Goudge v CSS Board

Case [2003] FCA 426

FEDERAL COURT OF AUSTRALIA

Goudge v CSS Board [2003] FCA 426

ADMINISTRATIVE LAW – application for review of a decision by the CSS Board as superannuation trustee – applicant had been deemed not to have retired on the ground of invalidity because of physical incapacity – whether the Board failed to take into account relevant considerations – whether improper exercise of power by Board by taking irrelevant considerations into account – existence of evidence to support Board’s findings – whether Board misconstrued test for incapacity

Administrative Decisions Judicial Review Act 1977 (Cth) s5

Superannuation Act 1976 (Cth) s7(2), s153AS

Re Australian Postal and Telecommunications Union, New South Wales Branch (1975) 25 FLR 90, cited

Commissioner for Superannuation v Hastings (1986) 70 ALR 625, applied

Scott v Commissioner for Superannuation (1987) 8 AAR 20, cited

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, applied

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, [2001] FCA 1196, applied

DAVID JOHN GOUDGE v CSS BOARD

V606 OF 2002

MARSHALL J
MELBOURNE
29 APRIL 2003

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V606 OF 2002

BETWEEN:

DAVID JOHN GOUDGE
APPLICANT

AND:

CSS BOARD
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

29 APRIL 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs of the application including reserved costs to be taxed in default of agreement.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V606 OF 2002

BETWEEN:

DAVID JOHN GOUDGE
APPLICANT

AND:

CSS BOARD
RESPONDENT

JUDGE:

MARSHALL J

DATE:

29 APRIL 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The question for determination in this proceeding is whether the Court should review a matter of the CSS Board (“the Board”) not to direct that Mr Goudge be deemed to have retired from his employment with the Australian Postal Corporation (“Australia Post”) in early 1990 on the ground of invalidity because of physical incapacity to perform his duties.

  2. Mr Goudge applied to the Court pursuant to s5 of the Administrative Decisions Judicial Review Act 1977 (Cth) (“the ADJR Act”) for a review of a decision made by the Board on 12 August 2002. The Board decided not to direct under s7(2) of the Superannuation Act 1976 (Cth) (“the Act”) that Mr Goudge be deemed to have retired on the ground of invalidity.

  3. The decision of 12 August 2002 was made pursuant to s153AS of the Act. It affirmed a previous decision, to the same effect, made on 2 October 1998. The decision of 2 October 1998 affirmed another decision of the Board, on the same issue, made on 5 October 1995. In its 5 October 1995 decision the Board exercised its discretion under s7(2) of the Act not to direct that Mr Goudge be deemed to have retired on the ground of invalidity.

    Factual Background

  4. Mr Goudge commenced…

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AGLC
Goudge v CSS Board [2003] FCA 426
Case
[2003] FCA 426
Decision Date

CaseChat Overview and Summary

The case of Goudge v CSS Board involved the applicant, Mr Goudge, seeking a reconsideration of a decision by the CSS Board, which had affirmed a previous decision not to direct that Mr Goudge be deemed to have retired on the ground of invalidity. The primary legal issues before the court were whether the Board's decision was based on findings for which there was no evidence, whether the Board failed to take into account relevant considerations, and whether the Board's approach to the exercise of its discretion under s7(2) of the Act was appropriate. The court found that the Board's decision was not based on findings for which there was no evidence, and that the Board had considered relevant evidence in reaching its decision. The court also found that the Board's approach to the exercise of its discretion was appropriate, and that the Board was not bound to take into account specific pieces of evidence. The court dismissed the applicant's application and ordered that the applicant pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application including reserved costs to be taxed in default of agreement.

Background

Background to the litigation

The decision of 12 August 2002 was made pursuant to s153AS of the Act. It affirmed a previous decision, to the same effect, made on 2 October 1998. The decision of 2 October 1998 affirmed another decision of the Board, on the same issue, made on 5 October 1995. In its 5 October 1995 decision the Board exercised its discretion under s7(2) of the Act not to direct that Mr Goudge be deemed to have retired on the ground of invalidity.Factual Background Mr Goudge commenced employment with the Post Master-General’s Department of the Australian Public Service on 18 August 1972. In 1975 the postal services section of that department was incorporated within Australia Post; see Re Australian Postal and Telecommunications Union, New South Wales Branch (1975) 25 FLR 90 at 93 to 94 per Franki and St John JJ. Mr Goudge suffered ill health in the 1980s that resulted in chest pains. In July 1989 when employed in the classification of Senior Mail Officer Grade 2, Mr Goudge ceased to attend his workplace. From July 1989 until his resignation from his employment in early 1990 Mr Goudge was on leave of one type or another including sick leave, annual leave, long service leave and leave without pay. On 7 July 1994, solicitors acting for Mr Goudge wrote to a predecessor of the Board enclosing a medical report from Mr Goudge’s general practitioner, Dr DeSousa dated 25 January 1994. The letter stated:“…in view of the medical opinion of Dr DeSousa, it would appear that Mr Goudge had a viable entitlement in 1991 (sic) to be superannuated on the grounds of ill health. As we understand it he merely received his resignation benefits.” On 23 August 1995 the Australian Government Health Service advised the Board that Mr Goudge was “fit for alternative duties” at the time of his resignation. The Board then decided on 5 October 1995 that it:“was satisfied that it should not exercise its discretion to direct that Mr Goudge be deemed to have retired on the ground of invalidity. On 8 October 1997 Mr Goudge’s solicitors wrote to the Board seeking a reconsideration of the decision of 5 October 1995. The letter enclosed additional medical reports said to constitute “new evidence” with respect to Mr Goudge’s health at the date of his retirement. The Board referred the application for reconsideration to a Reconsideration Advisory Committee (“the First Committee”) in accordance with s153AR(1) of the Act. On 14 August 1998 the First Committee recommended that:“…the Board(1)be satisfied under section 153AP that the evidence provided by Mr Goudge's solicitors is relevant evidence not previously taken into account by the Board; and(2)decide under section 135AS, to affirm its decision made on 5 October 1995 under 7(2) not to exercise its discretion to direct that Mr Goudge be deemed to have been retired on the ground of invalidity because of physical and mental incapacity.” On 2 October 1998 the Board considered and accepted the First Committee’s recommendation and decided to affirm its decision of 5 October 1995.

Evidence

Evidence Before The Court

As the Full Court observed in Hastings at 631 quoted from above at [36], it was for the Board to decide whether or not to take into account the recommendations from Dr Webster's 1990 report and the weight to be attributed to them. It appears, in any event, that it attached very little weight to them.No Evidence Ground Mr Keogh submitted that the decision of the Board was based on “findings for which there was no evidence or other material”. It was alleged that there was no evidence to support the following findings:· Mr Goudge’s incapacity was not permanent;· suitable duties were available to which Mr Goudge could have been redeployed;· Mr Goudge was fit to perform the majority of the duties in his position;· it was “simply a matter of the Applicant having decided to resign instead of allowing time for attempts to rehabilitate or redeploy him to be finalised”;· the conduct of Mr Goudge militated against the Board exercising its discretion in his favour. Each of Dr Hanning and Dr Dupuche in reports dated 23 May 1994 and 22 August 1997 supported the view that Mr Goudge's incapacity was not permanent. The second “no evidence” point misstates what the Board found. It said at [27] of its decision that:“…it was not a question of a position being available at any particular location… .” Its point at [30] was that:“Mr Goudge did not wait for the outcome of Australia Post efforts to find him an alternative position but resigned instead.” Essentially the Board's point was that Mr Goudge resigned before the prospect of securing an alternative position had been allowed to be fully explored. There was, in fact, evidence before the Board that supported the view that Mr Goudge was fit to perform the majority of the duties of his position. That evidence was contained in the following reports:· Dr Hackett's of 7 January 1998, referred to at [32] of the Board's decision;· Dr Dupuche’s of 26 October 1999, which referred to “incapacity for physically arduous work and to his residual capacity” and “sedentary” work of “eight hours per day”, with certain other restrictions referred to in the second page of the report. There was also evidence before the Board that Mr Goudge decided to resign before allowing rehabilitation and/or redeployment possibilities to be fully explored. The evidence before the Board included a file note in which a Manager of the State Parcel Centre for Australia Post recorded that:“Upon hearing that he had been referred to the Rehabilitation Unit Mr Goudge said that he would give the Rehabilitation Unit until 3 pm that day to come up with a solution. Mr Goudge rang back on the afternoon on 5 March 1990 and stated that he wished his resignation to proceed.” Finally, on the no-evidence ground, it was incorrect to assert that there was no evidence going to Mr Goudge’s conduct that militated against the Board’s discretion being exercised in his favour. Apart from any other consideration, there was stark evidence of the delays accompanying the request for each reconsideration of the decision taken in 1995.Error of Law

Decision

Reasons for decision

MARSHALL J
Pursuant to s153AM(1) a person affected by a decision of the Board was entitled to apply to the Board for a reconsideration of that decision. A reconsideration was available if there was new evidence adduced relevant to the decision; see s153AP(1). Under s153AR(1) an application under s153AM was to be referred to a Reconsideration Advisory Committee established under s153AC. The Board, in reconsidering a decision, was obliged to take into account the recommendations of the Committee and any other matters it thought relevant. The Board was then entitled to affirm, vary or set aside the decision and, if appropriate, substitute a new decision for the one under reconsideration.The Board’s Decision In coming to its decision of 12 August 2002 the Board was satisfied about two initial matters. Counsel for Mr Goudge took no issue with the Board’s approach to those matters. They were as follows:· prior to reaching his maximum retiring age Mr Goudge ceased to be an eligible employee otherwise than by reason of his having retired on the ground of physical or mental incapacity to perform his duties;· at the time of his retirement Mr Goudge was unfit to perform the duties he had been required to perform by reason of an actual physical incapacity. The Board considered that Mr Goudge had resigned from his employment with effect from 5 March 1990 in circumstances where the Commonwealth Medical Officer disagreed with the assessment of Mr Goudge’s own medical practitioner that Mr Goudge was unfit for continued employment. Mr Goudge was then 42 years old. The Board “accepted that Mr Goudge was most likely suffering from undiagnosed ischaemic heart disease at the time of his resignation”. It also accepted that at the time of his resignation Mr Goudge was unfit to perform the full range of duties associated with his job classification “by reason of his physical incapacity to undertake heavy lifting, lifting above shoulder height or bending”. The Board then considered whether it should exercise its discretion in Mr Goudge's favour. In so doing it asked itself three questions:(1) whether Mr Goudge's incapacity was temporary or permanent;(2) whether suitable positions were available to which Mr Goudge was able to be redeployed;(3) whether Mr Goudge's conduct militated against the discretion being exercised in his favour. In considering the first two of those questions the Board contemplated whether Mr Goudge was effectively forced out of his employment for health reasons. In considering the third question the Board contemplated “whether a moral entitlement to a pension existed”. The Board viewed the above approach to the exercise of its discretion under s7(2) of the Act to be appropriate in light of the judgments of the Full Court of this Court in Commissioner for Superannuation v Hastings (1986) 70 ALR 625 and Scott v Commissioner for Superannuation (1987) 8 AAR 20. The Board held that Mr Goudge's incapacity was not permanent. In doing so it considered various medical reports, including those previously considered in other decisions. It found that there was:“…no new medical evidence to indicate that he had significant ongoing incapacity for employment.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

The Board also considered that Mr Goudge’s delay in making his initial application and the long intervals between his reconsideration applications have amounted to “unreasonable delay”. At [39] of its decision the Board said it:“…considered that no overriding reason existed why Mr Goudge should be considered to have a moral right to an invalidity benefit.”Failure to take into account relevant considerations Counsel for Mr Goudge, Mr A Keogh, submitted that the decision of the Board was an improper exercise of the power conferred by s7(2) of the Act in that relevant considerations were not taken into account. The considerations were said to be:· the ongoing and permanent nature of Mr Goudge's incapacity;· the issue of rehabilitation;· hardship;· evidence provided by Mr Goudge in his affidavit before the Board. Counsel for the Board, Mr P Hanks QC, submitted that the ground of failing to take into account relevant considerations could only be established if the Board was bound to take those considerations into account, as determined by a proper construction of the statute conferring the discretion. Mr Hanks also submitted that Mr Keogh essentially contended that particular pieces of evidence were not taken into account by the Board. Mr Hanks contended that there is distinction between failing to address a relevant consideration and failing to deal with particular parcels of evidence. A decision will be reviewable under the ADJR Act on the ground of failing to take into account relevant considerations only if the decision-maker was bound to take those considerations into account; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 per Mason J. Mr Keogh did not demonstrate why the matters said by him to be relevant to the decision, and not taken into account, were bound to be taken into account. Further, in Hastings at 631 the Full Court said, in respect of s7(2) of the Act, that:“…as the relevant matters are unspecified in the legislation, it is for the [Board] to determine what matters are to be taken into account and the weight to be given to them… .” What is complained of is essentially a failure to deal with particular items of evidence, rather than failure to address a relevant consideration. The difference between the two concepts is referred to by Allsop J (with whom Heerey J agreed), in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, [2001] FCA 1196. At [79] in Paul (FCR 423) Allsop J said: “Whatever may be the outer boundaries or relevant and irrelevant considerations at the point of jurisdiction .. they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal, relevant to a finding made…” In any event, as submitted by Mr Hanks, each item of evidence in respect of which Mr Keogh identified as not being taken into account by the Board was in fact taken into account. At [8] of the its decision the Board said that it “took into account the recommendation of the committee, the evidence and reasoning referred to in its recommendation” (emphasis supplied). The evidence referred to in the recommendation of the Second Committee at [14] includes:· the 8 and 31 August 1994 reports of Dr DeSousa;· the 14 August 1996 report of Dr Dupuche;· the 30 October 1996, 22 August 1997 and 26 October 1999 reports of Dr Dupuche;· the affidavit of Mr Goudge of 18 October 2001;· the 8 April 1998 letter from G Stone, Rehabilitation Co-ordinator with Australia Post;· the 25 January 1994 report of Dr DeSousa, provided by Mr Goudge's solicitors under cover of their letter of 7 July 1994;· the reports of the Royal Melbourne Hospital, dated 23 May 1994 and 18 June 1996, provided to the Board under cover of the letter of 8 October 1997 by the solicitors for Mr Goudge.