FEDERAL COURT OF AUSTRALIA Morris v Repatriation Commission [1999] FCA 186 WILLIAM HAROLD MORRIS V REPATRIATION COMMISSION QG 45 OF 1998 SPENDER J 2 MARCH 1999 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 45 OF 1998 ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: WILLIAM HAROLD MORRIS Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: SPENDER J DATE OF ORDER: 2 MARCH 1999 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application is dismissed with costs, to be taxed if not agreed. Note: 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 QG 45 OF 1998 ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: WILLIAM HAROLD MORRIS Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: SPENDER J DATE: 2 MARCH 1999 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 from a decision given by Deputy President Forgie in Brisbane on 7 May 1998. That decision was as follows: "UPON APPLICATION of the applicant lodged on 26 July,1996 for review of a decision of the respondent dated 12 January 1996 and affirmed by the Veterans' Review Board in a decision dated 20 June, 1996 AND UPON the Tribunal's having made a decision on 5 February, 1997 AND UPON the Federal Court of Australia's on 18 November, 1997 having on appeal by the present respondent set aside that decision and remitted the matter to the tribunal for reconsideration AND UPON hearing Mr Morris and Mr O'Connor on the applicant's behalf and Mr Derrington of counsel on behalf of the respondent THE TRIBUNAL DECIDES that the determination of the delegate of the respondent dated 12 January, 1996 as affirmed by the Veteran's (sic) Review Board on 20 June, 1996 be affirmed. 2 The amended notice of appeal filed on 24 August 1998 refers to a number of matters, but nowhere does there seem to be any identification of an error of law in Deputy President Forgie's decision. 3 In his submissions to the Federal Court, Mr Morris makes a number of factual submissions, alleging that in a number of respects errors have been made in his diagnosis and indeed in his treatment. In particular, there is a complaint concerning a Dr Grant, and a complaint that a doctor, described by Mr Morris as "the Indian doctor" in Perth mis-diagnosed Mr Morris. And there is also in the notice of appeal reference to evidence of the physical condition of Mr Morris's service on the HMAS Sydney, which included, amongst other things, sleeping on the mess deck in the company of rats, and also the variations in temperature in the conditions in which Mr Morris worked on the HMAS Sydney. 4 In the decision which was the decision affirmed by the Administrative Appeals Tribunal and which is the subject of this appeal, the delegate of the respondent referred to the application for increased disability pension made by Mr Morris on 12 December 1995. 5 Mr Morris had in August 1982 been granted a disability pension at the 20 per cent rate. In December 1984 the then Repatriation Board determined that Mr Morris's disability pension be assessed at 50% of the General Rate of pension payable under the Repatriation Act 1920. In September 1986, his disability pension was increased to 100%. In April 1987 the Administrative Appeals Tribunal rejected the claim by Mr Morris for a TPI pension. The Tribunal in 1987 was constituted by the Honourable J.B.K. Williams CBE, Brigadier I.R.W. Brumfield and Dr J. Francis. It decided that "Mr Morris did not qualify for either the Immediate Rate of pension provided for by s 23 of the Veterans' Entitlements Act 1986 or the Special Rate of pension provided for by s 24 of that Act". It gave oral reasons for its decision in that regard, and furnished written reasons dated 22 April 1987. 6 In the course of the hearing leading to that decision, it is clear that the Administrative Appeals Tribunal accepted that Mr Morris had emphysema, and had a partial or complete bundle branch block. Dr Francis, one of the members, and the medically qualified member of the Tribunal, in the course of the submissions made by Mr Morris to the Administrative Appeals Tribunal in 1987 said: "Now, I firmly believe you have emphysema. I firmly believe you have partial or complete - two different versions - bundle branch block. It, in itself, is not an enormous capacity." And he continues: "I am not talking about war service. You can be 100 per cent for your emphysema. You could be 100 per cent for your cardiac problems, and you could be 100 per cent for your asthma, but that does not make you 300 per cent, because, once you get to 100 per cent, you cannot get any higher." 7 In relation to the decision which is the subject of Deputy President Forgie's decision and the basis for the appeal to this court, Mr Gould, the delegate of the Repatriation Commission, refused the application for increase in disability pension and decided that the pension is to be continued at 100 per cent of the general rate. 8 He said in the course of his written reasons, dated 12 January 1996: "When pension is assessed at 100% of the General Rate [as is the case with Mr Morris], or on application, I must decide whether or not the Intermediate Rate, the Special Rate or Extreme Disablement Adjustment is payable…..I have decided that none of these rates are payable. My reasons follow:" And then he said: "You are currently in receipt of pension at 100 percent of the General Rate for your war-caused incapacity. This is the maximum pension payable as compensation for suffering and diminished quality of life. The legislation contains specific requirements for payment of pension at rates which are higher than the General Rate of 100 percent such as the Intermediate Rate, the Special Rate (TPI) and Extreme Disablement Adjustment Rate. When pension is assessed at 70 percent of the General Rate or higher I must decide whether or not the Intermediate Rate or the Special Rate is payable. Similarly, when pension is decided at 100 percent of General Rate I must decide whether or not the Extreme Disablement Adjustment can be paid. I note that you are now 73 years of age and you have passed into an age group where you would be considered generally unemployable in the ordinary labour market (irrespective of war-caused incapacity) and where retirement is the community norm. Pension is not, therefore, payable at the Intermediate Rate or the Special Rate as it is not War-caused incapacity alone that is causing you to suffer a loss of earnings. (Your age would also prevent your engaging in remunerative employment.) The Extreme Disablement Adjustment (EDA) can be paid to severely disabled veterans who can not qualify for the Intermediate Rate or Special Rate pensions. There are several conditions that must all be satisfied before EDA can be granted. One of these conditions is that you must have a lifestyle rating of at least 6 in relation to your war caused disabilities. 9 He then referred to the assessment of the overall lifestyle rating at 3, and continued: "As you do not meet the minimum requirements of an average lifestyle rating of at least 6 you are not eligible for payment of pension at the Extreme Disablement Adjustment Rate. Disability pension therefore remains payable at the current rate of 100 percent of General Rate. 10 When the matter was before the Administrative Appeals Tribunal constituted by Deputy President Breen in 1997, there were further assessments made of the correct lifestyle assessment figure. 11 The assessment by Dr Peter Grant appears in the Appeal material and is dated 23 April 1998. On that same day John S. Sherrell, the Manager, External Review, of the respondent made a life-style assessment. Mr Sherrell reached a total rating of 4.25, rounded to an overall rating of 4, which is insufficient to entitle Mr Morris to the EDA Rate. 12 When the matter was before Deputy President Forgie, submissions were made by Mr O'Connor and Mr Morris concerning the possible application of s 31(4) of the Veterans' Entitlements Act 1986 to events that occurred in 1984 to 1987. It was contended that the statement by Dr Tandon that Mr Morris does not suffer from emphysema was to be contrasted with the statement by Dr Francis in the course of the Board's deliberation in 1987, that it was plain that Mr Morris suffered both from emphysema and from partial or complete bundle branch block. The basis of assessment by the Administrative Appeals Tribunal in 1987 fairly canvassed the question of his entitlement which he now claims he should have been awarded then. No error has been shown in the approach taken by Deputy President Forgie to the possible application of s 31(4) to the decisions made in 1987. 13 It seems to me that Mr Morris fails to appreciate the requirements of provisions of ss 23 and 24 of the Veterans' Entitlements Act. The decision of the Administrative Appeals Tribunal in 1987 did not appear to Deputy President Forgie to be erroneous, and no error has been shown in the making of that conclusion. Indeed, a close reading of the reasons for the decision of the Administrative Appeals Tribunal and a knowledge of the members of that Tribunal would satisfy me, if it were necessary so to do, that Mr Morris received the benefit of a very careful and experienced adjudication of his claim in 1987 by members of the Tribunal who were both experienced and extremely sensitive to the genuine claims of veterans and to their entitlements under the Repatriation legislation. 14 When the matter was before Deputy President Forgie, the question was 'is there some way in which the decision made in 1996 by the delegate of the Repatriation Commission, that there was an insufficient average lifestyle rating to require or permit the payment of the Extreme Disability Adjustment was incorrect?'. Quite simply, the material before Deputy President Forgie did not entitle the Tribunal to be satisfied that Mr Morris should be granted the Extreme Disability Disablement Adjustment. 15 Notwithstanding the many complaints of serious error in the past that Mr Morris has advanced to this Court, and the documentary material which he has placed before the Court in support of his submissions in that regard, the fact is, unfortunately for Mr Morris, that this Court is concerned with the establishment of legal error in the Administrative Appeals Tribunal's decision and, in the absence of demonstration of legal error, there is no power in this Court to interfere with the decision that was made by the Tribunal on 7 May last year. 16 It may be that Mr Morris does not appreciate the very limited basis upon which this Court can interfere, but be that as it may, on the material before me, no error has been shown in respect of the decision of the Administrative Appeals Tribunal the subject of this application, and the application is dismissed with costs, to be taxed if not agreed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 2 March 1999 The applicant appeared in person. Counsel for the Respondent: Mr R M Derrington Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 March 1999 Date of Judgment: 2 March 1999