Markland, I.M. v Commonwealth of Australia

[1992] FCA 664

bk.&J%

RAL COURT OF A U S T W ) JUDGMENT No. ..... -.

T C - REGISTRY

1     NO. VG 88 of 199Q

1  

GENERAL DIVISION	1
B E T W E E N :
JAN MURDOCH

Applicant

A N D :

COMMONWEALTH OF AUSTRALIA

Respondent

AND

COMMISSION FOR THE SAFETY, B E H A B I L I T A T I O N A N D

C O M P E N S A T I O N	0
QJMMONWEALTH EMPLOYEES

Party Joined

JUDGE MAKING ORDER	:	KEELY J
PLACE ORDER MADE	MELBOURNE
M T E ORDER MADE	19 AUGUST 1992

Note:	Settlement and entry
Order 36 of the Federal

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. Appeal dismissed.

2.    The Applicant pay the costs of the respondent.

ral distribution not reauired

THE P	-	COURT OF AUS-	)
1

VICTORIA DETRICT m	1
) NO. VG 88 of 199Q
B E T W E E N : IAN MURDOCH MARKLAND

Applicant

A N D :

COMMONWEALTH OF AUSTRALIA

Respondent

AND

COMMISSION FOR THE SAFETY, R E H A B I L I T A T I O N A N D

C O M P E N S A T I O N	0 F
EOMMONWEALTH EMPLOYEES

Party Joined

REASONS FOR JUDGMENT

19 AUGUST 1992 KEELY J

Ian Murdoch Markland ( "the applicant") has appealed from a

decision of the Administrative Appeals Tribunal constituted by a Senior Member ("the Tribunal") given on 23 February 1990. The respondent's counsel accepted that the application was to be determined under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). He conceded that the "Tribunal was in error in determining that the Applicant's

rights to redeem his compensation entitlement were to be interpreted in accordance with the Commonwealth Employees' Rehabilitation and Compensation Act ("the 1988 Act")". It should be said, in fairness to the Tribunal, that that concession was based upon the decision of the High Court in

Commonwealth (1992) 66 ALJR 373; the court's file shows that the parties requested that the hearing of the present appeal be deferred, pending the hearing and determination of Esber's case.

v

The applicant's counsel abandoned one argument that had been raised by the notice of appeal; he conceded that the Tribunal was "entitled to go beyond matters that were considered specifically by the delegate" (transcript 8 line 17).

Counsel accepted the following summary of the facts, set out by the Tribunal in paragraphs 8-14 of its reasons for decision:

" 8 . The applicant was born in July 1931 and commenced employment with the respondent in January 1970. On

17 March 1982 he completed a claim form for

compensation in respect of the "production, aggravation and acceleration of anxiety condition". He had retired on grounds of invalidity in February 1982, suffering from anxiety, depression, hypertension and duodenal ulcer. A Commonwealth Medical Officer stated that there may be a possibility of "improvement for redeployment after 1 year". The applicant had been on leave since May 1981. The section 37 statement makes reference to the medical evidence which was before the delegate in making his original determination with respect to the applicant's claim. This determination was made pursuant to sections 27 and 29 of the 1971 Act. Weekly payments of compensation were made under section 45 of the 1971 Act until March 1986. When the applicant advised that he was working part time, weekly compensation payments were then assessed

under section 46 of the 1971 Act. The delegate decided to reassess the employee's partial incapacity prior to considering whether to redeem the liability of the respondent.

9.   The applicant was employed by the respondent as a preventative officer with the Australian Customs Service ("ACS"), patrolling and conducting searches both on the waterfront and at the airport. He gave evidence that when he was first employed by the respondent he was "passed A1 fit". However, over the last two or three years of his employment, he became anxious and depressed. Younger employees who did not have experience and who should not have been promoted were promoted before older employees.

10. He consulted Dr Mulligan and was referred to Dr Moore. His condition has improved with medication but he still dislikes being confined in lifts or the cinema or driving in the city. He "freezes up" when conversing with members of the public. Although the applicant admitted to drinking alcohol, he denied that he had a "problem". It was "part of the job" to drink with other customs officers. He now considers that he no longer has the concentration or physical fitness to carry out his duties for his former employer. He has had only short periods of employment since retiring. On two occasions he filled in for four hours per day as a groundsman at a hospital where his wife worked. He has also done three hours gardening each week for an acquaintance as well as undertaking some other casual gardening jobs. The applicant estimates that he could now work for a maximum of five hours each week. He takes up to 13 tablets each day, for his anxiety, blood pressure and ulcer. The film taken of the applicant showed him pulling, pushing and rolling a dead branch of a tree, carrying a piece of timber and clearing grass from the base of a fence with a

spade.

11.  In 1987 the applicant and his wife planned to move to Merimbula, New South Wales, with the idea of purchasing two flats. They intended to live in one of the flats and let the other. Mrs Markland was going to do the "paperwork involved" and the applicant intended to keep the flats and surroundings tidy. Mr Markland told the Tribunal that he has kept physically fit by spending a lot of time in his own garden and playing golf but "time and medication have knocked me apart". He now has intermittent tenosynovitis in his shoulder and difficulty walking long distances following breaking his leg when he was aged 47. However, he expressed the opinion that his situation has "levelled off" over the last couple of years.

12.  The applicant's wife was aware of a change in the applicant's mood two or three years before he retired from work. She said he would come home from work depressed. She was pleased when he started doing some casual gardening, as previously he would just sit inside in the dark. She told the Tribunal that the applicant needs daily medication and rests after activity.

13.  Dr Moore has been treating the applicant since 1981. He prescribes the applicant a reasonably high dose of medication and expressed the opinion the applicant was not fit for full time employment but that he could cope with part time self-employment. In December 1981 he summarised Mr Markland's

situation:

"(a)This man has a markedly obsessional personality, with the development in the past several years of clear-cut phobic-anxiety depersonalization features.

(b) The late onset of such symptoms are strongly indicative of an underlying depression, but it was my assessment that on presentation earlier this year, his depression was not so severe as to warrant anti-depressant medication, and Markland was vehemently opposed to the taking of nerve tablets, on a philosophical basis.

(c)	As a result of the protracted delay in the Commonwealth giving any decision about superannuation, it is my opinion that someone o f Markland's obsessional personality, experienced an increase in anxiety and
depression due to the uncertainty of his state. "

In July 1986 Dr Moore found Mr Markland to have a mixture of panic disorder and depressive illness arising out of his perfectionist obsessional personality, which ultimately in attempting to achieve perfection for his employer, converted from a mild trait anxiety to severe anxiety state and which in turn precipitated the depressive illness and panic disorder. By March 1988 Dr Moore was able to report that, while Mr Markland still suffered from obsessional anxiety with intermittent depression of mood, he had good control of his symptoms with medication. His depression, while present episodically, was only of moderate severity. His obsessional anxiety continued to remain a feature but was by and large under control.

.4. In May 1989 Dr. Moore reported that it appeared, even after eight years out of the work situation, Mr Markland was still unable to moderate his work input either qualitatively or quantitatively, which seemed to reflect his basic personality structure. Dr Moore found that the pressure of litigation had caused considerable aggravation of Mr Markland's disease with an increase in his depression and

anxiety since the determination under review."

It was common ground that the applicant did not have a capacity for full-time work (transcript 9-10).

I In ~ommonwealth Bankina Cor~oration v Percival f 19881 82 ALR
54 Davies, Sheppard and Ryan JJ said (at 60):

"The Administrative Appeals Tribunal is, however, required by s43 of the Administrative Appeals Tribunal Act 1975 (Cth), when giving its decision, to state the reasons for it, to set out its findings of fact and to make reference to the evidence upon which those facts were found. That is an obligation which the tribunal undertook in the present case and its reasons are lengthy, careful and detailed. Such reasons ought not to be examined with an unduly critical or technical eye but should be read fairly with each sentence being weighed up and considered in the context of the whole.

If, on the reading of such reasons, an error of law

appears, either by express statement or by necessary	implication and if that error of law affected the
decision reached, then the decision must be set aside. If a material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis, that there was evidence, which, if accepted, would have justified the ultimate decision.
This court is bound by.the facts as found by the tribunal. Under 844 of the Administrative Appeals Tribunal Act, an appeal to this court is on a point of law only. Such a point must be considered on the facts determined by the tribunal. The function of the court was enunciated by Brennan J in Waterford v Commonwealth (1987) 71 ALR 673 at 689 as follows:

"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT 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 AAT has found them to be or it must vitiate the findings made or it must have led the AAT 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. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact."

It is, therefore, not for this court to review the evidence which was before the tribunal and to support the tribunal's decision upon evidence which was not accepted by the tribunal. Nor is it for this court to set aside the tribunal's careful reasons as being of nought."

The first submission advanced by the applicant's counsel was that the Tribunal had wrongly applied s4 of the 1988 Act and that it had "wrongly considered it was applying a higher threshold than applied in the 1971 Act". Accepting that the Tribunal's reasons "should be read fairly with each sentence being weighed up and considered in the context of the whole" (percivd supra), in my opinion the applicant's submission

cannot be upheld.

Counsel relied strongly on paragraph 18 of the Tribunal's reasons; that paragraph was the subject of considerable debate during the present hearing. It may be that, as the respondent's counsel suggested, paragraph 18 was only intended to deal with an argument advanced to the Tribunal by counsel then appearing for the respondent. Counsel also attacked the "inadequacy" of paragraph 19. In my opinion it is sufficient to say that the Tribunal expressly found (paragraph 19) "that any contribution of his work to the aggravation of his

underlying condition had ceased" and also expressly found (paragraph 20) "that after 30 November 1988 the applicant was no longer entitled to compensation under the provisions of the 1971 Act". The applicant's counsel submitted that the

i	Tribunal, because of its error as to the 1988 Act, had wrongly treated as irrelevant one of the "stressors" namely, the
l
applicant's perception of his failure to obtain promotion and
!	the effect on him of "younger and less experienced employees being promoted ahead of [him]". In my opinion the Tribunal did not treat that matter as being irrelevant. The Tribunal knew that Dr. Moore regarded that as one of the stressors (see
paragraph 15 - "the stress of competing with younger
employees"). The Tribunal accepted the evidence of Dr. Conron, in preference to that of Dr. Moore, and expressly found that the "stressors mentioned by Dr. Moore had ceased to operate" (paragraph 19).
The first submission fails.
The applicant's second submission was that:-

"In accepting the evidence of Dr. Conron the Tribunal overlooked the evidence of Dr. Moore, particularly at page 169 of Volume 2 of the Appeal Book. Dr. Moore gave evidence that the Appellant's condition had been precipitated by the stressors and the condition continued after the stressors were removed."

The question of whether the employment was contributing to the applicant's incapacity after 30 November 1988 was a question of fact and it was determined by the Tribunal. It considered

the evidence of Dr. Conron, a consultant psychiatrist called as a witness by the respondent's counsel, and that of Dr Moore, a consultant psychiatrist called as a witness by the applicant.

It did not "overlook the evidence of Dr. Moore" which it

:  referred to in paragraphs 13 (3 times), 14 and 15. It plainly preferred the evidence of Dr. Conron to that of Dr. Moore, saying (paragraph 19):-

"However, by November 1988 1 find that any contribution of his work to the aggravation of his underlying condition had ceased. I accept the evidence of Dr Conron on this point. The stressors mentioned by Dr Moore had ceased to operate."

During his cross examination Dr. Conron had said:-

"I think that his work temporarily aggravated it, and I

think that the effects of that aggravation WO

uld have ceased after two years".

Accordingly the applicant's second submission also fails.

The third submission advanced by the applicant's counsel was that the:-

"Tribunal, in accepting the evidence of Dr. Conron, should have given reasons as to why it rejected the conclusions of Dr. Moore."

In my opinion there was no failure by the Tribunal to comply with the requirement of 843 of the Administrative Appeals Tribunal Act 1975 that it furnish a statement in writing of the reasons for its decision. I agree, with respect, with the

following statement by von Doussa J in v Australian

ications Cor~oration (Matter SG 85 of 1991 -

delivered 12 December 1991 - p23):-

"In their evidence each doctor gave reasons for the opinion which he held. The choice between the conflicting experts involved a matter of judgment rather than detailed reasoning: cf. Jiousina Commission of New south Wales v. Tatmar Pastoral Co. Ptv Ltd & Ore [l9831 3 NSWLR 378 at 381. In my opinion had the Tribunal merely said that it preferred one body of medical opinion to the other it would not have failed to state reasons for its decision. By stating its preference for a particular expert opinion it would have disclosed its reasoning process leading to the findings of fact based on the accepted opinion."

The applicant's third submission must be rejected.

At the conclusion of his address (transcript 54-58), the applicant's counsel referred to the final paragraph of his outline of argument in which he contended that:-

"the Tribunal was in error in:-

(a)	concluding that because the work stressors had not been in existence for seven years therefore the effects of work had ceased;
(b)	not taking into consideration the fact that the symptoms were continuing;
(c)	not considering the susceptibility of the Appellant to further aggravation, should he return to work."

Counsel said that:-

"... in my submission, they tie into the submissions

I have already made to your Honour in relation to

the inadequacy of paragraph 19.

... some of the considerations which in my

submission the tribunal ought to have looked at when making the determination that it did in making this - instead of writing it off in a line or so as it did, there are a number of considerations that it ought to have looked at."

In my opinion those matters do not reveal any error of law. I

i	accept in general the comments made upon them by the respondent's counsel (transcript 97-98).
For the foregoing reasons the appeal will be dismissed and the applicant ordered to pay the costs of the respondent.

I certify that this and the nine (9)

preceding pages are a true copy of the Reasons for Judgment of Mr Justice Keely.

Associate: &f@d,

Counsel for the Applicant : Mr. P. O'Dwyer

Solicitors for the Applicant	: McMullin Coate h Co.
Counsel for the Respondent	: m. G. MOOre
Solicitors for the Respondent : Australian	Government

Solicitor

Date of Hearing	: 24 July 1992
Date of Judgment	: 19 August 1992