Todd v Repatriation Commission [2008] FCA 1276

FEDERAL COURT OF AUSTRALIA

Todd v Repatriation Commission [2008] FCA 1276 ADMINISTRATIVE LAW – veterans' affairs - eligibility for receipt of pension – appeal from decision of the Administrative Appeals Tribunal affirming decision not to allow disability claim for anxiety disorder – whether Tribunal erred in failing to give reasons or sufficient reasons to support conclusions reached – whether Tribunal erred in failing to apply beneficial criteria of the legislation and thereby applied irrelevant considerations in reaching its decision – where tribunal has explained why it prefers a particular body of medical evidence- where no error of law in the way the Tribunal chose to express its reasons Veterans' Entitlement Act 1986 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 44

Repatriation Commission v Warren (2008) 101 ALD 222 applied GORDON TODD v REPATRIATION COMMISSION

QUD 87 of 2008

LOGAN J

21 july 2008

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 87 of 2008

BETWEEN: GORDON TODD

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: LOGAN J

DATE OF ORDER: 21 JULY 2008

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The Applicant is to pay the Respondent's costs of and incidental to the appeal, to be taxed. 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 QUD 87 of 2008

BETWEEN: GORDON TODD

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: LOGAN J

DATE: 21 july 2008

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Mr Gordon Todd served in the regular naval forces of the Commonwealth between 1966 and 1975. He served thereafter for a substantial period also in the Royal Australian Naval Reserve. It is his period of regular naval service that has given rise to a claim which he made under the Veterans' Entitlements Act 1986 (Cth) ("Veterans' Entitlements Act") and, in due course, to proceedings before the Administrative Appeals Tribunal ("the Tribunal") which, in turn, have become the subject of an appeal to this Court. His regular naval service included what is known as "operational service" for the purposes of the Veterans' Entitlements Act. That comprised a period of 12 days in 1969 between 14 and 25 May 1969 during which he served on HMAS Vampire and another period of some five weeks in 1972, 14 February to 9 March 1972, during which he served on HMAS Sydney. Mr Todd's service in the regular naval forces also included a period from 7 December 1972 until his discharge from the regular naval forces on 13 January 1975, which constituted "defence service" for the purposes of the Veterans' Entitlements Act. 2 By a claim which was received by the Department of Veterans' Affairs on 20 January 2005, Mr Todd made a claim in respect of a disability which was identified in that claim as "anxiety disorder". He attributed that particular condition to "excessive worry, poor sleep habits and social withdrawal", in terms of symptoms, and as to its causation "due to my medical condition of plural plaque which I believe is a major illness which causes stress". 3 A medical diagnosis is endorsed on that particular claim. That appears to be a diagnosis given by a Dr Michael Likely, a psychiatrist who practises in Townsville. In the medical diagnosis block on the claim form, the entry under, "Diagnosis", reads, "Anxiety disorder secondary to general medical condition". Then, underneath, "Basis for Diagnosis", there is a reference to DSM-IV criteria. That particular claim was not accepted by the Repatriation Commission's delegate within the Department of Veterans' Affairs. By a decision dated 2 November 2005, the delegate decided that the claimed anxiety disorder was not related to service. As was his right under the Veterans' Entitlements Act, Mr Todd sought the review of that decision by the Veterans' Review Board. It suffices to note, that on 1 March 2006, that Board determined to affirm the decision made by the Repatriation Commission's delegate. 4 Following that, Mr Todd sought the review of that decision, as affirmed by the Veterans' Review Board, by the Tribunal. On 2 April 2008, the Tribunal determined to affirm the decision under review. In other words, it decided to affirm the original decision of the Repatriation Commission's delegate, as it had been affirmed by the Veterans' Review Board. 5 The challenge made to the Tribunal's decision is set out in what are said to be three questions of law which are raised on the appeal. As formulated in the notice of appeal they are as follows. (a) That the Tribunal erred in failing to apply Statement of Principles number 101 of 2007, instead of applying number 102 of 2007; (b) The Tribunal failed to give reasons or sufficient reason as required under the Administrative Appeals Tribunal Act 1975 (Cth) ("Administrative Appeals Tribunal Act")to support the conclusion reached; (c) The Tribunal failed to apply the beneficial criteria of the legislation and thereby applied irrelevant considerations in reaching its decision, contrary to the Administrative Appeals Tribunal Act. 6 It may, with all due respect, be observed of the notice of appeal that it does not actually specify any questions in terms at all. However, the Repatriation Commission very properly looked to the substance of the endeavour by Mr Todd to engage the jurisdiction of this Court under s 44 of the Administrative Appeals Tribunal Act rather than, as it perhaps might have, addressing whether indeed there was a question of law raised at all. As it transpired, the argument evolved in a way which saw para (a) of the notice of appeal "questions" not pressed. In other words, I did not understand it to be pressed, on behalf of Mr Todd, that the Tribunal erred in failing to apply Statement of Principles 101 of 2007. 7 There may be a very good reason for that in the course which proceedings took before the Tribunal. It is quite apparent from the Tribunal's reasons that the Tribunal was expressly directed, by agreement of the parties, to look to Statement of Principles number 102 of 2007, rather than any other, for the purpose of determining the review application. That is not, in itself, a complete absolution for a body such as the Administrative Appeals Tribunal to look no further, but it certainly explains why the proceedings before the Tribunal took the course which they did. 8 The mischief that was said to underpin para (b) and, for that matter, as I understood it, para (c) in the questions of law, was that the Tribunal had erred in accepting the evidence of another psychiatrist, Dr Mulholland, in preference to that of Dr Likely. The basis for that preference was submitted not to have been explained, either adequately or at all. A further submission which was developed was that there was, in any event, before the Tribunal another body of psychiatric evidence having its origin in an opinion expressed by a Dr Una Stephenson, which required, even if the parties had not expressly raised it, the Tribunal to examine whether that opinion itself gave rise to an eligibility for the claimed pension based on anxiety disorder. 9 I shall address in a little more detail each of these bases of attack on the Tribunal's decision. 10 Dr Likely furnished a series of written opinions which were in evidence before the Tribunal. He also gave oral evidence, in the course of which he was cross-examined by the advocate who appeared on behalf of the Repatriation Commission. At paragraph 11 of the Tribunal's reasons, the Tribunal made the following observation in respect of Dr Likely's evidence: Dr Likely's evidence was unsatisfactory in several respects. His oral evidence was presented in a disorganised fashion. He also contradicted his own written report of 22 January 2007. In that report, he said he had changed his longstanding view that the applicant suffered from PTSD—yet at the hearing he repeated the view that PTSD was an appropriate diagnosis. While we do not criticise a clinician for changing his view in a considered way, we were unable to clearly discern the basis for Dr Likely's change of mind in this case. We formed the impression that Dr Likely's objectivity may have been affected by his longstanding relationship with his patient. 11 Of Dr Mulholland's evidence the Tribunal remarked as follows, in para 12: The respondent tendered two reports by Dr Mulholland. The second report was a short clarification of matters referred to in his original report. Dr Mulholland says the applicant suffers from generalised anxiety disorder which pre-dates the diagnosis of the respiratory conditions. We were impressed with the opinions offered in Dr Mulholland's reports for two reasons. Firstly, Dr Mulholland is an independent expert who has seen and apparently considered all of the material. His objectivity has not been compromised by a treating relationship with the applicant. Secondly, his reports are clear and demonstrate careful and consistent analysis. 12 The Tribunal made the following finding at para 14, in respect of the experience of anxiety symptoms by Mr Todd: We are satisfied that the applicant was experiencing significant anxiety symptoms from at least the late 1990s. We note Dr Mulholland opines that the anxiety condition had its onset at about this point. 13 The Tribunal continued at paras 15 and 16 as follows: Given the shortcomings in the evidence of Dr Likely, we prefer and accept the evidence of Dr Mulholland. It follows we accept the applicant suffers from generalised anxiety disorder (not otherwise specified) and depression, and that those conditions had their onset prior to the diagnosis of the lung condition in 2002. In those circumstances, Mr Todd can only succeed in his application if we can be satisfied the pre-existing psychiatric condition was aggravated by news of the diagnosis of the service-related lung condition in 2002. 14 It is necessary to state at this point that the reference by the Tribunal to the service-related lung condition, is a reference to a condition which came to be accepted by the Repatriation Commission as having been related to Mr Todd's period of service in the regular naval forces. That particular condition seems to have been accepted on the basis, sadly but unsurprisingly, that it had its origins in exposure to asbestos present in ships on which Mr Todd served whilst in the regular naval forces. 15 The Tribunal formulated the terms of paras 15 and 16 by reference to criteria which were relevant, so the parties put it, in Statement of Principles 102 of 2007. One sees from the definition of "relevant service" in statement of principles 102 of 2007 that it is directed to the following types of service: (a) eligible war service (other than operational service) under the VEA; or (b) defence service (other than hazardous service) under the VEA; or (c) peacetime service under the MRCA; 16 The basis, then, of looking to Statement of Principles 102 of 2007, although not expressly articulated in the Tribunal's reasons, seems to have been the presentation of the case as one which required the determination of the claim for pension to be determined by reference to the standard of proof which is found in s 120(4) of the Veterans' Entitlements Act. In other words, the case was not one which was presented to the Tribunal as one which involved a consideration of a claim by reference to operational service. Given the way the claim was presented, the determination or, at least, the standard of proof was affected by s 120B of the Veterans' Entitlements Act. 17 Section 120B(3) and (4) are in the following terms: (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. 18 In this particular case, as there was a Statement of Principles, the reasonable satisfaction, to which s 120(4) referred, was to be assessed by reference to a Statement of Principles and that, as I have indicated, was promoted to the Tribunal as 102 of 2007. It may perhaps, with respect, have assisted had the Tribunal referred to the particular statutory path and the Statement of Principles which underpinned the terms of paras 15 and 16 of its reasons. Equally though, that may be a counsel of perfection or perhaps even pedantry. What is clear enough is the Tribunal's identification of the nub of the issue that fell for adjudication or, rather, determination by it. The outcome of that was very much determined by the preference that the Tribunal expressed for Dr Mulholland's evidence. At para 19 of the Tribunal's reasons, the Tribunal remarked as follows: Dr Mulholland addressed this issue in his further report dated 11 July 2007. Dr Mulholland was aware of Mrs Todd's views about her husband's state following the 2002 diagnosis. He was also aware of Dr Likely's views. Yet he concluded: "I am not convinced that his psychiatric condition is any worse since the asbestos issue has developed. What is different is that the asbestos issue becomes a focus for his psychiatric condition however in general terms the severity of his psychiatric condition is probably no better or no worse subsequent to the asbestos issue." 19 And then at para 20: The apparent inconsistency between the two observations we have quoted is troubling. Even so, we are inclined to accept the view expressed in Dr Mulholland's report of 11 July 2007. We have already explained our reasons for preferring the evidence of Dr Mulholland. His opinion in any event accords with our analysis of the evidence. While there is some evidence pointing to a worsening of the applicant's symptoms after the 2002 diagnosis, there is also evidence that the applicant had been experiencing most if not all of these symptoms for some time and that they have not varied in intensity since 2002. 20 And the conclusion which the Tribunal reached is expressed in para 22 as follows: Given our conclusions on the medical evidence, we do not think Mr Todd can satisfy the relevant statement of principles. It will therefore be impossible for him to establish a causal link between the circumstances of his service and his current psychiatric condition. The decision under review must therefore be affirmed. 21 The Tribunal's reasons are not to be scrutinised in any minute way with an eye for error. An administrator must convey the reasons for a decision. This does not mean that a Tribunal is obliged exhaustively to set out all of the evidence before it. It must certainly explain why it is, where there is a controversy in medical evidence, it prefers a particular body of medical evidence. That, the Tribunal, in my opinion, has done. It ought also to be recalled that there are times when the Tribunal will conceive that it ought to express, in a succinct way, reasons so that they can be conveyed promptly to a member of the public who has brought review proceedings. Equally, at times, the Tribunal will choose to use language that is direct and so, it hopes, readily understandable by a member of the public of no legal training, rather than engaging in a lengthy academic discourse. One might see that as a particular virtue, with respect, in certain kinds of cases at least, which involve claims by veterans. 22 The virtue arises in two ways. Firstly, it admits of the decision being given promptly and, secondly, in a way that a veteran might, even if not an occasion for pleasure, at least understand in terms of adverse outcome. That, in my opinion, serves to explain in some way why the Tribunal's reasons have been cast the way they have. It certainly also explains why I have chosen not to reserve this decision but rather to give it on the same day as oral argument was presented. 23 It seems to me that the Tribunal made no error of law in the way in which it chose to express its reasons. There remains, though, a question as to whether, even though the Tribunal expressed its reasons in a particular way, it erred in not considering other matters. As I have already indicated, the proceedings before the Tribunal took the course they did because of the way in which the parties chose, by agreement, to conduct the case and identify the issues. 24 One finds in the joint judgment of Lindgren and Bennett JJ, with whom in this regard I concurred, in Repatriation Commission v Warren (2008) 101 ALD 222 at 238, para 78, a very helpful summary of principles of arising from that case and earlier authority in respect of the obligations which attend the exercise by the Tribunal of its jurisdiction in circumstances where the parties have taken, or at least promoted, a particular way in which the issues ought to be identified or determined. The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana at 195 per Bowen CJ and at 199 per Fox J). Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court (Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be 'able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it' (Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]); A concession 'does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions' (Peacock at[23]; and see Comcare v Fiedler (2001) 115 FCR 328 at 337 – 338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday at 527–528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana) . 25 Of particular interest in the context of this case, having regard to the submissions that came to be made on behalf of Mr Todd, is the question of whether, though the parties did narrow the issues by concession, the Tribunal was nonetheless obliged in the discharge of its duty to make the correct or preferable decision in respect of the review application, to look beyond the issues that were identified for it. 26 The argument in that regard was developed, on behalf of Mr Todd, by reference to a report which Dr Stephenson gave. Dr Stephenson's report, which formed the basis of the submission, is one dated 22 June 1998. It must be said that there is some reference to the fact of this report in the statements of facts and contentions that were exchanged before the hearing in the Tribunal. It must also be said though that nothing was made of the opinions expressed in Dr Stephenson's report of 22 June 1998, even though, strictly speaking, it was a report before the Tribunal. 27 In the report of 22 June 1998, Dr Stephenson rehearses a number of events as related to her by Mr Todd that occurred in the course of his regular naval service. Of this and other events related by Mr Todd, Dr Stephenson stated: As to how much of this is due to his naval service, it is very hard to assess. Certainly, his perception is that he changed appreciably and from the time he went into the navy, compared with before, when he coped with a number of very efficient work situations without becoming unduly stressed. On the other hand, there have been other factors, at least in the last decade, that have preyed on his nerves. 28 She continued in the final paragraph of her report: It would appear that despite Mr Todd's self-perception of being entirely stable prior to his naval service, that he probably is susceptible to stress; and from his account of his attitude to work at his navy days, probably a bit perfectionistic and hard on himself. 29 It appears that at some time shortly after the receipt of this report, an officer within the Department of Veterans' Affairs discussed a diagnosis with a Dr Mackay. That appears from an annotation on the copy of Dr Stephenson's report and there is a further annotation, "Generalised anxiety disorder". 30 The submission which was developed by reference to this was that the Tribunal ought, notwithstanding the course proceedings took before it, to have considered the question of whether the claimed anxiety disorder was a condition in respect of which an hypothesis could be developed connecting it with circumstances of either eligible defence service or operational service. A difficulty though with that, quite apart from any question of the absence of anything having been made of this before the Tribunal, is that Dr Stephenson seems later to have changed her opinion as to what was the nature of the condition which she described in that general way in 1998. 31 The material before the Tribunal included a further report from Dr Stephenson, dated 22 November 1999. That report appears to have been prepared by her in conjunction with her completion of a medical impairment worksheet for the Department of Veterans' Affairs. It is true, as was submitted on behalf of Mr Todd, that in the worksheet itself in the block directed to psychiatric condition, the annotation, "PTSD oblique generalised anxiety (also panic disorder)", appears. One must, though, read that in conjunction with the report of 22 November 1999. In that, Dr Stephenson states: In summary, I am happy to amend my diagnosis to Post Traumatic Stress Disorder, presenting primarily with symptoms of Generalised and Phobic Anxiety and of Chronic Dysphoria, which may well intensify at times to Major Depressive Illness. 32 Having regard to the way in which Dr Stephenson chose to modify her earlier expressed opinion, it is not surprising that the reference to her reports in the respective statements of facts and contentions were of an historic rather than argumentative nature. Equally, it is not surprising that the Tribunal chose to make no reference to either of those reports. Viewed in totality, they promoted a view in respect of a condition which was not the subject of claim. 33 For completeness, I should indicate that it is possible, if only out of an abundance of caution, to discern in the Repatriation Commission's submissions, a submission of futility in any remission of this case to the Tribunal, even having regard to the findings that were made on the preferred medical evidence and even if statement of principles 101 of 2007 were regarded as applicable, notwithstanding the act of promotion by the parties of reference to 102 of 2007. As the asserted error in respect of failing to look to statement of principles 101 of 2007 was not pressed before me, I do not propose to consider that aspect of the case in any detail. 34 In short, then, this is a case where the Tribunal chose to prefer, for reasons which are understandable in terms of the role consigned to the Tribunal, one body of medical evidence over another. There is no error of law in that preference, and neither do I find any error of law in the way in which the Tribunal has chosen to explain its reasons for that course. 35 This is a difficult case at a humane level, in the sense that there is every reason for sympathy for Mr Todd's lung condition having regard to the circumstances of his naval service. Equally, there does not appear to be any dispute between the treating psychiatrists that Mr Todd has an anxiety condition, although their precise clinical description of it does differ. However, the Veterans' Entitlements Act provides for the payment of public moneys by reference to particular statutory criteria. One either engages those criteria and therefore is entitled to payment, or one does not, and no amount of sympathy for the plight of a veteran can change that.