Freeman v Defence Force Retirement and Death Benefits Authority

[1985] FCA 330

Re: TONY VAUGHAN FREEMAN
And: DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
No. VG 269 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
Sheppard J.
Beaumont J.

CATCHWORDS

Administrative law - claim for reclassification in respect of incapacity pursuant to Defence Forces Retirement and Death Benefits Act - wartime injuries preventing applicant from pursuing pre-war occupations of bricklayer and builders' labourer - subsequent employment as security officer - matters to which Authority required under the Act to have regard in a reclassification - obligation to look at current incapacity.

Appeal from Administrative Appeals Tribunal - alleged failure to take into account applicant's psychological problems and the fact of earlier criminal convictions making him unfit for work as security officer - whether errors of law - relevance of applicant's employment history.

Words and phrases: "percentage of incapacity in relation to civil employment".

Defence Force Retirement and Death Benefits Act 1973 ss.26, 30, 31, 32, 34, 37.

Administrative Appeals Tribunal Act 1975 s.43.

HEARING

MELBOURNE
#DATE 17:7:1985

ORDER

1. The appeal is dismissed.

2. Liberty is reserved to the respondent to make such application for costs as it may be advised.

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

JUDGE1

Sweeney, J.: I agree with the orders proposed by my brother Sheppard and with his reasons for them.

JUDGE2

SHEPPARD J.: This is an appeal from the Administrative Appeals Tribunal in a matter concerning a claim made by the applicant under the Defence Force Retirement and Death Benefits Act 1973 ("the Act"). In order that the matters relied upon by the applicant may be understood, it is necessary, first of all, to refer to the evidence in the matter and to the relevant legislation.

To say that fortune has yet to smile upon the applicant is to understate the effects of the many sadnesses, setbacks and disappointments which he has so far encountered. The applicant was born in May 1949. His father was a fruit picker and his mother had worked as a barmaid. His father deserted his mother when the applicant was five or six years old. Thereafter the applicant, his brother and three half sisters lived in various places as the family moved about Victoria. The applicant's schooling was quite seriously affected. He went to numerous primary schools, never staying at any one for more than six months. In his first year at high school he was at three different schools and when he started second year at high school he attempted to stay at the one school, but this involved very substantial travelling. After the applicant left school he went fruit picking. He then came to Melbourne where he worked as a bricklayer's labourer. Subsequently he became an "improver" bricklayer, that is, a person learning the trade without going through a formal apprenticeship. The Tribunal found that the applicant did become a qualified bricklayer. In this earlier period of his working life the applicant was led into criminal activity. He had two periods of detention at a youth training centre for offences which included breaking into shops, having housebreaking implements in his possession and the illegal use of motor vehicles.

In 1970 the applicant was conscripted for service into the Australian Army. He said that until that occurred he had planned to carry on with bricklaying in the hope that he would one day become a master builder. The applicant's unit was sent to Vietnam in September 1971. His platoon was involved in an ambush in which five men were killed and 25 were wounded. One of these was the applicant. He suffered multiple fragment wounds to his left wrist, his back and his left leg. He was in the Heidelberg Repatriation Hospital for almost two years. He had eight operations to his wrist. The applicant has suffered subsequent diminution in his ability to use his left wrist. He is unable to lift things because his grip is affected. This is because of damage to the median nerve which has affected the strength in his fingers and thumb. The thumb itself has no feeling.

Before he was discharged, the applicant underwent vocational guidance tests. He claims that he was told that he would be "useless" in civilian life. He endeavoured to remain in the Army, but was discharged in February 1974. Before his discharge he obtained a military driving licence enabling him to drive landrovers and trucks. He said that he was told that this was of no assistance to him in civilian life.

After his discharge he was able to obtain employment with ACI Nylex at Clayton near Melbourne as a security officer. After five months he was retrenched. The Employment Bureau suggested that he learn a trade as a saddle maker. He obtained employment with a saddle maker. His pay was subsidised by the Government, but his restricted use of his left hand made it impossible for him to cope with this work and he had to give it up. He remained unemployed for some time but applied for an advertised position as a security guard at Pilkington ACI. He began work in this position in July 1976 and was still employed in it at the date of the Tribunal's decision on 17 September 1984. We were informed during the course of the hearing that the applicant has since lost his job and is now unemployed. That circumstance, however, does not bear upon the outcome of this application.

The applicant has other disabilities apart from those arising because of the injuries to his wrist. He has a nervous disorder which manifests itself in an explosive temper. He also has a sleep problem. He sleeps very heavily for extremely long hours and finds it difficult to wake up. He perspires very heavily when asleep and wakes drenched in sweat. This first commenced the day after he was wounded when he was in hospital in Vietnam before being repatriated to Australia.

The applicant's temper and tendency to angry behaviour have wrecked his marriage. He has tended to get into arguments with fellow workers and with some members of the management of his employer. The Tribunal was of the view that there was a danger that his problems might lead him to carry out his duties "in a manner verging on the obsessive." There is no issue that his bad temper and consequent behaviour are attributable to his war injury. He receives a repatriation pension in respect of them.

At one stage the applicant considered attempting to become a left handed bricklayer, transferring to his right hand the heavier work involved in lifting bricks. However, the Department of Labour and National Service did not support him in this proposal because it considered that he would not be capable of doing bricklaying.

Part V of the Act provides for invalidity benefits. Section 26 provides that where a contributing member is retired on the grounds of invalidity or of physical or mental incapacity to perform his duties he is entitled, on his retirement, to invalidity benefits in accordance with the provisions of Part V. The applicant was not retired on the grounds of invalidity, but is treated as if he had been, because of the provisions of s.37 of the Act. That section provides that where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties, but after his retirement the Chief of the General Staff or a person authorised by him informs the Authority that at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may be treated as if he had been retired on that ground. The Authority has so treated the applicant.

Section 30 provides for classification in respect of incapacity. Pursuant to it, the Authority is to determine a member's percentage of incapacity in relation to civil employment and is to classify him according to percentage of incapacity as follows:-

"Percentage of Incapacity Class Sixty per centum or more . . . . . . . . . . . A Thirty per centum or more but less than sixty per centum . . . . . . . . . . . . . B Less than thirty per centum . . . . . . . . . C"

Sub-section 30(2) provides for the matters to which the Authority is to have regard in determining the percentage of incapacity of a member. It is unnecessary to refer to the detail of these matters. Sections 31 and 32 provide for the quantification of the amounts to be paid to members who are incapacitated. A member classified as Class A is entitled to 76.5 per cent of the annual rate of pay applicable to him immediately before his retirement. A member classified as Class B is entitled to 38.25 per cent of that rate. A different approach is adopted in relation to a member whose incapacity is less than 30 per cent, that is a member who is Class C. It is unnecessary to explain how the amount payable in that event is calculated.

Section 34 provides for the reclassification of a member's incapacity. Sub-sections (1), (1A), (1B) and (2) of s. 34 are as follows:-

"34. (1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.

(1A) In determining, for the purposes of sub-section (1), the percentage of incapacity in relation to civil employment of a recipient member, 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 diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b); (d) such other matters (if any) as are prescribed for the purposes of this sub-section.

(1B) In sub-section (1A), "prescribed physical or mental impairment", in relation to a recipient member, means(a) a physical or mental impairment of the recipient member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the recipient member was retired, whether or not that impairment has changed, for better or worse, since that retirement; or (b) any other physical or mental impairment of the recipient member causally connected with a physical or mental impairment referred to in paragraph (a).

(2) Where a recipient member is reclassified under this section, the Authority shall specify the date from which the classification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly."

The provisions of sub-sec. 34(1A) are similar, but not precisely the same as the provisions of sub-sec. 30(2) earlier referred to. It is to be observed that the matters specified in sub-sec. 34(1A) as the matters to which the Authority is to have regard are the only matters with which the Authority is to be concerned. The sub-section is exhaustive in this regard. It is also to be observed that because of the definition of "prescribed physical or mental impairment" in sub-sec. 34(1B) a member may be reclassified at any time and may be reclassified so that he is found to have either a greater or a lesser degree of incapacity than was previously the case. That is because the definition in sub-sec. 34(1B) takes one back to the physical or mental impairment that was the cause of the original invalidity or physical or mental incapacity by reason of which the member was retired. It follows that the Authority is always obliged to look at the current capacity of a member and reach a conclusion on the degree to which the original physical or mental impairment which caused his incapacity has diminished his capacity for civil employment. This view of the legislation is supported by what was said by the Tribunal in relation to the similar provisions of s. 53 of the Defence Forces Retirement Benefits Act 1948 in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 A.L.D. 31 (Brennan J. (President), K.S. Edmunds (Senior Member) and Dr. M. Glick (Member)), namely (p. 33):-

"The power which is thus conferred upon the Authority to reclassify the person entitled to benefit is a power which may be exercised as often as the Authority in its discretion determines. The Authority may, therefore, properly perform its function under s. 53(1) in a particular case by taking account only of the circumstances present and foreseeable in the immediate future, omitting the circumstances foreseeable only in the long term. That is not to say that the Authority may not, in an appropriate case, have regard to the long-term prospects but it is not bound to do so if it chooses to leave future developments to be reflected by future exercises of the power to reclassify."

A further matter to be observed in relation to s. 34 is that the matters specified in paras. (a) and (b) of sub-sec.(1A) are to be considered as at the date when the Authority comes to the question of reclassification. That must follow, in my opinion, because the task is to determine the percentage of incapacity "in relation to civil employment of a recipient member." Thus his employment history is looked at at the time of the reclassification, not at the time of the injury which incapacitated him, as is the case under s. 30 of the Act.

The Tribunal, in exercising its powers under the Administrative Appeals Tribunal Act 1975, sat in the matter as if it were the Authority; it was empowered to exercise all the powers and discretions conferred by the Act on the Authority; see s. 43 of the Administrative Appeals Tribunal Act.

Pursuant to those powers a majority of the Tribunal made findings in relation to the matters specified in sub-sec. 34(1A) as follows:-

"Re s. 34(1A)(a): The vocational, trade and professional skills, qualifications and experience of the applicant in October/November 1981 were:

(a) qualification as a bricklayer; (b) experience as a builder's labourer; (c) experience as a security officer.

Re s. 34(1A)(b): The kinds of civil employment which a person with the skills, qualifications and experience referred to in (i) above might reasonably undertake were:

(a) bricklayer; (b) builder's labourer; (c) security officer.

The impairments that were within s. 34(1B) and by application of s. 37 the cause or one of the causes of the invalidity or physical or mental incapacity by reason of which the applicant was retired were:

(a) median nerve damage; (b) personality disorder.

Re s. 34(1A)(c) The degree to which such prescribed physical or mental impairments of the applicant had diminished the capacity of the applicant to undertake the kinds of civil employment referred to in (i)(a), (b) and (c) above were as follows:

(a) the applicant was in October/November 1981 wholly unable to undertake civil employment as a bricklayer or as a builder's labourer;

(b) the ability of the applicant in October/November 1981 to undertake civil employment as a security officer was not significantly diminished to any degree.

The findings so made also reflect the position since October/November 1981 and continuing."

After making these findings the majority continued:-

"27. Our finding in relation to the applicant's ability to undertake employment as a bricklayer or as a builder's labourer needs in our opinion no further explanation. It is firmly based on the evidence. As to employment as a security officer, some comment is necessary. We have not taken into account the applicant's psychological difficulties. We regard his service in the Army and the injury which he there sustained as having very substantially increased such difficulties, as Dr. Conron's evidence indicated. But the fact is that his performance in civil employment as a security officer demonstrated his total ability to undertake that employment. If of course at some time his physical or mental impairments remove the possibility of such performance, such as by loss of his present employment and inability to regain similar employment, in particular if he lost his job for reasons related to them and likely to be made the subject of adverse reference, the matter would have to be reviewed and reclassification contemplated. And at that point it could be necessary to consider the relevance and impact of his personality disorder, which was not apparently taken into account as a retirement disability through the medium of s. 37, but which in our opinion should have been taken into account. But the core of the system is that it is not necessary or appropriate to seek to divine what the future may hold. As we have said, the decision is not once and for all. We sympathise with the applicant's distaste for his present employment, but we simply cannot, as we see it, approach the matter in terms of job satisfaction."

The majority then came to the task of assessing the percentage of incapacity of the applicant for civil employment. After some further discussion the Tribunal concluded as follows:-

"30. Looking at the matter globally then, as we consider that we are required to do, we consider that the applicant has lost one half of the range of civil employment demonstrably open to him by skill, qualifications and experience as at October/November 1981. His relevant incapacity was in our opinion 50 percent, and in consequence the decision under review should be set aside and an appropriate order made accordingly."

The applicant relied upon a number of grounds of appeal. None was abandoned, but only two were argued, one being added by leave during the course of the hearing. The grounds were:-

1. The Tribunal erred in law in not taking into account the applicant's psychological problems; see para. 27 of that part of the decision earlier quoted.

1. The Tribunal erred in law because it did not take into account as affecting the applicant's qualifications the fact that he had had in his earlier life a number of criminal convictions for dishonesty. These, it was said, made him unfit for work as a security officer; he thus lacked the capacity to carry out such work.

In order to underline the psychological problems which the applicant has, counsel took us to the medical evidence for the purpose of filling out the Tribunal's references to it. Dr. Conron is a psychiatrist. He reported on the applicant to the Authority. His evidence was in part as follows:-

"But, how would you put it, what kinds of things - given the personality disorder that you have found, what kinds of things would cause him difficulty? --- Well, his intolerance of frustration and rigidity. I think if you are doing a job involving other people you need - it is much better if you are able to relate to them in that fairly friendly fashion to get them on side, particularly if you are going to be involved in a disciplinary role. I think that they would - they would cause him troubles in that he would be less attractive as an employee to his employer. In other words, he would be more likely than the average security guard to get the sack because of his own difficult behaviour. The other problem that he had that he told me is that if he does, say, have to sign a cheque (sic.) or do something in a disciplinary line, he would experience considerable anxiety and shakiness within himself. Now, he would execute the job satisfactorily, albeit perhaps in a rigid manner and perhaps a little less friendly than some other security guards, but he would still feel anxiety in himself, so the difficulties in this job would be partly his own anxiety and partly the effect that his behaviour would have on other people."

Dr. Riley is also a psychiatrist. He reported upon the applicant's condition to the applicant's solicitors. Amongst other things Dr. Riley said:-

"His (the applicant's) personality change stems to a considerable degree from his traumatic experiences and injury in South Vietnam even though he had gone through a phase of adolescent turmoil and rebellion stemming from his unfortunate upbringing prior to the Army experience."

Mrs. Blythe is a psychologist and behavioural scientist. She encountered the applicant in the course of her duties at the Dandenong Psychiatric Centre. Amongst other things Mrs. Blythe said:-

"The initial presenting problem was he had difficulty with angry outbursts. There were considerable difficulties with his wife. They had had a number of separations and he also had physical anxiety complaints. Sleeping difficulties, waking in the middle of the night and sweating. Over the course of my staying time, which was about 12 months, there were other complaints that he had in relation to his work, but his marriage and anger outbursts were the initial presenting problems.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . As I recall, he had a lot of difficulty getting on with his fellow workers. At the time he reported it, it was because he followed the rule book to the letter and I gained the impression that even if there were a shorter way to do it, Tony would always do exactly as the rule book said, and that attitude of rigidity meant that he, at times, was not able to compromise even if perhaps a compromise would have been the shorter way round. That inflexibility did not lend him kindly to his co-workers."

Counsel also referred us to the evidence given by the applicant as to his convictions. The applicant said that he had worked either as a bricklayer's labourer or as an improver bricklayer from the time when he was 16 years of age until the time when he went into the Army at the age of 21. He said that he had been convicted of certain offences involving shop breakings, possession of housebreaking implements and the illegal use of vehicles. The members of the Tribunal did not think it necessary to go into the detail of these, but evidence was elicited that the applicant received sentences of detention at the Malmsbury Youth Training Centre. He was at Malmsbury on two occassions. The second was for ten months during which time he was able to engage in bricklaying. He referred to the employment he had with ACI Nylex and Pilkington ACI. He said that he was not asked by these employers about any convictions and he said that he did not volunteer information concerning them.

The final evidence to which it is necessary to refer is that of Mr. Oliver who is employed as senior employment officer at the Commonwealth Employment Service in Dandenong. He said that if the applicant were to lose his then position as a security officer with Pilkington ACI, he would not have thought that the applicant would find further employment as a security officer, "mainly due to his criminal convictions." Mr. Oliver went on to say that security companies, as a rule, required a night watchman's certificate which was only obtainable, he believed, at a police station. He understood that it would not be given to anyone with criminal convictions. I observe in passing that the two companies for which the applicant worked did not apparently require information as to previous convictions. On the other hand, they may not be "security companies" to use Mr. Oliver's expression; he may have been referring to companies which provide security services for other companies and undertakings.

Before going directly to the first submission relied upon by counsel for the applicant, I should say that, in my opinion the Act, unlike much of the workers' compensation legislation in Australia, looks only at the degree to which a member's capacity to undertake civil employment has been diminished; see sub-ss. 30(2) and 34(1A). The Act itself takes no account of his actual earning capacity at a given time, although the fact that he has engaged in particular employment will be a relevant factor for the Authority to consider when determining his percentage of incapacity. But there may be cases where, although a member is employed, he is doing his work with such difficulty or under such stressful circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition.

A case of that latter kind was Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 A.L.D. N58. There X had obtained high rank in a branch of the armed services. He had a complete mental breakdown and was retired. At the date of his retirement, his disabilities made him virtually unemployable and he was classified class A for pension purposes. However, by concealing the nature of his illness and demonstrating a remarkable degree of fortitude, he obtained well-paid, responsible employment. It was apparent that it was only by concealment and by adopting an attitude towards the limitations imposed by his disabilities much beyond that which could be expected of an average person, that X had obtained this job. As a result of the employment X was reclassified by the Authority as class B for pension purposes. Upon review it was held, inter alia, that the test of capacity for civil employment should not take into account the capacity of a pensioner to obtain employment by concealing his condition. He was reclassified as class A.

The foundation for counsel's first submission - and indeed for his second submission as well - is this understanding of the legislation. He submitted that the fact that the applicant was employed as a security officer for some eight years was not at all conclusive of his capacity for such work. So much may be conceded. But in order to succeed, the applicant needs to demonstrate either that this was the only conclusion open or that the Tribunal's reasons disclosed an error of law in its approach to the problem. It was only the latter proposition upon which counsel relied. In doing so he conceded that if he were successful, the matter would need to go back to the Tribunal to be reconsidered. He could not obtain a variation of the Tribunal's finding in this Court.

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 starting point is the finding that the applicant's ability to undertake civil employment as a security officer "was not significantly diminished to any degree." I would read this finding as meaning that his ability was not diminished to a significant degree. The next matter is the sentence in para. 27 of the decision earlier quoted, "We have not taken into account the applicant's psychological difficulties." It appeared to me that counsel at one stage of his argument wanted us to read that statement in isolation. That would not be appropriate if for no other reason than that it is clear that the Tribunal did have regard to the applicant's psychological difficulties. Earlier it had said that the incapacities by reason of which the applicant was retired included a personality disorder. Furthermore, the Tribunal followed the statement upon which counsel for the applicant relied with the words:-

"We regard his service in the Army and the injury which he there sustained as having very substantially increased such difficulties, as Dr. Conron's evidence indicated. But the fact is that his performance in civil employment as a security officer demonstrated his total ability to undertake that employment."

In my opinion, those words supply the reasons for the omission of the applicant's psychological problems from further consideration and also make clear what it was that the Tribunal earlier meant when it said that it left those problems out of account. What it was saying was that, although they existed, they did not, at the time the Tribunal was dealing with the matter, affect the applicant's capacity to do his work as a security officer. In my opinion this was a finding of fact. In making it the Tribunal committed no error of law. In other words it was a finding plainly open to the Tribunal on the evidence before it. After all the applicant had in fact discharged the duties of security officer, albeit with the difficulties due to his psychological problems which are mentioned in the evidence, for some eight years. It was open to the Tribunal, if it thought it appropriate to do so, to find nevertheless that the applicant did not have the requisite capacity. That indeed was the view of the member who wrote the minority opinion. But in my opinion, the Tribunal's finding was well open on the evidence and its reasons for arriving at it do not disclose any error of law.

I would therefore reject the first submission. Before proceeding to deal with the second submission, I should say that I have set out the facts of the matter at rather greater length than the submission warranted. I have done so because I think the applicant himself should understand, after all he has been through, that his case has received a full and sympathetic consideration. That consideration does not, in my opinion, reveal the slightest indication of any error of law in the approach which the Tribunal has adopted. As earlier said, the circumstances have now changed because the applicant has lost his job. I would not wish in any way to bind the Authority or the Tribunal to which any further appeal may go. But it would seem to me to be difficult, if the applicant is out of work because of an inability to work as a security officer, to resist the conclusion that he is more incapacitated now than was previously the case. If a further application for reclassification is made, I would hope that it might be dealt with somewhat more expeditiously than the application which has led to the present appeal.

I turn to the second submission. The fact of the applicant's criminal conduct is not anywhere mentioned in the decision, but we were informed by counsel for the applicant, without dissent from his opponent, that the submission now relied upon was put to the Tribunal. In counsel's submission the conduct, and more particularly the consequential record, were material matters to be taken into account in relation to the matters specified in paras. (a) and (b) of sub-sec. 34(1A) in that they relate to the applicant's vocational and trade qualifications and also to the kinds of civil employment which he might reasonably undertake.

In the view that I take of the matter I do not need to express a view on that submission. The applicant has worked as a security officer for two companies, for one for a period of five months and for the other for a period of over eight years. He was not refused work because of his record. Indeed, he was not even asked about it by his employers. He lost his first job, not because of any record, but because he was retrenched. These undisputed facts tend to counter the effect of Mr. Oliver's evidence upon which there is no finding. But if it be accepted at face value, it tends to establish no more than that the applicant might have difficulty in obtaining a job with a security company, not a company or undertaking employing its own security staff. The Tribunal proceeded to its decision upon the basis that the applicant had continuously worked as a security officer for eight years. That approach, as I have earlier indicated, was one which was open to it. The existence of the applicant's criminal record, unknown as it was to his employers, could not have affected his capacity for work with those employers.

In the result I would dismiss the appeal. I would reserve liberty to the respondent to make such application for costs as it may be advised.

JUDGE3

BEAUMONT, J.: The applicant, Mr. Tony Vaughan Freeman, appeals to the Court on a question of law pursuant to s.44 of the Administrative Appeals Tribunal Act, 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") which, by a majority, set aside a decision of the respondent Defence Force Retirement and Death Benefits Authority. The Tribunal instead made a determination that the incapacity of the applicant in relation to civil employment was 50 per cent pursuant to s.34(1) of the Defence Force Retirement and Death Benefits Act, 1973 ("the Act"), and that he be reclassified as class "B" accordingly on and from 27 November 1981. The decision of the respondent reviewed by the Tribunal was that the incapacity of the applicant in relation to civil employment was 20 per cent and that he be classified under s.34(1) of the Act as class "C" on and from 27 November 1981.

By s.34(1) of the Act, the respondent may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in s.30 according to the percentage of his incapacity in relation to civil employment. Section 30 provides the following classifications:

Percentage of Incapacity< Class Sixty per centum or more< A Thirty per centum or more but less than sixty per centum< B Less than thirty per centum C

By s.34(1A), in determining, for the purposes of s.34(1), the percentage of incapacity, the respondent is to 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 diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);

. . ."

Section 34(1B) defines a "prescribed physical or mental impairment" as follows:

"(a) a physical or mental impairment of the recipient member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the recipient member was retired, whether or not that impairment has changed, for better or worse, since that retirement; or

(b) any other physical or mental impairment of the recipient member causally connected with a physical or mental impairment referred to in paragraph (a)."

The circumstances in which the Tribunal reviewed the respondent's decision were as follows. The applicant, now aged 36 years, was injured in 1971 while serving as a conscript with the Australian army in Vietnam. He suffered, inter alia, multiple fragment wounds to his wrist leading to a permanent disability in the form of median nerve damage. In the result, he has been unable to pursue the occupation of a builder's labourer and bricklayer pursued by him before his conscription. As a consequence of this disability, the applicant sought, and in 1976 obtained, employment as a security officer with Pilkington A.C.I. Limited. He held this position until recently when he was dismissed. The dismissal occurred after the hearing before the Tribunal.

In addition to his physical injuries, and this is the matter of present contention between the parties, the injuries suffered by the applicant have accentuated a pre-existing mental impairment in the form of a personality disorder suffered by the applicant. This disorder, said to consist of a tendency to lose his temper and an unduly rigid insistence on the strict observance by others of rules, was the subject of a considerable body of medical evidence before the Tribunal. It will suffice for present purposes to mention only the evidence of Dr. Conron, a pyschiatrist called by the respondent. In his opinion, because of the wrist injury and personality disorder, the applicant had a 40 per centum incapacity to perform the types of civil employment mentioned, namely labourer, bricklayer and security officer. According to Dr. Conron, although the applicant's mental impairment was pre-existing, "people who have pre-existing difficulties are more likely to develop more major personality difficulties if they are confronted with a chronic painful condition". He explained that his figure of 40 per centum was a composite assessment of all three putative employments mentioned. The majority of the Tribunal, having recited the foregoing material, summarised Dr. Conron's opinion evidence thus:

"He thought it highly unlikely that (the applicant) would be able to handle work as a bricklayer or as a labourer but that despite his difficulties he could, in view of his steady employment over seven years at Pilkington's, handle work as a security officer."

In approaching their task of assessing, as at the relevant date (October/November 1981), the degree of diminution of the applicant's capacity to undertake the kinds of civil employment referred to in s.34(1A)(b) of the Act, the majority of the Tribunal made the following findings. First, for the purposes of s.34(1A)(a), the relevant skills, qualifications and experience of the applicant were qualifications as a bricklayer, experience as a builder's labourer, and experience as a security officer; secondly, for the purposes of s.34(1A)(b), the kinds of civil employment which a person with the aforesaid skills, qualifications and experience might reasonably undertake were those of a bricklayer, a builder's labourer and security officer; thirdly, the impairments that were within s.34(1B) and, by application of s.37, the cause or one of the causes of the invalidity or physical or mental incapacity by reason of which the applicant was retired from the Army were (a) median nerve damage; and (b) personality disorder.

Further, for the purposes of s.34(1A)(c), the majority found that the degree to which such prescribed physical or mental impairments had diminished the applicant's capacity to undertake the kinds of civil employment described was as follows:

"(a) the applicant was in October/November 1981 wholly unable to undertake civil employment as a bricklayer or as a builder's labourer;

(b) the ability of the applicant in October/November 1981 to undertake civil employment as a security officer was not significantly diminished to any degree." (emphasis supplied)

The majority then offered the following comments on the applicant's employment as a security officer:

"27. . . . We have not taken into account the applicant's psychological difficulties. We regard his service in the Army and the injury which he there sustained as having very substantially increased such difficulties, as Dr Conron's evidence indicated. But the fact is that his performance in civil employment as a security officer demonstrated his total ability to undertake that employment. If of course at some time his physical or mental impairments remove the possibility of such performance, such as by loss of his present employment and inability to regain similar employment, in particular if he lost his job for reasons related to them and likely to be made the subject of adverse reference, the matter would have to be reviewed and reclassification contemplated. And at that point it could be necessary to consider the relevance and impact of his personality disorder, which was not apparently taken into account as a retirement disability through the medium of s.37, but which in our opinion should have been taken into account. But the core of the system is that it is not necessary or appropriate to seek to divine what the future may hold. As we have said, the decision is not once and for all. We sympathise with the applicant's distaste for his present employment, but we simply cannot, as we see it, approach the matter in terms of job satisfaction."

Having thus ignored the applicant's mental impairment the majority proceeded, by what they described as a global assessment, to hold that he had lost one half of the range of civil employment demonstrably open to him at the relevant date.

The applicant advances two arguments in the appeal. In the first place, he submits that the majority of the Tribunal fell into error when, having found that the applicant's personality disorder was one of the causes of his invalidity, they said that they would not take that condition into account for the purposes of s.34(1A) in assessing the degree of diminution of the applicant's capacity to undertake employment as a security officer. The applicant submits, no doubt correctly, that the reference in s.34(1A)(c) to the "capacity" of the recipient member is intended to convey its ordinary meaning of the power, ability or possibility of doing something (Macquarie Dictionary) and that this must pick up a personality disorder.

But, in my opinion, even if this be accepted, it does not follow that the majority fell into error in this respect. For present purposes, what s.34(1A)(c) requires is an assessment of the degree of the inability of the applicant to enter upon the duties called for in the case of a security officer. This is simply a question of fact, although, as here, in many cases that factual issue may well be difficult to resolve. In resolving that question of fact, the majority had the benefit of evidence in several forms. They had expert opinion evidence from medical practitioners and from an officer of the Commonwealth Employment Service; they also had evidence of the actual employment of the applicant as a security officer for some seven years. None of this evidence could be conclusive of the issue of fact which fell for determination by the Tribunal: that was a matter for it to determine on the whole of the relevant evidence. The majority determined the matter by holding that the applicant's personality disorder made no "significant" contribution to the applicant's capacity to undertake employment as a security officer, that is to say, no such contribution as would warrant its being taken into account for present purposes.

In my opinion, when read as a whole, the reasons of the majority disclose no more than an assessment, in negative terms, of the question of fact posed for the Tribunal by s.34(1A) (c). In making that factual finding, the majority did not, in my view, fall into any legal error of the kind suggested. In particular, they did not exclude the possibility that, in theory at least, the applicant's mental impairment could have contributed to a lack of capacity to undertake employment as a security officer. Rather, having considered all the evidence, the majority found that, as at that date, this disorder should be ignored as having no operative effect as a relevant disability.

As the majority pointed out, their task was to make a classification of the applicant's position as at that particular point of time. In its terms, s.34(1) contemplates the possibility of re-classification from time to time. If, for instance, the applicant were to be dismissed from his employment as a security officer, as has now happened, it would be open to the applicant to seek re-classification as from the date of his dismissal. He could then rely upon his dismissal for that purpose. But the loss of that employment, as with the fact of employment itself, would not be conclusive for the purposes of s.34: it would be some evidence of the degree of diminution of the capacity of the applicant to undertake that employment. Ordinarily, it would be powerful evidence of that fact. Yet, in the end, the question, again one of fact, would remain for the determination by the Authority and, in the event of review, by the Tribunal.

I would reject the first ground of appeal.

Next, the applicant argues that the majority of the Tribunal erred in overlooking, in the context of the appraisal of the applicant's prospects of obtaining employment as a security officer, the significance of the fact that he had a number of serious criminal convictions, which he had failed to disclose when obtaining employment with Pilkingtons. Although not referred to in the Tribunal's reasons for decision, his dishonesty included shopbreaking and possession of housebreaking implements. Under the general law, failure to disclose misconduct or a criminal offence which occurred before the current employment or outside working hours will not normally justify dismissal. If, however, the criminal offence is likely to restrict or impinge upon the performance of the employment then it may give grounds for dismissal (see Gordon & Gotch (Australasia) Limited v. Cox (1923) 31 C.L.R. 370; Macken, McCarry and Sappideen, The Law of Employment, 2nd Ed. at p.125; cf. Sybron Corporation v. Rochem Limited (1984) 1 Ch.112). The question here is whether such a matter is a relevant consideration for the purposes of s.34.

By s.34(1A) (a), the Authority shall have regard to the "vocational, trade and professional skills, qualifications and experience" of the recipient member and to no other matters (cf. Defence Force Retirement and Death Benefits v. Heffernan) (1978) 21 A.L.R. 709). It is not, and could not be, suggested that the convictions are part of the applicant's relevant skills and experience for this purpose but it is said that they are part of his "qualifications" in the statutory sense.

In R. v. Refshauge; Ex parte Thomson (1976) 11 A.L.R. 471, the question arose as to the construction of the word "qualifications" in the context of s.29D(1) of the National Health Act, 1953 which is in the following terms:

"The Director-General may refer to a Specialist Recognition Advisory Committee the question whether a particular medical practitioner should, having regard to his qualifications, experience and standing in the medical profession and the nature of his practice, be recognized for the purposes of this Act as a specialist, or as a consultant physician, in a particular speciality."

Gibbs, J. (as he then was) said (at p.475):

"The submission made on behalf of the prosecutor is that the word "qualifications" in its natural and ordinary sense is not limited to academic qualifications but includes personal accomplishments such as skill and competence. It is true to say that the word 'qualifications' may have a wider meaning than academic qualifications. According to the Shorter Oxford English Dictionary its meaning, so far as is relevant, is: 'A quality, accomplishment, etc., which qualifies or fits a person for some office or function.' However, the meaning to be given to the word where it appears in s 29D(1) must depend on the context provided by the statute. A Committee is required to consider whether a particular medical practitioner should be recognized for the purposes of the Act as a specialist, or as a consultant physician, in a particular specialty. In performing its functions the Committee is required to have regard to the four matters mentioned in s 29D(1). If the word 'qualifications' means personal qualities or accomplishments, a consideration of the qualifications of a particular medical practitioner would include consideration not only of his skill and competence but also of his experience, because experience may in itself constitute a qualification in the wider sense of the word. Indeed, a consideration of the qualifications of a medical practitioner might be thought to involve also consideration of his standing in the medical profession and the nature of his practice. If the word 'qualifications' were used in its wider sense, the express reference to 'experience' in the subsection would be unnecessary and the reference to some of the other matters mentioned might also be unnecessary. That in itself indicates 'qualifications' is used in the narrower, but natural, sense of academic qualifications."

Stephen, J. said (at p.478):

"However, one passage not so affected by special context does support the respondents' view of the meaning to be given to 'qualifications' in s 29D(1). It is that of Lord O'Brien LCJ in Byrne v Rogers where, at p 225, he said of the expression 'specially qualified to practise as dentists' appearing in the preamble to the relevant legislation: 'What do these words mean? Do they mean specially qualified by statutory warrant, by licence, diploma, degree, or hall-mark, so to speak, and do they refer to persons so qualified alone; or do they include persons specially competent to practise dentistry independent of a diploma or degree? I think that in common parlance, if you were to say that a person was specially qualified, you would imply that he had a qualification by diploma, licence, or degree. I think that prima facie the words have that meaning.' ... For these reasons I would conclude that 'qualifications' in s 29D(1) is to be understood as referring not directly to the possession of personal skill or ability but rather of what Lord O'Brien described, again at p 225, as a 'qualification outside the person, such as a diploma, degree or other hall-mark.'"

In my opinion, this reasoning is in point here. In other words, the context in which reference is here made to the "qualifications" of a recipient member indicates that the legislature was intending to refer only to formal attainments such as a degree, diploma, licence or certificate rather than some wider notion of the personal accomplishments in the form of his general skill and competence. But even if the wider interpretation of the word were used in s.34(1A) (a) were justified, it would not assist the applicant: a criminal record could hardly be said to form part of his accomplishments.

In my view, the best that can be said of the matter from the standpoint of the applicant is that his convictions constitute a disqualifying factor for employment and a disqualification of that kind does not, in my opinion, fall within the literal terms or the underlying purpose of the provision (cf. Owens v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 A.L.R. 569 at p.585).

It is the expressed intention of the legislation that the criteria mentioned in s.34(1A) (a) are to be exhaustive. It follows that considerations such as the criminal record of the member or his character or his temperament are to be ignored for present purposes as merely collateral considerations notwithstanding their capacity to influence the member's prospects of obtaining employment in a particular case. Disqualifications of this kind fall outside the purview of s.34.

The applicant sought to rely, in this connection, on the reasoning applied in a number of decisions by the Tribunal to the effect that in inquiring under the Act into the capacity of a member for civil employment, the capacity of a member to obtain employment by concealment of his physical condition should be ignored (see, e.g., Re X (1980) 3 ALN 58). But, in my opinion, no particular legal principle or rule of statutory construction can be derived from those cases. There, as here, the Tribunal is concerned with making a finding of fact as to the diminution of the capacity of the member to undertake employment of a particular kind. In such a case, it is open to the Tribunal to reject, as providing no probative weight on that issue of fact, employment obtained by concealment of a physical condition.

In the present case, it was open to the Tribunal to take into account the employment of the applicant as some of the evidence pertinent to the same issue of fact. It may be said that the applicant's concealment of his criminal record was a matter to be taken into account by the Tribunal in considering what weight should be given to that employment. Yet, whilst a pertinent matter to be taken into account in considering the weight to be attributed to the employment actually held by the applicant, it is not a factor to be considered independently. Nor, in my view, is the concealment a reason for dismissing the employment as of no weight whatever. Whilst the employment held by the applicant was a relevant consideration for the Tribunal to take into account, it was open to the Tribunal to discount its weight by reference to the applicant's concealment of his record. But the weight to be attributed to these matters is not open for debate in this Court where an appeal lies on a question of law only. I would reject the applicant's second argument accordingly.

I would dismiss the appeal with costs.