Moorcroft v Repatriation Commission

The Applicant's Medical Condition 4 The Administrative Appeals Tribunal accepted that the applicant had the following war-caused injuries and/or diseases:- (a) Gout with urinary calculus and right partial nephrectomy; (b) Anxiety state; (c) Tinea cruis; (d) Tinea pedis; (e) Essential hypertension; (f) L5-S1 disclusion; (g) obesity; (h) gastro-oesophageal reflux disease. 5 I will refer to these injuries and illnesses as the applicant's "war-caused condition". In addition, he has a kidney condition, first diagnosed in 1990 or 1991, which is not war-related. It was described as follows by Dr Furlong, a renal physician:- Mr Moorcroft has end-stage renal failure from focal sclerosing glomerulonephritis and receives haemodialysis three times a week (Tuesdays, Thursdays and Saturdays) at Cairns Base Hospital. Each treatment lasts five hours and, given that he travels to and from Atherton, I consider work impossible on these days. On the other hand, work is theoretically possible on the days that he does not receive haemodialysis (Mondays, Wednesdays and Fridays). Work for greater than eight hours a week is therefore possible. Many patients receiving haemodialysis work either full-time or part-time. However, they are in the minority. I emphasize that in making these statements I have disregarded Mr Moorcroft's other medical conditions. 6 Since December 1997 the applicant has undertaken his dialysis at the Atherton Hospital rather than at Cairns.

The Applicant's Work History 7 The applicant's work history is relevant. The following paragraph is taken from the Tribunal's decision and was not challenged:- The applicant gave evidence that after he left the Army in 1968, he worked in his own takeaway food business for around five and a half years. He worked then as a labourer at the sugar mill, and as a bondsman at the Bundaberg Distillery and for Comalco, at Weipa as a plant operator for eight years, before undertaking weighbridge work with the Atherton Maize Board. This was seasonal employment, from May to September and he did not work over the off-season period. He was employed as caretaker of a mining site by an accountancy firm for two years, before returning briefly to the weighbridge work before ceasing this work permanently, and going onto service pension, in late 1988/early 1989. He said in evidence that he was offered a job in 1989, but felt that his back would not be able to "stand up to it". He was offered a later job at Port Douglas, estimating concrete, but the firm failed to obtain the contract. He has not attempted to gain employment since 1990.

The Applicant's Capacity to Work 8 The applicant said that he ceased work because his back " … was really playing up … it was giving me lots and lots of trouble … It was very very painful and I was - I just couldn't do any work for them any more because they wanted me to lift bags of --- and things like that. I just couldn't do that." 9 In a letter dated 9 October 1995 he had said:- I went on service pension in 1988. This saved me the trauma and anxiety of looking for work within my abilities. I hold a first-class plant operator's ticket and found this sort of work impossible to do because of my back. The other job I was trained for was Emergency Serviceman (ambulance work and fireman) but realized this would be too stressful and painful with back condition and anxiety state. A further option was to be self-employed in a business but I realized this was beyond me. 10 It was decided at that time that:- The evidence indicates that the veteran ceased his employment because of the seasonal nature of his job rather than because of his incapacity from his war-caused diseases. Furthermore, I am reasonably satisfied that he is capable of working twenty hours or more per week in a position of light duties not involving lifting or heavy work. 11 Although the applicant did not contest that decision, it seems that he does not accept it. Doctor Furlong said that he would advise against heavy physical work for somebody who was "overweight and hypertensive and seeking dialysis for renal failure …". There was other medical and para-medical evidence. In particular, Dr Ottone gave evidence, but the Tribunal considered that his evidence lacked balance and objectivity and therefore was of little assistance. Ms Houston, an Occupational Therapist, gave evidence of her assessment in July 1997. She considered that were the applicant's problems only in relation to his back and obesity, he would be able to undertake sedentary work. She was not asked to assess his disability from the kidney condition. The medical evidence (primarily that of Dr Furlong) was that the kidney condition would not, itself, stop him from undertaking part-time work on the days when he is not undergoing dialysis. The Decision 12 The relevant paragraphs (15-17) from the Tribunal's reasons are as follows:- 15. We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. The applicant ceased his seasonal work in 1989, but there is not specialist medical evidence that he ceased work because of his accepted disabilities, nor that he could not have continued to work in suitable employment. We are not satisfied on the evidence that the applicant ceased work because of his accepted disabilities alone. 16. In relation to the applicant's kidney condition, we accept Dr Furlong's evidence that in his opinion the applicant is capable of undertaking remunerative work, but that in reality the dialysis treatment programme makes it difficult to obtain suitable employment. We found Dr Ottone's evidence unhelpful, and prefer the evidence of Dr Furlong and Dr Grant to the effect that the applicant's kidney condition is the major disability he suffers, and we are satisfied on the evidence that this disability is a significant reason for the applicant being unable to return to the workforce. 17. We are not satisfied on the evidence that the applicant's accepted conditions alone prevent him from undertaking remunerative work. He does not satisfy s 24 of the Act, and is not qualified therefore for payment of pension at the special rate.

The Applicant's Criticisms 13 The applicant criticizes the decision upon the following grounds:- (a) That the Tribunal improperly required specialist medical evidence to support the applicant's contention that he had ceased work in 1989 because of his war-caused condition; (b) That the Tribunal's reasons for its decision do not properly and adequately include material findings of fact. Obligation to Give Reasons 14 As to ground (b), subs 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") provides:- Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 15 As the respondent pointed out in its outline, Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, said that the obligation of a decision-maker was:- … to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether the decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. 16 In East Finchley Pty Ltd v FCT (1989) 90 ALR 457 at 466, Hill J said:- By virtue of s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal is obliged to give reasons for its decision and, by force of subs 2(b) of that section, those reasons are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Where the Tribunal's decision contains no findings on specific questions of fact which are material to the issue before it, the conclusion would ordinarily follow that the Tribunal has failed to direct its attention to considerations properly relevant to its determination and the proceedings before it will in such a case have miscarried. The Tribunal will have failed to deal, by reference to the relevant considerations, with a matter which arose for its determination and which it purported to determine.

Meaning of the Legislation 17 It is appropriate at this stage to say something about the requirements of each of the relevant paragraphs of s 24 of the Act. I observe firstly that in par 24(1)(b) reference is made to "remunerative work for periods aggregating more than eight hours"; par 24(1)(c) refers to "remunerative work that the veteran was undertaking"; sub-pars 24(2)(a)(i) and (ii) refer simply to "remunerative work"; and par 24(2)(b) refers to both "remunerative work" and to "remunerative work that the veteran was undertaking". Such distinctions are probably not unintentional. I set out below my understanding of the relevant provisions.

Paragraph 24(1)(b) 18 The applicant's war-caused condition must, alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Paragraph 24(1)(c) 19 There are two possible interpretations of the words:- "the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking …" 20 They are:- (a) That these words look to the extent of the war-caused condition to ascertain whether it is actually preventing the veteran from working in his previous employment; or (b) That they are designed to exclude a claim where, notwithstanding such a condition, other factors (including other medical conditions) prevent such employment. 21 One possible objection to the first interpretation might be that such a test would cover substantially the same ground as that covered by that prescribed in par 24(1)(b). However the questions would not be precisely the same. Whilst par 24(1)(b) deals with capacity to work for periods aggregating more than eight hours per week, par 24(1)(c) deals only with the applicant's capacity to undertake remunerative work previously undertaken and without regard to the eight hour limit. A powerful criticism of the second interpretation is that it would leave little or no room for the operation of par 24(2)(a). For that reason, I am inclined to the view that subs 24(2) is intended to deal with what might be called "supervening causes", by which expression I mean factors preventing the veteran from working, other than his war-caused condition, and that par 24(1)(c) is not concerned with those matters. Paragraph 24(1)(c) prescribes that the applicant must, by reason of his war-caused condition, considered alone, (a) be prevented from continuing to undertake remunerative work which he had previously undertaken; and (b) be, by reason of his not so working, suffering a loss of salary, wages or other earnings which he would not be suffering were it not for the incapacity. Paragraph 24(2)(a) 22 For the purposes of par 24(1)(c) the applicant will not be taken to be suffering a loss of salary, wages or other earnings by reason of his war-caused condition if:- (i) he ceased to engage in remunerative work for reasons other than that condition; or (ii) he is incapacitated or prevented from engaging in remunerative work for some other reason. At a later stage, it will be necessary to say a little more about the meaning of sub-par 24(2)(a)(ii). Paragraph 24(2)(b) 23 A veteran who is not yet sixty-five years of age, and who has not been engaged in remunerative work may, in certain circumstances, be treated as being incapacitated from continuing to undertake "remunerative work that the veteran was undertaking". It is not necessary to consider this paragraph further as no reliance was placed upon it by the applicant. 24 It should be noted that the two paragraphs of subs 24(2) are quite independent and relate to different aspects of par 24(1)(c). Paragraph 24(2)(a) relates to the circumstances in which a person will be taken to be suffering a loss of salary, wages or earnings, for the purposes of the second aspect of par 24(1)(c). Paragraph 24(2)(b) deems a person to be incapacitated from continuing to undertake remunerative work which he has previously undertaken in certain circumstances, despite the fact that he has not actually undertaken such work. This relates to the first aspect of par 24(1)(c).

The Questions for the Tribunal 25 For present purposes, the Tribunal was required to answer five questions, namely:- 1. Was the applicant's war-caused condition, alone, such as to incapacitate him from working for more than eight hours per week? (par 24(1)(b)) 2. Was the applicant prevented by his war-caused condition, alone, from continuing to undertake remunerative work which he had previously undertaken? (par 24(1)(c)) 3. Was the applicant suffering a loss of salary, wages or earnings because of his being unable to undertake that work? (par 24(1)(c)) 4. Had the applicant ceased to engage in remunerative work for reasons other than his war-caused condition? (sub-par 24(2)(a)(i)) 5. Was there some other reason (apart from his war-caused condition) incapacitating or preventing the applicant from engaging in remunerative work? (sub-par 24(2)(a)(ii))

The Tribunal's Approach 26 Although, on the facts of this case, some of these questions are very similar, each was to be answered according to its precise terms. The Tribunal appears not to have approached the question in quite this way. The passage from its reasons cited above indicates that it reached the following conclusions:- (a) It was not satisfied that the applicant had ceased work because of his war-caused condition, alone. (b) The applicant's kidney condition is his major disability. (c) That disability is a significant reason for his being unable to return to the workforce. (d) It was not satisfied that the applicant's war-caused condition, alone, prevents him from undertaking remunerative work. 27 It seems, as counsel for the respondent submitted, that the Tribunal did not expressly address Question 1 above, being the test prescribed in par 24(1)(b). There was no discussion of whether the applicant could work in excess of eight hours per week. Rather, the Tribunal focussed upon the provisions of par 24(1)(c). Failure to consider par 24(1)(b) would not necessarily be fatal to the validity of the decision if the applicant were unable, in any event, to satisfy the requirements of par 24(1)(c). It is therefore the Tribunal's approach to each of the questions prescribed by par 24(1)(c) (as expanded by par 24(2)(a)) which must be considered, together with the adequacy of the reasoning. Resolution of the Factual Issues 28 The case involved two basic factual issues - the extent of the applicant's disability as a result of his war-caused condition and the effect of his kidney condition.

Effect of His War-Caused Condition 29 The applicant's case is that he stopped work in 1989 because of his war-caused condition and in particular, because of his back problem. He claimed as much in evidence although, as I have pointed out, at an earlier stage he had indicated that the stress of looking for another job and of performing other work might have been beyond him because of his anxiety state (also war-related). He submits that if his condition in 1989 was such as to compel his ceasing to work, then it was probably producing the same effect at all times relevant to the present application. The applicant's work appears to have been mainly unskilled or semi-skilled. If, as he claimed, his back caused him to give up work in 1989, it would not be difficult to infer that his opportunities for finding alternative employment would have been quite limited. 30 The Tribunal appears to have disposed of the applicant's evidence by its observation that there was no specialist medical evidence that he had ceased work because of his war-caused condition, nor that he could not have continued to work in suitable employment. It is true that there was no specialist medical evidence concerning the reasons for his stopping work in 1989, but there was no requirement in the Act for such evidence. The absence of expert evidence, in itself, was not an appropriate reason for concluding that the applicant did not satisfy any of the relevant tests. The applicant's claim to have stopped work because of his back problem was, if accepted, sufficient evidence of that fact. It would have gone a long way towards answering the questions posed by paras 24(1)(c) and 24(2)(a). The Tribunal advanced no legitimate reasons for rejecting this evidence, although it was entitled to do so or to decide that it would not act on his evidence unless it was corroborated. 31 Relying on subs 43(2B) of the AAT Act and the cases previously cited, the applicant asserts that the Tribunal ought to have given reasons for deciding not to act on his evidence. That question may not, itself, have been a question of fact in the sense in which that term is used in the passages concerning the adequacy of reasons to which I have previously referred. Nevertheless, it was critical evidence by which the applicant sought to establish certain material facts. If such evidence was to be rejected, the applicant ought to have been told the reasons. In some cases, the reasons may appear sufficiently from challenges in the course of evidence. In this case, the transcript does not disclose any direct challenge of that kind. 32 The relevant passage concerning the applicant's evidence is as follows:- The applicant ceased his seasonal work in 1989, but there is not specialist medical evidence that he ceased work because of his accepted disabilities, nor that he could not have continued to work in suitable employment. We are not satisfied on the evidence that the applicant ceased work because of his accepted disabilities alone. 33 The passage is capable of a number of interpretations. It is possible, in the absence of any indication to the contrary, that the Tribunal wrongly directed itself that, as a matter of law, corroboration of the applicant's evidence was necessary. Alternatively, it may have concluded that the applicant had overstated his back problems in 1989. It may also have been that nothwithstanding general acceptance of the applicant's evidence, the Tribunal considered that he retained a continuing capacity to work. I am unable to offer a view as to which of these alternatives was the basis for the Tribunal's decision, and I am sure that the applicant could not have done so. I should add that if the last sentence of par 15 was intended to indicate some other possible cause for his ceasing work, then it should have been identified.

The Kidney Condition 34 As to the kidney condition, the Tribunal concluded that it was "the major disability" and "a significant reason for the applicant being unable to return to the workforce." From this, it was said to follow that, "We are not satisfied on the evidence that the applicant's accepted conditions alone prevent him from undertaking remunerative work." The finding that the applicant's kidney condition was "the major disability" did not directly address any of the relevant questions. It appears to have been based upon the finding that "… in reality the dialysis treatment programme makes it difficult to obtain suitable employment." This finding led to two other relevant conclusions, namely:- · That the kidney problem is a significant reason for his being unable to return to the workforce; and · That his war-caused condition does not, alone, prevent him from undertaking remunerative work. 35 Clearly, difficulty in finding employment does not incapacitate or prevent one from engaging in such employment. Doctor Furlong's evidence established that a person undergoing a regime of dialysis similar to that being undertaken by the applicant could take part-time employment. The evidence did not, prima facie, justify the view that the applicant's kidney condition was preventing him from performing any kind of remunerative work, although it did suggest that he would experience difficulty in finding suitable work. It may have been open to the Tribunal to find that the applicant was effectively unable to take any remunerative employment because of the kidney condition but if it, in fact, reached that conclusion, it offered no explanation as to how it did so. It is not clear whether the Tribunal addressed the question at all. Expressions such as "difficult to obtain suitable employment" and "a significant reason for … being unable to return to the workforce" do not reflect the question posed by sub-par 24(2)(a)(ii), nor does the finding that:- We are not satisfied … that the applicant's accepted conditions alone prevent him from undertaking remunerative work.

Conclusions 36 The loose, almost Delphic language of pars 15-17 of the reasons has no proper place in the application of a section which is as subtly drafted as is s 24. I accept that a broad and practical approach must be taken to answering the various questions posed by the section. See Cavell v Repatriation Commission (1988) 9 AAR 534 at 539. That process will involve assessment of the evidence and consideration of the inferences reasonably available from it. The Tribunal was undoubtedly entitled to reject the applicant's claim that he stopped work because of his back condition. There may also have been an available inference that his dialysis commitment was such as effectively to prevent employment. If the Tribunal reached either or both of these conclusions, it ought to have explained how it had done so. 37 The respondent argued that such reasons were not necessary. As to the applicant's evidence, I was referred to numerous decisions concerning the entitlement of a tribunal to reject the evidence of a witness and the circumstances in which such rejection may be inferred in the absence of any express statement to that effect. The respondent referred to the decision of Burchett J in Cavell v Repatriation Commission (supra). His Honour's reasons reveal (at 537-8) the process by which the relevant tribunal considered the whole of the evidence in deciding that it would not act on the uncorroborated evidence of the applicant, presumably derived from the Tribunal's reasons. There is no such process in the present reasons. The respondent also referred to a number of other decisions said to establish that the Tribunal was not obliged expressly to reject the applicant's evidence. Two of those decisions, Warnakula Suriva v Minister for Immigration and Multicultural Affairs - (Finkelstein J, unreported, 6 April 1998), and Eshutu v Minister for Immigration and Multicultural Affairs (1997) 142 ALR 474 (per Hill J), must be seen in the context of the facts and conduct of the cases in question. The decision in Abalos v Australian Postal Commission (1990) 171 CLR 167, being a decision of the Full High Court is in a somewhat different category. However I find nothing in that case of assistance to the respondent. It is true that McHugh J, (Mason CJ, Deane, Dawson and Gaudron JJ concurring) was willing to infer from an inconsistency between a witness's evidence and the trial Judge's findings that her Honour must have rejected such evidence to the extent of the inconsistency, but that was a case in which conflict between the witnesses' evidence was a prominent issue at the trial. That is not the present case. As I understand the evidence, the applicant's claim that he had stopped work because of his back condition was not challenged at the hearing. I do not treat that as fatal to the decision, but in the absence of any such attack, the need for reasons is even more pressing. It is the absence of such reasons, not the absence of an express statement rejecting the applicant's evidence, which is the relevant vice for present purposes. 38 As to the question posed by sub-par 24(2)(a)(ii) concerning the kidney condition, I have demonstrated that the language used in the reasons suggests that the proper question has not been addressed by the Tribunal. However, even assuming that it was addressed, there is no explanation as to how evidence that it would be difficult to obtain appropriate employment whilst undergoing dialysis justified a conclusion that the applicant's kidney condition meant that he was incapacitated or prevented from engaging in remunerative work. Doctor Furlong clearly identified some continuing capacity which the Tribunal appears to have ignored. 39 In both respects, the reasons were inadequate. In Dornan v Riordan (1990) 24 FCR 564 at 575, the Full Court (Sweeney, Davies and Burchett JJ) said:- The major flaw in the Tribunal's decision was that the Tribunal did not state reasons adequate to enable the Court to determine whether or not any other error had occurred in the reasoning process. In these circumstances, the proper order was in our view that the Tribunal's determination be set aside ab initio. 40 That is also the present position. The decision should be set aside and the matter remitted to the Tribunal to be heard and decided again upon the evidence previously given.

41 I will hear submissions as to costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 28 June 1999 Counsel for the Applicant: Mr D O'Gorman

Solicitor for the Respondent: Australian Government Solicitor