Collins v Royal Australian Air Force

[2000] FCA 208

FEDERAL COURT OF AUSTRALIA
Collins v Royal Australian Air Force [2000] FCA 208

MICHAEL COLLINS v ROYAL AUSTRALIAN AIR FORCE
No. N651 of 1999

WILCOX J
SYDNEY
25 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY	N651 of 1999

BETWEEN:	MICHAEL COLLINS Applicant
AND:	ROYAL AUSTRALIAN AIR FORCE Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	25 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for extension of time to appeal against the decision of the Administrative Appeals Tribunal dated 16 March 1999 be dismissed.

2.The costs of the application be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N651 of 1999

BETWEEN:	MICHAEL COLLINS Applicant
AND:	ROYAL AUSTRALIAN AIR FORCE Respondent

JUDGE:	WILCOX J
DATE:	25 FEBRUARY 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application for an order extending the time in which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal.  The decision of the Tribunal was given on 16 March 1999.  It is agreed between the parties that notification of the decision would have been received by the applicant, Michael Collins, about 22 March 1999.  The time limited for filing a notice of appeal to this Court from a decision of the Tribunal is 28 days from receipt of the Tribunal’s written decision.  This means the period within which the appeal should have been filed expired on 19 April.  In fact, the application was filed on 1 July 1999, that is about 2½ months out of time.

2. I indicated to Ms Patricia Lane, counsel for the applicant, a tentative inclination to extend time if I could be satisfied there was a fairly arguable case in support of an appeal.  Although no appeal is before me for hearing, in view of that indication, Ms Lane took me in some detail to the arguments that might be put at the hearing of any appeal. 

3. At the heart of Ms Lane’s submissions is the complaint that the Tribunal, which was constituted by Senior Member Allen, did not give Mr Collins a fair opportunity of presenting his case.  For the purpose of making good this submission Ms Lane took me through the transcript of the hearing, and also the T documents that were provided to the Tribunal by the Department of Defence prior to the hearing.  The only additional document that was before Mr Allen appears to be a report by a psychiatrist, Dr Alexander Murray, dated 10 November 1998.  That report read as follows:

   “Over four consultations I have performed a psychiatric assessment on Mr Collins.  Mr Collins suffers symptoms of depression and is equivocal for a diagnosis of Major Depressive Disorder (DSM IV).  Dysthmic Disorder (DSM IV) is the relevant alternative diagnosis.  Mr Collins describes associated symptoms of anxiety, but these are insufficient to sustain the diagnosis of an independent anxiety disorder.

   Mr Collins has a history of alcohol abuse but tells me that he has not drunk alcohol since 1995.  Corroborative information provided by Mr Collins does suggest the possibility of pre-existing personality disturbance; however, the information available is insufficient to form a diagnostic opinion in relation to this possibility.

   Mr Collins asserts, and provides a story consistent with the assertion, that his emotional difficulties are the result of conflict he experienced with the Royal Australian Air Force while, and after, he worked for that organisation.  He was discharged in November, 1995.

   A more complete report is available on written request.”

   The report was addressed to Mr Collins at his home at Raymond Terrace, with a copy sent to his local general practitioner, Dr K.K. Low.  Apparently no request was made for a more complete report.  This was the only medical evidence tendered by Mr Collins at the hearing.

4. The transcript reveals that Mr Collins appeared well after the time appointed for commencement of the hearing.  Mr Collins explained that he had forgotten the date; it was only because he was contacted by the Tribunal that he came to the hearing.  I accept Ms Lane’s suggestion that Mr Collins was probably flustered when he arrived.  Mr Allen seems to have understood this.  He asked Mr Collins whether there were any materials he had omitted to bring.  It appears Mr Collins omitted to bring his copy of the T documents; but the transcript does not suggest that there were other materials that Mr Collins would have brought had he not rushed.

5. Mr Allen, of course, had the T documents.  I have no doubt he read them before the hearing.  He made a reference to them at the outset.  Mr Allen then received Dr Murray's report in evidence.  After satisfying himself that there were no other documents, and inquiring whether Mr Collins had been able to obtain legal aid, Mr Allen invited Mr Collins to give evidence.  Mr Allen took him through the formalities as to his name, address and current employment situation.  In fact, Mr Collins was unemployed at the time.  Mr Allen then asked Mr Collins about his service in the Royal Australian Air Force (“RAAF”), his marriage and separation from his wife.  This apparently occurred whilst Mr Collins was serving in the RAAF at Tindal in the Northern Territory.  Mr Allen then asked Mr Collins about problems that had occurred Tindal.  Those problems were at the heart of Mr Collins’ grievance against the RAAF; a grievance which culminated in Mr Collins leaving the RAAF, according to Mr Collins under some pressure. 

6. The transcript reveals that Mr Collins then spent a considerable time informing Mr Allen of his problems at Tindal.  His evidence about these matters occupies some 12 pages of transcript with only minimal interventions by Mr Allen to clarify a factual matter that had just been stated; in particular, to obtain information about dates and similar matters.  The transcript reveals no questions that could be described as intimidating or badgering or as indicating a preconceived view.  On the contrary, it seems, Mr Allen took considerable pains to ensure that Mr Collins put fully before him the story he wished to tell.  Towards the end of that evidence Mr Collins recounted his discharge from the Air Force. 

7. During the course of Mr Collins’ account there were several references to his drinking problems, as there were in the T documents.  Mr Allen asked Mr Collins when he had last had a drink. and Mr Collins gave him a date coincided with his discharge from the RAAF.  Mr Allen did not challenge this, but asked Mr Collins about his current medical attention.  Mr Collins said he had seen Dr Low but was not currently seeing him and that, since he left RAAF, he “seemed okay”.  Mr Allen asked Mr Collins about Dr Low referring Mr Collins to Dr Murray.  Mr Collins replied that he had seen Dr Murray.  He mentioned the cost.  Mr Collins said he was not under any medication and that he had told him just to “get back into things” to “get over the stress”.  There is evidence of stress during the period covered by the  T documents. 

8. Mr Allen then tried to ascertain what was the basis of Mr Collins’ claim for compensation.  Mr Collins said he should have been able to complete the five years he had in the RAAF.  This was a reference to the fact that, if he had served for another five years, he would have been entitled to a pension.  Mr Allen told Mr Collins that that was not the issue before him, he was concerned with the Safety Rehabilitation and Compensation Act 1988 and the question whether compensation should be awarded under that Act.  Mr Allen pointed out that a compensation claim required some evidence of the claimant’s medical condition.  He expressed the opinion that there was no evidence of a disability. Mr Allen pointed out that Mr Collins was not under any treatment or medication at the present time.  He expressed the opinion that Dr Murray's report indicated the symptoms were not such as to indicate a current psychiatric problem.  He also confirmed with Mr Collins that he had not lost any salary or wages during the time he was in the Air Force.  But Mr Collins responded there were times when he was not being paid as a steward which made him angry.

9. Mr Allen attempted to bring the subject back to the compensation claim.  The conversation about that matter went on over several pages of transcript.  At the end of that conversation Mr Allen said:

   “You see, what strikes me, Mr Collins, is that for a variety of circumstances you were obviously under a great deal of pressure and stress at times during your RAAF service, but as things stand at the moment there is no evidence before me that you are currently suffering any incapacity which can be compensated.”  

   Mr Collins answered, "Right."  Mr Allen then commented:  “it is not as if you are seeing Dr Low every week and he is treating you for ongoing symptoms of depression or anxiety state”.

10. Ms Lane has been critical of the way in which Mr Allen conducted the hearing.  However, having read the transcript, I feel Mr Allen did all he could expected to have done.  Mr Collins was not legally represented.  As Mr Collins has explained in evidence before me , he was a person with minimal education.  I have no doubt that he might have had trouble coping with legal concepts and medical issues.  But it is apparent that Mr Allen was aware of this and tried to deal with the case in simple language and in a way that would enable Mr Collins to understand what he had to establish.  I have difficulty in seeing what more he could have done.

11. Ms Lane put to me that Mr Allen should have drawn an inference from the T documents that there was a medical problem, even though none of the several medical officers who had seen Mr Collins during his period in the RAAF, and whose reports were in the T documents, expressed an opinion to that effect.  I do not agree with this.  Mr Allen was bound to give proper consideration to the T documents, and I have no reason to doubt he did that; but I do not think it was any part of his function to read between the lines, as it were, and to attribute to the doctors opinions they had did express, and which in my opinion do not arise as a matter of natural inference from the language they chose to use.

12. Dr Murray's report really says no more than that he had assessed Mr Collins as suffering symptoms of depression, with a possibility of major depressive disorder or dysthymic disorder.  He does not deal with the cause of the depression, except to record Mr Collins' assertion that his “emotional difficulties” (by which, I take it, Dr Murray meant the symptoms he had earlier referred to) were the result of conflict experienced whilst with the Royal Australian Air Force.  Dr Murray also records Mr Collins' history of alcohol abuse.  There seems no doubt of a longstanding history in regard to that matter. 

13. Although I appreciate that Mr Collins was not legally represented, the issue Mr Allen had to assess would not have come to him as a surprise.  There had been two earlier assessments of his claim for compensation.  He went to the Tribunal by way of application for review of the more recent of them.  That assessment was made by Paul Jones, who described himself as “delegate SRCA”, being apparently an officer of the Defence Corporate Support Centre in the Department of Defence.  Mr Jones' letter to Mr Collins dated 15 December 1997 identified his task as being:

    “Reconsideration of the decision of 2 October 1997 to deny liability in respect of stress/depression.”

    Mr Jones indicated it was his decision to affirm the decision of the delegate dated 2 October 1997.   He went on to give reasons.  The reasons included the statement:

    “I am not satisfied on the evidence before me that you do suffer from a diagnosable psychiatric/psychological condition.  If it could be shown that you did suffer from such a condition then the circumstances of your military service that you allege caused this condition are excluded under various provisions in the SRCA.  Compensation is not payable as a result of an injury or disease resulting from a failure to gain a benefit or as a result of reasonable disciplinary action.”

    It will be noted that Mr Jones was not satisfied there was a “diagnosable psychiatric/psychological condition.  Obviously, he had to be satisfied about that in order to admit a compensation claim; otherwise there would be no "injury" within the meaning of the Safety Rehabilitation and Compensation Act.  Mr Jones made it plain to Mr Collins that he was not satisfied about that matter.  So it must have been obvious to Mr Collins that this was an issue he had to face in proceedings challenging Mr Jones' decision.

14. The application to the Tribunal, perhaps revealingly, shows Mr Collins was really concerned about something else.  In response to the item “reasons for application”, he hand wrote the following:

    “Didn't get justice with my complaint about racial remarks, delayed tactics, said you can't win against these people which made me angry and upset at Tindal RAAF Base, NT.”

    This is obviously a reference to a matter that Mr Collins ventilated at some length at the Tribunal hearing, being that a complaint had been made against him in respect of remarks he was said to have made concerning Aboriginal employees at the base.  He felt he was not given justice in the way this was handled.  The complaint was subsequently withdrawn. 

15. It seems to me significant that, in his Tribunal application, Mr Collins did not canvas the matter of whether he suffered a psychiatric/psychological condition, despite the fact that the application was filed on 9 January 1998 that is to say after the letter from Mr Jones.

16. Dr Murray's report was prepared after the filing of the application but it does not provide the evidence Mr Jones had said was lacking. 

17. I agree with Ms Lane that, if there was evidence before the Tribunal that indicated, as a matter of probability, the existence of a compensable injury, then it would have been Mr Allen's duty to assess this; and to address the question whether that evidence was negatived by other evidence that was before him.  I also agree with Ms Lane that Mr Allen did not really call upon the respondent to meet a case made by Mr Collins.  But that is because he thought there was no such case.  If that was correct, there was no need for him to expend time allowing the respondent to demolish something which did not exist. 

18. In my opinion, there was no such case.  I do not think this was because Mr Allen failed to give Mr Collins a fair hearing.  On the contrary, as I have said, I think Mr Allen took a lot of trouble to ensure that he did provide a fair hearing.  It is conceivable that, if new material were provided, a decision-maker might take a different view on the question whether Mr Collins has suffered compensable injury and has a claim under the Act.  I make no comment about that.  I simply say I do not think there was evidence before Mr Allen that required him to take a course different from that which he did. 

19. This being so, it seems to me any appeal is doomed to failure.  I do not think, under those circumstances, it would be a correct exercise of my discretion to extend time for the filing of a notice of appeal.  I dismiss the application for an extension of time.  I reserve the respondent’s right to apply for costs, if so advised.  That may be done by a letter addressed to my associate with a copy to Ms Lane. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             25 February 2000

Counsel for the Applicant:	Ms Patricia Lane
Solicitor for the Applicant:	Bruce Woolf Associates
Counsel for the Respondent:	Mr David Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 February 2000