Deslandes v Repatriation Commission
[2015] FCCA 1786
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DESLANDES v REPATRIATION COMMISSION | [2015] FCCA 1786 |
| Catchwords: ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – whether Tribunal properly applied s.119(g) or 119(h) of the Veterans’ Entitlements Act1986 (Cth) – no error demonstrated. ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – whether Tribunal properly acquitted its obligation to give reasons pursuant to s.43 of the Administrative Appeals Tribunal Act1975 (Cth) – no error demonstrated. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.43(2), 43(2B), 44(1), 44AA(1), Veterans’ Entitlements Act1986 (Cth), ss.70(1), 70(5), 70(6), 70(7), 70(8), 70(9), 70(9A), 70(10), 119(1)(g), 119(1)(h), 120(4), 120B, 120B(3) |
| Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Comcare v Etheridge (2006) 149 FCR 522 Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Golfins v Repatriation Tribunal (1980) ALD 557 Grundman v Repatriation Commission [2001] FCA 892 Haritos v Commissioner of Taxation [2015] FCAFC 92 Hogno v Repatriation Commission [2010] FCA 1044 Knight v Repatriation Commission (2002) FCA 103 Rana v Repatriation Commission [2011] FCAFC 124 Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 Total Marine Services Pty Ltd v Kiely [1998] FCA 153 |
| Applicant: | DONALD DESLANDES |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG 118 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 5 May 2014 |
| Date of Last Submission: | 5 May 2014 |
| Delivered at: | Townsville |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Harding |
| Solicitors for the Applicant: | Terrence O’Connor Solicitor |
| Counsel for the Respondent: | Ms Ford |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Notice of Appeal filed on 11 December, 2013 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules2011 up to and including 10 February, 2013 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 118 of 2014
| DONALD DESLANDES |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
By his Notice of Appeal filed on 11 December, 2013 Donald Deslandes appeals, pursuant to s.44(1) of the Administrative Appeals Tribunal Act1975, a decision of the Veteran’s Appeals Division of the Administrative Appeals Tribunal given on 13 November, 2013. Although the appeal was commenced in the Federal Court, it was remitted for hearing and determination in this Court by order of Collier J made on 10 February, 2013.
The decision of the Tribunal affirmed a decision of a Veteran’s Review Board that itself affirmed a decision of the respondent to reject Mr Deslandes’ claim that a spinal condition from which he suffered was service related for the purposes of the Veterans’ Entitlements Act1986 (Cth).
The nature of this appeal
The use of the term “appeal” is in some senses misleading. When originally commenced in the Federal Court of Australia, these proceedings were within the original jurisdiction of that Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1]. The Federal Court has power to transfer the proceedings to this Court: s.44AA(1) of the AAT Act. The transferred proceedings are within this Court’s original jurisdiction.
An appeal pursuant to s.44(1) of the AAT Act does not permit a reconsideration of the merits of the decision under review. The appeal is on a question of law. Many cases have now discussed the nature of an appeal pursuant to s.44(1) of the AAT Act: TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175; Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515; Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321; Comcare v Etheridge (2006) 149 FCR 522 and Hogno v Repatriation Commission [2010] FCA 1044 are a few.
In Rana v Repatriation Commission [2011] FCAFC 124 Kenny, Stone and Logan JJ said:
[11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court “on a question of law”. The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.
(my emphasis)
In Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 at 100, the Full Court of the Federal Court of Australia summarised the position as follows:
100. It is desirable to set out some relevant principles applying to the scope of an “appeal” under s 44 of the AAT Act (which, as noted above, arises in the Court’s original, and not its appellate, jurisdiction). The principles are relevant not only to the objection to competency but also to the scope of review in a s 44 appeal in respect of a matter which is properly presented as a question of law . The principles are relatively settled and may be summarised as follows:
(a) the phrase “on a question of law “ is narrower in scope than an appeal which merely “involves” a question of law , with the consequence that where an appeal lays “on a question of law”, the subject matter of the appeal is the properly framed question or questions of law (see Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 304 and Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at [11]- [17] (Etheridge));
(b) the narrow sense in which an “appeal” lays to the Court from any decision of the AAT on a question of law “is entirely consistent with a statutory intention to limit the Court’s review of factual findings” (see Cyonara at [112]);
(c) generally speaking, a mixed question of law and fact is not a “ question of law “ for the purposes of s 44 of the AAT Act (see, for example, Etheridge at [16]; Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 at [32]; Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [26] and [33]; Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 272 at [39]; Cyonara at [112] and Sullivan at [117]), but note also the qualifications which may need to be made to that bald proposition as expressed in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 (Collins) at [55] per Allsop J (as his Honour then was) with whom Lindgren and Emmett JJ agreed; Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 (Trail Bros) at [12] per Dowsett and Gordon IJ and Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 (Martinez No 2) at [87] per Robertson J;
(d) some of the kinds of errors of law which are amenable to review under s 44 of the AAT Act are reflected in the following statements by the Full Court (Black CJ, Drummond and Ryan JJ) in Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 (Hill) at [59]:
If a Tribunal falls into an error of law “which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers”: see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. An error of law of this kind may support an appeal under s 44 of the AAT Act on a question of law : cf The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 231-232 per Wilcox, Burchett and French IJ;
(e) ordinarily there is no error of law simply in making a wrong finding of fact (see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ approving Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan I (as his Honour then was). However, a determination of a question of fact by the AAT may give rise to a question of law, including (non-exhaustively) in circumstances where there is a question raised whether the AAT has identified the relevant legal tests to be applied; whether the Tribunal has in fact actually applied the correct test even if its reasons suggest otherwise; whether there is evidence to support a finding of fact, whether facts found fall within a relevant statutory provision and whether the AAT has adopted a manner of decision-making which fails to discharge its obligations according to law (see Trail Bros at [13] and Cyonara at [113]-[115]);
(f) findings or inferences of fact that are not supported by logical grounds may also give rise to an error of law and be reviewable under s 44 of the AAT Act (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS)) in the context of judicial review for jurisdictional error as opposed to a s 44 AAT Act appeal, however, it is unnecessary to explore this possibility any further here in the context of such an appeal or consider the implications, if any, for such an appeal in light of the High Court’s recent decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) on review of a decision for unreasonableness (again for jurisdictional error) because Mr Tarrant does not claim that the AAT’s decision or findings of fact were illogical or unreasonable in a legal sense (as to which, see Sullivan at [119] per Flick and Perry JJ);
(g) the weighing and evaluation of various pieces of evidence is a matter for the AAT and is generally not susceptible to review in either judicial review proceedings for jurisdictional error (see Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), or in an “appeal” under s 44 of the AAT Act (see Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J and Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 at [152] per Flick J). As the Full Court (Fox, Deane and Morling JJ) observed in Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407 at 410-411 in the context of an appeal under s 44 of the AAT Act and in response to a claim that a Tribunal decision was against the evidence or the weight of the evidence (emphasis added):
A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they did not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative Tribunal which is not bound by the rules of evidence, subject to their obligation to observe the requirements of natural justice, can inform itself as it chooses (see, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975.) An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based; and
(h) the Court has acknowledged that, in at least some circumstances, the Court itself might frame questions of law in order to found its jurisdiction under s 44 of the AAT Act. For example, in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300, the Full Court (Marshall, Tracey and Flick JJ) said at [16] that it was prepared to entertain applications for judicial review notwithstanding the fact that the notice of appeal purportedly made under s 44 of the AAT Act was deficient:
We are prepared to entertain Mr Rana’s applications for judicial review although, for reasons which will shortly appear, we do not consider that any of the grounds raised have any substance. Mr Rana is an unrepresented litigant and, when examined, some, at least, of his claims, had they properly been formulated, could have constituted questions of law for the purposes of s 44 of the AAT Act. In such circumstances, the Court has been prepared to frame appropriate questions and answer them: see, for example, Birdseye at 60-1. In any event, decisions made by the Tribunal are subject to judicial review by this Court, albeit normally not pursuant to the ADJR Act.
However, in Haritos v Commissioner of Taxation [2015] FCAFC 92 the Full Court of the Federal Court has reconsidered the line of authority associated with Comcare v Etheridge. In that case, the Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
192. In summary, the terms, the context (particularly s 7 of the AAT Act and noting what we have said especially at [149] above as to s 45 not providing an analogy), the history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure” question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court “should not usurp the fact-finding function of the AAT”, citing Repatriation Commission v O’Brien [1985] HCA 10; 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact-finding. As Brennan J said in Waterford v The Commonwealth [1987] HCA 25, 163 CLR 54 at 77:
A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. ...
It follows that legally erroneous fact-finding may found an appeal on a question of law within s 44. Further, we do not read Brennan J in Waterford as addressing jurisdictional facts or such facts as it may be necessary for the Court to find when considering a claim of denial of procedural fairness: see further [202] below.
193. To the extent that the reasoning in Birdseye and Etheridge depended on the view that a question of law within s 44 is required to be a “pure” question of law which should be capable of being answered without reference to facts, we respectfully disagree. Collins establishes that this view of s 44 is not correct. That view is also inconsistent with what Brennan J said in Waterford. Neither do Birdseye and Etheridge sit comfortably with Maurici, Vetter and Hope. Nor is the extended meaning of a question of mixed fact and law consistent with earlier decisions of the Full Court in, for example, PW Adams and Sharp Corporation. The line of cases beginning with Birdseye and Etheridge should not be understood as intending to overrule those cases.
194. We restate that the subject matter of an appeal under s 44 is a question or questions of law. We also restate that the appeal is not by way of rehearing; it is the exercise of original jurisdiction. Neither is it sufficient that the appeal merely involves a question of law. The correct approach, in our opinion, is to ask directly the question whether the appeal is on a question of law, without being diverted by whether or not the appeal raises a mixed question of fact and law. As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.
The Notice of Appeal
The questions of law said to arise on the appeal are specified in the notice of appeal as follows:
1. Whether the Tribunal erred in law in failing to act according to the substantial merits of the case for the purposes of s 119(1)(g) of the Veterans’ Entitlement Act 1986 (“the Act”) in respect of:
a) Its treatment and determination of the issue as to whether the Applicant suffered a “trauma” for the purposes of factor 6(f) of the Statement of Principles (“SoP”) concerning lumbar spondylosis No. 38 of 2005; and /or
b) Its treatment and determination of the issue as to whether factor 6(h) of the SoP was met.
2. Whether the Tribunal erred in law in its application of s 120(4) of the Act.
3. ln respect of the issue as to whether the Applicant suffered a “trauma” for the purposes of the SoP, whether the Tribunal erred in law in failing to take into account for the purposes of s 119(1)(h) of the Act:
a) the effects of the passage of time on the availability of witnesses; and/or
b) the absence of, or a deficiency in, relevant official records;
4. Whether the Tribunal erred in law in failing to take into account for the purposes of s 70 of the Act the report of Dr Sharwood dated 10 October 2012, exhibit 6 of the Tribunal exhibits.
5. Whether the Tribunal erred in law by failing to give reasons required by s 43(2) of the Administrative Appeals Tribunal Act 1975 for:
a) failing to accept the Applicant’s evidence as to the symptoms and signs of pain, and tenderness; mobility and range of movement of the lumbar spine; and the duration of those symptoms and signs;
b) failing to accept the Applicant’s evidence as to the physiotherapy obtained by him in respect of his back; following the motorbike accident involving him which occurred on 5 April 1977 (‘the incident”);
c) failing to accept the Applicant’s evidence as to his estimate of weights carried or lifted by him relevant to factor 6(h) of the SoP.
The respondent submits that the questions of law might be summarised as follows:
Question 1: whether the Tribunal failed to act according to the ‘substantial merits’ of the case for the purposes of s 119(1)(g) of the VEA.
Question 2: whether the Tribunal erroneously applied s 120(4) of the VEA because it impermissibly placed an onus on the Appellant to provide contemporaneous records showing how much weight he had lifted during his service (and therefore satisfying factor 6(h) of the SOP).
Question 3: whether the Tribunal failed to apply s 119(1)(h) of the VEA. In particular, the Appellant states that the Tribunal failed to take into consideration the fact that there were no clinical records from the physiotherapist who was treating the Appellant around the time of the accident in 1977.
Question 4: whether the Tribunal erred by failing to take into account a relevant consideration, namely a medical report of Dr Sharwood.
Question 5: whether the Tribunal erred by failing to give reasons, as required under s 43(2) of the AAT Act, about the Appellant’s evidence of his treatment for back condition.
I am not convinced that the notice of appeal sets out any questions of law. The respondent does not accept that the notice of appeal sets out any questions of law. Nonetheless, the respondent does not ask that I dismiss the application on that basis.
The Claim and the Tribunal’s Decision
Mr Deslandes’ claim was summarised by the Tribunal as follows:
1. Mr Donald Deslandes is the applicant in these proceedings. He served in the Royal Australian Navy from 1 May 1974 until 28 September 1977. He suffers from lumbar spondylosis, a condition that he claims to be linked to his defence service. He seeks treatment and pension for that condition pursuant to the Veterans’ Entitlements Act 1986 (Cth).
2. The parties agreed at the outset of the hearing that the applicant has lumbar spondylosis and the clinical onset for that condition was in 2001. The issue I must decide is whether there is a connection between the applicant’s service and this condition.
3. The applicant claims to have developed lumbar spondylosis secondary to a motor vehicle accident (“MVA”) he was involved in whilst travelling to work in 1977. He has an alternative contention, that he developed the condition a result of heavy lifting he performed during his service.
Neither party took issue with that summary by the Tribunal.
The Tribunal next recorded the applicant’s case as follows:
4. On 5 April 1977 the applicant was travelling with a friend and fellow stoker, on his motorbike to work. The applicant was the passenger, and at the back of the motorbike. Whilst they were travelling at 80km per hour, a car turned directly in front of them. The applicant was propelled over his friend, and landed on the ground, hitting his helmet first, then landing on his back. He believes he was knocked unconscious, and his next recollection is waiting a long time to see a doctor at the Box Hill Hospital. The applicant was discharged the same day, into the care of his parents. He had a couple of days off work and then returned to light duties. He recalls his back being painful and stiff from the time he awoke in hospital until about three months after the injury. He claims he had a persistent “numb feeling”, and “loss of power in his back”. He recalls having physiotherapy three times a week for some time after the MVA, specifically to treat his back.
5. For the first two weeks after the injury, he returned to duty at HMAS Lonsdale, undertaking very light duties. The applicant explained that HMAS Lonsdale is a small base (not a ship), and his usual position in the maintenance section was already staffed by two Petty Officers. His duties consisted of making coffee and reading magazines. He then returned to Williamstown and was seconded to assist with the preliminary work on the refit of HMAS Parramatta. There were eight officers involved at this stage of the refit, and himself and one other were their ‘dogsbodies’. A position where there was ‘embarrassingly little to do’.
6. The applicant has provided a table outlining the items he lifted, the weights of those items, and the number of lifts he performed, to the best of his recollection. He acknowledges that he is unable to provide accurate weights, but his estimates are based on his recollection of how it felt to lift a 20kg drum. Mr McLean-Williams, for the applicant, acknowledged that the claim in relation to lifting is based on only the applicant’s recollection and estimates.
To succeed in his claim, Mr Deslandes needed to satisfy the Tribunal that the condition for which he claimed was related to operational and/or eligible defence service. The circumstances in which a disease is taken to be defence-caused are set out in ss.70(1), 70(5), 70(6), 70(7), 70(8), 70(9), 70(9A) and 70(10) of the Veterans’ Entitlements Act. The effect of those provisions is that a disease contracted by a member of the Defence Forces shall be taken to be a defence-caused disease if the disease arose out of, or was attributable to, eligible defence service rendered by the member.
The parties agree that s.120(4) of the Veterans’ Entitlements Act applied to the determinations to be made by the Tribunal. That section provides that the Commission shall decide the matters requiring determination “to its reasonable satisfaction”. The parties also agree that the application of s.120(4) of the Veterans’ Entitlements Act is “affected by section 120B” of the Veterans’ Entitlements Act. Subsection 120B(3) of the Veterans’ Entitlements Act provides that:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
As I have set out above, the Tribunal proceeded on the basis that Mr Deslandes suffers from a condition described as lumbar spondylosis. It was uncontentious before the Tribunal that there was in force at the relevant time a Statement of Principles relating to that condition. Again, there was no dispute that the relevant Statement of Principles for Mr Deslandes’ condition was No. 38 of 2005.
In clause 6 of that Statement of Principles there is a list of factors, the existence of at least one of which is necessary before it can be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of a person’s relevant service. Mr Deslandes claimed that there were two particular factors present in his case, namely factors 6(f) and 6(h). They are in the following terms:
6. …
(f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis;
(h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period;
The Statement of Principles defines trauma to the lumbar spine in the following way:
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
In respect of the case relying on the first factor, the Tribunal said:
9. There is evidence in the applicant’s service medical records, which supports his claim that he was involved in a MVA on 5 April 1977. Undated clinical notes completed at HMAS Lonsdale refer to the applicant’s involvement in an MVA on his way to work on that date, and injuries including bruises, abrasions and possible concussion. The accident occurred on the Tuesday prior to the Easter long weekend. The contemporaneous medical notes indicate Mr Deslandes was scheduled to return to Box Hill hospital for review on Tuesday 12 April 1977, the first business day following the Easter weekend. It appears from the medical entries that the applicant was reviewed at RANH (Cerberus) on 12 April, and told to return to duty. The next day he presented to the medical centre at HMAS Lonsdale, complaining of pain in the right neck in the back of his head. He was noted on examination, to be tender over the right trapezius. The doctor ordered physiotherapy.
10. The difficulty associated with the applicant’s claim is that there is no mention of his back being injured, or ever being the site of pain, in any of the contemporaneous medical notes. Whilst it is clear that he was prescribed physiotherapy to treat right-sided neck and perhaps shoulder pain secondary to the MVA, there is no suggestion in the notes that the physiotherapy treatment included treatment to his back. The applicant claims to have complained to the physiotherapist about back pain, and said that she told him to perform twisting movements as treatment. Unfortunately there are no physiotherapy notes before the Tribunal. The first mention of the applicant having back pain associated with the MVA is in a form completed by the applicant during his discharge medical. In response to a question which asked if he was suffering from any disabilities at present, the applicant wrote “back and neck aches resulting from motorcycle accident”. The medical officer completing the discharge medical made no reference to the applicant having injured his lower back.
11. Whilst I accept by the time the applicant presented for his discharge medical, he may well have been experiencing back pain which he associated with the MVA of 5 April 1977. However that is not enough to accept his claim. For his claim to be successful there must be some evidence, which points to him having experienced a trauma to the nature and severity envisioned by the SoP.
12. In my opinion, if a person experienced trauma of the type and severity described in the SoP, they would have sort (sic) medical treatment for the injury. There is no mention of the applicant having complained of back pain or loss of movement in his back when he attended the medical centre one week after the MVA, or at any other time prior to discharge. Whilst I accept that not everything a patient says to the doctor is recorded, matters of significance are recorded. Had the applicant complained of signs and symptoms consistent with an injury of the severity envisioned by the SoP, then it is likely that not only would the doctor have made a record of his complaint, but there would also have been investigations performed, and or treatment ordered in relation to those complaints. The applicant stated that he had very little to do in the weeks following the MVA. During that time he was not at sea, he was serving on shore. He therefore had plenty of opportunity to seek medical attention for his back, had it been painful or incapacitating. As I do not accept that Mr Deslandes experienced trauma of the nature anticipated in the SoP, I find that factor (f) of the SoP is not met.
In respect of the Mr Deslandes’ case relying on the factor 6(h) the Tribunal said:
13. The applicant’s estimates of the weight he lifted are not substantiated by any contemporaneous material. I am unable to be reasonably satisfied that the applicant performed the amount of lifting required by factor (h) in the SoP, during his service and prior to the onset of lumbar spondylosis.
Consideration
Mr Deslandes submissions, both oral and written, address the grounds of the appeal set out in his notice of appeal rather than the questions of law said to be raised on the appeal. Out of deference to the way in which Mr Deslandes’ counsel has chosen to present his case, I have adopted the same course and will address the grounds of appeal in the same fashion addressed by Counsel.
Grounds 1 – 7
The Notice of Appeal sets out a number of grounds relied upon by the applicant to demonstrate that the Tribunal’s decision should be set aside. The following grounds appear to relate to the first question of law raised in the Notice of Appeal:
2. It was critical to the Tribunal’s reasoning that there were no medical records supporting the Applicant having suffered or complained of back pain following the [MVA]. The Tribunal drew the inference that the Applicant had not in fact suffered or complained of back pain following the incident and it therefore followed that the applicant did not experience trauma of the nature anticipated in the SoP.
3. The Applicant gave evidence, uncontradicted and unchallenged, that he obtained physiotherapy treatment, which treatment included treatment for his back, 3 times a week for two weeks from on or after 13 April 2007, being 8 days after the incident. His evidence was given with a considerable degree of specificity considering the passage of time between when the incident occurred and when he gave his evidence at the hearing. He identified where this treatment occurred, who provided it and what the treatment involved.
4. It was not in contest between the parties that the Applicant had sought to locate the physiotherapy treatment notes, but they could not be located. It was also not in contest that the Applicant had in fact been prescribed physiotherapy treatment after the incident, this being confirmed by a contemporaneous note in the medical records.
5. In these circumstances, the Tribunal failed to act according to the substantial merits of the case, as mandated by s 119(1)(g) of the Act, by using the absence of medical records as a matter counting against the Applicant having in truth and in fact suffered or complained of back pain following the incident.
6. Further, there being no proper basis for the Tribunal drawing the inference it did, an inference arises that the Tribunal misconceived the test of “reasonable satisfaction” in s 120(4) of the Act as a result of which there has only been a purported, rather than a real, exercise of the power conferred upon the Tribunal.
7. Under s 119(1)(h) of the Act the Tribunal was required to take into account in the Applicant’s favour the effects of the passage of time on the availability of witnesses, such as the physiotherapist who gave him treatment; and the absence of, or a deficiency in, relevant official records, such as the physiotherapy records. It failed to do so in respect of the issue concerning whether the Applicant suffered a “trauma” for the purposes of SoP.
These grounds appear directed to the Tribunal’s treatment of Mr Deslandes claim based upon factor 6(f) of the Statement of Principles. According to the submissions made on his behalf before the Tribunal, factor 6(f) was the primary factor upon which Mr Deslandes relied in his claim.
Section 119(1)(g) of the Veterans’ Entitlements Act provides that the Commission (and the Tribunal on appeal) “shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities”.
By s.119(1)(h) the Tribunal is directed to take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including the effect of the passage of time on the availability of witnesses, and the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, was not reported to the appropriate authorities.
Mr Deslandes’ claim is that he complained to the physiotherapist that he consulted 8 days after the day of his accident about “back” pain. He argues that although he has made all reasonable attempts to locate the treatment notes of the physiotherapist he has been unable to do so. Further, he argues that by reason of s.119(h) of the Veterans’ Entitlements Act the Tribunal was obliged to take into account the difficulty that lies in the way of the Tribunal ascertaining the existence of the fact that he complained about pain in his back to the physiotherapist because of the absence of those treatment notes.
However, in my view Mr Deslandes’ argument misunderstands the Tribunal’s reasons and the treatment of the evidence before it. For Mr Deslandes to succeed on the factor 6(f) ground, the Tribunal needed to be satisfied that Mr Deslandes had sustained trauma to the lumbar spine within the twenty-five years before the clinical onset of the lumbar spondylosis. His claim based upon factor 6(f) was pinned squarely to the trauma he said he sustained in the motor bike accident he endured on 5 April, 1977.
For the Tribunal to be satisfied that factor 6(f) was present, the Tribunal needed to be satisfied that Mr Deslandes had sustained trauma to his lumbar spine from the accident. To do that, it needed to be satisfied that Mr Deslandes sustained a discrete injury to his lumbar spine that within twenty-four hours of the injury being sustained caused the development of:
a)symptoms and signs of pain;
b)tenderness; and
c)either:
i)altered mobility; or
ii)range of movement of the lumbar spine.
Mr Deslandes gave evidence in his written statements that his lower back was sore immediately following the accident and while he was at the hospital. His oral evidence was vague in the sense that there was no attempt to identify the point in time from which his back, or his lower back, was sore.
Before the Tribunal there was a concession from the respondent, referred to in final submissions, that Mr Deslandes “may have had some of the symptoms that are outlined in the statement of principles in terms of the definition trauma to the lumbar spine” but the concession only went so far. The advocate for the respondent made it clear that “being back at work, back at duties, albeit light duties, that that’s inconsistent with all of those factors that are required to be met for the 10 day period that, that’s pain, tenderness and either altered mobility or range of movement of the lumbar spine”.
The Tribunal looked for evidence that established that Mr Deslandes had sustained trauma to his lumbar spine as required by the Statement of Principles. It found none. The Tribunal was correct to observe that “there is no mention of his back being injured, or ever being the site of pain, in any of the contemporaneous medical notes.”
There was evidence of notes that recorded that Mr Deslandes had been referred to physiotherapy, but those notes did not suggest that he had been referred for physiotherapy for his back pain. The evidence as recorded by the Tribunal was: “Whilst it is clear that he was prescribed physiotherapy to treat right-sided neck and perhaps shoulder pain secondary to the MVA, there is no suggestion in the notes that the physiotherapy treatment included treatment of his back.” That is an accurate recitation of the notes by the Tribunal.
I accept Mr Deslandes’ submission that, having regard to the Tribunal’s reasons, it was critical to the Tribunal’s reasoning that there were no contemporaneous medical records supporting Mr Deslandes’ claim that he suffered or complained of back pain following the accident. But the physiotherapy notes, which Mr Deslandes’ submissions treat synonymously with “medical notes” or “contemporaneous medical notes”, would not have affected the outcome of the Tribunal’s quest for evidence. That is because Mr Deslandes gave no evidence that he told the physiotherapist anything about his back pain, other than that he had a sore back. His evidence did not descend to any particularity about what he told the physiotherapist about when or in what circumstances the pain in his back came on. Having regard to what he says he told the physiotherapist it is difficult to see how anything noted by that person would have helped Mr Deslandes’ case.
The Tribunal recognised that there was evidence contained in Mr Deslandes’ discharge documentation completed on 9 September, 1977 that he complained of pain in the neck and back from the motor vehicle accident, but again, that evidence did not assist the Tribunal with the time at which the pain had commenced and it said nothing about the other matters with which the definition of trauma to the lumbar spine was concerned.
Whilst there was some evidence that Mr Deslandes had pain in his “back”, the evidence did not go to establish that Mr Deslandes had sustained a discrete injury to his lumbar spine or that the discrete injury caused the development of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine within twenty-four hours of the injury being sustained. As counsel for the respondent pointed out, in fact the evidence before the Tribunal was consistent with there being no injury to Mr Deslandes’ lumbar spine. The in-patient record completed soon after Mr Deslandes’ accident and his presentation to hospital notes the “Final diagnosis of principal disease or injury leading to admissions” as “multiple abrasions and contusions”. Later in the document appears this summary:
Seen at Box Hill Hospital on 5.4.77 with multiple bruises, abrasions and ? concussion following an MVA. Was set home for two days rest…and presented to RANH ‘C’ on 7.4.77, at which time his main problem was generalised aches and pains.”
Mr Deslandes was sent for x-rays of certain areas of his body and in particular, his skull, chest, left forearm and right calcaneum (foot). No x-rays of his spine or his lower spine appear to have been ordered.
Even if the Tribunal was satisfied that Mr Deslandes had experienced symptoms and signs of pain, and tenderness within the 24 hours of the accident occurring, there was no evidence that could have satisfied the Tribunal that there was either altered mobility or range of movement of the lumbar spine.
Whilst the Tribunal said nothing at all in its reasons to indicate that it took into account the difficulty faced by Mr Deslandes in establishing his claim brought about by the absence of physiotherapy records, for the reasons I have set out above, that it did not do so is not surprising.
Put shortly, Mr Deslandes gave no evidence to the Tribunal, and could point to no evidence, that either altered mobility or range of movement of the lumbar spine developed within twenty-four hours of the incident in which he claimed the injury was sustained.
There are limits upon the operation of ss.119(1)(g) and 119(1)(h). Whilst s.119(1)(g) directs the decision-maker to disregard legal forms and technicalities in favour of substantial justice, it does not provide warrant for a decision-maker to rewrite the Act to achieve more a just result than that for which Act provided: Golfins v Repatriation Tribunal (1980) ALD 557. Section 119(1)(g) overrides neither the provisions of the Act nor the provisions of an instrument made under statutory authority including a Statement of Principles: Knight v Repatriation Commission (2002) FCA 103. Section 119(1)(g) does not require the Tribunal to take a more benevolent view of Mr Deslandes’s case than it would otherwise have done: Grundman v Repatriation Commission [2001] FCA 892.
Both parties referred me to Repatriation Commission v Bey (1997) 79 FCR 364. In that case the Full Court of the Federal Court of Australia said, at 373 - 374:
The second complaint is that his Honour was wrong in ruling that the Tribunal had no obligation to raise any favourable inference pursuant to s 119 to the Act. Section 119(1)(g) requires the Tribunal (standing in the place to the Commission) to act according to substantial justice and the substantial merits to the case, without regard to legal form and technicalities. Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way to ascertaining the existence to any tact, matter, cause or circumstance. The respondent’s contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with law: Golfins v Repatriation Tribunal [1980] FCA 105; (1980) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumer v Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544 at 555-556. Paragraph (h) of s119(1) is a provision of the same character as par (g): see the words which introduce it - “without limiting the generality to the foregoing”. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase “difficulties that … lie in the way of ascertaining the existence of any ... cause” as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress.”
The Tribunal was required to reach the requisite level of satisfaction about the matters contained in the definition of trauma to the lumbar spine in the relevant Statement of Principles. That it could not do so is unsurprising given the state of the evidence before the Tribunal. The Tribunal did not, in my view fail to act according to the substantial justice and the substantial merits of the case, without regard to legal form and technicalities. Insisting upon some evidence that establishes the necessary elements of the definition of trauma to the lumbar spine is not fail to act according to the substantial justice and the substantial merits of the case, without regard to legal form and technicalities.
These grounds of appeal reveal no error of law.
Grounds 8 – 9
These grounds take issue with the Tribunal’s rejection of Mr Deslandes’ claim insofar as it relied upon factor 6(h) of the Statement of Principles. According to Mr Deslandes’ submissions, the wording of the Tribunal’s reasons is important. I will repeat those reasons:
13. The applicant’s estimates of the weight he lifted are not substantiated by any contemporaneous material. I am unable to be reasonably satisfied that the applicant performed the amount of lifting required by factor (h) in the SoP, during his service and prior to the onset of lumbar spondylosis.
Mr Deslandes gave evidence about the weights lifted and carried by him during his service. His evidence was the subject of clarification in cross-examination:
MR WILLIAMS: Thank you. Mr Deslandes, you’ve been asked about your carrying and lifting?---Yes.
You say that you estimate, for example you said you estimate that some of these pieces of machinery were 30 to 40 kilograms?---Mm hm.
These were activities that you did, what, 40 years ago?---That’s correct.
Is this an estimate from now or do you have some information?---I don’t have any idea of what the weight was at the time but - - -
Okay?---I worked probably on the theory that if a 20 litre drum of Gamlen was 20 kilos, and this was heavier than it, I work on that sort of theory. And in some instances that estimate could have been well under what the actual weight was.
So this is an estimate by comparison with the 20 litre drum so indeed, the estimate could be over?---Over or under.
Yes. So these valves could be, say, 30 kilograms?---Yes, they were heavy.
Mr Deslandes argues that the Tribunal approached this issue on the footing that without contemporaneous material demonstrating the weights lifted and carried by him during his service it was “unable to be reasonably satisfied” (emphasis added) that the requirements of this factor were met. The argument hinges upon the word “unable” signifying that the Tribunal considered that in the circumstances it was precluded or prevented from reaching the relevant level of satisfaction that the requirements of factor 6(h) were met.
I do not think that the Tribunal was using the word “unable” in that sense. I accept the respondent’s submission that the Tribunal was saying nothing more than that in the absence of contemporaneous records the Tribunal was not satisfied that the requirements of factor 6(h) were made out.
By recording its reasons as it did, the Tribunal did not put an impermissible gloss on what the Act required in terms of evidence in order for the Tribunal to be “reasonably satisfied”, for the purposes of s.120(4) of the Act. The Tribunal was entitled to remark upon and take into account the lack of any contemporaneous material that demonstrated the weights that had been lifted by Mr Deslandes. By doing so, it did not place, or suggest that there was, an evidentiary onus on Mr Deslandes to provide contemporaneous material in order to satisfy factor 6(f) of the Statement of Principles.
Given the uncertainty present in Mr Deslandes’ own evidence, that the Tribunal was concerned to find some more contemporaneous evidence is not surprising.
I accept the respondent’s submissions that this ground seeks to cavil with the Tribunal’s fact finding. No error of law is revealed by this ground.
Ground 10
The Tribunal had before it two reports from Dr Peter Sharwood, an orthopaedic surgeon. In the first report, Dr Sharwood records the matters told to him by Mr Deslandes. Those matters dealt with pain in Mr Deslandes back and his belief that it was caused by the motor cycle accident. None of the medical notes taken at about the time of Mr Deslandes injury seem to have been considered by Dr Sharwood. He conducted an examination of Mr Deslandes. He set out his conclusion on page 6 of his report. None of those conclusions establish that the motor cycle accident was responsible for any of the pain that Mr Deslandes was experiencing. The conclusions do not refer to the motor cycle accident or its sequelae at all.
The second report was made on 10 October, 2013. It is very short. It provides:
It is my experience that people suffering from similar trauma to the lower back as suffered by Mr Deslandes would be unlikely to recover fully within a period of 10 days. I note that Mr Deslandes has claimed that his symptoms of pain and discomfort and restricted movement persisted for at least three months. Having regard to my knowledge of the injuries suffered by Mr Deslandes as reported and documented, a recovery period of three months would not be unusual and is consistent with the severity of the trauma suffered.
Mr Deslandes argues that the Tribunal erred in law in failing to take into account for the purposes of s.70 of the Veterans Entitlements Act, the second report of Dr Sharwood.
Dr Sharwood’s evidence was not challenged. In my view that is not surprising given the nature of his evidence. As I have pointed out above, his first report does not deal with the connection between the motor cycle accident and the complaints of pain made by Mr Deslandes at all. It merely records what Mr Deslandes said about that, many years after the event. The second report is given on the basis of an assumption that Mr Deslandes in fact received an injury to his lumbar spine in the subject motor cycle accident (even though it does not refer to it in terms). However, it is equally possible that the injury referred to by Dr Sharwood in his second report is the injury described by him in the conclusion to his first report as an aggravation of a pre-existing defect in Mr Deslandes’ lumbar spine from excessive stresses placed on his lumbar spine as a result of his employment as a marine technician within the Navy.
I accept that the Tribunal made no mention of Dr Sharwood’s evidence in its reasons. I do not accept Ms Deslandes’ submission that it was critical evidence. For the reasons I have just outlined, the evidence was of little or no value.
Even taken together with Mr Deslandes’ own evidence of his ongoing back complaints and the contemporaneous note at the time of Mr Deslandes’ discharge of “back and neck aches resulting from motorcycle accident”, Dr Sharwood’s evidence did not support the hypothesis that Mr Deslandes experienced a “trauma” of the nature anticipated in the Statement of Principles. Rather, his opinion assumed that as a fact without setting out his own findings about that, or the basis of his assumption.
The failure by the Tribunal to specifically refer to the report in its reasons for decision does not mean that the Tribunal did not take the report into consideration. The report was made an exhibit at the hearing. The Tribunal is not obliged to refer to every piece of evidence before it in its reasons for decision. That is especially so when the evidence is of little value.
This ground of appeal has no merit.
Ground 11
Mr Deslandes argues that in the alternative to grounds 6, 7 and 9, the Tribunal erred in law by failing to give reasons sufficient to satisfy s.43(2) of the AAT Act for:
a)failing to accept Mr Deslandes’ evidence as to the symptoms and signs of pain, and tenderness; mobility and range of movement of the lumbar spine; and the duration of those symptoms and signs;
b)failing to accept Mr Deslandes’ evidence as to the physiotherapy treatment obtained by him in respect of his back following the accident;
c)failing to accept Mr Deslandes’ evidence as to the estimate of weights carried or lifted by him relevant to factor 6(h) of the Statement of Principles.
As Mr Deslandes points out, the test as to the adequacy of reasons is laid out in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 at 593 as follows: the unsuccessful party, having read the decision, must be in a position to say: “Even though I may not agree with it, now I understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
In Total Marine Services Pty Ltd v Kiely [1998] FCA 153 Sackville J considered the obligation to provide reasons in accordance with s.43(2B) of the AAT Act saying:
The relevant principles include the following:
• A substantial failure by the AAT to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 (FCAFC), at 573; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCAFC), at 95-96, per Sackville J.
• The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration. It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan, at 567-568; Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 (FCA Wilcox J), at 481. As Burchett J said in Dodds v Comcare Australia (1993) ALD 690, at 691:
“Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal’s reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include ‘findings on material questions of fact’.”
• Regard must be had to the composition of the Tribunal which (as in the present case) does not necessarily include trained lawyers. Section 43(2B) does not require a standard of perfection: Bisley investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCAFC), at 157, per Sheppard J.
• A restrained approach to judicial review of AAT decisions is appropriate: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) [1980] FCA 96; (1980) 47 FLR 131 (FCAFC), at 145, per Fisher J. The reasons of the AAT should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FCAFC), at 287, approved in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 271-272.
• The assessment is to be made having regard to the AATs reasons as a whole: Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, at 5032, per Lockhart J.
• Despite the above qualifications, if the AAT’s reasons do not expose its reasoning process, in the sense that it does not enable a proper understanding to be obtained of the basis on which a decision has been reached, the decision involves an error of law: Australian Telecommunications Commission v Barker [1990) FCA 489; (1990) 12 AAR 490 (FCAIFC), at 492; East Finchley Pty Ltd v Federal Commissioner of Taxation [1989) FCA 481; (1989) 90 ALR 457 (FCA, Hill J), at 466-467.
Mr Deslandes argues that the physiotherapy treatment obtained by him in respect of his back and the treatment notes relating to it were matters of substantial importance to the claim. I have dealt with the potential significance of this evidence above when dealing with grounds 1 – 7. The significance of that evidence is overstated. So too, is the evidence of Dr Sharwood.
Mr Deslandes submits that if the Tribunal did not accept the evidence of Dr Sharwood then, in circumstances where Dr Sharwood’s evidence was uncontradicted, and was consistent with Mr Deslandes’s own evidence, the Tribunal erred in law by failing to give any reasons for doing so. But, in my view, the evidence of Dr Sharwood set out in either of his reports, was of little value. I have set that out above. Dr Sharwood does not identify the “trauma to the lower back” of which he speaks in his second report. Moreover, Dr Sharwood’s reference to “restricted movement” in his second report seems erroneous as there appears to be no claim of restricted movement due to lower back pain made by Mr Deslandes at all. The most that appears from his statements, is that he suffered a “numb pain” type feeling in his legs when he ascended stairs.
The respondent submits that the Tribunal’s reasons for decision clearly considered Mr Deslandes’ evidence about the length and type of his treatment around the time of the motorbike accident (at paragraph [4]). However, the Tribunal also recorded that his claims were not supported by any contemporaneous medical records. The respondent argues that the Tribunal was faced with a choice between two conclusions open on a consideration of the facts. In those circumstances, the question for the Tribunal is one of fact: Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 at [39).
I accept that here, the Tribunal was faced with such a choice: either accept Mr Deslandes’ evidence unsupported as it was by any other evidence, or the medical records that set out the injuries and diagnosis made at the time of, or close to, Mr Deslandes’ accident . The Tribunal chose the latter as it was entitled to do. The Tribunal preferred the contemporaneous medical records over Mr Deslandes’ recollection forty years after the event.
Similarly, Mr Deslandes argues that his estimate of weights carried or lifted by him were matters of substantial importance to the claim and that the Tribunal did not deal with those matters or, if it did deal with them, it did not expose its reasoning process in relation to them in a way which enables a proper understanding to be obtained of the basis on which its decision was reached.
However, in my view, the Tribunal did deal with those issues. It noted that there were no contemporaneous notes dealing with the weights lifted by Mr Deslandes during his work. In light of Mr Deslandes’ own evidence in cross-examination, it was not surprising that the Tribunal expressed an inability to be satisfied about the weights lifted by him in his work.
This ground of appeal raises no question of law. I accept the respondent’s submission that by this ground Mr Deslandes seeks to disturb the factual findings expressed by the Tribunal.
Conclusions
Mr Deslandes does not establish that the Tribunal’s decision is affected by legal error. No question of law arises on the appeal. The application must be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 14 August, 2015
Associate:
Date: 14 August 2015
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