Defence Force Retirement and Death Benefit Authority v Barber
[2004] FCA 826
•29 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Defence Force Retirement & Death Benefit Authority v Barber [2004] FCA 826
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal decision setting aside reclassification under Defence Force Retirement and Death Benefits Act 1973 (Cth) – respondent an electronics technician in Australian Army since 1984 – retired in 1997 on ground of invalidity – respondent also qualified as physical education instructor and driver – initially classified as eligible for class A benefit – reclassified by Applicant in 2000 as class B – issue before Tribunal whether qualifications as heavy vehicle driver, physical education instructor and clerk should be included in assessment –– whether Tribunal erred in law by failing to follow reasoning process required by the Act –– whether Tribunal required to respond to all legal arguments in submissions – whether in any event matter should be remitted
Defence Force Retirement and Death Benefits Act 1973 (Cth), s 34(1A)
Administrative Appeals Tribunal Act 1975, s 44(1)Defence Force Retirement and Death Benefit Authority v House (1989) 22 FCR 138 at 141 applied
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 applied
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62] applied
Defence Force Retirement and Death Benefit Authority v House (1989) 22 FCR 138 at 141 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 appliedDEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY v JAMES ARTHUR BARBER
NO. TAD21 OF 2003HEEREY J
29 JUNE 2004
MELBOURNE (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD21 OF 2003
BETWEEN:
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
APPLICANTAND:
JAMES ARTHUR BARBER
RESPONDENTJUDGE:
HEEREY J
DATE OF ORDER:
29 JUNE 2004
WHERE MADE:
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The applicant pay the respondent’s costs, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD21 OF 2003
BETWEEN:
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
APPLICANTAND:
JAMES ARTHUR BARBER
RESPONDENT
JUDGE:
HEEREY J
DATE:
29 JUNE 2004
PLACE:
MELBOURNE ( HEARD IN HOBART)
REASONS FOR JUDGMENT
The respondent Mr James Arthur Barber served in the Australian Army. With effect from 11 May 1997 he was retired from the Defence Force on the ground of invalidity. His percentage of incapacity in relation to civil employment was classified under s 30 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act) as Class A, i.e. sixty per cent or more. In 2000 Mr Barber was reclassified by the applicant Defence Force Retirement and Death Benefits Authority (the Authority) under s 34 of the Act to Class B, i.e. more than thirty per cent but less than sixty per cent. That reclassification was confirmed by the Authority on a reconsideration under s 99 of the Act. Mr Barber then sought review by the Administrative Appeals Tribunal (the Tribunal) which set aside the reclassification and substituted a decision that Mr Barber was to be paid a pension at the rate of Class A with effect from 12 December 2000. The Authority now appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from that decision.
Legislative framework
Part V of the Act deals with invalidity benefits. By s 26, where a “contributing member” (i.e. a member of the Defence Force who has been contributing to the scheme established by the Act) is retired on the ground of invalidity or a physical or mental incapacity to perform his [sic – the Act does not seem to have caught up with gender neutral language] duties he is entitled on retirement to invalidity benefit in accordance with Part V. Section 30 provides for the initial classification of “percentage of incapacity in relation to civil employment” as follows:
Percentage of Incapacity Class
60 % or more A
30 % or more but less than 60% B
Less than 30 % CSection 34 deals with reclassification. Subsection (1) provides that the Authority may from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of the member is such that classification should be altered, reclassify him in the appropriate classification set out under s 30 according to the percentage of his capacity in relation to civil employment. Subsection (1A) relevantly for present purposes provides:
“In determining:
(aa)what is the percentage of incapacity in relation to civil employment of a recipient member; or
(aab) …
the Authority shall have regard to the following matters only:(a)the vocational, trade and professional skills, qualifications and experience of the recipient member;
(b)the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);
such other matters (if any) as are prescribed for the purposes of this sub-section.
Sub-section (1B) provides:
“In sub-section (1A), ‘prescribed physical or mental impairment’, in relation to a recipient member…means:
(a)a physical or mental impairment of the member that was the cause, or one of the causes of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).
Mr Barber’s career in the Army
Mr Barber was born in 1967 and enlisted in the Army on 3 October 1984 as a specialist electronics technician trainee. The Tribunal found that his aptitude and commitment led to high specialist ranks and supplementary qualifications in other fields, and in particular heavy vehicle driver and physical education instructor. He intended to pursue a lifetime career in the Army. In January 1992 he received the Army Medallion for Exemplary Service.
Mr Barber’s qualification as a driver, grade 1, was obtained after undergoing a special course. The qualification enabled him to drive any heavy vehicle, including buses, other than articulated vehicles. To upgrade to an articulated vehicle involved only doing a reversing test.
In 1991, after a seven-week course at HMAS Cerberus, Mr Barber qualified as a physical education instructor.
In addition to his work as an electronics technician, Mr Barber put his driving and physical education qualifications to substantial use during his time in the Army.
During service he sustained injuries to both ankles (April 1986 and May 1992), the toes of both feet (March 1988) and then a major spinal injury in April 1996 which led to his medical discharge on 12 May 1997. The physical impairment giving rise to his retirement was stated to be “spinal canal stenosis, L4/5, L5/S1 disc protrusions”.
Classification under the Act
On 8 May 1997 the Authority determined Mr Barber’s percentage of incapacity under s 30 as Class A. In the light of his vocational, trade and professional skills, qualification and experience the kinds of civil employment which a person of those skills, qualification and experience might reasonably undertake were determined to be
- Electrical instrument fitter
- Workshop supervisor (electronics)
At this point it is relevant to note that throughout Mr Barber’s dealings with the Authority there have been questions whether the kinds of civil employment which a person with his skills, qualification and experience might reasonably undertake should include heavy vehicle driver, physical education instructor and/or clerk. On his initial classification in 1997 Mr Barber had argued only (successfully it would seem) against the inclusion of clerk. In the course of the subsequent reconsideration proceedings he was asked why he had not suggested that driver and physical education instructor be included. He said that as his incapacity was assessed at Class A it had been of little consequence that the employment kinds were not entirely correct. It had not been until the time of the reconsideration (September 2001) that he had realised the implications of not having all appropriate employment kinds included for assessment purposes.
Civil employment
After his retirement from the Army Mr Barber enrolled at the University of Wollongong and in 1999 graduated Bachelor of Commerce. He moved to Hobart and on 9 February 2000 started work as a graduate taxation officer in the Australian Taxation Office. He remained in that position until 15 November 2000 when he was appointed a taxation officer. In the work from then on he experienced difficulty in sitting, standing, moving about the office, operating the computer and meeting scheduled workloads while trying to cope with pain. He lived some distance from Hobart and found driving to and from work difficult. His family relationship became strained and he experienced depression in trying to meet performance standards. At the office he had to forego some anti-inflammatory tablets because they caused stomach problems and the regime of painkillers had debilitating effects on his senses making him lethargic and incapable of remembering things. He took a great deal of sick leave and increasingly used alcohol as a coping strategy. Eventually he resigned from the Australian Taxation Office in late 2001 and has been unemployed ever since.
Reclassification
Mr Barber was reviewed for the purpose of s 34 by a delegate of the Authority on 12 December 2000. On the basis of his tertiary qualifications and relevant employment, clerk was added as an appropriate employment kind and he was reclassified as Class B with effect from 12 January 2001.
Part of the material before the Authority on the reclassification was a report dated 9 November 2000 from Mr Donald Jones, a consultant orthopaedic surgeon retained by the Authority. Mr Jones is responding to a letter from the Authority dated 30 September 2000. That letter does not seem to have been included in the T documents. However it is reasonable to infer that it sought amongst other things Mr Jones’ opinion of Mr Barber’s capacity to undertake employment as an electrical instrument fitter, workshop supervisor (electrics) and taxation officer. Mr Jones states in his report of 9 November 2000 (those parts underlined I infer to be taken from the Authority’s letter, emphasis otherwise is in original):
“In answer to the specific question set out in your letter dated 30 September 2000 I advise:
Impairment: Spinal canal stenosis and L4/5, L5/S1 disc protrusion
Kinds of Employment: Electrical Instrument Fitter, Workshop supervisor, Electrics Taxation Officer (subsequent to discharge.)1. [Comments on incapacity]
2.An assessment of the extent to which Mr Barber’s capacity to undertake each kind of employment has been diminished by the listed impairment and an overall assessment which assumes an equal weighting for each kind of employment. (This may either be expressed as a percentage or in the following equivalent terms:
Minimal:Less than 10%
Small:10% to less than 30%
Moderate:30% to less than 60%
Large:60% to less than 100%
Total:100%
It is my opinion that Mr Barber’s capacity to undertake employment as an electrical instrument fitter has been diminished by a large extent, 60% to less than 100%.
His capacity to undertake employment as a workshop supervisor (electrics) has been reduced by a large extent, 60% to less than 100%.
Mr Barber’s capacity to undertake employment as a taxation officer has been diminished by a small extent, 10% to less than 30%.
An overall assessment assuming an equal weighting for each kind of employment would be expressed as moderate 30% to less than 60%.”
Reconsideration of reclassification
As already mentioned, Mr Barber sought reconsideration of his reclassification pursuant to s 99 of the Act. On 4 May 2001 he wrote to the Authority a letter which included the following:
“In particular, I am requesting that the authority reconsider their decision regarding the ‘kinds of civil employment’ that have been used for the purposes of forming an opinion. The written notice of review indicates that the following employments have been considered:
·Electrical Instrument Fitter
·Workshop Supervisor, and
·Clerk.
During my employment with Defence I undertook several formal training courses aimed at developing employment specific skills. Several of these courses are reflected in the previous kinds of employment used in the review whilst others have not. I am unsure as to the reasons behind this and feel that the other courses deserve consideration for similar reasons to the ones already included.
I have completed two other employment specific course being:
·Diver [sic, obviously Driver], and
·Physical training instructor.
During my employment with Defence I was employed in both these roles. Both these roles have civilian equivalent forms of employment and the formal training that I received is recognised in these industries. I am therefore formally able, if not physically, to perform these roles in a civilian capacity. As such I believe these two kinds of employment should be included in any review that is taken regarding my benefit classification.”
On 14 June 2001 the Authority wrote to Mr Jones stating amongst other things that the Authority would be directing its attention to:
(a)the impairment which caused Mr Barber’s retirement from the Defence Force – currently described as “Spinal Canal Stenosis, L4/5, L5/S1 Disc Protrusions”;
(b)any impairment(s) considered to be causally connected with the retirement impairments (Note: to be causally connected an impairment must be caused by a retirement impairment or by treatment of a retirement impairment); and
(c) the extent to which impairment has diminished Mr Barber’s capacity, as at 12 December 2000 (when the decision was taken), to undertake civil employment and, in particular, employment as a:
Electrical Instrument Fitter;
Workshop supervisor (Electronics);
Clerk;
Driver; and
Fitness instructor.”The letter continued:
“You have already assessed Mr Barber’s incapacity for the first three employment kinds. Copies of extracts from ASCO [Australian Standard Classification of Occupations], 2nd Edn are enclosed which may provide some guidance in understanding the nature of duties involved in Driving and Fitness Instructor. Would you please also comment on the following:
(a)comments relating to the nature of any restrictions (resulting from the impairment) which Mr Barber would experience in undertaking civil employment and in particular the employments kinds of Driver and Fitness Instructor;
(b)an assessment of the extent to which Mr Barber’s capacity to undertake employment has been diminished by the impairments (as at 12 December 2000). It is requested that you provide an overall assessment on the basis of the five employment kinds, as well as separate incapacity assessments for the latter two. The assessments may be expressed either as a percentage or in the following equivalent terms:
Minimal: Less than 10 %
Small: 10 % to less than 30%
Moderate: 30 % to less than 60%
Large: 60 % to less than 100 %.
(c)comments on whether the impairments are likely to improve or deteriorate to such an extent as to significantly alter Mr Barber’s capacity for employment.” (Emphasis in original)
On 30 June 2001 Mr Jones responded as follows:
“It is my opinion that the claimed impairment of spinal canal stenosis and L4/5 and L5/S1 disc protrusions have diminished Mr Barber’s capacity as at 12 December 2000, to undertake civil employment as a driver by a moderate amount, 30% to less than 60% and a fitness instructor by a large amount, 60% to less than 100%.
It is my opinion that his impairment is likely to deteriorate over a long period of time and also Mr Barber’s capacity for employment in the long-term.
My overall assessment, based on the five employment kinds, is that Mr Barber’s capacity to undertake employment has changed to a large amount, i.e. 60% to less than 100%.
I trust that the foregoing meets your requirements regarding this patient. Please do not hesitate to contact me if I can be of any further assistance.”
In affirming the reclassification to Class B, the Authority noted that Mr Barber had requested reconsideration of the delegate’s decision of 12 December 2000 submitting that he had been trained for the employment kinds of “driver” and “physical training instructor”, and that he claimed that both employment kinds should have been included for the purposes of assessing his incapacity.
In its reasons for affirming the reclassification the Authority sets out the evidence which had been available to the delegate and also “Additional Evidence”. Inexplicably this does not include the Authority’s letter to Mr Jones of 14 June 2001 and his reply of 30 June 2001. The Authority dealt with Mr Barber’s claim to introduce the new employment kinds as follows:
“Whilst acknowledging that driving and physical training instruction are for many people, recognised employment kinds in their own right, his additional training in these fields, particularly driving, allowed him to perform peripheral duties of his ECN [i.e. Army employment category]. Thus the Authority saw no reason to include driver and physical training instructor as separate employment kinds.”
The Authority concluded that the “appropriate employment kinds” for Mr Barber were “Electronic Instrument Fitter, Workshop Supervisor (Electronics) and General Clerk.”
It is a quite unwarranted gloss on the plain words of s 34(1A)(a) to exclude qualifications on the ground that they only enabled the recipient member to carry out tasks deemed “peripheral” to his Army duties. In Chambers v Repatriation Commission (1995) 55 FCR 9, which concerned an equivalent provision in the Veterans’ Entitlements Act 1986 (Cth), Moore and Sackville JJ pointed out (at 20):
“The authorities strongly support the view that a narrow approach is not to be taken to the construction of either [the equivalents of s 34 (1A) (a) or (b)].”
Later their Honours noted (at 23):
“A person’s skills are not confined to those acquired in formal training or by virtue of experience in particular employment.”
Their Honours further noted (at 23) that in the provision equivalent to s 34(1A)(a) the three adjectives should be applied distributively to the three nouns. Thus the paragraph would cover “vocational (or trade) qualifications” or “vocational (or trade) skills” irrespective of experience.
If skills or qualifications not in fact used by a person may qualify for the purposes of subs (1A)(a), so much the more will skills or qualifications actually used, albeit “peripherally”. As will be seen, before the Tribunal the Authority implicitly abandoned this argument.
Tribunal hearing
It will be recalled that in his supplementary report of 30 June 2001 Mr Jones had assessed Mr Barber’s impairment capacity to undertake employment as a civil driver by a moderate amount, 30 per cent to less than 60 per cent (even so, at that stage Mr Jones put the overall assessment at 60 per cent to 100 per cent). In cross-examination at the Tribunal hearing he said that he had assumed a driving task in a military environment. He agreed that civil driving may involve more onerous tasks and having to deal with tasks fairly autonomously. He was asked about truck drivers securing loads with chains and ropes and lifting heavy items. He accepted that at the easier end of civilian driving such as a courier driver the figure would be thirty per cent and in terms of driving heavy goods vehicles over long distances very close to one hundred per cent. He was asked (AB 418):
“Would you be prepared to make an estimation of the overall incapacity in relation to all types of driving in civil employment? --- Yes, it would be large, between 60 and 100 per cent.
All right. Can you get closer than that? --- Yes, I would – yes, I would, I would make on the basis of the discussions we have had it would be 80 per cent.
And a fitness instructor, I think you have conceded that is --? --- Yes.
--- large, 60 to 100 per cent? --- Yes, that’s correct.
And you wouldn’t have any problems with that, would you? --- No.
Can you be more specific than that? Can you put a number on it? Would it 100 per cent? --- No, because some of the instruction would be without requiring physical activity, but it would be in the order of 60 to 100 per cent as I have given it.
Right, well, I am just pressing you to put a closer number on it than 60 to 100 because that is a very large range? --- Right, well, to 70 – 70 to 80.
If we said 75 per cent? --- Yes?
Would that be fair? --- That would be.”
He then agreed that his assessment of the other employments were electrical instrument fitter 80 per cent, workshop supervisor 80 per cent, taxation officer 30 per cent, driver 80 per cent, fitness instructor 75 per cent. The evidence then continued:
“MR BAKER (Counsel for Mr Barber): Now, I am notoriously bad at maths, so I am just adding these up with a calculator.
MR DUBE (Counsel for the Authority): Member?
PROF DAVIS (Tribunal): Yes?
MR DUBE: Can I object to the ----? --- 75.
If we ---
PROF DAVIS: Yes, let us hear your objection, Mr Dube.
MR DUBE: Well, if my friend wants to turn this into a mathematical equation, that is something that he can do in submissions, but I don’t think it is something that is necessary for Dr Jones to be answering. If he ---
MR BAKER: Well ---
MR DUBE: Either he is going to ask for an overall assessment?
PROF DAVIS: Yes, I think it is quite within bounds for him to ask for an overall assessment. I tend to agree with you in the sense that the weight to be given to some of these figures in overall evidence remains to be considered. It may be best, Mr Baker, if you ask Doctor to give – I can see the direction ---
MR BAKER: Yes.
PROF DAVIS: --- you are heading in but, please, ask him, perhaps to give overall assessments rather than get in to adding and subtracting.
MR BAKER: Yes, with respect, Member, all I am doing is adopting the strategy that the doctor himself adopted, of putting a range on each of – on each of these ---
PROF DAVIS: And you are now trying to be more precise.
MR BAKER: --- and then giving an equal weighting and then taking the mean of that. Perhaps if I could be permitted to go on?
PROF DAVIS: Yes, certainly.
MR BAKER: See, what I have done, Doctor, is, I have added up those five figures you have given us, the precise figures, and which produces a total of 345. I have divided that by five which has produced a figure of 69 per cent? --- Yes.
And that would then – and this is, of course, on the assumption that the driver and the fitness instructor ought to be included. And, of course, 69 per cent puts us in the high range? --- That’s correct, and that’s what I stated in my letter of 30 June 2001, where my overall assessment based on the five appointed guides came to a large amount ---
Yes? --- to less than 100 per cent.
Yes? --- that actual assessment.
That is still considered. If you can just bear with me for a second. But using, by a parity of reasoning, if we go back to the three employment categories, electrical instrument fitter at 80, workshop supervisor at 80, taxation officer at 30, total 190; divide that by three, produces a figure of 63.33, and that, again, puts us in the high range, doesn’t it? --- That’s correct.
And on closer consideration, is that an assessment that you could live with? --- Yes, it is.”
There was no re-examination of any significance and no evidence of any other witness disagreeing with Mr Jones’ assessment, which was in excess of 60 per cent even if driver and physical education instructor were to be excluded.
In final submissions to the Tribunal on behalf of the Authority, its counsel did not, in relation to the driver and physical education instructor qualifications, repeat the “peripheral” argument which the Authority had applied on the reconsideration. Rather it was argued that the test was objective and accordingly Mr Barber’s personal preferences could not be taken into account. It was submitted (par 64):
“The (Authority) submits that it is not ‘reasonable’ to expect a person with the applicant’s skills, qualifications and professional experience, particularly his tertiary qualifications to undertake essentially manual labour as a driver.”
A similar argument was put in relation to the occupation of physical education instructor.
In the words of the Full Court in Defence Force Retirement and Death Benefit Authority v House (1989) 22 FCR 138 at 141:
“Subsection (1A) requires consideration not of employments the member has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experience identified in par (a) might reasonably undertake. The words ‘kinds’, ‘might’ and ‘reasonably’ all indicate that a narrow view is not to be taken.”
The “manual labour” argument was noted by the Tribunal (at par 24) but not accepted. On the appeal the Authority did not repeat it. The Tribunal’s conclusion as to what kind of civil employment a person with Mr Barber’s skills etc might reasonably undertake was a question of fact. This conclusion was not challenged on appeal.
Tribunal’s decision
The Tribunal defined the issues before it in these terms:
“3. Whether, based on evidence before the Tribunal, the applicant’s invalidity classification was 40 percent Class B as at 12 January 2001.
4. In particular, what are the kinds of civil employment which a person with the applicant’s trade and professional skills, qualifications and experience might reasonably undertake.”
After summarising Mr Barber’s medical history, the Tribunal referred to the parties’ submissions and summarised those of the Authority as follows:
“44. The respondent’s written submissions claimed that taking a global approach to the situations, the weight of evidence before the Tribunal supported a finding that the applicant’s impairments resulted in a moderate degree of incapacity for civil employment. While the degree of incapacity might be large for tasks such as electronics technician or workshop supervisor, it was small for vocations such as clerk or accountant. The decision to reclassify the applicant from 60 percent Class A to 40 percent Class B incapacity was therefore correct and preferable in the circumstances and the Tribunal should therefore affirm the decision.”
This seems a fair summary of the Authority’s case before the Tribunal. The underlying assumption of that case is that driver and physical education instructor are not to be included for the purposes of s 34(1A)(a).
The Tribunal then continued, under the heading “Analysis”:
“45. The Tribunal is required to stand in the shoes of the original decision-maker examining all evidence anew, bearing in mind statutory provisions and any relevant case authorities.
46. What is at issue here is whether the delegate of the DFRDBA acted correctly in reclassifying Mr Barber from 60 percent Class A to 40 percent Class B disability on 12 December 2000 and whether decisions made about the kinds of civil employment a person with his skills, qualifications and experience might undertake were appropriate.
47. There is a considerable array of medical evidence from a number of practitioners and specialists, but it is necessary to consider these chronologically and in context to identify what assessments and judgments existed prior to, at and after the decision of 12 December 2000.
48. It should be noted that although the Tribunal is bound to consider the primary decision in detail, the Tribunal is also required in merits review to consider all other material evidence and contextual circumstances, in reaching its determination.
49. At the time of his discharge from the Army n May 1997, Mr Barber’s impairment was described as ‘… spinal canal stenosis, L4/5, L5/S1 disc protrusions’. On that basis alone, making no mention of recorded ankle and foot injuries, his disability was rated as 60 percent or more Class A impairment. This rating was later reinforced by a decision of the DFRDBA in June 1998, when it decided the applicant should remain classified as 60 percent Class A disability.
50. Evidence before the Tribunal indicates that the decision to reclassify Mr Barber to 40 percent Class B disability, made on 12 December 2000 was largely based upon the assessment by Dr Jones, orthopaedic surgeon, that Mr Barber’s overall incapacity was ‘moderate’ between 30 and 60 percent. There may also have been some presumption that because Mr Barber had just commenced employment as a taxation officer, there existed an ongoing ability to work.
51. It is important to note that although Dr Jones admitted back pain might occur for 2 or 3 days at a time and Mr Barber could not sit for more than about 25 minutes at a time, he stated in later evidence to the Tribunal he had not evaluated Mr Barber’s activity over a full day period and was not in a position to make judgments about pain management and associated medication. Dr Jones rated Mr Barber’s capacity to undertake appropriate employment as follows:
· Electrical instrument fitter; ability diminished to a large extent (60-100 percent).
· Workshop supervisor (electrical); ability diminished by a large extent (60-100 percent).
· As a driver, diminished by a moderate amount (30-60 percent) [sic, in fact in evidence he accepted 80 percent – see [20] above].
· As a fitness instructor, diminished by a large amount (60-100 percent).
· As a taxation officer diminished by a small amount (10-30 percent).
52. The manner in which these assessments were treated during the DFRDBA review is instructive. Dr Jones’ findings were translated as follows in the [delegate’s] report dated 12 December 2000:
· Instrument fitter, capacity diminished by 60-100 percent.
· Workshop supervisor, capacity diminished by 60-100 percent.
· Taxation officer, capacity diminished by 10-30 percent.
Mr Barber later queried why the vocational categories of driver and physical instructor had been omitted. In the view of the Tribunal they should have been included, because he possessed qualification and skills in both areas.”
After further discussion of medical evidence the Tribunal continued
“63. Having considered all medical evidence in this case the Tribunal is unable to find any persuasive reason why Mr Barber’s medical condition was gauged to have improved to low to moderate incapacity (30 to 60 percent, Class B) in December 2000, when he was assessed as Class A incapacity (60 percent or more) until at least June 1998 and the subsequent record appears to be one of ongoing chronic pain, side effects of medication and mental depression to the present day. The Tribunal therefore finds on the balance of probabilities Mr Barber’s incapacity was 60 percent or more Class A in December 2000 and thereafter to the present day (sections 30 and 34 of the Act).
64. There remains the issue of what kinds of civil employment a person with the applicant’s skills, qualifications and experience might reasonably undertake. During the process of incapacity rating and review, a number of vocational fields have been suggested:
· Electrical instrument fitter.
· Workshop supervisor (electronics).
· Heavy Vehicle driver.
· Physical education instructor.
· Clerk.
· Taxation Officer.
· Accountant.
65. There appears to be common ground that Mr Barber’s incapacities are of such a nature that ability to work in areas such as electrical instrument fitter, workshop supervisor, vehicle driver and physical education instructor have been severely compromised i.e. there is incapacity to a substantial or large degree. However the Tribunal notes that the applicant was and is entitled to have these fields taken into account in assessing his degree of impairment, and the DFRDBA should have considered the vehicle driver/physical instructor categories in their calculations, which they failed to do.
66. On the other hand the applicant has claimed the DFRDBA was at fault in inserting the category ‘clerk’ and should not have done so because Mr Barber had not been trained as a clerk and would abhor such a role. Here the Tribunal is less persuaded; the DFRDBA appears to have used the term ‘clerk’ in a generic sense and the fact that Mr Barber has a commerce degree would indicate capacity for roles such as clerical duty, taxation officer or perhaps accountant, but in part dependent upon job availability and also on flexible arrangements permitting work with periodic breaks.
67. The issue arises as to whether other kinds of part-time work should be considered. Given Mr Barber’s skills, qualification and experience, roles such as works supervisor, office manager or part-time accountant might be contemplated, but given his medical and psychiatric condition, unlikely to prove feasible unless improved pain management occurs and his morale improves. If recent medical reports are taken at face value, he currently has near incapacity to work.
DECISION
68. Having considered all evidence before it, the Tribunal has decided on the balance of probabilities, and provisions of ss 30 and 343 of the Act, the decision made by a delegate of the Defence Force Retirement and Death Benefits Authority on 12 December 2000, reclassifying Mr James Arthur Barber from 60 percent Class A to 40 percent Class B incapacity should be set aside and in substitution therefore Mr James Arthur Barber’s incapacity should be rated as 60 percent or more (Class A) from that date.
69. If for any reason Mr Barber’s incapacity is to be further assessed at some future date, the kinds of skills, qualifications and experience to be taken into account should include, but not necessarily be limited to the following:
· Electrical instrument fitter
· Workshop supervisor
· Heavy vehicle driver
· Physical education instructor
· Clerk
· Accountant
70. The impairment causing invalidity continues to be:
‘spinal canal stenosis, L4/5, L5/S1 disc protrusions.’
The Tribunal considers that Mr Barber’s injuries to ankles and feet should also be noted, as well as psychiatric condition. In the view of the Tribunal Mr Barber currently possesses very little work prospect, with incapacity probably high in the range 60-100 percent, but the medical evidence is not definitive about complete inability to work.
71. In reaching its conclusions the Tribunal relied upon a number of case authorities include Re Clark and DFRDBA (an unreported decision AAT 28608 of 20 May 1993 cited by the respondent), also Re Thomson and DFRDBA (1987) 6 AAR 424, which requires the Tribunal to take a global view of the applicant’s degree of incapacity for civil employment, but to do so by considering each field separately before combining ratings. The Tribunal also notes that the categories of incapacity cited in the Act as A, B and C are very broad, thus assessment is bound to be inexact when various medical practitioners and specialists are involved in giving expert evidence in individual fields.”
Appeal
The Authority’s grounds of appeal are:
“4.1The Tribunal erred in law by concluding that ‘Mr Barber’s incapacity was 60 percent or more Class A in December 2000 and thereafter to the present day’ without considering and answering the questions posed by s 34(1A) and (1B) of the DFRDB Act: paragraphs 63, 68 of the Tribunal’s Reasons.
4.2The Tribunal erred in law by excluding as relevant ‘kinds of civil employment’ for the purposes of s 34(1A)(b) of the DFRDB Act by reference to Mr Barber’s ‘medical and psychiatric condition’: paragraph 67 of the Tribunal’s Reasons.
4.3The Tribunal erred in law by identifying ‘injuries to ankles and feet … as well as psychiatric condition’ as prescribed physical or mental impairments for the purposes of s 34(1A)(c) of the DFRDB Act without considering whether each impairment was a cause of the incapacity by reason of which Mr Barber was retired or was causally connected with an impairment that was such a cause (s 341B)).
4.4By failing to consider and deal with submissions advanced by the Respondent on the proper construction of s 34 of the DFRDB Act which submissions were directly relevant to the issues before the AAT and were worthy of serious consideration, the Tribunal:
(a)failed to provide reasons for its decision, in contravention of the requirements of s 43(2) of the AAT Act; or
(b)brought about a miscarriage of justice.”
In argument senior counsel for the Authority said the Tribunal had failed to adopt the reasoning process required by s 34(1A) and (1B). It should have first identified Mr Barber’s “prescribed physical or mental impairment” (PPMI) within the meaning of subs (1B), then made a finding as to the skills etc under subs (1A)(a), then, pursuant to par (b), found the kinds of civil employment a hypothetical person with those skills etc might reasonably undertake, then found the degree to which Mr Barber’s PPMI has or had diminished his capacity to undertake the kinds of civil employment found pursuant to par (b). All this was to be done as at the reclassification date (12 December 2000).
The Tribunal, senior counsel said, had failed to follow the correct sequence as outlined in the Authority’s written submissions before it. Thus in par 64 the issue of the kinds of civil employment was not one which “remains” after the assessment of degree of incapacity in par 63 – it is an essential preliminary finding. In par 70 the finding as to the PPMI was something which should have been made earlier in the process of reasoning. In par 67 the Tribunal had wrongly excluded certain types of employment on the grounds of Mr Barber’s actual incapacity instead of considering whether this might be reasonably undertaken by a hypothetical person with the skills etc referred to in par (a).
In considering this criticism of the Tribunal’s approach I bear in mind the observation of Sheppard J (with whom Sweeney J agreed) in Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164. His Honour said:
“The submission requires some analysis of the language which the Tribunal has used in the relevant part of its decision. I preface my analysis of it by saying that I am always reluctant to look too critically at the words the Tribunal has used. It is the substance of matters which must be addressed. What may appear to be a loose or unhappy way of phrasing a thought ought not be determinative of the outcome unless it is apparent that the Tribunal has, by its language, been led to make an error of law.”
The High Court has made it clear that judicial review of administrative decision-making reasons should not involve an over-zealous search for some inadequacy which may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
More particularly, in dealing with an argument that resonates with that of the Authority in the present case, Moore and Sackville JJ said in Chambers at 26:
“In our view, while it will often be desirable for the Tribunal to consider separately the three paragraphs of s 28, and to record findings in relation to each of them, the Tribunal is not compelled as a matter of law to take this course. Section 28 requires the Commission (or the Tribunal) ‘to have regard to [three specified] matters only’ in determining whether an incapacitated veteran is incapable of undertaking remunerative work. These words mean that the Tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329, per Mason J. The Tribunal is also required to exclude all other considerations in making its determination. Provided the Tribunal follows this course it does not depart from the requirements of s 28. Whether it has followed the requisite course will depend upon a reading of the Tribunal’s reasons as a whole. Such a reading should not be concerned with looseness in language. As was said by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 2878:
‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
See also Repatriation Commission v Bushell (1991) 13 AAR 176 at 182-183, per Morling and Neaves JJ.
The specific complaint made by Mr Smith seemed to be that the Tribunal’s reasons do not reveal that it applied the provisions of s 28(a) and (b) of the 1986 Act. Mr Smith submitted that the Tribunal should first have identified the kinds of remunerative work which a person with the appellant’s skills, qualifications and experience was capable of performing. It should then have considered whether a hypothetical person with those skills, qualifications and experience could reasonably undertake such work.
The Tribunal’s reasons are framed somewhat loosely. In particular, they do not distinguish clearly between the kinds of work it was reasonable for the appellant to undertake and the kinds of work that a hypothetical person with the skills, qualifications and experience of the appellant might reasonably undertake. This, however, is a fine distinction, at least in the circumstances of the present case. In substance the Tribunal ascertained the kinds of work the appellant was capable of undertaking, having regard to his skills, qualifications and experience including his physical abilities. The Tribunal then considered whether a person with those attributes might reasonably undertake the work. It concluded that it was not reasonable for such a person to undertake labouring. That was the point of the citation to Re Martin, to which the Tribunal had previously referred. In substance, in our view, the Tribunal applied the criteria specified in s 28(a) and (b).”
As counsel for Mr Barber submitted, the Tribunal made the findings that the statute required it to make.
As to subs (1A)(a), it was common ground that Mr Barber had skills, qualifications and experience as an electrical instrument fitter and workshop supervisor. The disputed issue was as to the applicability of three categories of skills. The Tribunal found against Mr Barber’s contention that clerk should not be included (par 66). But it found in his favour that heavy vehicle driver and physical education instructor should be included (pars 52, 64 and 65). These were findings of fact with ample support in the evidence.
As to subs (1A)(b), the Tribunal identifies the issue in pars 4 and 64. There is to a degree something of a rolling up of the issues arising under subs (1A)(a) and (b). But an examination of the background of this case shows that a central issue was the applicability or otherwise of the categories of heavy vehicle driver, physical education instructor and clerk. Once these issues were resolved (pars 65 and 66), and as to two of them in Mr Barber’s favour, the Authority’s expert Mr Jones was clear that the Class A 60 per cent incapacity (based only on a PPMI of “spinal canal stenosis, L4/5, L5/S1 disc protrusions” was achieved. There was in substance no evidence to the contrary.
As to subs (1A)(c) there are the findings at par 63, repeated at par 71.
As to subs (1B) the relevant finding is at par 70.
The reference at par 70 to Mr Barber’s ankle and feet injuries are to be read prospectively and are intended as helpful guidance. They do not detract from the Tribunal’s findings on the issues that it was required by the statute to address.
The complaint as to the alleged failure to consider and deal with the submissions of the Authority (ground 4.4) seems to relate to the submissions as to the sequential approach to be adopted. For the reasons already mentioned, I see no legal error in the way the Tribunal approached its task, even though a sequence of exposition more in accordance with the structure of subss (1A) and (1B) would have been preferable. In Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62] Gleeson CJ, McHugh and Gummow JJ said:
“It is not readily to be supposed that the various matters upon which the Court of Appeal placed so much weight would have induced Newman J to accept that Ms Dixon’s condition was as she testified in her evidence-in-chief and as she reported to the doctors. Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”
Their Honours’ observations were made in the context of an appeal by way of rehearing (as stressed by Kirby J in dissent at [65]-[66]). Where, as in the present case, an appeal is limited to questions of law, there is all the more reason to be cautious about appeals which attack the decision-maker’s failure to deal with legal arguments. If the legal argument is correct, then the party making it should succeed on appeal, whether or not the decision-maker specifically dealt with it. If it is not correct, there would be little point in setting aside a decision made on what was, on this hypothesis, a proper application of the law.
Conclusion
The appeal should be dismissed. Even if the grounds were made out, the powers available to this Court are as set out in s 44(4) and (5) of the AAT Act as follows:
“(4)The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court.”
The Authority did not specifically seek a rehearing; its notice of appeal only sought an order that the matter be “remitted to the Tribunal for further determination according to law”.
In the light of the Tribunal’s findings, clearly open on the evidence, as to the applicability of the heavy driver and physical education instructor categories, and of Mr Jones’ evidence of Mr Barber’s degree of incapacity by reason of his PPMI if those categories are taken into account, a rehearing would be an unnecessary and wasteful exercise. The only point would be to redraft the Tribunal’s expression of its reasons. Accordingly I would not have set aside the Tribunal’s decision even if the grounds were made out. If, at the reconsideration stage, the Authority had read Mr Jones’ letter of 30 June 2001 and not been distracted by the “peripheral” argument (contrary to published Full Court authority) it seems highly likely the reclassification would have been set aside. Mr Barber would have been saved the irrecoverable cost of the Tribunal review.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate:
Dated: 29 June 2004
Counsel for the Applicant: P Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: P Tree Solicitors for the Respondent: Baker Tierney & Wilson Date of Hearing: 7,8 June 2004 Date of Judgment: 29 June 2004
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