Daley v Secretary, Department of Social Services

2. EVIDENCE 5 In support of his application for an extension of time, Mr Daly relied upon his affidavit dated 24 November 2015 which includes the draft Notice of Appeal. Mr Daley did not elaborate upon the proposed grounds of appeal in his affidavit. Mr Daley also sought to tender a bundle of documents annexed to an affidavit at the hearing. These were marked MFI-1 for identification on the basis that I would rule upon their admission into evidence when I delivered judgment on the application for an extension of time: see below at [19].

3.1 Principles applying to an application for an extension of time 6 In determining an application for an extension of time to appeal, relevant considerations to which the Court has regard include the length of the applicant's delay in lodging the application and the explanation for that delay, any prejudice to the respondent if the extension of time is granted, and whether the proposed appeal has any reasonable prospects of success: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 7 A consideration of the last of these factors does not require the court to conduct a summary hearing of the appeal. Rather, as Mortimer J recently held in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP) (upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110), the correct approach to determining the merits of the proposed grounds of appeal in the context of an application to extend time (in that case, for judicial review under s 477(2) of the Migration Act 1958 (Cth)) is whether the grounds of appeal are "arguable", "reasonably arguable", "sufficiently arguable" or have "reasonable prospects of success": MZABP [63] (see also SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48]; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 at [46]-[48]). The hearing of the application should not be transformed into a de facto full hearing; rather the "certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless": MZABP at [62]. The same may be said for determining an application for an extension of time within which to appeal: Jackamarra v Krakouer (1998) 195 CLR 516 at 521-522 [9] (Brennan CJ and McHugh J).

3.2 The length of the delay, explanation for the delay, and prejudice 8 As noted earlier, the length of the delay in the present case is some five days. The Secretary accepts that he has not been prejudiced by the delay. Furthermore, the applicant has given a reasonable explanation for the delay which the Secretary does not dispute. As such, the real issue is whether Mr Daley's appeal has any merit.

3.3 The proposed grounds of appeal 9 If leave is granted, Mr Daley's draft notice of appeal states that the following grounds of appeal would be relied upon to appeal against the whole of the judgment below: 1. That the presiding judge erred by failing to consider the medical specialists provided as evidence were appropriately qualified medical practitioners. 2. That the presiding judge erred by incorrectly not considering that the appellant had been denied procedural fairness in the hearing in the Administrative Appeals Tribunal AATA 412 of 2015. 10 The respondent submits that Mr Daley's proposed appeal to the Full Court as set out in the draft notice of appeal and in his submissions has no reasonable prospects of success. For the reasons set out below, I agree. In this regard, it is important to stress at the outset that the appeal from the decision of the AAT was instituted under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides for an appeal on questions of law only. As such, the Court does not have jurisdiction to revisit the factual findings made by the AAT.

3.4 Proposed Ground 1: alleged failure to consider medical evidence 11 The first proposed ground of appeal asserts that the primary judge "erred by failing to consider the medical specialists provided as evidence were appropriately qualified medical practitioners". 12 The statutory framework within which the applicant's application for a DSP must be assessed is set out in the reasons of the primary judge at [7]-[10] below and includes the requirement that his mental health condition and alcohol dependence be diagnosed by an "appropriately qualified medical practitioner". That statutory framework may be summarised as follows. (1) Section 94 of the Social Security Act provides that a person is qualified for disability support pension if (relevantly) the person has a psychiatric impairment and the person's impairment is of 20 points or more under the Impairment Tables. (2) The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination), a legislative instrument made by the Minister under s 26(1) of the Social Security Act. The legislative instrument may contain ancillary or incidental provisions (s 26(2)) and "rules that are to be complied with in applying the tables referred to in subsection (1) and the provision referred to in subsection (2)" (s 26(3)). (3) If a person makes a claim for a disability support pension, in determining the claim the Secretary must apply the instrument in force under s 26 on the day the claim was made or taken to have been made (s 27). The 2011 Determination came into force on 1 January 2012 and remained in force at all relevant times. (4) Rules governing the determination of impairment are set out in s 6 of the Impairment Tables, the effect of which is relevantly that: (a) an impairment rating can be assigned to an impairment only if the person's condition causing the impairment is permanent and the impairment is more likely than not to persist for more than two years (s 6(3)(a) and (b) respectively); and (b) a condition is "permanent" for the purposes of s 6(3)(a) if relevantly the condition "has been fully diagnosed by an appropriately qualified medical practitioner" (s 6(4)(a)), is fully treated (s 6(4)(b)), is fully stabilised (s 6(4)(c)), and is more likely than not to persist for more than two years (s 6(4)(d)); (5) Table 5 of the Impairment Tables, in turn, applies to cases where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). Table 5 requires that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). It expressly provides that self-report of symptoms alone is insufficient. (6) Table 6 of the Impairment Tables is to be used where a person has a permanent condition resulting in functional impairment due to (relevantly) excessive use of alcohol. The table provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner and that self-reporting of symptoms alone is insufficient. It requires corroborating evidence of the person's impairment. 13 In order to qualify for the DSP, it was necessary for the applicant to satisfy the requirements of s 94 of the Act (and therefore Table 5 and/or 6) as at the date of the claim or within 13 weeks of lodging the claim in accordance with the requirements of the Social Security (Administration) Act 1999 (the Administration Act), that is, between 10 June 2014 and 9 September 2014 (the claim period), as the AAT found at [8] of its reasons. The difficulty for the applicant is that he never had a diagnosis by an appropriately qualified medical practitioner for his claim for the DSP for the claim period. He relied upon two Centrelink medical reports provided by his general practitioner, Dr Choueifati, dated 29 April 2014 and 3 July 2014 respectively. Mr Daley also relied upon a Centrelink medical report dated 29 February 2012 in which Mr McKinley noted a diagnosis of "Bipolar" but the AAT found that he gave no rationale in support of the diagnosis and was not a clinical psychologist (AAT reasons at [23]-[24]). Similarly, the AAT found at [25] that Dr Scally, GP, noted a diagnosis of "?Bipolar /? Depression with psychotic features" in October 2010 but again the AAT found that he provided no satisfactory reasons for the provisional diagnosis. While the applicant also relied upon reports of Mr Tsomis, clinical and forensic psychologist, these post-dated the claim period and the AAT found that they did not make a specific diagnosis, let alone a diagnosis for the claim period. It is in this context that the AAT, while accepting that during the claim period Mr Daley suffered symptoms consistent with a mental health condition, nonetheless found at [37] that: However, as there is no evidence of a diagnosis being made by a psychiatrist or clinical psychologist prior to or during the claim period, the requirements of Impairment Table 5 have not been satisfied, and a rating for functional impact on activities involving mental health function cannot be assigned. 14 Given those findings by the AAT, I do not consider that it is reasonably arguable that the primary judge erred in finding that there was no error of law apparent in the AAT's decision (that is, that the requirements of Impairment Table 5 had not been met and therefore that no rating could be assigned). As her Honour held: 35 The difficulty for Mr Daley was that there was no evidence before the Tribunal that a diagnosis of his condition had been made by a psychiatrist or a clinical psychologist before or during the claim period (or at all, for that matter). Mr Daley claimed to have seen a psychiatrist three times in 2010 but presented no evidence from the psychiatrist. He did see a clinical psychologist, Mr Tsomis, but not until November 2014, some two months after the claim period. Even so, he could have provided a diagnosis and an opinion on Mr Daley's impairment during the claim period based on the history he had received. But the letters submitted to the Tribunal from Mr Tsomis contained neither. 36 That was the reason the Tribunal held that the requirements of Impairment Table 5 had not been satisfied and a rating for functional impact on activities involving mental health function could not be assigned. Unless the Tribunal was satisfied that the mental health condition was fully diagnosed, treated and stabilised, the effect of s 94 of the Act when read with Impairment Table 5 is that the Tribunal was not entitled to assign a rating under the Table. 15 In the case of Mr Daley's alcohol dependence, the Tribunal found that the only reference to this condition prior to or during the claim period was in his GP's supplementary report of 3 July 2014 where it is listed as a condition that is generally well managed and causing minimal or limited impact on function. Furthermore, even if it accepted that an appropriate diagnosis of alcohol dependence was made prior to or during the claim period, the AAT found that there was no evidence of any concurrent or planned treatment for this condition (cf s 6(4)(a) and (5) of the Determination). In this regard, the primary judge correctly held that: 37 A similar obstacle [to the claim with respect to mental impairment] stands in Mr Daley's way in relation to the condition of alcohol dependence. In the absence of evidence that the condition had been fully treated and stabilised, the Tribunal was right in law to conclude that a rating under Impairment Table 6 could not be assigned. 38 Consequently, as a matter of law the Tribunal was precluded from providing impairment ratings under the Tables. 16 Mr Daley submitted that the AAT was not bound by technicalities, the implication being that the AAT might have some discretion in the application of the rules contained in the Determination. In this regard, it is true that s 33 of the AAT Act provides that proceedings before the Tribunal "shall be conducted with as little formality and technicality... as the requirements of this Act and of every other enactment and a proper consideration of the matters before the Tribunal permit" and that the AAT is not bound by the rules of evidence. However, that provision is concerned with matters of evidence and procedure. As counsel for the Minister submitted, it does not provide a basis on which the AAT can decline to apply the substantive criteria for the grant of a pension under the Social Security Act and applicable legislative instruments. Furthermore, it is clear from their terms that s 6 of the Determination and the requirements in Table 5 and 6 for diagnosis by appropriately qualified practitioners are rules under s 26(3) of the Social Security Act which do not permit the exercise of any discretion. It follows that ground 1 of the draft notice of appeal does not have any reasonable prospects of success.

3.5 Proposed Ground 2: alleged breach of procedural fairness 17 By the second proposed ground of appeal Mr Daley alleges that the primary judge erred in failing to find that he had been denied procedural fairness at the AAT hearing. Mr Daley submitted at the hearing of this application that most of the evidence that he put before the AAT "which I deem relevant to all my conditions, were basically completely ignored." It is apparent from Mr Daley's submissions that this ground focused upon the AAT's treatment of Mr Tsomis' report dated 27 November 2014. However, the AAT did not ignore that report. To the contrary, it expressly considered the report and Mr Tsomis' subsequent report to the same effect dated 30 March 2015: AAT reasons at [31]-[35]. Ultimately, therefore Mr Daley seeks to take issue with the AAT's finding that the reports did not provide a diagnosis (at [32] and [35]). That finding was reasonably open to the AAT. As such, no arguable case of a breach of procedural fairness by reason of the AAT's consideration of Mr Tsomis' reports is raised. It is not open to this Court to consider whether it agrees with the weight given to particular evidence by the AAT as that would take the Court outside a consideration of a question of law. 18 Mr Daley raised a further issue of procedural fairness relating to the primary judge's consideration of material left out of the amended appeal book. In his submissions dated 21 April 2016, he explained that he sought to rely upon additional information contained in a booklet of 53 pages before the primary judge but that that further material was not accepted by her Honour. In this regard, the appellant raises the question of how the decision of the primary judge can be complete if all of the evidence was not before her Honour. 19 As earlier mentioned, the booklet was received in the appeal marked "MFI-1". The booklet is comprised of an affidavit sworn by Mr Daley and dated 21 October 2015 in which he deposed that "[a] review of the amended appeals book has noted that the following have been omitted", referring to a list of materials contained in various appendices. Appendices A to E inclusive and G relate to the issue of child support which, as I explain below at [21]-[22] has no relevance to the proposed appeal and was not relevant to the issues before the primary judge. Appendix F is a letter from Centrelink to Mr Daley assisting him to obtain a medical report about his conditions in the claim period, while appendix G is a letter from Centrelink to Mr Daley's GP querying how he came to rate Mr Daley's visual impairment at 20 points. Again neither letter has any relevance to the proposed appeal. Appendix H sets out s 41 of the AAT Act which, being a law of the Commonwealth, does not require proof. Appendix I sets out a number of medical reports which are dated 27 May 2015 (a radiologist's report), 3 June 2015 (about a cervical spine MRI) and a report of Mr Tsomis dated 15 October 2015. The last of these postdates the decision of the AAT and therefore cannot bear upon the correctness of the AAT's decision in law, while the first two reports have no apparent bearing upon the issues addressed by the AAT in its decision. As such, while I have decided to admit MFI-1 into evidence on the application for an extension of time, it demonstrates only that there is no arguable case of a lack of procedural fairness on the part of the primary judge by reason of her Honour declining to admit that material.

3.6 Further issues raised by Mr Daley 20 Mr Daley raised a number of additional issues outside the proposed grounds of appeal which can be briefly addressed. 21 First, at the hearing Mr Daley raised a concern that his child support payments were being deducted from his disability support pension. In this regard, Mr Daley submitted (and the Minister did not dispute) that his child support problem with respect to the international collection of child support between New Zealand and Australia has contributed to his mental health condition and continues to do so. However, the identification of stressors which may underlie or contribute to Mr Daley's mental health condition cannot overcome the difficulty that he failed to provide medical evidence for the claim period that met the mandatory requirements set out in the Impairment Tables. As such, the connection between Mr Daley's concern about child support payments and his mental health condition does not render the question of child support relevant to the issues considered below on the appeal from the AAT's decision to refuse Mr Daley's application for a DSP. It follows that there is no arguable case that the primary judge erred in finding at [23]-[24] below that the applicant's concerns about child support were irrelevant to the AAT hearing and outside the scope of his appeal from the AAT. 22 Following the hearing, the applicant sought to file further submissions on this point and annexed correspondence from the Department to those submissions. The Secretary did not object to the further submissions being received but submitted that the subject matter of the submissions (relating to the Child Support issue) was irrelevant to the question to be resolved here. I indicated that the 'submissions' would be received as correspondence and would be considered in these reasons, and that no further submissions were required on this issue. Having considered those submissions, I remain of the view that the Secretary is correct in submitting that the issue is not relevant to the present proceedings. 23 Secondly, Mr Daley submitted that it is unfair that his condition of total permanent blindness in his left eye does not warrant a rating of 10 or 20 points under Table 12 of Determination because he is not almost blind in his right eye, and says that this result is discriminatory. The AAT determined that the appropriate impairment rating for Mr Daley's eye condition is 5 points. The primary judge in turn found that Mr Daley did not explain the basis for the alleged error in that finding and held that, even if the error fell within the grounds of appeal (which her Honour doubted), it would be an error of fact and beyond the Court's powers to correct (at [33]). Nor is any error of law identified on the proposed appeal to this Court. In this regard, it is not open to the Court to consider for itself whether or not a rating is fair; nor to revisit the policies which may underlie a legislative instrument, as the Minister submitted. 24 Finally, Mr Daley sought to take issue with the primary judge's findings as to the alleged relevance of the decision in Jansen (FCA). However, as her Honour observed at [40], Jansen (FCA) had been overturned by a Full Court on appeal: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428. Secondly, the primary judge concluded that Jansen (FCA) was distinguishable on its facts and in any event that "[n]othing in either judgment assists Mr Daley" (at [48]). No arguable error with respect to her Honour's consideration of this issue was identified.

4. COSTS 25 In the event he was unsuccessful, Mr Daley submitted at the hearing that no order for costs should be made against him because of his difficult financial circumstances. The respondent submitted that it should be entitled to its costs in the event it succeeded in accordance with the ordinary rule, namely, that the respondent having successfully defended the appeal should ordinarily be entitled to be compensated by the losing party for his legal costs. However the respondent accepted that Mr Daley's financial circumstances were straitened, that this was relevant to the exercise of discretion as to costs, and that the Court may decline to award the respondent its costs on this ground if it considered that appropriate. Given that Mr Daley is on a disability support pension, is suffering from various disabilities, there was no issue about his financial position, and the applicant's responsibilities in supporting his children, I consider in all of the circumstances that the fairest course is that there be no orders as to costs.

5. CONCLUSION 26 For the reasons set out above, the application for an extension of time should be refused. There will be no order as to costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.