Munro and Repatriation Commission

[2010] AATA 942

CATCHWORDS – VETERANS’ ENTITLEMENTS – DISABILITY PENSION – RATE OF PAY –  application for increase – paid at 100% of General Rate – application for Special Rate or Intermediate Rate – decision affirmed.

PRACTICE AND PROCEDURE – EXPERT WITNESSES – expert evidence exception to hearsay rule - role of expert witness -  determining when evidence probative – pivotal role played by letter of instruction to expert.

Administrative Appeals Tribunal Act 1975 ss 2A, 33(1)(c), 39
Evidence Act 1995, ss 4(1), 76(1), 79(1)
Veterans’ Entitlements Act 1986 ss5D(1) and (2), 5Q(1), 13(1)(b) and (d), 14, 15, 19(5A), (5B), (5C) and (5D), 19(5)(a) and (b), 19(9), 20(1), 21(1) and (3), 21A, 21A(1), 22(2), 23(1), 23(1)(aa), (ab), (a), (b) and (c), 24(1), 24(1)(a), (b), (c) and (d), 28, 28(c), 29

Administrative Appeals Tribunal Draft Guidelines for persons giving opinion evidence in the Administrative Appeals Tribunal
Federal Court Practice Note CM 7: Expert Witnesses in Proceedings in the Federal Court of Australia

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73
Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555
Australian Securities and Investment Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
BHP Billiton Iron Ore Pty Ltd v  National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234; (2007) 247 ALR 104
Birtles v Repatriation Commission [1991] FCA 645; (1991) 33 FCR 290; 105 ALR 359; 24 ALD 545; 14 AAR 497
Carter v. Boehm 1 Smith L.C., 7th ed. (1876)
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
HG v The Queen (1999) 197 CLR 414
Leane v Repatriation Commission [2004] FCAFC 83; (1984) 81 ALD 625
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601; (2002) 76 ALJR 966
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463
Qantas Airways Limited [2004] ACompT9
R v Bartlett [1996] 2 VR 687
R v Bonython (1984) 38 SASR 45
R v Lam, Truong, Duong & Anor  [2001] QCA 279; (2001) 121 A Crim R 272
Re Fahey and Repatriation Commission (1986) 10 ALD 338; 5 AAR 274
Re JTMJ and Australian Securities and Investments Commission [2010] AATA 350
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14
Sheehy v Repatriation Commission (1996) 137 ALR 223; 41 ALD 205; 23 AAR 126
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296
Weal v Bottom (1966) 40 ALJR 436

Black’s Law Dictionary 5^th edition, 1979, West Publishing Co
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd
Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR Plus), American Psychiatric Association, 4^th edition, text revision, 2000
Expert Evidence, Law, Practice, Procedure and Advocacy, Freckelton and Selby, 3^rd edition, 2005, Lawbook Co, Sydney

DECISION AND REASONS FOR DECISION [2010] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          2009/2309
VETERANS’ APPEALS DIVISION                   )          

Re                MAURICE CLARK MUNRO

Applicant

AndREPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  24 November 2010
Place:  Melbourne

Decision:The Tribunal:

1.notes that the Repatriation Commission has increased the rate at which disability pension is paid to Mr Munro to 100% of the General Rate with effect from 28 June 2009; and

2.otherwise affirms the decision of the Repatriation Commission dated 19 June 2009 and affirmed by the Veterans’ Review Board on 17 April 2009.

S A Forgie
  Deputy President

REASONS FOR DECISION

Mr Maurice Munro was entitled to a disability pension under the Veterans’ Entitlements Act 1986 (VE Act) at 70% of the General Rate when he applied for an increase in the rate on 15 May 2008.[1]  At the time, he had two accepted disabilities.  His application was refused by the Repatriation Commission (Commission) and its refusal affirmed by the Veterans’ Review Board (VRB).  After Mr Munro had applied to this Tribunal for review of the VRB’s decision, the Commission accepted three other conditions as war-caused disabilities under the VE Act.  It then increased his disability pension to 100% of the General Rate with effect from 28 June 2009 but decided that Mr Munro was not eligible for a pension at the Intermediate or Special Rate.

[1] T documents at 30-41

1. I have decided that Mr Munro is not entitled to disability pension at 100% of the General Rate from 15 February 2008, or more properly 15 May 2008,[2] to 28 June 2009. The Commission has already decided that he is entitled to it at the rate of 100% of the General Rate from the later date. With regard to his claim that he should be paid disability pension at a rate above the General Rate under either ss 23 or 24 of the VE Act, I have decided that he is not entitled and affirm the Commission’s decision in that regard.

   [2] See FN 63 below

BACKGROUND

1. In this section of my reasons, I will set out the factual matters that are not in dispute between the parties.  They form the background to the matters in issue between them.

A.       Service and work history

1. Mr Munro was born in 1947 and grew up on the family farm near Ouyen in Victoria.  He was joined the Australian Army as a conscript and served in Vietnam from 10 September 1968 to 5 September 1969.  After his discharge from the Army, Mr Munro worked on the family farm for two years before joining the Grain Elevators Board in 1973 as a grain handler.  His job required him to load grain onto road and rail transport.  In approximately 1983, he was promoted to an Operations Supervisor.  Some twelve years later, he was promoted to Area Manager with GrainCorp.  As Area Manager, he was responsible for managing approximately 36 grain sites.  He remained in that position until he was, on his view, sacked and, on the Commission’s view, made redundant in 2005.  I will come back to that matter later.

1. Mr Munro was not employed between 23 December 2005 until 29 January 2009.  He was then engaged by Access Industries as a Recycling Supervisor from 29 January 2009 to 3 April 2009.  The position was located in Mildura.  Mr Munro has been unemployed since 4 April 2009.

B.       Accepted disabilities

1. Mr Munro has five accepted war-caused disabilities:

   Erectile Dysfunction
   Anxiety Disorder
   Ischaemic Optic Neuropathy Right Eye
   Sensorineural Hearing Loss

   Solar Keratosis

The Commission has not accepted that the following conditions are war-caused disabilties:

Vascular Problem (no incapacity found)
Neck Pain
Lumbar Spine Pain
Thoracic Spine Pain

Photocontact Dermatitis

LEGISLATIVE BACKGROUND

A.       Pension at the General Rate

1. A veteran who is incapacitated from a war-caused injury or a war-caused disease is entitled to be paid a pension by way of compensation in accordance with Part II of the VE Act.[3]  Once the Commission has accepted that a veteran is incapacitated in that way, it must determine the degree of incapacity in accordance with s 21A.  Section 21A(1) requires the degree of incapacity to be determined according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions (GARP).  The degree of incapacity is expressed as 10% or a multiple of 10% provided it does not exceed 100%. 

   [3] VE Act, ss 13(1)(b) and (d)

1. Unless ss 23 or 24 apply, pension is paid to the veteran at a rate of the general rate of pension that corresponds with the percentage of that veteran’s incapacity determined under s 21A.[4]  Provision is made for the pension to be paid at an increased rate, known as the extreme disablement adjustment rate, in the circumstances set out in s 22(4) and (5).  Those circumstances do not apply to Mr Munro.

   [4] VE Act, s 22(2)

B.       Pension at the Intermediate Rate

1. Section 23 provides for an Intermediate Rate of pension.  In order to qualify for that, a veteran must meet six criteria specified in s 23(1).  Mr Munro meets the first in that he has made a claim under s 15 of the VE Act for an increase in the rate of pension he is receiving.[5]  He also meets the second in that he was not yet 65 when he made the application.[6]  The third is also met by Mr Munro for the Commission has determined that his degree of incapacity from war-caused diseases is at least 70%.[7]

   [5] VE Act, s 23(1)(aa)

   [6] VE Act, s 23(1)(ab)

   [7] VE Act, s 23(1)(a)(i)

1. The issues in this case revolve around the fourth and fifth criteria.  The fourth is set out in s 23(1)(b) and provides that:

   “the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently;…”.

The expression “incapacity from a war-caused injury or incapacity from a war-caused disease” in this context “… is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.”[8]  The expression “remunerative work includes any remunerative activity”.[9]

[8] VE Act, ss 5D(1) and (2)

[9] VE Act, s 5Q(1)

1. Section 23(2) is relevant in the application of s 23(1)(b).  It provides:

   “Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

   (a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

   (b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or is capable of undertaking, that work for 20 hours or more per week.”

1. The fifth criterion is found in s 23(1)(c):

   “the veteran is, by reason of incapacity from 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 from that incapacity; …”.

This criterion is qualified by s 23(3) when it provides:

“For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering from a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:

(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reasons; or

(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

(b)where a veteran, who not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.”

1. The sixth criterion specified in s 23(1) is that ss 24 and 25 do not apply.  Section 24 is concerned with payment of disability pension at the Special Rate and I will return to that.  Section 25 provides for the temporary payment at the Special Rate.

C.       Pension at the Special Rate

1. Section 24(1) also sets out six criteria that must be satisfied in order to qualify for payment of a disability pension at the Special Rate.  The first three mirror those in s 23(1) and, for the same reasons, Mr Munro meets them.  The sixth is effectively the same as that in s 23(1)(d) except that it turns only on the applicability of s 25 and not of s 24.[10]  Section 25 is concerned with the temporary payment of pension at the Special Rate.

   [10] VE Act, s 24(1)(d)

1. The issues centre on the criteria in ss 24(1)(b) and (c).  Beginning with s 24(1)(b), it provides:

   “the veteran is totally and permanently incapacitated, that is to say, the veterans’ incapacity from war-caused injury or war-caused disease, or both, is 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”.

1. Section 23(1)(c) provides:

   “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 have been suffering if the veteran were free of that incapacity”.

That provision must be read with s 24(2):

“For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”

D.Only matters to which regard must be had in determining capacity to undertake remunerative work

1. Section 28 is relevant to the task set for the decision-maker by both ss 23(1)(b) and 24(1)(b).  In so far as it is relevant to Mr Munro’s claim for an increase in rate of his disability pension, it provides:

   “In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, … the Commission shall have regard to the following matters only:

   (a)the vocational, trade and professional skills, qualifications and experience of the veteran;

   (b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

   (c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”

1. I have already noted that, when used in the expression “incapacity from a war-caused injury or incapacity from a war-caused disease”, the word “incapacity” has been defined in s 5D(2) of the VE Act.[11]  The word “capacity”, which is used in s 28(1)(c), has not been defined but I understand it to be a reference to the veteran’s “… ability or power …”[12] to undertake remunerative work. 

   [11] See [10] above

   [12] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. The word “impairment” is not.  In its ordinary usage, the word “impairment” refers to “the fact of being impaired”.[13]  Used in that sense, it is based on the word “impair” when used as an intransitive verb i.e. in its meaning of “… Become less effective or weaker; deteriorate; suffer injury or loss. …”.[14]  Neither the word “impairment” nor the word “impair” appears in any of the medical dictionaries to which I have access but the word “impair” does appear in Black’s Law Dictionary[15] where it is given the meaning:

   “To weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner.”

The word “physical” has a self evident meaning in this context being that of “.. bodily rather than mental; involving the body; …”.[16]  The word “mental” means in this context “… of or pertaining to the mind …”[17] and “… belonging or relating to, or done by using, the mind or intelligence …”.[18]

[13] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[14] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[15] 5^th edition, 1979, West Publishing Co

[16] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[17] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[18] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. Given these meanings, it seems to me that the word “impairment”, when used in s 28 of the VE Act, is a reference to a loss, loss in effectiveness or weakening of, or to a deterioration in or damage to a veteran’s body, or part of it, or to a veteran’s mind or intelligence, or part of it. 

1. Before leaving s 28(c), I note that the reference to “injury or disease”, which results in the physical or mental impairment, must be read as a reference to the war-caused injury or war-caused disease appearing in the opening words to s 28.  The impairment, be it physical or mental, resulting from that war-caused injury or war-caused disease is one thing.  The extent to which that impairment has reduced a veteran’s capacity to undertake the kinds of remunerative work referred to in s 28(b) is another. 

1. A veteran may have suffered an impairment but may have suffered no reduction in “… ability, [or] power …”[19], and so “… capacity to undertake the kinds of remunerative work referred to in paragraph (b)” of s 28.  A loss of a lower limb, for example, would be an impairment for anyone.  Take as an example, a veteran whose vocational, trade and professional skills, qualifications and experience have been assessed under s 28(a) as those of a computer programmer.  Depending on the evidence, a person with those skills might reasonably undertake that kind of remunerative work or some other remunerative work in the information technology industry that would be identified.  That is an issue to be determined under s 28(b) of the VE Act.  When s 28(c) is considered, it may be open to argue that, as serious as it would be and as much as it might lessen the veteran’s ability to cope in other areas of life, the loss of a lower limb will not reduce his or her capacity to undertake that kind of remunerative work.  This is an example only to illustrate the difference between impairment and incapacity.

   [19] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

E.       The standard of proof

1. I must decide whether Mr Munro meets the relevant criteria.  That is not a decision that I make on a whim or on some basis known only to me.  As I am not required to decide whether Mr Munro has a war-caused injury or a war-caused disease or a defence-caused injury or a defence-caused disease, I must make my decision on the basis set out in s 120(4) of the VE Act.  It is expressed in terms of what the Commission must do but, in reviewing the Commission’s decision, it applies equally to me.  After excluding the two classes of decision to which I have just referred, s 120(4) provides:

   “… the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension under Part II or Part IV, decide the matter to its reasonable satisfaction.”

The meaning of the expression “reasonably satisfied” has been considered by the Federal Court inRepatriation Commission v Smith.[20]  After considering the authorities, Beaumont J concluded that the Tribunal:

“... should have asked itself whether on the facts of the case, it was persuaded on the civil standard.  There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87.[21]

F.The time at which I must consider whether Mr Munro is entitled to an increase in the rate of pension payable to him

[20] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17

[21] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17at 335; 547; 26

1. Section 19 deals with the determination of claims and applications.  As Mr Munro has applied under s 15(2) for an increase in the rate of pension payable to him in respect of incapacity, the Commission (and so I) must deal with in accordance with s 19(5).  That provision requires me to first determine whether a veteran is entitled to be granted a pension in respect of incapacity.[22]  Mr Munro’s entitlement is not in question in this case.  I must then proceed as required by ss 19(5A), (5B), (5C) and (5D).[23]  Of consequence in this case is s 19(5C)(a) which provides:

   “The matters that the Commission must assess are:

   (a)the rate or rates at which the pension would have been payable from time to time during the assessment period;

   (b)…”

The “assessment period” is defined in s 19(9):

“assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when a claim or application is determined.”

[22] VE Act, s 19(5)(a)

[23] VE Act, s 19(5)(b)

1. The effect of these provisions is that I must assess the rate or rates at which the pension is payable to Mr Munro during the entire period from 15 May 2008, when he lodged his application for an increase in his pension, until the day on which I give my decision.

CONSIDERATION

A.Expert witnesses

1. This case brings into sharp focus the role of an expert witness in a merits review case and it does so in relation to one or more of the reports obtained from medical experts at the parties’ request and the evidence those experts subsequently gave at the hearing.  I will refer to the reports prepared at Mr De Marchi’s request by Dr Amanda Sillcock, an Occupational Physician, and Dr Nigel Strauss, an Occupational Psychiatrist.  Their reports are shaped very much by the letters of instruction that they were sent by Mr De Marchi.  Those letters have caused me some concern as have others in other cases over the years.  Therefore, I have taken the opportunity to address some of the issues raised by expert evidence in an attempt to highlight the care that needs to be taken to ensure that the independence and integrity of expert evidence is maintained. 

1. I have used the reports of Dr Sillcock and Dr Strauss as examples but I do not do so intending any personal criticism of them.  They have responded to the requests made of them.  Those requests, I would suggest, have not drawn their attention to the issues that they should address.  I understand that the modern tendency is to focus on the requirement that the Tribunal must pursue the objective of providing a “mechanism of review that is … informal and quick”[24] but it also has to pursue the objective of providing a “mechanism of review that is fair, just [and] economical …”.[25]  A mechanism will meet none of these objectives if it does not provide for review on the basis of probative evidence.  In the case of expert evidence, the chances of its being probative will be enhanced if it follows the principles developed in the courts at common law and underpinning the Draft Guidelines for persons giving opinion evidence in the Administrative Appeals Tribunal issued by the President in October 2008 (Draft Guidelines).  They are written in terms consistent with the Practice Note CM 7 issued on 25 September 2009 by the Chief Justice of the Federal Court and entitled “Expert Witnesses in Proceedings in the Federal Court of Australia”.

   [24] Administrative Appeals Tribunal Act 1975 (AAT Act), s 2A

   [25] AAT Act, s 2A

A.1     Dr Sillcock’s evidence

1. Dr Sillcock obtained her MBBS in 1975 and, in 1987, was awarded a Graduate Diploma in Industrial Hygiene by Deakin University.  She became a member of the Australian College of Occupational Medicine and a Fellow in 1986.  That College later came under the auspices of the Royal Australasian College of Physicians.  Dr Sillcock has practised since 1979.  Her work as an occupational physician has engaged her in work related issues and the interface between illness and work.  Those issues involve her in getting people back to work, undertaking pre-employment medicals and assessing the consequences of exposure to lead and other environmental issues.  Assessment of work capacity is an area in which Dr Sillcock is especially engaged. 

1. Dr Sillcock readily agreed that she does not have any qualifications in psychiatry and would defer to a diagnosis given by a psychiatrist.  That does not mean, however, that she as a medical practitioner was not qualified to diagnose a psychiatric condition, Dr Sillcock said.  General medical practitioners would never be able to prescribe antidepressants unless they diagnosed such conditions.  As an occupational physician, she is familiar with the interface between injury and work.  She can assess if a person is fit for work, she added, and can do so better than a surgeon or a psychiatrist, as the case might be, because she is familiar with various workplaces.  Dr Sillcock rejected a proposition put to her by the Commission’s advocate, Ms Casamento, that she was not qualified to comment on the extent to which psychological factors impact on Mr Munro’s ability to work.  She does not treat psychological conditions but she has been commenting on their impact on a person’s ability to work for a long time.  When shown Dr Horsley’s response that she relied on her psychiatrist colleagues for an opinion about Mr Munro’s cessation from work on the basis of anxiety[26] and asked if this was not the appropriate response, Dr Sillcock replied “not always”.  She disagreed with the proposition that it was the appropriate response and referred to her experience that psychiatrists often inappropriately assess capacity and do so both ways.  An occupational physician, she said, has a far better capacity to assess capacity because of a greater knowledge of the workplace.

   [26] Exhibit 10 at 8 and Exhibit 9 at 9

1. Dr Sillcock prepared a report dated 30 August 2010.  Although it was not tendered or admitted in evidence in a formal way, it lay at the heart of her oral evidence and she was examined on it by Mr De Marchi and cross-examined by Ms Casamento.  It is part of the material to which Mr De Marchi asks me to have regard and I consider that I should do so.  Ms Casamento is not caught by surprise even though it was not formally tendered or admitted.  I possibly played a part in Mr De Marchi’s overlooking its tender because I did not permit him to tender it before he had called Dr Sillcock to give evidence.  Instead, I wanted him to put it to her during the course of her evidence in the normal way so that she could identify it as her report, have the opportunity to make any corrections and then adopt it. 

1. Dr Sillcock was asked by Mr De Marchi to prepare a report.  His letter to her is dated 12 August 2010 and reads:

   “We refer to our recent telephone communication with our Mr De Marchi and enclose a copy of report by Dr Nigel Strauss dated 17 December 2009 and Dr Horsley dated 3 February 2010 and 8 August 2007.

   You will note that the main issue is his capacity for work given his educational background, poor computer skill and lack of formal qualification despite his extensive managerial experience.

   Mr Munro was seeking to engage in employment until he was no longer capable of making job application and found himself in more dangerous situation, nearly running off the road a few times whilst driving.

   Do not hesitate to contact our Mr De Marchi if you have any questions.”[27]

   [27] Exhibit F

1. Dr Sillcock’s report to Mr De Marchi reads:

   “Thank you for asking me review some reports about Mr Munro.  I considered the following reports:

   ·Dr Nigel Strauss, psychiatrist, dated 17 December 2009

   ·Dr Robyn Horsley, occupational physician, dated 8 August 2007 and 3 February 2010

   I note that the issue in question is Mr Munro’s capacity for work.  I note that he worked for Graincorp for about 35 years, being an area manager for the last 15 years or so.  This position did not require physical work.  I note that he was made redundant in 2005 when the organisation was restructured.  He then did a part time job for a short period in 2009 supervising people with disabilities, but he ceased working after about two months because of anxiety.

   I note that Mr Munro had been diagnosed as having generalised anxiety disorder and major depression and that Dr Strauss considered that he was unfit to work because of these conditions.

   Dr Horsley also mentioned a number of physical ailments including lower back, hip and knee pain.  She also mentioned headaches and neck pain and a visual problem which appears to have been a partial infarction of the optic nerve.  Her conclusion was that he does have a capacity to work for more than 8 to 20 hours per week, but with restrictions, and that he would not be able to cope with manual work.  She also noted that his ability to find suitable work was limited by other factors, namely his poor computer skills, his lack of formal qualifications and his geographic location in Ouyen in country Victoria.  She also noted his psychiatric symptoms, but deferred to her psychiatric colleagues with regard to his work capacity.

   In conclusion, it is clear that Mr Munro has at best a limited work capacity with regard to physical conditions and that he is unfit to work because of his anxiety and depression.

   Please do not hesitate to contact me if I can be of further assistance.”

A.2The role of an expert witness

1. A party engaged in litigation or in a matter that may lead to an application to this Tribunal or that has already led to an application may approach an expert for various reasons.  The party may want advice about the matter in issue.  In a worker’s compensation claim, for example, the party may approach the relevant medical expert for advice regarding the extent of an injury and the prognosis for recovery.  In another case, the expert may be asked to explain technical accounting issues so that a party better understands what is involved in the matter and the way in which, or whether, he or she should proceed.  An expert may advise the party and the legal advisers during a hearing, comment on the evidence and suggest issues that they may wish to pursue during cross-examination of witnesses called by the other party or to pursue in some other way.  They are among the legitimate roles of an expert[28] but, if that expert is to be called to give evidence or if that expert’s opinion is to be tendered in evidence, the role changes.  Independence and objectivity become essential.  The expert becomes a witness who may be approached by either party before any hearing takes place.  The expert must not favour either party or be an advocate for either.  Rather, the expert will be an advocate for his or her own opinion but not to the extent that he or she declines to consider alternative opinions or to reconsider his or her opinion when asked to do so in light of factual hypotheses different from those on which he or she formed an opinion.

   [28] See generally, Expert Evidence, Law, Practice, Procedure and Advocacy, Freckelton and Selby, 3^rd edition, 2005, Lawbook Co, Sydney at 4-10

1. The courts have developed a number of principles over the years regarding expert evidence.  Expert evidence is now the subject of the Evidence Act 1995 (Evidence Act) although the principles remain valid.  This Tribunal is not subject to the rules of evidence[29] but the principles are equally applicable for they are relevant in determining whether expert evidence is probative and, if so, the weight that it should be given.[30]  I set out some of these principles in Re JTMJ and Australian Securities and Investments Commission[31] and adopt my summary of them without repeating it here.In order to confine the length of these reasons, I will summarise them and add a couple of others:

   [29] AAT Act, s 33(1)(c) and see also Evidence Act 2005, s 4(1)

   [30] In so far as the expert evidence that is given is opinion evidence, these principles underpin the Draft Guidelines relating to Opinion Evidence issued by the President in October 2008.  Expert non-opinion evidence is recognised in BHP Billiton Iron Ore Pty Ltd v  National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234; (2007) 247 ALR 104; Sundberg and Greenwood JJ; Finkelstein J dissenting; at [185] per Greenwood J.

   [31] [2010] AATA 350 at [47]-[66];

   (1)When reviewing an administrative decision on its merits, the Tribunal’s task is to reach the correct decision according to law and on the evidence or material before it.  If more than one decision is correct, it must use its discretion to select that which is the preferable decision given the particular legislative framework in which the decision is made.[32]

   [32] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 68; 589 per Bowen CJ and Deane J

   (2)The Tribunal must ensure that it follows the rules of procedural fairness.  Therefore, it must ensure that the parties are aware of the material before it and of the issues it is considering and give them an opportunity to present their cases accordingly.[33]

   [33] Administrative Appeals Tribunal Act 1975, s 39 and see also Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601; (2002) 76 ALJR 966 at [81]; 617; 979 per Gaudron J

   (3)The Tribunal is not bound by the rules of evidence[34] but, unless qualified by a particular statutory provision, the Tribunal will observe:

   [34] AAT Act, s 33(1)(c)

   “... the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it ...”[35]

   [35] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 160 per Deane J, with whom Evatt J agreed. When assessing evidence or material before it, the Tribunal often expresses itself in terms of whether the evidence has weight or not or whether it will be given more or less weight. There are occasions, though, on which it will decide that the probative value of evidence or matter is so slight or non-existent that it will not have regard to that evidence or matter. When it decides that the probative value is so slight or non-existent, it will often do so on the basis that the evidence would not be admissible in a court according to the rules of evidence. The rules of evidence generally reflect the views reached by the courts as to the evidence that can be relied on to have probative value.

   (4)Opinion evidence is evidence of “a belief or judgement which seems likely to be true, but which is not based on proof …”.[36]  In a legal context, it is “a conclusion, usually judgmental or debatable, reasoned from facts”[37] and as “an inference from observed and communicable data”.[38] Although Part 3.3 of the Evidence Act provides that such evidence is not admissible to prove the existence of the fact about the existence of which the opinion was expressed,[39] this general rule is subject to certain exceptions. 

   [36] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [37] RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130 per Giles J

   [38] Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75 per Lindgren J citing JH Chadbourn (ed), Wigmore on Evidence  (1978), Vol 7, par 1917.

   [39] Evidence Act, s 76(1)

   (5)One of those exceptions is found in s 79(1) of the Evidence Act:

   “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

   (6)The categories of expert evidence are unlimited[40] in the sense that they are not limited to areas in which a person’s special knowledge or skill is derived from scholastic studies.[41]  As Gaudron J expressed the principle in HG v The Queen:[42]

   [40] Weal v Bottom (1966) 40 ALJR 436 at 439

   [41] “There are many fields in which an expert’s skill does not derive from scholastic studies.  Examples include the practical experience of an Aboriginal tracker …, a mechanic with much practical experience of engines … and even the capacity of a heroin addict to identify a substance as heroin …”; R v Lam, Truong, Duong & Anor [2001] QCA 279; (2001) 121 A Crim R 272 (Qld CA) at [81] per Thomas JA with whom McPherson JA and Chesterman J agreed.

   [42] (1999) 197 CLR 414 at 427

   “The position at common law is that, if relevant, expert or opinion evidence is admissible with respect to matters about which ordinary persons are unable ‘to form a sound judgment … without the assistance of [those] possessing special knowledge or experience … which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.”[43]

   [43] HG v The Queen (1999) 197 CLR 414; 160 ALR 554 at 432, 566; [58] quoting from a judgment of King J in R v Bonython (1984) 38 SASR 45 at 46-47 and see also Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at [4]; 491 per Dixon CJ adopting the notes by JW Smith to Carter v. Boehm 1 Smith L.C., 7th ed. (1876) p. 577, R v Bartlett [1996] 2 VR 687 at 695 (Vic CA) per Winneke P

   (7)An expert witness must be sufficiently independent, have specialised knowledge and base his or her expert opinion on both that specialised knowledge and a relevant factual basis:

   “… If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge.  If the court cannot be sure of that, the evidence is strictly speaking not admissible and, so far as it is admissible, of diminished weight.  And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant and a process of reasoning which went well beyond the field of expertise.”[44]

   [44] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]; 744 per Heydon JA

   (8)The generalisation engaged in by expert witnesses when expressing an opinion in their field of expertise is based on their experience and calls in aid all their training and professional experience.  In doing so, Sir Richard said:

   “… It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide.  This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether that fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. …”[45]

   [45] Quoted in Arnotts Limited v Trade PracticesCommission (1990) 24 FCR 313; 97 ALR 555 at 350; 594

   (9)The way in which a court or tribunal satisfies itself that the opinion is based on specialised knowledge:

   “… would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached.  Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge.  Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge.”[46]

   [46] Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 at [23] per Black CJ, Cooper and Emmett JJ

   (10)     To assist a court or tribunal in satisfying itself, the expert report must:

   “… must be presented in such a way that the court can readily assess whether the requisite correlation between opinions and specialised knowledge is present.

   Proper categorisation of an intermediate proposition depends on reaching an understanding as to the role of that proposition in the reasoning process, its derivation and its relationship with the assumed or accepted facts. In my opinion, it is sufficient under s 79 [of the Evidence Act 1995] for the report to make it plain, in substance and on a fair reading, that a particular proposition has been deduced by a process of inference from the assumed or accepted facts, and that the process of inference involves the application of the expert’s specialised knowledge.  If, as a matter of substance rather than form, a proposition is an inference from the assumed or accepted facts, drawn by the expert with the aid of his or her specialised knowledge, it is potentially admissible under s 79 whether it is introduced by some such words as ‘in my opinion’ or is presented as an assertion of fact.  But if, in substance, a proposition cannot fairly be regarded, directly or indirectly, as an inference from the assumed or accepted facts drawn with the aid of the expert’s specialised knowledge (because, for example, the expert’s reasoning process leading to the proposition has been inadequately disclosed or is non-existent), the proposition is not admissible under s 79 even if it is expressed to be an opinion. …”[47]

   “… What does matter …is that the assumptions upon which the opinion is based are identified and articulated.  Of course, if the assumptions made by the witness turned out to be different to those ultimately found by the Court, the opinion might have little relevance. …”[48]

   (11)Whether there is sufficient parity between the assumptions and the findings of fact made by the Tribunal is ultimately a question of fact for it to decide.[49]

   (12)“The use of an expert witness to filter the facts, asking the witness to hear or read all the evidence and then express factual conclusions, is … illegitimate.  It must be stopped. …”[50]

   (13)“         Obviously, parties will call upon experts whose opinions support their view of the case.  However, it is not appropriate for an expert witness toact as an advocatefor the instructing party, at all costs and professional witnesses should be willing to concede points which whilst not advancing the case of the party engaging them, they believe to be open as a fair and reasonable assessment on the material before them.”[51]

   (14)If evidence given as expert evidence should transgress one or more of these boundaries from time to time, those transgressions do not necessarily render the whole of the evidence inadmissible.  That which does not transgress may properly be regarded as admissible.[52]

   [47] Australian Securities and Investment Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242; at [267]-[268]; 305-306 per Austin J

   [48] Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555 at 351; 595

   [49] See, for example, Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85; 59 ALJR 844 at [9]; 88; …….

   [50] Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555 at 353; 597

   [51] Qantas Airways Limited [2004] ACompT9 at [216] per Goldberg J

   [52] Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555 at 353; 597

A.3The letter of instruction

1. Given the role of an expert witness, the instructions given to him or her and the questions that he or she is asked to address are pivotal in ensuring that the evidence is of the sort expected of an expert witness.  The questions asked must be related to the issues that are raised in the case or at least to some of them.  They must not suggest the answer or expressly or implicitly direct the expert witness in one course rather than another.  In this case, there are several issues on which expert medical evidence might have been sought.[53]  They arise from ss 23 and 24 of the VE Act and include:

   [53] Sections 23 and 24 also raise issues that must be determined on evidence other than medical evidence.  I am not dealing with those issues in my example.

   Issues arising from s 23(1)(b) and 24(1)(b) read with s 28

   (1)what are Mr Munro’s vocational, trade and professional skills, qualifications and experience;

   (2)what are the kinds of work which a person with Mr Munro’s skills, qualifications and experience might reasonably undertake;

   (3)what physical or mental impairment has Mr Munro suffered as a result of his war-caused injuries or war-caused diseases;

   (4)to what degree has the physical or mental impairment referred to in (2) reduced Mr Munro’s capacity to undertake the kinds of remunerative work referred to in (2); and

   (5)is that incapacity of such a nature to, of itself alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 (or 20) hours per week;

   Issues arising from s 23(1)(c) and 24(1)(c) read with ss 23(3) and 24(2)

   (6)by reason of that incapacity referred to in (2), is Mr Munro prevented from continuing to undertake remunerative work that he was undertaking;

   (7)did Mr Munro cease to engage in remunerative work for reasons associated with an incapacity from an injury or disease that was not a war-caused injury or war-caused disease;

   (8)is Mr Munro incapacitated from engaging in remunerative work for some reason other than his incapacity from his war-caused injuries or war-caused diseases.

1. Mr De Marchi’s letter to Dr Sillcock does not raise any of these issues.  He puts to Dr Sillcock that Mr Munro was not capable of seeking to engage in employment and does not ask for her opinion regarding his capacity in the framework required by s 28 for the purposes of ss 23(1)(b) and 24(1)(b).  His suggestion to her that the main issue was Mr Munro’s capacity for work given his educational background, poor computer skills and lack of formal qualification despite his extensive managerial experience is misleading.  While s 28 focuses on Mr Munro’s skills of that sort, it only does so in order to determine the kinds of remunerative work that a person with them might reasonably undertake.  In deciding whether Mr Munro has a reduced capacity to undertake those kinds of remunerative work, regard is had only to the physical or mental impairment he has suffered as a result of his war-caused injuries or war-caused diseases.  Contrary to the impression given by Mr De Marchi’s letter, it is not an open question having regard to all of Mr Munro’s impairments from all injuries and diseases.

1. On receiving Mr De Marchi’s letter, Dr Sillcock answered the issues that he raised.  She cannot be criticised for the fact that she did so, for identifying the legal issues to be addressed is not part of her task or expertise.  She cannot be criticised for the fact that her evidence is not helpful on the basis that it does not address any relevant issue. 

A.4     Dr Sillcock’s evidence

1. As Dr Sillcock said, she has given expert evidence before.  She appeared, however, to feel aggrieved when Ms Casamento asked her questions focused on the areas of her expertise and questioned her regarding her expertise to comment on psychological factors having an impact on Mr Munro’s capacity to work.  I can understand that a professional person may feel uncomfortable in having to justify their expertise in some circumstances but I do not when that person allows him or herself to be called to give evidence as an expert witness.  With her previous experience, it is to be expected that she would either have been asked about them in the past or, at the very least, have been prepared to answer questions about them.  The Draft Guidelines require an expert to include details of the person’s area of knowledge, qualifications and experience.[54]  Mr De Marchi made no mention of having sent Dr Sillcock a copy of the Draft Guidelines as required to do so by [7] of the covering draft memorandum issued by the President.  Perhaps he thought that they are a draft and do not need to be followed.  Whether he would be correct in that thought, I do not know.  What I do know is that the Draft Guidelines are in terms similar to those found in courts in the Federal and State jurisdictions where they are clearly binding.  Mr De Marchi should have been aware of the need to ask Dr Sillcock to give details of her expertise and, for a person such as Dr Sillcock who is experienced in giving expert evidence, so should she.

   [54] Draft Guidelines at [2(a)]

1. Like those in other jurisdictions, the Draft Guidelines ask that the expert set out the details of any facts and assumptions that inform the report and the sources of that factual information in the report as well as the reasons for any opinion that is expressed.[55]  Presumably, Dr Sillcock was not sent the Draft Guidelines or the Federal Court’s Practice Note and was not advised of the need to have regard to it for her report does not address the matters it requires.  In general terms, in order to express a view regarding a person’s work capacity, I would think it necessary to set out the physical or mental disabilities or impairments that have an impact on that person’s capacity to work, the types of work that would be reasonably available to that person given his or her background, education and skills and assessing the former against the latter.  In matters under the VE Act, the issues are a little more complicated but I do not see this sort of analysis in Dr Sillcock’s report or in her oral evidence.

   [55] Draft Guidelines at [2(c) and (d)]

1. In her oral evidence, Dr Sillcock referred to her expertise in assessing a person’s capacity for work when that person suffers from psychological conditions.  In her view, she as an Occupational Physician is in a far better position to assess capacity than a psychiatrist because she has greater knowledge of the workplace.  Apart from the fact that Dr Sillcock did not set out the factual assumptions that she made about the type of work that would suit someone of Mr Munro’s background, she has not set out her factual assumptions about the impairment he has suffered as a result of his war-caused injuries or war-caused diseases.  Mr Munro’s impairment, as opposed to his capacity, is not something that would appear to fall within Dr Sillcock’s area of expertise.  Even if I accept her view that she has a greater knowledge of the workplace than a psychiatrist, I do not accept – and she does not claim – that she has a greater expertise in assessing the impairment suffered by Mr Munro as a result of his Anxiety Disorder, which is a war-caused disease.  Nothing in her report appears to relate to any factual assumptions regarding the impairment Mr Munro has suffered.

1. I will conclude with an observation on the fact that Mr De Marchi sought Dr Sillcock’s opinion on the basis that she did not examine Mr Munro and had access only to the reports of Dr Horsley, an Occupational Physician, and Dr Strauss, an Occupational Psychiatrist.  In essence, her evidence was made up of a summary of their opinions followed by her own assessment formed on the basis of their opinions.  As opinion evidence is hearsay evidence, her evidence was hearsay based on hearsay.  It would not be admissible under the common law for, assuming the expertise of Dr Horsley and Dr Strauss is accepted, it would recognise only their evidence as expert evidence and so within the exception to the rule against hearsay. 

1. If the Evidence Act applied to the Tribunal, which it does not, Dr Sillcock’s evidence would not be admissible as it would offend the opinion rule.  That rule is that “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”[56] It would not come within any of the exceptions and, in particular, would not come within the exception in s 79. Section 79(1) provides:

   “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

In my view, Dr Sillcock’s report and her evidence generally is wholly or substantially based on a summary of the opinions of others.  She supports their conclusions and no doubt uses her knowledge and experience to do so but that is as far as I can take her evidence.  In the absence of her own assessment of the facts or of any clear statement of the factual basis on which Dr Sillcock forms her opinion, I cannot go so far as to say that she has done more than assess the opinions of others and come to a view on her assessment.  That is no different from what the Full Court of the Federal Court railed against in Arnotts Limited v Trade Practices Commission when it said that the practice of using an expert witness to filter the facts, hear or read the evidence and then express factual conclusions must be stopped.[57]

[56] Evidence Act, s 76(1)

[57] See [34(12)] above

A.5     Dr Strauss

1. Mr De Marchi’s letter of instruction to Dr Strauss was more detailed than that to Dr Sillcock but, again, it does not focus the doctor’s attention on the essential issues that I must decide.  In his letter, Mr De Marchi has referred to Mr Munro’s war-caused injuries or war-caused diseases as his “disabilities”.  Dr Strauss had previously seen Mr Munro in 2007 but Mr De Marchi asked him to see Mr Munro again.  He continued:

   “We act for Mr Munro in an appeal to the Administrative Appeals Tribunal against a decision of the Repatriation Commission, which refused to increase his rate of pension for accepted disabilities, including anxiety disorder, to the Special Rate of pension.  He is in possession of pension at 70% of the General Rate.

   Mr Munro believes that his accepted disabilities alone were the cause of his redundancy from work.

   Dr Horsley, Vocational and Rehabilitation Specialist, at the hearing in February 2008, at the AAT, gave evidence, and agreed that from the point of view of physical disabilities, Mr Munro could still be employed, but she would defer assessment of his employment potential in regards to his psychological disabilities to the relevant psychiatrists.

   We also believe that the veteran’s impairment rating should have been 47 points for the psychiatric condition, under GARP V, and certainly no less that [sic] the 38 points allotted to Mr Munro by Dr Christopher Percival in his report dated 8 November 2006.

   We shall be pleased if you will interview Mr Munro, assess his psychiatric condition under GARP V, and provide your opinion as to whether the accepted disabilities alone caused Mr Munro’s retrenchment and affected his ability to work

   We enclose the report of Dr Horsley, and Mr Munro’s work statement.

   …”[58]

   [58] Exhibit H

1. Mr De Marchi has framed his question in terms of Mr Munro’s “accepted disabilities” but has referred only to his Anxiety Disorder.  Given that Dr Strauss is a Psychiatrist, it would be understandable if that condition was the focus of the question.  Dr Strauss has read the question as relating to disabilities within his area of expertise but has not limited himself to the accepted war-caused disease i.e. Anxiety Disorder.  Instead, he has made his own diagnosis of a Generalised Anxiety Disorder and Major Depression.[59]  The two conditions are separate conditions under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR Plus)[60] and are the subject of separate Statements of Principle under the VE Act.  Only Anxiety Disorder has been accepted as war-caused in Mr Munro’s case and yet Dr Strauss has prepared his report on the basis of both conditions.  His mistake is understandable when I read Mr De Marchi’s letter of instructions to Dr Strauss.  The letter refers to “accepted disabilities, including Anxiety Disorder” without mentioning the others.  Dr Strauss, who had prepared an earlier report and had referred to both conditions,[61] is led into thinking that he can refer to those he has diagnosed. 

   [59] Exhibit A at 4

   [60] American Psychiatric Association, 4^th edition, text revision, 2000

   [61] Exhibit C at 9

1. Although he has set out a comprehensive history, Dr Strauss’s opinion is framed in quite broad terms and does not expressly relate the history to his opinion showing how the former leads him to his opinion.  An example is found in Dr Strauss’s answer to Mr De Marchi’s question whether Mr Munro’s accepted disabilities alone caused Mr Munro’s retrenchment:

   “I believe that on the basis of his accepted disabilities alone he is unable to work and his accepted disabilities caused his retrenchment.”[62]

Dr Strauss’s answer is responsive to Mr De Marchi’s question but it is not a question that he should have been asked in its entirety.  Dr Strauss was not in a position to assess whether Mr Munro’s accepted disabilities alone or otherwise “caused Mr Munro’s retrenchment”.  He could have been asked whether, by reason of his incapacity from his Anxiety Disorder, Mr Munro would have been prevented from continuing to undertake remunerative work that he was undertaking.  Dr Strauss is not in a position to know all of the background facts to Mr Munro’s being retrenched and was not in a position to be asked whether Mr Munro’s accepted disabilities alone actually caused his retrenchment.

[62] Exhibit A at 4

B.Should the rate of pension be increased from 70% to 100% from the earlier date?

1. At the hearing, Mr De Marchi did not seem to pursue the contention that had been made on Mr Munro’s behalf before the VRB that the rate of his pension should be increased to 100% with effect from 15 February 2008[63] to 27 June 2009.  That contention was to the effect that Mr Munro suffers incapacity from tension headaches.  As he had not made a separate claim for headaches as a war-caused injury or a war-caused disease, the contention must be based on an assumption that they are a symptom of Mr Munro’s Anxiety Disorder.  No medical evidence attributing his headaches to his Anxiety Disorder was presented to the VRB and I was not given any either.  In the absence of evidence, I am not satisfied that regard should be had to Mr Munro’s headaches in assessing the degree of his incapacity under GARP.  As there is no other basis on which I can reassess the percentage of the General Rate of pension payable to Mr Munro in the period from 15 February 2008 to 27 June 2009, I have decided that the rate must remain at 70% during that period.

   [63] This is a date three months before Mr Munro applied for an increase in his disability pension on 15 May 2008: T documents at 30-40.  I note that Mr Munro applied for an increase in his Disability Pension on a form approved for that purpose under s 15(3)(a).  Sections 21(1) and (3) specify the date on which a determination of an application of that sort takes effect.  It is the date on which a person became eligible to be granted the increased pension but that date can be no earlier than the date on which the application was received at an office of the Department of Veterans’ Affairs (DVA).  Had Mr Munro made a claim for a pension in accordance with s 14(3), s 20(1) does permit the Commission, and so the Tribunal, to specify a date of effect for its determination not earlier than three months before the claim was received at an office of DVA.  Mr Munro has not made such a claim.  Therefore, the date of effect of any determination made in his favour would have been 15 May 2008 and not 15 February 2008.

C.       Should pension be paid at the Special Rate?

1. The case focused on this question.  It is a question that relates to the whole of the period from 15 February 2008 for Mr Munro met the criterion requiring him to have a degree of incapacity from his war-caused injuries or war-caused diseases determined to be at least 70% throughout the period.  That, however, is not the only criterion that is relevant.

C.1Capacity to undertake remunerative work – ss 24(1)(b) and 28(a): Mr Munro’s vocational, trade and professional skills, qualifications and experience

1. Dr Horsley, Dr Strauss and Mr Munro all gave evidence relevant to this issue and there is relevant material in the documentary evidence as well.  On the basis of Mr Munro’s own evidence, and it is confirmed by the history he gave to Dr Horsley, I find that Mr Munro completed his formal education to Year 11.  He has experience in heavy manual work.  Apart from farm work, the particular manual work in which he was engaged was that of loading grain onto rail trucks and covering the filled trucks with a tarpaulin weighing some 40kg.

1. On the same basis, I find that Mr Munro has extensive experience in logistical management involving 15 permanent staff, 12 contractors and between 120 to 170 casual staff, 36 de-centralised work sites and the storage and transport of high volume goods in the form of grain.  He has that experience in an industry in which the volume handled in any season will be dictated by circumstances beyond his control.  Those circumstances included weather and crop disease as well as infestation by vermin such as mice and locusts.  Those same circumstances required him to manage and maintain quality control standards at each of the grain sites. 

1. On the basis of the Position Description for his position as District Manager at Ouyen,[64] I also find that Mr Munro had experience in staff training, promoting a business at the local level and gathering information relevant to the continuation and growth of that business.  On the basis of his own evidence and the history reported by Dr Horsley, I also find that Mr Munro has basic computer skills.  They extend to four finger typing, use of the email and use of the computer programs he was required to use at GrainCorp.

   [64] Exhibit 2 at 76-78

1. In addition to his management skills, Mr Munro also has experience as a farmer growing grain crops.  This finding is based on Mr Munro’s own evidence.  His experience began when he still lived at home and resumed after he returned from National Service until he was 26 years of age.  Although he worked away from the farm after that age, he has continued to let the family farm to another as a share farmer.  He would need to maintain a knowledge of farming to ensure that he is content with the share farming arrangement, to which he has agreed.  He is also experienced, and has the skills, in maintaining his property by undertaking vermin control and maintaining its improvements such as its fencing.  

1. Mr Munro has had some experience as a horse trainer in the past.  His training in the Army was truck driving.  I make these finding on the basis of Dr Strauss’s report.[65]

C.2Capacity to undertake remunerative work – ss 24(1)(b) and 28(b): kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake

[65] Exhibit C at 5

1. There was no evidence specifically addressed to this issue.  Based on what I do have, I find that the kinds of remunerative work which might reasonably be undertaken by a person with Mr Munro’s skills, qualifications and experience include manual labouring work, truck driving, management positions responsible for the movement of goods and/or the supervision of staff and farming.

1. Mr Munro has also been involved in a share farming arrangement for many years.  There is an initial question that I must consider and that is whether share farming can amount to “remunerative work”.  That term is defined to include “any remunerative activity” and so draws in any thing that a person does[66] that is profitable,[67] or that rewards or pays,[68] and so is remunerative. There is a difference between earning income from an investment in, for example, shares or from a term deposit and being involved in a remunerative activity. As the Tribunal said in Re Fahey and Repatriation Commission,[69] it could not “… regard passive investment in shares or, as here, in a deposit of funds with a solicitor by way of a loan secured by first mortgage, as a remunerative ‘activity’.”[70]  It drew a distinction, however, between a passive investment of that sort and the management of an income producing property saying “We agree that the management of an income producing property, such as the active management of a block of flats, could constitute a remunerative activity …”.[71]

   [66] An activity is “… the state of being active or busy … 2 … something that people do, especially for pleasure, interest, exercise, etc …”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [67] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [68] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd

   [69] (1986) 10 ALD 338; 5 AAR 274; Deputy President Todd, Dr Stephenson and Mr Attwood, Members

   [70] (1986) 10 ALD 338; 5 AAR 274 at 342; 278

   [71] (1986) 10 ALD 338; 5 AAR 274 at 342; 278

1. In light of this, I find that a share farming arrangement in which the landowner is required to maintain the property in the sense of carrying out repairs to fences and the like and in managing vermin infestations, is a remunerative activity that a person with Mr Munros’ skills, qualifications and experience might reasonably undertake.

C.3Capacity to undertake remunerative work – ss 24(1)(b) and 28(c): physical or mental impairment suffered by Mr Munro as result of war-caused injuries or war-caused diseases

1. As I have said above, I understand the word “impairment” to refer to a loss, loss in effectiveness or weakening of, or to a deterioration in or damage to a veteran’s body, or part of it, or to a veteran’s mind or intelligence, or part of it.  Mr Munro has given evidence of the effect of his disabilities upon him as have Dr Horsley, Dr Strauss and Dr Chowdhry.  In this section of my reasons, I am concerned only with those disabilities suffered by Mr Munro as a result of his war-caused injuries or war-caused diseases i.e. his Erectile Dysfunction, Anxiety Disorder, Ischaemic Optic Neuropathy Right Eye, Sensorineural Hearing Loss and Solar Keratosis.

1. The expression “as a result of” suggests causation in the sense that one thing is the consequence of another.[72]  On the evidence, I am unable to find that Mr Munro is suffering any impairment as a result of his Sensorineural Hearing Loss and Solar Keratosis.  The medical experts were not asked to address them and Mr Munro has not referred to them in his evidence.  The same is true of Erectile Dysfunction but Dr Horsley has addressed it.  On the basis of the statements in her two reports, I find that Mr Munro is not suffering an impairment as a result of this condition.[73]

   [72] See S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14 (Kearney and Asche JJ, Rice J dissenting) at 20 per Kearney J and see also Asche J at 30

   [73] Exhibit 9 at 3-4 and Exhibit 10 at 3

1. In her earlier report dated 8 August 2007, Dr Horsley referred to Mr Munro’s suffering from blurred vision in his right eye.[74]  She confirmed this in her later report dated 12 February 2010.[75]  I make the finding that Mr Munro is suffering from that impairment to his right eye.

   [74] Exhibit 9 at 6-7

   [75] Exhibit 10 at 5-6

1. As for Mr Munro’s Anxiety Disorder, Dr Horsley reported that he was experiencing panic attacks twice each week as well as severe anxiety on a daily basis.  He was experiencing considerable anxiety at night and was wandering around the house.[76]  In addition, Mr Munro suffers from poor self-esteem and poor self-confidence.[77]  Mr Munro told Dr Strauss that he had been irritable, aggressive and intolerant as well as restless since his service in Vietnam.  This history is consistent with his oral evidence.  These are all changes in Mr Munro’s behaviour and responses and I accept them as impairments resulting from his Generalised Anxiety Disorder.

   [76] Exhibit 10 at 3

   [77] Exhibit 9 at 9

1. Dr Strauss referred also to Mr Munro’s being depressed and, in his later report, said that depression results in part from Mr Munro’s Generalised Anxiety Disorder.[78]  In his oral evidence, Dr Strauss said that Mr Munro’s Major Depression came about because of the worry about losing his job.  He had lost his job partly because he is an anxious man.  In that way, his anxiety and depression are related.  DSM-IV-TR, however, treats the conditions of Generalised Anxiety Disorder and Major Depressive Order as separate conditions with the latter coming under the more general grouping of Mood Disorders.  Dr Strauss himself treated the two conditions as separate conditions.  In view of Dr Strauss’s explanation during the hearing, I am satisfied that depression can also be regarded as an impairment that is a consequence of Mr Munro’s Generalised Anxiety Disorder. 

C.4Capacity to undertake remunerative work – ss 24(1)(b) and 28(c): degree to which physical or mental impairment referred to in C.3 reduced
Mr Munro’s capacity to undertake the remunerative work identified in C.2

[78] Exhibit C at 9

1. The requirement that I assess the “degree to which the physical or mental impairment of … [Mr Munro] as a result of the injury or disease, or both, has reduced his … capacity to undertake the kinds of work …” referred to in C.2 above has caused me a little concern.  The VE Act uses the word “degree” in several different contexts and with several different meanings.  That it does so is generally not a difficulty for the intention is clear.  In those provisions referring to the “degree of incapacity” suffered by a veteran as a result of war-caused injuries or war-caused diseases, it is clear that the reference is to the effects of those injuries or diseases.[79]  That incapacity, and so those effects, is assessed by reference to GARP prepared under s 29 of the VE Act. 

   [79] VE Act, ss 5D(1) and (2)

1. A veteran’s impairment is also a reference to the effects of those injuries or diseases in the sense in which I understand the word “impairment” to be used.  That is, it is a reference to the effects in the sense of a loss, loss in effectiveness or weakening of, or to a deterioration in or damage to a veteran’s body, or part of it, or to a veteran’s mind or intelligence, or part of it.  Section 28(c) requires an assessment of the degree to which the impairment has reduced the veteran’s capacity to undertake remunerative work of the type referred to in s 28(b) and C.2.

1. The reconciliation between the two appears, it seems to me, is found in GARP even though it is used for the assessment of the rate of the General Rate of pension that a veteran may be paid rather than for the purposes of ss 23 and 24.  GARP assesses incapacity by reference to medical impairment and to the effect of a veteran’s war-caused injuries and war-caused diseases on his or her lifestyle.  It uses the term “medical impairment” to cover both the physical loss of, or disturbance to, any body part or system and the resultant functional loss.[80]  The lifestyle effect is “… a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition.”[81] 

   [80] GARP at 5

   [81] GARP at 263

1. It immediately becomes apparent that the reference in s 28(c) to the degree of impairment is a reference to the “amount or extent …”[82] of a veteran’s loss, loss in effectiveness or weakening of, or to a deterioration in or damage to a veteran’s body, or part of it, or to a veteran’s mind or intelligence, or part of it alone. It is a measurement of the loss of the ability or power, and so of capacity,[83] to undertake the kinds of remunerative work referred to in s 28(b) and so in C.2 above.

   [82] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [83] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. Unlike incapacity, the VE Act does not provide any tables by which the degree of a veteran’s physical or mental impairment is assessed.  Dr Strauss assessed the degree of Mr Munro’s impairment as a result of the symptoms from his Generalised Anxiety Disorder and depression in terms of “significantly moderate to moderately severe”.  Mr Munro is not capable of working, Dr Strauss concluded, but his evidence must be read in the context in which it was given.  That context was his understanding of Mr Munro’s work with Graincorp which had brought him into conflict with his supervisor.

1. In relation to physical impairments, Dr Strauss deferred to his medical colleagues practising in those areas.  Dr Horsley identified a number of physical impairments suffered by Mr Munro but none related to his war-caused injuries or war-caused diseases.  They are not relevant, therefore, in assessing the degree to which Mr Munro’s physical or mental impairment has reduced his capacity to undertake the remunerative work identified under s 28(b) and in C.2 above.  There are, therefore, no physical impairments that reduce Mr Munro’s capacity to undertake the remunerative work I have identified in C.2.

1. The medical evidence is not determinative of the issue for I have also Mr Munro’s evidence that he worked at Access Mildura from 29 January 2009 to 3 April 2009.  On the basis of that and on the basis of the records from Access Mildura, I find that the initial contract was for a three month period from 29 January 2009 to 24 April 2009 while the incumbent of the position was on extended sick leave.  There was the possibility of a three month extension but the initial engagement took place on the basis that Mr Munro was a short term replacement for the incumbent until the future employment of the incumbent became known.  Mr Munro’s hours were 22.8 hours per week with 7.6 hours worked on Monday, Thursday and Friday of each week.[84]

   [84] Exhibit 3 at 17-18

1. The position at Access Mildura was described as the Recycling Supervisor and required Mr Munro to work with a team.  On the basis of Mr Munro’s evidence, I find that he was to give the other members of that team, who had a disability on the job training and support, assist them to sustain their employment, ensure quality service to Access Recycling customers and implement relevant disability service standards and quality assurance processes.[85]  I also find that Mr Munro was required to drive the team to the customers’ premises, supervise the collection of discarded cardboard, take the cardboard to the weighbridge at the tip and then on to the recycle centre.  At the end of the day, he had to write invoices for the cardboard and reports as to how the members of the team had performed on that day. 

   [85] Exhibit 3 at 21-22

1. Although he liked the job, he said in giving evidence that he felt anxious.  He went to see his then General Practitioner, Dr Omarjee, who gave him tablets.  Dr Omarjee’s clinical notes reveal that he prescribed Alprax for Mr Munro on 2 March 2009 and Kalma on 6 April 2009.  Both were prescribed while Mr Munro was working at Access Mildura and both are used in the treatment of Generalised Anxiety Disorder.  Mr Munro said that he told Dr Omarjee that he had started to do stupid things with his driving such as driving on the wrong side of the road on one occasion.  He said that Dr Omarjee had told him that he had to make up his own mind whether he continued to work.  Mr Munro experienced headaches, and continues to do so.  He had muscle soreness and found the 100km drive from his home in Ouyen to Mildura taxing.  Even if he had not been required to undertake that drive, he said, he could not keep the job because of his anxiety.  He had really liked the job and had wanted to keep it.  He had suffered drowsiness as a result of the medication that he had taken.  Mr Munro agreed with Ms Casamento that he had told the VRB that he had enjoyed the interaction with the other members of his team and had liked the job.[86] 

   [86] Exhibit 7 at 10

1. When I read Dr Strauss’s evidence with that of Mr Munro’s view of his work, I have come to the view that Mr Munro’s panic attacks, anxiety, poor self-esteem, poor self-confidence, irritability, aggression, intolerance and restlessness as well as his depression render him incapable of undertaking work of the sort that requires him to supervise or interact and work with others on a day to day basis. 

1. On the basis of Dr Strauss’s evidence that Kalma is a mild tranquiliser which can affect concentration and, as a consequence, driving and of Dr Omarjee’s report dated 6 April 2009 to the same effect,[87] I also find that Mr Munro’s poor concentration while he is taking that medication renders him incapable of driving long distances.  Dr Strauss did not consider that Mr Munro’s driving over short distances would be affected.  It follows that Mr Munro’s reduced concentration prevents him from undertaking truck driving.

   [87] T documents at XIX

1. That leaves share farming that I have identified in C.2.  The evidence of Dr Strauss does not satisfy me that Mr Munro does not have the capacity to carry out the maintenance tasks on his farm.  His poor concentration affected only his driving over long distances but not over short distances.  The farm is located near Ouyen.  The work does not require him to socialise or work with others.  Mr Munro’s evidence does not suggest to me that he has found any difficulty with carrying out his tasks on the farm.  He put no time limit on his ability to do them.

C.5Capacity to undertake remunerative work – s 24(1)(b): is Mr Munro’s incapacity of such a nature to, of itself alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?

1. The findings that I have made lead me to the conclusion that Mr Munro’s incapacity from his war-caused injuries or war-caused diseases is of such a nature that, of itself alone, renders him incapable of undertaking remunerative work that requires him to socialise, associate or work with others or that requires him to drive long distances.  It does not render him incapable of undertaking remunerative work that requires him to undertake physical work on his own for periods greater than eight hours or greater than 20 hours per week.

1. That finding leads me to the conclusion that Mr Munro does not satisfy s 24(1)(b) of the VE Act.  As the criteria set out in s 24(1) are cumulative, and not expressed in the alternative, Mr Munro cannot satisfy the section because he does not satisfy the criterion in s 24(1)(b).

C.6Prevention from continuing to undertake remunerative work - s 24(1)(c): remunerative work that Mr Munro was undertaking

1. Despite my conclusion in the previous paragraph, I have considered whether Mr Munro would satisfy s 24(1)(c).  Under s 24(1)(c), I must first identify the “remunerative work that the veteran was undertaking”.  I must do so before turning to the broader question whether Mr Munro’s incapacity from his war-caused injuries or war-caused diseases “prevented [him] from continuing to undertake remunerative work … [he] was undertaking”.  In Sheehy v Repatriation Commission[88] (Sheehy), the Full Court of the Federal Court said:

   “… In our opinion, the words ‘undertake’ and ‘undertaking’ in s 24(1)(c) import the notion of ‘performance’ or of a ‘successful’ or ‘effective’ undertaking of work. …”[89]

   [88] (1996) 137 ALR 223; 41 ALD 205; 23 AAR 126; Wilcox, Whitlam and Lindgren JJ

   [89] (1996) 137 ALR 223; 41 ALD 205; 23 AAR 126 at 228; 209;130

1. The Court noted that the matter had not been considered previously by a Full Court but that its view was consistent with that of Hill J in Birtles v Repatriation Commission.[90]  In so far as the word “continuing” is concerned, it “… does not require that the remunerative work that the veteran is prevented from undertaking be the last remunerative work which he undertook.”[91] 

   [90] [1991] FCA 645; (1991) 33 FCR 290; 105 ALR 359; 24 ALD 545; 14 AAR 497 at [34]; 299; 368; 553; 506

   [91] (1996) 137 ALR 223; 41 ALD 205; 23 AAR 126 at 228; 210; 131

1. In Starcevich v Repatriation Commission,[92] to which the Full Court also referred in Sheehy, Fox J had said:

   “… The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant’s inability to work became complete.  In my opinion, a veterans’ entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether.  In such circumstances, the passage of time from the cessation of work upon which reliance is placed to the veteran’s complete retirement may mean that the other requirement of s 24(1)(c), namely that the veteran’s war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here.”[93]

   [92] (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296; Fox and Jenkinson JJ; Neaves J dissenting

   [93] (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296; at 225-226; 454-455; 301

1. In light of these authorities, the remunerative work that Mr Munro was undertaking included the share farming arrangement I have as a remunerative activity.  It is an activity in which he has engaged for many years.  Mr Munro is not the share farmer but he is the person who owns the farm, which is farmed by the share farmer, and he carries out maintenance on the property.  In return, he receives rent from the sharefarmer.  This is not a situation in which Mr Munro is the passive landlord who is not engaged in the management and maintenance of the property at all.  He is carrying out tasks directed to those matters.  There is no evidence of the agreement between him and the share farmer but, given that he carries out those tasks and that he owns the farm, I am satisfied that his doing so would be part of the arrangement between them.  The rent he receives is as a result of that arrangement.  His activities are directed to maintaining his part of that arrangement and he receives rent in return.  Therefore, his activities must be regarded as remunerative activities and so as remunerative work.

1. The second form of work in which Mr Munro was engaged was that of Area Manager of GrainCorp.  It was remunerative work and continued over some 33 years.  It was a substantial form of remunerative work and, for Mr Munro, a very significant part of his whole life.

1. The third form of work on which Mr Munro relies is that as a Recycling Supervisor with Access Mildura.  On behalf of the Commission, Ms Casamento submitted that it was not work of substance; it was not undertaken successfully or effectively.  Putting his driving to one side, it is Mr Munro’s evidence that he did perform the work both successfully and effectively.  An undated letter from the Chief Executive Officer of Access Mildura addressed to Mr Munro and sent by facsimile to Mr De Marchi’s office and forwarded to the Tribunal on 7 October 2010 refers to Mr Munro’s past duties with the organisation.  He refers to Mr Munro’s suffering a “a couple of anxiety attacks while driving the vehicle” and to this having led to his resigning from his position.  The Chief Executive Officer concludes by saying:

   “… I confirm Maurice that if you had not suffered these anxiety attacks you may have still held a position with Access Mildura.”[94]

   [94] Exhibit D

1. The letter supports the proposition that, apart from the driving duties involved in the position, Mr Munro carried out the duties of the position effectively and successfully.  On Dr Strauss’s view of Mr Munro, his on the job driving should not have been a problem whereas his interaction with people was.  On his evidence, Mr Munro never had the capacity to work as a Reycling Supervisor for he believes that he is totally and permanently incapacitated for work.  Dr Strauss described Mr Munro’s attempt to work at Access Mildura as “unsuccessful”.

1. Even though each would refer to a different aspect of the position that Mr Munro could not carry out, his evidence and that of Dr Strauss is consistent to the extent that he could not carry out all of the duties at Access Mildura even before he started the position.  Therefore, I am satisfied that he could not carry out the work effectively or successfully from the very beginning even if he was able to do so for the first few weeks.  This was not work that was remunerative work that Mr Munro was undertaking within the meaning of s 24(1)(c).

C.7Prevention from continuing to undertake remunerative work - s 24(1)(c): whether Mr Munro prevented from continuing to undertake remunerative work identified in C.6 by reason of his incapacity from war-caused conditions

1. I have already found that Mr Munro’s war-caused injuries or war-caused diseases leave him incapable of undertaking work of the sort that requires him to supervise or interact and work with others on a day to day basis and that requires him to drive long distances.  They do not prevent him from undertaking physical work.

1. In view of that, I am satisfied that Mr Munro’s incapacity from his war-caused injuries or diseases, prevented him from continuing to work as an Area Manager for GrainCorp.  I am not satisfied that his incapacity prevents him from continuing to undertake the remunerative activity in which he is engaged with the sharefarmer.  That is a remunerative activity involving physical activity and I have found that his physical impairments do not result from a war-caused injury or war-caused disease.

1. If I am incorrect and Mr Munro’s work with Access Mildura was remunerative work of the sort that comes within s 24(1)(c), I am satisfied that Mr Munro’s incapacity from his war-caused injuries or diseases, prevented him from continuing that work.  The position required him to interact and associate with as well as supervise others.  He did not have the capacity to do that because of the panic attacks, anxiety, poor self-esteem, poor self-confidence, irritability, aggression, intolerance and restlessness from which he suffered as well as his depression.

C.8Prevention from continuing to undertake remunerative work - s 24(1)(c): whether Mr Munro ceased to engage in that remunerative work for reasons other than his incapacity from war-caused conditions

1. In view of my findings under C.6 and C.7, I need consider only Mr Munro’s remunerative work with GrainCorp but I will consider also his work with Access Mildura lest it be properly regarded as remunerative work within the meaning of s 24(1)(c).  He was not prevented from continuing to carry out his remunerative work under the share farming arrangement and so that does not require further consideration.

1. I understand that Mr Munro attributes the loss of his position with GrainCorp to his anxiety and, as a consequence, to his being intolerant and irritable.  His evidence was that he clashed with his supervisor and I accept that was so.  I accept that he was not shy about putting his views forward in meetings with management and would become very frustrated about management decisions that he felt were taken without having proper regard to the future needs of the company.  This brought him into conflict with his supervisor and they had at least one exchange that was somewhat heated. 

1. I accept Mr Munro’s evidence that he did a good job during the years he worked for GrainCorp.  That he did his job in a way that GrainCorp found satisfactory is supported by the fact that it paid him a bonus each year.  It is also supported by the fact that it asked him to stay on for another two or three months after he was told that he was retrenched in order to handle the harvest.  That action was inconsistent with the actions of an employer who finds an employee’s directness unacceptable or disruptive to management. 

1. The fact that GrainCorp did ask Mr Munro to stay on in this way lends support to the view that it could not find a position for Mr Munro when it restructured.  Its letter to Mr Munro is couched in terms of a redundancy following a restructuring within its storage and handling area and of there being no suitable alternative positions available.  That letter, together with its asking Mr Munro to remain for another two or three months, leads me to find that his redundancy was genuinely the result of a restructuring of the positions.  GrainCorp was not taking the opportunity presented by the restructure to rid itself of a querulous employee. 

1. I am further supported in my conclusion by the letter written by GrainCorp to the Department of Veterans’ Affairs.[95]  It explains the extent of the restructure and its consequences both for those formerly holding certain positions, including that of Area Manager, and for the company.  For the company, it led to the elimination of a level of management being Area Managers.  GrainCorp promoted five Area Managers to the more senior role of Regional Manager in charge of a region.  It offered 21 Area Managers less senior roles as Grain Service Managers each responsible for one to three sites.  The alternative offer was that they be made redundant.  Of the 21, 16 accepted the less senior role and five, including Mr Munro, accepted redundancy.  GrainCorp decided not to offer Mr Munro the more senior role because he “… did not possess the skills and aptitude for the newly created and more senior role of regional manager”.[96]  There is no suggestion that any of the five were troublemakers and they, including Mr Munro, received the same offer as 16 others.

   [95] T documents at XVIIa-XVIII

   [96] T documents at XVIII

1. In view of that finding, I have also found that Mr Munro was not prevented from continuing to undertake his remunerative work as an Area Manager at GrainCorp by reason of his incapacity from his war-caused injuries or war-caused diseases.  He was prevented from continuing to undertake it by reason of being retrenched from GrainCorp.  He was not prevented from continuing to undertake the remunerative work by reason of his incapacity alone.

1. If Mr Munro’s job with Access Mildura should be regarded as remunerative work, I find that he was not prevented from continuing to undertake it only by reason of his incapacity from his war-caused injury or war-caused disease.  Certainly, he resigned because of the symptoms he was suffering from his Generalised Anxiety Disorder but he did so on 3 April 2009.[97]  That was only two weeks before his contract was due to end in any event.

   [97] Exhibit 3 at 2

1. In note that the Chief Executive Officer of Access Mildura said that, Mr Munro might have still held the position had he not suffered from anxiety attacks.  I do not place much weight on this letter at all.  It must be read in the context of the terms of Mr Munro’s engagement by Access Mildura.  The engagement was for a fixed term of three months.  Any extension was dependent on other factors including the return or otherwise from sick leave of the person who held the position substantively.  The position was no more than a temporary position.  The Chief Executive Officer’s reference to the fact that Mr Munro might still have held a position with Access Mildura does no more than allude to the possibility[98] that he might have had he not suffered from the anxiety attacks.  It does not convert a temporary job into a job that is expected to continue into the future.  Mr Munro resigned from the position on 3 April 2009 but his contract would have come to an end in any event on 24 April 2009.  He was prevented from continuing any remunerative work he undertook with Access Mildura after 24 April 2009 by reason of the fact that the contract had come to an end.  I am not satisfied on the evidence that there was any suggestion that it would be continued past that date.  Whatever role his anxiety attacks played, Mr Munro was not prevented from continuing to undertake that work by reason of them alone.

C.9Ameliorating provision - s 24(2)(b): whether genuinely seeking to engage in remunerative work

[98] The word “may” is used to “express possibility”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. The provisions of s 24(2)(b) of the VE Act have been described as ameliorating those in s 24(2) when a veteran has not attained the age of 65 years.  Where incapacity is the substantial cause of a veteran’s inability to obtain remunerative work, the veteran has been genuinely seeking remunerative work and would, but for the incapacity, be continuing to do so, the veteran is treated as having been prevented by reason of incapacity from continuing to undertake remunerative work the he or she was undertaking.

1. Mr Munro, I find, kept a diary of his activities from February 2006 to April 2009.[99]  It records his having applied for four jobs in February 2006, one in March 2006 and two at unspecified times.  The entries disclose a range of physical activities such as gardening, work on the farm and gardening at a rental property.  No mention is made of looking for work.  Mr Munro, however, also provided copies of advertisements and of responses from a number of potential employers.  He applied for several of those positions between April and June 2008.[100]  The next group of applications were made in November and December 2008.[101]

   [99] T documents at LXII-LXXV

   [100] T documents at XXI-XLI

   [101] T documents at XLII-LXI

1. Ms Casamento drew my attention to the way in which the first and third those three groups of applications preceded Mr Munro’s attendance at hearings of the VRB.  Those hearings were held in relation to previous reviews by the VRB on 23 February 2007[102] and 17 April 2009.  The second group followed the decision of a differently constituted Tribunal delivered on 26 February 2008 following a hearing on 1 February 2008[103] and preceding the second VRB hearing on 17 April 2009.[104]  When looked at in that light, the applications could appear to have been made purely to enhance the possibility of a successful outcome at the VRB rather than with any genuine intention to seek remunerative work.  I must, however, look at more than the coincidence of their timing.

   [102] Exhibit 6

   [103] T documents at 28

   [104] Exhibit 7

1. I have been given copies of the advertisements but not of Mr Munro’s applications.  One advertisement gave only a telephone number and Mr Munro’s note next to it leads me to conclude that he made that application by telephone.  Only one of Mr Munro’s applications bore fruit and that was with Access Mildura.  The fact that it did and he accepted it is not determinative of the genuineness of Mr Munro’s seeking to obtain remunerative work.[105]  In this case and having heard Mr Munro, I accept that he was genuine in his efforts to seek remunerative work.

   [105] Leane v Repatriation Commission [2004] FCAFC 83; (1984) 81 ALD 625 at [35]; 634; Emmett, Conti and Selway JJ

1. The next question that I must consider under s 24(2)(b) is whether Mr Munro’s incapacity is the substantial cause of his inability to obtain that remunerative work.  I have some responses from potential employers but they give no reasons for not favouring Mr Munro’s applications.  Mr Munro’s notes next to the advertisements do not reveal any reasons he was given.  The advertisements for some of the positions suggest that they might have required Mr Munro to work as a member of a team if he were successful.  I refer, for example, to the advertisement for a Ranger.[106]  Whether he would have been required to work with them or whether the reference to a “team” was intended more loosely and he would have worked alone is not to be known.  Whether the employer knew of Mr Munro’s incapacity and rejected his application on that basis is not apparent to me on the material that I have.  On the evidence, I am not satisfied that Mr Munro’s incapacity is a substantial cause of his inability to obtain remunerative work.  It follows that the ameliorative provisions of s 24(2)(b) do not apply and I am not required to treat Mr Munro as having been prevented by reason of incapacity from continuing to undertake remunerative work that he was undertaking. 

   [106] T documents at XLI

C.10Loss of salary or wages, or of earnings – ss 24(1)(c) and 24(2)(a)

1. In view of this conclusion, I find that Mr Munro does not satisfy the criterion in s 24(1)(c).  By virtue of s 24(2)(a), he cannot be taken to be suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he were free of incapacity from his war-caused injuries or war-caused diseases.  That arises from my finding that he has ceased to engage in remunerative work for reasons other than his incapacity from his war-caused injuries or war-caused diseases.

C.11    Criteria in ss 24(1)(b) and (c) not met

1. It follows from my findings that I am not satisfied that Mr Munro has satisfied either ss 24(1)(b) or (c) of the VE Act at any time during the assessment period.  As a consequence, he is not entitled to a disability pension at the Special Rate under s 24.

D.Pension at the Intermediate Rate

1. Apart from the variation between the hours that a veteran is capable of working or not working, the criteria in ss 23(1)(b) and (c) and s 24(2)(b) are in substantively similar terms.  The findings of fact I have made in reviewing the Commission’s decision regarding Mr Munro’s application for disability pension at the Special Rate are equally applicable to my review of its decision regarding his application for a pension at the Intermediate Rate.  I have already referred to his not being prevented from working 20 hours per week and so not meeting the criterion specified in s 23(2)(b).  I have no evidence that would enable me to have regard to s 23(2)(a) for I have no evidence regarding the time, excluding overtime, ordinarily worked by persons engaged in work of the kind Mr Munro would have been undertaking within the meaning of s 23(1)(b).

1. For the reasons I have given, I:

   1.note that the Repatriation Commission has increased the rate at which disability pension is paid to Mr Munro to 100% of the General Rate with effect from 28 June 2009; and

   2.otherwise affirm the decision of the Repatriation Commission dated 19 June 2009 and affirmed by the Veterans’ Review Board on 17 April 2009.

I certify that the one hundred and two paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:      ....................................................................
Leah Berardi, Associate

Dates of Hearing  31 August 2010 and
22 October 2010

Date of Decision  24 November 2010

Solicitor for the Applicant  Mr D De Marchi

De Marchi & Associates

Advocate for the Respondent  Ms R Casamento