FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAMES v REPATRIATION COMMISSION | [2015] FCCA 2644 |
| Catchwords: ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – questions formulated in written submissions and argument. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.44(1), 43(2B), 44AA(1), 45(1) Veteran’s Entitlements Act 1986 (Cth), s.24(1) |
| Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Haritos v Commissioner of Taxation [2015] FCAFC 92 Rana v Repatriation Commission [2011] FCAFC 124 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Watsford v Commissioner of Taxation [2013] FCA 1389 |
| Applicant: | ROBERT JAMES |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG 1134 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 14 July 2014 |
| Date of Last Submission: | 14 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 25 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Van Grinsven |
| Solicitors for the Applicant: | Cockburn Legal |
| Counsel for the Respondent: | Ms Brennan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Amended Notice of Appeal filed on 3 March, 2014 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules2011 up to and including 15 July, 2011 and thereafter according to schedule 1 of the Federal Circuit Court Rules2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1134 of 2013
| ROBERT JAMES |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
By his Amended Notice of Appeal filed on 3 March, 2014 Robert James appeals, a decision of the Veteran’s Appeals Division of the Administrative Appeals Tribunal given on 30 September, 2013 pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975. Although the appeal was commenced in the Federal Court, it was remitted for hearing and determination in this Court by order of Collier J made on 26 November, 2013.
The decision of the Tribunal affirmed a decision of a Veteran’s Review Board that itself affirmed a decision of the respondent to reject Mr James’ claim for a service pension at the “special rate”. To qualify for the “special rate” of service pension, Mr James needed to satisfy the requirements of s.24(1) of the Veterans’ Entitlements Act1986 (Cth). According to the Tribunal’s decision he did not satisfy s.24(1)(c) of that Act.
The nature of this appeal
The use of the term “appeal” is in some senses misleading. When originally commenced in the Federal Court of Australia, these proceedings were within the original jurisdiction of that Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at…
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- AGLC
- James v Repatriation Commission [2015] FCCA 2644
- Case
- [2015] FCCA 2644
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Jarrett of the Federal Circuit Court of Australia concerning an appeal by Mr James against a decision of the Repatriation Commission. The dispute centred on whether Mr James was unable to undertake remunerative work in his lawn-mowing business due to his service-related psychiatric conditions, specifically post-traumatic stress disorder (PTSD) and depressive disorder, as well as alcohol dependence.
The primary legal issue before the Court was to determine whether the Administrative Appeals Tribunal (AAT) had erred in finding that Mr James was not prevented by his accepted conditions from continuing his lawn-mowing business, and therefore failed to satisfy the requirements of section 24(1)(c) of the relevant legislation. This involved assessing the weight and interpretation of the medical evidence, particularly the opinions of Dr Carter and Dr Timmins, regarding the impact of Mr James' conditions on his capacity to work.
Judge Jarrett considered the AAT's finding that while Mr James' psychiatric conditions made his work less pleasant, they did not prevent him from continuing his lawn-mowing business. The AAT had noted that this work was solitary and did not involve extensive stressful interaction or onerous responsibility. The Court also considered Dr Carter's evidence, which initially suggested Mr James could not continue due to drinking and operating machinery, but also acknowledged Dr Timmins' observation that Mr James had become more able to control his drinking. Dr Carter's later oral evidence indicated that Mr James' psychiatric symptoms, including arousal, irritability, anger, and drinking, prevented him from working more than eight hours a week in the lawn-mowing business, or any other employment. However, the AAT ultimately found that the psychiatric conditions did not prevent, even if they discouraged, Mr James from continuing his remunerative work.
The Court found that the AAT had erred in its interpretation and application of the medical evidence. The AAT had placed undue emphasis on the solitary nature of the work and had not adequately grappled with Dr Carter's clear opinion that Mr James' psychiatric symptoms, in combination with his alcohol dependence, rendered him incapable of working even eight hours a week. The AAT's conclusion that the conditions did not prevent him from working was not supported by the entirety of the evidence, particularly Dr Carter's detailed explanation of how his symptoms impacted his capacity. Consequently, the Court set aside the AAT's decision and remitted the matter to the AAT for redetermination.
The primary legal issue before the Court was to determine whether the Administrative Appeals Tribunal (AAT) had erred in finding that Mr James was not prevented by his accepted conditions from continuing his lawn-mowing business, and therefore failed to satisfy the requirements of section 24(1)(c) of the relevant legislation. This involved assessing the weight and interpretation of the medical evidence, particularly the opinions of Dr Carter and Dr Timmins, regarding the impact of Mr James' conditions on his capacity to work.
Judge Jarrett considered the AAT's finding that while Mr James' psychiatric conditions made his work less pleasant, they did not prevent him from continuing his lawn-mowing business. The AAT had noted that this work was solitary and did not involve extensive stressful interaction or onerous responsibility. The Court also considered Dr Carter's evidence, which initially suggested Mr James could not continue due to drinking and operating machinery, but also acknowledged Dr Timmins' observation that Mr James had become more able to control his drinking. Dr Carter's later oral evidence indicated that Mr James' psychiatric symptoms, including arousal, irritability, anger, and drinking, prevented him from working more than eight hours a week in the lawn-mowing business, or any other employment. However, the AAT ultimately found that the psychiatric conditions did not prevent, even if they discouraged, Mr James from continuing his remunerative work.
The Court found that the AAT had erred in its interpretation and application of the medical evidence. The AAT had placed undue emphasis on the solitary nature of the work and had not adequately grappled with Dr Carter's clear opinion that Mr James' psychiatric symptoms, in combination with his alcohol dependence, rendered him incapable of working even eight hours a week. The AAT's conclusion that the conditions did not prevent him from working was not supported by the entirety of the evidence, particularly Dr Carter's detailed explanation of how his symptoms impacted his capacity. Consequently, the Court set aside the AAT's decision and remitted the matter to the AAT for redetermination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
However, as to the lawn-mowing business the Tribunal found that:10. We are satisfied the same cannot be said for the applicant’s decision to cease remunerative work in his lawn-mowing business. We accept he has described some stress associated with work that was engendered by his service-related psychiatric conditions. That stress undoubtedly made the lawn-mowing work less pleasant. But it was essentially solitary work that did not involve extensive and stressful interaction with anyone (certainly after the initial contact with a homeowner had occurred), nor did it involve the onerous responsibility of looking after anyone. Dr Carter, in her evidence, assumed Mr James could not continue the work because his drinking problem meant he could not drive and that he should not operate dangerous machinery. Dr Carter’s oral evidence on this point was vague. But in any event we note Dr Timmins pointed out in her report that Mr James was essentially able to control his drinking in more recent times. We are not persuaded the psychiatric conditions prevented (even if they discouraged) Mr James from continuing to undertake the remunerative work he was undertaking in his lawn-mowing business. That means he is unable to satisfy the requirements of s 24(1)(c). (my emphasis) Dr Carter reported to the Department of Veterans’ Affairs on 29 June, 2009 that:Robert gave up work on 7 April following my advice that he no longer continue in his job as Officer of Cadets, and also his lawn mowing business. This was due to a combination of his PTSD, his depressive disorder, and to a much lesser extent, his alcohol dependence. Robert’s current situation is that PTSD is responsible for 50%, depressive disorder is responsible for 20%, and alcohol dependence is responsible for 30%. He has gone backwards in his alcohol dependence because, since he is no longer employed and kept busy, he has more time to drink ... “ Dr Carter gave oral evidence before the Tribunal on 9 July, 2013 where she relevantly stated under cross examination:Doctor, can I just stop you there? Now is it your opinion that Mr James’ psychiatric symptoms prevent him from working more than eight hours a week in the lawn-mowing business, lawn-mowing trade?---Yes, I believe that was the case when finally he did decide.…Fair enough, Dr Carter, but you haven’t answered the question yet: why in your opinion, as you’ve stated in your report, can Mr James not mow lawns for more than eight hours a week, psychiatrically speaking?—Well only because of his arousal symptoms, his irritability, his proneness to anger. He drank heavily, he has driven the car when he shouldn’t be driving it: even though he hasn’t been - so he didn’t get apprehended and it was a constellation of things that made me come to the conclusion that he shouldn’t he running a lawn-mowing business.You said because of his anger, his irritability?---M’mm.…Okay, if you’d turn to page 36, Doctor, which is your Emotional and Behavioural Worksheet?---Yes.If you can go to the 4.4 Occupation, down the bottom?---Yes.You say that: Robert, known as “Huey”, cannot work. He is totally and permanently incapable of working and he cannot work even eight hours a week. We’ll just stop there for a second. Are you talking the eight hours a week lawnmowing, or are you talking of being the Cadet Officer?---Combined, he’s total income from the combined jobs amounted to $300 a week and I - it was my opinion that he couldn’t work even eight hours a week. What, either as a lawn-mower person or a Cadet Officer, is that what you’re saying, Doctor?---That’s correct. yes.Well I asked you earlier why he couldn’t work eight hours a week operating a lawn-mower and what psychiatric symptoms stopped him doing so, and you told me it was his drinking. Is that correct?---His drinking and his arousal symptoms, his irritability. his drinking, his safe operation of machinery, his arousal symptoms of irritability and making angry, abrupt statements and, you know, his - - -…Okay and going along further in that 4.4 Occupation, you said:I have let him work as long as possible until I saw that really everyone in the work place could notice he wasn’t functioning very well.…?---M’mm. What work place are you talking about, Doctor?---Both work places. He was coming in describing to me - intimating situations that he was - encounters he was having in working with the Cadets, and I couldn’t see that he wasn’t going to be safe, and he also appeared to be quite irritable with people whose lawns he was mowing. And I know you say that he gave you this evidence but I don’t think he is capable of standing outside himself and seeing himself as other people see him.…Can I ask you: how would somebody with PTSD react, for example, to the scenario that I’m going to go on and lawn-mow Mrs Smith’s yard who is an 80 year old lady, but then upon arrival there are a whole lot of people in attendance - like, family members. How would somebody with PTSD potentially react to that, having a number of strange people unexpectedly at that location?---It would be very stressful and it would be very challenging: an unprotected sort of situation to be in. It would be my guess that he would feel pretty vulnerable in that situation and may well feel like avoiding that type of scenario. He’s not a man without courage. He wouldn’t leave because he lacked the courage. It would be his arousal symptoms of explosiveness that he would try not to demonstrate.…Given that you only saw him as part of your treatment regime in June of this year, what is your assessment of Mr James today, right here, right now? Is he suitable in any form of employment for eight hours a week?---He is not.…What is it that you say is Mr James’ condition that prevents him from working either in lawn-mowing or back with Cadets, or anything like that? What is it about Mr James’ condition that prevents that?---It is a combination of his post-traumatic stress disorder with depression at times, and his alcohol dependence.…Dr Sullivan: I just wanted to ask about - really it’s a fairly fine point but the teasing apart as to whether it’s the PTSD or the alcohol misuse causing irritability, how did you determine that?—Well, I think that it’s complex interaction at this stage and he did do the PTSD course at the Toowong Private Hospital, and his alcohol dependence was judged as not having to be dealt with before he did the intensive PTSD program; and this was judged by our colleague, Dr Andrew Khoo and he - but he definitely does need to have the alcohol dependence treated, and I usually refer people to our colleague, Dr Gregory Apel and use the Damascus Unit.…MR KELLY: Just to point out an error on the T documents, Dr Sullivan and Senior Member – alcohol is an accepted condition. I think it’s on the opposite side in the T documents.DR SULLIVAN: Yes, I knew that, I just was trying to tease out something.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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