The appeal TO THE FULL COURT
21 By her Notice of Appeal filed 20 February 2004, the appellant relied on the following grounds:
'1. That there has been a denial of natural justice in not entertaining [the appellant's] application to admit new evidence (in relation to the [Freedom of Information] material from the [Australian] Federal Police in particular).
2. That there has been a denial of natural justice in not allowing further time for [the appellant] to present her full submission to the …Court.'
22 The appellant has provided written submissions in support of these two grounds. She seeks to set aside the judgment at first instance and to have the matter remitted to a differently constituted Tribunal for re-hearing.
23 In relation to the appellant's first ground, on the hearing of her application before the primary Judge, the appellant sought to tender documents (in a 'supplementary appeal book') that were not before the Tribunal. The appellant submits those documents are 'a development of matters already raised in the course of the … hearing [before the Tribunal].' The tender was rejected and the appellant now claims that she was denied natural justice because she was not permitted to tender that evidence on the hearing of her appeal.
24 Although the appellant, in her grounds of appeal, refers only to information obtained under the Freedom of Information Act 1982 (Cth), the important evidence that the appellant wished to tender concerns the degree of connection between the appellant's prior medical history, as found by the Tribunal, and her retirement condition of OCD. In particular, the appellant sought to tender a letter from Dr John Varghese, psychiatrist, dated 3 September 2003, which stated relevantly as follows:
'It is my opinion that an Anxiety Disorder, a Mood Disorder, or an underlying Personality Disorder marginally increases the risk for one developing Obsessive Compulsive Disorder.
Obsessive Compulsive Disorder, however, in the main is regarded as a specific neuro-psychiatric condition with a specific neuro-chemical cause. To develop this, one needs to have a specific biological pre-disposition and subsequent events may unmask this and precipitate out the illness.
Stress by itself does not result in Obsessive Compulsive Disorder unless one has a biological vulnerability.'
25 The appellant sought to rely on this new evidence to contend that the connection between her prior medical history and her retirement condition is 'marginal' only and therefore did not satisfy the test outlined in Benham of whether there was a 'real and substantial connection'.
26 Such evidence is contrary to the opinions of two doctors who gave evidence before the Tribunal and to the finding of the Tribunal. Dr Frank Varghese stated in cross-examination that a 'person with obsessive compulsive personality disorder is more likely to develop OCD.' The substance of his evidence, as summarised by the Tribunal is set out below. Dr O'Brien, whose evidence was ultimately preferred by the Tribunal, said as follows:
'The definition of a personality disorder includes the notion that a person uses the same coping mechanisms no matter how inappropriate they might be in a wide variety of settings. Thus their ability to respond to stressful life events may be impaired. An accumulation of life events will thereby stress that person more than the average and they are more likely to be symptomatic, to display illness which would be recognised if you were interviewing them. In my view, Ms Phillips' personality vulnerabilities, [-] her personality disorder [-] is of such an extent that it was evident to Dr Weekes [a psychiatrist], and evident to myself, and evident to Dr [Frank] Varghese, that…it is a personality disorder [which] is a longstanding aspect of her. That vulnerability expressed itself in the 1978 episode after a series of quite difficult stressful events in her life, setbacks and dissatisfactions in the workplace, and stresses in her personal life, and again, it displayed itself through the stresses that she reported to me when she came to see me in 1987 as an obsessive-compulsive disorder. I could add that people with personality vulnerabilities, it is one of the most important determinants of the genesis and chronicity of any psychiatric disorder, that people with obsessive-compulsive personality disorder [are] more likely have a higher risk of depression, of anxiety disorder, including obsessive-compulsive disorder.
…There is clearly some association between anxiety disorders and depression. Some psychiatrists would argue that they are quite separate disorders and that we don't yet understand why that happens; that is they believe they are separate entities. Others would hold the view that there are some common underlying factors which you can find in people to explain this.'
27 Dr O'Brien later said in evidence:
'If a person has a personality disorder, and in this case, a personality disorder of the type of Ms Phillips, would she be in - would she be more likely to develop OCD than a member of the general community? --- As I said, she would have a higher risk of a range of disorders , and OCD would be one of those.
And a person with recurrent major depression, would they be more at risk of developing OCD than a member of the general community? ---Slightly, but much less relevantly. The connecting, or contributing factor in Ms Phillips' case to the emergence of both illnesses is her underlying personality disorder.
And does the fact that a person has a personality disorder and also recurrent major depression, does that add to the prospect of a person developing OCD? --- It makes it more likely that the person would have other illnesses or other episodes of illness. The reason being that if you look at the outcome studies of depression then people with personality disorders will show more of a likelihood of relapse and a higher number of residual symptoms…".
28 Summarising the evidence of the two doctors, the Tribunal said (at [85] - [86]):
'The evidence relevant to the matters in sub-section 66(2) is that of Dr [Frank] Varghese and Dr O'Brien. Dr [Frank] Varghese said that a person with major depression was not at greater risk of contracting other mental problems although he said that there could be conditions associated with the depression such as panic attacks, increased prospect of suicide or alcohol problems. He denied any increased risk of OCD but said that depression might lead to a presentation of OCD symptoms such as recurrent thoughts or checking behaviour rather than primary OCD. Dr [Frank] Varghese also referred to a person who has a general neurotic syndrome as being someone who was vulnerable to the development of either depressive disorder or OCD. In contrast, Dr O'Brien said that a relationship exists between the occurrence of anxiety/depressive disorders and other anxiety-based disorders such as obsessive compulsive disorder and also that an individual with a personality disorder was more likely than another to develop OCD; that an individual with major depressive disorder was at a greater risk of developing OCD; and that an individual with both major depressive disorder and personality disorder was at increased risk of developing OCD.
The Tribunal is satisfied that the evidence of Dr O'Brien is sufficient to establish that the applicant's OCD was substantially contributed to by her personality disorder and depressive disorder. Further, the Tribunal prefers her evidence to that of Dr [Frank] Varghese on the basis of her association with the applicant over 10 months in contrast to the single consultation that Dr [Frank] Varghese had with the applicant.' (emphasis added)
29 Counsel for the respondent points out that in an appeal under s 44(1) of the AAT Act, this Court has no power to receive 'fresh evidence'; only questions of law can be raised in such an appeal. In Waterford v The Commonwealth (1987) 163 CLR 54 Brennan J said (at 77 - 78):
'There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.'
30 The respondent also relies on Servos v Repatriation Commission (1995) 56 FCR 377 per Spender J at 385:
'As s. 44 of the [AAT] Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the court on an application pursuant to s. 44 of the Act, the object of which is to invite the court to disagree with a factual conclusion reached by that Tribunal.
In my opinion, consistent with the authorities to which I have already referred, the jurisdiction of the Federal Court of Australia pursuant to s. 44 of the [AAT] Act does not permit the reception of further evidence which was not before the Administrative Appeals Tribunal.'
31 These principles are applicable here. The further evidence sought to be tendered by the appellant relates to a factual issue and even if admitted would not demonstrate any error of law.
32 As indicated above, given that the primary Judge was concerned with whether any error of law attended the conclusion of the Tribunal, her Honour was correct to reject the reception into evidence of material that was not before the Tribunal. The appellant on this appeal pressed that further material and, in particular, the report by Dr John Varghese dated 3 September 2003. That material is not relevant to the disposition of the appeal.
33 The appellant nonetheless contends that this material bears directly on her entitlement.
34 We simply note that Mr Hanks QC, for the respondent, in response to an enquiry by the Court as to whether there was an opportunity to reconsider the entire matter in the light of the medical information now sought to be relied on by the appellant, indicated that 'if a reconsideration' in the circumstance of new and better information coming to light, 'was a possibility, the [Commissioner for Superannuation] would look at it'."
35 In relation to the appellant's second ground, the appellant claims that she was denied natural justice because she was not allowed further time to present her full submission to the Court. This ground concerns the appellant's filing (without leave) of supplementary written submissions after the primary Judge had reserved her decision. It appears that the primary Judge did not consider those supplementary submissions.
36 The respondent submits that the transcript of the hearing before the primary Judge demonstrates that the appellant was not denied the opportunity to make submissions at the hearing, and refers to extracts from the transcript to support this submission, including the following:
'HER HONOUR: …is that all that you want to say about the first part of the Tribunal's decision?
[APPELLANT]: Well, …I know I've got heaps of points. I've been through these and I have got - trying to think on my ---
HER HONOUR: …we'll be taking an adjournment shortly, …at quarter to one, so why don't you leave that first point and if you think of something over the luncheon adjournment that's different from what you've put to me you can raise it after lunch. In the short time remaining, why don't you go on to address other aspects of the Tribunal's decision that you say involve errors?
…is there anything more you wish to add before I call on [counsel for the respondent]? You will have an opportunity, of course, you understand, to respond to what [counsel for the respondent] says.
…Ms Phillips, you have an opportunity to respond to points made by [counsel for the respondent]. In doing so, I don't need you to go over points you have already made. You can assume that it's inevitable, of course, there will be disagreement between you, so I need you only to respond, if you wish, in relation to anything you haven't already covered.'
37 The respondent relies on remarks by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330:
'…a party has no legal right to continue to put submissions to the court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.'
38 In our view, it is clear that the appellant was given a full opportunity to put her case and we see no error in the lack of any reference to her intended further submissions.
39 In addition to her specific grounds of appeal, the appellant makes numerous factual criticisms (in both her written and oral submissions) concerning the medical evidence before the Tribunal. Again, the respondent submits that an appeal under s 44(1) of the AAT Act cannot be used as a vehicle to agitate factual issues, or to argue that the Tribunal's findings of fact were erroneous or even against the weight of the evidence, citing, inter alia, Repatriation Commission v Thompson (1988) 44 FCR 20 at 25, quoted below.
40 The respondent further submits there was substantial evidence before the Tribunal that the appellant had a history of personality disorder and recurrent major depression at the time of her entry to the APS, pointing particularly to the report of Dr O'Brien, who 'identified personality vulnerabilities and a history of depression' as placing the appellant at a 'higher risk of retirement before reaching 65', and the report of Dr Frank Varghese, who reported a 'significant past psychiatric history' when treated by Dr Weekes (in 1978), which 'was best understood as a recurrent major depression'. In relation to the Tribunal's preference of one doctor's evidence over another's, the respondent submits that the Tribunal had the opportunity to see both Dr Frank Varghese and Dr O'Brien give their evidence (under cross-examination).
41 In Thompson, above, the Full Court stated as follows (at 24-25):
'…it is necessary to keep in mind that the Tribunal was the judge of the facts. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77:
"The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error in law simply making a wrong finding of fact."
The distinction between fact and law has recently been considered by Gummow J in Skypak International (Australia) Pty Ltd v Commissioner of Taxation (unreported, Federal Court of Australia, 20 April 1988) … In marginal cases, the task of distinguishing between an error of law and an error which is not such may be a difficult one. However, the nature of the task of this Court is clear. It is to leave the tribunal of fact decision as to the facts and to interfere only when the identified error is one of law. … When the challenged finding is one of fact, an error of law will only arise if it be found that the finding was unreasonable in the sense expounded in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, or that the reasoning of the Tribunal disclosed that it approached the issue on a wrong footing by posing the wrong question or otherwise made a legal error which vitiated the finding.'
42 These principles are applicable here. We agree with the primary Judge that the Tribunal's findings were open to it on the evidence before it and no error of law has been established.
43 Finally, the appellant appeared to suggest that the primary Judge erred in her construction of s 66(2) in that her Honour did not apply the correct test for determining whether there was a connection between the conditions ultimately specified on the BCC and the appellant's retirement condition.
44 The primary Judge specifically addressed the issue of the correct test to be applied (at [39]), citing Benham, where it was stated that there must be a 'real and substantial connection between the certified condition and the condition that caused or substantially contributed to the incapacity'. As the primary Judge observed, the test in Benham does not require any causal relationship between the two conditions and we agree that this is the correct approach (c.f. Commissioner of Superannuation v Miller (1985) 8 FCR 153).
45 The appellant did not object to the test as outlined in Benham. However, the appellant contended that the primary Judge only considered whether there was a connection between OCD and either PD or MDD, not whether the connection was real and substantial.
46 The appellant referred the Court to [36] of the judgment at first instance, where the primary Judge said, '[i]s there a connection between OCD and either or both of personality disorder and major depressive disorder?' Later, the primary Judge states (at [42]):
'… a decision that the [appellant's] incapacity from OCD was substantially contributed to by personality disorder and/or major depressive disorder necessarily involves a decision that the conditions are connected.'
47 It is trite to say that the primary Judge's judgment must be read as a whole. In circumstances where the primary Judge has elsewhere made clear her understanding that the requirement is that the connection be a real and substantial one (as her Honour did at [39]), when her Honour stated that there is a connection, such a statement must be taken to mean that there is a real and substantial connection, even though the precise words are not used.
48 In our view, there is no substance to the appellant's apparent contention that her Honour erred in her construction of s 66(2).
49 Accordingly, the orders of the Court will be:
- The appeal is dismissed.
- The appellant is to pay the respondent's costs of the appeal.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.