IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G53 of 1986 GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT A.N. HALL BETWEEN: GEORGE RESCH Applicant AND: DEPARTMENT OF VETERANS AFFAIRS Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 15 DECEMBER 1986 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be struck out. 2. The applicant pay the respondent's costs of and incidental to the proceedings, to be taxed, including reserved costs. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. | IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G53 of 1986 GENERAL DIVISTON ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT A.N. HALL BETWEEN: GEORGE RESCH Applicant AND: DEPARTMENT OF VETERANS AFFAIRS Respondent PINCUS J. 15 DECEMBER 1986 EX _TEMPORE REASONS FOR JUDGMENT The applicant has purported to appeal from a decision of Deputy President Hall delivered on 11 April 1986. The application to Deputy President Hall was for an order with respect to the refusal of the department to review what was said to be an error in the applicant's medical records. When the purported appeal was filed, an application was made by notice of motion to strike it out as incompetent. The applicant has filed material in response to that notice of motion, which I have read, and has, on more than one occasion, argued his case. The point which is taken by the respondent is that the purported notice of appeal is not such a document as is contemplated by s.44(1) of the Administrative Appeals Tribunal Act because it is not an appeal on a question of law. The notice of appeal commences as follows: "An appeal from the Queensland Division of the Administrative Appeals Tribunal constituted by Deputy President A.N. Hall (only) given on 11 April 1986 Queensland Registry, whereby the Tribunal decided, not to amend a Decision of the Department of Veterans Affairs, Freedom of Information Division not to amend the Applicant's medical description of his spinal disablity to ankylosing spondilitis the name used by the medical profession outside the D.V.A. The order seeks relief in that his spinal disaiblity not to be described as at present as "unspecified spondylopathy with secondary spondilosis" and to be amended to the professional name "ankylosing spondilitis." The attached testimonial in book form gives irrevocable proof of the correct name being ankylosing spondilitis. Its writer is Dr. Ehrlich Director of Rheumatology Clinic Philadelphia USA." The document continues in similar vein, the point having been taken that the document raised no legal issue. Further documents were filed, alluding generally to what might loosely be described as legal matters. However, the further documents and the discussion of the matter by Mr. Resch before me has only made it clearer that, in truth, there is no question of law which he desires to raise. He, as an example, has referred me to document T5, which is a letter from one G. Perkins dated 14 April 1980 referring to a report of a Special Medical Board dated 4 March 1980. That reads in part: "I agree with the recommendations of the Special Medical Board. This report has resolved the conflict to which reference was made in my earlier reports. They found features atypical of both degenerative spondylosis and of ankylosing 3. spondylitis. Nevertheless they thought the origin was a form of inflammatory spondylitis." Mr. Resch in his argument has suggested that the material just referred to supports his case, and has handed the document to me with a note: "typical of ankylosing spondylitis". He seems to be acting under the misapprehension that the finding of features atypical of ankylosing spondylitis supports his case. Leaving that aside, the only questions which he desires to raise, as can be seen from the notice of appeal and from the course the matter has taken, are ones dependent upon the adoption of one medical view rather than another. He raised that point before Deputy President Hall, who said, in para.38 of his reasons: "With respect to the doctors' opinions, there is no evidence to establish (as in RR) that the factual premises upon which those opinions are based is erroneous." He also said in the same paragraph: "In my view, the medical opinions of the departmental medical officers and consultants are now shown to be 'incorrect' merely by producing medical opinions to the contrary - particularly when neither of those opinions are supported by reasons and Where such detail as is available as to the basis of the conflicting diagnosis of Mr. Lahz involves a recognition that the diagnosis is 'atypical' and that the diagnostic criteria applied are 'wider than those of many other acknowledged experts in the field'." The question which I have to determine at this stage is whether there is such a _ proceeding before the court as is contemplated by s.44(1) of the Administrative Appeals Tribunal Act 1975. If that is so, then it appears to me that the matter must be determined by a Full Court under s.44(3), as Mr. North submits. However, I have come to the conclusion that there is no such appeal as is mentioned in s.44(1). The proceeding, on the face of it and in substance, is designed to challenge a merely factual view, namely, that there is evidence on both sides of the question. Apart from that, it seems plainly to be correct that there is evidence on both sides of the question. Ido not, however, purport to decide the factual issue myself, but have come to the conclusion that Mr. Resch neither has raised, nor does he desire to raise, a question of law by way of challenge to the decision of Deputy President Hall. It seems to me that the appropriate course is to act under the inherent jurisdiction of the court and to strike the matter out as being beyond the court's jurisdiction and an abuse of process, and that I propose to do. The appeal will be struck out. The order will be that the applicant pay the respondent's costs of and incidental to the proceedings, to be taxed, including reserved costs. i certify that this and the 3 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr J ustice Pincus 0 ; Associate Dated /S chece. ee 96 |