Craven, Martin Leo v Commissioner for Superannuation
[1997] FCA 1136
•3 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
PUBLIC SERVICE - Gratuities, Retiring Allowances and Superannuation - retirement on ground of invalidity - retrospective issue of Benefit Classification Certificate - appeal from AAT - whether “personality trait dysfunction with reactive depression” could amount in law to a “mental condition” - whether variation by Tribunal of description of condition specified in Benefit Classification Certificate in breach of rules of natural justice - Superannuation Act 1976 (Cth).
Administrative Appeals Tribunal Act 1975 (Cth) - s 44(1)
Superannuation Act 1976 (Cth) - s 16AC
MARTIN LEO CRAVEN v COMMISSIONER FOR SUPERANNUATION
QG 87 OF 1996
FOSTER J 3 OCTOBER 1997 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 87 of 1996
BETWEEN:
MARTIN LEO CRAVEN
APPLICANTAND:
COMMISSIONER FOR SUPERANNUATION
RESPONDENTJUDGE:
FOSTER J
DATE OF ORDER:
3 OCTOBER 1997
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 87 of 1996
BETWEEN:
MARTIN LEO CRAVEN
APPLICANTAND:
COMMISSIONER FOR SUPERANNUATION
RESPONDENT
JUDGE:
FOSTER J
DATE:
3 OCTOBER 1997
PLACE:
BRISBANE
REASONS FOR JUDGMENT
(Extempore)
This is an appeal brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). It is confined to questions of law. The appeal is from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 23 May 1996 in which the Tribunal made orders setting aside that part of the decision of a delegate of the respondent dated 30 August 1989 and varied by the decision of another delegate dated 15 April 1994 regarding the issue in respect of the applicant of a Benefit Classification Certificate and substituting a decision that there be taken to have been issued on 29 August 1985 a Benefit Classification Certificate specifying the condition of “personality trait dysfunction with reactive depression”. It otherwise affirmed the decision under review.
In order to expose the questions raised in this appeal, it is necessary to refer briefly to the legislative framework and the factual background as it appears from the findings of the Tribunal and also to the Tribunal's decision. The issue of a Benefit Classification Certificate (“BCC”) mentioned in the Tribunal's orders is part of a procedure provided for by certain sections of the Superannuation Act 1976 (Cth) (“the Act”).
Section 16(2) authorises the respondent to require a person who becomes an “eligible employee” within the meaning of the Act to undergo a medical examination, a report of which is then furnished to the respondent (s 16(3)). If the respondent considers that there is a real risk that the employee, by reason of or for a reason connected with a physical or mental condition referred to in the report, will not continue to be an eligible employee until maximum retiring age, he can issue a BCC to that effect under s 16(4).
In certain circumstances s 16AC authorises the respondent to issue a BCC retrospectively. So far as relevant to this case, the respondent has such power if he is satisfied that:-
the relevant person, at or in connection with a s 16(2) medical examination failed, to answer properly a question asked of him or her (s 16AC(2)(a)(i)); and
if the person had answered the question properly, there would have been in force immediately before the person's retirement a BCC in respect of the person specifying a condition or conditions (s 16AC(2)(b)(ii).
In such circumstances, a BCC is issued by the respondent specifying the relevant condition or conditions (s 16AC(5)) and the BCC is taken to have been issued on the day that the respondent determines to be the day on which a BCC would have issued if the questions had been answered properly (s 16AC(8)). A BCC, when issued, affects the employee's eligibility for invalidity benefits otherwise available under the Act. Section 66(2) provides for reduced benefits if retirement before the attainment of maximum retiring age occurs for a reason associated with a BCC. This occurs where a BCC was in force in respect of the person immediately before retirement and the respondent is of the opinion that the incapacity which was the ground for retirement was “caused or substantially contributed to by” a physical or mental condition or conditions which was or were specified in the BCC, or by a connected physical or mental condition or conditions.
The following relevant findings of fact were made by the Tribunal as appears from its reasons and decision. The applicant became an eligible employee for the purposes of the Act on 22 August 1983. He was a Defence Department storeman. He underwent the prescribed medical examination on or about 19 September 1993 during which he was required to and did answer in writing a series of questions relating to his medical history. He failed to answer two questions properly which, had they been so answered, would have caused the examining medical officer to have made inquiries as a result of which he would have become aware that the applicant:-
had been admitted to Nambour Base Hospital in 1978 in an unconscious state after having attempted to slash his left wrist. On that occasion he was also found to have had a high level of the drug Oxezapam in his blood;
suffered self-inflicted injuries to his wrists in July 1982 and, on that occasion, was admitted to the Royal Brisbane Hospital and to the psychiatric department of the Prince Charles Hospital;
was medically assessed in July 1982 after such hospitalisation as having undertaken a planned suicide attempt and as having a dependent personality with marked reactive traits with a tendency for similar reactions remaining operative for a considerable period of time;
had lost his driving license three times for driving whilst well over the prescribed alcoholic limit; and
had consulted his general practitioner in August 1982 with complaints of weight loss, anorexia, not sleeping and depression for which he was prescribed appropriate drugs.
The Tribunal was satisfied that, had these matters been revealed to him, the examining medical officer would have sought the advice of an independent psychiatrist in relation to the applicant's medical and mental condition at that time. It was further satisfied that, had the respondent been in possession of all the information and advice that he would then have had, he would have been satisfied that the applicant had “a personality trait dysfunction with reactive depression” and that it was inherently likely that the pattern of reactive depression would continue to occur in the future in response to stressors that would occur during his lifetime and that there was “a real risk that for reasons associated with that reactive depression he would not continue to be an eligible employee until he reached maximum retiring age”. In these circumstances, the Tribunal was satisfied that the respondent would have issued a BCC specifying a mental condition of personality trait dysfunction with reactive depression.
In fact, the applicant was employed without any such BCC issuing. After becoming an eligible employee the applicant hurt his back in the course of his employment, continued to suffer pain, and “started to go downhill”. The work-related accidents to his back occurred in 1983 and 1984. He was off work on compensation until 1987. In May 1985, whilst off work, the applicant again attempted suicide whilst suffering from depression.
In December 1986 the applicant consulted an orthopaedic specialist, Dr Toft, who expressed the opinion that the applicant had a 10 per cent loss of efficient function in the lumbar spine equating to a 5 to 10 per cent loss of total bodily function. The applicant returned to work in 1987 but suffered further back pain and became agitated and depressed. In September 1988 a medical officer recommended that the applicant be retired from work on the ground of invalidity due to lower back pain (50 per cent) and anxiety depression (50 per cent).
The applicant was retired on the ground of invalidity with effect from 30 November 1988. On 30 August 1989 a delegate of the respondent determined that a BCC specifying “depressive reaction” should be issued in respect of the applicant and that the BCC should be deemed to have been issued on 29 August 1985, this being the date when in fact a decision had been made that there should be no BCC in respect of the applicant. The delegate further determined that the incapacity which was the cause of the applicant's retirement was caused or substantially contributed to by the mental conditions specified in the BCC or by a connected condition.
Upon the applicant requesting a review of this decision another delegate varied the BCC by substituting for the condition of depressive reaction the condition of “personality disorder with reactive depression”. This determination occurred on 15 April 1994. The previous determination was otherwise confirmed. It was against this last determination that the applicant sought review by the Tribunal.
On the basis of evidence before it the Tribunal further found that the applicant was incapacitated for work because of pain he felt in his back and the incapacity associated with that pain had led to his retirement. In this regard it accepted the evidence of Dr Toft, an orthopaedic specialist, who also stated that organic causes of the pain led only to a 5 to 10 per cent loss of the applicant's bodily function. The Tribunal was satisfied that the applicant was genuine but that his pain did not have a purely physical basis. His reaction to injury affected the degree of pain he suffered and the extent of the resulting incapacity. It also found that reactive depression contributed to a very great extent to the way the applicant regarded his back condition and to the incapacity he suffered as a result, so that the applicant's incapacity was substantially contributed to by his reactive depression.
The above is only a résumé of what appear to be the main findings of the Tribunal. It had before it extensive medical evidence, which it reviewed in great detail in a judgment of considerable length. The result of these findings was the making of the order set out earlier in these reasons. It held, in effect, that it was appropriate that the respondent should have issued a BCC in respect of the applicant and that it should have issued it as at 29 August 1985. As a result of medical evidence, which it accepted, it varied the condition specified in the BCC from personality disorder with reactive depression to “personality trait dysfunction with reactive depression”. It was satisfied that the incapacity, which was the ground for the applicant's retirement, was substantially contributed to by his reactive depression with the result that the requirements of s 66(2)(c) were made out.
On appeal to this court the applicant has argued four grounds for the setting aside of the Tribunal's decision on the basis of error of law. The first is that the decision was vitiated by the occurrence of procedural unfairness to the applicant during the course of the hearing. It was submitted that this occurred in the following way. The BCC determination in respect of which the application for review was brought stipulated the condition of “personality disorder with reactive depression”. This, it was said, was the case that the applicant came to meet. In fact he was successful insofar as the Tribunal after consideration of the medical evidence was not satisfied that a personality disorder had been established. However, the Tribunal found that a less significant condition of personality trait dysfunction had been established and accordingly varied the decision of the delegate. It was submitted that the Tribunal failed to put the applicant on notice that it was proposing to follow this course, thereby depriving the applicant of the opportunity to respond to this proposal. Thus, it was said, a denial of natural justice occurred.
I am quite unable to accept this submission. In the first place, it is clear that both conditions involved as a significant component “reactive depression” and it was this mental state which was conducive to the applicant's work incapacity through its contribution to his inability to cope with the relatively small degree of organically caused back pain. The change in the “personality” aspect of the diagnosis appeared quite clearly in the evidence of Dr Mulholland, the psychiatrist called on behalf of the applicant, when he said a more accurate description would be the term “something like ‘personality trait dysfunction’ which is a more recognisable term with such-and-such features, and the term ‘reactive depression’ that’s okay”. Dr Grant, a psychiatrist giving evidence for the respondent said that he would have come to the conclusion that there was “very probable serious personality dysfunction” and “a tendency to become despondent in response to stress”.
This change in approach to the personality aspect of the applicant's problem was clearly raised in the evidence called by both sides, making it likely that it would win acceptance from the Tribunal. It must be clearly remembered that the Tribunal's role is a wide one. Under s 43 of the AAT Act it can exercise all the powers and discretions of the original decision maker and, inter alia, may vary the decision under review. The applicant was represented by counsel who, faced with the prospect that the evidence could lead to such a variation, had the ordinary procedural rights of cross-examination and re-examination and also of seeking an adjournment if an unexpected turn of events in the evidence was productive of prejudice. It must be presumed, of course, that counsel would have understood that the Tribunal would make a decision on the evidence before it. Indeed, in my view, little if anything hinged upon the diagnostic change from personality disorder to personality trait dysfunction. Each was productive of an associated reactive depression which was clearly, on the evidence, the disabling factor. There are, of course, some cases in which denial of natural justice has occurred in Tribunal proceedings. Authorities in this regard have been cited to me. I find it unnecessary to refer to them. This, in my opinion, is clearly not such a case.
The next error of law asserted relates to the Tribunal's finding that the applicant suffered “a personality trait dysfunction with reactive depression”. It was submitted that this could not amount in law to a “mental condition” within the meaning of s 16AC of the Act. It was contended that a “condition” required that there be, as it was put, “a continuous existence and presence of a medical symptomatology in the applicant, and not a mere tendency or propensity to illness”. It was also put that the evidence established no more than that the applicant had a “vulnerability to depression occasioned by stress”, and that this could not qualify relevantly as a condition which could be the basis of a BCC.
It is my view that the question of whether a person has a “mental condition” within the meaning of s 16AC is essentially one of fact to be determined on the evidence in the case. A question of law can arise only if a finding that the condition exists is attacked on the basis that there was no evidence to support it. I consider that this is the effect of the Full Court's consideration of the matter in McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 207. I am satisfied that the Tribunal had before it evidence from which it could reach the conclusion that the applicant's personality trait dysfunction with reactive depression was relevantly a mental condition, even if it did not have the more serious characteristics of a personality disorder.
The Tribunal was properly aided by expert testimony in reaching the decision that it did. Amongst other evidence it had before it were the following passages from the evidence of Dr Mulholland, the psychiatrist called on behalf of the applicant. That doctor said of the applicant that “it sounds as though he does have some impulsive dependent self destructive and histrionic traits” and that he had “a problem of impulsivity”. He was also asked the following questions and gave the following answers:-
“Question: Doctor, there is a benefit classification certification in respect of Mr Craven which says ‘personality disorder with reactive depression’. Now, given all these incidents would you say that that is a fair description of Mr Craven - Mr Craven's condition, rather?
Answer: Well, not really because I don't agree with the diagnosis of personality disorder.
Question: All right. Would you rather, doctor, that these terms ‘impulsive, dependent, self-destructive and histrionic traits’ be shown in the certificate?
Answer: I would have -well, from where I sit a more accurate description would to - would be the term something like ‘personality trait dysfunction’ which is a more recognisable term with such-and-such a features, and the term ‘reactive depression’ that’s okay.”
I am satisfied that the doctor was prepared to regard the applicant as relevantly suffering from a “condition”. At the very least this and other material in the case provides evidence from which the Tribunal could readily so find. Accordingly, I reject this ground of appeal.
The next ground relates to the date attributed by the Tribunal to the BCC. It was put that as a matter of law it should have chosen an earlier date which might in some fashion, not made entirely clear to me, have been more beneficial to the applicant's case. As already referred to, the respondent, and hence the Tribunal, was empowered to issue the BCC as at the day on which the respondent determined the BCC would have issued if the relevant questions had been answered properly. The respondent and the Tribunal chose the day on which, apparently, the question whether there should be a BCC at all was, in fact, considered and determined in the negative. There is, in my opinion, no discernible error of law in this situation.
The final error of law asserted relates to causation. It is submitted that as a matter of law the Tribunal could not have found that the applicant's mental condition caused or substantially contributed to his retirement incapacity. This was because the evidence of the orthopaedic specialist, Dr Toft, accepted by the Tribunal, made it “clear that his physical disability was sufficient to warrant retirement”.
In my view, this submission misconceives the effect of the doctor's evidence. In his report the doctor had said that “this man's back condition could have, on its own, resulted in his retirement on the grounds of invalidity”. In his oral evidence, however, the doctor explained the statement in a manner which made it plain that he was not referring merely to the on-going physical or organic effects of the work accidents upon the applicant's back, but also to the applicant's emotional reaction to those effects. After answering a number of questions he summed up his opinion as follows:
“Well, I suppose to be precise his presentation with a back disability I would say is not all organic. I mean, perhaps I am splitting hairs but I believe he has some degree of organic back disability but he also has other things which present as an overall back problem.”
In my opinion the evidence amply supports the Tribunal's findings as to the relatively minor role played by the applicant's organic back condition. I have already referred to those findings. Consequently no error of law in this regard is established. I therefore find that the application fails. I dismiss it with costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Associate:
Dated: 3 October 1997
Counsel for the Applicant: Mr N. Thompson Solicitor for the Applicant: Poteri Woods Counsel for the Respondent: Mr P.J. Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 October 1997 Date of Judgment: 3 October 1997
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