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LIONEL INGHAM MYERS v. REPATRIATION COMMISSION
No. QG65 of 1990
FED No. 209
Number of pages - 8
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)
CWDS
Administrative Law - veterans' affairs - appeal to Administrative Appeals
Tribunal - entitlement to pension - failure to take into account relevant
matters - evidence of important witness not referred to in Tribunal's reasons
- approach to review of a Tribunal's decision - appeal only on question of law
- no error of law in wrong finding of fact - whether there is any evidence of
a particular fact or whether a particular inference can be drawn from proven
facts a question of law - Tribunal's reasoning ambiguous, either failing to
have regard to material evidence, or failing to indicate the basis on which
that evidence rejected - matter remitted to Tribunal to be dealt with
according to law.
Administrative Appeals Tribunal Act 1975 ss. 43, 44
Veterans' Entitlements Act 1986 s. 24
Waterford v. The Commonwealth of Australia (1987) 163 CLR 54
Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462
Bisley Investment Corporation Ltd v. Australian Broadcasting Tribunal (1982)
59 FLR 132
Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (New South
Wales) (1980) 47 FLR 131
Politis v. Federal Commissioner of Taxation (1988) 20 ATR 108
Statham v. Federal Commissioner of Taxation 89 ATC 4070
Australian Telecommunications v. Barker (1990) 12 AAR 490
HRNG
BRISBANE, 30 March 1993
#DATE 30:3:1993
Counsel for the applicant: Mr P. Favell with Mr A. Philp
instructed by: Phillips and Lowes
Counsel for the respondent: Mr J. Logan
instructed by: Australian Government Solicitor
ORDER
The Court orders that:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal of 4 May
1990 be set aside and the matter be remitted to the
Administrative Appeals Tribunal to be dealt with according
to law, with such further evidence, if any, as the Tribunal
might permit the parties to put before it.
3. The respondent pay the applicant's costs on the application,
including reserved costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
SPENDER J This application is an appeal pursuant to s. 44 of the
Administrative Appeals Tribunal Act 1975 from a decision of the Administrative
Appeals Tribunal, Veterans' Appeals Division (constituted by Mr K.J. Lynch, Dr
J.B. Francis and Captain E.T. Keane), whereby the Administrative Appeals
Tribunal decided that the decision of the Veterans' Review Board under review
should be set aside and that with effect from 11 September 1985 to 6 April
1988 Mr Myers should be paid a pension at 90% of the general rate and from and
including 7 April 1988 at 100% of the general rate.
2. An appeal from the Administrative Appeals Tribunal to the Federal Court
lies only on a question of law: s. 44(1) of the Administrative Appeals
Tribunal Act.
3. The real issue between the parties is whether Mr Myers was entitled to be
paid a pension pursuant to the Veterans' Entitlements Act 1986 at the special
rate as provided by s. 24 of that Act or whether the rate of pension was to be
at a percentage of the general rate as the Administrative Appeals Tribunal
('the Tribunal') determined. If there was an entitlement to a pension at the
special rate, the date of commencement of that entitlement is also an
important point of contention between the parties.
4. Mr Myers saw service from 1941 to 1945, for the latter part of that
service as a flying officer in the RAAF attached to the Royal Air Force. Part
of his service was in the Middle East. Mr Myers has nine disabilities
accepted by the Repatriation Commission as war caused.
5. On 11 December 1985 Mr Myers made a claim to the Repatriation Commission
('the Commission') for medical treatment and pension in respect of anxiety
neurosis. In that application, in response to the question:
"Has/have the disability(ies) now claimed caused you to be
absent from work and/or affected your employment in any
other way? Please give details."
Mr Myers replied:
"Yes. Condition now claimed coupled with existing
afflictions were instrumental in my early retirement."
The claim was dealt with by the Commission which gave its reasons for decision
on 31 October 1986. The determination by the Commission was that pension was
payable at 80% of the general rate with effect from 11 September 1985. The
statement of reasons for the determination makes reference to the provisions
of the approved Guide to the Assessment of Rates of Veterans' Pensions (GARP).
That guide provides that an impairment rating be evaluated, and the
Commission's reasons state:
"In this case a DMO has assessed the impairment rating in respect of
the individual disabilities as follows:
Bronchitis with Rhinitis ten percent
Tonsillar Sepsis zero
Kerato Acanthoma zero
Hyperkeratosis five percent
Laxity of Anal Sphincter ten percent
Osteoarthritis (Lumbar Vertebrae
and Hips) ten percent
Old Sprain Right Ankle with Recurrent
Tenosynovitis zero
Cervical Spondylosis with Brachial
Neuritis ten percent
Anxiety State ten percent
By use of the combined values chart the total impairment rating is
forty-five percent."
6. The reasons made the second stage assessment of a rating for the effects
of the service-related incapacity on lifestyle, and reached an overall
lifestyle rating of 3. By reference to a conversion table the delegate to the
Commission found that the appropriate general rate of pension was 80% of the
general rate from 11 September 1985, this being three months prior to the date
of application.
7. An application to the Veterans' Review Board was received on 17 October
1986. Further material in support of Mr Myers' claim was received by the
Department of Veterans' Affairs on 2 December 1986. That material makes
reference to an application for a "TPI pension" on behalf of Mr Myers,
referring to him as "Member of RAAF (air crew)". Reference is made to an
accepted disability of laxity of the anal sphincter "which causes his bowels
to be uncontrollable and causes him great embarrassment in company of other
persons and aggravates his anxiety state".
8. On 7 April 1988 the Veterans' Review Board decided to set aside the
decision made by the Repatriation Commission on 31 October 1986 and to
substitute for that decision the decision by the Veterans' Review Board that
with effect from 11 September 1985 Mr Myers should be paid pension at the rate
of 90% of the general rate.
9. On 3 August 1988 an application was made to the Administrative Appeals
Tribunal. I have referred earlier to the decision of the Administrative
Appeals Tribunal made on 4 May 1990.
10. A number of grounds of appeal were not pursued but the substance of Mr
Myers' complaint to the Federal Court was that -
"...on the evidence the Tribunal should have found that the
Applicant fulfilled the criteria for the award of the
pension at the Special Rate pursuant to Section 24 of the
'Veterans' Entitlement Act' (sic) as from 11th September 1985.
...the Tribunal failed to take into account all relevant
matters and more particularly the evidence of Dr Bordujenko
and Dr Curtis in reaching its decision.
...the Tribunal was in error in finding that the only
evidence which contraverted (sic) the GARP assessment made
in 1986 was that of Dr Bordujenko in the light of the
uncontradicted and uncontraverted (sic) evidence of Dr Curtis.
...the Tribunal was in error in finding that there was no
evidence which could lead the Tribunal to a conclusion that
the 1986 assessment was in error... "
11. Section 24 of the Veterans' Entitlements Act relevantly provides:
"(1) This section applies to a veteran, other than a veteran
to whom section 25 applies, if -
(a) either:
(i) the degree of incapacity of the veteran from
war-caused injury or war-caused disease, or
both, is determined under section 21A to be at
least 70% or has been so determined by a
determination that is in force; or
(ii) the veteran is, because he or she has suffered
or is suffering from pulmonary tuberculosis,
receiving or entitled to receive a pension at
the general rate;
(b) the veteran is totally and permanently incapacitated,
that is to say, the veteran's incapacity from war-caused
injury or war-caused disease, or both, is of
such a nature as, of itself alone, to render the
veteran incapable of undertaking remunerative work for
periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that
war-caused injury or war-caused disease, or both, alone,
prevented from continuing to undertake remunerative
work that the veteran was undertaking and is, by reason
thereof, suffering a loss of salary or wages, or of
earnings on his or her own account, that the veteran
would not be suffering if the veteran were free of that
incapacity.
(2) For the purpose of paragraph (1)(c) -
(a) a veteran who is incapacitated from war-caused injury
or war-caused disease, or both, shall not be taken to
be suffering a loss of salary or wages, or of earnings
on his or her own account, by reason of that incapacity if -
(i) the veteran has ceased to engage in remunerative
work for reasons other than his or her
incapacity from that war-caused injury or war-caused
disease, or both; or
(ii) the veteran has ceased to engage in remunerative
work for reasons other than his or her
incapacity from that war-caused injury or war-caused
disease, or both; or
(b) where a veteran, not being a veteran who has attained
the age of 65 years, who has not been engaged in
remunerative work satisfies the Commission that he or
she has been genuinely seeking to engage in
remunerative work, that he or she would, but for that
incapacity, be continuing so to seek to engage in
remunerative work and that that incapacity is the
substantial cause of his or her inability to obtain
remunerative work in which to engage, the veteran shall
be treated as having been prevented by reason of that
incapacity from continuing to undertake remunerative
work that the veteran was undertaking."
12. The Veterans' Affairs Legislation Amendment Act 1988 (Act No. 134 of
1988) amended ss. 23 and 24 of the Veterans' Entitlements Act from 22 December
1988. Those amendments, inter alia, substituted 70% for 100% in s.
24(1)(a)(i).
13. Mr Myers was born on 17 January 1921. He was therefore under the age of
65 years when he lodged his application for medical treatment and pension on
11 December 1985. Apart from the period of his war service Mr Myers had
worked for Primac since leaving school. The Tribunal accepted that the cause
of Mr Myers' giving up work at Primac at the age of 59 was his medical
condition attributable to his accepted disabilities.
14. In the reasons for its decision the Tribunal found that:
"...the accepted disabilities, alone, prevented Mr Myers from
continuing to work after he ceased employment with Primac.
We find that he tried to undertake other work on two
separate occasions but was unable to do so and we find that
he ceased work for no reason other than those flowing from
his accepted disabilities."
15. There was a submission made on Mr Myers' behalf that there was no
evidence before the Tribunal which allowed it to conclude that he would have
retired at age 65. However, Mr Myers was asked before the Tribunal:
"Was there a normal date for retirement for officers in the
employ of Primac?---65 years of age was the set retirement age.
What was your intention in relation to your own retirement
date?---I would have worked through to 65. I had no reason not to."
16. There is therefore no substance in this ground.
17. Crucial findings for the Tribunal and the ones in respect of which it is
said there are errors of law are contained in paragraph 13 of the Tribunal's
reasons:
"The GARP assessment made in 1986 falls short of 100%
disability. By the time that assessment was made the
applicant had passed the age of 65. The only evidence which
contraverts (sic) that assessment was the opinion expressed
by Dr. Bordujenko that she thought that the applicant was
most probably entitled to be assessed at 100% disability in
1985. There was not, however, any evidence directed to
points in the 1986 assessment which could lead the Tribunal
to a conclusion that the 1986 assessment was in error at the
time it was made. Even more so the Tribunal cannot assume
that the applicant's disabilities were greater when he
ceased work than they were in 1986. Therefore, although the
applicant's disabilities, alone, caused him to give up work
at the age of 59 and prevented him from engaging
successfully in further employment, he did not meet the
requirements of Section 24 at the application date, 11
December 1985 and he turned 65, as we have seen, on 17
January 1986 only five weeks later. There is evidence
before the Tribunal from the applicant, himself, (T21 p53),
that he would retire when he was 65. By 17 January 1986 it
was not, then, the accepted disabilities alone which caused
the applicant to be prevented from working but the fact that
he had reached the retirement age. No evidence allows the
Tribunal to conclude that the degree of incapacity of the
applicant was 100% prior to his 65th birthday. Indeed the
evidence of assessment subsequent to that date leads to a
conclusion to the contrary. The Tribunal finds, therefore,
that the applicant does not succeed in his claim for a
disability pension at the Special Rate."
18. It was not in contest that the requirements of s. 24(1)(b) and (c) were
met by Mr Myers and the real question was whether the degree of incapacity of
Mr Myers from war-caused injury or disease was properly assessed at 100% at
any time prior to 17 January 1986, his 65th birthday.
19. On 9 January 1989 Dr Bordujenko, a medical officer of the Commission,
made an impairment assessment which determined that the applicant had 100%
disability whatever his lifestyle rating may be. This is the assessment
referred to in the second sentence of paragraph 13.
20. Three witnesses gave oral evidence before the Tribunal: Mr Myers, Dr
Bordujenko and Dr Curtis, a psychiatrist.
21. Nowhere in the reasons of the Tribunal is the evidence of Dr Curtis
referred to, but his evidence is important because he said that he believed
that Mr Myers suffered from what Dr Klug (another psychiatrist) called a
"moderate anxiety disorder". Dr Curtis said:
"I'd argue that he was moderately incapacitated by the
anxiety disorder in 1980 when he retired from work, and that
he was, in the department's terms, the 45 level or more when
he applied in December 1985 for recognition of the disability."
22. If that evidence were accepted, then the position would be that along
with the other assessments of disabilities, his degree of incapacity at the
time of the December 1985 application for recognition of his anxiety state
would be 100% and as a consequence he would be entitled to pension at the
special rate.
23. Section 43(2) of the Administrative Appeals Tribunal Act obliges the
Tribunal to give reasons either orally or in writing for its decision.
Section 43(2B) provides:
"Where the Tribunal gives in writing the reasons for its
decision, those reasons shall include its findings on
material questions of fact and a reference to the evidence
or other material on which those findings were based."
24. Sheppard J said in Bisley Investment Corporation Ltd v. Australian
Broadcasting Tribunal (1982) 59 FLR 132 at 157:
"The section does not impose upon the Tribunal, which is
often composed of members who are not trained in the law,
any standard of perfection."
25. In Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (New South
Wales) (1980) 47 FLR 131, Fisher J urged that the Court exercise a restrained
approach in examining the adequacy of the reasons of the Tribunal. His Honour
said at 145:
"It is my firm view that this Court when hearing appeals from
a Tribunal constituted for the purpose of reviewing
decisions of this nature, should adopt a restrained
approach. Parliament contemplated that only in exceptional
circumstances should the decision of the Tribunal not be the
final decision. This does not mean that when an error of
law is identified, the court should be reluctant to
intervene. In fact, it is under a duty to do so. Rather it
should heed the comments of Davies LJ (as he then was) in
R. v. Industrial Injuries Commissioner; Ex parte Amalgamated
Engineering Union (No. 2)(1966) 2 QB 31: 'I should like to
echo the words of my Lord, Lord Denning MR, in saying that
I deprecate the practice, and hope it would not continue, of
attempting to magnify or inflate questions of fact into
questions of law and of trying to obtain decisions from the
courts on matters which the legislature would appear to have
thought suitable for decision by the various bodies and
authorities set up under the Act of 1946' (1966) 2 QB at p 50."
26. Consistent with that approach is the observation by Lockhart J in Politis
v. Federal Commissioner of Taxation (1988) 20 ATR 108 at 111:
"I have observed a distinct and growing tendency in this court
when appeals are brought from administrative tribunals,
including appeals on a question of law from the Administrative
Appeals Tribunal under s 44(1) of the Administrative Appeals
Tribunal Act, for the court to be asked to construe the
tribunal's reasons for its decision minutely and finally and
with an eye keenly attuned to the perception of error...I
repeat what has been said by other members of this court in the
cases mentioned below and by myself on more than one occasion,
that when this court hears appeals from administrative
tribunals - which are the bodies entrusted by Parliament with
the task of reviewing decisions of a particular administrative
character - the court should approach its task sensibly and in
a balanced way, not reading passages from the reasons for
decision in isolation from others to which they may be related
or taking particular passages out of the context of the reasons
as a whole."
27. Nonetheless, the Tribunal is obliged to expose its reasoning process for
reaching particular conclusions and to make findings on material questions of
fact: Australian Telecommunications v. Barker (1990) 12 AAR 490 at 492;
Statham v. Federal Commissioner of Taxation 89 ATC 4070 at 4072.
28. One important reason for this requirement is that an appeal lies to this
Court only on a question of law. In that respect an adequate statement of the
findings of fact made by the Tribunal frequently goes a long way towards the
disposition of any appeal.
29. There is no error of law in simply making a wrong finding of fact.
Brennan J said in Waterford v. The Commonwealth of Australia (1987) 163 CLR 54
at 77:
"The error of law which an appellant must rely on to succeed
must arise on the facts as the AAT has found them to be
or it must vitiate the findings made or it must have led the
AAT to omit to make a finding it was legally required to
make. There is no error of law simply in making a wrong
finding of fact."
30. However, the question whether there is any evidence of a particular fact
or whether a particular inference can be drawn from proven facts is one of
law. In Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462, Mason CJ
said at 477:
"The question whether there is any evidence of a particular
fact is a question of law: McPhee v. S Bennett Ltd (1934) 52
WN (NSW) 8 at 9; The Australian Gas Light Co v. The
Valuer-General (1940) 40 SR (NSW) 126 at 137-138. Likewise, the
question whether a particular inference can be drawn from
facts found or agreed is a question of law: Australian Gas
Light, at 137-138; Hope v. Bathurst City Council (1980) 144
CLR 1 at 8-9. This is because, before the inference is
drawn, there is the preliminary question whether the
evidence reasonably admits of different conclusions: Federal
Commissioner of Taxation v. Broken Hill South Ltd (1941) 65
CLR 150 at 155, 157, 160. So, in the context of judicial
review, it has been accepted that the making of findings and
the drawing of inferences in the absence of evidence is an
error of law: Sinclair v. Maryborough Mining Warden (1975)
132 CLR 473 at 481, 483."
31. The Tribunal was obliged to assess the applicant's eligibility from time
to time over the "assessment period": s. 19(9) of the Veterans' Entitlements
Act. In particular, the crucial period is the time between the date of
application on 11 December 1985 and Mr Myers' 65th birthday on 17 January
1986.
32. The statement in the Tribunal's reasons that "(the) only evidence which
controverts that assessment was the opinion expressed by Dr Bordujenko" is a
misstatement because there was evidence before the Tribunal to the contrary.
That sentence constitutes an erroneous summation of the evidence before the
Tribunal, a position which Mr Logan, counsel for the Commission, said he could
not challenge.
33. The statement in paragraph 13 of the Tribunal's reasons that "(n)o
evidence allows the Tribunal to conclude that the degree of incapacity of the
applicant was 100% prior to his 65th birthday" is ambiguous. The statement
might involve a rejection of the evidence of Dr Curtis and of Dr Bordujenko,
or it may represent the position that the Tribunal did not have regard to the
evidence of Dr Curtis or did not appreciate its significance.
34. The Tribunal concluded that Mr Myers was precluded from engaging in any
employment solely because of the reasons flowing from his accepted war-caused
disabilities, from 1981 onwards. The Tribunal accepted Dr Bordujenko's
assessment of 100% disability in January 1989 and relied on that in part for
rejecting the finding by the Veterans' Review Board of 90% disability and
increasing it to 100% disability.
35. The Tribunal noted a number of reports from various medical practitioners
at various times which pointed to a deterioration in aspects of Mr Myers'
condition over time. The Tribunal found "it is clear that the applicant's
condition was not static between 1986 and 1988" and posed the problem facing
it in these terms:
"The problem for the Tribunal is whether to accept Dr.
Bordujenko's opinion that the applicant was 100% disabled in
1985 or to attempt to determine when he became so disabled."
In my opinion, the finding by the Tribunal that:
"No evidence allows the Tribunal to conclude that the degree
of incapacity of the applicant was 100% prior to his 65th
birthday. Indeed the evidence of assessment subsequent to
that date leads to a conclusion to the contrary"
is wrong in law, because it either ignores the evidence of Dr Curtis and the
evidence of Dr Bordujenko or, concerning the degree of incapacity prior to his
65th birthday, the reasoning of the Tribunal fails to indicate on what basis
(if it was the case) that that evidence was rejected.