Bromham v Military Rehabilitation and Compensation Commission
[2010] FCA 370
•22 April 2010
FEDERAL COURT OF AUSTRALIA
Bromham v Military Rehabilitation and Compensation Commission [2010] FCA 370
Citation: Bromham v Military Rehabilitation and Compensation Commission [2010] FCA 370 Appeal from: Bromham v Military Rehabilitation and Compensation Commission [2009] AATA 894 Parties: SHELDON BROMHAM v MILITARY REHABILITATION AND COMPENSATION COMMISSION File number: NSD 1432 of 2009 Judge: MOORE J Date of judgment: 22 April 2010 Catchwords: ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – whether errors of law – whether Tribunal failed to consider all integers of the claim – evidence that Tribunal confined the issues it was required to deal with – no error – whether Tribunal failed to take into account relevant considerations – evidence at best of peripheral relevance – no error Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases cited: Bromham v Military Rehabilitation and Compensation Commission [2009] AATA 894 upheld
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 appliedDate of hearing: 24 March 2010 Date of last submissions: 24 March 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Solicitor for the Appellant: Turner Coulson Immigration Lawyers Counsel for the Respondent: C Clark Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1432 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: SHELDON BROMHAM
AppellantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
JUDGE:
MOORE J
DATE OF ORDER:
22 APRIL 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent's costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1432 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: SHELDON BROMHAM
AppellantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
JUDGE:
MOORE J
DATE:
22 APRIL 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 2 July 2007, a delegate of the respondent made a determination disallowing the appellant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") for injuries which he claimed were sustained during the course of his military service. This determination was affirmed on 29 July 2008 by a review officer of the respondent. On 24 September 2008 the appellant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision to affirm the determination. The Tribunal affirmed that decision on 20 November 2009: Bromham v Military Rehabilitation and Compensation Commission [2009] AATA 894.
The appellant has appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that the Tribunal's decision is infected by two errors of law, namely that the Tribunal failed to consider all integers of the appellant's claims and failed to take into account relevant considerations.
Background
The appellant was sent to East Timor as a member of the Australian Army in October 1999. He was at all material times a rifleman. He served there until April 2000.
The appellant's case before the Tribunal was that his service in East Timor contributed in a material degree to injuries he claimed he sustained during his military service, and that he was consequently entitled to compensation under the SRC Act. The injuries for which the appellant claimed compensation were post traumatic stress disorder ("PTSD"), irritable bowel syndrome and irritable bladder. Compensation is payable if, relevantly, the appellant had suffered a work-related disabling injury which includes a physical or mental ailment, disorder, defect or morbid condition.
Six medical professionals gave evidence before the Tribunal. One was Dr German-Belmont, a clinical psychologist, who for a period, treated the appellant and first saw him on 31 August 2004. Dr German-Belmont gave the appellant three tests. One was a stress questionnaire, another a post-traumatic stress test, and the other was a psychometric test called the CAQ. On 26 October 2004 she reported to the appellant's general practitioner that the appellant:
"appears to have all the symptoms of post-traumatic stress disorder, which may be the reason for the pathological results seen in his Personality Test (the CAQ). He appears to have developed some co-morbidities as well as the PTSD as seen by his high score in Depression and Paranoia. These scores, coupled with deep melancholia usually lead to problems with interpersonal relationships, as their partners usually complain that they appear emotionally cold and dispassionate. On a positive note, he is mature and prudent and, although dispassionate, may not be unrealistic about this.
There appear to be valid reasons for the paranoia, as he says he was ridiculed and victimised, not only by his superiors in the Army, but also by his fellow soldiers. This was due to his belief in Buddhist philosophy. Thus his paranoia is probably maintained by his sense of injustice and feelings of persecution. I would also like to make the comment that as his philosophical beliefs are in direct opposition to his choice of an Army career, there must have been an inner turmoil in trying vainly to reconcile these two opposing views. This may have set him up to be particularly vulnerable to the heavy criticism he endured in the Army. In summary, [the appellant's] outstanding symptoms appear to indicate post-traumatic stress disorder as well as the co-morbidities of depression and paranoia (original emphasis)".
It is apparent from this report that the appellant had been complaining of having been ridiculed and victimised while in military service.
Tribunal's decision
The Tribunal's reasons disclosed it asked the following questions:
1."Is the applicant presently suffering from, or has he at any material time suffered from, post traumatic stress disorder?" (at [38]);
2."Is the applicant presently suffering from, or has he at any material time suffered from, a mental ailment other than post traumatic stress disorder?" (at [62]);
3."Was any of the abovementioned mental ailments suffered by the applicant "contributed to in a material degree by" his military service in East Timor?" (at [65]);
4."Is the applicant suffering from, or has he at any material time suffered from, a physical ailment that was "contributed to in a material degree by" his military service in East Timor?" (at [74]).
In answer to the first question, the Tribunal said:
"The applicant's case is that he experienced four incidents in the course of his military service which individually or collectively resulted in his contracting post-traumatic stress disorder. These incidents may be described as follows:
1. the viewing of human remains in a well;
2. the viewing of a human head being recovered from a tree;
3. being bitten on the finger by an unidentified insect; and
4.the accidental unauthorised discharge of a rifle by a fellow soldier in close proximity.
The Tribunal assessed the evidence given about these four incidents. The Tribunal appeared to accept (or was prepared to assume) that the first two incidents occurred (see [43], [47]). In relation to the third and fourth incidents, the Tribunal also appeared to accept they occurred but did not accept the appellant's claims concerning his response to them (see [53], [60]).
In answer to the second and third questions, the Tribunal found at [64] that at the material time the appellant suffered from panic disorder with agoraphobia in partial remission, major depressive disorder of moderate severity in remission, adjustment disorder with anxiety and depressed mood in remission, and personality disorder not otherwise specified. The Tribunal found at [67], [69], [71], and [73] that none of these mental ailments were contributed to in a material degree by any of the incidents described earlier.
In answer to the fourth question, the Tribunal found at [78] and [81] that while the appellant suffers from irritable bowel syndrome and "irritable bladder", neither injury was contributed to in a material degree by any of the incidents described earlier.
In the result, the Tribunal concluded at [82] that compensation was not payable to the appellant.
The appeal
The following grounds of appeal and particulars were set out in the appellant's notice of appeal:
1.The Tribunal failed to consider all integers of the applicant's claims.
(i)The appellant claimed, inter alia, that his mental condition was caused by bullying which he received in the army. The respondent failed to consider this claim.
(ii)The appellant gave evidence that his condition had been accepted by the Department of Veterans Affairs and that he was being paid a pension in respect of his condition. The Tribunal failed to consider this claim.
2. The Tribunal failed to take account of relevant considerations.
(i) The Tribunal failed to take account of the bullying the appellant received in the army and the pension which he was receiving from the Department of Veterans Affairs.
3.Failed to disclose all relevant issues and tests to be applied.
(i) The Tribunal applied, and made a central issue of its decision making, the following test:
"[The Tribunal notes that criterion A of the diagnostic criteria in respect of post traumatic stress disorder, as set out in American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed) (DSM-IV), is as follows: A. The person has been exposed to a traumatic event in which both of the following were present: (1) The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) The person's response involved intense fear, helplessness or horror.]"
At no time did the Tribunal disclose this test to the appellant or advise him that it would be a central issue in the Tribunal's decision making process.
The third ground of appeal was abandoned by the appellant prior to the hearing.
Consideration
The first ground raises the issue of whether the Tribunal considered the appellant's case as advanced by him. The solicitor for the appellant referred to the line of authority concerning the failure of a Tribunal to consider an integer of an applicant's case: see Callinan J in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [163], Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] (Kirby and Hayne JJ agreeing at [89] and [95] respectively), and Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58]-[63]: as the Court said in NABE at [60] (citing SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 per Selway J at 368):
His Honour, in our view, correctly stated the position when he said (at [18]):
'The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.'
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
In the present case the Tribunal characterised the appellant's claim, correctly, as being that he suffered PTSD as a consequence of him experiencing the four incidents.
The solicitor appearing for the appellant in these proceedings referred to a number of documents before the Tribunal which indicated that it was part of the appellant's case that his PTSD had, additionally, been caused by the victimisation and harassment he said he had been subjected to while in military service. I do not accept these documents raised this issue. It is true these documents might remotely be viewed, construed generously to the appellant, as having this effect. However those documents cannot be viewed in isolation and have to be considered in context. An important part of that context was one particular document which contained the appellant's statement of facts, issues and contentions. On no view, in my opinion, did it raise a case framed in this way. The appellant pointed to a sentence in the statement that the appellant had been treated by Dr German-Belmont. But that was all the statement contained. While Dr German-Belmont had referred to the victimisation in her report dated 26 October 2004 it is by no means clear that she was attributing, in a causal sense, the appellant's PTSD to the victimisation. In fact probably the better view is that she was not and rather was simply identifying the victimisation as linked to some other psychiatric disability or illness. But the reference to the appellant having been treated by this doctor did not, in my opinion, raise a case that the claimed injury, PTSD, was causally linked to any alleged victimisation.
At the hearing, no evidence was led from the appellant by his solicitor supporting a case that his PTSD was, in whole or in part, caused by victimisation he had experienced. It is true that a member of the Tribunal asked questions about his victimisation. However that occurred after the appellant's evidentiary case had been presented by his evidence in chief. Nonetheless, for what are probably understandable reasons, the solicitor appearing for the appellant sought to advance a case incorporating the effect of the victimisation in final submissions. This was the subject of discussions between the presiding Tribunal member and the legal representatives of the parties on the penultimate day of the hearing. Counsel for the respondent objected to such a case being advanced, saying he had not come prepared to meet it and if it was pressed, there would be a denial of procedural fairness. Both the Tribunal and the appellant's solicitor appeared to accept this was so.
The matter was raised again the following day, the final day of the hearing, and following further discussion between the Tribunal and the legal representatives, the presiding Tribunal member indicated that the Tribunal would proceed to determine the matter on the evidence before it and on the cases that "each of you have presented". The appellant's solicitor responded by saying: "Yes. I accept that." It is tolerably clear, in my opinion, that the Tribunal was saying that it would deal with the case as originally framed by the appellant which involved the factual question of whether the appellant had been involved in the four incidents identified in his statement of facts, issues and contentions and if so (as to some or all) had they caused, in the relevant statutory sense, his claimed PTSD (if the evidence established he suffered from that illness) or had caused, in the relevant statutory sense, some other disabling illness. It is also tolerably clear that the Tribunal could reasonably have believed that this approach was accepted by the appellant's solicitor. This exchange confined the issues the Tribunal was required to consider.
In these circumstances, it cannot now be said, in my opinion, that the Tribunal failed to deal with a central element of the appellant's case. Error has not, in this respect, been demonstrated.
Ground two raises the issue of whether the Tribunal failed to take into account relevant considerations. The appellant contends that the Tribunal erred in not taking into account a relevant consideration, namely that his condition (PTSD) had been accepted by the Department of Veterans Affairs and that he was being paid a pension in respect of that condition. It was common ground in these proceedings that the Tribunal was not obliged to mention every piece of evidence and that its failure to do so did not establish legal error. It is not obvious to me what the evidentiary worth is of the fact that another decision maker in another context had accepted and acted on the basis that the appellant suffered from the contentious condition, PTSD (contentious in the matter before the Tribunal). However even accepting that it was relevant evidence supportive of the appellant's case that he suffered from PTSD which was caused by his military service, I do not accept that the failure of the Tribunal to refer that evidence constituted an error of law. It was, at best, evidence of peripheral relevance.
Conclusion
The application should be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 22 April 2010
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