Stack v Chief of Army
[2016] FCCA 1809
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STACK v CHIEF OF ARMY | [2016] FCCA 1809 |
| Catchwords: ADMINISTRATIVE LAW – Application for judicial review – whether decision was attended by actual or apprehended bias – whether decision exceeded power. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5(1), 5(2) Veteran’s Entitlements Act 1986 |
| Cases cited: Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 Isbester v Knox City Council (2015) 255 CLR 135 Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 Minister for Immigration and Ethnic Affairs v Jah-Smail (1982) 40 ALR 341 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re JRL; ex parte CJL (1986) 161 CLR 342 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211 Sunshine Co Pty Ltd v Australian v Communications and Media Authority [2012] FCA 1205 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | GEORGE STACK |
| Respondent: | CHIEF OF ARMY |
| File Number: | BRG 328 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 November 2014 |
| Date of Last Submission: | 3 November 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Vasta QC with Ms Payne |
| Solicitors for the Applicant: | Fraser Power Lawyers |
| Counsel for the Respondent: | Mr Haddrick |
| Solicitors for the Respondent: | McInnes Wilson Lawyers |
ORDERS
The application filed on 1 May, 2013 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be agreed and failing agreement to be assessed according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 328 of 2013
| GEORGE STACK |
Applicant
And
| CHIEF OF ARMY |
Respondent
REASONS FOR JUDGMENT
On 17 December, 2012 Col. WB Stothart of the Australian Army made a decision rejecting an application by Mr Stack pursuant to s.51(6) of the Defence Forces Retirement Benefits Act 1948 (Cth). I will come to the decision in detail shortly.
In this application Mr Stack argues that the decision ought to be set aside pursuant to the Court’s power to do so under the Administrative Decisions (Judicial Review) Act 1975 (Cth) on the grounds that the making of the decision involved a breach of the rules of natural justice and was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
For the reasons that follow, Mr Stack’s application must be dismissed.
Mr Stack’s service and discharge
Mr Stack served as a National Service member of the Australian Army as a private from 22 April, 1970 to 2 October, 1971. He attended Scheyville Officer Training Unit and graduated on or about 2 October, 1970 as Second Lieutenant and transferred to 8 Battalion Infantry Corps.
On 1 October, 1971 Mr Stack was injured when a mortar simulator exploded in his face. He sustained partial thickness burns to his arms, face, neck, right eye, right hand, forearm and wrist. He was in a military hospital for 18 days immediately following the incident.
On 9 December, 1971 Mr Stack was administratively discharged from the Australian Regular Army and transferred to the Australian Regular Army Reserve. Given the date of Mr Stack’s discharge, his entitlement to invalidity benefits is governed by the Defence Forces Retirement Benefits Act.
The statutory provision at issue
Section 51(6) of the Defence Forces Retirement Benefits Act provides:
Where a member who is a contributor has, before 1 October 1972, been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
It is not in issue that Mr Stack retired from the Army, otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties, before 1 October, 1972. He contends that at the time he was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. Consequently he argues, he should be treated as if he had been retired on that ground.
The decision
To that end, Mr Stack made a submission to the Army on 1 May, 2012 that at the time he was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. That submission was the last in a long history of attempts by Mr Stack to have the Chief of Army acknowledge that matter. It is the decision of Col. WB Stothart on that submission which is the subject of this application.
To understand Mr Stack’s arguments, it is necessary to set out at length the history of his attempts to have the Army accept his claim that grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties when he retired in 1971. I have taken that history from the written submissions prepared by counsel for Mr Stack. It is a thorough review of the background and no issue was taken with what is recorded in that history by the respondent.
Mr Stack made four attempts, or applications, for the Chief of Army to consider informing the Defence Force Retirement and Health Benefits Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties pursuant to s.51(6) of the Act.
The first application
The first application, it is said, is constituted by three letters sent by Mr Stack, or on his behalf to the Chief of Army or his delegate. The relevant letters are dated 30 March, 2008, 7 May, 2009 and 29 May, 2009.
In his first letter dated 30 March, 2008 Mr Stack relied upon two conditions to support his claim. The first was osteoarthritis of the right and left knees. The second was post-traumatic stress disorder caused by the munitions explosion in October, 1971. He claimed to have a permanent impairment. He asserted that he was suffering from osteoarthritis at the time he was discharged from the Army.
He drew to the attention of the Chief of Army that he had made a successful claim for compensation for personal injury arising from the munitions explosion. He pointed out that on 1 May, 2007 the Commonwealth had acknowledged his post-traumatic stress disorder in the following manner:
... On the basis of the available evidence, it has been determined that you suffered a post traumatic stress disorder to which your military service contributed in a material degree. The Commonwealth has accepted liability for this condition, its’ being as a result of your compensable burns to face and right arm and small corneal abrasions to right eye (healed) injury of 1971.
That acknowledgement was made for the purposes of claims made by Mr Stack pursuant to the Veteran’s Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004.
He also gave to the Chief of Army an opinion from a psychiatrist, Adjunct Professor Lawford, given on 9 November, 2006 to the effect that Mr Stack was suffering from post-traumatic stress disorder that arose from the munitions explosion and his subsequent hospital treatment for burns. The psychiatrist thought that the post-traumatic stress disorder was present before 1 July, 2004.
Col. Glenn Wells is a clinical health practitioner who, at the relevant time, was on the staff of an organisation called the Joint Health Command. He was assigned to deal with Mr Stack’s request.
In an email dated 20 January, 2009 Col. Wells sought an expression of interest from Gp. Capt. Professor Alexander McFarlane, Chair of the Army Consultative Group on Mental Health about Professor McFarlane providing guidance on the evidence requirement that should be available to retrospectively reconsider the reason for a veteran’s discharge. His request was made in the context of applications by veteran’s for a change in their administrative discharge to a medical discharge. In the request, Col. Wells explained:
We have traditionally not supported claims where ex-members are clearly now diagnosed and have some accepted origins in Defence service but have no recorded disability at discharge, even where a Consultant Psychiatrist (such as [omitted by Freedom of Information]) opines that they actually did suffer identifiable symptoms at the time of service and assumes a level of not contemporaneously identified disability.
Gp. Capt. McFarlane accepted Col. Wells’ invitation and the next day, sent a letter to Gp. Capt. McFarlane in which he provided details of Mr Stack’s application. Col. Wells made a number of points, including:
Mr Stack contends that, at the time of his discharge from the Army on 09 Dec 71, grounds existed whereby he could have been discharged on the basis of invalidity. He claims that the conditions of osteoarthritis of both knees, burns to his face and right arm and post traumatic stress disorder (PTSD) caused such disability as to warrant his medical discharge.
Mr Stack is the Advocate for other ex-members (mostly Vietnam Veterans) making similar claims regarding PTSD and he has also a Ministerial submitted that is seeking the guidelines for making such determinations as per reference A.
As discussed we currently have a number of similar such claims relating to undiagnosed PTSD although most have a more legitimate basis (than Mr Stack’s), arising from combat service in Vietnam …
He asked Gp. Capt. McFarlane to review the documents sent by Mr Stack, in particular the PTSD aspects of the submission by Mr Stack, his supporting evidence and Col. Well’s draft response.
On 11 February, 2009 Col. Wells provided a written advice about Mr Stack’s application to Ms Zelda Murray the Executive Director, Directorate Transition Support Services. In that advice, he concluded by saying (my emphasis):
The Army medical records provided by Mr Stack contains no information that would indicate that he was medically unfit for service at the time of his discharge from Army. In addition he has provided no contemporaneous medical information to support his claim. Thus there is insufficient evidence to support the contention that he should or could have been discharged on the basis of invalidity.
With particular reference to the claim for post-traumatic stress disorder, Col. Wells notes the following:
a)There was no indication of any unusual mental status or symptoms in the notes available to him;
b)No mental health issues were noted on Mr Stack’s Discharge History Questionnaire or examination report; and
c)No mental health issues or symptoms were reported in any of the Army medical documentation provided by Mr Stack with his application, although Col. Wells indicated that despite extensive searching of the Defence Health Records, Mr Stack’s original Army medical record was not able to be located.
Of Dr Lawford’s report dated 9 November, 2006 Col. Wells said (my emphasis):
14. …Unfortunately the account of the injuries and treatment received as presented in the report of Dr Lawford, and used to base his opinion, appear significantly incorrect and inaccurate. No medical information is provided about a ‘cup incident’ as noted in Dr Lawford’s report.
15. Despite the above inaccuracies in Dr Lawford’s report, and assuming that Mr Stack did feel that there was a life threatening event, there is no indication of mental health problems developing by the time of his discharge. Also no indication is given of when he did actually become significantly disabled by this issue (PTSD). The report by Dr Lawford throws no light on his mental health status around the time of his discharge from Army.
16. Having breeched safety protocol and having had his career prospect in Army dashed it is likely that he was under considerable stress at the time of his quick discharge from Army. However, no contemporaneous medical evidence has been provided to indicate that he had significant mental health difficulties around that time. His PTSD, as is usual, appears to have arisen after a period of time (and after discharge).
Col. Wells’ report addresses both Mr Stack’s claims relating to his knees and his claim relating to post-traumatic stress disorder. He refers to a report by Dr Phillip Vecchio dated 12 January, 2007 that was relied upon by Mr Stack in his application insofar as the damage to his knees was concerned. Mr Stack has had access to a number of documents held by the respondent through Freedom of Information applications. In that way, he has had access to a copy of Dr Vecchio’s report, which appears to have Col. Wells’ comments handwritten throughout. Mr Stack points out that Col. Wells has annotated the report in various ways, including by writing: “CRAP! → would want the orthopaedic reports this ignores the 35+ years of activity aft service!!” written vertically in the left margin of the report on page 3. It also includes the notation at the bottom: “What activities has he done in the past 30 years!!”.
On 30 April, 2009 Col. Wells authored a draft Minute entitled “INVALIDITY CONSIDERATIONS - DECISION MAKING PROCESS FOR MENTAL HEALTH CONDITIONS”. The document appears to be related to the broader policy matters that were then under consideration by Col. Wells. In that document, with reference generally to claims made by ex-serviceman for post-traumatic stress disorder, Col. Wells says (my emphasis):
3. There have been a growing number of claims from ex-Service personnel who have, after discharge, gone onto develop full blown and disabling mental health condition, in particular post traumatic stress disorder (PTSD). This is from personnel who served in the Vietnam conflict, through to all subsequent operational activities. Invariably they claim that their condition (PTSD) existed at the time of their discharge but was either not recognised or (deliberately) hidden to avoid the ‘stigma’ of the condition.
JHSA Consideration Issues
4. The medical officer within JHSA responsible for reviewing and advising on the invalidity claims has always required hard evidence to both support the diagnosis, of the claimed condition, at the time of discharge and to allow an assessment of the level of disability that would warrant a medical discharge. Contemporaneous medical evidence of a condition and consequential disability (either from the period before discharge or from the period immediately following discharge) has generally been required before a claim would be accepted. This has been my approach and the approach of my predecessors. The evidence can come from outside of the Defence medical record as long as it directly pertains to the time of the ex-members’ discharge medical status. Opinions based on the story given to medical practitioners, perhaps decades after discharge and assumptions accepted by those reviewing the ex-member at that later time have generally not been accepted as sufficient evidence to accept that the claimant had a significant condition or disability or was medically unfit at the time of discharge, particularly when there is evidence to the contrary in the claimant’s Defence medical file.
After noting that no specific guidelines existed for retrospectively determining the medical status of a past serving member seeking to have his administrative discharge considered as a medical discharge, Col. Wells recorded that there was no guidance on the level of evidence required or assumptions that can be accepted. Col. Wells recorded that because of increasing pressure associated with “this issue” (including the increased number of applications, more appeals against negative determinations, stronger civilian Psychiatrist support for claimants and Ministerial representations), he sought the opinion of the past Director of Mental Health Gp. Capt. Lambeth in respect of two specific cases. He also recorded that he had sought “collective input” from the ADF Consultative Group on Mental Health and specifically Gp. Capt. McFarlane. Col. Wells sets out Mr Stack’s case as one of the matters upon which he has sought advice:
8. Mr G Stack. This past Army member, who is also a very active advocate for other ex-members, was injured in training (no overseas service) in 1971 and discharged shortly thereafter. He claims that he should have been discharged medically unfit because of PTSD. His claims are not consistent with his medical record and there are no recorded mental health issues or symptoms. He has provided no medical evidence of his condition before 2006. My response to this claimant is at Enclosure 2.
Col. Wells continues:
13. There are significant financial implications and potential political sensitivities associated with this issue. The cost to the Government for backdated pensions can be quite large. The veteran claims of poor treatment (both during and after service) and publicity, including direct approaches to the media and the Minister can cause ‘difficulties’ for JHC.
14. Acceptance of a medical status (and hence that a past member was medically unfit at the time of discharge) based on assumptions has significant ramification. The same argument applied by at least some of the enclosed case [words deleted by Freedom of Information] can be applied to all Veterans who now suffer from significant PTSD (a large portion of Vietnam veterans). The rational can also be applied to other (including non-mental health) conditions. Hence the acceptance of these claims based on assumptions must be carefully thought through and should be a clear conscious decision of ‘Defence”.
[words deleted by Freedom of Information]
16. The other matter is the definition of ‘could’ that is used in the legislation is a problem that has not yet been defined. [words deleted by Freedom of Information] that it gives latitude but does not much help. There are many currently serving that could be discharged medically unfit but remain accepted for continued service through commitment and motivation; not to mention the ‘grey’ areas where the risk is difficult to define. I believe that the level of evidence, and where assumptions can be accepted needs to be defined, at least to some degree.
…
19. Finally you should note that as a result of a recent representation to the Minister Assisting, and direct face to face contact by an ex-serving member who is acting as an advocate for a number of Veterans (Mr Stack), the Directorate of transition Support Services has been directed to undertake a review of the processes by which Defence reviews the claims for reconsideration of the reason for discharge under the various Acts. This review is yet to commence ... .’
On 7 May, 2009 the then President of the Veteran’s Support Advocacy Service Australia wrote a letter to Ms Murray for Mr Stack. This letter is said by Mr Stack to be the second of the letters that represents his first application for the reconsideration of his discharge status.
The letter refers to “… Colonel Wells’ non-supportive statement which is based on his purported belief that there was no evidence of ‘scarring’?”. Presumably that is a reference to two statements made by Col. Wells in his written advice to Ms Murray on 11 February, 2009. In that advice, Col. Wells had said (my emphasis):
On admission to hospital on 01 Oct 71 his vision was noted not to be impaired and it is recorded that by 04 Oct 71 his cornea was completely healed. This all indicates relatively minor damage/injury to Mr Stack’s eyes. Complete healing, without significant scarring is anticipated where there are partial thickness burns.
…
The Discharge History Questionnaire notes burns to the right forearm (the worse burns), but the Final medical examination (completed on 16 Nov 09 – six weeks after the injury) notes no abnormality (eg in the way of scarring). As expected in the notes, healing appears to have been complete. No mental health issues are noted on the questionnaire or examination report. No mental health issues or symptoms are reported in any of the Army medical documentation provided (Please note that the full Army medical record has not been available to me)
Col. Wells statements were entirely accurate. Nonetheless, the letter from Veteran’s Support and Advocacy Service Australia furnished a medical report dated 17 April, 2009 which noted “scarring on the flexion contracture on the right radial wrist extending as far as the metacarpal joint”. The letter requested that the evidence be “attached Mr. Stack’s file, thank you.”
On 29 May, 2009 Mr Stack sent by facsimile another letter from the President of the Veteran’s Support and Advocacy Service Australia to Joint Health Command. That letter, dated 28 May, 2009, attached two further medical opinions. The first was by Dr Bruce Lawford dated 28 May, 2009 and another copy of the medical report that had been furnished with the letter of 7 May, 2009.
In his report Dr Lawford opined of Mr Stack’s post-traumatic stress disorder:
1. Does Mr. Stack suffer from any psychiatric condition? Yes.
2. What is that psychiatric condition? Post Traumatic Stress Disorder (PTSD)
3. Did Mr. Stack suffer from such a condition at the time of his discharge from the Army? Yes. There has been no other life event since his Army service that could have caused PTSD. There is evidence of poor work performance since his discharge from the Army.
4. Could Mr. Stack have been retired on the grounds of invalidity or of physical or mental incapacity to perform his military duties? Yes. He could have been retired due to his symptoms of PTSD causing mental incapacity.
Pursuant to his Freedom of Information requests Mr Stack has been provided with a copy of Dr Lawford’s report with handwritten notations made upon it by Col. Wells. On a copy of Dr Lawford’s report is a single handwritten annotation by Col. Wells with an arrow pointing to answer 4 and to the words ‘PTSD’: “Assumption. No medical evidence!”
Further, a copy of pages 3-10 of his first Application was provided to Mr Stack pursuant to a Freedom of Information request. The handwritten comments on that document, which I assume were made by Col. Wells include for example: “what rubbish!”, “Rubbish!”, “No!” and following a statement by Mr Stack referring to evidence of “an identifiable link to present day conditions from the clinical traits identifiable at the time of discharge”, “a link is not relevant”.
Another document provided pursuant to a Freedom of Information request is a copy of the Report of the Ammunitions Accident dated 1 December, 1971. Mr Stack contends that it includes a handwritten annotation of Col. Wells “Idiot” with reference to the statement in the report that “2lt Stack attempted to destroy a blind M116 grenade by cutting it open and laying powder trail to ignite”. I have looked at the document. It is not at all clear to me that the annotation is that word, but I will proceed on the basis that it is.
There is also an annotated copy of Dr Lawford’s first report dated 9 November, 2006 which Mr Stack claims contains annotations such as ‘False History’, ‘Rubbish’ and with reference to the Doctor’s report that the munitions event involved “intense fear and helplessness”, “Exaggerated”. That could be what is written on the document in each case, but the handwriting is so poor that it is difficult to tell. Again, I will assume that Mr Stack’s assertions about those matters are accurate.
Col. Wells continued his engagement with Gp. Capt. McFarlane to which I have earlier referred. By an email dated 1 June, 2009 to Gp. Capt. McFarlane, Col. Wells says:
Dr Lawford states that Mr Stack had PTSD at the time of his discharge from Army but does not indicate the level of symptoms and disability at that time. This is the other aspect that we will require guidance on – that is, is a diagnosis of PTSD stuffiest of automatic discharge? In other words should all be discharged. Or is it necessary to demonstrate a specific level of occupational and/or social impairment. All this has implication not just for those in the past but for how we manage this condition today. To me the drivers for retention of discharge appear to be the motivation and commitment of a member. One who wants to stay in ADF seeks help and keeps working despite some symptoms. While others appear to be happy to go. How do you work this out for cases 40 years ago!?
Professor McFarlane responded to Col. Wells on 3 July, 2009. He said:
You have previously sent me materials concerning Mr Stack and asked me to consider this as a further exemplar of the general question. I will not address these in the same detail. Rather I will only draw upon the report of Dr Bruce Lawford. It is noted that Mr Stack is on a DVA benefit for posttraumatic stress disorder. This has occurred as a consequence of an injury sustained in 1971 when he destroyed a mortar simulator. This resulted in him spending 18 days in hospital with burns to his face, right eye and upper limb. Mr Stack remembers having suffered an emotional collapse during this period. At the point of discharge he did not indicate the he had a mental disorder. The report states that since this incident Mr Stack had recurring nightmares, aggressive behavior, agitation, mood swings and anger outbursts. He has not been able to keep regular employment since his discharge from the Army. The attached employment history of Mr Stack highlights his ongoing problems.
• Comment
As stated I will not consider this matter in detail. The matter of Mr Stack is more challenging in some regards. Given that he had sustained a significant physical injury, the interaction between his psychological condition and his physical condition needed to be taken into account in terms of his disabilities. For this reason, the assessment of the consequence of his psychological condition at the point of discharge given that this was in close proximity to the accident is difficult.
The significance of his case, is that a substantive difficulty does arise in assessing matters where there is a combination of a physical and psychological disability and in these circumstances where there is a primary focus on the physical injuries it is reasonable to have a lower threshold of probability that a psychological condition whilst present but not diagnosed and would have led to a medical discharge when considered in the presence of the associated physical conditions.
Gp. Capt. McFarlane gave Col. Wells some advice on the setting of guidelines for the determination of retrospective cases of mental illness. That advice is in a letter dated 6 July, 2009 to Col. Wells. Relevantly, Gp. Capt. McFarlane said:
A substantial problem lies in the inadequacy of the standard medical record as being a comprehensive document in regards to an individual’s health. Particularly in relation to psychological symptoms, these are infrequently canvassed in a systematic way or documented even if reported by the patient. Therefore, the absence of evidence is not an absence of existence. Hence, it is necessary to make some interpretative statement based upon the history provided by the veteran and associated medical complaints documented in the health file.
Gp. Capt. McFarlane refers to the bias inherent in making determinations in cases involving ex-serviceman who are immediately discharged upon return from active service, prior to a disorder such as PTSD becoming manifest. Gp. Capt. McFarlane states:
…the recent National Comorbidity Study in America demonstrates that the average duration of time between developing posttraumatic stress disorder and receiving treatment is 12 years. This means that a substantial disadvantage is created for veterans if they are required to provide contemporaneous proof of symptoms during or immediately post-discharge.
On 26 August, 2009 Col. Wells reported to the Delegate of the Chief of Army in respect of Mr Stack’s application. Col. Wells referred to the initial request for an opinion from the Joint Health Command and his initial response provided in February, 2009. It also recorded and discussed in summary the further medical evidence from Dr Lawford that Mr Stack asked to have considered. It also recorded, and attached, Gp. Capt. McFarlane’s comments about Mr Stack’s case to which I have referred to above. Col. Wells concluded that:
Further to reference B, JHSA sought the input of the Chair of the ADF Psychiatric Consultative Group on this case (Mr Stack) and the case of Mr Gilbert. A detailed response was provided in the case of Mr Gilbert. This response also contained reference to Mr Stack (see reference D). In reference D Professor McFarlane dos not provide a definitive opinion but indicates that he will not be addressing the case of Mr Stack in detail and he points out the difficulty in assessing such matters.
Reference C does not contain any addition contemporaneous medical information. The main document is a report by Dr Bruce Lawford (Psychiatrist) dated 28 May 09 reiterating and expanding on his previous reports on Mr Stack. This report although addressing the past history of Mr Stack more accurately (than his previous report) still relies on assumptions about his mental health status in 1971 to reach the conclusion that he was unfit to perform his military duties at that time.
JHC is of the opinion that in order to support a retrospective change to a medical discharge, there must be evidence of significant symptoms and significant disability that would warrant a medical discharge. This is the same requirement for assessing a member as medically unfit today. It should also be remembered that in 1971 personnel could continue to serve in the Army at a PULHEEMS classification of S7, with a significantly diminished mental health status or emotional stability. A significantly diminished emotional stability in 1971 has not been shown in the case for Mr Stack. It is believed that further current reviews of Mr Stack, without contemporaneous supporting medical evidence are of limited value. Hence, further review and opinion from Professor McFarlane will not be sought.
In conclusion, on the information presented, there is insufficient evidence to indicate that Mr Stack suffered sufficient disability at the time of his discharge to warrant retirement on the basis of invalidity, or medical discharge for PTSD of any other condition.
On 23 September, 2009 Colonel Reynolds, as Delegate of the Chief of Army, sent a letter to Mr Stack notifying his decision that having reviewed all the information available, he determined that grounds did not exist to support Mr Stack’s claim. He enclosed a copy of the “Defence Position Brief” dated 22 September, 2009 prepared by Ms Zelda Murray which attached copies of the material referred to in the Brief. Also attached was an Instrument of Authorisation which contained Col. Reynold’s reasons for his decision. Relevantly, Col. Reynolds recorded that he had read the reports of Col. Wells and Gp. Capt. McFarlane and the representations of Mr Stack. He recorded that he was guided by the reports from Col. Wells. He set out some of the observations and opinions expressed by Col. Wells. However, he also recorded that he had arrived at his decision from his own independent assessment of all the factors presented to him in the Defence Position Brief.
On 9 October, 2009 Mr Stack wrote to the Minister for Defence and sought a statement setting out the findings on material questions of fact in relation to Col. Reynold’s determination. Col. Reynolds responded on 10 December, 2009. His response did nothing more than provide a further copy of the Defence Position Brief, the attachments to the Brief and the Instrument of Authorisation previously signed by Col. Reynolds.
On 9 January, 2010 Mr Stack wrote to the Minister for Defence, Personnel, Material and Science. In that letter, he sought a reconsideration of Col. Reynold’s decision.
Again, a copy of that letter was provided to Mr Stack pursuant to a Freedom of Information request. The copy produced has handwritten annotations upon it. Many of them are illegible. The author of the annotations is presumed to be Col. Wells.
In the letter, Mr Stack said:
1. In respect to my accepted compensable injuries the Commonwealth Government said:
... On the basis of the available evidence it has been determined that you suffered a post traumatic stress disorder to which your military service contributed in a material degree. The Commonwealth has accepted liability for this condition, its’ being as a result of your compensable burns to face and right arm and small corneal abrasions to right eye (healed) injury of 1971.
Next to the passage from the Commonwealth Government set out above appears the annotation: “Irrelevant to status at discharge in 1971”.
Mr Stack continued:
The Commonwealth’s Department of Veterans’ Affairs was reasonably satisfied that a determination on a balance of probabilities that my psychological condition (PTSD) was present at the time of discharge.
That submission was footnoted. The footnote read, in part:
Department of Veterans’ Affairs Delegate Ms Frances Morris Tuesday 1 May 2007 File Ref: STA0054-01 PTSD
Next to the passage and the footnote appears the following annotation:
Not sure where this conclusion comes from. No contemporaneous evidence provided.
An annotation on page 11 of the letter captures the approach of the Chief of Army:
In the end we are not seeking specialist input but making the decision on the contemporaneous evidence available then and now.
The second application
On 24 March, 2010 Dr Anthony Balkin, consultant psychiatrist, wrote a letter to Col. Wells at Mr Stack’s request. The letter records that Mr Stack was referred to Dr Balkin by Dr Lawford for a second opinion. After setting out the sources of the information upon which he formed his opinion, Dr Balkin said:
Taking all the above information into consideration, I am of the opinion that Mr Stack does suffer from chronic Post Traumatic Stress Disorder as a result of his military service. He was injured by a mortar simulator in 1971. The simulator exploded accidentally. Mr Stack was knocked unconscious and sustained burns to much of his body. He was medivaced to 1 Military Hospital Yeronga and remained an inpatient for a number of weeks. He subsequently developed intrusive, avoidant and hyperarousal symptomatology of Post Traumatic Stress Disorder. His symptoms have caused clinically significant distress and impairment in social and occupational functioning.
The issue of whether he should have been medically discharged from the army in the early 1970s is complex. It is likely that he was suffering from Post Traumatic Stress Disorder at the time of his administrative discharge from the army. However, detailed perusal of his army medical notes does not provide evidence that he presented with symptoms of psychological distress or medical impairment in his capacity to work in the army. The diagnosis of Post Traumatic Stress Disorder did not formally enter into psychiatric classificatory nomenclature until 1980.
I hope this information is helpful.
It seems to be accepted by each of the parties that Dr Balkin’s letter did not come to Col. Wells attention until early 2011. I will return to that report soon.
On 23 April, 2010 Mr Stack provided further evidence to Ms Murray. The further evidence included statutory declarations from four past associates of Mr Stack and a Mr Hugh Urquhart and a letter from Dr Lawford dated 23 April, 2010. According to Dr Lawford, the statutory declarations and Mr Urquhart’s letter:
... provide clear evidence that Mr Stack was suffering from clinically significant psychological disturbance after discharge from hospital whilst still serving in the A.D.F. Therefore he did not have ‘delayed onset’ of psychological disturbance. He had major symptoms whist still serving.
Mr Stack wrote again to Ms Murray on 5 July, 2010. He reminded her that there had been a “determination by the Military Rehabilitation and Compensation Group file STA00540-01 Accepted Post Traumatic Stress Disorder as a result of receiving a number of injuries whilst serving in the A.D.F in 1971, i.e., ‘burns to face and right arm in a mortar explosion’ and ‘small corneal abrasions to the right eye’.”
For the first time, in a letter dated 24 July, 2010 to Ms Murray Mr Stack alleged that Col. Wells was biased. He requested that an independent psychiatric opinion be obtained by the Army for the purposes of Mr Stack’s application. Mr Stack copied his letter to the Minister for Defence.
The Minister responded by letter dated 25 October, 2010. He said that Joint Health Command had arranged an independent psychiatric review of Mr Stack’s case and had appointed Dr Duncan Wallace, psychiatrist, to review Mr Stack’s matter.
The Minister reported that Dr Wallace reviewed the material and “has advised that there is no evidence to support your claim that you had this condition or could be considered medically unfit when you separated from the regular Army in 1971. He has recommended that further psychiatric review is unwarranted and that your claim for retrospective Defence Force Retirement Benefits on the grounds of being medically unfit for service at the time of separation cannot be supported”. Dr Wallace was at the time a Group Captain in the Australian Defence Force.
On 8 November, 2010 Mr Stack wrote to the Minister for Defence again. He pointed out that Gp. Capt. Wallace was a consultant psychiatrist to the Royal Australian Navy and was not “independent” of the Army. He also took the opportunity to provide another medical report, this time from Dr Jeremy Butler, psychiatrist, dated 4 October, 2010.
Dr Butler’s report records that he reviewed the material given to him by Mr Stack and interviewed Mr Stack. Dr Butler recorded the specific questions he was asked to answer. He concluded:
With reference to the questions posted by Mr Stack, I believe that Mr Stack suffers from a psychiatric condition and that condition is Post Traumatic Stress Disorder. My opinion is based upon forensic analysis of the material provided and the information provided to me during my assessment of Mr Stack. I believe that this condition was caused by the circumstances surrounding the munitions explosion in 1971 while an officer in the Australia Army and that, on the balance of probabilities; he was suffering from the condition while still in the service.
I believe that the pattern of subsequent illness and dysfunction and the severity of the reported symptoms whilst still in the army indicate that he could have been retired on the grounds of physical or mental incapacity to perform his military duties. The lack of a comprehensive psychological evaluation of Mr Stack while still in the service indicates that the discharge procedure, in my opinion, was an incomplete process which would not have detected significant psychiatric morbidity.
Mr Stack sent another report from Dr Lawford to Ms Murray and to the Minister for Defence on 23 November, 2010. In that brief report, Dr Lawford sets out that he had considered the statutory declarations that Mr Stack had secured as well as the letter from Mr Urquhart and had considered the further evidence provided by the statutory declarations. He expressed the opinion that, on the basis of those declarations and the letter Mr Stack did suffer from post traumatic stress disorder at the time of his discharge from the Army and that he was exhibiting behaviour consistent with that. He thought that Mr Stack did not suffer from a delayed onset of PTSD and could have been displaying symptoms of PTSD prior to and at the time of his discharge from the Army.
On 9 November, 2010 Mr Stack wrote again to the Minister for Defence and Ms Murray. He enclosed a copy of the copy of Dr Lawford’s report dated 9 November, 2006 that he had obtained using a Freedom of Information request on which Col. Wells had written his comments. Mr Stack contended in that letter that the comments of Col. Wells evidenced bias and a denial of procedural fairness by Joint Health Command. He referred to the decision of Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211. He alleged that Col. Reynold’s decision on his application and made on 22 September, 2009 was also affected by bias “because from an early stage he [presumably meaning Col. Wells] was inherently sceptical of Professor Lawford’s evidence about the type, extent and debilitating effect of Mr Stack’s condition”.
On 7 December, 2010 the Chief of Staff of the Minister for Defence responded to Mr Stack’s letter of 8 November, 2010. The Chief of Staff said:
There is no dispute that you suffer from PTSD. I also note that the Department of Veterans’ Affairs has accepted liability for your condition. However, it remains the case that no contemporaneous evidence has been provided to date to indicate that you were suffering from PTSD at the time of your discharge from the Army, or that you were disabled to the point where you could not be considered medically suitable to continue service.
Mr Stack says that it is apparent from an email chain between he and Ms Murray on 16 February, 2011 that Col. Wells did not consider Dr Balkin’s report when it was initially sent in March, 2010. Whether that is correct or not, Mr Stack received a copy of Dr Balkin’s report pursuant to a Freedom of Information request. The copy had handwritten annotations on it from Col. Wells. Col. Wells noted: “Not previously seen, but makes no difference to past opinions and decisions as provides no new evidence”.
Col. Wells confirmed his view to Ms Murray in an email on 16 February, 2011. In that email he said (my emphasis):
[Dr Balkin’s report] also recognises the lack of contemporaneous medical information, although opines (like the other Psychiatrists) that it was “likely that he was suffering from PTSD at the time of his administrative discharge from the Army”. JHC continues to believe that insufficient evidence (particularly contemporaneous evidence) was present around the time of his discharge to retrospectively consider him medically unfit for continued service at that time. Just because he subsequently went on to develop significant PTSD symptoms and disability does not infer he was medically unfit at the time of his discharge.
On 4 April, 2011 Mr Stack wrote again to Ms Murray. His correspondence looks like a fresh application for consideration of his claim under s.51(6) of the Defence Forces Retirement Benefits Act, although he refers to his application made on 30 March, 2008. It appears to have been treated by the Army as a request for a review of the decision made by Col. Reynolds not to change his mode of discharge.
In the letter Mr Stack alleges that the decision of the Chief of Army was affected by a reasonable apprehension of bias because his decision “was not supported by forensic evidence of a qualified psychiatric-specialist-expert in diagnosis or treatment of post traumatic stress disorder”. He further asserted that the Chief of Army was “precluded from relying on his, ‘health professional’, Colonel Wells, general practitioner” because Col. Wells acted as “advocate for the Army when giving advice that was necessarily evaluative rather than inferential”. He further asserts that Col. Wells “paramount duty was to the Court, and not to the Army; the person retaining the Officer”. He referred to the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia. However, I do not understand that reference because there was nothing before any court. Col. Wells was not an expert witness and his role, no doubt was to evaluate the evidence that had been put to the Chief of Army and to make a recommendation to either Ms Murray or the delegate of the Chief of Army.
The letter also referred to “missing Tapes” A, B, C, and D, and Mr Stack’s missing “full medical, psychological and service records”. There seems to be no dispute that much of Mr Stack’s medical history was recorded on tapes and they are no longer in existence.
On 22 August, 2011 a delegate of the Chief of Army Brigadier M.W. Hall wrote to Mr Stack and advised him that he had decided that at the time of Mr Stack’s discharge from the Army, grounds did not exist to support Mr Stack’s claim that he could have been medically discharged. That is to say the first decision was confirmed. Brig. Hall’s decision related expressly to the request that Mr Stack had sent to Ms Murray on 23 April, 2010. His reasons are set out in a document entitled ‘Consideration Outcome’. Brig. Hall said that he was guided in his decision by a report from Joint Health Command authored by Col. Wells which included the following:
2. In his recent submission Mr Stack provides a number of Statutory Declarations from individuals who knew him at the time and these refer to a change in the nature of Mr Stack following the accidental injury in 1971. All the Declarations refer to events some forty years previous. The submission also contains a note from his Psychiatrist Dr Lawford, dated 23 April10, stated that he has reviewed the Declarations and accepts these as evidence Mr Stack was suffering from a psychological disturbance at that time; and hence while still serving.
3. The current submission from Mr Stack does not provide any new medical information. In particular, it provides no medical information that can be considered contemporaneous. The further opinions are noted but greater weight is given to the recorded facts (his medical record) and lack of contemporaneously recorded evidence to show that he did indeed suffer significant psychological difficulties at that time.
4. As previously notified, JHC is of the opinion that in order to support a retrospective change to a medical discharge, there must be evidence of significant symptoms causing significant disability that would warrant a medical separation. This is the same requirement for assessing a member as medially unfit today, although the current level of disability accepted for a medical separation is less than it was in the 1970’s. It should be remembered that in 1971 personnel could continue to serve in the Army at a PULHEEMS classification of S7, Home Only (HO) with a significantly diminished mental health status, or emotional stability. A significantly diminished emotional stability in 1971 has not been shown in the case for Mr Stack. It is not sufficient to just identify symptoms of any level. There must be a significant disability identified to warrant a medical separation. As noted above, the criteria for a medical separation today are also quite different to those in the 1970’s. The ability to serve in a rear areas only (Base Everywhere and Home Only) was removed in the 1990’s. Hence those personnel suffering low level psychological symptoms (PTSD or other) may now be considered unfit to serve where they would previously have been readily acceptable for continued service.
5. Further, it is also believed that further reviews of Mr Stack, without contemporaneous supporting medical evidence, are of limited value. Further review and opinion from Professor McFarlane or other nominated Psychiatrist will not be sought.’
After Brig. Hall determined not to change Mr Stack’s mode of discharge, Col. Brennan, the Director of Army Health and specialist general practitioner, provided a review of the medical evidence in Mr Stack’s case to Brig. Hall by way of Minute dated 6 September, 2011. Brig. Hall noted on 9 September, on that Minute: “Thank you. This supports & confirms my previous determination on Mr Stack”.
At about this time, Mr Stack had also made a complaint to the Commonwealth Ombudsman. Col. Wells wrote a Minute dated 3 June 2010 regarding Mr Stack’s complaint made to the Ombudsman. In that Minute, he gave information in response to the Ombudsman’s inquiry into Mr Stack’s complaint concerning the grounds that existed for his discharge from the Army.
Others, including Brigadier Bottrell (Office of the Chief of Army) and Mr Kevin Radnidge, Department of Defence wrote Minutes relating to the complaint made by Mr Stack to the Ombudsman.
The third application
On 4 May, 2012 Mr Stack submitted a supplementary report of GPCPT McFarlane dated 1 May, 2012. In this report Gp. Capt. McFarlane referred to the statutory declarations and letter that Mr Stack had put to Ms Murray in 2011. After reviewing that information, Gp. Capt. McFarlane said in his report:
I believe on the balance of probabilities that there is sufficient evidence to say that at the time of his discharge, Mr Stack was suffering from a psychiatric disorder. There is evidence, such as him being dazed and distant whilst in hospital, that suggests he may have suffered from an acute stress disorder. His later withdrawal, irritability, and avoidance suggest that this condition merged into an acute posttraumatic stress disorder which he was suffering at the time of his discharge.
The fact that he was also witnessed on the roof of the officer’s quarters, an act which is suggestive of the possibility that he was suicidal, is a further concurrent observation that is suggestive that he was suffering from a psychiatric disorder at that time.
The fact that he did not indicate that he had a mental disorder or that this was not detected by the discharging medical officer is commonplace. In 2011, I was the Principal Investigator of the Australian Defence Force Mental Health Prevalence Study ... This study highlighted that there is a significant percentage of individuals with a psychiatric disorder in the Australian Defence Force who have neither been diagnosed by the medical services nor declared their condition. The data also suggests that a number of individuals leave the ADF suffering from mental disorder without this ever having been identified by their discharge medical officer. This report is consistent with the condition experienced by Mr Stack not having been diagnosed or declared at the time of his discharge.
Summary
Having considered the relevant documents, in contrast to my earlier reports of 2009, I am now of the opinion that on the balance of probabilities, Mr George Stack was suffering from a psychological disorder at the time of his discharge from the Australian Defence Force. This disorder would have been sufficient to lead to a medical discharge, particularly in the context of the physical injuries he sustained and the disciplinary actions against him. He would not have been deemed fit for Vietnam service ... ‘
By letter dated 27 September, 2012 Brig. Bottrell wrote to Mr Stack on behalf of the Minister, confirming that the statutory declarations provided supported the opinion of Gp. Capt. McFarlane in his second report, but Brig. Bottrell went on to confirm the decision of Brig. Brennan and reiterated the reasons expressed by Brig. Brennan.
On 17 December, 2012 Col. Stothart responded to Mr Stack’s request for review of May, 2012. He made the same decision as the two earlier decisions. Col. Stothart relied on the report from Joint Health Command as follows:
a. Professor McFarlane notes that in the preparation of his report he did not interview Mr Stack and assumed that all information provided by him was factually correct. He also notes that his report is limited to the documents that he examined. His report appears to be based on a personal statement from Mr Stack dated 1January 2012 which was not submitted for review, as well as earlier documentation and correspondence. DMM has no confirmation that Professor McFarlane has been privy to the extensive documentation available in relation to this matter.
b. The report by Professor McFarlane contains information that is inconsistent with and not supported by documentation created at or around the time in question. It also contains information which is not factually correct. DMM notes Professor McFarlane’s opinion that, on the balance of probabilities, Mr. Stack was suffering from a psychological disorder at the time of this discharge. An assessment of the level of resulting disability is not offered.
c. No new contemporaneous evidence has been provided that can better describe what level of functional ability or disability Mr Stack may have had at the time of his discharge from the Army. The presence of a subsequently diagnosed psychological disorder is not sufficient to make such a determination.
d. On the information presented, it is still not possible to assess that Mr Stack could have been medically discharged and the JHC position remains unchanged, which is that the original mode of discharge was appropriate.
By letter dated 20 December, 2012 to Col. Stothart, Mr Stack sought reasons for Col. Stothart’s decision. By email dated 11 January, 2013, Mr Stack sent a letter requesting reconsideration of Col. Stothart’s decision. By email dated 24 December, 2012 to Ms Murray he also requested reasons for the decision.
By letter dated 14 January, 2013 Suzanne Smith of the Department of Defence responded indicating that Col. Stothart’s decision remained unchanged.
On 14 February, 2013 Gp. Capt. McFarlane provided a further report to Mr Stack’s solicitor that dealt again with the extent of Mr Stack’s mental incapacity at the time of discharge. Gp. Capt. McFarlane elaborates on his previous reference to ‘acute’ disorder, and opines that Mr Stack’s behavior is ‘suggestive of a significant disruption of his capacity to function’. This report was not before Col. Stothart when he made the subject decision.
The grounds of review
As the Chief of Army points out, when Mr Stack commenced these proceedings his grounds of review were substantially different to the grounds now pressed. Mr Stack’s original grounds are found in the draft originating application attached to his application for an extension of time filed to commence these proceedings. He has not filed an application that otherwise sets out his grounds of review. However, the written submissions filed on his behalf make it clear that Mr Stack now relies upon two grounds of review provided in s.5(1) of the ADJR Act to support his application. First, he argues that a breach of the rules of natural justice occurred in connection with the making of the decision, more specifically that the decision-maker was not free from bias (s.5(1)(a) of the Act). Second, relying upon s.5(1)(e) of the ADJR Act, he argues that the making of the decision was an improper exercise of the power conferred by s.51(6) of the Defence Forces Retirement Benefits Act because Col. Stothart:
a)failed to take a relevant consideration into account in the exercise of a power (s.5(2)(b));
b)took an irrelevant consideration into account in the exercise of the power (s.5(2)(a));
c)exercised the power for a purpose other than a purpose for which the power was conferred (s.5(2)(c));
d)exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case (s.5(2)(f)); and
e)exercised a power so unreasonably that no reasonable person could have so exercised the power (s.5(2)(g)).
I will deal with each of those two grounds in turn.
Bias
The parties agree that the decision to be made by the Chief of Army of his delegate pursuant to s.51(6) of the Defence Forces Retirement Benefits Act attracted, on the part of Mr Stack a right to receive, and on the part of the Chief of Army a duty to give Mr Stack, a fair hearing, the opportunity to present his case, a decision made by an unbiased or disinterested decision-maker and a decision based on logically probative evidence: see for example Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. He was entitled to procedural fairness. In that respect, a reasonable apprehension that a decision-maker might not have brought an impartial, unbiased, fair and independent mind to the resolution of the question for his determination may constitute an infringement of the rules of natural justice: Minister for Immigration and Ethnic Affairs v Jah-Smail (1982) 40 ALR 341. A reasonable apprehension of bias will arise where it would be reasonable for the general public or one of the parties to suspect the decision-maker of not bringing an unprejudiced and impartial mind to the solution of the issues before him: Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1.
In the context of an administrative decision such as the one presently under consideration, the question to be determined is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[31]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80; Isbester v Knox City Council (2015) 255 CLR 135 at [20]-[23], [57].
An allegation of a reasonable apprehension of bias on the part of the decision-maker must be “firmly established”: SZRUI at [22], Re JRL; ex parte CJL (1986) 161 CLR 342 at 352. The allegation must be “distinctly made and clearly proved”: SZRUI at [22]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. It will not be sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: SZRUI at [22]; Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] per Weinberg J.
Even more so an allegation of actual bias. To demonstrate actual bias, an applicant must show that “the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case.”: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 551. Where an applicant can demonstrate that the views of the decision-maker were incapable of being altered because the decision-maker had unfairly prejudged the case, actual bias will be established.
Mr Stack submits that there is overwhelming evidence of both imputed and actual bias in the views of “the decision-maker”. He argues that this is because the information that “fed the ultimate decision, and the basis upon which the ultimate decision was made”, was based upon the views and advice of Col. Wells who was, it is argued, clearly affected by bias against Mr Stack from the outset.
Mr Stack points to the annotations made by Col. Wells on the various documents I have identified above as indicating such prejudgment and closed-mindedness as to constitute, if not actual bias, then certainly apparent bias. In particular, Mr Stack points to the use of words such as: “CRAP!” “what rubbish!”, “Rubbish!” and “Idiot” as indicative of those things.
Mr Stack makes particular reference to:
a)the annotated 19 page letter dated 9 January, 2010 from Mr Stack to the Minister for Defence which contains annotations by Col. Wells and in particular an annotation: ‘‘Irrelevant to status at discharge in 1971” immediately following the statement of the Commonwealth accepting liability for post traumatic stress disorder caused by the munitions incident;
b)Col. Wells’ letter dated 21 January, 2009 in which he said: “most have a more legitimate basis (than Stack’s), arising from combat service in Vietnam”;
c)Col. Wells’ statement made on 30 April, 2009 that “there are many currently serving that could be discharged medically unfit but remain accepted for continued service through commitment and motivation”, and on 1 June, 2009 when he said to Gp. Capt. McFarlane in an email: “the drivers of discharge appear to be the motivation and commitment of a member”.
Whilst the use of the impugned words and the statements indicate strong views, they must be seen in context. It is clear from the evidence that Col. Wells and others such as Brig. Brennan took the view that there was a difference between a member having an affliction or condition such as post traumatic stress disorder and that member being able to discharge on medical grounds. The concern about that was a legitimate concern because s.51(6) directed attention to whether the member could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. The comments about which Mr Stack complains were directed to various matters advanced by him when his claim was based upon nothing more than the fact that he had been diagnosed with post traumatic stress disorder that was caused by or connected with the munitions incident. Col. Wells’ response to that as indicated by his annotations, whilst expressed in strong and emphatic language, reflected his view that by reason of the diagnosis alone, Mr Stack’s discharge could not be re-classified. That view was correct because s.51(6) was not directed to the existence of a diagnosis, acceptance of that diagnosis by others, or any casual connection between service and the condition so diagnosed. Rather, it was concerned with whether the requirements for retirement for invalidity were present, or whether there was an incapacity to perform duties such that a member could have been retired.
It is in that context that Col. Wells made the comments, for example, that: “there are many currently serving that could be discharged medically unfit but remain accepted for continued service through commitment and motivation” and that “the drivers of discharge appear to be the motivation and commitment of a member”. I do not accept that those statements lead to the clear inference that in Col. Wells’ view, if someone is discharged with symptoms, it is because they are not motivated or committed enough to stay in the Defence Force, not that the symptoms might be real or significant and prevent that person from being able to perform their duties. I do not accept that it appears from that comment that Col. Wells has closed his mind to consideration of the possibility of a legitimate driver of a medical discharge being post traumatic stress disorder. The various Minutes authored by Col. Wells make it clear that his concern was to find evidence of a contemporaneous nature which indicated that the condition, whatever it might be, impacted upon the member so that it could be said that he or she could have been retired for the relevant reasons at the time he was actually discharged.
The submissions for Mr Stack draw my attention to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 in which Kirby J said, at 549:
The test for imputed bias, which has now been accepted by this Court, is expressed in terms of possibilities (might) rather than of the proof of a “high probability” of bias inconsistent with the fair performance of public duties, that was formerly the accepted criterion.
Mr Stack argues that the statements and annotations to which he has referred unequivocally demonstrate the possibility of bias inconsistent with the fair performance of the decision-making duty. He also submits that they demonstrate actual bias on the part of Col. Wells. However, in my view, Col. Wells’ comments and annotations do not indicate the mind of someone who has clearly predetermined the issue and who is unlikely to alter that view regardless of the merits of the particular case, but rather are nothing more than a robust expression of Col. Wells’ assessment of the matters raised by Mr Stack in the context of the question that needed to be addressed.
Mr Stack also points to Col. Wells’ conduct as displaying the necessary qualities to engage the principles relating to actual or apprehended bias. He submits that following receipt of Gp. Capt. “McFarlane’s opinions, Wells passed on a grossly sanitised, inaccurate and misleading summation of McFarlane’s opinion that McFarlane does not provide a definitive opinion but indicates that he will not be addressing the case of Mr Stack in detail and he points out the difficulty of assessing such matters”. Mr Stack submits that Col. Wells’ summation of Gp. Capt. McFarlane’s expert opinion in such a way is demonstrative of bias and possibly, bad faith.
However, Col. Wells description of Gp. Capt. McFarlane’s opinion is accurate. It is almost precisely what he said in the first paragraph of that part of his report that related to Mr Stack. In any event, even if the content of the report was inaccurately summarised, the report was attached to the Defence Position Brief dated 22 September, 2009. That was not an advice, or a document that was before Col. Stothart when he made the subject decision.
Mr Stack argues that the annotations on the copy of Dr Balkin’s report dated 24 March, 2010 demonstrate bias on the part of Col. Wells. He argues that Dr Balkins’ opinion was “yet another professional opinion that the applicant was likely to be suffering from post traumatic stress disorder at the time of his discharge from the army”. Nonetheless, Col. Wells was of the view that the opinion: “makes no difference to past opinions and decisions as provides no new evidence”. Mr Stack argues that: “Clearly, in the face of a further professional expert opinion, such opinion is positively disregarded by Wells. Such behaviour indicates bias, a prejudging and a refusal to contemplate the matter objectively and impartially.”
However, the comment by Col. Wells is accurate and not indicative of bias. I have set out what Dr Balkin said above. By the time of Dr Balkin’s report, there was no dispute that Mr Stack was suffering from post traumatic stress disorder at the time of his administrative discharge from the Army. But, that was not the question. The question was whether he could have been discharged on the grounds of invalidity or incapacity to perform his duties. The answer to that question must be a function of the effect upon Mr Stack of his post traumatic stress disorder. As to that Dr Balkin said that (my emphasis):
The issue of whether he should have been medically discharged from the army in the early 1970s is complex. It is likely that he was suffering from Post Traumatic Stress Disorder at the time of his administrative discharge from the army. However, detailed perusal of his army medical notes does not provide evidence that he presented with symptoms of psychological distress or medical impairment in his capacity to work in the army.
Even if I am in error and the material pointed to by Mr Stack is indeed such that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that Col. Wells might not have brought an impartial mind to making the decision, Mr Stack’s claim on this ground must nonetheless fail. Col. Wells was not the decision maker. Col. Stothart was the relevant decision maker. There is no evidence of any actual bias on his part. Mr Stack does not identify anything that suggests actual bias on the part of Col. Stothart. On Mr Stack’s case, Col Stothart’s decision was informed by “various minutes, reports and advices”. The material considered by him is set out in his determination. Mr Stack argues that a determination of the question of bias must necessarily involve careful consideration of the validity of “the antecedent findings”. But the critical “antecedent finding” upon which Col. Stothart’s decision is based, having regard to the Defence Position Brief, is the lack of any contemporaneous written medical evidence that was suggestive of Mr Stack showing any psychological symptoms at the time of his discharge. That “antecedent finding” was entirely accurate. No evidence of that character was identified by Mr Stack in the course of this application that would demonstrate that “finding” to be false.
I accept the submission for the Chief of Army that there is no basis for attributing an apprehension of bias to Col. Stothart. As the submissions for the Chief of Army point out, there is nothing unusual about a person charged with the responsibility of advising on decisions, in fact, affecting the mind of the decision-maker. I accept that the fact that Col. Wells has placed notations on documents that disclose his view of various matters does not permit a conclusion that there is a reasonable apprehension that Col. Stothart may be affected by bias. There is no suggestion that Col. Stothart saw any of them. According to his decision the material to which he had access for the purposes of making the decision was limited. As the first respondent submits, no logical connection between whatever might be said to be Col. Wells’ views arising from the annotations on the documents and a deviation by Col. Stothart from the course of deciding the application on its merits is demonstrated by the evidence.
Mr Stack’s case requires the Court to draw an inference that the conduct and views of Col. Wells reflects Col. Stothart’s state of mind when he made the relevant decision. But there is evidence as to what it was that Col Stothart took into account, namely: “In making my determination, I have arrived at this decision from my own independent assessment of all the factors presented to me in the Defence Position Brief. In any event, views expressed by persons associated with a judge or decision-maker are not generally sufficient to disqualify a judge or decision-maker.
Improper exercise of power
Failure to take a relevant consideration into amount
The first matter relied upon by Mr Stack is what is contended to be a failure by the decision maker to take into account a relevant consideration. If Mr Stack demonstrates that the decision maker has failed to take into account, by giving genuine, proper or effective consideration to a matter that the decision maker is bound to take into account, he may succeed on this ground.
Mr Stack submits that Col. Stothart, having come to the conclusion that Mr Stack was in fact suffering from post traumatic stress disorder at the time of his discharge as a result of the munitions incident, was under an implied obligation to properly examine and investigate the contention that the post traumatic stress disorder suffered was sufficient such that Mr Stack could have been medically discharged.
Mr Stack contends that once he accepted that Mr Stack did suffer from post traumatic stress disorder at the time of discharge, Col. Stothart in his decision “moves the goal-posts” by concluding that there is no contemporaneous evidence of the level of functional disability and on that basis re-affirms the previous decision to reject the applicant. However, in my view, Col. Stothart did not do that because the level of Mr Stack’s impairment was the very issue that concerned the Chief of Army (through Col. Wells) from the outset. The question of whether a member could have been retired on invalidity of incapacity grounds necessarily requires an assessment of the member’s invalidity or incapacity. That is not answered by reference to a diagnosis alone but requires evidence of the effect of the diagnosed condition upon the member concerned. Mr Stack’s approach, as revealed by his first application, was that because he had been diagnosed with post traumatic stress disorder and because it had been connected with the munitions incident, he needed to establish nothing else to have his retirement re-categorised.
A consistent theme in the material from Col. Wells was the necessity to identify some contemporaneous evidence at the time of Mr Stack’s discharge that showed his level of invalidity or impairment. Because his medical record had been lost, it was of no assistance. The other contemporaneous documents did not demonstrate any invalidity or impairment.
Mr Stack argues that there was clear evidence of the level of functional disability that could have, but was not taken into account. In particular he points to the reports of Gp. Capt. McFarlane dated 1 May, 2012 and the fact that in the report of Joint Health Command to Stothart on 2 September, 2012 it said:
No new contemporaneous evidence has been provided that can better describe what level of functional ability or disability Mr Stack may have had at the time of his discharge from the Army. The presence of a subsequently diagnosed psychological disorder is not sufficient to make such a determination.
Although Mr Stack contends that the conclusion “is quite wrong because the Joint Health Command had before it the report of Professor McFarlane”, the advice is not inaccurate. Gp. Capt. McFarlane’s report did not contain any new contemporaneous evidence which described Mr Stack’s functional ability or disability.
In any event, it is clear from the report of Joint Health Command considered by Col. Stothart that the report of Gp. Capt. McFarlane was given consideration. As the respondent submits, the real complaint is that not enough weight was given to aspects of the reports of Gp. Capt. McFarlane or that his evidence was not used in a fashion, to a degree, or with the weighing that Mr Stack might have hoped for.
In my view, the decision maker has not failed to consider a relevant consideration.
Taking an irrelevant consideration into account
… in order to successfully impugn an administrative decision on such a ground, a challenger must satisfy the Court that the particular consideration was in fact taken into account; that the consideration was irrelevant in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and that the applicable statutory provisions have the effect that the taking the consideration into account will result in the invalidity of the relevant decision.
Sunshine Co Pty Ltd v Australian v Communications and Media Authority [2012] FCA 1205 at 104
Mr Stack identifies that Col. Well's draft document dated 30 April, 2009 refers to Mr Stack as “a very active advocate for other ex-members”. Mr Stack submits that this annotation demonstrates that the contents of this notation have been “given some weight, because otherwise there would be no need to mention that fact”. He further argues that “There is obviously nothing in the relevant Act permitting consideration of such a factor.”
Mr Stack argues that I should infer from the inclusion of the reference to Mr Stack being an 'active advocate', if considered with Col. Well's reference to 'significant financial implications' in the same document that in making this observation Col. Wells is indicating that a decision in favour of this particular applicant will open the flood gates and have serious financial implications. He argues that the clear purpose for which the power is conferred under the Act is not to restrict those ex-serviceman who are entitled to the benefit, in order to save the Commonwealth money.
But that is to misstate the test. The question is whether under the applicable statutory provisions the taking into account of the matter was impermissible. I was taken to nothing in the Act to make good that contention.
In any event, assuming the matter to be irrelevant, as the submissions of the Chief of Army point out, I must be satisfied that it was taken into account. I cannot be satisfied of that because temporally, it is removed from Col. Stothart’s decision and there is no evidence that he in fact took it into account. There is no evidence that he was aware of the observation or knew of it being made.
Exercise of a power for a purpose other than a purpose for which the power is conferred
An administrative decision can be challenged on the ground that it was made for an ulterior or improper purpose. The improper purpose must be demonstrated to a substantial purpose, that is, without that purpose, the decision would not have been made. The improper purpose must be the operative subjective purpose of the decision-maker.
Here, Mr Stack contends that it is apparent on the evidence that in making the ultimate decision in question, Col. Stothart, “through Wells' and others’ direction and advice, exercised the power for a purpose/s far outside the purpose for which the power is conferred”.
Mr Stack argues that Col. Wells highlights several factors that indicate “the operative subjective purpose behind his decision-making”. These factors are set out in a document dated 30 April, 2009 authored by Col. Wells, it is said, that specifically dealt with how these types of applications are to be dealt with, and which specifically referred to Mr Stack’s case in detail. In that document, Col. Wells highlights the following:
a)increasing number of claims by ex-serviceman;
b)significant financial implications; and
c)potential political sensitivities;
d)the costs to the Government for back-dated pensions can be quite large;
e)publicity, including direct approaches to the media and the Minister can cause 'difficulties' for JHC; and
f)significant ramifications of allowing claims of all veterans who now suffer from significant PTSD (a large portion of Vietnam veterans).
Mr Stack argues that the document highlights the “significant cloud of doubt surrounding the purpose for which the decision to refuse the Applicant's application was made”. He contends that there were very significant other purposes at play and operative in the mind of Col. Wells at the time, such that these considerations were committed to a draft memo on file.
However, I reject these contentions. Col. Wells was not the decision maker at issue. There is no evidence that Col. Stothart had seen or knew of the matters referred to by Col. Wells in the draft memorandum. There is no evidence that whatever it is that is represented by Col. Wells’ comments, it formed the operative subjective purpose of Col. Stothart.
As the submissions for the respondent point out: “The ‘purpose other than a purpose for which the power is conferred’, must be attributable, as matter of evidence, to ‘an exercise of power’. In this case, the ‘exercise of power’ is the power exercised by the delegate under s.51(6) of the DFRB Act. The applicant has not and cannot attribute a prohibited purpose to the decision of Colonel Stothart - and that improper purpose must be demonstrated subjectively.”
Finally, as the submission for the respondent also point out (footnotes omitted):
[38]… The application of s 5(2)(c) of the AD(JR) Act to subs 51(6) of the DFRB Act requires three steps, those being that:
(a) the purpose of sub-section 51(6) of the DFRB Act must be correctly construed;
(b) some other purpose (which is not permitted), than the purpose identified at (a) must be made out; and
(c) “an exercise of a power” must be shown, which is for a purpose identified in (b) above, but “other than” a purpose identified in (a) above.
[39] The applicant has failed to do this. The applicant has not sought to identify the purpose of the power, nor has the applicant identified how the notations of Colonel Wells and others are purposes other than a purpose for which the power is conferred. Simply asserting that notations or comments on documents might suggest the adherence to a policy or rule does not contradict the purpose for which the power is conferred, nor does it evince that the exercise of a power was for a purpose other than a purpose for which the power is conferred.
The ground of review must fail.
Exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case
Mr Stack argues that the evidence demonstrates that the decision maker has adhered to a policy rather than giving proper, genuine and realistic consideration to the merits of Mr Stack’s case. The policy, he says, is evidenced by the memo authored by Col. Wells entitled Invalidity Considerations – Decision Making Process for Mental Health Considerations and dated 30 April, 2009.
However, that document is expressly described as a draft. There is no evidence that it became anything more than that or that Col. Stothart was aware of the draft policy. As the respondent points out, there is no evidence that Col. Stothart has fettered the exercise of his discretion conferred by s.51(6) of the Act.
To the extent that Mr Stack suggests that there was a rigid or inflexible policy that prevented the acceptance of an application like Mr Stack’s in the absence of contemporaneous written medical evidence demonstrating that the claims made by the member were manifest when he or she was discharged, there is no evidence of such a rigid or inflexible policy. To the extent that Col. Wells mentions such a policy, the reference is to what “generally” had been or would be the case. In my view there is no suggestion that it was a rule or policy that was applied inflexibly in every case.
Policy considerations often inform the decisions of administrative decision makers. The question is whether the policy is applied inflexibly and rigidly so as to lead the Court to conclude that the decision maker has not exercised the discretion reposed in him or her, or in some way impermissibly fettered the exercise of the discretion.
As the respondent points out, the balancing of various considerations (unless expressly or implied prohibited by the text of the statutory provision) are the very provenance of the decision-maker. As Gaudron, Gummow and Hayne JJ said in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 455:
[50] There may be cases in which a decision-maker, especially a Minister, may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office. It has been said that "the whole object" of a statut01y provision placing a power into the hands of the Minister "is that he may exercise it according to government policy". It would be wrong to assume that in every case a decision maker can act only if he or she has the same level of independence and security as a judge and, in that sense, has nothing to gain or lose from the decision made.
Here, the insistence upon contemporaneous evidence that demonstrated the extent or Mr Stack’s invalidity or incapacity at the time of his discharge was necessary because the contemporaneous evidence that was available and which dealt with his health at the time of his injuries from the munitions incident and his subsequent discharge revealed no mental health concerns.
In my view, there was no rigid application of policy. Rather there was a conscientious insistence upon the provision of evidence of a particular kind to support Mr Stack’s application having regard to the facts of his case.
This ground of review has no merit.
Exercise of a power that is so unreasonable that no reasonable person could have exercised the power
Mr Stack argues that Col. Stothart has exercised the power under s.51(6) of the Act in a manner that is so unreasonable that no reasonable person could have so exercised the power. He argues that s.5(2)(g) of the AD(JR) Act is engaged.
As Mr Stack points out, in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 Wilcox J referred to this ground as being concerned with the manner of exercising of a power and in particular if it is exercised “in a manner so devoid of any plausible justification that no reasonable person could have taken this course”.
Mr Stack points out that an administrative decision might be seen as legally unreasonable when, it being an occasion appropriate to do so, a decision maker fails to make inquiries where it is apparent that material which is relevant is readily available.
Here Mr Stack argues that there has been a total lack of inquiry into the level of functional disability possessed by Mr Stack at the time of his discharge and that amounted to an improper exercise of power. He argues that this is because that issue was not only relevant but formed the entire basis of the decision to refuse his application. Mr Stack argues that the issue became the issue of paramount importance in this case following the Army accepting the existence of post traumatic stress disorder at the time of discharge as a consequence of the munitions incident.
Mr Stack relies upon a report of Gp. Capt. McFarlane given after the relevant decision under consideration in this case. The report is dated 14 February, 2013. Mr Stack contends that the report provides very clear evidence that would have been to hand had appropriate inquiries been undertaken and in light of that expert opinion and that there can be no doubt that the only decision that could properly and lawfully be made in light of that evidence, would be one in favour of Mr Stack.
Further, Mr Stack argues that placing a requirement upon him to produce contemporaneous evidence demonstrating the extent of his invalidity or disability in circumstances where the Army had lost his medical record demonstrates the unreasonable nature of Col. Stothart’s decision.
Mr Stack argues that the point is illustrated by Col. Well's second decision and his Minute dated 3 June, 2010 the contents of which found their way into the letter to the Ombudsman and which relevantly included:
* What specific medical evidence would Mr Stack need to provide in order to support consideration of a retrospective change to his discharge?
Mr Stack would need to provide contemporaneous evidence of having reported or been treated for a medical condition that would have likely lead to him being medically discharged. To be considered relevant, the reporting or treatment of such a condition would need to have occurred within a year or so of discharge.
Mr Stack argues that further evidence of unreasonableness comes from Col. Wells’ memo dated 30 April, 2009 I have set out above. In that memo Col. Wells acknowledges that a person could be suffering sufficiently such that they could be medically discharged notwithstanding that they are still capable of remaining in the Army. Mr Stack submits that “it is grossly unreasonable for Wells and others involved in the decision-making to maintain the position that the Applicant could have been re-deployed and therefore could not have been medically discharged”.
However, the respondent did not contend that to meet the requirements for re-categorisation pursuant to s.51(6) of the Act, Mr Stack needed to be ineligible for continued service. All that was suggested was that there was a need to ascertain the level of invalidity or impairment of the particular member concerned to determine if he or she could have been medically discharged. The statements made by Col. Wells are an explanation of that proposition.
Mr Stack also submits that Col. Wells' report of 26 August, 2009 is “unreasonable in light of the report of Gp. Capt. McFarlane that precedes it. In his report Wells totally disregards Professor McFarlane's opinion. In light of Professor McFarlane's observations, particularly regarding the difficulties in the present case where dominant physical injuries existed at the time of discharge, Well's conclusions reached therein are unreasonable.” However, whether that is so or not, and I do not accept that it is, it is not to the point. It is the decision of Col. Stothart that needs to be tested for unreasonableness.
Mr Stack seeks to demonstrate unreasonableness in Col. Stothart’s decision by submitting that having regard to Gp. Capt. McFarlane’s reports, Col. Stothart should have come to a different decision. But, the decision that Col. Stothart come to was open to him. Others might have made a different decision, but that is not the test. Reasonable minds can reasonably differ.
I think that the respondent’s submission that, in truth, what Mr Stack is attempting is to impugn the administrative actions of Col. Wells, rather than attribute unreasonableness in the legal sense to the decision of Col. Stothart. His submissions focus upon Col. Well's acts or omissions, not those of Col. Stothart. The evidence does not suggest that those acts or omissions colour the decision of Col. Stothart.
Conclusion
In my view, Mr Stack does not establish his grounds of review. The decision of Col. Stothart as delegate of the Chief of Army was not affected by apprehended or actual bias. Nor was it an improper exercise of the power provided for in s.51(6) of the Defence Forces Retirement Benefits Act.
Mr Stack’s application must be dismissed with costs.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 July, 2016.
Date: 15 July, 2016
0
16
5