FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Sharp [2017] FCA 350
Appeal from: Sharp and Repatriation Commission [2016] AATA 719 File number(s): NSD 1800 of 2016 Judge(s): PERRY J Date of judgment: 4 April 2017 Catchwords: DEFENCE – Veterans’ entitlements – appeal from decision of Administrative Appeals Tribunal – whether respondent prevented from engaging in remunerative work by defence- injuries alone – whether Tribunal misconstrued the “alone” test under ss 23 and 24, Veterans Entitlements Act 1986 (Cth) by limiting its consideration to diagnosed medical conditions – whether Tribunal failed to consider respondent’s substance abuse disorder as a causative factor for incapacity to undertake remunerative work – whether Tribunal’s findings were illogical or irrational – whether Tribunal failed to provide reasons Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Veterans’ Entitlements Act 1986 (Cth) ss 5Q(1A), 15, 19, 22, 23, 24, 68, 70(5), 73
Cases cited: Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666
Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10
Smith v Repatriation Commission [2014] FCAFC 53l; (2014) 220 FCR 452
Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Date of hearing: 21 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 71 Counsel for the Appellant: Ms C Dowsett Solicitor for the Appellant: Sparke Helmore Lawyers Counsel for the Respondent: Mr PJ Hanks QC and Ms F Gordon Solicitor for the Respondent: KCI Lawyers ORDERS
NSD 1800 of 2016 BETWEEN: REPATRIATION COMMISSION
Appellant
AND: BRIAN SHARP
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
4 APRIL 2017
THE COURT ORDERS THAT:
1.The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.
2.Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 THE STATUTORY SCHEME
[7]
2.1 Provisions regarding the entitlement to pensions at different rates
[7]
2.2 The alone test in sections 23 and 24
[18]
3 THE DECISION OF THE AAT
[24]
4 CONSIDERATION
[36]
4.1 The issues
[36]
4.2 Question of Law 1: alleged misconstruction of the alone test in limiting the consideration to diagnosed medical conditions
[38]
4.2.1 The Commission’s submissions
[38]
4.2.2 The Commission’s and Mr Sharp’s respective positions before the AAT
[39]
4.2.3 Did the AAT…
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- Repatriation Commission v Sharp [2017] FCA 350
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- [2017] FCA 350
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CaseChat Overview and Summary
The court examined the AAT's interpretation of the statutory test and its consideration of the relevant evidence. It noted that the AAT's reasons must be interpreted in context and that the court should not focus on minor linguistic issues or phrasing that could be perceived as errors. The court found that the AAT had appropriately considered the evidence and the submissions made by the parties. Regarding the substance abuse disorder, the court held that the AAT had not erred in law by not explicitly addressing this as a distinct condition since it was implicit in their overall assessment. The court also concluded that the AAT's findings were rational and that the reasons provided were sufficient.
The Federal Court dismissed the appeal brought by the Repatriation Commission. The court held that the AAT's interpretation of the statutory test and its consideration of the evidence were correct. The court found no basis to conclude that the AAT had failed to address relevant submissions or provide adequate reasons. Consequently, the appeal was dismissed, and the orders included the dismissal of the appeal and the reservation of costs for later determination.
Orders
Orders of the court
1. The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.
2. Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Commission’s position with respect to each of these questions was elaborated upon in the grounds contained in the further amended notice of appeal. Ultimately the answer to each question turns upon the proper construction of the AAT’s reasons. In this regard it is important to bear in mind the proper approach to reading the reasons of an administrative decision-maker, as explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272: When the Full Court referred to “beneficial construction” [of the delegate’s reasons], it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neeves, French and Cooper JJ)… said that a court should not be “concerned with looseness in the language… nor with unhappy phrasing” of the reasons of an administrative decision maker. The Court continued: “the reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.”These propositions are well settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.4.2 Question of Law 1: alleged misconstruction of the alone test in limiting the consideration to diagnosed medical conditions4.2.1The Commission’s submissions First, the Commission contended that the AAT failed to consider whether the inappropriate consumption of alcohol was a factor preventing or contributing to preventing Mr Sharp from continuing to undertake the relevant remunerative work irrespective of whether there was a “diagnostic label” for the alcohol dependence, particularly given that Mr Sharp’s inappropriate consumption of alcohol was accepted by him and by the AAT at [62] of its reasons (ground 1, further amended notice of appeal). As an aspect of this, the Commission submitted that, despite having regard to the evidence relevant to the presence of a substance abuse disorder, the AAT “did not make any express findings in response to the Repatriation Commission’s submissions that Mr Sharp suffered from a discrete, non-accepted disease, which contributed to preventing him from continuing to engage in remunerative work.” As such, the Commission contended that the AAT erred in law in failing to deal with “a submission seriously advanced by a party relevant to the issues before the Tribunal and worthy of consideration”: Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209 at [69]; see also Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666 (Rand) at [30] (Flick J) and, by analogy, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Dranichnikov) (holding that it is a jurisdictional error to fail to address “a substantial, clearly articulated argument relying upon established facts”,) and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593. On the other hand, as Flick J explained in Rand at [32], “[a] party cannot, obviously enough, seek to transform a submission which was perhaps only obliquely or inferentially advanced into a submission as one being ‘worthy of serious consideration’ or as one which was ‘seriously advanced’ by seeking to characterise it on appeal from the Tribunal as a “central contention”.”4.2.2The Commission’s and Mr Sharp’s respective positions before the AAT