Freeman, T.V. v. Defence Force Retirement and Death Benefits Authority [1985] FCA 330

Zo say that fortune has yet to smile upon the agplicant is to

understate the effects or the nanny sadnesses, setbacxs anc

disappointments wnich he has so far ensounterei. The avplicant was born in May 1943. His father was mother had worked as a barmaid. His fath2r deserted his nother when the applicant was five or six years old. Thereafter the applicant, his brother and three half sisters lived in various places as the family moved about Victoria. Tne applicant's schooling was quite seriously affected. He went to numerous primary schools, never staying at any one for more than six months. In" his first year at high school he was at three

different schools and when he started second year at high school

he attempted to stay at the one school, but this involved v

substantial travelling. After the applicant left school he w

fruit picking. He then came to Melbourne wheres he worked as

bricklayer''s labourer. Subsequently he hecame an "irprover" bricklayer, that is, a person learning the trade without going through a formal apprenticeship. The Tribunal found that tne applicant did become a qualified bricklayer. In this earlier period of his working life the applicant was led into criminal activity. He had two periods of detention at a youth training centre for offences which included breaking into shops, having

housetreaking implements in his possession and the illegal use of

In 1970 the applicant was conscripted for service into the Australian Army. He said that until thac occurred he had planned to carry on with bricklaying in the hope thal he would one day

becom? a master builder. The applicant's unit was s3nc to

&o um an aibush in which five men were killed and 25 were woundte. Gne cf ths wag the applicant. He suffered multiple fragment wounds to his left wrist, his hack and his lert leg. He was in the Heidelberg

operations to his wrist. The applicant has suffered subsequent diminution in his ability to use his left wrist. He is unable to lift things because his grip is affected. This is because of damage to the median nerve which has affected the strength in his fingers and thumb. The thumb itself has no feeling.

Before he was discharged, the applicant underwent vocational guidance tests. He claims that he was told that he would he "useless" in civilian life. He endeavoured to remain in the Army, but was discharged in February 1974. Before nis discharge he obtained a military driving licence enabling him to drive landrovers and trucks. He said that he was told that this was of

After his discharge he was able to obtain employment with ACI Nylex at Clayton near Melbourne as a security officer. After five months he was retrenched. The Employment Bureau suggested that He learn a trade as a saddle maker. He obtained employment with a saddle maker. His pay was subsidised by the Government, but his restricted use of hts left hand made it impossible for him to cope with this work and he had to give it us. He cemainea

unemployed for some time but applied for an acvertised position

ga. "ork in this vosition in July 1375 and was still employed in 1t at the daze of the Tribunal's decision on 17 September 1984. We were inforned during the course of the hearing that the applicant has since lost his job and is now unemployed. That circumstance, nowever,

does not bear upon the outcome of this application.

The applicant has other disabilities apart from those

arising because of the injuries to his wrist. He has a nervous

aisorder which manifests itself tn an explosive temper. He also

has a sleep problem. He sleeps very heavily for extremely long

hours and finds it difficult to wake up. He perspires very heavily when asleep and wakes drenched in sweat. Tais first commenced the day after he was wounded when he was in hospital in

The applicant's temper and tendency to angry behaviour have @recked his marriage. He has tended to get into argumencs with fellow workers and with some members of the management of his. employer. The Tribunal was of the view that there was a danger that his' problems might lead him to carry out his dutias "ina wanner verging on the obsessive." There is no issue that his bad temper and consequent behaviour are attributable to his war

injury. He receives a repatriation pension in respect of then.

At one stage the applicant considered attempting to become a

left handed hricklayer, transferring to his r:ghco hana tne

heavier work involved in lifting bricks. Sovever, the Department of Labouc and National Service did not Sapeort fh proposal because it conzidered thac fe would rot be

Part V of the Act provides for invalidity benefits. Section 26 provides that where a contributing member is retired on the grounds of invalidity or of physical or mental incapacity to perform his duties he is entitled, on his retirement, to invalidity benefits in accordance with the provisions of Part V. The applicdic was not retired on the grounds of invalidity, but is treated as if he had been, because of the provisions of 3. 37 of the Act. That section provides that where a contributing

member has been retired otherwise than on the ground o

invalidity or of physical or mental incapacity to perfsora his duties, but after his retirement the Chief of the General Staff or a person authorised by him informs the Authority that at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may be treated as if- he had heen retired on that ground. The Authority has so treated -

Section 30 provides for classification in respect of incapacity. Pursuant to it, tne Authority is to determine a member's percentage of incapacity in relaticn to civil emoloynent

mad.is to classify him according to percentage of incapacity a

Sixty per cerntum or more... ~ ee. SB Thircy per centum or more but less than

sixty per cantum. .. a =) Less than thirty per centun ns Ohe

Sub-section 30(2) provides for the matters to which the Authority is to have regard in determining the percentage of incapacity of @ member. It is unnecessary to refer to the detail of these matters. _ Sections 31 and 32 Provide for the quantification of the amounts to be paid to members who are incapacitated. member classified as Class Ais entitled to 75.5 per cent of the amnual rate of pay applicahle to him immediately hefora fis retirement. A member classifiei as Class B is entitlea ta

per cent of that rate. A different apprcach is adopted in

relation to a member whose incasacity is less than 30 per cent,

_that is a memher who is Class C. It is unnecessary to explain

how the amount payable in that event is calculated.

Section 34 provides for the reclassification of a member's

incapactty. Sub-sections (1), (1A), (1B) and (2) of s. 34 are as

"34. (1) Tne Authority mav, from time to tine, if it ds satisfied that the percentage of incapacity in relation to civil emoloyment of a recxpient member in receipt of invalidi-y pay is such th the classificaticn of the merber should as altered, reclassify hiz in the appropriate classification set out in section 30 according to

(1A) In datermining, oy tn] euLstuses of sub-section (1), the percentage of incapacity in relation to civil employment of a recipient member, the Authority shall have regard to the

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

(b) the kinds of civil employnent which a person with skills, qualifications and experienc referred to in paragraph {a} might reasonably undertake;

(c) the degrse to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment,

• nas 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 ar prescribed for the purposes of thi sub-section.

(1B) In sub-section (1A), "prescribed physical or mental impairment", in relation to a recipient member, means-

(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 impaircment of the recipient member causally connected witn a physical or mental impairment referred to in paragraph (a).

(2) Where a recipient member is reclassified under this section, the Authority shall specify the date from which the classification has effect, and, on and after that dats, the vrecipienc member shall, for tne surposes of this Part, be deemed to be classified unjer section 30 accordingly."

precisely the same as tha provistors of sub-sac. 30/2)

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VICTORIA REGISTRY ) No. VG 269 of 1984 GENERAL DIVISION )

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal

BETWEEN : TONY VAUGHAN FREEMAN Applicant AND: DEFENCE FORCE RETIREMENT AND DEATH

BEAUMONT, J.: The applicant, Mr. Tony Vaughan Freeman, appeals to the Court on a question of law pursuant to 3.44 of the Administrative Appeals Tribunal Act, 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") which, by a majority, set aside a decision of the respondent Defence Force Retirement and Death Benefits Authority. The Tribunal instead made a determination that the incapacity of the applicant in relation to civil

employment was 50 per cent pursuant to s.34(1) of the

Defence Force Retirement and Death Benefits Act, 1973 ("the Act"), and that he be reclassified as class "B" accordingly

respondent reviewed by the Tribunal was that the incapacity of the applicant in relation to civil employment was 20 per cent and that he be classified under s.34(1) of the Act as

By s.34(1) of the Act, the respondent may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a member in receipt of invalidity pay 1s such that the classification of the member should be altered, reclassify him in the appropriate classification set cut in s.°0 acccording to the percentage of his incapacity in relation to civil employment. Section as) provides the fcllowing

Percentage of Incapacity ciass Sixty per centum or more A

Thirty per centum or more but less than sixty per centum B

By s.34(1A), 1n determining, for the purposes of 3.34'1), the percentage of incapacity, the respondent 1s to

"(a) the vocational, trade and professional skills. qualifications

(b) the kinds of civil employment which a person with skills, qualifi- cations and experience referred to

(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 member to undertake the kinds of civil employment referred to in paragraph (b);

"fa) 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).""

The circumstances in which the Tribunal reviewed the respondent's decision were as follows. The applicant, now aged 36 years, was injured in 1971 while serving as a conscript with the Australian army in Vietnam. He suffered, inter alia, multiple fragment wounds to his wrist leading to a permanent disability in the form of median nerve damage. In the result. he has been unable to pursue the occupation of a builder's labourer and bricklayer pursued by him before his conscription. As a consequence of this disability, the applicant sought, and in 1976 obtained, employment as a security officer with Pilkington A.C.I. Limited. He held this position until recently when he was dismissed. The

dismissal occurred after the hearing before the Tribunal.

In addition ts his physical injuries, and this 15 the matter of present contenticn between the parties, the anjuries suffered by the applicant have accentuated a pre-existing mental impairment ain the form of a personality disorder suffered by the applicant. This disorder, said to consist of a tendency to lose his temper and an unduly rigid insistence on the strict observance bv others of rules, was the subject of a considerable body of medical evidence before the Trabunal, It will suffice for present purposes to mention only the evidence of Dr. Conron, a pyschiatrist called by the respondent. In his opinion, because of the wrist injury and personality disorder, the applicant had a

40 per centum incapacity to perform the types of civil

employment mentioned, namely labourer, bricklayer and security officer. According to Dr. Conron, although the applicant's mental impairment was pre-existing, "people who have pre-existing difficulties are more likely to develop more major personality difficulties if they are confronted with a chronic painful condition". He explained that his figure of 40 per centum was a composite assessment of all three putative employments mentioned. The majority of the Tribunal, having recited the foregoing material, summarised

"He thought 1t highly unlikely that (the applicant' would be able to handle work as a bricklayer or as a labourer but that despite his difficulties he could, in view of his steady employment over seven years at Pilkington s, handle work as a security officer."

In approaching their task of assessing, as at the relevant date (October/November 1981), the degree of diminuticn of the applicant's capacity to undertake the kands of civil employment referred to in 3.34(1A)(b) of the Act, the majority of the Tribunal made the following findings. First, for the purposes of s.34(1A)(a), the relevant sk1115. qualifications and experience of the applicant were qualifications as a bricklayer, experience as a builder's labourer, and experience as a security officer; secondly, for the purposes of s.34(1A)(b), the kinds of

civil employment which a person with the aforesaid skills,

qualifications and experience miqht reasonably undertake were those of a bricklayer, a builder's labourer and security officer; thirdly, the impairments that were within s.34(1B) and, by application of s.37, the cause or one of the causes of the invalidity or physical or mental ancapacity by reason of which the applicant was retired from the Army were (a) median nerve damage; and (b) personality

Further, for the purposes of s$.34(1A)(c), the Majority found that the degree to which such prescribed physical or mental impairments had diminished the applicant's capacity to undertake the kinds of civil

""ta) the applicant was in October 'November 1981 wholiy unable to undertake civil employment as a

(b) the ability of the applicant in October/November 1981 to undertake civil employment as a security officer war not significantly

The majority then offered the followzng comments on

"27. eee We have not taken into account the applicant's psychological difficulties. We regard his service in the Army and the injury which he there sustained as having very substantially increased such difficulties, as Dr Conron's evidence indicated. But the fact 1s that his performance in civil

employment as a security officer demonstrated his total ability to

undertake that employment. If of course at some time his physical or mental impairments remove the possibility of such performance. such as by loss of his present employment and inability to regain Similar employment, in particular if he lost his job for reasons related to them and likely to be made the subject of adverse reference, the matter would have to be reviewed and reclassification contemplated. And at that point it could be necessary to consider the relevance and impact of his personality disorder, which was not apparently taken into account as a retirement disability through the medium of 3.27. but which in our cpinion should have been taken into account. But the core of the system is that 1t 41s not necessary or appropriate to seek to divine

what the future may hold. As we have said, the decision 1s not once and for all. We sympathise with the applicant's

distaste for his present emplovment, but we simply cannot, as we see it, approach the matter in terms of job satisfaction."

Having thus agnorea the applicant's mental impairment the majority proceeded, by what they described as a global assessment. to hold that he had lost one half of the range of civil employment demonstrably open to him at

The applicant advances two arguments in the appeal. In the first place, he submits that the majority of the Tribunal fell ainto error when, having found that the applicant's personality disorder was one of the causes of his invalidity, they said that they would not take that condition into account for the purposes of s.34(1A) in assessing the degree of diminution of the applicant's capacity to undertake employment as a security officer. The applicant submits. no doubt correctly, that the reference in 3.34(1A)(c) to the "capacity" of the recipient member 15s intended to convey its ordinary meaning of the power, ability or Possibility of doing something (Macquarie

Dictionary) and that this must pick up a personality

But. In my opinion, even if this be accepted, 1t does not follow that the majority fell into error in this respect. For present puproses, what 5.34(1A)(c) requires 15 an assessment of the dearee of the ainability of the applicant to enter upon the duties called for in the cace of a security officer. This 1s simply a question of fact, although, as here, in many cases that factual issue may well be difficult to resolve. In resolving that question of fact, the majority had the benefit of evidence i1n several forms. They had expert opinion evidence from medical practitioners and from an officer of the Commonwealth

Employment Service; they also had evidence of the actual

employment of the applicant as a security officer for some seven years. None of this evidence could be conclusive of the issue of fact which fell for determination by the Tribunal: that was a matter for it to determine on the whole of the relevant evidence. The majority determined the matter by holding that the applicant's personality disorder Made no """sianificant" contribution to the applicant's

capacity to undertake employment as a security officer, that 15 to say, no such contribution as would warrant its being

In my opinion, when read as a whole, the reasons of the majority disclose no more than an assessment, in neaqative terms, of the question of fact posed for the Tribunal by s.34(1A)(c). In making that factual finding, the majority did not, in my view, fall into any legal error of the kind suggested. In particular, they did not exclude the possibility that, in theory at least, the applicant's mental impairment could have contributed toa lack of capacity to undertake employment as a security officer. Rather, having considered all the evidence, the majority found that, as at that date, this disorder should be ignored

as having no operative effect as a relevant disability.

As the majority pointed out, their task was to make a classification of the applicant's position as at that particular point of time. In its terms, s.34(1) contemplates the possibility of re-classification from time to time. If. for instance, the applicant were to be dismissed from his employment as a security officer, as has now happened, it would be open to the applicant to seek

re-classification as from the date of his dismissal. He could then rely upon his dismissal for that purpose. But the loss of that employment, as with the fact of employment itself, would not be conclusive for the purposes of s.34: 1t would be some evidence of the degree of diminution of the capacity of the applicant to undertake that employment. Ordinarily, it would be powerful evidence of that fact. Yet, an the end, the question, again one of fact, would remain for the determination by the Authority and, in the

Next, the applicant argues that the majority of the Tribunal erred in overlooking, in the context of the appraisal of the applicant's prospects of obtaining employment as a security officer, the significance of the fact that he had a number of serious criminal convictions, which he had failed to disclose when obtaining employment

Tribunal's reasons for decision, his dishonesty included shopbreaking and possession of housebreaking implements. Under the general law, failure to disclose misconduct or a criminal offence which occurred before the current employment or outside working hours will not normally justify dismissal. If. however, the criminal offence is likely to restrict or impinge upon the performance of the employment then 1t may give grounds for dismissal (see

Gordon & Gotch 'Australasia) Limited v. Cox (1923) 31 C.L.R.

370: Macken, McCarry and Sappideen, The Law of Employment, 2nd Ed. at p.125: cf. Sybron Corporation v. Rochem Limited

£19847 1 Ch.112:. The question here 1s whether such a

matter 153 a relevant consideration for the purposes of s.34.

By s.34(1A)(a), the Authority shall have regard to the "vocational, trade and professional skills, qualif- ications and experience" of the recipient member and to no

other matters (cf. Defence Force Retirement and Death

Benefits v. Heffernan) (1978) 21 A.L.R. 709). It 12 not, and could not be, suggested that the convictions are part of the applicant's relevant skills and experience for this purpose but 1t is said that they are part of his

A.L.R. 471, the question arose as to the construction of the word "qualifications" in the context of s.29D(1) of the

National Health Act, 1953 which 1s in the following terms:

"The Director-General may refer to a Specialist Recognition Advisory Committee the question whether a particular medical practitioner should, having regard to his qualifictions, experience and standing in the medical profession and the nature of his practice, be recognized for the purposes of this Act as a specialist, or as a consultant physician. in a particular Speciality."

"The submission made on behalf of the prosecutor 1s that the word 'qualifications' in ites natural and ordinary sense 1s not limited to academic qualifications but includes personal accomplishments such as skill and competence. It 1s true to say that the word 'qualifications may have a wider meaning than academic qualifications. According to the Shorter Oxford English DTictiomary its meaning, 30 far as 153

relevant, 15: A quality, accomplishment, etc., which qualifies or fits a person for some office or function.' However, the

meaning to be given to the word where it appears ins 29D(1) must depend oan the context provided by the statute. A Committee 1s required to consider whether a particular medical practitioner should be recognized for the purposes of the Act as a specialist, Or aS a consultant physician, im @ particular specialty. In performing its functions the Committee 15 required to have regard to the four

Matters mentioned in s 29D(1). If the word 'qualifications' means personal qualities or accomplishments, a

particular medical practitioner would include consideration not only of his skill and competence but also of his experience, because experience may in itself constitute a qualification in the wider sense of the word. Indeed, a consideration of the qualifications of a medical practitioner might be thought to

involve also consideration of his standing in the medical profession and the nature

of his practice. If the word 'qualifications' were used in its wider sense, the express reference to

'experience' in the subsection would be unnecessary and the reference to some of the other matters mentioned might also be

unnecessary. That initseif indicates 'qualifications' is used in the narrower, but natural, sense of academic qualifications."

"However, one passage not so affected by special context does support the respondents' view of the meaning to be given to qualifications' ins 29D(1). It 1s that of Lord O'Brien LCJ in yrne v Rogers where, at p 225, he said of the expression 'specially qualified to practise as dentists' appearing in the preamble to the relevant legislation:

What do these words mean? Do they mean specially qualified by statutory warrant, by licence, diploma, degree, or hall-mark, 20 to speak, and do they refer to persons so qualified alone; or do they include persons specially competent to practise dentistry independent of a diploma or degree? I think that in common parlance, if you were to say that a person was specially qualified, you would imply that he had a qualification by diploma, licence, or degree. I think that prima facie the words have that meaning. wee

For these reasons I would conclude that 'qualifications' in s 29D(1) is to be understood as referring not directly to the possession of personal skill or ability but rather of what Lord O'Brien described, again at p 225, as a qualification outside the person, such as a diploma, degree or other hall-mark.'"

In my opinion, this reasoning is in point here. In other words, the context in which reference is here made to the "qualifications" of a recipient member indicates that the legislature was intending to refer only to formal attainments such as a degree, diploma, licence or certificate rather than some wider notion of the personal accomplishments in the form of his qeneral skill and competence. But even if the wider interpretation of the word where used in s.34(1A)(a) were justified, it would not assist the applicant: a criminal record could hardly be

In my view, the best that can be said of the matter from the standpoint of the applicant 1s that his convictions constitute a disqualifying factor for employment and a

disqualification of that kind does not. in my opinion, fall

within the literal terms or the underlying purpose of the

provision (cf. Owens v. Australian Building Construction

Employees and Builders Labourers Federation (1978) 19 A.L.R.

It is the expressed intention of the legislation that the criteria mentioned in s.34(1A)(a) are to be exhaustive. It follows that considerations such as the criminal record of the member or his character or his temperament are to be ignored for present purposes as merely

collateral considerations notwithstanding their capacity to influence the member's prospects of obtaining employment in

&@ particular case. Disqualifications of this kind fall

The applicant sought to rely, in this connection, on the reasoning applied ina number of decisions by the Tribunal to the effect that 1n inquiring under the Act anto the capacity of a member for civil employment, the capacity of amember to obtain employment by conceaiment of his

physical condition should be ignored (see, e.g., Re & (1980)

3 ALN 58). But. in my opinion, no particular legal principle or rule of statutory construction can be derived from those cases. There, as here, the Tribunal is concerned with making a finding of fact as to the diminution of the capacity of the member to undertake employment of a particular kind. In such a case, it 1s open to the Tribunal to reject, as providing no probative weight on that issue of

fact, employment obtained by concealment of a physical

In the present case, it was open to the Tribunal to take into account the employment of the applicant as some of the evidence pertinent to the same issue of fact. It may be said that the applicant's concealment of his criminal record was a matter to be taken into account by the Tribunal in considering what weight should be given to that employment. Yet, whilst a pertinent matter to be taken into account in considering the weight to be attributed to the employment actually held by the applicant, 1t 1s not a factor to be considered independentiv. Nor, in my view, is the concealment a reason for dismissing the employment as of no welght whatever. Whilst the employment held by the applicant was a relevant consideration for the Tribunal to

take anto account, 1t was open to the Tribunal to discount

1ts we1gkht by reference to the applicant's concealment of his record. But the weight to be attributed to these matters 1s not open for debate in this Court where an appeal lies on a question of law only. I would reject the