14 What the Tribunal said in par 35 about the applicant's wishes not being the answer to s 24(1)(c) must, I think, be understood as meaning that Mr Magill's desire to escape from his supervisory position was not by itself sufficient to bring him within s 24(1)(c).
15 How the Tribunal arrived at its decision adverse to Mr Magill is clear. The Tribunal accepted that Mr Magill had long suffered from war-related ptsd, which had also caused his recurrent anxiety/depressive state and alcohol dependence. It also accepted that these disabilities did play a part in his decision to accept the offer of early retirement (pars 31 and 39). But because it considered that his desire to avoid increased responsibilities was unrelated to his war-caused disabilities (pars 33 and 39) and because that desire was one of the causes for his accepting the offer of early retirement (pars 33, 35 and 37 to 40), he could not satisfy s 24(1)(c).
16 In par 31, the Tribunal referred to "the difficulty with this case" being "that, on the applicant's own evidence, he became dissatisfied with his employment at the Courts' complex because of increasing responsibility". In par 33, the Tribunal correctly recognised that Mr Magill's decision to accept early retirement to avoid the additional responsibility would not preclude a finding that par 24(1)(c) was satisfied if that decision could be attributed to Mr Magill's accepted disabilities. It was alert to the fact that there was medical opinion touching on this: it referred, in par 37, to Mr Magill's doctor telling him not to remain in employment. But it is clear enough that it found that the critical attribution could not be made for a number of reasons, viz, that Mr Magill himself asserted repeatedly that he was able to engage in remunerative work as a security officer if only he did not have to deal with the additional responsibility, that he was able to maintain his employment including that of security officer with the additional responsibilities for many years, despite his accepted disabilities and that he did not seek medical assistance for his ptsd until after his retirement. Importantly, the Tribunal, in determining that the decision to retire could not be attributed to the disabilities, recorded its opinion in par 39 that there was no evidence that it was the undiagnosed condition of ptsd by itself or together with Mr Magill's other accepted disabilities that alone prevented him continuing to undertake remunerative work.
17 Mr Magill contends that the Tribunal fell into error by failing to properly construe the term "remunerative work that the veteran was undertaking" in s 24(1)(c) and that it incorrectly read that phrase as meaning, in the context of this case, security work rather than work of the more complex kind that Mr Magill was doing at the time of his retirement, viz, security work with supervisory and other duties.
18 As appears from its reference to the relevant authorities in par 34 of its reasons, the Tribunal correctly identified the meaning to be given to the phrase "remunerative work that the veteran was undertaking" in s 24(1)(c). However, it is not, I think, clear whether the Tribunal identified the kind of work relevant to s 24(1)(c) in the context of this case as work as a security officer simpliciter, or work as a security officer with supervisory and other responsibilities. Despite referring to authorities dealing with the proper interpretation of the phrase "remunerative work that the veteran was undertaking" in the sub-section, the Tribunal may, in truth, not have attempted to identify just what was the relevant kind of work. The critical finding that it made was that one of Mr Magill's reasons for giving up his job was his desire to avoid the extra responsibilities that had been imposed on him over the years: since this desire was not, in the Tribunal's view, related to his war-caused disabilities, he could not satisfy s 24(1)(c). It is, I think, necessary, if Mr Magill is to succeed in this case, to show error of law by the Tribunal in making this particular finding. If this finding stands, it does not, I think, matter whether the kind of work relevant to s 24(1)(c) is the simple job of security officer or the more complex one of supervising security officer. If the relevant work is of the former kind, the Tribunal can be seen to have rejected Mr Magill's claim because it took the view that, despite his war-caused disabilities, he was capable of performing that narrow category of work, but gave up his job for another reason unrelated to his disabilities, viz, a desire to avoid the extra responsibilities. If, however, the relevant work is of the latter kind, the Tribunal can be seen to have rejected Mr Magill's claim because it took the view that despite his disabilities, he could still have performed the more complex job, but he had a reason unrelated to his disabilities, viz, his desire to avoid the extra responsibilities, which was one motivation for his decision to accept the offer of voluntary retirement.
19 Mr Magill also submits that the Tribunal's decision is affected by error of law because it failed in reaching that decision to take into account relevant considerations: I accept this submission. I think it can be said that the Tribunal's statement in par 39 that there was no evidence that it was his undiagnosed ptsd by itself or with his other accepted disabilities that alone prevented him continuing to undertake work shows that it ignored the evidence to that very effect and thereby made an error of law that affected its decision.
20 There was an abundance of such evidence. The Tribunal made no reference to it in that part of its reasoning to its conclusion that Mr Magill's ptsd, by itself or together with his other accepted disabilities, was not the sole cause of him being unable to continue to undertake remunerative work. It can therefore be inferred that the Tribunal did not consider this evidence to be material to its decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [69].
21 It is surprising that the Tribunal should fail to take into account this evidence: it correctly appreciated in par 33 the need to consider whether Mr Magill's decision to accept early retirement to avoid the additional responsibility was attributable to his accepted disabilities; it expressly accepted, in par 32, the evidence of the psychiatrist, Dr Likely, that Mr Magill's longstanding anxiety state and abuse of alcohol were the consequence of his longstanding ptsd (though this was only diagnosed in January 1998, ie, two months after Mr Magill retired). And in par 17, it accepted that he was induced by awareness of his ptsd-related alcohol dependence to ask that he be relieved of his supervisory responsibilities.
22 Dr Likely saw Mr Magill in mid January 1998 at the request of the latter's general practitioner, less than two months after his retirement. He then diagnosed him as having "chronic post traumatic stress disorder, complicated by a major depressive disorder". He also then described Mr Magill's problems as: "Post traumatic stress disorder (chronic). Major depressive disorder (recurrent). Alcohol abuse." It was he who advised Mr Magill to make the claim, which he did later in January 1998, that has led to the present litigation. In his report of February 1998 to the Department of Veterans' Affairs, Dr Likely described Mr Magill's condition in a little more detail as follows: "Post traumatic stress disorder (chronic). Major depressive disorder (recurrent), arising as a complication of and not in isolation from his post traumatic stress disorder. Alcohol abuse."
23 The Department obtained a report from another psychiatrist, Dr Richards, in January 2000 in connection with this litigation. Dr Richards did not think Mr Magill was suffering from ptsd but he did consider that Mr Magill suffered long-term alcohol abuse/dependence, which returned "due to the stress of security work at the Townsville Supreme Court". He also expressed the following opinions: