Rana, R. v Commonwealth of Australia

[1991] FCA 83

JUDGMENT NO. /?.!.-

IN THE F E D E W COURT OF AUSTRALIA	)
SOUTH AUSTRALIAN DISTRICT REGISTRY )	)
)
GENEFUG DIVISION	) No. SG5 of 1991
BETWEEN: RANJIT RANA

Applicant

- and -

COHMONWEALTH OF AUSTRALIA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Coram: von Doussa J.
28 February 1991

This is an application for extension of time within which an appeal to this Court may be instituted against a decision of the Administrative Appeals Tribunal. The decision of the Tribunal was given on 27 April 1988, and the application for extension of time was not filed until 24 January 1991, that is more than two and a half years out of time.

(a)	not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and
(b)	in such manner as is prescribed by rules of court
made under the Federal Court of Australia Act 1976."
Section 44(2A) of the Administrative A P D ~ ~ ~ s	Tribunal Act

1975 provides :

"An appeal by a person under subsection (1) or (2) shall

be instituted:

The present application is brought under para.(a) of that Sub- section. On an application for extension of time under that paragraph it is necessary for the court to consider two things. First, it must consider the reasons for the delay and the excuse for the delay. The court must be satisfied that there is sufficient reason and excuse to justify allowing the applicant to appeal beyond the time set down by the statute.

The second question is whether the applicant has demonstrated that the appeal may have sufficient prospects of success to make it just that he should be allowed to proceed with it.

In a document entitled Notice of Appeal which the applicant filed with the application for an extension of time, he sought to identify a number of questions of law.

The applicant represented himself before the Administrative Appeals Tribunal and is representing himself in	these proceedings. As argument from the applicant this
morning has indicated, he is well aware of the fact that this Court can only entertain an appeal on a question of law and has no jurisdiction to reverse a finding of pure fact.
Not each of the so called questions of law posed by the notice of appeal has been argued this morning. Only two broad issues have been raised by the applicant. The first is that

if he were granted leave to appeal, he would adduce fresh evidence on the hearing of the appeal, and the second concerns questions of alleged bias on the part of two members of the Administrative Appeals Tribunal. It will be necessary to consider these matters separately.

The new evidence which the applicant seeks to adduce would, on the applicant's case, cause a Tribunal properly instructed to reach different conclusions of fact to those conclusions which were reached on the evidence presented. It seems to me that there is a fundamental misconception in the applicant's case at that point, as an appeal lies to this Court only on a question of law.

In my view, an appeal based on new evidence does not raise a question of law. However, I do not finally decide that question, which has not been argued. I propose to accept for the purposes of the argument, that new evidence could be

v

sufficient in itself to justify an appeal. I propose to

that, upon examination, the information which is advanced as	approach the application on that footing as it seems to me
new evidence would not bring about any different result.
Where an appeal is based on new evidence, it is necessary that the appellant establish three things; firstly, that the new evidence could not have been ascertained by the appellant with reasonable diligence at the time of the original trial; secondly, that the new evidence, had it been admitted at the

trial, would probably have had a material bearing on the outcome of the case; and thirdly, that the evidence is itself credible, that is, it is evidence which is capable of being believed.

In the instant case, the new evidence which the applicant seeks to adduce is summarised conveniently in two reports that the court has received from him in support of his argument this morning. The first is a report from an anthropologist,

Mr John Mellowship, which is dated 17 February 1990 and the

second is a report from Dr Metzer, an applied psychologist,
dated 17 September 1990.

By way of background, the applicant who was born and raised in Nepal, complains that he was stopped in the course of his presentation of the case before the Administrative Appeals Tribunal from adequately leading information about his Nepalese culture, which he says is important to an understanding of his behaviour. The new information which he

now seeks to adduce, would provide that information about his	culture and about behavioural traits of a Nepalese person of
his background and bearing.
Mr Mellowship has conducted research into the Nepalese culture, and associated considerations which would confront a Nepalese person seeking to assimilate himself into Australian society. That report from Mr Mellowship was made available, along with many other reports, to Dr Metzer, and Dr Metzer has

sought to utilise that information in interpreting the present
and past behaviour of the applicant.

It may be accepted that the information in the two reports is credible in the sense required for new evidence to be admitted on appeal. For the purposes of the argument it may also be accepted that the evidence is new, in the sense at least that these two reports were not available in 1988 at the time of the hearing before the Administrative Appeals Tribunal, and could not have been available to the applicant with reasonable diligence, because, in the case of Mr Mellowship, his research was still at an early stage, and in the case of Dr Metzer, the opinion which he expresses is based in part on events which have occurred since 1988.

The real question, however, is whether the admission of the information in those two reports would probably have material bearing on the outcome of the case. It is necessary to briefly refer to the nature of the case that was before the

contained in the new reprts. The application to the

Tribunal and then to look at the information and opinions

Administrative Appeals Tribunal was for the review of two determinations made by a delegate of the Commissioner for Employees' Compensation on 9 October 1985 pursuant to the Compensation (Commonwealth Government Em~lovees\ Act 1971. The first determination, which was made pursuant to sub.ss.29(1) and (2) of the Act, was that the applicant suffered from a disease, namely adjustment disorder, to which his employment was a contributing factor and that the Department of Defence was liable to pay compensation up to and including 11 April 1985. The second determination, pursuant to sub.s.41(1) of the Act was that the delegate was unable to find that any loss of capacity of the applicant to engage in sexual intercourse was due to employment with the Department of Defence. The reference to the Department of Defence arises as the relevant employment of the applicant was as a member of the armed forces in Australia.

The Tribunal heard evidence over a number of days and prepared detailed reasons which outline at great length the background of the applicant, including many aspects of his cultural background and a host of unusual occurrences which have befallen him, particularly since his move to Australia. The Tribunal summarised the medical evidence as it had been led before it from three psychiatrists in this way :

"97. Turning now to the medical evidence. The medical

evidence adduced at the hearing in relation to the first claim of adjustment disorder consisted of evidence from Dr Kutlaca, Dr Hoff and Dr De Pasquale. Whilst there

were certain differences of opinion between the three	psychiatrists, all three were generally in agreement that
the applicant may well have suffered from an aggravation of a psychiatric condition as a result of his Anny service. There was a divergence of opinion as to the nature of the applicant's psychiatric condition and the period of incapacity arising from that aggravation."

The Tribunal then expressed its preference for the evidence of Dr Hoff and Dr Kutlaca and proceeded to make a number of findings :

"102. The Tribunal finds the applicant had a personality disorder prior to his coming to Australia. This disorder was not of high order but the stresses of coming to a new country, a marriage that was clearly deteriorating and alienating to both parties, his self-consciousness about his noble Nepalese background contrasting with the irreverent and sometimes racist Australian environment, would have laid a vulnerable foundation which was further aggravated by the conditions of his Army service previously described. These stresses were further magnified by the eventual breakdown of his marriage and his later inability to have access to his child. All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which the Army service was but one component.

103. The Tribunal does not consider that the Army service caused the applicant's personality disorder or adjustment disorder, or reactive depression but finds that such adjustment disorder and reactive depression were aggravated by the conditions of his employment.

104. However, the Tribunal is not persuaded that since April 1985, the applicant has continued to suffer from an aggravation of an adjustment disorder or reactive depression due to his Army service. Certainly the applicant's employment with the Army was a contributing factor to the aggravation of this disorder within the meaning of s.29 of the Act. But in accepting the medical evidence of Dr Kutlaca and Dr Hoff, the Tribunal finds any continuance symptomatic of a disorder to be probably the result of other life stress factors currently operating and not those relating to the applicant's period of Army service."

Then a further important finding of fact was made at para.107:

"107. Further, pursuant to ss.25 and 26 of the Act, for

compensable, the applicant must suffer a loss of earning	an injury (in this case the aggravation) to be
capacity as a result of the injury. The Tribunal is not of the view that the applicant has been incapacitated for work as a result of the aggravation even if it were found that the aggravation of his adjustment disorder continued after April 1985. The applicant has been capable of performing work at various times since April 1985, albeit sporadically and with some personal difficulty. But the Tribunal notes that even prior to his Army employment, the applicant had not been able to sustain other than temporary casual employment, and we can only suspect that this may well have been his pattern of employment whether or not he had been employed in the Army."
Those are the background findings of the Tribunal. It is

those findings which the applicant says would have been different if he had been able to place before the Tribunal the new information contained in the two reports of Mr Mellowship and Dr Metzer.

The report of Mr Mellowship summarises his conclusions about Nepalese culture. It is a report that was prepared for the purposes of and for the use in an application in the Family Court of Australia by the applicant to gain access to his daughter. The report seeks to argue that by relying on western stereotypes, the psychiatrists who have examined the applicant from time to time have misdiagnosed him as suffering abnormalities of one kind or another to which labels have been attached, whereas his behaviour which the psychiatrists have criticised is, in relevant respects, normal according to his culture. In short, Mr Mellowship argues that the applicant has been misunderstood. That, as I understood the applicant, was the real point that he was endeavouring to make this morning. He believes that the conclusions of the Tribunal are

not adequately developed before the Tribunal.	in error because the importance of these cultural matters was
The line of argument presented by Mr Mellowship could be very helpful to the applicant in the Family Court in supporting his application for access, but in my view it helps him not at all in a claim for compensation. The very basis of his claim for compensation is that by reason of the influence of his employment he developed an abnormality of some kind which, in turn, brought about an incapacity for work that is compensable. The effect of VC Mellowship's report is to deny the abnormality.
The report of Dr Metzer was prepared following a reference of the applicant to him in June 1990 for advice on an abnormal pain reaction resulting from an assault which the applicant suffered on 19 April 1989. The report seems to have been written primarily for the purposes of litigation arising out of that event.
In the course of developing his argument before this Court, the applicant drew attention to the fact that the psychiatrists in their evidence before the Tribunal referred to a manual known as DSM3, which is, in full, the American Psychiatric Association Diagnostic and Statistical Manual, edition 3. The applicant's complaints are two-fold about that document. First, he says that it is based on western standards and hence the use of that standard could result in
relevant behaviour was normal according to his culture. him being diagnosed as suffering an abnormality, whereas the
That's the very point which has already been discussed in relation to Yf Mellowship. The second is that DSM3 has now been superseded by a revised edition known as DSM3R, and had the doctors who gave evidence before the Tribunal applied the standard in DSM3R instead of DSM3 they would have come to a different conclusion. However, it appears from Dr Metzer's report that reference to DSM3R would make no material difference to the outcome of the proceedings. Dr Metzer in the course of his report, makes the observation that one of the limitations of DSM3R in the categorisation of mental disorders is that it pertains generally to western culture. He develops that point, and it must be borne in mind that he had Mr Mellowship's report before him for the purposes of doing so. His report continues :

"While not negating important aversive and traumatic incidents in his past, and their role in his present plight, it seems to me that the unusualness of Mr. Rana's actions is better explained by examining the contextual and cultural nature than by attempting a DSM111-R categorization.

He certainly seems to have suffered, but suffered from what? I think that in Australia it has been cultural and religious alienation and that his anger, frustration and depression are related to that in no small measure. It may well be the case that assimilation to a very different culture may never be possible, and with a very small Nepalese community in Adelaide not being able to provide appropriate sociocultural backup, these immigrants may perpetually suffer the effects of alienation.

To be sure, his complaint of leg pain appears to be a conversion reaction, the anxiety about buses and Government buildings appears to be generalised from the earlier traumatic incidents he suffered on a bus, and in

appear to be related to his sexual abuse as a child.	Police and Army buildings, and his relationship problems
In this case, I am not at all confident of making these connections unequivocally."

In my view, the admission of that expert opinion into the totality of information before the Tribunal would not as a matter of probability have had any bearing upon the outcome of the proceedings. The opinion provides no reason to question the conclusions reached by the Tribunal in para.104 of its reasons. Furthermore the new evidence does not question at all the conclusions reached in para.107 of the Tribunal's reasons which are fatal to the claim for compensation. I consider the applicant has failed altogether to establish on the basis of the fresh evidence which he seeks to adduce that if leave to appeal were granted that this appeal would have any prospect of success.

The other matter upon which he seeks leave to appeal relates to the alleged bias of two members of the Tribunal. The information which the applicant has asserted in argument in support of this complaint, although not backed up in an appropriate way by affidavit, is that prior to the Tribunal embarking upon the hearing of the review application in question, one member of the Tribunal had conducted a directions hearing in the matter of "Rana against the Director of Social Security", and that another member of the Tribunal, the Deputy President, had conducted a directions hearing in a Freedom of Information Act matter.

In neither case did the matter before the relevant member proceed beyond a directions hearing. In the first of the matters, the Director withdrew so that the applicant in effect succeeded, or as he said in evidence before the Tribunal itself, "won" those proceedings.

In the other matter, the information sought was duly provided so in a sense he was successful there. It is impossible in my view to say that given those facts, and no more are asserted, that there could be any reasonable apprehension of bias on the part of either member of the Tribunal. However, that is not the only reason why leave should not be granted on that ground. The matters of alleged bias were known to the applicant when the proceedings started before the Tribunal. No complaint was made by him about the constitution of the Tribunal. The failure to make a complaint in normal circumstances would be fatal. The applicant, however, says he was not aware of his rights at that stage, and hence he made no complaint. Giving him the benefit of the doubt on that point, it remains necessary for him to explain why there has been a delay thereafter of some two and a half years before the point is raised.

No information is offered to explain that delay. It

seems to me it is so long it could not satisfactorily be

explained.	The Administrative ADDealS Tribunal Act in 5 . 4 4
provides a time limit for a very good reason.	It is important
members of the community and administrative bodies forming	in the ordinary course of things that disputation between
part of government be brought to finality. The Administrative A D D ~ ~ S Tribunal Act gives a party who is dissatisfied with an administrative decision the right to have a full review. Having exercised that right the Act discloses the intention that, subject to questions of law against which an appeal may lie, the decision of the Tribunal is to be final. To extend the time for an appeal on a question of law by a period
exceeding two and a half years would require proof of most exceptional circumstances to explain the delay and to overcome the prima facie position that an appeal should be instituted within 28 days. No evidence has been advanced in this case which would justify extending time to the extent necessary to permit the argument in relation to alleged bias.
In my opinion the application for an extension of time to appeal must be refused. The order of the court is that the application be dismissed with costs.

I certify that this and the

preceding pages are a true copy of the Reasons for Judgment of M r Justice von Doussa

Associate: plc.Ce J&di-c.',P&.

Dated: 2% r& 17

Applicant appeared for himself

Counsel for respondent	: M r R A Cameron
Solicitor for respondent	: Australian Government

Solicitor

Date of hearing : 28 February 1991