Sleep v Repatriation Commission
[2003] FCAFC 304
•19 DECEMBER 2003
FEDERAL COURT OF AUSTRALIA
Sleep v Repatriation Commission [2003] FCAFC 304
KENNETH JOHN SLEEP v REPATRIATION COMMISSION
S 291 OF 2002
CARR, FINN & SUNDBERG JJ
19 DECEMBER 2003
CANBERRA (HEARD IN ADELAIDE)
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 291 OF 2002
BETWEEN:
KENNETH JOHN SLEEP
APPELLANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
CARR, FINN & SUNDBERG JJ
DATE OF ORDER:
19 DECEMBER 2003
WHERE MADE:
CANBERRA (HEARD IN ADELAIDE)
THE COURT ORDERS THAT:
- Leave be granted to the appellant for an extension of time in which to file and serve a Notice of Appeal.
- The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 291 OF 2002
BETWEEN:
KENNETH JOHN SLEEP
APPELLANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
CARR, FINN & SUNDBERG JJ
DATE:
19 DECEMBER 2003
PLACE:
CANBERRA (HEARD IN ADELAIDE)
REASONS FOR JUDGMENT
THE COURT:
The applicant/appellant has applied for an extension of time in which to file and serve a Notice of Appeal. That application is not opposed by the respondent. We grant leave so as to facilitate the final resolution of this matter.
Mr Sleep was an unsuccessful applicant for an “Attendant allowance” under s 98(2) of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). His appeal to the Administrative Appeals Tribunal (“the Tribunal”) was rejected on the basis of a finding that on the evidence the Tribunal was not satisfied that the severity or effect of his war-caused diseases had the character required by s 98(2)(a)(ii) of the Act. His appeal to the Federal Magistrate’s Court of Australia was dismissed. The present appeal is from the Federal Magistrate’s decision. Mr Sleep is representing himself on the appeal.
Section 98 of the VE Act insofar as presently relevant provides:
“(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war-caused injury or a war-caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran:
Column 1 Column 2
Kinds of incapacity Rate per fortnight
$1. Blinded in both eyes 84.30
2. Blinded in both eyes together with 168.60
total loss of speech or total deafness3. Both arms amputated 168.60
4. Both legs amputated and one arm 84.30
amputated5. Both legs amputated at the hip or 84.30
one leg amputated at the hip and the
other leg amputated in the upper third(2) Where:
(a)a veteran is being paid a pension under Part II in respect of incapacity:
(i)from a war-caused injury or a war-caused disease affecting the cerebro-spinal system; or
(ii)from a war-caused injury or a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and
(b)the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
…”
Mr Sleep is a Vietnam veteran in receipt of a full TPI pension. The conditions for which he is receiving his disability pension are lymphopaenia with CD4 suppression (HIV negative), agranulocytosis with chronic neutropaenia, anxiety state, prickly heat, tinea, ischio rectal abscess. To anticipate matters, as the Federal Magistrate indicated, the major effects of his conditions are that:
“[t]he lymphopaenia with CD4 suppression has reduced his immune system to such an extent that he is a target for opportunistic infection. This leads to marked symptoms of fatigue malaise and severely restricts his ability to socialise. His skin disorders are uncomfortable, unsightly and require frequent attention and medication. Overlayed upon these difficulties is an anxiety state.”
THE TRIBUNAL’S DECISION
The question raised by Mr Sleep’s application for the Attendant allowance and which was decided adversely to him by the Tribunal was whether his incapacity “has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system” for the purposes of s 98(2)(e)(ii) of the Act.
The Tribunal, first, gave medical descriptions of Mr Sleep’s accepted disabilities and then resorted to medical dictionary definitions to explain some of their terms. Question has subsequently been raised as to whether a sufficient process of definition was engaged in. We merely note here that we do not consider that the limited definitions used reveal an erroneous understanding of the disabilities.
The Tribunal acknowledged that:
(i)Mr Sleep’s “rare war-caused blood disorder has affected his lifestyle and reduced his enjoyment of life dramatically”;
(ii)that the disorder was “a potentially dangerous condition because of the risk of infection”; and
(iii)“[i]t requires daily care and attention”.
Nonetheless, it did not consider that the disorder was of such severity that it has caused a condition similar in effect or severity to an injury or disease affecting the cerebra spinal system. Having arrived without elaboration at this conclusion adverse to Mr Sleep’s claim, the Tribunal found it unnecessary to consider whether the “needs” requirement of s 98(2)(b) was satisfied.
We would interpolate that it can fairly be said that the Tribunal’s reasons for its conclusion border on the unduly uninformative. While they may not be open to legal attack for this reason, they seem calculated to produce the sense of frustration with the decision that Mr Sleep clearly feels.
THE FEDERAL MAGISTRATE’S DECISION
Mr Sleep appeared in person before the Magistrate. The grounds of review on which he appears to have relied do not all readily reveal the nature of the “questions of law” that were being raised. For this reason we will merely note the manner in which the Magistrate determined the application.
The Magistrate concluded that the Tribunal applied the appropriate comparable “effect or severity” test required by s 98(2)(a)(ii). And it did not limit itself in its assessment of the appellant’s abilities and needs to the criteria of the Guide to the Assessment of Rates of Veterans Pensions (“GARP”).
The Magistrate, further, found that it was not open to Mr Sleep to complain that he had been disadvantaged by changes made to earlier veterans legislation subsequent to the introduction in 1934 of the Attendance allowance in its present form in that he did not have accrued rights until after the current Act came into force.
Equally, he did not suffer from a denial of procedural fairness through a failure by the Tribunal properly to investigate his claim. The medical reports relied upon both by the parties and the Tribunal were of some age. Mr Sleep did give evidence concerning his current condition. It was for him to obtain further medical evidence if he believed it might improve his position. The Act did not cast such an obligation to obtain independent medical evidence upon the Tribunal or the Veterans’ Review Board.
The Magistrate did not consider the Tribunal’s decision to be unreasonable “in the sense expounded in Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223”.
THE PRESENT APPEAL
Mr Sleep’s Notice of Appeal and its accompanying affidavits appear, for the most part, to raise similar objections to the Magistrate’s decision as were raised against the Tribunal’s.
The general setting for his appeal is Mr Sleep’s doubtless distressing condition and his own appreciation of the severity of his disability. Primarily for these reasons, he contends that the Magistrate’s decision was totally unreasonable because the Magistrate appears to have appreciated and accepted his circumstances. Allied to this is the suggestion that the Tribunal misunderstood his medical conditions and did not fully provide definitions of those conditions.
Whatever sympathy one might feel for Mr Sleep given his plight – and neither the Magistrate nor we are insensitive to it – and notwithstanding the very distinct possibility that a differently constituted Tribunal may have come to a different conclusion on his application, the Magistrate clearly was correct in concluding that the Tribunal’s decision was not so unreasonable that no reasonable person could have come to it. Disappointment with a decision no matter how strongly felt, does not make out a Wednesbury claim. Further, we are not satisfied that the Tribunal made any appellable error in providing the definitions of his condition in the form that it did, or that it misunderstood the nature of his diseases for s 98(2) purposes which it described globally as “blood disorder”.
We agree with the Magistrate that the legislative changes of which Mr Sleep complains were not as such causes of procedural unfairness to him. Contrary to what appears to be his submission, the Parliament cannot be estopped from amending legislation that dealt with Attendant allowances. We also agree both that the Commission was not obliged to obtain new medical reports in the circumstances and that it was for Mr Sleep to put such material before the Tribunal as revealed what he contends was his then current position.
In this matter it was for the Tribunal to determine the facts. The Magistrate, could only concern himself with questions of law to which the Tribunal’s fact finding gave rise. Having concluded no error of law had been made, the Magistrate dismissed the appeal and correctly so in our view.
The appeal will be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg . Associate:
Dated: 18 December 2003
Counsel for the Appellant: The Appellant appeared in person. Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 November 2003 Date of Judgment: 19 December 2003
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