Murphy v Secretary, Department of Social Services

1. The appeal be dismissed.
2. The appellant pay the respondent's costs of and incidental to the appeal, to be fixed in a lump-sum by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr Brett Leslie Murphy had the singular misfortune to be involved in a motor vehicle accident on 12 September 2017. One sequel to that motor vehicle accident was that, on 19 December 2019, he lodged a claim with the present respondent, the Secretary, Department of Social Services, for a disability support pension. The qualifications for the payment of that pension are set out in s 94(1) of the Social Security Act 1991 (Cth) (Social Security Act). One of the qualifying criteria there specified (see s 94(1)(b)) is that "…the person's impairment is of 20 points or more under the Impairment Tables". 2 Those impairment tables are to be found in tables scheduled to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination). 3 On 28 February 2020, following an assessment of Mr Murphy, what was known as a job capacity assessment report was prepared. That opined that Mr Murphy had 10 points under table 4 of the impairment tables in the Determination. It was also opined in that report that he had particular 'hour-per-week' work capacities. 4 On 16 March 2020, a delegate of the Secretary decided to reject Mr Murphy's disability support application. The basis of that decision was that Mr Murphy did not have an impairment rating of 20 points or more under the impairment tables and thus did not meet the qualifying criterion found in s 94(1)(b) of the Social Security Act. 5 Mr Murphy requested the internal review of that delegate's decision on 25 March 2020. More than a year passed without Mr Murphy having the benefit of any review decision at all within the Department of Social Services. Even if one accepts, as one must, in light of the phenomenon on or about that time of the onset of the COVID-19 pandemic in our country, that the pandemic placed additional burdens on timely public administration, for an Australian to wait over a year for a review decision in respect of an asserted entitlement to a disability support pension is truly shameful. Unsurprisingly, Mr Murphy, having sought more than once to have an internal review decision made in response to his request of 25 March 2020, applied to the Federal Family and Circuit Court of Australia Division 2 (Federal Circuit Court) for the judicial review of the delegate's decision. He filed his judicial review application in the Federal Circuit Court on 6 May 2021. 6 Mr Murphy did not, as well he might have in the circumstances, seek an order requiring the Secretary to make a decision, any decision in respect of his review application. Instead, he sought, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act), the review of the delegate's decision on the following grounds: 1. The Respondent did not assess the impairment to the Applicant's cervical spine correctly. The Respondent was provided with medical evidence showing a loss of motion segment integrity in the Applicant's cervical spine. 2. The Respondent failed to assess permanent impairments in the Applicant's thoracic spine, lumbar spine and pelvis under the Impairment Tables. The Respondent has failed to assess permanent impairments affecting the Applicant under the appropriate Impairment Tables, including incontinence and digestion impairments. 3. The Respondent wrongly decided that the Centrelink Medical Certificates issued by the Applicant's General Practitioner between September 2017 and December 2019 indicate that the Applicant's impairments are not permanent. At the time of the Job Capacity Assessment the Applicant had been under a Centrelink Medical Certificate for more than two years. 7 That judicial review application was given a return date of 11 June 2021 in the Federal Circuit Court. In the meantime, and perhaps prompted by the judicial review application, an authorised review officer within the respondent's department made a decision on 2 June 2021 whereby that review officer affirmed the delegate's decision. 8 The essence of the basis for the affirmation of the decision to refuse Mr Murphy a disability support pension was that his impairment rating was 10 points under the impairment tables, and hence, although not expressly stated in the authorised review officer's letter, he failed to meet the qualifying criterion in s 94(1)(b) of the Social Security Act. 9 In her letter of 2 June 2021, conveying the decision, the authorised review officer stated, amongst other things: I acknowledge your letter dated 29 December 2020 in which you ask to have impairment ratings given to your conditions of incontinence problems, enterocutaneous anorectal fistula, injury to your pelvis, colitis, gallstones, facial pain, sinus disease, dislocation of your temporomandibular joint, loss of teeth, misalignment of your jaw, incompetent circulation in your legs and thrombotic swelling in your legs. While you have supplied diagnostic imaging reports, there is an absence of evidence demonstrating the types of treatments you have sought and received and that all reasonable treatment has been undertaken for these conditions. This means your conditions of incontinence problems, etcetera, are considered not fully diagnosed, treated and stabilised. This means there are no impairment ratings. 10 The progression of the judicial review case through the Federal Circuit Court was impacted upon, through no fault of the parties, by the elevation of the docket judge to whom the case was originally assigned to Division 1 of that court. Upon the reassignment of the case to another judge of that court, the learned primary judge decided, as a matter of discretion, that the case was one in respect of which adequate provision was made for an alternative remedy. Accordingly, and without embarking upon a consideration of the merits, if any, of the grounds of review, and acting under s 10(2)(b) of the AD(JR) Act, his Honour dismissed the judicial review application: see: Murphy v Secretary, Department of Social Services [2021] FedCFamC2G 336. 11 Mr Murphy has appealed to this Court against the order of dismissal made by the Federal Circuit Court. His grounds of appeal are as follows: 1. In dismissing the application for an order of review the learned judge breached the rules of natural justice and failed to remedy the abuse of process that was declared by the judge at the hearing on 7 October 2021. 2. In dismissing the application for an order of review the learned judge misinterpreted and misapplied sections 3, 5, 6, 7 and 10 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 3. In dismissing the application for an order of review the learned judge erred in law by holding that the primary court could not grant the declatory relief sought by the applicant without exceeding its jurisdiction. [sic] 12 As to these grounds, ground 1 is truly, and with respect, a complete side wind. There was a question raised at an interlocutory stage by the original primary judge concerning the redaction of certain material, but what was redacted was completely irrelevant to the grounds of review. The grounds of review, read generously, at least purported to raise questions of law concerning the construction of the Determination. Flowing from that construction, it was said that there was but one conclusion in law open on the material before the delegate. The material before the delegate materially included the assessment. That assessment formed part of the relevant evidence which was before the Federal Circuit Court. What was redacted had nothing to do with the case as pleaded. 13 Much lies behind ground 2 of the grounds of appeal. By the time the case came for decision in the Federal Circuit Court in December last year, the evidence before the Court disclosed that finally, and on 2 June 2021, an authorised review officer had made a decision in response to Mr Murphy's request for internal review within the department. Upon the making of that internal review decision, a right of review by the Administrative Appeals Tribunal (Tribunal) was engaged (see s 142(1)(a), Social Security (Administration Act) 1999 (Cth)). The review by the Tribunal would initially be undertaken within the Social Security Division of that Tribunal. A person dissatisfied with the outcome of that review had a further right of review by the Tribunal's General Division. These rights of review enabled the Tribunal both to construe the Social Security Act and the Determination as well as apply the Act and Determination as so construed to the facts of Mr Murphy's case as revealed by the material before the Tribunal. 14 The learned primary judge appreciated the fullness of the alternative provision made by the right of review which had been engaged following the authorised review officer's decision. Without embarking on the merits, if any, of the grounds of review, his Honour, as a matter of discretion, dismissed the judicial review application. 15 In order to succeed on the appeal, Mr Murphy must demonstrate that the exercise of discretion was attended with one or more of the errors as described in House v The King [1936] 55 CLR 499, at 505: If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 16 In the context of this particular case, Mr Murphy had to demonstrate that it was in error for his Honour to have appreciated the alternative provision and not embarked upon a consideration of the merits, if any, of the judicial review application. 17 In Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1 (Cremona), at [22], the Full Court made these observations in respect of s 10 of the AD(JR) Act: 22 The following relevant factors of that provision should be noted: (a) it is expressly stated in section 10(1)(a) that the rights conferred by ss 5. 6 and 7 of the ADJR Act to challenge a decision or conduct are in addition to, and not in derogation of, any other rights that the person has to seek out review, including by a Tribunal (such as the AAT); (b) notwithstanding the matter referred to immediately above, s 10(2)(b)(ii) confers upon the relevant court a discretion to refuse to grant an application made under section 5, 6 or 7 of the ADJR Act in respect of a decision or conduct where adequate provision is made by law apart from the ADJR Act under which the applicant can seek a review of that decision or conduct by, relevantly, a Tribunal (such as the AAT); and (c) it is notable that the discretion which is conferred upon the court in s 10(2)(b)(ii) of the ADJR Act is, on its face, unconfined save for the requirement that there be "adequate provision" for an alternative review. In particular, the Court's discretion to refuse to grant an application for review because of the existence of an adequate alternative review mechanism is not qualified by any reference to the need for there to be "special circumstances" or other like words which would operate to confine the discretion. [emphasis in original] 18 Unlike in Cremona, there is no indication that the reasons of the learned primary judge were affected by any misapprehension that it was necessary for there to be "special circumstances" before the Court, in the face of adequate provision, would continue to exercise jurisdiction under the AD(JR) Act. 19 The present is really within that class of case considered by the Full Court in Swan Portland Cement Ltd v The Comptroller-General of Customs (1989) 25 FCR 523. In that case, one of the bases upon which, in the original jurisdiction, relief was declined was insofar as the Court's jurisdiction was invoked under the AD(JR) Act by an exercise of the discretion conferred by s 10 of that Act to refuse to proceed with the case. In that case, there was provision for specialist review on the merits of a decision of the Comptroller-General of Customs under the Customs Tariff (Anti-Dumping) Act 1975 (Cth) by the Anti-Dumping Authority. The Full Court remarked, at 530: The learned primary judge pointed out that the legislation provided "its own method of review", referring to the applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, "it should not be thought that it is always appropriate to bring a matter of this kind before the court." We agree and express the view that in many (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. 20 All that the learned primary judge has done in this case is to act in conformity with a response as suggested appropriate by the Full Court in many and perhaps most circumstances. His Honour has appreciated that the Federal Circuit Court did have jurisdiction under the AD(JR) Act judicially to review the delegate's decision. He has also appreciated the overtaking of events by the authorised review officer's decision and the consequential arising of a right of merits review in the Tribunal. Moreover, it is a feature of that merits review by the Tribunal that it is undertaken in a specialist review division of the Tribunal concerned with decisions under, materially, the Social Security Act. 21 Of course, it did not necessarily follow that the discretion had to be exercised adversely to Mr Murphy. The primary judge appreciated this, in my view, having regard to his Honour's reasons. However, the more one examines this particular case, the more one sees it depends not just upon a pure question of construction of the Determination but rather the application of that Determination on the material before the delegate. Moreover, and as already indicated, the delegate's decision was overtaken by the later authorised review officer's decision. Regard to the latter decision, as quoted, does not disclose on its face any evident misunderstanding of the meaning and effect of, in particular, s 6 of the Determination. That provides: 6 Applying the Tables Assessing functional capacity (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person. Applying the Tables (2) The Tables may only be applied to a person's impairment after the person's medical history, in relation to the condition causing the impairment, has been considered. Note: For additional information that must be taken into account in applying the Tables see section 7. Impairment ratings (3) An impairment rating can only be assigned to an impairment if: (a) the person's condition causing that impairment is permanent; and Note: For permanent see subsection 6(4). (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years - if this is the case, an impairment rating under the Tables cannot be assigned to the impairment. Permanency of conditions (4) For the purposes of paragraph 6(3)(a) a condition is permanent if: (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and (b) the condition has been fully treated; and Note: For fully diagnosed and fully treated see subsection 6(5). (c) the condition has been fully stabilised; and Note: For stabilised see subsection 6(6). (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years. Fully diagnosed and fully treated (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered: (a) whether there is corroborating evidence of the condition; and (b) what treatment or rehabilitation has occurred in relation to the condition; and (c) whether treatment is continuing or is planned in the next 2 years. Fully Stabilised (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if: (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or (b) the person has not undertaken reasonable treatment for the condition and: (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment. Note: For reasonable treatment see subsection 6(7). Reasonable treatment (7) For the purposes of subsection 6(6), reasonable treatment is treatment that: (a) is available at a location reasonably accessible to the person; and (b) is at a reasonable cost; and (c) can reliably be expected to result in a substantial improvement in functional capacity; and (d) is regularly undertaken or performed; and (e) has a high success rate; and (f) carries a low risk to the person. Impairment has no functional impact (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned. Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact. Assessing functional impact of pain (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered: (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6). The quoted portion of the authorised review officer's reasons contains, in my view, nothing more than a fair paraphrasing of s 6 of the Determination. What then fell for administrative decision-making was but an application of that on the material before the delegate, which was no different to that before the authorised review officer. The case was not one which manifested such an obvious error of law as to make it one apt for judicial determination, as opposed to the recognition that, in the first instance, the Tribunal was perfectly entitled to reach a different view to the Secretary as to the meaning and effect of the Determination, and having so done, or even in agreement with the Secretary, to reach a different view from the Secretary as to its application to whatever material was placed before the Tribunal. 22 The quoted portion of the authorised review officer's reasons contains, in my view, nothing more than a fair paraphrasing of section 6 of the Determination. What then fell for administrative decision-making was but an application of that on the material before the delegate, which was no different to that before the authorised review officer. The case was not one which manifested such an obvious error of law as to make it one apt for judicial determination, as opposed to the recognition that, in the first instance, the Tribunal was perfectly entitled to reach a different view to the Secretary as to the meaning and effect of the Determination, and having so done, or even in agreement with the Secretary, to reach a different view from the Secretary as to its application to whatever material was placed before the Tribunal. 23 That material need not have been coextensive with that which was before either the delegate or the authorised review officer. It was open to Mr Murphy to have supplemented that in a way which would have met the deficiencies which were highlighted in the authorised review officer's view in her reasons. The tragedy of this case, with very great respect to Mr Murphy, is that he has single-mindedly pursued an apprehended error of law not at all apparent in the approach of the authorised review officer or the delegate to the detriment of his pursuing what may well be, if supplemented, a good case for payment of pension on the merits. That, however, is but a passing observation. 24 Considered collectively, grounds 2 and 3, even as expanded upon by Mr Murphy in his oral submissions, disclose no error in the exercise of the discretion by the learned primary judge. To the contrary, and as in essence submitted on behalf of the Secretary, this was nothing more than an unremarkable exercise in the events which have transpired, which materially included the arising of a right of review on the merits by the Tribunal of a judicial discretion, under s 10(2)(b)(ii) of the AD(JR) Act, to dismiss the judicial review application. It necessarily follows from the foregoing that the appeal must be dismissed. 25 The Secretary sought an order for the payment by Mr Murphy of the costs of the appeal. In response, Mr Murphy highlighted the very lengthy delay visited upon him by the Secretary in making an internal review decision by an authorised review officer. That a person acting on his own behalf would make such a submission is entirely understandable. Mr Murphy has every reason, with respect, to be, to say the least, disappointed in the responsiveness of our government to his lawful request for internal review of an adverse disability support pension decision. It may be that a consideration of that kind would have intruded upon a question of costs in the event of an early discontinuance of his judicial review application in the original jurisdiction as a sequel to the making at last of the authorised review officer's decision. 26 However, it does not in my view offer a persuasive reason as to why, the case having been prosecuted to appellate jurisdiction stage, the ordinary exercise of a judicial discretion, namely that costs follow the event, should not be adopted by me. That is not to say that, as a matter of administrative value judgment, the Secretary in the circumstances may choose not to pursue a costs order. However, it does not seem to me to be appropriate to do other than make an order for costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.