House v D.F.R.D.B Authority
[2004] FMCA 833
•18 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOUSE v D.F.R.D.B. AUTHORITY | [2004] FMCA 833 |
| ADMINISTRATIVE LAW – AAT Appeal – denial of natural justice – unreasonable finding of fact – findings of fact not sought below – issue estoppel – leave to amend. |
Administrative Appeals Act 1975 (Cth), s.44.
Defence Force Retirement and Death Benefits Act 1973 (Cth), s.34.
Administration of the Territory of Papua an New Guinea v Daera Guba (1973) 130 CLR 353
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
DFRDB Authority v House (1989) 91 ALR 286
Freeman v DFRDB Authority (1986) 5 AAR 156
Kuligowski v Metrobus [2004] HCA 34
Secretary, Department of Social Security v Fay Maree Hilton (1991) 22 ALD 746
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6
Waterford v The Commonwealth (1987) 61 ALJR 350
| Appellant: | DAVID RICHARD HOUSE |
| Respondent: | DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY |
| File No: | BRM482 of 2004 |
| Delivered on: | 18 November 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 15 November 2004 |
| Judgment of: | Emmett FM |
REPRESENTATION
| The Appellant appearing for himself |
| Counsel for the Respondent: | Mr Dube |
ORDERS
Appeal dismissed.
The Appellant to pay the costs of the Respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM482 of 2004
| DAVID RICHARD HOUSE |
Appellant
And
| DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY |
Respondent
REASONS FOR JUDGMENT
The Appellant is a retired member of the Defence Force. The Respondent is the statutory authority responsible for the determination of any invalidity benefit due to the Appellant following his retirement.
This is an Appeal under s.44 of the Administrative Appeals Act 1975 (Cth) from a decision of the Administrative Appeal Tribunal (“the Tribunal”) given on 29 June 2004. On 19 August 2004 the proceeding was transferred from the Federal Court of Australia to the Federal Magistrates Court.
The Tribunal’s decision was in respect of a review of a decision of a delegate of the Respondent dated 3 July 2001 and confirmed by another delegate of the Respondent on 13 February 2002.
The decision related to a reclassification of the Appellant’s invalidity benefit as a retired member of the Defence Force pursuant to s.34 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”).
The legislation
Section 34 of the Act requires the determination of the percentage of incapacity in relation to civil employment of a member in assessing the appropriate invalidity benefit to be received by a member.
The Act further requires a determination of the kinds of civil employment which a person with the skills qualifications and experience of the member might reasonably undertake and the percentage of diminished capacity of the member in undertaking that civil employment arising out of the impairment of the member that caused his retirement.
In the Respondent’s decision the subject of the review in the Tribunal, the Appellant’s incapacity was reclassified from 30% to 20% with effect from 10 August 2001 with the result that the Appellant is no longer entitled to any benefit payment.
Relevantly s.34 is in the following terms:
‘(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:
(aa) what is 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 or had 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 subsection.
(1B) In subsection 1A, prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment change, for better or worse, since the retirement; or
(b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).’
Amended Notice of Appeal
In his Amended Notice of Appeal, filed 30 August 2004, the Appellant claims the Tribunal erred in law by denial of natural justice to the Appellant in that the Tribunal;
a)failed to “give proper consideration in regard to driving plant”; and
b)“did not give an explanation in regard to causally connected impairment”.
a) Did the Tribunal “give proper consideration in regard to driving plant”
The Appellant, in his Affidavit dated 26 July 2004 and filed in support of his Notice of Appeal, states that he no longer has the skills of plant operator, driver or construction labourer and that a left arm injury would impair his ability to do construction work by over 30%.
In the determination of the Respondent being reviewed by the Tribunal, the Respondent determined for the purposes of s.34 of the Act that the kinds of employment that the Appellant might reasonably undertake were driver, mobile plant operator, labourer, storeperson, mining and construction labourer and security officer (“the Accepted Kinds of Employment”).
The Appellant did not raise before the Tribunal the inappropriateness of any of the Accepted Kinds of Employment. For those reasons the reference by the Appellant to the principles in DFRDB v House (1989) 91 ALR 286 and Freeman v DFRDB (1986) 5 AAR 156 are not relevant in this appeal as the range of occupations open to the Appellant was agreed between the parties to be those identified by the Tribunal.
The Tribunal found that the Accepted Kinds of Employment were the appropriate kinds of civil employment which a person with the Appellant’s skills, qualifications and experience might reasonably undertake (AM 322). The Tribunal stated at para 43 of its decision, that:
“the Tribunal accepts and agrees with the submissions of counsel for the Respondent, with which the Applicant did not take issue, as to the kinds of civil employment…”
The Tribunal also had regard to the evidence of Dr Reddan who opined that she saw no reason why the Appellant was not fully capable of working as a mobile plant operator and labourer (para 56).
Accordingly, I find that the Tribunal did give proper consideration to the Appellant’s Accepted Kinds of Employment, of which “driving plant” was one. Furthermore, it was not an issue raised by the Appellant before the Tribunal and therefore, in the circumstances, I find there was no denial of natural justice based on that ground.
b) Did the Tribunal fail to “give an explanation in regard to causally connected impairment
The Appellant claims that the Tribunal did not give an “explanation in regard to causally connected impairments”. The Appellant refers to an arm injury in his Affidavit of 27 July 2004. In using the words “not giving an explanation in regard to causally connected impairments”, I understand that the Appellant meant that the Tribunal had failed to consider whether or not an arm injury was a physical impairment causally connected with his alcoholism or alcoholic liver disease. That was a not a matter raised before the Tribunal by the Appellant. The Appellant did not ask the Tribunal to make any findings with respect to what may have constituted other physical or mental impairment causally connected with alcoholism or alcoholic liver disorder, being the incapacity for which the Appellant was retired from the Defence Force in 1975.
In those circumstances, I find there was no denial of natural justice based on this ground.
New grounds of Appeal
The Appellant argued orally that the Tribunal had further erred:
a)in seeking to separate his personality disorder from his alcoholism and thereby discount by half the assessment of the Appellant’s impairment in circumstances where that exercise had not been undertaken in any prior determination;
b)in failing to find that the Appellant’s personality disorder had been part of the reason for his discharge from the Armed Forces in May 1975 and therefore part of the physical or mental incapacity for which he was retired and therefore not able to be separated or discounted from his alcoholism; and
c)in that the Tribunal’s finding that the Appellant’s alcoholism and personality disorder could be separated such that the percentage of the incapacity from impairment that was a cause of his retirement was halved was a finding so repugnant to the evidence as to amount to an error of law.
Leave was then sought by the Appellant to further amend his Amended Notice of Appeal to raise those further alleged errors of law. Leave was opposed by the Respondent on the basis that there had been ample time for the Appellant to seek leave prior to the hearing, that the Appellant had already amended his Notice of Appeal once and that in any event the grounds were so unlikely to succeed as to render leave futile.
In considering the question of leave, I have had regard to the submissions by the parties on the further grounds sought to be raised by the Appellant with a view to determining the likelihood of success of any of the further grounds raised.
(a) Was it open to the Tribunal to discount the percentage of incapacity of alcoholism to take account of personality disorder
Before the Tribunal, the Appellant relied on the evidence of Dr J. Hargraves psychiatrist who had been treating the Appellant since January 1998. Dr Hargraves evidence was relied on in relation to the involvement of his personality disorder with the identified impairment of his alcoholism and the inability to distinguish the two impairments.
The Respondent relied on reports of Doctors Reddan and Stevenson as enabling the Tribunal to consider objectively the separation of the two conditions and to seek to deal with the personality disorder separately from the alcoholism by way of discounting the incapacity of the alcoholism by the personality disorder. The Tribunal had regard to Dr Hargraves opinion that the Appellant suffers from alcoholism and personality disorder (para 21).
It is common ground that personality disorder of the Appellant has been found by previous Tribunal decisions not to be a prescribed impairment. The Tribunal concluded that the prescribed physical or mental impairment in the Appellant’s case is alcoholism and alcoholic liver disease.
The Tribunal found that ‘the respondent conceded that the impairment by reason of which the applicant was retired were alcoholism and alcoholic liver disease and this aspect is not in issue.’ (para 11)
The Tribunal concluded in paragraph 53 that:
‘Dr Hargraves has not opined that the cessation of work was entirely due to the effect of alcoholism. Consequently, whilst the applicant seeks to connect the cessation of work with the correlating escalation in the degree of his impairments, the Tribunal finds that this approach is misdirected and without foundation. It is clear from the reports of Dr Stevenson and Dr Reddan that an objective approach is warranted and this Tribunal agrees.’
In paragraph 34 the Tribunal said:
‘Dr Reddan acknowledges the artificiality of separating the symptoms produced by alcohol abuse and personality disorder.’
On the other hand, Dr Hargraves report took into account both the Appellant’s personality disorder and his alcoholism in assessing the incapacity of the Appellant to undertake to the Accepted Kinds of Employment.
Dr Reddan, in her report at page 815, states:
‘I think that people with personality disorder seem to be more prone to alcohol abuse’.
At AB 817 Dr Reddan was asked in chief:
‘If you were asked to look at Mr House and say, leaving aside the effect of his personality order, what effect does the alcohol abuse have on his capacity to undertake both kinds of employments we have identified? Is it possible can you make an assessment of just the effect of the alcohol abuse?’
Answer:
‘Well, it is artificial and its difficult. As I said in that report things like attending work intoxicated or other sequelae of alcohol abuse I suppose we should say might have certain sequelae for some jobs but not for others. So the sort of percentages I was sort of estimating then were really when you kind of combine the two together and I think you’d really have to kind of almost if you assign a percentage you’d almost sort of have to harvest in each case in relation to personality or alcohol but it’s a somewhat artificial kind of distinction that in real life isn’t quite right.’
Having regard to the finding of the Tribunal in respect of the separation of the personality disorder from alcoholism and the consequent halving of the impairment, the Tribunal clearly acknowledges the evidence of Dr Reddan that there is an artificiality in separating the symptoms. Whilst I may not necessarily have come to the same conclusion, it is clear that the Tribunal’s finding was open to it on the evidence before it.
Further, in submissions before the Tribunal, the Respondent clearly invited the Tribunal to discount the incapacity arising from the Appellant’s personality disorder although at the same time making it clear to the Tribunal that that was not an exercise that had been done before.
The Appellant did not seek to address that submission in any way at the hearing and states today that it was because neither he nor his representative had expected such a submission to be put and did not expect the Tribunal to make a finding in accordance with that submission. The Appellant stated today that the matter did not concern him at the time as he was of the view that it had not been possible on the medical evidence to date, and particularly in relation to Dr Hargraves evidence, to separate the alcoholism from the personality disorder. That is unfortunate and I have a deal of sympathy for the Appellant in perhaps failing to challenge those submissions when he had the opportunity. However, it cannot be said that opportunity was denied him.
The Appellant further submitted that the Tribunal was not entitled to make the finding with regard to separating the Appellant’s personality disorder from his alcoholism in that the Tribunal was bound by prior findings of fact that the two were inextricably interwoven and the Tribunal was issue estopped from considering that matter.
In Sharp Corporation of Australia Pty Limited v Collector of Customs (1995) 59 FCR 6 the Full Court of the Federal Court stated that,
‘The jurisdiction conferred by section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) upon the Federal Court is to determine a question of law. The decision of the Tribunal on issue of fact are not reviewable on their merits by this Court’.
Recently the High Court in Kuligowski v Metrobus [2004] HCA 34 reaffirmed the principles relating to issue estoppel as espoused in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 that for the doctrine of issue estoppel to apply in the second set of procedures, the requirements were:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
Further, the High Court cited with approval the following passage from Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353,
“the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc.”
The questions arising from the Appellant’s submission are, a) was there a previous decision to the decision being reviewed by the Tribunal that was a final judicial decision, and b) did it involve a decision between Mr House and the Respondent deciding the issue of whether the personality disorder could be separated from the alcoholism and the Appellant’s impairment discounted accordingly.
However, the Appellant did not seek to raise those questions before the Tribunal. Nor did the Appellant object when Dr Reddan was cross examined about the possibility of separating personality disorder from alcoholism and then discounting the Appellant’s impairment by an artificial percentage on the basis that the personality disorder was not an impairment of the Appellant by reason of which he was retired from the Defence Force.
Nor did the Appellant seek to reply to the Respondent’s submission that the Tribunal ought to make the finding it did as to the separation of personality disorder from alcoholism and artificially halving the impairment of the Appellant to carry out the Accepted Kinds of Employment.
Had the Appellant objected to the Respondent cross-examining or submitting on the point above, the Appellant would have been required to prove that there had been a previous final judicial decision that had decided the issue between the Appellant and the Respondent such that each would heave been estopped from contending for a different decision on that issue before another decision making body.
Moreover, the Appellant did not before the Tribunal and has not today sought to identify any particular previous decision that he contends would give rise to an issue estoppel in the terms he now claims.
For those reasons I reject the submission of the Appellant based on an argument of issue estoppel arising out of findings of other decision bodies in respect of this matter.
(b) Was personality disorder part of the reasons for discharge
The Appellant submits that his personality disorder was an impairment causative of his retirement or was causally connected to the alcoholism or alcoholic liver disease such that the Tribunal should have found that his personality disorder was a prescribed physical or mental impairment and therefore not capable of being separated from his alcoholism nor available to being discounted in the manner in which the member sought to carry out that exercise.
The Appellant was discharged from the Army on 29 May 1975 under Australian Military Regulation 176(1)(N). The ground was ‘Retention in the military forces not being in the interests of those forces’.
A subsequent examination of the Appellant in May 1976 resulted in a determination that the Appellant was permanently medically unfit for military service at the time of his discharge due to alcoholism and alcoholic liver disease. In arriving at that determination the authority had regard to the medical evidence of Dr Arden in a report dated
7 May 1976 in which Dr Arden stated ‘I would regard this man as suffering from alcohol addiction with a severely damaged personality and I would consider his prognosis to be poor in the extreme. … I have no reason not to consider that he was an alcohol addict by the time he was discharged’.
There is nothing in the evidence before me in Dr Arden’s report to suggest that Dr Arden was providing an opinion as to whether or not the Appellant’s personality disorder was an incapacity entitling him to an invalidity benefit under the Defence Force Retirement and Death Benefits Act 1973. Rather he was providing evidence to the Respondent in support of the Appellant’s discharge as medically unfit for military service as opposed to retention in the military forces not being in the interest of those forces.
Further, the Tribunal was not asked to and did not make a finding that personality disorder was part of the incapacity for which the Appellant was retired from the Defence Force. The Appellant did not cavel with the submission by the Respondent that the only impairments by which the Appellant was retired were alcoholism and alcoholic liver disease.
(c) Was the Tribunal finding that personality disorder could be separated from alcoholism such that the percentage could be discounted by half an unreasonable finding of fact
The Appellant further submitted that by discounting the alcoholism by removing the personality disorder component the Tribunal made a finding of fact so repugnant to the evidence that it amounts to an error of law.
I understand that submission to be either there was no evidence to support the finding or that the finding was so unreasonable that no reasonable Tribunal could have made such a finding.
The Respondent makes two submissions in respect of that assertion: the first that there was evidence by Dr Reddan and Dr Stevenson that allowed the Tribunal to make the finding that the personality disorder could be treated as separate from the alcoholism and the assessment of the alcoholism could be discounted by half to account for the personality disorder.
The second submission by the Respondent is that it is not sufficient that a different Tribunal may have reached a different conclusion for an error of law to be established. The Respondent referred to Secretary, Department of Social Security v Hilton (1991) 22 ALD 746 in which Davies J considered whether a decision of the Tribunal with which he did not agree was unreasonable and should be set aside as perverse. His Honour concluded:
‘I have considered the evidence before the Tribunal and the Tribunal’s reasons for decision with a good deal of care and anxious consideration. I am left with the view that the decision is one to which I would not have come, and the decision in RC is illustrative of that. But I have concluded there was evidence before the Tribunal on which it was entitled to make the findings of fact which it did and that the decision was one of fact open to the Tribunal on the evidence before it.’
His Honour referred to Brennan J in Waterford v The Commonwealth (1987) 61 ALJR 350 at 359 that ‘There is no error of law simply in making a wrong finding of fact’. His Honour went on to say that one must not blur the distinction between unreasonableness or perverseness on the one hand and want of logic on the other and that a strong case is necessary to upset a factual finding.
In the circumstances I find that on the evidence before the Tribunal it was open to the Tribunal to find that personality disorder could be separated from alcoholism and a percentage discount could be made and was therefore not such an unreasonable finding that no reasonable Tribunal could have made it.
Conclusion
For the reasons stated above it is plain that the grounds identified by the Appellant in respect of which he seeks leave to amend his Amended Notice of Appeal would be so unlikely to succeed as to make any leave futile. In the circumstances leave is refused.
Accordingly, the Appeal is dismissed and the Appellant is to pay the Respondent’s costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 18 November 2004
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