Francis v Department of Defence [2005] FCA 100

FEDERAL COURT OF AUSTRALIA

Francis v Department of Defence [2005] FCA 100 FREEDOM OF INFORMATION ACT – correction of record – expression of opinion – whether based upon mistake of fact RONALD WILLIAM FRANCIS v DEPARTMENT OF DEFENCE SAD 37 OF 2004 SELWAY J 21 JANUARY 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 37 OF 2004

BETWEEN: RONALD WILLIAM FRANCIS

APPLICANT

AND: DEPARTMENT OF DEFENCE

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 21 JANUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application be dismissed. 2. The applicant to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 37 OF 2004

BETWEEN: RONALD WILLIAM FRANCIS

APPLICANT

AND: DEPARTMENT OF DEFENCE

RESPONDENT

JUDGE: SELWAY J

DATE: 21 JANUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 In this case the applicant has 'appealed' from a decision of the Administrative Appeals Tribunal ([2004] AATA 33) given on 16 January 2004. For the reasons given below I find that there has been no error of law in the reasoning or approach of the Administrative Appeals Tribunal ('the Tribunal') and dismiss the application. 2 The applicant was in the Royal Australian Navy. He was honourably discharged from the Navy in 1972. Prior to his discharge he had a medical examination by Dr Clarke. In the medical examination record prepared by Dr Clarke, Dr Clarke ticked as 'normal' item 42, described as 'Spine'. He wrote 'NE' (meaning 'not examined') in relation to item 48, 'Emotional Stability' and item 49, 'Mental Capacity'. In item 62 headed 'Category Recommended' he wrote, 'Cat A subject to x-ray result.' 3 The applicant complains that that record is wrong. He complains that at the time of his discharge and at the time of his examination he did have spinal injuries and he did have post-traumatic stress disorder. He says that if Dr Clarke had carried out the examination properly and had looked properly at the applicant's medical file this would have been revealed. He also says that if Dr Clarke had complied with relevant procedures required by navy instructions Dr Clarke would have proceeded differently and the form would not have been completed in the way it was. 4 The applicant applied under section 48 of the Freedom of Information Act 1992 (Cth) ('FOI Act') on 13 April 2000 to have the medical examination record signed by Dr Clarke amended because it was incomplete, incorrect or misleading and had been used or was being used or was available for use for administrative purposes. The agency rejected that claim. That decision was then internally reviewed pursuant to s 54 of the FOI Act. 5 The internal review was carried out by Brigadier Ramsay on 17 November 2000. The brigadier concluded that on the balance of available evidence no grounds to have the record amended existed. It would appear that in coming to that view the brigadier in effect reassessed the applicant's condition as at the date and on the information available when Dr Clarke did his assessment. 6 I am not certain that the relevant test for determining whether the information was accurate is to carry out a review on the basis of the information as at the date the decision was made. It may be that the relevant test is whether or not on the information now available, the information is accurate. 7 Be that as it may, the applicant then applied to the Tribunal for review of the decision made on the internal review: see s 55(1)(g) of the FOI Act. It is a precondition to the exercise of the jurisdiction under s 55 that the Tribunal be satisfied that: '(a) the record is a record of a decision under enactment by a court, Tribunal, authority or person; or … (c) the amendment relates to a record of an opinion to which neither of the following applies; (i) the opinion was based on a mistake of fact; (ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion'. (See s 55 subsection (6) of the FOI Act). 8 It would appear to me that the satisfaction of the Tribunal is a relevant jurisdictional fact. For present purposes it may be that an error in relation to that fact is an error of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In any event, in this case the applicant accepts that the medical examination record of which he complains records the opinion of Dr Clarke. In my view he is right to make that concession. That is clearly what it does. The Tribunal so found. 9 The applicant argued that that opinion was based upon a mistake of fact. However, it would seem clear that there was no mistake of fact or, at least, if there was one, it is not established. For example, in relation to emotional stability and mental capacity the doctor recorded 'NE'; that he did not examine the applicant. There is no mistake of fact there. The applicant accepts that he was not examined. It may be, as the applicant contends, that the doctor should have done more or should have done something differently, but that is not the question. 10 The question is, was the doctor's opinion based on a mistake of fact? It is plain that the doctor did not examine in relation to these matters. No mistake is shown. 11 In relation to the note of 'normal' for the spine there is no information at all as to what facts the doctor took into account in reaching that opinion. The most that the applicant can show is that the opinion itself is wrong. In relation to the conclusion, 'Category A subject to x-ray result,' again that is a matter of opinion and in the absence of some evidence of a mistake of fact there is nothing to show that it is other than an opinion. The applicant says it is an erroneous opinion. Much as that may be, it does not answer the requirements of showing a mistake of fact. 12 Before the Tribunal the applicant sought discovery of various documents which seem generally to go to the issue of whether or not the doctor properly performed the requirements upon him in filling in the form. Some of them also may have gone to the issue of what other records were kept in relation to the medical condition of the applicant. None of that material goes to the question which must be identified in this case, which is what facts were relied upon by the doctor in coming to his opinion and which of those facts were mistaken. 13 The other potential ground is that the doctor was 'biased, unqualified to form the opinion or acted improperly'. There is no evidence of bias. On the face of it the doctor was qualified and, although the applicant argues that the doctor did not carry out the test in accordance with the relevant rules and requirements, the Tribunal found that that did not constitute 'acting improperly' for the purpose of jurisdiction. In my view the Tribunal was correct to come to that view. The applicant properly accepted that he could not show that Dr Clarke had acted improperly within the meaning of the section. 14 The end result is that the Tribunal was satisfied that the case fell within s 55 (6) of the FOI Act. That being so, the relevant jurisdictional fact denying the Tribunal's jurisdiction had been established. It follows that no error of law can be shown or sustained. 15 I point out however that there is nothing in this analysis nor in any of the material that has been put before me which would seem to me to establish as at today's date that the applicant was not suffering from spinal injuries or from post-traumatic stress syndrome as at the date he left the Navy. That does not seem to be an issue that has been dealt with by either the Tribunal or by anyone else. It is unnecessary for me to express any opinion on it except to say that the issue has not been established. For these reasons the application is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.