FEDERAL COURT OF AUSTRALIA Goudge v CSS Board [2003] FCA 426 ADMINISTRATIVE LAW – application for review of a decision by the CSS Board as superannuation trustee – applicant had been deemed not to have retired on the ground of invalidity because of physical incapacity – whether the Board failed to take into account relevant considerations – whether improper exercise of power by Board by taking irrelevant considerations into account – existence of evidence to support Board's findings – whether Board misconstrued test for incapacity Administrative Decisions Judicial Review Act 1977 (Cth) s5 Superannuation Act 1976 (Cth) s7(2), s153AS Re Australian Postal and Telecommunications Union, New South Wales Branch (1975) 25 FLR 90, cited Commissioner for Superannuation v Hastings (1986) 70 ALR 625, applied Scott v Commissioner for Superannuation (1987) 8 AAR 20, cited Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, applied Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, [2001] FCA 1196, applied DAVID JOHN GOUDGE v CSS BOARD V606 OF 2002 MARSHALL J MELBOURNE 29 APRIL 2003 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V606 OF 2002 BETWEEN: DAVID JOHN GOUDGE APPLICANT AND: CSS BOARD RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 29 APRIL 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application including reserved costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V606 OF 2002 BETWEEN: DAVID JOHN GOUDGE APPLICANT AND: CSS BOARD RESPONDENT JUDGE: MARSHALL J DATE: 29 APRIL 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The question for determination in this proceeding is whether the Court should review a matter of the CSS Board ("the Board") not to direct that Mr Goudge be deemed to have retired from his employment with the Australian Postal Corporation ("Australia Post") in early 1990 on the ground of invalidity because of physical incapacity to perform his duties. 2 Mr Goudge applied to the Court pursuant to s5 of the Administrative Decisions Judicial Review Act 1977 (Cth) ("the ADJR Act") for a review of a decision made by the Board on 12 August 2002. The Board decided not to direct under s7(2) of the Superannuation Act 1976 (Cth) ("the Act") that Mr Goudge be deemed to have retired on the ground of invalidity. 3 The decision of 12 August 2002 was made pursuant to s153AS of the Act. It affirmed a previous decision, to the same effect, made on 2 October 1998. The decision of 2 October 1998 affirmed another decision of the Board, on the same issue, made on 5 October 1995. In its 5 October 1995 decision the Board exercised its discretion under s7(2) of the Act not to direct that Mr Goudge be deemed to have retired on the ground of invalidity. Factual Background 4 Mr Goudge commenced employment with the Post Master-General's Department of the Australian Public Service on 18 August 1972. In 1975 the postal services section of that department was incorporated within Australia Post; see Re Australian Postal and Telecommunications Union, New South Wales Branch (1975) 25 FLR 90 at 93 to 94 per Franki and St John JJ. 5 Mr Goudge suffered ill health in the 1980s that resulted in chest pains. In July 1989 when employed in the classification of Senior Mail Officer Grade 2, Mr Goudge ceased to attend his workplace. From July 1989 until his resignation from his employment in early 1990 Mr Goudge was on leave of one type or another including sick leave, annual leave, long service leave and leave without pay. 6 On 7 July 1994, solicitors acting for Mr Goudge wrote to a predecessor of the Board enclosing a medical report from Mr Goudge's general practitioner, Dr DeSousa dated 25 January 1994. The letter stated: "…in view of the medical opinion of Dr DeSousa, it would appear that Mr Goudge had a viable entitlement in 1991 (sic) to be superannuated on the grounds of ill health. As we understand it he merely received his resignation benefits." 7 On 23 August 1995 the Australian Government Health Service advised the Board that Mr Goudge was "fit for alternative duties" at the time of his resignation. The Board then decided on 5 October 1995 that it: "was satisfied that it should not exercise its discretion to direct that Mr Goudge be deemed to have retired on the ground of invalidity. 8 On 8 October 1997 Mr Goudge's solicitors wrote to the Board seeking a reconsideration of the decision of 5 October 1995. The letter enclosed additional medical reports said to constitute "new evidence" with respect to Mr Goudge's health at the date of his retirement. 9 The Board referred the application for reconsideration to a Reconsideration Advisory Committee ("the First Committee") in accordance with s153AR(1) of the Act. 10 On 14 August 1998 the First Committee recommended that: "…the Board (1) be satisfied under section 153AP that the evidence provided by Mr Goudge's solicitors is relevant evidence not previously taken into account by the Board; and (2) decide under section 135AS, to affirm its decision made on 5 October 1995 under 7(2) not to exercise its discretion to direct that Mr Goudge be deemed to have been retired on the ground of invalidity because of physical and mental incapacity." 11 On 2 October 1998 the Board considered and accepted the First Committee's recommendation and decided to affirm its decision of 5 October 1995. 12 On 12 March 1999 Mr Goudge applied to the Administrative Appeals Tribunal ("the AAT") to review the 2 October 1998 decision. The AAT dismissed the application. It held that it had no jurisdiction to consider the application. 13 On 22 June 1999 Mr Goudge's solicitors wrote to the Board advising it that further evidence "is being collated" and would be "provided as soon as possible, together with requests for reconsideration pursuant to s153AM of the Act". 14 On 30 October 2001 Mr Goudge's solicitors made "a further application for reconsideration of the Board's decision" of 1995. The letter enclosed, inter alia, a medical report from Dr Dupuche dated 26 October 1999. 15 On 27 June 2002 a Reconsideration Advisory Committee, ("the Second Committee") recommended: "…the board affirm again its decision made on 5 October 1995 under subsection 7(2) not to exercise its discretion to direct that Mr Goudge be deemed to have been retired on the ground of invalidity because of physical or mental incapacity." 16 On 12 August 2002 the Board, after considering the recommendation of the Second Committee: "…decided under section 153AS to AFFIRM its decision of 2 October 1998 to affirm its earlier decision of 5 October 1995 not to direct, under subsection 7(2) of the Act, that Mr Goudge shall, for the purposes of the Act, be deemed to have been retired on 30 January 1990 on the ground of invalidity because of physical or mental incapacity to perform his duties." The Legislative Context 17 The Act, replaced by the Superannuation Act 1990 (Cth) with effect from 1 July 1990, applies to Mr Goudge as he was an "eligible employee" for the purposes of the Act. Under s66 of the Act, at the time of Mr Goudge's retirement, a person who ceased to be an eligible employee on the basis of invalidity was entitled to an invalidity pension or lump sum payment. 18 At the material time s7(2) of the Act provided: "Where a person has, before attaining his maximum retiring age, ceased to be an eligible employee otherwise than by reason of death or by reason of his having been retired, or his services having otherwise terminated, on the ground of invalidity because of physical or mental incapacity to perform his duties, but the Board is satisfied that, at the time he ceased to be an eligible employee, he was, by reason of physical or mental incapacity, unfit to perform his duties, the Board may direct that the person shall, for the purposes of the Act, be deemed to have been retired on the ground of invalidity because of that physical or mental incapacity." 19 Pursuant to s153AM(1) a person affected by a decision of the Board was entitled to apply to the Board for a reconsideration of that decision. A reconsideration was available if there was new evidence adduced relevant to the decision; see s153AP(1). Under s153AR(1) an application under s153AM was to be referred to a Reconsideration Advisory Committee established under s153AC. The Board, in reconsidering a decision, was obliged to take into account the recommendations of the Committee and any other matters it thought relevant. The Board was then entitled to affirm, vary or set aside the decision and, if appropriate, substitute a new decision for the one under reconsideration. The Board's Decision 20 In coming to its decision of 12 August 2002 the Board was satisfied about two initial matters. Counsel for Mr Goudge took no issue with the Board's approach to those matters. They were as follows: · prior to reaching his maximum retiring age Mr Goudge ceased to be an eligible employee otherwise than by reason of his having retired on the ground of physical or mental incapacity to perform his duties; · at the time of his retirement Mr Goudge was unfit to perform the duties he had been required to perform by reason of an actual physical incapacity. 21 The Board considered that Mr Goudge had resigned from his employment with effect from 5 March 1990 in circumstances where the Commonwealth Medical Officer disagreed with the assessment of Mr Goudge's own medical practitioner that Mr Goudge was unfit for continued employment. Mr Goudge was then 42 years old. 22 The Board "accepted that Mr Goudge was most likely suffering from undiagnosed ischaemic heart disease at the time of his resignation". It also accepted that at the time of his resignation Mr Goudge was unfit to perform the full range of duties associated with his job classification "by reason of his physical incapacity to undertake heavy lifting, lifting above shoulder height or bending". 23 The Board then considered whether it should exercise its discretion in Mr Goudge's favour. In so doing it asked itself three questions: (1) whether Mr Goudge's incapacity was temporary or permanent; (2) whether suitable positions were available to which Mr Goudge was able to be redeployed; (3) whether Mr Goudge's conduct militated against the discretion being exercised in his favour. 24 In considering the first two of those questions the Board contemplated whether Mr Goudge was effectively forced out of his employment for health reasons. In considering the third question the Board contemplated "whether a moral entitlement to a pension existed". 25 The Board viewed the above approach to the exercise of its discretion under s7(2) of the Act to be appropriate in light of the judgments of the Full Court of this Court in Commissioner for Superannuation v Hastings (1986) 70 ALR 625 and Scott v Commissioner for Superannuation (1987) 8 AAR 20. 26 The Board held that Mr Goudge's incapacity was not permanent. In doing so it considered various medical reports, including those previously considered in other decisions. It found that there was: "…no new medical evidence to indicate that he had significant ongoing incapacity for employment. 27 At [25] of its decision the Board said: "The Board noted that on the basis of the evidence referred to above it had previously concluded that while Mr Goudge's underlying condition of ischaemic heart disease was of a permanent nature, the symptoms of chronic chest pain associated with it were apparently not permanent. The Board noted it had considered that the medical evidence demonstrated that these symptoms were susceptible of treatment and therefore of a temporary nature. The Board considered that no new evidence had been submitted on which it could reach a different conclusion and hence it was still of the view that Mr Goudge's incapacity was not permanent." 28 The Board next considered whether there were suitable duties to which Mr Goudge might have been redeployed if his employment had continued. In its view there was no evidence before it pertinent to this issue. It concluded that Australia Post's efforts to find Mr Goudge an alternative position had not been exhausted by the time he resigned. At [32] and [33] of its decision, the Board said: "The Board accepted that it may have been difficult to find an alternative position for Mr Goudge, particularly given his history of taking extensive sick leave. However, it did not accept that there were no suitable duties to which he could have been deployed, particularly if he had co-operated with rehabilitation attempts proposed at the time. The Board noted that in a memorandum dated 7 January 1998, Dr B Hackett, Acting Senior Medical Adviser, Health Services Australia, advised that Mr Goudge's known health status in January 1990 would have permitted him to perform "the large majority of his duties". Overall, the Board observed that Australia Post was prepared to take action to find Mr Goudge an alternative position prior to his resignation in 1990 and that the medical evidence did not indicate that his physical impairment was of a sufficiently debilitating nature so as to prevent that effort from succeeding." 29 The Board considered that: "…there was no evidence to change the previous conclusion that Mr Goudge could not properly be regarded as having been forced out of his employment for health reasons." 30 The Board then considered whether Mr Goudge's conduct worked against the discretion under s7(2) of the Act being exercised in his favour. In this regard it noted that its view of the evidence was that: "…Mr Goudge was fit to perform the majority of the duties of his position and would, in all probability, have been able to be redeployed to another position had he been so motivated, and that his condition appeared subsequently to have improved." 31 The Board also considered that Mr Goudge's delay in making his initial application and the long intervals between his reconsideration applications have amounted to "unreasonable delay". At [39] of its decision the Board said it: "…considered that no overriding reason existed why Mr Goudge should be considered to have a moral right to an invalidity benefit." Failure to take into account relevant considerations 32 Counsel for Mr Goudge, Mr A Keogh, submitted that the decision of the Board was an improper exercise of the power conferred by s7(2) of the Act in that relevant considerations were not taken into account. The considerations were said to be: · the ongoing and permanent nature of Mr Goudge's incapacity; · the issue of rehabilitation; · hardship; · evidence provided by Mr Goudge in his affidavit before the Board. 33 Counsel for the Board, Mr P Hanks QC, submitted that the ground of failing to take into account relevant considerations could only be established if the Board was bound to take those considerations into account, as determined by a proper construction of the statute conferring the discretion. 34 Mr Hanks also submitted that Mr Keogh essentially contended that particular pieces of evidence were not taken into account by the Board. Mr Hanks contended that there is distinction between failing to address a relevant consideration and failing to deal with particular parcels of evidence. 35 A decision will be reviewable under the ADJR Act on the ground of failing to take into account relevant considerations only if the decision-maker was bound to take those considerations into account; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 per Mason J. Mr Keogh did not demonstrate why the matters said by him to be relevant to the decision, and not taken into account, were bound to be taken into account. 36 Further, in Hastings at 631 the Full Court said, in respect of s7(2) of the Act, that: "…as the relevant matters are unspecified in the legislation, it is for the [Board] to determine what matters are to be taken into account and the weight to be given to them… ." 37 What is complained of is essentially a failure to deal with particular items of evidence, rather than failure to address a relevant consideration. The difference between the two concepts is referred to by Allsop J (with whom Heerey J agreed), in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, [2001] FCA 1196. 38 At [79] in Paul (FCR 423) Allsop J said: "Whatever may be the outer boundaries or relevant and irrelevant considerations at the point of jurisdiction .. they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal, relevant to a finding made…" 39 In any event, as submitted by Mr Hanks, each item of evidence in respect of which Mr Keogh identified as not being taken into account by the Board was in fact taken into account. 40 At [8] of the its decision the Board said that it "took into account the recommendation of the committee, the evidence and reasoning referred to in its recommendation" (emphasis supplied). The evidence referred to in the recommendation of the Second Committee at [14] includes: · the 8 and 31 August 1994 reports of Dr DeSousa; · the 14 August 1996 report of Dr Dupuche; · the 30 October 1996, 22 August 1997 and 26 October 1999 reports of Dr Dupuche; · the affidavit of Mr Goudge of 18 October 2001; · the 8 April 1998 letter from G Stone, Rehabilitation Co-ordinator with Australia Post; · the 25 January 1994 report of Dr DeSousa, provided by Mr Goudge's solicitors under cover of their letter of 7 July 1994; · the reports of the Royal Melbourne Hospital, dated 23 May 1994 and 18 June 1996, provided to the Board under cover of the letter of 8 October 1997 by the solicitors for Mr Goudge. 41 Consequently, even if I am incorrect in my belief that Peko-Wallsend and Paul stand in the way of success of Mr Keogh's submission concerning relevant considerations, the submission has no foundation in fact. Taking into account irrelevant considerations 42 Mr Keogh next submitted that the making of the decision by the Board was an improper exercise of the power conferred by s7(2) of the Act in that irrelevant considerations were taken into account. The chief irrelevant consideration was said to be an opinion expressed by Dr Webster on 8 February 1990 that: "there is no medical evidence to suggest a serious underlying medical disorder to warrant ill health retirement." 43 It was contended by Mr Keogh that the opinion of Dr Webster was proved to be incorrect and ill-founded as subsequent events proved that Mr Goudge was suffering from ischaemic heart disease. The submission, irrespective of the application of Paul and Hastings, is untenable. At [14] of its reasons the Board accepted that: "...Mr Goudge was most likely suffering from undiagnosed ischaemic heart disease at the time of his resignation…" Consequently, to the extent that the Board had regard to Dr Webster's views of 8 February 1990, it did not accept them or use them adversely to the interests of Mr Goudge. I also reject the submission that Dr Webster's recommendation about the extent of the duties open to Mr Goudge constituted an irrelevant consideration. There was no reason why the Board could not have regard to Dr Webster's recommendations as they bore upon a relevant issue that related to Mr Goudge's capacity to perform work, any work. 44 As the Full Court observed in Hastings at 631 quoted from above at [36], it was for the Board to decide whether or not to take into account the recommendations from Dr Webster's 1990 report and the weight to be attributed to them. It appears, in any event, that it attached very little weight to them. No Evidence Ground 45 Mr Keogh submitted that the decision of the Board was based on "findings for which there was no evidence or other material". It was alleged that there was no evidence to support the following findings: · Mr Goudge's incapacity was not permanent; · suitable duties were available to which Mr Goudge could have been redeployed; · Mr Goudge was fit to perform the majority of the duties in his position; · it was "simply a matter of the Applicant having decided to resign instead of allowing time for attempts to rehabilitate or redeploy him to be finalised"; · the conduct of Mr Goudge militated against the Board exercising its discretion in his favour. 46 Each of Dr Hanning and Dr Dupuche in reports dated 23 May 1994 and 22 August 1997 supported the view that Mr Goudge's incapacity was not permanent. 47 The second "no evidence" point misstates what the Board found. It said at [27] of its decision that: "…it was not a question of a position being available at any particular location… ." Its point at [30] was that: "Mr Goudge did not wait for the outcome of Australia Post efforts to find him an alternative position but resigned instead." 48 Essentially the Board's point was that Mr Goudge resigned before the prospect of securing an alternative position had been allowed to be fully explored. 49 There was, in fact, evidence before the Board that supported the view that Mr Goudge was fit to perform the majority of the duties of his position. That evidence was contained in the following reports: · Dr Hackett's of 7 January 1998, referred to at [32] of the Board's decision; · Dr Dupuche's of 26 October 1999, which referred to "incapacity for physically arduous work and to his residual capacity" and "sedentary" work of "eight hours per day", with certain other restrictions referred to in the second page of the report. 50 There was also evidence before the Board that Mr Goudge decided to resign before allowing rehabilitation and/or redeployment possibilities to be fully explored. The evidence before the Board included a file note in which a Manager of the State Parcel Centre for Australia Post recorded that: "Upon hearing that he had been referred to the Rehabilitation Unit Mr Goudge said that he would give the Rehabilitation Unit until 3 pm that day to come up with a solution. Mr Goudge rang back on the afternoon on 5 March 1990 and stated that he wished his resignation to proceed." 51 Finally, on the no-evidence ground, it was incorrect to assert that there was no evidence going to Mr Goudge's conduct that militated against the Board's discretion being exercised in his favour. Apart from any other consideration, there was stark evidence of the delays accompanying the request for each reconsideration of the decision taken in 1995. Error of Law 52 It was further submitted that the Board erred in law by misconstruing the test for incapacity. This submission is difficult to understand. It appears to confuse the Board's role under s7(2) of the Act in considering the threshold of incapacity to perform one's duties with its role in considering the exercise of its residual discretion. 53 The Board decided that Mr Goudge was unfit to perform the full range of duties relevant to his classification when he resigned. However, in deciding not to exercise its discretion in his favour, the Board considered that Mr Goudge could have undertaken other duties, if he allowed rehabilitation and redeployment options to be fully explored; see Hastings at 627 to 628. 54 There is no error of law. The Board engaged in a two stage process. The first stage involved it in considering a question specifically raised by s7(2) of the Act concerning whether employment ceased on account of Mr Goudge's "incapacity…to perform his duties" (emphasis supplied). The second stage involved the Board in addressing a different issue, that is, the exercise of its discretion. Disposition 55 The application before the Court is without merit and consequently must be dismissed with costs. The Court will order as follows: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application including reserved costs to be taxed in default of agreement. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 29 April 2003 Counsel for the Applicant: Mr A Keogh Solicitor for the Applicant: Opie & Co Counsel for the Respondent: Mr P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 April 2003 Date of Judgment: 29 April 2003