A v Repatriation Commission

[1998] FCA 970

FEDERAL COURT OF AUSTRALIA

Administrative Law - Veteran's entitlements - assessment of incapacity - whether error of law by Administrative Appeals Tribunal in not accepting a psychiatrist's assessment of the degree of incapacity - whether Tribunal erred in law in modifying the psychiatrist's assessment because the Tribunal found the veteran had exaggerated his incapacity.

Administrative Law - application to extend time to appeal from decision of Administrative Appeals Tribunal - whether the proposed appeal has any prospect of success.

Administrative Appeals Tribunal Act 1975, ss 44(1), 44(2A)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11
Federal Court of Australia Act 1976, s 50
Veterans' Entitlements Act 1986, s 21A, s 29(4)

Apthorpe v Repatriation Commission (1987) 77 ALR 42 applied
Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223 cited
Comcare v A'Hearn (1993) 45 FCR 441 applied
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 applied
Kuljic v Secretary, Department Social Security (1994) 33 ALD 121 cited
Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 followed
Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484 cited
Repatriation Commission v Tuite (1992) 37 FCR 571 cited

Matter  No. DG 1 of 1998
A v REPATRIATION COMMISSION

VON DOUSSA J
DARWIN
14 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY		DG 1  OF  1998
BETWEEN:	A APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	VON DOUSSA J
DATE OF ORDER:	14 AUGUST 1998
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

The application for extension of time be dismissed with costs against the applicant.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 1  OF  1998

BETWEEN:	A APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	VON DOUSSA J
DATE:	14 AUGUST 1998
PLACE:	DARWIN

REASONS FOR JUDGMENT

This is an application for an extension of time under s 44(2A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") within which to file a notice of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"). Unless the Court extends time, an appeal must be brought within 28 days of the decision. The application for an extension of time, supported by affidavit and a draft notice of appeal, was filed eight weeks beyond that period of limitation.

The applicant is referred to in these proceedings by the letter "A" as an order has been made pursuant to s 50 of the Federal Court of Australia Act 1976, suppressing from publication the applicant's name, his place of residence, his calling, and the identity of his employer. Identification of the applicant, living as he does in a small community, would cause him and his family such embarrassment and prejudice, and so impinge upon his ability to continue his employment, that it is probable that he would be compelled not to proceed with the present application unless his identity is protected. The calling which he follows, moreover, is one the disclosure of which could in itself lead to his identification. The order under s 50 has been made on the ground that it is necessary in order to prevent prejudice to the administration of justice.

The applicant seeks to challenge the decision of the Tribunal which set aside a decision of the Veterans' Review Board which had assessed the applicant as entitled to a pension of 40 per cent of the general rate prescribed by the Veterans' Entitlements Act 1986 (Cth). The Tribunal substituted a decision which increased the assessment of the degree of incapacity so that the applicant became entitled to a pension of 60 per cent of the general rate. The applicant had argued for a higher percentage assessment before the Tribunal, and is dissatisfied with the decision even though it is more favourable to him than the earlier assessment.

The respondent, the Repatriation Commission, has accepted that the applicant suffers conditions of impotence and an adjustment disorder as defence caused conditions, and the issue before the Veterans' Review Board and the Tribunal concerned only the assessment of the degree of incapacity caused by these conditions.

The principles to be applied on an application for an extension of time are well established.  In the decision in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, Wilcox J set out principles that are appropriate to an application for an extension of time within which to seek the review of an administrative decision under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That statutory provision is not identical to the one in the AAT Act, but each provision has in common the fact that no particular rules are laid down to guide the way in which the discretion given by the statute is to be exercised by the Court. The principles identified in Hunter Valley Development have been applied to applications under s 44 of the AAT Act: Repatriation Commission v Tuite (1992) 37 FCR 571 at 576 and Kuljic v Secretary, Department Social Security (1994) 33 ALD 121.

Important amongst the considerations to be weighed in the exercise of the discretion to extend time are the length of the delay, the reason for delay, and whether an extension of time would cause prejudice to the respondent.  Another important consideration is whether, on the merits of the substantive application, there is any prospect of the appeal succeeding.

In the present case, the delay of eight weeks is not trivial, but having regard to the time which the assessment process has already taken, it is a relatively short period.  The delay is due to a number of factors - the advent of the Christmas period, an injury suffered by the applicant's solicitor, and the advent of new administrative procedures in the relevant registry of the Federal Court which delayed the processing of an application for fee waiver.  Importantly, these reasons are not ones for which the applicant himself carries any responsibility.  He has not been guilty of delay.  Instructions were given by him to appeal within time.  Courts have shown a reluctance to visit delays by a solicitor upon the client: Comcare v A'Hearn (1993) 45 FCR 441 at 443.

The respondent does not assert any prejudice if an extension of time is granted.

These considerations are favourable to an extension of time.  However an extension should not be granted if the appeal has no discernible prospect of success.  It would be futile in such circumstances to grant an extension of time.

Counsel for the applicant has presented full argument on the merits of the proposed appeal in an endeavour to identify error on the part of the Tribunal. An appeal lies to this Court under s 44(1) of the AAT Act only on a question of law. Counsel for the applicant contends that the Tribunal erred in law because it rejected an expression of opinion by a psychiatrist as to the extent of emotional and behavioural disability suffered by the applicant.

The applicant is in his mid-fifties, married, with a number of adult children.  In the course of his Defence service he was exposed to stressful situations which led to him suffering an adjustment disorder.  It seems that in turn he suffered impotence.  Between 1990 and 1997 the applicant underwent a series of prosthesis implants in his penis.  Unfortunately, serious infections followed the early operations, and prostheses had to be removed.  The infection and the number of operations has substantially lessened the size of his penis and at times made intercourse a physical impossibility.

On 1 May 1996, after recurring infections, the urologist then treating the applicant removed the penile implant then in place, and advised the applicant that he believed it was not possible to reinsert any further device because of the past history of infection and the fact that the penis was now no more than a short stump.

On 22 May 1996 the psychiatrist to whom the applicant had been referred by the respondent revised earlier assessments he had made on the basis that some sexual function was possible.  On 22 May 1996 the psychiatrist thought that the applicant's sexual life had come to an end and that his impotence would thereafter be total and complete.  The psychiatrist advised the respondent: "In light of the disastrous situation with the penile implant, this has caused a further increase in his anxiety level.  I would, therefore, assess his GARP rating at more than 30 but less than 45".

The reference to GARP is a reference to the fourth edition of the Guide to the Assessment of Rates of Veterans' Pensions made under s 29 of the Veterans'Entitlements Act. Pursuant to ss 21A and 29(4) the respondent, the Veterans' Review Board and the Tribunal in carrying out an assessment, reassessment or review of the extent of incapacity suffered by a veteran is obliged to apply the GARP criteria. For present purposes it is not necessary to describe in detail the complex assessment steps which must be followed under the GARP. It is common ground that the assessment of the applicant's pension entitlement required the Tribunal to assess impairment points for both the adjustment disorder under Chapter 4, and for the impotence under Chapter 10 of GARP. The impairment points for each of these conditions are then aggregated to give the combined impairment rating. To this the Tribunal was required to apply a lifestyle rating in accordance with a conversion table contained in appendix 7 of GARP.

In his evidence before the Tribunal the psychiatrist adhered to his opinion that the appropriate assessment of impairment points for the adjustment disorder, having regard to the criteria contained in Chapter 4.1.1 of GARP was 45.  The Tribunal did not accept this assessment.  The Tribunal considered that the assessment of impairment points for the adjustment disorder made by the psychiatrist was too high.  The Tribunal said:

"[The psychiatrist] had taken into account both of the applicant's incapacities in his overall assessment, in May 1996, 'of more than 30 points but less than 45 points'.  A rating of 45 points, as submitted by the applicant, is too high in my view, and not supported by the applicant's evidence nor is it supported by [the psychiatrist's] oral evidence.  Such a rating envisages people with severe personal dysfunction or depression, well established alcohol or drug abuse, severe neurotic illness, major psychotic or depressive symptoms appearing intermittently, and may include delusions, hallucinations, and loss of insight, intent or attempts to suicide.  On the applicant's evidence he may satisfy a rating of 30 points, on subjective distress - 'symptoms which are moderate and persistent.  The patient will often be unable to distract himself or herself from the distress which the symptoms cause'.  In my view, on the whole of the evidence however, he does not satisfy the rating of thirty points on 'objective distress' - 'The distress is quite apparent and the patient's preoccupation with the symptoms is evident'.  The applicant must satisfy both the subjective and objective stress categories and at least half the other criteria.  I am satisfied on the evidence that thirty points is not the appropriate rating, and that the applicant's condition of adjustment disorder, is appropriately assessed at twenty points, under Table 4.1.1. (which reads:)

'TWENTY       General description and outcome

Subjective distress	.	Symptoms which are moderate and persistent.  The patient will sometimes be unable to distract himself or herself from the distress which the symptoms cause.
Objective distress	.	The distress is apparent and/or the patient's preoccupation with the symptoms is noticeable to astute observers or persons familiar with patient.
Functional Effects	.	Moderate interference with function in everyday situations.
Occupation	.	Short periods of absence from work.
Domestic situation	.	Frequent family discord.
Social contacts	.	Some reduction in social contacts.
Leisure Activities	.	Some reduction in recreational activities.
Therapy	.	Psychiatric treatment, at least in the form of medication, has been tried (or recommended), and/or some occasional supportive therapy given at an outpatient level or by an LMO or specialist and/or friend or other person (eg a minister or priest) has acted in a supportive role or as a sounding board.

Examples

Moderate personality disorder.  Alcohol or drug abuse affecting optimum work performance and family harmony.  Mild but persistent symptoms of neurosis or PTSD.  Some thought disorder or other early psychotic features'."

The parties were agreed that under Chapter 10 of GARP the applicant was entitled to an assessment of 15 points for impotence giving an aggregate of 35 impairment points.  To this was applied a lifestyle rating of 3 leading, under the conversion table, to the assessment of incapacity of 60 per cent.

The only error of law said to have arisen is in respect of the rejection of the psychiatrist's evidence and the adoption of the lower assessment of 20 impairment points made by the Tribunal for the adjustment disorder.  Counsel for the applicant contends that there was no evidence before the Tribunal which justified the rejection of the psychiatrist's assessment.  Alternatively, he argued that there was no probative or logical evidence which made it rational to reject that evidence.  The submission, in the further alternative, was put on the ground that to reject the psychiatrist's assessment was so unreasonable that under the Wednesbury principle (Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223) the decision should be set aside, or that the Tribunal must have taken into account some irrelevant matter to arrive at the result.

Before the Tribunal the applicant himself gave evidence at length in the course of which he described the circumstances which caused his adjustment disorder, the number of surgical procedures he had undergone, and the effects which his impotence had upon his domestic, social and professional life.  In particular he complained of difficulties in his relationship with his wife and children.  Evidence was also led on the applicant's behalf from the urologists who had treated him.  The respondent called the psychiatrist and a person who stands in the position of the supervisor of the applicant's professional duties.  I shall identify him simply as the supervisor to preserve anonymity of the parties involved.

The Tribunal said of the applicant:

"He impressed as a sensitive, caring man, who suffers genuine and deep personal distress as a result of his accepted disabilities.  I am of the view, however, that there was some exaggeration in his description of the extent to which the disabilities affect his life style and his ability to continue in his chosen career."

The Tribunal said in reference to the supervisor's evidence:

"He was an impressive witness and I accept him as a witness of truth."

The supervisor lives and works a considerable distance from the place where the applicant lives and works.  He met with the applicant only a few times a year, although he spoke with him on a regular basis and received reports from others.  Until shortly before the hearing before the Tribunal the supervisor was not aware of the nature of the organic impairment suffered by the applicant, nor had the applicant confided in him about his subjective thoughts and reaction to his impotence.  However, when it became necessary for the supervisor to give evidence, the applicant did discuss his situation with him, and the supervisor read the medical reports of the psychiatrist.  In those reports the psychiatrist on a number of occasions expressed doubt about the fitness of the applicant to continue his work.  In his report of 3 April 1996 the psychiatrist said: "In my view he has become temperamentally unsuited to this type of ... work and needs either to be retired or rehabilitated into some other area of activity."  In his report on 22 May 1996 the psychiatrist said: "Overall this man's anxiety symptoms are of sufficient intensity at present that I do not think he is fit to work anymore" and a little later: "It is my opinion that this man's anxiety condition is such now that he is really no longer fit to do (his) work".  In the last of his reports dated 21 April 1997 the psychiatrist said: "This is to state that the above-named's ongoing anxiety disorder has reached a point where, in my opinion, he is no longer able to work at his usual occupation" and that he "needs to be retired on medical grounds".

When giving his oral evidence before the Tribunal the supervisor said that he did not find these medical reports consistent with his own observations and experience.  He said:

"I do find it somewhat strange that the psychiatrist could draw those conclusions, without, for example, having checked with someone like myself as to how he was working.  I would have thought it might have been appropriate for (the applicant) to have given the psychiatrist permission to, you know, approach me or someone who knew of his work.  I mean certainly, yes, it raises serious questions, but it leaves me somewhat confused in that, as I say, it is not consistent with my own observations and experience of his (work)."

The evidence of the supervisor that he found statements in the medical reports inconsistent with his understanding of the work performance of the applicant provides further ground to support the Tribunal's conclusion that the applicant had exaggerated the effects of his organic injury.  Counsel for the applicant contends that the Tribunal fell into an error in logic, and in law, by reasoning that because the supervisor had found the medical reports to be inconsistent with his observations and experience, the applicant must therefore have been exaggerating.  Counsel argued that the belief of inconsistency by the supervisor could be explained by the fact that the applicant, through embarrassment, had not discussed his predicament with the supervisor.  I am unable to accept that submission.  First, there is no support in the stated reasons of the Tribunal for the suggestion that the Tribunal reasoned in this way.  Further, I think that upon a proper reading of the evidence, the supervisor was expressing surprise and a belief that there was inconsistency not about the fact that he was unaware of the subjective distress of the applicant, but about the fact that his observations, and the reports he had received, did not bear out the suggestion that the applicant was not fit for work.  On the contrary, the supervisor was under the belief that the applicant was performing very satisfactorily.  I read the evidence as indicating that the inconsistency to which the supervisor was referring related not to subjective distress which the applicant asserted, but to his work performance.

At no time was the psychiatrist the doctor treating the applicant.  His role was only to assess the extent of the applicant's incapacity, from time to time, on reference from the respondent.  As a psychiatrist, as he himself said in the course of his evidence, his role was to receive the applicant's description of his symptoms, and to base his opinion on the history so received.  In some cases, an examining doctor will base an opinion not only on the patient's report of bodily symptoms and sensations, but on the doctor's own observations in the course of the examination.  However, the psychiatrist, in his assessment of the applicant, was in no position to be able to verify by direct observation the nature and degree of the difficulties which the applicant said he experienced in his domestic, social and work situations.  As the High Court of Australia observed in Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87: "It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsey v Watson (1961) 108 CLR 642). In the present case the evidence to prove the facts as reported by the applicant to the psychiatrist came from the applicant himself and from the supervisor. It is clear from those passages from the Tribunal's reasons set out above, that the Tribunal discounted the extent of the complaints made by the applicant. The Tribunal considered there was an element of exaggeration.

The Tribunal was charged with the function of hearing the evidence and finding the facts.  Having seen and heard the witnesses, it was open to the Tribunal to reject parts of the applicant's evidence on the ground that it reflected exaggeration.  The Tribunal did not fall into error of law in doing so.  Having made that finding, it became necessary for the Tribunal to consider whether the psychiatrist's opinion required modification to reflect the finding that the applicant was not as severely incapacitated as he said.

The Veterans' Entitlemens Act requires the Tribunal, upon a review, to assess the degree of incapacity, and to do so by applying the GARP criteria.  The Tribunal has an independent obligation to fulfil that task itself, having reviewed all the factual material adduced before it.  The Tribunal would have fallen into error had it merely accepted the psychiatrist's opinion, without taking into account the fact that a finding of exaggeration on the part of the applicant had been made.

There is a further feature of the evidence which calls for comment.  The psychiatrist formed his opinion that the appropriate impairment points assessment should be in the order of 45 points at his assessment on 22 May 1996, and he adhered to that opinion thereafter, adding that if anything, the 45 point assessment had become more appropriate because of increasing anxiety - a complaint of subjective distress.  However, a reading of the evidence strongly suggests that the psychiatrist was not made aware that prior to the date of his last examination the applicant had undergone a further implant procedure which had returned a small but significant degree of sexual function.  That in itself is a factor that would have justified a downward modification of the incapacity assessment made by the psychiatrist.

The impugned conclusion of the Tribunal was, in my opinion, a finding of fact.  Whilst it involved the application of criteria set out in the GARP, there is no suggestion that the Tribunal misunderstood the meaning of any one of the criterion, or in some other way misapplied the criteria.  In Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53, the Full Court discussed the nature of a finding by the Veterans' Review Board which assessed a pension at a percentage of the general rate. The Full Court said at 53:

"In considering the tribunal's finding on the level of the appellant's incapacity, it is necessary to keep in mind that the tribunal was the judge of the facts and that its decision is not to be set aside unless it is shown that the tribunal failed to take into account some relevant matter or took into account an irrelevant matter or misconceived the legislation or that the facts before it could not support the finding that was made, that is to say, that the finding was perverse or unreasonable."

The Full Court after referring to other authorities including a passage from the speech of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] 1AC 484 at 518 said, at 54:

"A finding as to total or partial incapacity, and if the latter the percentage of the incapacity, is just such a finding as his Lordship had in mind.  It is not a discretionary finding, but nevertheless involves the weighing up of a large range of factors and the making of a value judgment or assessment in the light of the broad test which Parliament prescribed.  The making of that judgment or assessment is one for the tribunal, not for the court in an appeal limited to issues of law."

In my opinion it is not shown that the Tribunal fell into error of law.  On the contrary, the Tribunal assessed the evidence before it, as it was obliged to do, and applied the facts as found to the criteria in GARP.  It was open to the Tribunal to make a finding that the applicant had exaggerated the extent of his incapacity.  It was then rational, indeed necessary, to modify the psychiatrist's evidence to reflect that finding.  In discounting to a degree the psychiatrist's assessment of incapacity the Tribunal did not take into account an irrelevant matter.  It took into account only evidence before it that bore directly on the extent of the incapacity of the applicant.  The conclusion was plainly open on the evidence and was not unreasonable.

In my opinion as an appeal on the merits would fail on the ground that no error of law can be demonstrated in the reasoning of the Tribunal, it would be inappropriate to grant an extension of time.  For these reasons the application will be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate:
Dated:            14 August 1998

Counsel for the applicant	:	Mr M Hardie
Solicitor for the applicant	Mr M Hardie
Counsel for the respondent	:	Miss R M Henderson
Solicitor for the respondent	:	Australian Government Solicitor
Date of hearing	:	10 August 1998
Date of judgment	:	14 August 1998