Administrative Appeals Tribunal of Australia|2001-03-13|Before: Northrop J

Greer and Defence Force Retirement and Death Benefits Authority [2001] AATA 186 (13 March 2001)

CATCHWORDS - PRACTICE AND PROCEDURE - Extension of Time - whether applicant entitled to extension of time - prospects of success - reasonable - decision set aside - extension of time granted.

Defence Force Retirement and Death Benefits Amendment Act 1979 - s 30

Bouvet v Secretary, Department of Social Security [1992] FCA 216 (Unreported, Northrop J, 7April, 1992)

Cocks v Commissioner for Superannuation (1990) 21 ALD 297

Dickinson v Comcare (1998) 52 ALD 86

Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156; (1985) 8 ALN N97a

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

Maynard v Secretary, Department of Social Security [1993] FCA 698 (Unreported, Northrop J, 26 August, 1993)

Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663; (1977) 1 ALD 31

Re Lauri and Commissioner for Superannuation (Unreported, AAT 7308, Deputy President Burns, Dr Linn and Dr Lock, Members, 13 September, 1991)

Re Rayment and Commissioner for Superannuation (Unreported, AAT 5322, Senior Member Balmford, Ms Rodopoulos and Professor Webster, Members, 23 August, 1999)

Re Whiteford and Commissioner for Superannuation (1987) 14 ALD 321; (1987) 6 AAR 70

Secretary, Department of Social Security v Van Den Boogaardt [1995] FCA 1289; (1995) 37 ALD 619

DECISION AND REASONS FOR DECISION [2001] AATA 186

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

sets aside the decision of the respondent dated 13 February, 1998 and confirmed by its decision dated 21 May, 1999; and

substitutes a decision that the time within which the applicant may request the respondent to reconsider its decision dated 17 July, 1975 be extended to and including 13 May, 1997.

On 23 June, 1999, the applicant, Mr John Winston Greer, applied for review of a decision of the Defence Force Retirement and Death Benefits Authority ("Authority") dated 21 May, 1999. By its decision, the Authority confirmed its earlier decision dated 13 February, 1998 not to allow Mr Greer an extension of time pursuant to s. 99(2) of the Defence Force Retirement and Death Benefits Act 1973 ("DFRDB Act"). Mr Greer had sought an extension of the time within which he could request reconsideration of a decision made by a delegate of the Authority on 17 July, 1975. He sought the extension until 13 May, 1997.

2. At the hearing, Mr Greer represented himself while Mr Whithear represented the Authority. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a letter from Professor Lawrie W. Powell dated 28 February, 2000 and a document headed "Employment Standard Committee Record (Continuation)". No oral evidence was given but both Mr Greer and Mr Whithear made written as well as oral submissions.

3. The issue in this case is whether the Authority should extend to 13 May, 1997 the time within which Mr Greer may seek review of the Authority's decision of 17 July, 1975. That raises a subsidiary issue and that is whether haemochromatosis caused the invalidity or physical or mental incapacity because of which Mr Greer was retired.

4. There was no dispute between the parties as to the facts leading to Mr Greer's application. In view of that and on the basis of the material, I have made the findings of fact set out in the following paragraphs.

5. Mr Greer, who was born on 7 November, 1946, joined the Royal Australian Air Force ("RAAF") on 10 September, 1963. He was assessed for continuing employment in the RAAF by a medical board on 29 October, 1974. On 12 December, 1974, Air Commodore F.W. Barnes, who was the Director-General Personnel (Air Force), decided that Mr Greer was "medically unfit for service". He did so with the advice of the Employment Standard Committee. Mr Greer was discharged from the RAAF on 24 January, 1975.

6. As a member of the RAAF, Mr Greer was a member of the Defence Force. For the purposes of the DFRDB Act, he was a "contributing member" as he was a member of the Defence Force who had made contributions under s. 17 of that legislation (s. 3(1)). Subject only to certain exceptions that are not relevant in this case, a contributing member is entitled to invalidity benefit in accordance with Part V of the DFRDB Act where that member is retired on grounds of invalidity or of physical or mental incapacity to perform his duties (s. 26).

7. On 17 July, 1975, a delegate of the Authority classified Mr Greer under s. 30 of the DFRDB Act. That section applies to a "member of the scheme" and that expression is defined in s. 3(1) to mean "... a person who is, or at any time on or after the date of commencement of the scheme, has been, an eligible member of the Defence Force". Mr Greer is an "eligible member of the Defence Force" as that term is defined in s. 3(1).

8. Although s. 30 has since been amended, the obligation upon the Authority to classify a member of the scheme has remained the same. Up until its amendment by the Defence Force Retirement and Death Benefits Amendment Act 1979 ("Amendment Act") on 19 March, 1979, the substance of s. 30 was the same as that now found in s. 30(1) of the DFRDB Act. Section 30 provided:

"(1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:

60% or more ............................................................... A

30% or more but less than 60% .......................................B

Less than 30% ............................................................ C"

9. The delegate classified Mr Greer as 40% Class B under s. 30 and that classification took effect from 25 January, 1975 (T documents, page 40). The disabilities from which Mr Greer was said to be suffering were personality disorder with reactive depression and lumbar back pain.

10. A person who is entitled to invalidity benefit and who has been classified as Class A or Class B under s. 30 (whether on his or her retirement or by reason of his or her having been re-classified under s. 34(1)) is entitled to invalidity pay (s. 31(1)). The rate of that invalidity pay is calculated according to ss. 31(2) and (3). Where a person is entitled to an invalidity benefit and is classified as Class C, s. 32 sets out the invalidity benefit payable to him or her.

11. Pursuant to s. 34 of the DFRDB Act, the Authority may reclassify a person who is receiving invalidity pay (i.e. a "recipient member" (s. 3(1)). Prior to the Amendment Act, s. 34(1) provided that:

"The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him accordingly as if he were being classified under section 30."

The date of effect of any reclassification and the effect of any reclassification was determined according to ss. 34(2), (3) and (4).

12. On 7 October, 1976, a delegate of the Authority reviewed Mr Greer's classification and decided that his classification of 40% Class B should be retained (T documents, page 45). On 17 March, 1978, however, a delegate reviewed Mr Greer's classification and determined that he should be reclassified as 30% Class B (T documents, page 58). On 14 May, 1979, a delegate decided that Mr Greer's Class B classification should be retained. He or she noted that his current pension classification was 40% and made no reference to the previous decision of 30% on 17 March, 1978 (T documents, page 62).

13. The amendment of s. 30 of the DFRDB Act by the Amendment Act added s. 30(2), which provided:

"In determining, for the purposes of sub-section (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the member;

(b) the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c) the degree to which the physical or mental impairment of the member that is the cause of the invalidity or physical or mental incapacity by reason of which he has been retired has diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this subsection."

14. At the same time, s. 34(1) was amended so that it now read:

"The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment."

The Amendment Act also added s. 34(1A), which largely reflects

"In determining, for the purposes of sub-section (1), the percentage of incapacity in relation to civil employment of a recipient member, the Authority shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;

(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this sub-section."

16. A definition of the expression "prescribed physical or mental impairment", to which reference is made in s. 34(1A)(c), was also added by the Amendment Act. It was defined in s. 34(1B) to mean in relation to a recipient member:

"(a) a physical or mental impairment of the recipient member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the recipient member was retired, whether or not that impairment has changed, for better or worse, since that retirement; or

(b) any other physical or mental impairment of the recipient member causally connected with a physical or mental impairment referred to in paragraph (a)."

17. The date of effect of any reclassification is determined according to the remaining provisions of s. 34 of the DFRDB Act.

18. The Amendment Act made transitional provisions in s. 10. It provided, in effect, that where a person was classified under s. 30, or reclassified under s. 34, of the DFRDB Act prior to its amendment, the DFRDB Act as amended by the Amendment Act applied to him or her as if he or she had been classified, or reclassified, under ss. 30 or 34 as amended.

19. The papers considered by the Authority at its meeting on 15 August, 1980 showed Mr Greer's classification as 30% (T documents, page 87). The Authority resolved that his incapacity in relation to civilian employment was 30% and that his classification under s. 30 of the DFRDB Act remained Class B (T documents, page 92).

20. Delegates of the Authority decided not to review Mr Greer's classification on 7 October, 1981, 7 April, 1983, 18 July, 1984, 8 February, 1987 and 2 March, 1989 (T documents, pages 99, 105, 110, 115 and 119). On 23 October, 1991, a delegate of the Authority reviewed Mr Greer's classification and determined that his percentage incapacity in relation to civilian employment was 30% and that his classification should remain as Class B (T documents, page 129).

21. On 12 May, 1997, Mr Greer raised with the Authority the possibility of his seeking review of the decision of 17 July, 1975 to classify him as 40% Class B pursuant to s. 30 of the DFRDB Act (T documents, page 131). On 13 May, 1997, he wrote a letter seeking review of that decision (T documents, pages 133-135).

"A person who is affected by a decision of the Authority and is dissatisfied with the decision may, by notice in writing given to the Authority, within a period of 30 days after the date on which the decision first comes to the notice of the person, or within such further period as the Authority allows, request the Authority to reconsider the decision."

The word "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975 and, in the context of this case, a "decision of the Authority" means, in essence, a decision of the Authority, or of delegate of the Authority, under the DFRDB Act (s. 99(1)). Upon receipt of the request, the Authority must reconsider the decision and either confirm or vary it (s. 99(4)). Applications may be made to the Tribunal for review of those decisions of the Authority that have been confirmed or varied (s. 99(6)).

23. On 13 February, 1998, the Authority refused to extend the time within which Mr Greer could lodge his application to seek reconsideration of the decision dated 17 July, 1975. It confirmed that decision on 21 May, 1999 after reconsidering its initial decision. Mr Greer applied for review of the Authority's initial decision.

24. In considering applications to extend time in various jurisdictions in the Tribunal, regard has been had to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. Without intending to set out an exhaustive list, his Honour set out a number of principles to guide a court in reaching a decision on an application for an extension of time. The essential features of those principles are set out in the head note to the case which reads:

"(a) the fact that the applicant bears the onus of rebutting the prima facie rule that no ... proceedings commenced outside the prescribed period will be entertained by the court by showing an `acceptable explanation of the delay' and that it would be `fair and equitable in the circumstances' to extend the time;

(b) any action taken by the applicant, apart from the actual making of an application for review under the ADJR Act, which continues to make the decision-maker aware that the finality of his decision is being contested;

(c) any prejudice to the respondent which may have resulted from the delay;

(d) any unsettling of people, other than the respondent, or of established practices;

(e) the merits of the substantial ... application;

(f) considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-a-vis the parties but against the wider public interest which must also be taken into consideration."

25. These principles have been developed in later cases such as Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 (Black CJ, Gray and Burchett JJ); Secretary, Department of Social Security v Van Den Boogaardt [1995] FCA 1289; (1995) 37 ALD 619 (Kiefel, J) and Dickinson v Comcare (1998) 52 ALD 86 (Finn J). At the same time, Northrop J pointed out in Maynard v Secretary, Department of Social Security [1993] FCA 698 (Unreported, Northrop J, 26 August, 1993):

"An unfettered discretion conferred by statute cannot be fettered by decisions of a court. In exercising the power conferred by s 11 of the Judicial Review Act, the Court must act judicially and on relevant facts. If it is wrong, an appeal court can put the trial judge right. The reference to other authorities may be interesting but essentially they are illustrations of other cases, in most cases the facts of which are completely different to the facts before the Court. They may be helpful in understanding what may be relevant. They are not binding in any sense at all and to that extent it is often unwise to refer to too many cases because it detracts from the real issue that the Court must decide on the facts before it.

What is necessary to keep in mind is that the statute does impose a limitation period but at the same time there is a power to extend that period. The extension can be made before or after the expiration of the time. Having regard to that clear intention of the Legislature, the Court must consider the facts and determine whether there has been proof of sufficient matters to justify the granting of the indulgence to the person seeking the extension of time. Involved in this, a number of matters must be considered, including any explanation as to why the matter was not brought within the prescribed time, the effect on the applicant if the time is not extended and the effect on other persons, including the respondent or third parties who could be affected if leave is granted and the application succeeds in due course. Often some of these features are referred to as what is fair and reasonable, sometimes referred to as prejudice, but essentially what is to be considered is the effect of either making or refusing to make an order for the extension of time." (pages 3-4)

26. It is also clear from the authorities, however, that the time within which an application may be lodged will not be extended if there is no possible hope of the application's succeeding if it were to be reviewed on the merits (Bouvet v Secretary, Department of Social Security [1992] FCA 216 (Unreported, Northrop J, 7 April, 1992). This aspect was also considered by von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 when he said:

"One of the principal considerations to be addressed in deciding whether it

is fair and equitable in all the circumstances to extend time is whether the

merits of the proposed appeal are such that if an extension of time is granted

there is some prospect of success in the appeal. If a consideration of the

merits indicates that there is no question to be agitated on the appeal, and

there is no prospect of success, it would be futile to grant an extension of

time and most unjust to the respondent to subject the respondent to the costs

27. Returning to Mr Greer's case, it was common ground between the parties that, if he would not have any prospect of success in his application, his application for an extension of time should not be granted. Mr Greer's prospects of success turn upon "the degree to which ... [Mr Greer's] physical or mental impairment ... that is the cause of the invalidity or physical or mental incapacity by reason of which he has been retired has diminished ... [his] capacity... to undertake the kinds of civil employment referred to in paragraph (b) [of s. 30(2)]" (s. 30(2)(c)). This is one of the four matters to which the Authority must have regard under s. 30. These four matters are the only matters to which regard may be had in determining Mr Greer's percentage of incapacity in relation to his civil employment.

28. The provisions of s. 30(2) are largely mirrored in s. 34(1A), which relates to reclassification and which comes into play after a member is classified under s. 30. The manner in which the provisions of s. 34(1A) are applied was considered by the Full Court of the Federal Court in Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 (Sweeney, Sheppard and Beaumont JJ). Sheppard J described the application of s. 34(1A):

"The provisions of s 34(1A) are similar, but not precisely the same as the provisions of s 30(2) earlier referred to. It is to be observed that the matters specified in s 34(1A) as the matters to which the Authority is to have regard are the only matters with which the Authority is to be concerned. The subsection is exhaustive in this regard. It is also to be observed that because of the definition of 'prescribed physical or mental impairment' in s 34(1B) a member may be reclassified at any time and may be reclassified so that he is found to have either a greater or a lesser degree of incapacity than was previously the case. That is because the definition in s 34(1B) takes one back to the physical or mental impairment that was the cause of the original invalidity or physical or mental incapacity by reason of which the member was retired. It follows that the Authority is always obliged to look at the current capacity of a member and reach a conclusion on the degree to which the original physical or mental impairment which caused his incapacity has diminished his capacity for civil employment. ..." (page 160)

29. In having regard to the matters set out in s. 30(2)(c), it follows from the principles set out by Sheppard J and from the provision itself that there are three steps to be considered. The first is to determine the invalidity or physical or mental incapacity by reason of which Mr Greer was retired. The second is to determine the physical or mental impairment that caused that invalidity or physical or mental incapacity. The third is to determine the degree to which that physical or mental impairment has diminished Mr Greer's capacity to undertake the kinds of civil employment which a person with his skills, qualifications and experience might reasonably undertake.

30. The answer to the question raised by the first step turns on the invalidity or physical or mental incapacity by reason of which Mr Greer was retired. In view of the definition of "retirement" in s. 3(1), the reference to Mr Greer's having retired refers both to his having retired or to his having been discharged. In considering s. 51(2) of the predecessor of the DFRDB Act, the Defence Forces Retirement Benefits Act 1948 ("1948 Act"), which adopted similar language, the Tribunal said in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31 (Brennan J, President, Mr Edmunds and Dr Glick, Members):

"The 'incapacity of the person' to which s 51(2) refers is first determined by the Board when the person is retired from the Defence Force, and thus the medical disability which causes the member of the Defence Force to be retired is the disability which, at the time of the first determination, is the cause of the relevant incapacity. ..." (page 33)

31. Mr Whithear submitted that the Authority cannot determine for itself what should have been the incapacity because of which a person was retired. It is the responsibility of the Defence Force, or in this case, of the RAAF, to advise the Authority of the ground upon which a person was retired and the Authority cannot go beyond this. He supported his submission by reference to the judgement of Davies J in Cocks v Commissioner for Superannuation (1990) 21 ALD 297. His Honour considered a submission that, when Telecom advised the Commissioner for Superannuation on 3 December, 1985 of the conditions upon which it had retired Mrs Cocks, it had altered the basis upon which it had earlier (on 7 July, 1981) retired her on the ground of invalidity pursuant to s. 56(1) of the Telecommunications Act 1975. The earlier decision had stated that Mrs Cocks was retired due to a medical condition described as "spinal disc disorder with spondylitis - 100%" (page 300). Telecom's later letter referred to "spinal disorder with spondylitis and symptoms of anxiety and depression" (page 306). Davies J rejected the submission and said:

"Anxiety and depression not being mentioned in the decision of 7 July 1981, it was relevant for the Commissioner for Superannuation to make enquiry of Telecom so as to satisfy himself as to what had been the incapacity which had led to retirement. ... Telecom accepted that the incapacity resulting in the retirement was an incapacity based in part on or involving psychological elements. It was then relevant for Mr Whithear, the delegate of the Commissioner, to take this into account in his 1986 reconsideration and it was relevant for the Tribunal also to take it into account." (page 306)

32. Mr Whithear referred also to the Tribunal's decision in Re Rayment and Commissioner for Superannuation (Unreported, AAT 5322, then Senior Member Balmford, Ms Rodopoulos and Professor Webster, Members, 23 August, 1999), when it said:

"... What is in issue at this stage is not what were the various forms of incapacity by reason of which the applicant may have been unable to perform his duties. The question is, what incapacity was in the minds of the delegates of the Public Service Board and the Department of Defence who made the decision..." (paragraph 40)

33. Having regard to the authorities and to the wording of s. 30(2), it seems to me that there is an obligation upon the Authority, and so upon this Tribunal, to determine the invalidity or physical or mental incapacity because of which Mr Greer was retired. That involves the Authority, and so this Tribunal, in making its own enquiries on the subject. Where there is a clear statement of the incapacity or incapacities because of which a person was retired and that statement is made by the body which made the decision, that will be strong evidence of the incapacity. That, however, is not always the case and regard will then need to be had to less direct evidence. Among that evidence may be contemporaneous medical reports, minutes of supervisors and statements of the person concerned. There may also be evidence in the form of subsequent statements by the employing agency as to what were the reasons for the earlier retirement and from the body with responsibility to make the decision to retire a person. From whatever source the material is gathered, it is all directed to determining the invalidity or physical or mental incapacity because of which a person was retired. The focus is not upon the invalidity or physical or mental incapacity upon which a person could, or should, have been retired. The focus is upon those invalidities, physical or mental incapacities upon which he was retired.

34. What is an "invalidity" or "incapacity" as those words are used in s. 30(2)(c)? What, if any, is the distinction to be drawn between them and the "impairment" to which regard must be had in the second step? None is defined in the DFRDB Act.

35. In so far as they are relevant, the ordinary meanings of the word "invalidity" are:

"... 2 Weakness, incapacity ..." (The New Shorter Oxford English Dictionary, 1993) (and see also The Macquarie Dictionary, 3rd edition, 1997)

"... 1 Lack of capacity; inability, powerlessness; an instance of this. ... b Inability to take, receive or deal with something in some way. ..." (The New Shorter Oxford English Dictionary, and see also The Macquarie Dictionary)

36. The ordinary meanings ascribed to the words "incapacity" and "invalidity" may be contrasted with that given to the word "impairment". As with the others, the word "impairment" is not defined in the DFRDB Act. The word has been considered in a number of cases but generally in a context in which it has been given a statutory definition. The ordinary meanings of the word "impair" are:

"... 1 v.t. Make less effective or weaker; devalue; damage, injure. ...2 v.i. Become less effective or weaker; deteriorate; suffer injury or loss. ..." (The New Shorter Oxford English Dictionary)

The word "impairment" is defined in turn as meaning "the action of impairing, the fact of being impaired." A similar definition of these words appears in The Macquarie Dictionary.

37. Taking into account their ordinary meanings, then, there is a distinction drawn between the deterioration, injury or loss that is the impairment on the one hand and the weakness, inability or powerlessness that is the invalidity or incapacity on the other. In the context of s. 30(2)(c), the deterioration, injury or loss is the cause of the weakness, inability or powerlessness. This distinction was illustrated in a number of cases including Re Lauri and Commissioner for Superannuation (Unreported, AAT 7308, Deputy President Burns, Dr Linn and Mr Lock, Members, 13 September, 1991), where the Tribunal said:

"12. ... In Re Burr and Commissioner for Superannuation AAT Decision No. 411, 30 September 1980, noted at (1980) 3 ALN N1. The Tribunal said at p.14:

'The phrase 'incapacity which was the ground for ... retirement' is not we consider necessarily to be seen as itself connoting a physical or mental condition. It would seem to relate more properly to the outward result that leads to a person being unable to perform, that is to say to lack the capacity to perform, his or her duties. The distinction between 'incapacity' and a 'condition' is clearly made in the legislative text, where the question is raised as to whether the incapacity was caused or substantially contributed to by a condition or conditions.'

We would respectfully adopt the Tribunal's reasoning in that case. Pain is not itself an incapacity, it may cause incapacity, as it has done in this case, but the pain is not the incapacity which was the grounds for retirement.

13. In Cocks v Commissioner for Superannuation (1990) 21 ALD 297, Davies J, at pages 305-306 proceeded on the basis that it was proper for the Commissioner to form his own opinion of what the retirement incapacity was. (See also Beaumont J in Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153; 63 ALR 237 at page 160 (FCR); 244 (ALR). Incapacity is the inability to do something. A person may have a certain capacity for an activity and as long as they do only so much of that activity as they have capacity for, there is no incapacity for that activity, for example light duties. If, as in this case, a medical condition reduces capacity, so that there is no capacity to do an activity the person could previously do, it is that inability, not its cause which is the incapacity. In this case the applicant does not have the capacity to fulfill the duties of a clerical assistant grade one because he lacks the mobility required and he lacks the ability to concentrate sufficiently to perform those duties."

38. In this case, there is nothing so clear as a statement of the reasons for Mr Greer's retirement. Air Commodore F.W. Barnes did no more than make the simple decision regarding Mr Greer's retirement. It is reasonable to assume, however, that he had regard to the Medical Board Report and perhaps to the earlier pre-board assessment.

39. Taking first the pre-board assessment dated 21 October, 1974 (T documents, pages 24-25), it set out two diagnoses: personality disorder with reactive depression and lumbar back pain. It then set out clinical and general aspects:

History. Perusal of PM 105 Outpatient Records from 1964 reveals a large number of attendances for minor conditions, which is common in patients with subclinical personality disorder. There are only two specific indications of psychological problems before 1973; a note in Jan 64 of reporting to sick quarters in hysterical condition, having 'felt off colour on a guard', and a mention in 1972 of being unable 'to keep hand steady' during a trade test. In 1973 the member on two occasions mentioned personal problems. The first evidence of the severity of his illness was a presentation on 27 Apr 74, depressed and having scratched his wrists with glass (Ref A). He spent 49 days in hospital, all but 4 days at RGH Heidelberg. Following this he has had continuing out patient care from Dr G. Conron, Consultant Psychiatrist (Ref B). There have been two further episodes of reactive depression sufficiently severe to require hospital admission (Refs C and D). The first of these involved a second self-injury.

Present Condition. The member continues under psychiatric outpatient care. As well he is obtaining considerable support from both Service Medical Officers and, especially, a Chaplain. He is as calm as he has been between previous depressive attacks.

Prognosis. Disabling attacks of anger with reactive depression and self injuring actions have continued until recently, and it is impossible to discount their recurrence. Any progress made will undoubtedly be slow. Dr Conron commented on 2 Aug 74 (Ref B) 'I think he will require continued outpatient psychiatric support for some months ..... Further exacerbations of anxious or aggressive behaviour is possible however, but the likelihood of this should be diminished considerably by psychiatric support'. Since then, one episode has required hospital admission. He further notes on 10 Oct 74 'He remains intolerant and frustrated, .... demanding of girlfriend, Service people and medical attendants. Is probably not effective in his job at present'.

Lumbar Back Pain. This is a relatively minor condition, to which the member's reaction has undoubtedly been heightened by his personality disorder. First presented with it in 1965 and has had physiotherapeutic care. Exercises are probably an adequate treatment (Ref E).

Because of the security sensitive nature of his mustering, the member is currently not employed in his full capacity." (T documents, pages 24-25)

40. The Medical Board Report dated 29 October, 1974 followed. It set out the same diagnoses and continued:

Personality Disorder. This member has a long standing personality disorder. This was evidenced in the years prior to 1974 by a variety of attendances of a minor nature. Since that time his wife left him and the degree of his personality disorder has suddenly become blatantly manifest. For a period in excess of twelve months he has been counselled and supported by medical and para medical personnel and has been under constant care of our consultant Psychiatrist, Dr Conron. He has had five admissions for reactive depression since Apr 74, the longest duration of inpatient care was 49 days at Repatriation General Hospital Heidelberg. His condition has not improved despite intensive treatment and he remains essentially the same as he was at the beginning of 1974.

Lumbar Back Lesion. This is a minor condition to which the member's reaction has undoubtedly been heightened by his personality disorder. Physiotherapy has been sufficient therapy.

Lumbar Back Lesion. This is unlikely to cause any great problems to the member in the performance of his duty and the prognosis is good.

Personality Disorder and Reactive Depression. This man's personality disorder is evidenced by his rapid turnover of jobs. He had many different jobs prior to his joining the RAAF and has had five remusters while in the RAAF. This does not include job changes within each mustering. The man is unsettled and unhappy with the environment around him which is hostile only because of the insults he has inflicted upon it. From a medical point of view it is fairly certain the attacks of depression and self injury will continue (latest admission for self injury 25 Oct 74) and the medium to long term prognosis is clouded with grave doubt.

As can be seen by the PM 108 report by his Section Commander he has become an administrative nuisance and as can be seen from his frequent absences from work a less than 100% useful member. The Board feels in view of the member's present state and the prognosis of his condition that he should be made permanently unfit [for] RAAF Service." (T documents, page 26)

41. The extract from the Employment Standard Committee Record dated 12 December, 1974 does not take the matter any further. It merely states a recommendation, an agreement and a decision that Mr Greer be found medically unfit for service with a 40% disability. That accords with the Medical Board Report (Exhibit 2 and T documents, page 27).

42. Also in evidence in this case are the outpatient clinical records obtained by Mr Greer from the Health Services Branch and included in the T documents. Those records note a number of complaints made by Mr Greer over the years between 4 January, 1964 to 6 December, 1974. The complaints concern matters such as stinging eyes, vomiting, recurrent colds, depression, abdominal cramps, tinea, backache, diarrhoea, corn on toe, hay fever, knee problems, chest complaints and sore throats. Between 22 January, 1964 and 26 April, 1974, there are also the following entries:

"22.1.64 Yesterday felt off colour following a guard had to go & sit down. Later reported to sick quarters in hysterical condition. He settled now [illegible]" (T documents, page 344)

"6 Apr 70 Run down ć frequent URTIs & hay fever recently ć 1st wt loss. ..." (T documents, page 216)

"25 Feb 72 Trade test - unable to keep steady hand on key. ..." (T documents, page 215)

(2) fatigue - o.e." (T documents, page 215)

"26 MAR 74 ... 2. Lack of energy. ..." (T documents, page 208)

[Illegible] he can't cope. Basically an inadequate personality. ..." (T documents, page 208)

43. Having regard to the Medical Board Report and to the pre-board assessment, there are a number of factors because of which the Board considered Mr Greer unable to fulfil his duties in the RAAF and because of which he should be retired. They included his being unhappy, unsettled, depressed, prone to self injury, being angry, aggressive and anxious, his being an administrative nuisance and his frequent absences from work. When regard is had to Mr Greer's medical records, it is found that the reasons for his frequent absences ranged from problems with his back to symptoms that were attributed to depression or to his personality and to his difficulty in coping with his family and personal situation. The reasons for his absences included also a range of other medical matters and included the five references to fatigue, or the like, and lack of ability to cope and one to lack of steadiness of his hand. The general tenor of the outpatient clinical records is that Mr Greer felt regularly unwell.

44. Having regard to the meanings of invalidity and incapacity as those terms are used in s. 30(2)(c), the groups of invalidities or physical or mental incapacities by reason of which Mr Greer was retired can be grouped into three. The first comprises his lack of ability to cope in the workplace provided by the RAAF because of displays of behaviour such as anger, aggression and depression. The second comprises his back complaints. The third comprises what can, without ascribing its causes, only be described in the most general terms of his feeling unwell.

45. That brings me to the second step. That requires a determination of the physical or mental impairment that caused the incapacities because of which Mr Greer was retired. As the Tribunal said in Re Whiteford and Commissioner for Superannuation (1987) 6 AAR 70 (Deputy President Thompson and Dr Garlick and Mr Woodard, Members) in the context of a similar issue raised by s. 66(2) of the Superannuation Act 1976:

"... s 66(2)(c) also empowers the Commissioner to form an opinion that a condition specified in the benefits classification certificate caused the incapacity. That provision would be purposeless if he were bound to have regard only to the conditions taken into account by the Board. We are satisfied that s 66(2)(c) empowers him to form an opinion that a condition not taken into account by the Board caused the incapacity, at least where such opinion is not totally irreconcilable with the view adopted by the Board..." (page 76)

46. There was no dispute between the parties regarding impairments of personality disorder with reactive depression or lumbar back pain. The case focused on the diagnoses of Mr Greer's other medical conditions. On the basis of the evidence of Dr Saleh, it is open to find that Mr Greer suffers from the additional conditions of haemochromatosis, diabetes mellitus, impotence and liver cirrhosis as a result of his haemochromatosis. Haemochromatosis was not diagnosed until April, 1996.

47. Dr Charles Steadman is a consultant gastroenterologist and a hepatologist. Dr Saleh had referred Mr Greer to Dr Steadman who had been asked to provide a report to the DFRDB. In his report dated 3 December, 1997, Dr Steadman noted Mr Greer's history:

"Dr Saleh had seen Mr Greer for the complaints of chronic fatigue associated with altered liver enzymes. Dr Saleh had noted that Mr Greer had increased iron levels and a raised serum ferritin. At the time of initial assessment Mr Greer reported to me that liver abnormalities had first been detected during a period of alcoholism from which he recovered eighteen years ago. He reports as does his general practitioner that he has not drunk alcohol in the last eighteen years but despite an initial improvement in his liver enzymes, apparently there had been a persistent abnormality. He reported that throughout the eighteen year period, he had remained fatigued and developed low back pain. Mr Greer had not noticed increasing pigmentation and had not developed specific episodes of arthritis. He described himself as being 'basically impotent.' He has non insulin dependent diabetes mellitus that had been diagnosed on a glucose tolerance test approximately two years ago and was known to have decreased sensation in his feet resulting from a peripheral neuropathy. There was no specific history of cardiac disease at that time." (T documents, page 144)

48. Dr Steadman then went on to address the second step raised by s. 30(2)(c):

"In summary, Mr Greer has had liver abnormalities associated with evidence of iron accumulation to a degree consistent with genetic haemochromatosis. You have asked me to speculate about whether Mr Greer's disorder was causing him any incapacity for civilian employment at the time of discharge from the Air Force on 24th January, 1975. As this is more than 20 years ago, the question is impossible to answer in any accurate way. Suffice it to say, that by his own admission, Mr Greer was suffering from alcoholism at this time that would have potentially altered his liver enzymes and other clinical assessment in regard to liver disease. The most common symptom of haemochromatosis is fatigue but fatigue is also a symptom of liver disease of any cause. I cannot comment on the diagnoses of reactive depression and lumbar back pain in relation to my assessment and treatment of Mr Greer from 1996 to 1997." (T documents, page 145)

49. Dr Kevin Hourigan, a gastroenterologist, was asked to consider the same issue. In his report dated 1 February, 1999, Dr Hourigan set out Mr Greer's medical and family history. He continued:

"The diagnosis is clearly homozygous genetic haemochromatosis and this condition would have been present since conception. Iron accumulation in the body would have progressed over the fifty years to the time of diagnosis in 1996 when the situation was advanced and liver damage had reached the point of cirrhosis. Since there is disagreement about alcohol intake between, say, 1965 and 1979, the contribution that alcohol intake, if in excess, might have made to acceleration of the processes of genetic haemochromatosis in the liver cannot be determined with accuracy. Most people with genetic haemochromatosis, even at the time of discovery, are free of symptoms of the condition. Although fatigue is frequently attributed to genetic haemochromatosis, fatigue is a very common symptom so that fatigue in a person with genetic haemochromatosis does not necessarily mean that the fatigue is due to the haemochromatosis. On clinical grounds it is no more than remotely possible that this case of haemochromatosis was already manifesting with symptoms in 1974. Whilst the condition of genetic haemochromatosis has been present since conception, and therefore in 1975 at the time of discharge, it would not have reached a stage in 1975 when it could have manifested as clinical symptoms, either as fatigue, back pain, psychological symptoms, heart trouble, impotence, or mental incapacity. ..." (T documents, page 346)

50. A further report dated 28 February, 2000 was also given by Professor Lawrie Powell who had read the medical reports given by Dr Steadman and Dr Hourigan as well as other material and who had seen Mr Greer. He said, in part:

"With the benefit of hindsight, Mr Greer's medical history is typical of the disorder known as hereditary or genetic haemochromatosis. This is an inherited disorder of iron metabolism which results from the inheritance of a double mutation in the recent described HFE gene and the resultant increase in iron absorption from birth leads to progressive iron deposition in the liver and other organs, leading eventually to organ damage.

Symptoms are usually absent or minimal until about the third or fourth decade of life, when increasing lethargy and fatigue are common and sexual dysfunction commonly develops with diminished libido and later frank impotence.

In Mr Greer's case the disease clearly remained undiagnosed until advanced complications developed, notably cirrhosis of the liver and diabetes, the latter would then have been a significant contributing factor to the development of coronary heart disease requiring coronary artery bypass grafting in 1997.

In answer to your specific questions, I submit the following:

(a) With hindsight and with the knowledge of the natural history of haemochromatosis, it is almost certain that Mr Greer was is (sic) in the early symptomatic stage of the disease in 1975. I note that he was 28 years of age at that time.

(a) The symptoms would have been increasing fatigue, lethargy and possibly impaired sexual function.

(a) The haemochromatosis is unlikely to have been the direct cause of Mr Greer's incapacity to perform his duties by reason of disabling attacks of anger, feelings of depression and episodes of self-injuring behaviour. However, the disease could have contributed by way of increasing frustration at the lack of obvious cause for the above symptoms listed under (b).

(a) As stated above, the early symptoms related to haemochromatosis which commonly occur at that stage of the disease include lethargy, fatigue and diminished sexual function. Frustration at the lack of diagnosis of the cause of fatigue commonly occurs and aggravates other disorders such as depression." (Exhibit A)

51. As Mr Whithear submitted, the reports of Dr Steadman and Dr Hourigan do not support Mr Greer's contention that his haemochromatosis caused the invalidity or incapacity because of which he was retired. It is open to find, however, that Professor Powell's does support his contention. Certainly, Professor Powell said that haemochromatosis was unlikely to have been the direct cause of Mr Greer's disabling attacks of anger, feelings of depression and episodes of self-injuring behaviour. He did, however, state that the symptoms of lethargy, fatigue and diminished sexual function commonly occur in the symptomatic stages of the condition. Those symptoms are usually absent or minimal until the third or fourth decade of a person's life. As Mr Greer was 28 years of age at the time of his retirement, he was in the third decade of his life and at a time when the condition could be expected to have become symptomatic.

52. Both Dr Steadman and Dr Hourigan find themselves unable to distinguish between any liver disease that might have been caused in 1974/75 by Mr Greer's consumption of alcohol at the time and the symptoms of haemochromatosis. Each leads to symptoms of fatigue and tiredness. As Mr Greer is recorded as suffering from fatigue or similar symptoms on five occasions in his records and in view of the fact that he has continued to complain of it in the twenty years since he ceased to drink alcohol, it is open to find that liver damage due to alcoholism is unlikely to have been the cause of his fatigue and similar symptoms prior to his retirement. It is more likely to have been his haemochromatosis.

53. As I am reviewing a decision whether or not to extend the time within which Mr Greer should be able to lodge his application for review to the Authority, it would be inappropriate for me to make findings of fact on the matters raised. Nor would it be appropriate to consider at this stage the third step raised by s. 30(2)(c) (see paragraph 29 above). I do, however, find that Mr Greer would have reasonable prospects of success if the substantive application were to be heard. As there is no suggestion that it would not otherwise be inappropriate to extend the time and as I am satisfied that it should be extended, I:

1. set aside the decision of the respondent dated 13 February, 1998 and confirmed by its decision dated 21 May, 1999; and

substitute a decision that the time within which the applicant may request the respondent to reconsider its decision dated 17 July, 1975 be extended to and including 13 May, 1997.

I certify that the fifty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Defence Force Retirement and Death Benefits Amendment Act 1979

Appeals Tribunal Act 1975

Force Retirement and Death Benefits Act 1973

Forces Retirement Benefits Act 1948

Force Retirement and Death Benefits Amendment Act 1979

_Bouvet v Secretary, Department of Social Security

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (153 paragraphs)

Greer and Defence Force Retirement and Death Benefits Authority [2001] AATA 186 (13 March 2001)

Parties

Legislation Cited (5)

Cases Cited (5)