in Vietnam and returned to Australia; it was reported at the time that he had “much to learn in leadership and man management and needs close supervision and guidance.”^[33]
    • In April 1972 Mr Forrester had settled into his posting reasonably well but he found detailed staff work “an abhorrence”^[34];
    • In December 1972 Mr Forrester’s performance had improved considerably but he needed “very positive direction, support and encouragement.”^[35]
    • In April 1973 it was reported that Mr Forrester had performed satisfactorily but that his inability to live at home was causing him concern and sometimes resulted in his being moody^[36];
    • In October 1974 Mr Forrester responded to a report on his performance stating that at times he had been reduced to despair and depression whilst trying to work with a particular colleague and that it was impossible to work with him any longer; he requested a new posting^[37];
    • In November 1974 Brigadier Dean described a recent report on Mr Forrester as “a most disappointing report upon an officer who has shown he can do better” and reported that Mr Forrester had to be reposted^[38].

Further material from service records and medical reports

35. Mr Forrester’s army medical reports indicate that he suffered from anxiety in 1952, 1962, 1964 and 1967.^[39] In December 1967 it was recorded in clinical noted that Mr Forrester “has a very low tolerance for stress.”^[40]
36. In a Medical History Sheet dated 11 October 1973^[41], Mr Forrester is recorded as consuming 12 cans per week.
37. In November 1996 Mr Forrester made a claim in relation to the development of asthma. In that claim he recorded:

Asthma has worsened as follows.
1970. Vietnam. Intermittent spells connected to unresolved conflict with other officers. Condition continued allied to aggression, until end of service 1976.
1976 to 1986. A settled period when asthma, although occasionaly [sic] present, was not disruptive.^[42]

38. In December 1996 Mr Forrester consulted Professor Davies, Consultant Psychiatrist. On 4 December 1996 Professor Davies reported that Mr Forrester had stated that his problems in Vietnam were related to differing opinions on “man management”. Professor Davies also reported that alcohol did not present as a clinical problem.^[43]
39. In December 1996 Mr Forrester wrote to the Department of Veterans’ Affairs. In his letter he referred to having suffered depression since he served in Vietnam.^[44]
40. In October 1997 Dr Rogers, Consultant Psychiatrist, assessed Mr Forrester on referral by his general practitioner. Dr Rogers reported^[45] that Mr Forrester described “ongoing confrontations with his immediate superior” in Vietnam and his loss of integrity arising from the court martial incident. Mr Forrester also claimed to have become depressed after leaving the army in 1976. Dr Rogers reported that there was evidence that Mr Forrester had a long history of anxiety disorder.
41. In February 1998 Mr Forrester gave evidence before the Veterans’ Review Board.^[46] He said that:
    • the court martial proceedings caused him feelings of anxiety or stress;
    • after he returned from Vietnam he felt intense anger;
    • he objected to his posting to a finance position after he returned and had a falling out with his Commanding Officer;
    • about mid-1972 he was posted to a CMF unit where his anger led to arguments with his Commanding Officer;
    • soon after his discharge from the army he was drinking heavily but then abstained from consuming alcohol for about 12 months; he returned to social drinking.
42. In 1993 Mr Forrester was diagnosed with permanently elevated blood pressure which fulfilled the definition of “hypertension” ^[47]
43. In October 1984 Mr Forrester is recorded as having informed a Department of Veterans’ Affairs officer that he drank “6 small cans [of beer] per week at most”.^[48]

LEGISLATIVE BACKGROUND

War-caused injury

44. Section 9 of the Act sets out the circumstances in which an injury is taken to be “warcaused”. The relevant parts of that section are:

9 Warcaused injuries or diseases

(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a warcaused injury, or a disease contracted by a veteran shall be taken to be a warcaused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

Standard of proof

45. Section 120 relevantly provides:

120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a warcaused injury, that the disease was a warcaused disease or that the death of the veteran was warcaused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a warcaused injury or a defencecaused injury;

(b) that the disease was a warcaused disease or a defencecaused disease; or

(c) that the death was warcaused or defencecaused;

as the case may be, 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 rendered by the person.

Note: This subsection is affected by section 120A.

...

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

Reasonable hypothesis and a Statement of Principles

46. Subsection 120A(3) provides:

For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

APPLYING THE LAW

47. In Repatriation Commission v Deledio^[49] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

48. Counsel for the Commission argued that the requirement that the material before the Tribunal “points to a hypothesis connecting the ......death with the circumstances of the particular service ...”^[50] (emphasis added) means that the hypothesis advanced must be reasonable. In our view this is correct.
49. In Bushell v Repatriation Commission^[51] the High Court said:

The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

This judgement was delivered before the introduction of section 120A into the Act.

50. The High Court further explained the correct approach in Byrnes v Repatriation Commission^[52]:

The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable ...

51. The Full Court in Deledio expressly agreed with the following explanation of the relationship between ss.120(1), 120(3) and 196B(2) given by Heerey J, the learned primary Judge:

Therefore when s 196B(2) says a factor ‘must...exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc.). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i) contrary to proved or known scientific facts,
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; ...”^[53]
Although the adjective “reasonable” was not used by the Full Court to qualify “hypothesis” when it set out the first step, it is clear from reading the whole of the judgement, and in particular from its agreement with the reasoning of Heerey J, that this is what was intended. The requirement that the material “points to” the hypothesis imports the requirement that the hypothesis be reasonable.

52. The Court referred also to the judgement of the Full Court of the Federal Court in Repatriation Commission v Bey^[54]as follows:

The essence of the reasoning in Bey lies in the criticism of the decision in Cooke v Repatriation Commission (1997) 45 ALD 205. In Bey, the majority, speaking of Cooke, said (at 730):

In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a ‘reasonable hypothesis’ on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not ‘hypothesis’ but ‘reasonable hypothesis’. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.^[55]

53. The Court in Deledio pointed out that the reasonableness of the hypothesis was not in issue before it, but it did not disapprove of the view expressed by the majority in Bey, quoted above.
54. In Repatriation Commission v Owens^[56] (in refusing a special leave application) the High Court said:

Mr Justice Lockhart correctly perceived that the issue before the Administrative Appeals Tribunal was a question of fact. The Administrative Appeals Tribunal had not simply chosen between two professional opinions but accepted that the actual cause of the claimant’s injury, an adenocarcinoma, had been identified and thus any hypothesis was excluded. A majority of the Full Court allowed an appeal from Mr Justice Lockhart but their Honours seemed to have misunderstood the nature of the issue arising under section 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.

55. In Bull v Repatriation Commission^[57] the majority of the Full Court said:

It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.

The emphasised paragraph reads:

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

56. The Federal Court considered the several authorities in Repatriation Commission v Codd^[58] and concluded:

11 The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran’s death with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) – namely, is the decisionmaker satisfied beyond reasonable doubt that the facts required to connect the veteran’s death with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571.
12 As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].

Again, it is to be noted that the Court referred to the threshold question requiring a determination of whether a reasonable hypothesis is raised.

57. In Kaluza v Repatriation Commission^[59] the Full Court of the Federal Court was clear that even at the first step in the Deledio process it is necessary to determine whether there is an hypothesis connecting the injury, disease or death with the relevant service and if so, whether this hypothesis is reasonable. The Court said:
    14. Before coming to the detail and argument of the appeal grounds, it is appropriate to briefly describe the nature of the task that the Tribunal was required to undertake.
    15. Mr Kaluza’s key conditions pertinent to this appeal are anxiety disorder and alcohol abuse. As he contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows (adopting largely the submissions for Mr Kaluza):
        1. The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCATrans 303)).
        2. If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the Veterans’ Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the Veterans’ Act as qualified by s 120(3) and s 120A (Budworth (at [19])).
        3. In applying ss 120(1), 120(3) and 120A of the Veterans’ Act, the Tribunal was to consider all the material and determine whether:

(i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and
(ii) that hypothesis can be regarded as reasonable, if the ‘raised facts’ are true.
(Bushell v Repatriation Commission [1992] HCA 47; (1992)175 CLR 408 (at 414)).

4. If the ‘raised facts’ pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the ‘kind of disease’ from which the veteran suffers (Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 step two (at 97F)^[60]

ISSUES FOR DETERMINATION

58. We have to determine the following issues.
    1. Did Mr Forrester render “operational service” and if so, when?
    2. Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Forrester?
    3. Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
    4. If such an hypothesis is raised, is there a relevant Statement of Principles in force?
    5. If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement?
    6. If so, are we satisfied beyond a reasonable doubt that the death of the late Mr Forrester was not war-caused?”

DETERMINATION OF THE ISSUES

Issue 1: Did Mr Forrester render operational service and if so, when?

59. The Commission has conceded that Mr Forrester rendered operational service in the period 3 September 1970 to 22 July 1971. We are satisfied that this is a proper concession.

Issue 2: What was the kind of death met by Mr Forrester?

60. The parties agree that death was a result of a ruptured abdominal aortic aneurysm. This is the cause of death shown on the death certificate.^[61]

Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

61. It is put on behalf of Mrs Forrester that the material before us points to the following hypothesis:
    1. Forrester commenced drinking heavily during his operational service in Vietnam, partly or wholly as a result of various stressors he encountered during his service in Vietnam, including:
       1. discord between him and his superior, Col. Hooten (Hooten);
       2. being ordered to inspect brothels by his superior, which he refused to do;
       3. having the task of sending home the effects of the deceased, and writing letters to their parents;
       4. being involved in a Court Martial for a soldier he felt some sympathy for; and
       5. having been shot at by the soldier the subject of the court martial.
    2. Forrester continued drinking heavily, approximately 6 cans of heavy beer almost every night, and no less than 6 cans of heavy beer during the weekend, when he returned from his ‘operational service’.
    100. This drinking continued up to the onset of hypertension, which occurred no earlier than 1973 and no later than 1993.
    4. Forrester’s hypertension caused his aortic aneurysm.
    5. Forrester died from aortic aneurysm.
62. The various authorities to which we have referred make it clear that the hypothesis under consideration must be more than one which is left open on the material before us. It must be a hypothesis which is pointed to, or supported by, the material. This requirement has also been expressed as requiring the hypothesis to be a reasonable one.
63. The determination of whether the hypothesis is pointed to or supported by the material or is reasonable is not to be confused with the reasoning required at the third step of the Deledio process. That step requires the determination of whether the hypothesis fits the “template” to be found in any relevant Statement(s) of Principles. If the hypothesis does not fit the template it will be deemed not to be reasonable.
64. Having considered all of the material before us we determine that it does not point to a hypothesis connecting Mr Forrester’s death from aortic aneurysm to his operational service.
65. It was argued on behalf of Mrs Forrester that the particular circumstances of Mr Forrester’s operational service previously referred to were so stressful as to cause Mr Forrester to commence drinking heavily. This increased consumption of alcohol is said to have at least contributed to his hypertension and subsequent aortic aneurysm.
66. The material before us does not “point to” or “support” the hypothesis that Mr Forrester increased his consumption of alcohol on an ongoing basis as a result of all or any of the events said to have caused him particular stress. The evidence of Mrs Forrester, Ms Swan and Mr Swan indicates that there was friction between Mr Forrester and his superior officer and that he found some of the tasks he was required to undertake as part of his duties to be distressing. This material also indicates that he was angry as a result of events which occurred during his operational service, particularly the incident involving the Court Martial. The material does not point to any connection between the soldier firing his weapon in the vicinity of Mr Forrester and Mr Forrester’s consumption of alcohol. There is no material which points to any change in Mr Forrester’s drinking habits as a result of all or any of these events.
67. Counsel for Mrs Forrester acknowledged that there was no “direct evidence” of Mr Forrester’s drinking habits in Vietnam.^[62] However he referred us to three decisions in which the question of the material necessary to raise a reasonable hypothesis was considered by the Federal Court: Repatriation Commission v Law^[63], Borrett v Repatriation Commission^[64] and Tunks v Repatriation Commission^[65]. Counsel argued that material pointing to Mr Forrester’s increased consumption of alcohol upon his return from operational service was material pointing to the hypothesis put forward.
68. We do not agree that the authorities cited support this proposition. The principles applied by the Federal Court in Law, in Borrett and in Tunks are the same. In Borrett v Repatriation Commission Tamberlin J said in part:

[30] The critical paragraphs of the reasoning, namely para29–para31, have been set out above. The AAT makes its determination that no reasonable hypothesis is raised in para30. Whether a hypothesis is established and is reasonable is a matter of fact. However, in my view, these paragraphs state the position in an unsatisfactory manner and demonstrate that the AAT erred in law. Firstly, it was wrong to assert in para 29 that there was no evidence of the veteran’s drinking patterns whilst on service. There was evidence that he had drunk prior to service. There was also evidence from Mr Graham and Dr Gertler as to the drinking of the veteran whilst in service. These are important matters (emphasis added).
[31] Secondly, it is evident from the reasoning that the AAT rejected the hypothesis not on the facts raised by the material, but on the facts as found by the AAT. As the last sentence of para30 indicates, the AAT discounted evidence pointing to a reasonable hypothesis and in so doing wrongly embarked on an evaluation of the evidence at that point to decide questions of fact and degree prematurely and contrary to the statutory scheme.^[66]

69. The hypothesis put forward links the particular events in Vietnam with a substantial increase in Mr Forrester’s alcohol consumption and subsequent hypertension. This hypothesis must be considered in the light of all the material before us. On this basis the linking of the hypertension with the particular events of the operational service is too remote and too tenuous.
70. As the material before us does not point to an hypothesis connecting Mr Forrester’s death with his operational service this application must fail.

Issue 4: Is there a relevant Statement of Principles in force?
Issue 5: Is the hypothesis consistent with the “template” within the Statement of Principles?
Issue 6: Are we satisfied beyond a reasonable doubt that the death of Mr Forrester was not war-caused?

71. As we have decided that the application has failed it is unnecessary that we consider the further issues. However, the Commission has conceded that had we determined that the material before us does point to a hypothesis connecting Mr Forrester’s death with the circumstances of his operational service, then the reviewable decision should be set aside and Mrs Forrester is entitled to the benefit she seeks. We are satisfied that this is an appropriate concession.
72. Had it been necessary we would have found that Statement of Principles No. 9 of 2012 (aortic aneurysm) and Statement of Principles No. 35 of 2003 as amended by 3/2004 and 11/2008 are in force and are relevant. We would have determined that the hypothesis put forward is consistent with the templates in these Statements. We would not have been satisfied beyond a reasonable doubt that Mr Forrester’s death was not war-caused.

CONCLUSION

73. The decision under review, being the decision of the Repatriation Commission made 20 December 2010 rejecting Mrs Forrester’s claim for a pension in accordance with the Veterans Entitlement Act 1986 (Cth), will be affirmed.

.....[sgd]...................................................................
Associate

Dated 30 November 2012

^[1] Exhibit A1, p.1

^[2] Transcript 30.7.12 p.12.

^[3] Exhibit A2 p.2

^[4] Exhibit A1 p.1.

^[5] Transcript 30.7.12 p.20.

^[6] Transcript 30.7.12 p.38.

^[7] Exhibit A6.
^[8] Transcript 30.7.12 p.63.

^[9] Transcript 30.7.12 p.77.

^[10] Transcript 30.7.12 p.78.

^[11] Transcript 31.7.12 p.12.

^[12] Exhibit R10.

^[13] Exhibit R10.

^[14] Exhibit R10.

^[15] Exhibit R11.

^[16] Exhibit R11 p.4.

^[17] Exhibit A8.

^[18] These readings appear at pp.2a, 27a, 64, 142, R35, 105, 112, 155, 153a, 155 and 4a respectively.

^[19] Exhibit A28.

^[20] Exhibit A26.

^[21] Exhibit A25.

^[22] Exhibits A24, R8.

^[23] Exhibit A23.

^[24] Exhibit A22.

^[25] Exhibit R37.

^[26] Exhibit R38.

^[27] Exhibits A30, A31 and A32.

^[28] Exhibit R40.

^[29] Exhibit A29.

^[30] Exhibit A10.

^[31] Exhibits A44 and A47.

^[32] Exhibit A49.

^[33] Exhibit A41.

^[34] Exhibit A43.

^[35] Exhibit A46.

^[36] Exhibit A45.

^[37] Exhibit A40.

^[38] Exhibit A42.

^[39] Exhibits R26, R27 and R28.

^[40] Exhibit R29.

^[41] Exhibit A9.

^[42] Exhibit A11

^[43] Exhibit A12.

^[44] Exhibit A13 p.3.

^[45] Exhibit A14.

^[46] Exhibit A15.

^[47] Exhibit A17.

^[48] Exhibit A29.

^[49] [1998] FCA 391; (1998) 83 FCR 82, 97-98.

^[50] Repatriation Commission v Deledio supra.

^[51] [1992] HCA 47; (1992) 175 CLR 408, 414.

^[52] (1993) 177 CLR 565, 569-570.

^[53] [1998] FCA 391; (1998) 83 FCR 82, 96.

^[54] [1997] FCA 1347; (1997) 79 FCR 364.

^[55] [1998] FCA 391; (1998) 83 FCR 82, 97; the reference to East is to East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517.

^[56] [1996] HCATrans 290 p.10.

^[57] [2001] FCA 1832 at p.7.

^[58] [2007] FCA 877 at p.5.

^[59] [2011] FCAFC 97.

^[60] [2011] FCAFC 97 at pp.5-6.

^[61] Exhibit A3.

^[62] Applicant’s Outline of Submissions filed 25 September 2012.

^[63] [1980] FCA 92; (1980) 31 ALR 140.

^[64] [2000] FCA 1829.

^[65] [2008] FCA 521; (2008) 102 ALD 274.

^[66] [2000] FCA 1829 at p.10.