Catton v Chief of Army
[2003] FMCA 275
•4 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CATTON v CHIEF OF ARMY | [2003] FMCA 275 |
| ADMINISTRATIVE LAW – Judicial review – applications for extensions to file Application for Order of Review – application under s.37 of Defence Force Retirement and Death Benefits Act – failure to seek reasons from decision maker – whether decision was at the behest of another – whether there was a failure to take a relevant consideration into account – no ground under Administrative Decisions (Judicial Review) Act established – Application dismissed. Administrative Decisions (Judicial Review) Act 1977, ss.5, 11, 13 Telstra Corporation Pty Ltd v Kendall (1995) 55 FCR 231 |
| Applicant: | GARTH DAVID CATTON |
| Respondent: | CHIEF OF ARMY |
| File No: | BZ628 of 2001 |
| Delivered on: | 4 July 2003 |
| Delivered at: | Brisbane |
| Hearing date: | 5 March 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Ulrick |
| Solicitors for the Applicant: | Eastman Catton, Buderim |
| Counsel for the Respondent: | Miss E. Ford |
| Solicitors for the Respondent: | Phillips Fox Lawyers, Brisbane |
ORDERS
That the Application for an order of Review filed 18 January 2001 be dismissed.
The time for filing an Application for an order to review the decision of Brigadier Evans made 21 June 2001 be extended to 21 November 2001.
That the Application for an order of Review filed 20 November 2001 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ628 of 2001
| GARTH DAVID CATTON |
Applicant
And
| CHIEF OF ARMY |
Respondent
REASONS FOR JUDGMENT
Introduction
On the 18 January 2001, GARTH DAVID CATTON (“the Applicant”) filed an application for an order of review, of three decisions under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (“the AD (JR) Act”) and for extensions of time to make such applications pursuant to s.11 (1)(c) of the AD (JR) Act.
On the 24 October 2001 the parties consented to the respondents —
· R. J. Tattersall (First respondent)
· B.V. Osborne (Second respondent)
· I.C. Gordon (Third respondent)
being replaced by “Chief of Army”.
By Amended Application for an order of review filed 25 October 2001, the Applicant sought a review and extension of time to make such application, in respect of a decision made by Brigadier Mark Evans on 21 June 2001.
All the decisions were to the effect that at the time of the Applicant’s retirement from the Australian Regular Army on 28 January 1990 grounds did not exist on which the Applicant could have been retired on the grounds of invalidity or of physical or mental incapacity to perform his duties in terms of section 37 of the Defence Force Retirement and Death Benefits Act 1973 ("DFRB Act”).
Preliminary issue
At the trial of this action, I was required to make a preliminary decision as to the extensions of time sought by the Applicant.
For the purpose of these Applications, the prescribed period within which to lodge an Application was 28 days (see sections 11 (1)(c) and s.11 (3) (b) (iii) of AD (JR) Act).
In ex tempore reasons given at that time, which are recorded in the transcript and which l see no reason to fully recite again in these reasons, I found:
a)The recommendation of Major Tattersall was not a “reviewable” decision within the meaning of s.3 of the AD (JR) Act.
b)The delay and choice of an internal review by the Applicant after the Osborne decision made 2 September 1999 persuaded me that l would not exercise my discretion to extend time in respect of that decision.
c)It was appropriate to dismiss the Application to extend time in respect to the decision of Gordon made 17 October 2000 as no probative benefit flows from an examination of the Gordon decision separately from permitting, as l indicated l would, the Applicant to made submissions on the grounds of any errors of law detected in the decisions of Osborne and/or Gordon and which the Applicant asserts had been erroneously adopted by Evans.
d)It was appropriate to extend the time in which to lodge an application for review on the Evans decision. This was not opposed by the Respondent.
As a result l ordered that the Application for Review filed the
18 January 2001 be dismissed (File BZ29 of 2001). I further ordered (File BZ628 of 2001) that the time for filing an Application to Review the decision of Brigadier Evans made 21 June 2001 be extended pursuant to s.11 (1) (c) of the AD (JR) Act to 21 November 2001.
Background facts
The Applicant was 38 years old at trial and was fully fit when he enlisted in the Australian Regular Army on 14 January 1980 at the age of 16. He trained and worked as a soldier/electronic technician. He complains in his evidence of various episodes of injury to his lower back during his service. On 28 January 1990 (after 10 years of service) he was discharged from the Army. He was as is the practice, medically examined at the time of his discharge by Army Medical Officers.
Between February 1990 and May 1990 he worked as a groundsman and then took up a position with Australia Post as an electronics technician which continued until 24 June 1996. He has not worked since.
At the time of his recruitment with Australia Post the Applicant said in his Declaration of 31 May 1990 that although he hurt his lower back in 1987, he had “physio, no problems since”. The comments of the Medical Officer at the time (Dr P.A. McKenna) were recorded in the form as:
“no loss of work time but had restricted duties”
(Australian Army)
It seems the Applicant’s declaration, albeit a brief statement by the Applicant, is not completely accurate as to time when compared to paragraphs 2 and 3 of the Applicant’s Affidavit filed 10 September 2001, namely:
2)“On 5 August 1986 whilst employed with the Army, l injured my back during a navigational exercise and continued to suffer pain and sciatica until December 1986 and then the pain subsided to a lower level.
3)On or about 18 December 1989 l suffered a further back injury whilst still employed with the Army when l slipped on some wet grass whilst playing touch football”.
Further the Applicant claims that at the time of his discharge from the Army “I was incapable of doing most of my Military Duties and many of my trade duties.” He says at paragraph 17 of his Affidavit that:
“since discharge my back has degenerated even further. There was a rapid deterioration after the accident of December 1989 and my back pain became chronically severe in early 1991.”
Certain officers were authorised by the Respondent to make determinations under s.37 of the DFRB Act as sought in the Applicant’s applications. In particular Brigadier Evans was authorised to consider such a request made by letter of 5 April 2001 from the solicitors for the Applicant in these terms:
“ we request that you reconsider your decision on the basis of the new Report that we have obtained from Dr McCombe dated
7 March 2001 a copy of which we enclose.
It is clear that Brigadier Evans, who does not hold any medical qualifications, forwarded the request and further medical report to the Joint Health Support Agency for expert advice. He received that advice on 13 June 2001 and a copy of the advice is annexure “ME3” to the Affidavit of Evans filed 23 October 2001. The decision maker Evans says he gave:
“consideration to the medical evidence and other material provided for and on behalf of the applicant and exercised my discretion on the basis of a consideration of the whole of the material”.
By letter dated 21 June 2001 (“the decision”) the Respondent, by his authorised officer Evans, responded formally to the Applicant’s request as follows:
“ you wrote to me on 5 April and 1 May 2001 requesting reconsideration of the decision made by Brigadier Gordon in his minute to you of 17 October 2000. Further to my letter of 11 May 2001, the Joint Health Support Agency (JHSA) has reviewed the report from Dr McCombe. JHSA has concluded that the claim of back pain at a level of 3 out of 10 in the period immediately prior to discharge is impossible to prove and cannot be related to criteria that would mean he could have been discharged on medical grounds. Therefore, it is necessary to consider the reports at the time of discharge, which held that he was fit to discharge.
The report also describes Mr Catton’s current condition, in that he suffers from significant back pain. What eventuated following discharge is of no consequence to determining if he could have been retired on invalidity grounds at the time of his discharge.
You appear to have based your request on the interpretation that the lack of optimal health at the time of discharge is sufficient grounds to meet the criteria that he ‘could have been retired on grounds of invalidity’. I do not agree. A member cannot be retired on invalidity grounds unless the member has a condition that will prevent operational deployment currently and in the long term.
I regret that l cannot be of assistance to you in this matter.”
Relevant statutory provisions
Section 5 of the AD (JR) Act provides:
1.“A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)That a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)That procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)That the person who purported to make the decision did not have jurisdiction to make the decision;
(d)That the decision was not authorised by the enactment in pursuance of which it was purported to be made;
(e)That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)That the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)That the decision was induced or affected by fraud;
(h)That there was no evidence or other material to justify the making of the decision;
(i)That the decision was otherwise contrary to law.
2.The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to:
(a)Taking an irrelevant consideration into account in the exercise of a power;
(b)Failing to take a relevant consideration into account in the exercise of a power;
(c)An exercise of a power for a purpose other than a purpose for which the power is conferred;
(d)An exercise of a discretionary power in bad faith;
(e)An exercise of a personal discretionary power at the direction or behest of another person;
(f)An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)An exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)An exercise of a power in such a way that the result of the exercise of the power in uncertain; and
(j)Any other exercise of a power in a way that constitutes abuse of the power.
3.The ground specified in paragraph (1) (h) shall not be taken to be made out unless:
(a)The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b)The person who made the decision based the decision on the existence of a particular fact, and the fact did not exist.
It is also appropriate in these reasons to recite s.37 of the DFRB Act, under which authority the decision was made, namely:
“Service Chief may inform authority of grounds of retirement”
37. Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.”
It is acknowledged that s.37 was designed to make decisions with hindsight, and can it seems be activated, at any time when evidence is available to seek a determination that grounds existed on which the retired contributing member could have been retired for invalidity or on other incapacity to perform his duties.
Statement of reasons
The decision of Evans of 21 June 2001 sets out some brief reasons. For reasons not explained by the Applicant, he did not avail himself of the opportunity to obtain:
“ a statement in writing setting out the findings on material questions of fact, referring to evidence or other material on which those findings were based and giving the reasons for the decision”.
(see s.13 (1) of AD (JR) Act).
Mr Ulrich for the Applicant says that many of the grounds under s.5 relied upon can be identified on the face of the notified decision. He gave, as an example, that the wording of the decision shows he hasn’t considered Dr McCombe’s Report and those of Dr Kahn and Dr Scott. He also submitted that with a CT scan taken on 1 August 1991 showing distinct damage, the review by the expert medical practitioner’s amounts to new evidence, which was not considered by Evans.
Brigadier Evans not only provided evidence by Affidavit he was cross examined before me. He said when he made his decision he considered the evidence in the case in “a holistic manner”. He says he had before him a number of Reports and the competing evidence of the Applicant. He said he did not find that the Applicant had “no injury” but found, by balancing the medical evidence proffered by the Applicant against the post discharge work history and Army medical advice, he preferred the evidence of the Army’s doctors.
I agree with the submission by the Respondent that there is no cogent evidence which would persuade me to find that the Brigadier’s testimony of the process he adopted should not be accepted. To the extent that to some degree the Applicant may have been disadvantaged by not seeking reasons under s.13, that is the Applicant’s difficulty. He bears the onus of proof.
Was it his decision?
As a result of my finding that Brigadier Evans did consider all the evidence available at the time of his decision I am not satisfied that he made his decision, as submitted by Mr Ulrich, at the behest of another person. I accept that if it had occurred, it could form a ground for review under s.5 (1) (e) (as expanded by definition in s.5 (2) (e)).
It is clear that Evans considered the Report by J.A. Ross from the Defence Health Service Branch and adopted in the wording of his decision some parts of the minute dated 13 June 2001. However, this does not mean that Evans gave “ no real independent attention to the discretion” (see Telstra Corporation LTD v Kendall (1995) 55 FCR 231).
I am satisfied that he did. No reasonable objection can be made to a non-medically qualified decision maker seeking an expert view on Dr McCombe’s report. This ground is not made out.
Failing to take a relevant consideration into account
The Applicant submits in a well prepared written submission on pages 7–9, that certain reports, documents and statements of the Applicant were not taken into consideration. In the absence of more fulsome reasons, and on the basis of my finding that Evans did consider the whole of the evidence (as he said he did), I cannot agree with the submission.
The Respondent says that an unfavourable result alone is not indicative of evidence being ignored. There was competing evidence available to the decision-maker to that offered by the Applicant (see, for a summary – paragraphs (iii) to (ix) at pages 5–7 of the Respondent’s submissions).
Whilst it is accepted, in the contest of judicial reviews, that the making of findings and the drawing of inferences in the absence of evidence is an error of law (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321), l find that the findings, (such as can be determined from the reasons offered), were open to the decision maker.
As Deane J observed in Sean Investments Pty Ltd v MacKellar (1981) 38 ACR 363 at 375; where relevant considerations are not specified in a statute it is:
“largely for the decision maker, in light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”
I am not satisfied that the decision maker Evans failed to take into consideration any relevant matter before him.
Applied the wrong test
The Applicant says that on the face of the decision the test applied by Evans was whether the evidence available at the time of discharge satisfied the s.37 invalidity or incapacity requirement.
If that was the test applied it could be wrong. The proper test is whether, on the totality of the evidence available at the time of the decision, the Applicant at the time of discharge was incapacitated in relation to the performance of his duties to the extent that discharge on medical grounds could have been warranted.
Evans says that whilst some evidence he considered (from JHSA) concluded “that the claim of back pain at a level of 3 out of 10 in the period immediately prior to discharge is impossible to prove” it was necessary to consider the reports at the time of discharge.
It is clear if I accept the testimony of Brigadier Evans (which l do), that the process he undertook was a full consideration of all the reports including those of Dr McCombes. I am satisfied that he considered the evidence available at the time of his decision and by so doing, applied the correct test.
The opinion of Dr McCombes of 7 March 2001 is “based on (Mr Catton’s) recollection of increased pain following the 1989 injury that did not settle to it’s pre-injury status of two out of ten”, and concluded that all he could say about the position at discharge relies “ solely on the history of increased pain”. The decision-maker did not accept this hypothesis. Such a view was open to him on the totality of the evidence.
Conclusion
A Court exercising judicial review of an administrative decision has a limited role (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ at 391) and the courts function on judicial review has been described as confined to deciding whether a decision maker has given proper, genuine and realistic consideration to the merits of the case (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 292)
For the reasons set out above, l am satisfied Brigadier Evans did give proper, genuine and realistic consideration to this matter. I therefore propose to order that the Application for Review be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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