Stack v Chief of Army - [2016] FCCA 1809

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
Military Rehabilitation and Compensation Act2004
Defence Forces Retirement Benefits Act 1948 (Cth), s.51(6)

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Stack v Chief of Army and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 1809
Decision Date: 15 July 2016

CaseChat Overview and Summary

This case concerned an application by Mr Stack against the Chief of the Army, heard by Judge Jarrett. Mr Stack sought to challenge a decision regarding his administrative discharge from the Army in the early 1970s, arguing that he should have been discharged on the grounds of invalidity or incapacity due to post-traumatic stress disorder (PTSD). The central dispute revolved around whether there was a reasonable apprehension of bias in the decision-making process.

The legal issues before the court were whether Colonel Wells's comments indicated bias, and if so, whether this apprehension of bias could be attributed to Colonel Stothart, the actual decision-maker. The court was required to determine if a hypothetical fair-minded layperson, fully informed of the proceedings, might reasonably apprehend that Colonel Wells did not bring an impartial mind to the decision. Furthermore, the court had to consider whether Colonel Stothart's decision, which was informed by various reports and advices, was tainted by any such apprehension of bias, particularly given the lack of contemporaneous medical evidence supporting Mr Stack's claim of psychological distress at the time of his discharge.

The court reasoned that while Colonel Wells's comments, particularly in his draft Minute concerning invalidity considerations for mental health conditions, expressed a particular approach to assessing retrospective claims for PTSD, they did not demonstrate actual bias. The court found that Colonel Wells was not the decision-maker, and there was no evidence of actual bias on the part of Colonel Stothart. The critical antecedent finding upon which Colonel Stothart's decision was based, namely the lack of contemporaneous medical evidence of psychological symptoms, was found to be accurate. The court accepted that Colonel Wells's views, even if expressed in notations on documents, did not logically connect to any deviation by Colonel Stothart from deciding the application on its merits, especially as there was no suggestion that Colonel Stothart saw these specific documents.

Mr Stack's claim on the ground of apprehended bias failed. The court found no basis for attributing an apprehension of bias to Colonel Stothart, as the evidence did not demonstrate a logical connection between Colonel Wells's views and any potential deviation by Colonel Stothart from deciding the application on its merits.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 Issues4. 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.