Dethlefs, J.C. v Australian Telecommunications Commission

[1990] FCA 434

4341 90

JUDGMENT NO. ........ ..... .- ..... -

IN THE FEDERAL COURT OF AUSTRALIA	1
1
QUEENSLAND DISTRICT REGISTRY	1 QLD. NO. G4 of 1990
1
GENERAL DIVISION	1

BETWEEN:

JOHN CHRISTOPHER DETHLEFS

Applicant

AND :

AUSTRALIAN TELECOMMUNICATIONS COMMISSION

Respondent

MINUTES OF ORDER

JUDGS MAKING ORDER:	Spender J.
DATE OF ORDER:	4 July 1990
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

The application is dismissed with costs to be taxed.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
}
DUEENSLAND DISTRICT REGISTRY	)  QLD. NO. G4 of 1990
GENERAL DIVISION	)

BETWEEN:

JOHN CHRISTOPHER DETHLEFS

Applicant

AND :

AUSTRALIAN TELECOMMUNICATIONS COMMISSION

Respondent

SPENDER J
BRISBANE

4 July 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal from the General Administrative Division of the Administrative Appeals Tribunal. The Tribunal was constituted by Deputy President D.P. Breen, Dr G.S. Urquhart, and Dr D.W.A. de Maria. The Tribunal, by a majority consisting of the Deputy President and Dr Urquhart, in a

review; that decision being that payment of compensation to	decision given on 18 December 1989 affirmed the decision under
Mr. Dethlefs cease from 30 March 1988.
Briefly, the facts were that Mr Dethlefs commenced employment with Telecom as a linesman in 1976. On 2 May 1984 he was involved in an incident whilst driving a tractor which was towing a slasher. The vehicle, according to Mr. Dethlefs'
evidence, hit a stump; the impact causing him to be thrown forward and to jerk back.
On 29 January 1985 Mr. Dethlefs lodged his first claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971. A determination in his favour was made on 28 February 1985. He continued to receive compensation payments until the delegate of the Commissioner of Employees' Compensation determined that the liability of the respondent, the Australian Telecommunications Commission, should cease as from 30 March 1988. This decision was affirmed upon an internal review on 28 June 1988. It is the determination of the delegate that the liability of the respondent cease as from 30 March 1988, which was affirmed by the Tribunal and which is sought to be challenged in these proceedings.
It is accepted by Mr. D. Hall of counsel, who appeared on Mr Dethlefs' behalf, that his case both in the
A.A.T. and here was that there is no physical disorder from which Mr Dethlefs presently suffers. The case for the
applicant is that he has a post traumatic psychological disorder, one of the features of which was that he could not face going back to work.
Mr Hall conceded in his succinct submission that the majority of the tribunal did recognise that there was medical evidence pointing to that conclusion, as well as medical evidence and other evidence pointing to the conclusion to which the majority came. The submission on behalf of Mr Dethlefs was that, notwithstanding the recognition by the majority of the material supporting a conclusion contrary to that which it reached, it was blinded by the view it took of a video film shown to it, and as such did not properly address the question of the competing hypothesis, and arrived at its conclusion by failing to give such weight as it ought properly to have given to the other evidence. In short, it was submitted that there was no real consideration of the competing hypotheses, notwithstanding the reference in the reasons to material favourable to the case sought to be made for Mr Dethlefs.
In the Notice of Appeal one of the questions of law is said to be whether it was permissible for the tribunal to infer from evidence of a physical capacity to perform work in a non-stressful domestic situation that Mr Dethlefs had the capacity, or at least some capacity, to perform work for the respondent, or in any labour market in which the applicant
might reasonably be expected to work.

It was also said that a question of law arose in

these terms:

" Where the medical evidence is that the hysterical neurosis from which the Applicant suffers is in part related to his participation in the compensation process, is it permissible to infer an intention to deceive or otherwise to draw inferences about the Applicant's credibility from the Applicant's

exaggera t i on o f symptoms o r t h e degree o f

d i s a b i l i t y . "

The grounds set out in the notice of appeal assert:

" ( a ) t h a t the Tr ibuna l wrongly i n f e r r e d a c a p a c i t y

t o e a r n from work from a c a p a c i t y t o pe r fonn

modest	phys i ca l	t a s k s	i n	a	domes t i c	s e t t i n g ,
and

(b) t h a t t h e Tr ibuna l wrongly i n f e r r e d a c a p a c i t y

t o per form	work	i n a	s t r e s s f u l	s i t u a t i o n	from
a	c a p a c i t y	t o p e r f o n n	work	i n a	n o n - s t r e s s f u l

s i t u a t i o n , and

( c ) t h a t t h e Tr ibuna l e r r e d i n t r e a t i n g t h e

A p p l i c a n t ' s e xaggera t i on o f the extent o f h i s

d i s a b i l i t i e s a s e v i d e n c e o f an i n t e n t i o n t o

d e c e i v e r a t h e r t han a s a symptom o f a

p s y c h i a t r i c c o n d i t i o n ,

. . .

And in a broad-brush way it was further asserted that the tribunal's decision was not reasonably open to it.

In appeals from the Administrative Appeals Tribunal this court is restricted to a consideration of questions of law. As was said in Blackwood Hodqe (Australia) Pty Ltd v. Collector of Customs, New South Wales (No. 2L (1980) 3 ALD 38

at 39 by Mr Justice Smithers: 

" I n t h i s appeal t h e a p p e l l a n t con t ends i n t h e f i r s t

i n s t a n c e t h a t t h e Tr ibuna l e r r e d i n l a w i n making

t h e d e c i s i o n s	r e f e r r e d	t o above .	An	appeal	o f	t h i s
k i n d	from	t h e	A d m i n i s t r a t i v e	Appea ls	Tr ibuna l	l i e s
o n l y on	a	q u e s t i o n	o f law.	A c c o r d i n g l y	i n o r d e r	t o

succeed i n i t s appeal the a p p e l l a n t mus t demons t ra te

t h a t	on	n o b a s i s cou ld	t h e Tr ibuna l	have made	the
f i n d i n g s	upon	which	i t s d e c i s i o n was	based .	"

The point has frequently been made that the weight to
be given to any relevant consideration is a matter for the
Tribunal, and does not involve a question of law. In any

event, in this case, it seems to me that on a fair reading of the reasons given by the majority of the Tribunal it was conscious that competing bodies of evidence were involved. By way of illustration, in paragraph 22 of the majority reasons there is a recognition that there is some medical evidence which supports the applicant's case. That paragraph sets out in some considerable detail the evidence from Dr Herd who had,

on 27 November 1987, provided a report to the Secretary/

Treasurer of the Australian Postal and Telecommunications Union in response to a written request from the union. That opinion by Dr Herd concluded with the view:

" I feel he has chronic soft tissue neck pain aggravated by pos tural stresses and accompanying 'fibrositis syndrome' (enhanced pain perception) which may be exacerbated by various psychological phenomena and sleep deprivation. I felt there was little likelihood of his returning to work due to the duration of his spptoms.

In sununary I would agree with the diagnosis reached at Belmont that he has a 'post-traumatic myofascial pain syndrome' aggravated by postural stresses sleep disturbance and possibly by psychological factors. "

On the other hand, the Tribunal referred in detail to a video which showed Mr Dethlefs performing various household	tasks, including washing a motor vehicle. It also referred in
some detail to the evidence of a psychiatrist, Dr James, and, in particular, his report submitted to the Australian
Government Solicitor, dated 6 September 1988. In that report
Dr James said:

" 1. I do not think that the employee is now suffering from any psychiatric disorder. The employee may have suffered from an hysterical neurosis with fea t ures of Soma tofornr

(Psychogen ic )	Pain	Disorder ,	and	some
h y s t e r i c a l	c o n v e r s i o n	syn~ptoms o f	weakness	o f
h i s hands	( w r i s t s ) , i n t h e p a s t .	I	n o t e	t h a t

the employee h a s been the s u b j e c t o f

c o n s i d e r a b l e nredical i n v e s t i g a t i o n s and

t r ea tmen t . However I c o n s i d e r t h a t the employee would, by now, have r ecovered from the h y s t e r i c a l n e u r o s i s and I c o n s i d e r t h a t i f

the	employee	now	c l a i m s	t o have	s i g n i f i c a n t
weakness	o f h i s	arms,	he	i s d e l i b e r a t l y	( s ic )

exaggera t i n g the degree o f d i s a b i l i t y .

I do n o t think t h a t the exaggera t i on o f the

degree o f d i s a b i l i t y can be regarded a s a

p s y c h i a t r i c d i s o r d e r . That i s , I c o n s i d e r

t h a t t h e exaggera t i on o f the degree o f

d i s a b i l i t y i s o c c u r r i n g a t a consc ious level

i n o r d e r t o d e c e i v e .

2 . The e x a g g e r t i o n ( s i c ) i s n o t a p s y c h i a t r i c

c o n d i t i o n and i s n o t due t o the employment o f

the	employee	or	t o a n y aggrava t i on	o f	an
u n d e r l y i n g	c o n d i t i o n	o r	t o	a n y	n a t u r a l
p rogre s s ion	o f	a	p r e - e x i s t i n g	o r	u n d e r l y i n g
c o n d i t i o n .

3. I do n o t c o n s i d e r t h a t the e n ~ p l o p e n t was a

c o n t r i b u t i n g f a c t o r	t o the	exaggera t i on	o f	a n y
d i s a b i l i t y .

4 . Not a p p l i c a b l e .

5 . I do n o t c o n s i d e r t h a t the employment h a s

caused o r aggravated t h e employee ' s t e n d e n c y

t o e xaggera t e h i s d i s a b i l i t y .

I c o n s i d e r t h a t the exaggera t i on o f t h e degree

o f d i s a b i l i t y i s o f a temporary n a t u r e . The

e f f ec t shou ld c e a s e once the con~pensa t ion

i s s u e h a s been r e s o l v e d .

The employee i s p e r f e c t l y capable o f

under tak ing l i g h t d u t i e s . "

Having set out in some detail the medical evidence which, on analysis, was both for and against the case which Mr Dethlefs sought to make, the Tribunal said, in paragraph 39:

'' [I]t i s a m a t t e r f o r the Tr ibuna l t o make finding8

a s	t o whether	or	not	exaggera t i on	on	t h e a p p l i c a n t ' s
p a r t	h a s p layed	a	r o l e a t	a n y s t a g e	o f	t h e h i s t o r y
o f	the	m a t t e r .	Accord ing l y ,	w h i l s t	it	i s p e r f e c t l y

i n o r d e r for D r . James a s a P s y c h i a t r i s t t o r e p o r t

t o	the	S o l i c i t o r s	h is	v i e w s ,	i t	r e m a i n s	for	the
T r i b u n a l	t o make	i t s	own	f i n d i n g s .	B e	t h a t	a s	i t

may, the v i e w o f the T r i b u n a l c a n be shortly s t a t e d .

W e a g r e e w i t h o u t r e s e r v a t i o n w i t h D r . James' v i e w

t h a t t h e r e h a s been on M r . D e t h l e f s ( s i c ) p a r t

e x a g g e r a t i o n	a s	t o	the	d e g r e e	o f p a i n	and	d i s a b i l i t y
on	a	c o n s c i o u s	level	c a l c u l a t e d	t o s u s t a i n	a	l i f e
s u p p o r t e d	by	c o m p e n s a t i o n	payments	and	free	o f	the

demands o f a p l a c e i n the w o r k f o r c e . "

It seems to me that there is no error of law disclosed in the reasoning o f the majority of the Tribunal. In

Repatriation Commission v. O'Brien (1984) 155 CLR 422, at 440,

Mr Justice Brennan said:

"	But	where	the m a t e r i a l	before a	d e c i s i o n - m a k e r	g i v e s
rise	t o	c o m p e t i n g	h y p o t h e s e s ,	one	a f f i r m i n g	an
e n t i t l e m e n t ,	the	other	d e n y i n g	t h a t	e n t i t l e m e n t ,	and
i t	i s possible	r a t i o n a l l y	t o	d e t e r m i n e	w h e t h e r	the

a f f i r m a t i v e hypothesis i s d i s p e l l e d beyond

r e a s o n a b l e d o u b t , i t i s the f u n c t i o n o f the Board,

the Commission o r the A.A.T. , a s the c a s e may be,

t o d e c i d e the q u e s t i o n . Whether i t i s p o s s i b l e

r a t i o n a l l y	t o	d i s p e l	a n	a f f i r n l a t i v e	h y p o t h e s i s	and
t o	d e s t r o y	the	p r o b a t i v e	e f f e c t	o f	m a t e r i a l

s u p p o r t i v e o f	the	c l a i m i n a	p a r t i c u l a r	c a s e	depends
on	the m a t e r i a l	b e f o r e	the	d e c i s i o n - m a k e r .	"

In my opinion, no legal error has been shown in the course adopted by the majority of the Tribunal, and it seems	that, in truth, the complaints which Mr Dethlefs may make of
that decision is that they gave too much weight, in his view, to considerations which he would assert were not entitled to that weight. Such complaint does not have within it an error of law, and, for these reasons, it is not competent for this court to do other than dismiss the application. The application is dismissed, with costs, to be taxed.

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