James v Repatriation Commission
[2015] FCCA 2644
•25 September 2015
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 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1]. The Federal Court has power to transfer the proceedings to this Court: s.44AA(1) of the AAT Act. The transferred proceedings are within this Court’s original jurisdiction.
An appeal pursuant to s.44(1) of the AAT Act does not permit a reconsideration of the merits of the decision under review. The appeal is on a question of law. Many cases have now discussed the nature of an appeal pursuant to s.44(1) of the AAT Act, the most recent being Haritos v Commissioner of Taxation [2015] FCAFC 92.
In Rana v Repatriation Commission [2011] FCAFC 124 Kenny, Stone and Logan JJ said:
[11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court “on a question of law”. The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.
(my emphasis)
In Haritos v Commissioner of Taxation [2015] FCAFC 92 the Full Court of the Federal Court reconsidered the line of authority associated with Comcare v Etheridge. In that case, the Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
192. In summary, the terms, the context (particularly s 7 of the AAT Act and noting what we have said especially at [149] above as to s 45 not providing an analogy), the history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure” question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court “should not usurp the fact-finding function of the AAT”, citing Repatriation Commission v O’Brien [1985] HCA 10; 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact-finding. As Brennan J said in Waterford v The Commonwealth [1987] HCA 25, 163 CLR 54 at 77:
A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. ...
It follows that legally erroneous fact-finding may found an appeal on a question of law within s 44. Further, we do not read Brennan J in Waterford as addressing jurisdictional facts or such facts as it may be necessary for the Court to find when considering a claim of denial of procedural fairness: see further [202] below.
193. To the extent that the reasoning in Birdseye and Etheridge depended on the view that a question of law within s 44 is required to be a “pure” question of law which should be capable of being answered without reference to facts, we respectfully disagree. Collins establishes that this view of s 44 is not correct. That view is also inconsistent with what Brennan J said in Waterford. Neither do Birdseye and Etheridge sit comfortably with Maurici, Vetter and Hope. Nor is the extended meaning of a question of mixed fact and law consistent with earlier decisions of the Full Court in, for example, PW Adams and Sharp Corporation. The line of cases beginning with Birdseye and Etheridge should not be understood as intending to overrule those cases.
194. We restate that the subject matter of an appeal under s 44 is a question or questions of law. We also restate that the appeal is not by way of rehearing; it is the exercise of original jurisdiction. Neither is it sufficient that the appeal merely involves a question of law. The correct approach, in our opinion, is to ask directly the question whether the appeal is on a question of law, without being diverted by whether or not the appeal raises a mixed question of fact and law. As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.
The amended notice of appeal
The questions of law said to arise on the appeal are specified in the amended notice of appeal as follows:
1. Whether in finding that the Applicant failed to satisfy s 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where the Tribunal failed to give any weight to, or ignored, a relevant matter of great importance, namely the uncontroverted evidence of two medical experts.
2. Whether the Tribunal failed to comply with s 43(2B) of the Administrative Appeals Tribunal Act 1975 by failing to give reasons, or adequate reasons for:
a. finding that the Applicant’s accepted psychiatric conditions did not prevent him from continuing to undertake one of the kinds of remunerative work he was undertaking, namely property maintenance;
b. in making the said finding, not following the uncontroverted evidence of two ,medical experts.
3. Whether in finding that the Applicant failed to satisfy s 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where the Tribunal made contradictory findings in that on the one hand, the Tribunal accepted that the Applicant satisfied 24(1)(b) of the Act, which included an assessment of the Applicant’s capacity to work in his lawn-mowing business, and then on the other hand found that the Applicant did not satisfy 24(1)(c) of the Act without making the necessary consequential finding as to what the aggregate periods of remunerative work the Applicant was therefore capable of performing.
4. Whether in finding that the Applicant failed to satisfy section 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where it made a finding that was so unreasonable that no tribunal acting reasonably could have made it, namely that the Applicant’s accepted psychiatric conditions did not prevent from continuing to undertake remunerative work characterised as property maintenance.
5. Whether in finding that the Applicant failed to satisfy section 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act by failing to consider a submission of substance made by the Applicant concerning the effect of the evidence of two medical experts which, if accepted, was capable of affecting the outcome of the Applicant’s claim.
The respondent contends that the amended notice of appeal does not state any questions of law. I agree. In my view none of the purported questions set out above are questions of law. The first question cavils with the Tribunal’s attribution of weight (or lack of it) to part of the evidence before the Tribunal. The second is a question of fact. Whether the Tribunal was required by s.43B(2B) of the AAT Act to give reasons or adequate reasons for its decision is a question of law. Whether the Tribunal’s reasons in this case met the standard required of s.43B(2B) (if it imposed such an obligation) is a question of fact. The third, fourth and fifth questions again state questions of fact in much the same way as question 1.
In my view, the amended notice of appeal does not state any questions of law as required by s.44(1) of the AAT Act or the Federal Court Rules 2011. Despite that view, I shall address the arguments by each of the parties as if the amended notice of appeal does state questions of law.
The claim and the Tribunal’s decision
On 20 May, 2009 Mr James lodged a claim for an increase to his service pension to be payable at the “special rate” within the meaning of s.24 of the Veterans’ Entitlements Act. To be entitled to the service pension to be paid at the special rate Mr James was required to satisfy s.24 of the Act. For present purposes, that section provided:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
His claim was unsuccessful. On 1 October, 2009 the respondent determined that Mr James’ war-caused conditions alone did not prevent him from continuing remunerative work.
The Commission’s decision was affirmed on review by a Veterans’ Review Board on 3 March, 2011. Mr James applied to the Administrative Appeals Tribunal for review of the Veterans’ Review Board decision on 20 May, 2009. On 30 September, 2013 the Tribunal affirmed the Commission’s decision.
It was accepted by the parties before the Tribunal that Mr James met the requirements of ss.24(1)(aa), (aab), (a) and (b) of the Act. The Tribunal acknowledged that there were no disputes concerning Mr James’ accepted war caused conditions, which included for relevant purposes, post-traumatic stress disorder, a depressive disorder and alcohol dependence. However, the Tribunal was concerned about the possibility of an underlying personality disorder or developmental condition that might have offered an alternative explanation for Mr James’ symptoms. To deal with that concern the hearing was adjourned and the Tribunal, it seems, directed that the respondent commission further medical evidence from a consultant psychiatrist, Dr Timmins. Dr Timmins provided a written report to the Tribunal and that evidence satisfied the Tribunal that there was no possibility of an underlying personality disorder or developmental condition that might have offered an alternative explanation for Mr James’ symptoms.
The only issue for the Tribunal was whether Mr James satisfied s.24(1)(c) of the Veterans’ Entitlements Act – what the Tribunal described as the “alone test”.
In order to determine whether Mr James satisfied that test, the Tribunal considered, correctly in my respectful view, that it must first establish the kind of remunerative work that Mr James was undertaking at the relevant time. So much is evident from the terms of s.24(1)(c).
The Tribunal recorded that Mr James undertook three forms of remunerative work:
a)employment in a property maintenance position with Heritage Building Society from 1993 – 2006;
b)engagement as an officer with the Army Cadets from 1993 – 2009; and
c)work in his own lawn-mowing business between 2006 – 2009.
The Tribunal had medical evidence before it from Dr Carter (Mr James’ treating psychiatrist) and Dr Timmins. The Tribunal said:
9. We accept the evidence of Mr James and Mr Boxall (a supervisor at Heritage who provided a statement: exhibit seven) provides a basis for concluding the applicant was unable to continue the remunerative work he was doing at Heritage because of his service-related psychiatric symptoms. The symptoms associated with those conditions were clearly hindering him in the performance of his duties. It was becoming obvious Mr James was simply unsuited to dealing with the public in a service role of that nature. We also accept the evidence of Mr James and Mr Bassingthwaite suggested Mr James was no longer suited to dealing with young people in his role as an officer of Cadets as a consequence of his psychiatric symptoms. We are satisfied the applicant’s psychiatric conditions are the only explanations for him ceasing that work: that much is clear from the evidence of Dr Carter, the treating psychiatrist, and Dr Timmins, the independent consultant psychiatrist who was asked to provide a report at the request of the Tribunal.
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.
Dr Timmins was a consultant psychiatrist who provided independent evidence to the Tribunal. Dr Timmins authored a report on 9 November, 2012 following an assessment of Mr James and a review of the reports of Dr Carter. Dr Timmins’ evidence was unchallenged and accepted by both Mr James and the respondent.
Dr Timmins was asked to comment upon the proposition that Mr James’ conditions played a role in preventing him from continuing remunerative work. Dr Timmins said:
I would agree with Dr Carter. I think his symptoms and behaviour can be explained solely by the combination of PTSD, Depressive Disorder and Alcohol Dependence. He is stoic and self-sufficient person who has self-medicated his increasing depressive and anxiety symptoms with alcohol for many years. Long term this has not proven in his best interest instead prolonging access to appropriate assistance and treatment.
I think while Mr James would like to work and contribute to society in a meaningful way he continues to significantly struggle with the ongoing symptoms which prevents him from doing so. His symptoms whilst contained in the Army have slowly eroded his ability to cope with his life and other people behaviours. Irritability, anger, intrusive memories, poor sleep, nightmares, lack of ability to enjoy life and Alcohol Dependence have all impacted on his relationships and his ability to successfully work.
Dr Timmins was asked to comment upon the proposition that the effects of the accepted psychiatric conditions from which Mr James suffered by themselves alone prevented him from continuing remunerative work. Dr Timmins said:
I do think that it is the complex interplay of ongoing symptoms of PTSD, Depression and Alcohol Dependence alone that have led to the difficulties Mr James is experiencing. It is difficult to separate them all out effectively as they tend to influence each other in various intricate ways. I do think his personality is the primary issue driving Mr James’ problems and difficulties working.
As I have set out above, the Tribunal was not persuaded that Mr James’ psychiatric conditions prevented him from continuing to undertake work in his lawn mowing business.
The grounds relied upon in the notice of appeal
As I have set out above, the appellant identifies five questions of law in the amended notice of appeal. I have already expressed my view that the questions are not questions of law. In any event, the submissions made by counsel for Mr James do not address the questions specified in the amended notice of appeal, but rather focus on the various “grounds relied upon” in the notice of appeal.
The relationship between the grounds relied upon in the notice of appeal and the questions of law specified in it was addressed by Branson and Stone JJ in Birdseye where, speaking of the former Federal Court Rules, they observed at [18]:
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
The grounds relied upon in the amended notice of appeal make no attempt to link between the questions of law, the circumstances of the particular case and the orders sought on the appeal.
Appeal grounds l (a) to (i)
These grounds are a recitation of a series of factual matters followed by an assertion that the Tribunal did not make certain findings. There is no attempt to link it to the first question of law stated in the amended notice of appeal. The grounds are:
1. The Tribunal:
(a) Adjourned the hearing on 5 September 2012, at the specific request of the Tribunal, to obtain a further independent medical report from Dr Timmins;
(b) Accepted that the Applicant has a number of accepted conditions, including, inter alia: psychiatric conditions (PTSD and Depressive Disorder); and alcohol abuse;
(c) Implicitly found that the Applicant satisfied both sections 24(1)(a) and 24(1)(b) of the Act and that the issue in dispute was limited to the application of the so-called “alone test” in section 24(1)(c) of the Act;
(d) Found that the “remunerative work” that the Applicant was undertaking for the purpose of section 24(1)(c) of the Act was characterised as “property maintenance and management/youth worker” based on the occupation which the Applicant had previously undertaken, namely at the Heritage Building Society, Army Cadets and his self-employed lawn-mowing business;
(e) Accepted the Applicant ceased work at the Heritage Building Society in November 2006 and ceased work with the Army Cadets and lawn-mowing business concurrently in April 2009 upon the advice of the Applicant’s treating psychiatrist;
(f) Found that the Applicant ceased and (inferentially) was prevented from undertaking remunerative work with the Heritage Building Society and the Army Cadets solely as a result of his accepted psychiatric conditions and thereby satisfying section 24(1)(c) relevant to those two remunerative undertakings;
(g) Found, however, that the Applicant’s accepted psychiatric conditions did not prevent him from continuing to undertake the remunerative work he was undertaking in his lawn-mowing business;
(h) Despite finding that section 24(1)(b) had been satisfied and finding the Applicant was “not prevented” from undertaking remunerative work in his lawn-mowing business, the Tribunal did not ask itself, and accordingly did not make any findings, as to how many hours the Applicant could in fact work per week in the lawn-mowing business and whether or not the Applicant therefore satisfied section 24(1 )(c) of the Act accordingly; and
(i) In light of the above findings, the Tribunal did not decide whether or not the Applicant suffered a loss of salary or wages, or of earnings on his or her own account in consequence of the Applicant’s incapacity.
The matters stated in paragraphs 1(b), (c), (d), (e), (f) and (g) appear accurate having regard to the Tribunal’s reasons. The matter stated in paragraph 1(a) is not entirely accurate because an adjournment of the Tribunal hearing was inevitable to accommodate Mr James wish to call evidence from another doctor, Dr Carter. It was at that point that the Tribunal suggested that it would like to have some evidence about the possibility that some underlying personality issues or developmental issues were an explanation for Mr James’ behaviour that had been attributed by Dr Carter to Mr James’ diagnosed conditions. The Tribunal suggested that Dr Carter be asked to address those concerns. The Tribunal also suggested that the respondent should identify a consultant psychiatrist to assess Mr James with a view to providing an opinion about that matter. The Tribunal suggested that the experts should see each other’s opinions. It was in those circumstances that the application was adjourned.
Ground 1(h) argues that the Tribunal did not consider or make any findings about how many hours Mr James could work per week in the lawn-mowing business. Counsel for Mr James submits that it was necessary for the Tribunal to undertake that task so as to satisfy itself about s.24(1)(c) of the Act.
But for the purposes of s.24(1)(c) of the Act, that was not necessary. There was no dispute, and the Tribunal accepted, that s.24(1)(b) was satisfied. That is to say, the Tribunal was satisfied that Mr James’ incapacity from his war-caused injury or war-caused disease, or both, was of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Quantification of the time over the course of a week that Mr James could work was necessary for him to satisfy s.24(1)(b) of the Act. But there was no dispute that he satisfied that requirement.
To the extent that Mr James argues that the Tribunal could not have found that s.24(1)(b) of the Act was satisfied and not also s.24(1)(c) of the Act there is no error in the Tribunal’s reasons. Section 24(1)(b) of the Act goes to the “nature and level of” the veteran’s war-caused incapacity whereas s.24(1)(c) of the Act goes to causation: Repatriation Commission v Alexander (2003) 75 ALD 329 at [13] per Spender J. In Wright v Repatriation Commission (2005) 213 ALR 536 Tamberlin J explained at [15]:
The two findings are separate and complementary. They pose different hurdles which the veteran must surmount. The finding that the prevention from continuing to undertake remunerative work is not caused solely by war-caused injury or war-caused disease is a different and separate finding from a requirement that the nature of the incapacity is such that a person cannot work for more than 8 hours ...
In Smith v Repatriation Commission [2012] FCA 1043, Gordon J summarised the Tribunal’s task when it came to assess a veteran’s satisfaction of s.24(1)(c) as follows:
[48] Before turning to consider the AAT’s approach and consideration of the questions, some principles are worth restating:
1. In applying s 24(1)(c), the task is “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well”: Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; Repatriation Commission v Hendy(2002) 76 ALD 47 at [37] and Forbes v Repatriation Commission (2000) 101 FCR 50 at [32].
2. In [Flentjar v Repatriation Commission (1977) 48 ALD 1] at 4–5 Branson J propounded four questions designed to address the s 24(1)(c) issue:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the [VE] Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
3. Consideration of the “remunerative work” is not limited to the last job undertaken by the veteran; regard should be had to the types of work performed by the veteran: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and Repatriation Commission v Hendy (2002) 76 ALD 47at [36].
4. The phrase “remunerative work” is not focused upon the particular tasks and duties involved in specific jobs. In identifying the relevant “remunerative work”, the decision-maker must look “to the type of substantive work undertaken by the veteran at a higher level of generality”: Repatriation Commission v Butcher (2007) 94 ALD 364 at [7]; Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Starvcevich at 225.
For the purposes of s.24(1)(c) of the Act, the Tribunal was not required to ask itself, nor make any findings about how many hours Mr James could in fact work per week in his lawn-mowing business. Mr James’ claim failed at question 2 posed by Branson J set out in the preceding paragraph. The Tribunal did not consider that Mr James’ decision to cease remunerative work in his lawn-mowing business was attributable to his war-caused injuries or conditions. Whilst the Tribunal accepted the lawn-mowing work was made less pleasant by some stress that was associated with meeting new clients and perhaps feeling threatened by some, the Tribunal found that it was essentially solitary work that did not involve extensive and stressful interaction with anyone. Nor did it involve the onerous responsibility of looking after anyone as his job with the Australian Army Cadets had done.
Those findings were open on the evidence before the Tribunal. The Tribunal had regard to the medical evidence bearing upon the question as to whether Mr James’ incapacity from war-caused conditions alone prevented him from continuing with the lawn mowing business. The Tribunal’s reasons address the nature of the stress experienced by Mr James in the lawn mowing business, whether that stress was engendered by his service-related psychiatric conditions, whether his war-caused alcohol dependency meant that he could not drive to work or operate dangerous machinery and whether he was able to control his drinking in more recent times.
Whilst Dr Carter gave evidence that assumed Mr James could not continue his lawn mowing work because his drinking problem meant he could not drive and that he should not operate dangerous machinery, the Tribunal also took into account Dr Timmins’ evidence that Mr James was essentially able to control his drinking “in more recent times”. Having considered the evidence of Mr James, and the evidence of both Drs Carter and Timmins the Tribunal was not satisfied that Mr James’ war-caused conditions alone prevented him from working in the lawn mowing business.
Further, counsel for Mr James submits that the Tribunal did not make any findings at all to identify what prevented Mr James from undertaking work in the lawn-mowing business for periods aggregating 8 hours or more per week. But the Tribunal was not required to do so for the purposes of s.24(1)(c) of the Act. What was required to engage s.24(1)(c) was for the Tribunal to be satisfied of the matters set out in that subsection. Further, Mr James submits that the word “prevented” in s.24(1)(c) of the Act, by reference to the requirement of 24(1)(b), should be read as “prevented from working for a periods aggregating 8 hours or more per week”. But as the passage from Smith v Repatriation Commission set out above shows, that is not so.
Moreover, the Tribunal was not in error merely because it found that Mr James did not satisfy s24(1)(c) of the Act even though there was no contest that s.24(1)(b) was satisfied.
Further, in respect of ground 1(i), whilst the Tribunal did not decide whether Mr James suffered a loss of salary or wages, or of earnings in consequence of his incapacity, the Tribunal was not obliged to do so given that the Tribunal was not satisfied that Mr James, by reason of his war-caused injury or war-caused disease or both, was prevented from continuing to undertake his lawn-mowing work.
Grounds 2 - 4
Mr James’ written submissions dealt with these grounds compendiously. Again, there was no attempt to link them to any of the questions of law articulated in the amended notice of appeal.
The grounds are as follows:
2. The Tribunal received uncontroverted evidence from two psychiatrists (one treating and one independent at the request of the Tribunal itself (“the medical experts”)), who were both aware of the “remunerative work’ the Applicant had undertaken, inclusive of the Applicant’s self-employed lawn-mowing business.
3. Both medical experts opined that the Applicant was “prevented by the accepted psychiatric conditions alone from continuing in the remunerative work”. The Tribunal accepted the medical evidence relative to remunerative work at the Heritage Building Society and the Army Cadets, but inferentially rejected the medical evidence relative to the lawn-mowing business despite the Army Cadets and the lawn-mowing ceasing concurrently upon the advice of the treating psychiatrist. No reason, or adequate reasons, is provided by the Tribunal as to why it rejected the uncontroverted evidence from the medical experts.
4. No reasons, or adequate reasons, are provided by the Tribunal as the factor it found, but for the accepted conditions, as to why the Applicant ceased all remunerative work in April 2009.
Particulars
The particulars of grounds 2, 3 and 4 are that:
(a) Dr Timmins’ report dated 16 November 2012, which was received into evidence by the Tribunal, was comprehensive. Dr Timmins identified the Applicant’s remunerative work as, relevantly, including the lawn-mowing business that the Applicant ran concurrently with his work for the Army Cadets;
(b) Dr Timmins’ evidence included that:
“Do such conditions, if so diagnosed, play a role in preventing Mr James from continuing remunerative work?
I would agree with Dr Carter. l think his symptoms and behaviour can be ,explained solely by the combination of PTSD, Depressive Disorder and Alcohol Dependence. He is a stoic and self-sufficient person who has self-medicated his increasing depressive and anxiety symptoms with alcohol for many years. Long term this has not proven in his best interests instead prolonging access to appropriate assistance and treatment.
I think while Mr James would like to work and contribute to society in a meaningful way he continues to significantly struggle with the ongoing symptoms which prevents him from doing so. His symptoms whilst contained in the Army have slowly eroded his ability to cope with his life and other people behaviours. Irritability, anger, intrusive memories, poor sleep, nightmares, lack of ability to enjoy life and Alcohol Dependence have all impacted on his relationships and his ability to successfully work.
Do the effects of the accepted psychiatric conditions, by themselves alone, prevent such continuance?
I do think that it is the complex interplay of ongoing symptoms of PTSD, Depression and Alcohol Dependence alone that have led to the difficulties Mr James is experiencing”
(c) ln his evidence Dr Timmins agreed with Dr Carter that the Veteran’s symptoms and behaviour can be explained “solely by the combination of PTSD, Depressive Disorder and Alcohol Dependence”;
(d) Dr Carter’s evidence in this regard was that the Veteran was unable to undertake any remunerative work due to his war-caused psychiatric conditions. This description of remunerative work by Dr Carter was inclusive of lawn-mowing;
(e) Dr Carter was the Applicant’s long term treating psychiatrist. The Tribunal accepted that Dr Carter’s evidence was, at least as to the reasons for the Applicant ceasing remunerative work with the Heritage Building Society, probative, reliable and worthy of weight;
(f) Dr Carter’s evidence was that she recommended that the Applicant cease work entirely due to his war-caused psychiatric conditions;
(g) Dr Timmins’ evidence as to his assessment as to what factors prevented the Applicant from continuing to undertake remunerative work addressed each of the three kinds of remunerative work which were relevant for the purposes of s.24(1)(c) of the Act;
(h) ln the premises, the evidence of both psychiatrist experts was that the applicant’s accepted war-caused diseases prevented him from continuing to undertake the remunerative work he was undertaking in his lawn-mowing business;
(i) The Tribunal has not provided reasons as to why it did not follow the uncontradicted evidence of Dr Timmins and Dr Carter;
(j) The Tribunal did not advert in its reasons to any factor besides the Applicant’s war-caused diseases which led to him ceasing his lawn mowing business;
(k) The Tribunal failed to address, and consequently made no findings, as to the extent of the Applicant’s capacity to undertake a lawn-mowing business;
(l) Further, Counsel who appeared for the Applicant at the hearing specifically addressed this part of the evidence of the medical experts in closing submissions. This was a submission of substance which was capable of affecting the outcome of the case;
(m) ln the premises:
a. the Tribunal failed to give adequate reasons for not following the uncontradicted evidence of Drs Timmins and Carter;
b. the Tribunal failed to give adequate reasons for finding that the Applicant’s war caused diseases alone did not prevent him from undertaking remunerative work in his lawn mowing business;
c. the Tribunal failed to address the Applicant’s Counsel’s submission referred to above.
As I have set out above, the Tribunal received evidence from two psychiatrists, Dr Carter and Dr Timmins. Both expressed the opinion that that the Applicant was “prevented by the accepted psychiatric conditions alone from continuing in the remunerative work”.
Mr James argues that the Tribunal gave no reasons, or no adequate reasons to explain why it rejected the opinion of the experts insofar as it related to his lawn-mowing business. He argues that the Tribunal must have rejected the experts’ opinions about that because it found that he was not prevented from pursuing remunerative work by his war-caused medical conditions.
Mr James directs my attention to Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 where Sackville J considered the obligation to provide reasons in accordance with s.43(2B) of the Act saying, at p.640:
The relevant principles include the following:
• A substantial failure by the tribunal to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573 ; 21 ALD 255 ; 95 ALR 451; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 41 ALD 361 ; 136 ALR 84 at 95–6, per Sackville J.
• The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration. It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan, at FCR 567–8; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 481 ; 13 ALD 740 ; 77 ALR 577. As Burchett J said in Dodds v Comcare (1993) 31 ALD 690 at 691:
Section 43 is not to be construed in a pedantic spirit, but sensibly. If the tribunal’s reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include “findings on material questions of fact”.
• Regard must be had to the composition of the tribunal which (as in the present case) does not necessarily include trained lawyers. Section 43(2B) does not require a standard of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 4 ALN N137; 40 ALR 233 ; 59 FLR 132 at 157, per Sheppard J.
• A restrained approach to judicial review of tribunal decisions is appropriate: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145; 3 ALD 38, per Fisher J. The reasons of the tribunal should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; 115 ALR 1, approved in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2 ; 41 ALD 1 ; 136 ALR 481.
• The assessment is to be made having regard to the tribunal’s reasons as a whole: Politis v FCT (1988) 16 ALD 707; 88 ATC 5029 at 5032, per Lockhart J.
• Despite the above qualifications, if the tribunal’s reasons do not expose its reasoning process, in the sense that it does not enable a proper understanding to be obtained of the basis on which a decision has been reached, the decision involves an error of law: Australian Telecommunications Commission v Barker (1990) 12 AAR 490 at 492; East Finchley Pty Ltd v FCT (1989) 19 ALD 85; 90 ALR 457 at 466–7.
But the Tribunal did explain its reasons in paragraphs [7] – [10] of the reasons for decision. I have set out paragraph [10] of the reasons above and repeat them here:
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).
The tribunal reached that view with the benefit of material not available to the doctors who had given evidence, namely the answers given by Mr James in cross-examination in relation to his lawn mowing activities and his reasons for ceasing that activity. Mr James gave the following evidence about his lawn mowing business:
... and I found that mowing lawns may, when you go to mow someone’s law, it’s always stressful when you go to meet that person for the first time. To me it is anyway, but you meet the person and you do some work and you come back the next time and it’s not quite so stressful, and the next time, and after you know them for a while they’re people that you know and in the fullness of time they become friends. The other thing is that the people who were primarily my clients were older ladies and it’s hard to regard a 45 kilo lady who is old enough to be my mother as any sort of a threat. Now there were clients who I simply couldn’t get on with and I didn’t go back to them. I was just unavailable. I concentrated on the clients that I did like, that I knew and could handle ...
As the respondent submits, that evidence is consistent with Mr James’ written statement, (ex 2 before the Tribunal), that said:
Note:- Lawn Mowing
When you go out to Mow you have to approach people. It was always stressful approaching a strange but usually it was one person and that an old lady. You would zip in say hello and get out, put your earmuffs, start an engine, and get on with the job.
Afterwards hold out your hand for the cash say thank you and shoot through. As you went back to the same person a second and third etc time it usually became easier.
The Tribunal referred to that evidence in paragraph 7 of its reasons for decision. The Tribunal explained why it did not accept that Mr James’ accepted conditions prevented him from undertaking remunerative work. It explained, albeit briefly why it did not accept that his alcohol dependence was the cause of him ceasing his lawn mowing business based upon Dr Timmins’ evidence that Mr James was “essentially able to control his drinking in more recent times”.
It was open to the Tribunal to reach the findings that it did on the evidence before it. The Tribunal’s reasons explained how it did that, albeit briefly. They were, in my view, nonetheless adequate.
Appeal Ground 5
This ground is as follows:
5. The conclusion arrived at by the Tribunal that the Applicant failed to satisfy section 24(1)(c) of the Act relevant to the lawn-mowing business was so unreasonable that no tribunal acting reasonably on the material before it could have reached it.
Particulars
(a) The Applicant repeats the particulars set out in paragraph 4 above.
(b) Further, there is nothing in the Tribunal’s reasons to suggest that the Tribunal did not accept as reliable and accurate the Applicant’s evidence that he ceased work, including undertaking his lawn-mowing business, on the advice on his treating psychiatrist, Dr Carter.
Mr James argues that the Tribunal’s conclusion that he failed to satisfy s.24(1)(c) of the Act in relation to relevant to his lawn-mowing business was so unreasonable that no tribunal acting reasonably on the material before it could have reached that conclusion. He argues that:
a)the Tribunal made a finding on the basis that Alcohol Dependence (and not psychiatric conditions) was the primary reason the Applicant was unable to undertake remunerative work in the lawn-mowing business;
b)Dr Sullivan’s questioning of Dr Carter was such that the Advocate for the Repatriation Commission, Mr Kelly, informed Dr Sullivan that alcohol dependence was an accepted condition and was erroneously on the wrong side of the T-Document table;
c)Alcohol Dependence was an accepted war-caused condition and was not a matter in dispute before the Tribunal and was subject to tendered and accepted evidence by the Tribunal; and
d)In the event Alcohol Dependence prevented the Applicant from undertaking remunerative work (if that is what the Tribunal found, which the Applicant submits is unclear on the decision), then the Applicant satisfied 24(l)(c) in any event, as Alcohol Dependence is an accepted war caused condition so much so as the psychiatric conditions and this is a relevant consideration that the Applicant submits was not taken into account.
Where a decision-maker’s application of the facts found to the statutory regime under consideration is so perverse as to fit the description of irrational, there may be a question of law involved: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26]; Watsford v Commissioner of Taxation [2013] FCA 1389.
Here, however, there is no irrationality in the Tribunal’s application of the facts as it found them to be to the requirements of s.24(1)(c) of the Act. Mr James’ argument suggests that the Tribunal’s decision that, on the one hand it accepted that his war-caused conditions alone prevented him from continuing his employment with the Heritage Building Society and the Army Cadets, but on the other found that his conditions alone did not also prevent him from continuing his remunerative lawn mowing activities was irrational or legally unreasonable.
But as I have set out above, that is not so. The Tribunal did not accept that Mr James’ service-related psychiatric symptoms prevented him from continuing in his lawn mowing business. The Tribunal recorded Mr James’ evidence about his lawn mowing work (at [7] of the reasons) and made findings as to the solitary nature of the lawn mowing work undertaken by Mr James (at [10] of the reasons). As to his alcohol dependence, the Tribunal afforded more weight to Dr Timmins’ evidence that Mr James was essentially able to control his drinking more in recent times in preference to what the Tribunal described as the vague evidence of Dr Carter about the correlation between Mr James’ alcohol dependency and his inability to continue his lawn mowing work. Those findings were open to the Tribunal on the evidence before it.
I accept the respondent’s submissions that the Tribunal’s decision at paragraphs [7] - [10] explain the Tribunal’s finding that Mr James was able to cope with the interactions with his lawn mowing clients but could not deal with the balance of his responsibilities for cadets and at the Heritage Building Society as the latter involved greater personal interaction and hence exacerbation of his anger outbursts that were symptoms of his psychiatric condition.
Conclusion
Mr James does not establish that the Tribunal’s decision is attended by any error. No questions of law arise on the Tribunal’s decision, the resolution of which would lead to a different result than that arrived at by the Tribunal.
The application must be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 25 September, 2015.
Associate:
Date: 25 September 2015
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