Brew v Repatriation Commission [1999] FCA 1246

JUDGE: HEEREY, MERKEL and MANSFIELD JJ

DATE: 10 SEPTEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

HEEREY J: 1 I have had the advantage of reading in draft the reasons of Merkel J. 2 With respect, I am not sure that the issue here can be resolved in terms of a subjective/objective analysis. Sundberg J treated the critical question as one of choice. In his Honour's opinion, a person who chooses not to obtain appropriate clinical management has no relevant "inability". This was consistent with the approach taken by the AAT. 3 However "inability" can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force. Thus a child might say "I am unable to go to the pictures because my mother won't let me". (Probably the child would use the more vernacular term "can't", but the meaning remains the same.) In the sense discussed, a person may have an inability to do something notwithstanding that he or she makes a free choice. Clearly the factor operating on the person's choice would have to be a substantial one before it could be said there was "inability". How substantial is a question of fact, and not capable of definition a priori. Since all agree the present legislation is to be given a beneficial construction, it is appropriate to give "inability" the wider meaning discussed. 4 The critical parts of the AAT's reasoning are pars 40, 41 and 42. 5 Paragraph 40 contrasts the position of, on the one hand, soldiers in battle conditions without medical officers and, on the other hand, the appellant whose very workplace is a hospital, which includes a staff clinic. According to the AAT, the former is a case of "inability", the latter is not. If doctors are present, you are "able" to obtain appropriate clinical management. Therefore there cannot be inability, whatever your reasons for not seeking treatment. 6 Paragraph 41 deals with the central argument of the appellant's case. The last sentence disposes of that argument with a proposition of law which is the AAT's reading of cl 1(e) of the Statement of Principles. If you choose not to have medical treatment by reason of apprehension of some particular consequence there can be no "inability". 7 Paragraph 42 reinforces this reasoning by allowing an exception only where "overwhelming psychological or emotional incapacity … prohibit(s)" a person from obtaining appropriate clinical management. In other words, unless you are stopped by something "overwhelming", there is no inability. The concept of a choice, freely made yet made because of some serious adverse consequence, is excluded. 8 The authorities referred to by Merkel J, which warn against an excessively pedantic approach to judicial review, do not apply to cases like the present where the decision-maker has applied an incorrect legal standard. 9 For someone like the appellant, a member of the Armed Services working in a military establishment in wartime, a group culture against seeking medical treatment could operate as a powerful disincentive. Whether that amounted to "inability" was something the appellant was entitled to have considered on the merits. 10 It is accepted that the argument in par 43 was not put to the appellant at the hearing. As a matter of procedural fairness, this argument raises matters which would need to be examined further. For example, Dr Myers said that treatment of the appellant's condition according to the medical techniques then in use would have involved time off, injections and possibly an operation. So the hypothesis that the appellant could have simply gone to a local doctor in her spare time without the knowledge of her fellow nurses might well turn out to be implausible. 11 In my opinion the appeal should be allowed and the matter remitted to the AAT differently constituted. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .