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[2010] AATA 937
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2010-11-23
Original judgment source is linked above.
CATCHWORDS - COMPENSATION - diabetes and paranoid schizophrenia - whether contributed to in a material degree by employment in Army - decisions affirmed.
PRACTICE AND PROCEDURE - law under which decisions reviewed - law in effect at the earlier of the times when applicant sought treatment or was first incapacitated or impaired as a result of the diseases for which compensation claimed - law before 2007 amendments applicable.
PRACTICE AND PROCEDURE - Statements of Principle under the Veterans' Entitlements Act 1986 not relevant.
PRACTICE AND PROCEDURE - application to dismiss on basis frivolous and vexatious - whether application regarding claim for paranoid schizophrenia should be dismissed on the basis that effectively determined by findings made in previous Tribunal proceedings.
Compensation (Commonwealth Government Employees) Act 1971, s 29
Amaca Pty Ltd & Ors v Ellis as Executor of the Estate of Paul Steve Cotton (dec) & Ors [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481
Australian Postal Corporation v Oudyn [2003] FCAFC 318; (2003) 73 ALD 659
Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Bakovic v Rosebridge Nominees Pty Ltd [1999] WASCA 78
Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Christine Lodowski v Comcare [1998] FCA 158
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134; 102 ALR 487; 65 ALJR 674
Director General Security v Sultan [1998] FCA 1548; (1998) 90 FCR 334
Drake v Minister for Immigration [1979] AATA 179; (1979) 46 FLR 409;
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626;
General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; 67 ALJR 841
Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1982] AC 529
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329
JF Keir Pty Limited v Sparks [2008] FCA 611
Jones v Dunkel [1959] HCA 8; (1985) 101 CLR 298; 32 ALJR 395
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kowalski and Military Rehabilitation and Compensation Commission
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1;
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84; 29 AAR 350
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506;
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;
[1998] HCA 38; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66;
Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146;
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456;
Ramsay v Australian Postal Corporation [2005] FCA 640; (2005) 147 FCR 39
Rana and Chief of Army [2005] FCA 1283
Rana and Chief of Army [2006] FCAFC 63; (2006) 90 ALD 474
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Rana v University of Adelaide [2008] FCA 365
Re Fuad and Telstra Corporation Limited [2004] AATA 1182; (2004) 39 AAR 496
Re Mr R and Commonwealth [1988] AATA 133; (1988) 15 ALD 167
Re O'Neill and Child Support Register [2010] AATA 545
Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069; (2005) 89 ALD 180
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595
Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149
Re Slater and Telstra Corporation Limited [2005] AATA 527
Re Vincent and Military Rehabilitation and Compensation Commission [2010] AATA 180; (2010) 51 AAR 422
Re Williams and Australian Electoral Commission and The Greens (party joined) [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467
Robert Bosch (Australia) Pty Ltd v Mr Egon Fice, member of the Administrative Appeals Tribunal [2009] FCA 247; (2009) 175 FCR 258
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795
DECISION AND REASONS FOR DECISION [2010] AATA 937
And: MILITARY REHABILITATION AND COMPENSATION COMMISSION
(1) affirms the reviewable decision of the respondent dated 9 May 2007 in proceedings No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses; and
(2) affirms the reviewable decision of the respondent dated 14 February 2005 in proceedings No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during the applicant's service in the Australian Army.
Mr Rana has applied for compensation for paranoid schizophrenia and for stress induced diabetes. Both claims have been made under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) but the decision in relation to the first was made by a delegate of Comcare and the second by a delegate of the Military Rehabilitation and Compensation Commission (MRCC) after it was established on 27 April 2004 under the Military Rehabilitation and Compensation Act 2004 (MRC Act).[1] Both Comcare and the MRCC refused Mr Rana's claims and the Tribunal heard his applications for review of their determinations together.
2. Two matters were decided as preliminary issues. The first was that
Mr Rana's application would be reviewed by reference to the SRC Act rather than by to the MRC Act. The provisions of those two enactments and the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Transitional Act) were relied on in coming to that decision.[2] The second was that a report dated by Professor Goldney was not prepared in circumstances that amounted to a breach of confidence owed by Professor Goldney or another to
Mr Rana and that Professor Goldney had not breached the Privacy Act 1988 in its preparation.[3]
3. We have considered a number of preliminary matters and have reviewed the MRCC's reviewable decision. We have decided to affirm the reviewable decision of the MRCC dated 9 May 2007 in proceeding No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses. We have also decided to affirm the reviewable decision of the MRCC dated 14 February 2005 in proceeding No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during his service in the Australian Army.
4. The history of the two applications is different and we will set out the steps that have been taken in relation to each separately:
Mr Rana applies to Tribunal for review[8]
Tribunal dismissed application as frivolous or vexatious under s 42B of Administrative Appeals Tribunal Act 1975 (AAT Act)[9]
Lander J of Federal Court remits application by consent - no judgment
Application by MRCC to dismiss application under s 42B of AAT Act
Tribunal refuses application but makes directions regarding course of hearing[10]
5. Mr Rana stated that he first became aware of his diabetes on 29 August 2005, which was the day on which he first received treatment for it.
Stress-induced Paranoid Schizophrenia and Diabetes[11]
MRCC makes determination disallowing claim[12]
Application by MRCC to dismiss application under s 42B of AAT Act
Tribunal refuses application but makes directions regarding course of hearing[15]
PREVIOUS RELEVANT CLAIMS AND DECISIONS IN RELATION TO ARMY SERVICE
6. In addition to the two matters with which we are concerned,
Mr Rana has made other claims for compensation for conditions that he attributes to certain events during his service in the Army and another in relation to the basis on which his Army service came to an end. They have been set out in detail in earlier reasons given after Deputy President Forgie considered an application by the MRCC to dismiss Mr Rana's application for review under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the basis that it was frivolous or vexatious[16] (dismissal proceedings). We adopt that history. For present purposes, we will summarise only the two that relate directly to this matter and refer to the legislation under which they were determined:
psychiatric condition (personality disorder and/or adjustment disorder or reactive depression)
Mr Rana attributed condition to his having been subjected during his Army service to physical, emotional and sexual harassment because of his race, creed and colour
(Claim made under Compensation (Commonwealth Government Employees) Act 1971 (1971 Act))
Personality order and/or adjustment disorder not caused by Army service as pre-existing.
Army service aggravated pre-existing conditions until April 1985.[18]
(or, alternatively, post traumatic disorder with features of paranoid schizophrenia)
Mr Rana attributed condition to his having been subjected to emotional and physical harassment by other members of the Defence Force
(Safety, Rehabilitation and Compensation Act 1988 (1988 Act))
Neither condition arose out of or was contributed to by Mr Rana's Army service and neither was aggravated by that service.
MRCC'S APPLICATION TO DISMISS PART OF CLAIM ON BASIS PREVIOUSLY DECIDED
8. At the hearing, Mr Snell made a further application that we dismiss
Mr Rana's application on the basis that it is frivolous and vexatious. Our power to do that is found in s 42B(1)(a) of the AAT Act, which provides that:
"Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
9. We will set out Mr Snell's submission before returning to our power under s 42B and whether or not we should exercise it in this case.
10. On behalf of the MRCC, Mr Snell asked us to dismiss Mr Rana's application relating to Comcare's paranoid schizophrenia decision on the basis that it had been effectively determined in earlier proceedings. He submitted that the condition of paranoid psychosis considered by the Tribunal in Re SAN and Comcare is, for all relevant purposes, identical with paranoid schizophrenia. That Tribunal had conclusively discounted any relationship between paranoid psychosis and Mr Rana's military service. Mr Snell referred us to the following exchange between
Professor Goldney and the MRCC's then counsel, Ms Bean:
"Professor, just beginning with the question of diagnosis you've indicated in your report that you did consider that Mr Rana was currently suffering from paranoid schizophrenia. Is that so?---Yes.
Could you briefly outline to the tribunal the reasons for reaching that conclusion?---Yes. He had a history of deteriorating social function. He had delusional thoughts. He had a history of hallucinations, which had lasted for longer than a month. His conversation was somewhat disorganised and he had paranoid flavour about a number of issues in his life and so his diagnosis falls within the broad category of a paranoid psychosis and then one has to work out, you know, what's the cause of the paranoid psychosis. It didn't seem to be related to drug abuse. It didn't seem to be related to a depressive disorder. It didn't seem to be related to any other, you know physical illnesses and so the most likely sub-category of a paranoid psychosis is that of paranoid schizophrenia."[22]
11. In so far as Mr Rana's claim extends beyond the cause of paranoid schizophrenia and encompasses its aggravation, acceleration and recurrence, Mr Snell submitted that we should dismiss it on the basis that it too has been determined by the Tribunal in Re SAN and Comcare. He relied on a decision of Downes J as President of the Tribunal in Re Fuad and Telstra[23] when he said:
" The application for review before the Tribunal in this matter differs from the application in Kelleher [Kelleher v Telstra Corporation Ltd[24]] because Mr Fuad does wish to pursue claims which were before the decision-maker and which relate to incapacity not upheld in the decision under review. These matters are not dealt with in the determination because of the decision that liability had ceased but, in my opinion, the effect of the decision in Oudyn [Australian Postal Corporation v Oudyn[25]] is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under
s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem."[26]
12. Mr Snell submitted that resolution of the "practical problem", to which Downes J referred, begins with an enquiry as to the subject of the claim considered by the earlier Tribunal. That enquiry may be informed, but not confined, by the terms in which the claim for compensation was made or as amended or amplified. Regard must be had to the medical evidence and to the diagnosis or diagnoses that medical practitioners ascribe to the claimed condition. That diagnosis or those diagnoses may be quite different from that for which compensation has been claimed. Regard must be had to the material and evidence before the earlier Tribunal but that too cannot be determinative of the boundaries of what was decided. The terms of the Tribunal's decision may also be relevant in deciding what was before the decision-maker. Finally, Mr Snell submitted:
"Finally, as Downes J in Fuad observes, the terms of a decision and the reasons for it are indicative of, but not conclusive as to, the question of what was before a decision-maker. It may be accepted that where the Tribunal makes a finding, specifically or by necessary inference, about
2.11.1 matters arising from the evidence before it, and
2.11.2 those matters concern factual and/or legal considerations which were properly 'part of the claim' (either as it was framed or as necessarily arises from the evidence),
then such material will have been relevantly 'before the decision maker' for the purposes of determining the scope of what has already been decided. It does not follow however that because of an absence of a specific finding alone (such as upon a question rendered nugatory by other findings) that a matter was not relevantly before it."[27]
13. Mr Snell referred to [1], [3] and [11] of the Tribunal's reasons for decision in Re SAN and Comcare regarding the proper characterisation of the claimed condition and [58]-[100] of those reasons relating to events during that service and then to Mr Rana's evidence and submissions in the current proceedings. The effect of his submission was that they are closely aligned to, if not the same as, those for which Mr Rana now claims compensation. He then referred to the earlier Tribunal's findings regarding stressful events at [142], [143] and [144] and regarding material contribution at [144], [145], [148] and [163].
14. To the extent that any part of the evidence in the present proceedings arises from any of the stressful events and those said to have made a material contribution to a condition that is now properly identified as paranoid schizophrenia, the Tribunal should not entertain the application. The respective rights of the parties have finally been determined "even if (by reason of there having been a purported reconsideration on the matter by the delegate and a valid application for review under s. 62) the Tribunal would have jurisdiction, would be futile."[28]
"On the other hand I do not think the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
16. If we understand it correctly, Mr Snell's submission starts from the proposition that, what was before the Tribunal in a previous decision can be taken to have been decided by it not only for the purposes of reviewing the decision before it but for all subsequent purposes. What was before it is decided by reference to the claim, the evidence, the findings of fact and the decision made although none is conclusive. The findings of fact made by the Tribunal in earlier proceedings between the same parties are conclusive of the respective rights of those parties in relation to those factual findings.
17. Mr Snell has relied on the case of Fuad. In that case, the President identified what it was that the Tribunal was being asked to review. He did go so far as to say that a decision adverse to an applicant on one claim is a decision adverse to the applicant on all claims made by that applicant. That is so even if the decision-maker does not address those other claims fully. On the face of the reasons, Mr Snell's submission gains some support but the President's reasons need to be considered a little more fully.
18. The President gave as examples claims for compensation made under ss 14 or 16 of the SRC Act as refusing all claims made under other sections, such as
ss 19 and 21, even if they are not fully considered. The sections are very different. Beginning with s 14(1) it is, in effect, the provision that establishes Comcare's general liability. It provides:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
A section such as s 16 is one of the provisions making provision for particular types of compensation payable to an employee who has suffered an injury. Section 16(1) provides:
"Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."
Sections 19 and 21, to which the President refers in Fuad, are in the same category as s 16. In broad terms, s 19 provides that Comcare is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. Section 21 provides for the amount of that compensation when the employee, who is so incapacitated, retires from employment and receives a lump sum benefit under a superannuation scheme.
19. The structure of the SRC Act is such that an employee whose claim is refused under s 14 cannot succeed with claims made under the sections providing for particular types of compensation. An employee whose claim is refused under one of the sections providing for particular types of compensation may, however, succeed with a claim made under another section. Using the President's example of s 16, an employee whose claim for medical expenses, or a particular medical expense, has been refused under s 16 may still be incapacitated for work as a result of an injury and be entitled to compensation under s 19.
20. Once the structure is recognised, the passage in Fuad relied upon by Mr Snell appears to be too broadly stated. Had it referred only to a refusal of a claim for compensation under s 14 as amounting to a refusal of claims made under other provisions of the SRC Act, it would have been unexceptional. The reference to claims under both ss 14 and 16 as having that effect appears to bring it into conflict with the passage from Australian Postal Corporation v Oudyn,[31] in which Cooper J had said:
"Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act."[32]
21. The principle said to have been established in Fuad was more narrowly drawn by the Full Court of the Federal Court when it decided the later case of Irwin v Military Rehabilitation and Compensation Commission.[33] In doing that, consistency has now been maintained with the passage from the judgment of Cooper J in Australian Postal Corporation v Oudyn. The Full Court said, when speaking of claims made under the Military Rehabilitation and Compensation Act 2004:
"... Where the matter before the Commission for reconsideration is a claim seeking determination of both liability and compensation the Commission, on reconsideration, will have both matters before it and may determine compensation if it decides to accept liability. The refusal of a joint claim is as much a refusal to assess compensation as it is a refusal to accept liability (see Fuad v Telstra Corporation Limited_; [2004] AATA 1182; (2004) 39 AAR 496 at [4])_.
The sequential determination of liability and damages or compensation is a well known process in the law. The general rule is that both aspects are heard together even though no entitlement to damages will arise if liability is not established. In appropriate cases the two are separated. Nevertheless the tribunal remains seized of jurisdiction to determine both matters. In our opinion that is the case under the Military Compensation Act "[34]
22. In light of the earlier judgment of the Full Court of the Federal Court in Lees v Comcare[35] and of Cooper J in Australian Postal Corporation v Oudyn[36] as well as the later narrowing of the statement in Fuad by the Full Court of the Federal Court in Irwin v Military Rehabilitation and Compensation Commission, our understanding of Fuad is that set out in Re Vincent and Military Rehabilitation and Compensation Commission,[37] which we adopt:
"... Fuad is not intended to lay down a rule that states that a decision adverse to the claimant on one claim for compensation must necessarily be understood as a decision adverse to all other claims for other types of compensation even though the decision-maker has not addressed those other claims. Reading Fuad and the analysis of Lees in Irwin together, it follows that there must first be an examination of what was actually before the decision-maker. If, for example, information essential to support the claim for a particular type of compensation was not available to the decision-maker and the decision-maker does not address the claim, the conclusion will be that there is no such determination. It will not be that a rejection of another claim under, for example, s 14 will necessarily be a rejection of the other claim under any other section or sections of Part II of the SRC Act."[38]
23. This interpretation of Fuad is also consistent with the approach adopted by Spender J in Ramsay v Australian Postal Corporation[39] when he also had regard to the judgment of Cooper J in Australian Postal Corporation v Oudyn. A delegate of the Australian Postal Corporation (APC), Mr Hoffman, had made an initial determination denying liability in respect of injuries to Mr Ramsay's right knee and back under s 14(1) of the SRC Act.[40] His determination did not deny liability under s 14 in respect of an injury to his right shoulder. Instead, he made a determination under s 19,[41] as he also did in respect of Mr Ramsay's right knee and back, that "recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment." On reconsideration, the reviewing officer in APC had affirmed the "determination to deny liability for injury to right knee, right shoulder and back.'[42] The Tribunal had then affirmed the reviewable decision made by the reviewing officer and had interpreted that as leading to a conclusion that the respondent was no longer liable to pay compensation to Mr Ramsay in respect of his neck, back and knee conditions as well as his right shoulder. In setting aside the Tribunal's decision, Spender J explained:
"In the reasons for his decision, Mr Hoffman explicitly addressed compensation for the applicant's back and right knee in respect of s 14(1) of the SRC Act in the last sentence of the relevant paragraph of his determination ... His reasons concluded with the general determination for all injuries in respect of s 19. However, there was no corresponding determination that the applicant was no longer entitled to compensation under s 14 for injuries to his right shoulder. In respect of the right shoulder, Mr Hoffman determined only that 'recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment.'
In my judgment, the Tribunal purported to affirm the reconsideration decision, which in turn purported to affirm a decision of Mr Hoffman that he had not made. For this reason also, its decision must be set aside."[43]
24. In Fuad, the President did not touch upon the subject of whether findings of fact and a review of a decision by one Tribunal could limit consideration by a subsequent Tribunal. We do not see anything in his reasons that suggests that he contemplated taking such a step. It was not relevant to do so in that case. What the President did in that case was to say that all matters put before the decision-maker "as part of a claim under the Act" were also before the Tribunal when reviewing the decision made by the decision-maker on that claim. Identifying what was before the decision-maker was what the President described as "a practical problem".
25. The President did not go further to suggest that once the Tribunal had reviewed what was before the decision-maker, its decision and findings of fact could be binding on subsequent Tribunals. To do so would run counter to the authorities that support the conclusion that principles of res judicata or of issue estoppel cannot stand in the way of statutory provisions giving the Tribunal the power to review a decision. The same is true of the Anshun principles of estoppel. We adopt the reasoning that leads to this conclusion in Re Rana and Military Rehabilitation and Compensation Commission.[44]
26. Under the SRC Act, Parliament has conferred a right upon a person to seek review of a reviewable decision made in review of a determination made in respect of a claim made by the person. Each claim that is made leads to a different determination and a different reviewable decision. The Tribunal is given power to review each reviewable decision made under the SRC Act. Parliament has not circumscribed a person's right to seek review by reference to what the Tribunal has previously decided in earlier cases on earlier reviewable decisions. It has circumscribed a person's right to seek review of a reviewable decision of which review has previously been sought, undertaken and completed by the Tribunal. If the person were to seek that, the Tribunal's powers would have been exhausted by the earlier review and it would be said to be functus officio.
Consideration: the limits of the power to dismiss an application where a proceeding is frivolous or vexatious
27. We adopt the passage from Re Rana and Military Rehabilitation and Compensation Commission in which the principles underlying the power and the basis on which it should be exercised were considered. They are set out at [112] to [118] of the reasons.[45] We would, however, add a little to that passage.
28. We want to emphasise that the words "frivolous" and "vexatious" do not carry their ordinary everyday meanings under s 42B. In its everyday use, the word "frivolous" suggests "silly" and "trifling or unimportant"[46] but an applicant may well regard the matter as anything but silly or trifling or unimportant. The same is true of "vexatious". An applicant may see the application as anything but "annoying or troublesome"[47] and yet that is the way in which that word is used everyday.
29. As Gray J explained in Pitt v OneSteel Reinforcing Pty Limited,[48] the words have come to have other meanings when used in the law. He explained that, when a court hears a civil proceeding, "... the word 'frivolous', especially when coupled with 'vexatious', is a technical legal term, in substance meaning the absence of a cause of action."[49] In JF Keir Pty Limited v Sparks,[50] Graham J put it a little differently saying that "An action can be stayed as vexatious 'if it can really lead to no possible good'."[51]
30. In the context of an application in the Tribunal, we think that Gray J's statement must be slightly modified. It seems to us that use of the power in s 42B should only come into consideration if the application has been properly made. In other words, the Tribunal should only consider its use if the Tribunal has the power or jurisdiction to review the decision of which the applicant seeks review. To use the words of the courts, there is a "cause of action". If the Tribunal does not have power or jurisdiction to review the decision, it simply dismisses the application on that basis. There is no need to take the matter further and no basis on which to exercise the power under s 42B.
31. The reason for the difference lies in the fact that the Tribunal does not assess whether there is a cause of action between two parties based on their claims, counterclaims and defences as is the case in a court. Instead, the Tribunal assesses at the outset in every case whether it has power or jurisdiction to review the decision. It makes that assessment against constant and objective criteria that are found in s 25 of the AAT Act and the particular provisions in the enactment conferring that power or jurisdiction; in this case, s 64 of the SRC Act. Those criteria apply to all parties and, unlike a civil proceeding in a court, are not dependent upon the manner in which an applicant frames the application.
32. The distinction that we draw in the use of the powers of dismissal and of that under s 42B is illustrated in the judgment of Sundberg J in Director General Security v Sultan[52] (Sultan). Mr Sultan had applied for a protection visa but had been refused on the basis that, although he had a well-founded fear of persecution, he was a risk to Australia's national security. He applied to the Tribunal for review of the decision. Sundberg J decided that the Tribunal could review the decision in so far as it relied on one of the Articles of the Refugees Convention but could not review the decision in so far as it was based on Mr Sultan's failure to satisfy a public interest criterion. That public interest criterion was criterion 4002 to the effect that he had been assessed by competent Australian authorities to be, either directly or indirectly, a risk to Australian national security. His Honour remitted the application to the Tribunal with a direction that the application be dismissed under s 42B of the AAT Act as frivolous or vexatious.
33. What work does this leave s 42B to do? The answer to that lies partly in the explanation given above by Graham J. It will be stayed if it can really lead to no possible good. This was illustrated by the decision of Sultan and by the earlier decision of the Tribunal in Re Williams and Australian Electoral Commission and The Greens (party joined)[53] (Williams). The basis for the Tribunal's exercising the power was that Mr Williams would not be able to achieve the result he sought whether he were successful or not. Neither Mr Sultan nor Mr Williams could benefit from the review even if the Tribunal were to make findings and to exercise all of its powers in their favour. They were, however, applications made in good faith but without understanding the restrictions that the law imposed on the Tribunal's power to achieve the outcomes which Mr Sulan and Mr Williams sought.
34. The way in which the courts have used similar powers to dismiss applications also suggest that the power given to the Tribunal by s 42B of the AAT Act can be used in other situations. Those other ways were considered in Attorney-General (Vic) v Wentworth[54] (Wentworth) for example, when Roden J considered
s 84(1) of the Supreme Court Act 1970. That section gives the Supreme Court of New South Wales power to make certain orders when a person "habitually and persistently and without any reasonable ground institutes vexatious legal proceedings ..." whether in that Court or an inferior court and whether against the same person or different persons. This is a different basis from that underlying the power given in s 42B and yet there is one common element; that of "vexatious" proceedings. When viewing authorities regarding such proceedings, Roden J noted that "... the courts have tended to make ad hoc decisions, rather than produce definitive statements ....".[55] The reason for that lies in the fact that:
"... Precision in description or definition is hardly required, within the context of the Court acting in the exercise of its inherent jurisdiction to protect its own process from any form of abuse. It is more important that the conduct be recognised, than that it be defined."[56]
35. Recognition of the conduct comes not from "... the manner in which they are conducted ... but whether, having regard to their nature and the substance of them, they properly bear that description. ...".[57] Whether they have that description is an objective test. To this point, the principles set out by Roden J would seem to be directly applicable to the power given to the Tribunal under s 42B.
36. Roden J then concluded that litigation may properly be regarded as vexatious for present purposes on either subjective or objective grounds if:
"1. ... they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. ... they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. ... irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."[58]
37. It is doubtful whether any of these grounds is relevant in considering the discretionary matters that are relevant to the exercise of the power under s 42B of the AAT Act. That doubt arises from the fact that Parliament prescribes the circumstances and the decisions in respect of which an application for review may be made to the Tribunal. In that way, Parliament has already provided the filter for those applications that may be made to the Tribunal. There is no such filter in the courts for a person may institute a proceeding against another as he, she or it sees fit. In the Tribunal, there is no room to add a requirement to that filter that an applicant must have one motive or another or one purpose or another. To suggest that the Tribunal could dismiss an application under s 42B on either of the first two grounds would be to add such a requirement. That would cut across what Parliament has prescribed and so the first two grounds cannot be relevant in considering the exercise of the power under s 42B.
38. We have a cautious approach in relation to the third ground identified by Roden J in Wentworth. On the one hand, Parliament has given a person the right to make an application to the Tribunal. It has given that right regardless of whether or not that application has reasonable prospects of success. Dismissal of the application on the basis of an assessment of the prospects of the success of the application does not sit easily with a right to bring an application in the first place. Nevertheless, the power exists but we note that it is often the case that attempts to use the power under
s 42B can well lead to more prolonged proceedings and to greater dissatisfaction on the part of an applicant than if the matter were set down to be heard on its merits.
39. A hearing on the merits gives an applicant an opportunity to present a case. Even if the Tribunal affirms the decision under review, that opportunity and the Tribunal's reasons for doing so are more likely to leave an applicant feeling that he or she has done all that he or she could and, perhaps, with an understanding why the decision is as it is. Summary dismissal does not give an applicant an opportunity to present a case to the same extent. He or she is more likely to feel dissatisfied if the application is dismissed. That dissatisfaction can spill over and affect the ongoing relationship between the applicant and the decision-maker or agency. It may lead to complaints to the Ombudsman. It may lead to feelings that a person's point of view is not worthy enough to be listened to properly. From a decision-maker's or agency's point of view, what might appear to be a speedy resolution of a matter for the Tribunal may not be an efficient outcome in the long term. That will be even more disappointing if the application and evidence is such that a full merits review of the decision would have taken very little, if any, longer to hear and resolve than an application under s 42B.
40. Considerations of those sorts are not relevant when a court exercises a dismissal power of the sort given by s 42B for it is concerned only with the parties and the merits of the matter between them. It is not concerned with ongoing relationships. At one level, the Tribunal's concerns are the same but at another they are broader. Unlike the courts, the Tribunal falls squarely within the Executive arm of government. Its functions are one set of functions among those making up the continuum of administrative decision-making. A "good" experience at the Tribunal involving both an applicant and a decision-maker on the one hand and the Tribunal on the other can affect all aspects of that continuum even if the particular decision that results does not favour the applicant.
41. In Wentworth, Roden J referred to a judgment of Yeldham J in Hunters Hill Municipal Council v Pedler[59] when he considered a number of English authorities and concluded:
"... While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form."[60]
42. In deciding whether this is a ground that could be equally applicable to the exercise of the power under s 42B, we are mindful of what we have already emphasised: Parliament has given a person a right to apply to the Tribunal. That right to apply follows upon an agency's having made a decision and that decision will have followed from the person's making a claim or application of some sort. On occasion, Parliament has limited multiple claims or applications or established minimum amounts of time that must separate one claim or application submitted by a person from the next. The Veterans' Entitlements Act 1986 (VE Act) provides an example of the latter. Section 14(5) of the VE Act provides:
(a) a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and
the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease."
43. Generally, there are no such limitations upon claims and so upon the decisions that may be made. For the reasons given in Re Rana and Military Rehabilitation and Compensation Commission,[61] which we adopt, the principles of estoppel have no place in the Tribunal. That means that, provided the Tribunal is being asked to review a decision that it has not previously reviewed, it can review that decision even though it has reviewed a decision in precisely the same terms before and that decision has been made on a claim made in precisely the same terms as an earlier claim.
44. Estoppel does not have a place but it may be that s 42B of the AAT Act has a place for the reasons given by Yeldham J in Hunters Hill Municipal Council v Pedler. That is to say, it may be that the form of what is sought to be reviewed is a new decision but the substance of what is sought to be reviewed is the same outcome from a claim for the same benefit or entitlement in the same circumstances. If, in substance, what is sought to be reviewed is an attempt to re-litigate what has already been decided, there may be room for the exercise of the power conferred by s 42B of the AAT Act.
45. This basis for the exercise of a power to dismiss an application on the basis of its being frivolous or vexatious is different from that described by Gray J in Pitt v OneSteel Reinforcing Pty Limited in that an applicant has a "cause of action", so to speak, in the guise of a valid application to review a decision that the Tribunal can review. It is more closely aligned with the basis put forward by Graham J in JF Keir Pty Limited v Sparks. His Honour's basis was that the application "... can really lead to no possible good". True it is that a second or third Tribunal might come to a decision different from the first or the second. In that sense, it is possible that there will be a "good" outcome for an applicant but it seems to us that what possible "good" may come from an application must be assessed against considerations far broader than those pertaining merely to the applicant seeking review. They must be assessed against considerations relating to the scheme of merits review and the place that it occupies in the system of public administration operating in the Commonwealth.
46. When those wider considerations are taken into account, regard must be had to s 44(1) of the AAT Act, which provides for an appeal to the Federal Court from a decision of the Tribunal but only on a question of law. Section 39B of the Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977 permit a party to seek judicial review of the Tribunal's decision. All three of those avenues are means by which judicial scrutiny of the decision can be sought by either the applicant or the decision-maker. They are avenues that may be travelled by the parties themselves, and only the parties, just as they may in a civil proceeding in a court.
47. The Tribunal, however, is part of the Executive arm of government and must have in mind matters relevant not only to the parties themselves but to the wider interests of public administration. Those wider interests require the orderly resolution of matters and their finalisation. Re-agitation of the same issues arising from the same outcome from a claim for the same benefit or entitlement in the same circumstances diverts resources from the consideration of claims brought by others. It may lead to distortions in the consistency of decision-making in the sense that the second or third claims and ultimate review by the Tribunal would bring a result that would not have occurred at the time the first claim was made and cannot be replicated for others who have not persisted after the first.
48. Given these wider considerations, it seems to us that the power given by s 42B of the AAT Act may be exercised if we find that, in substance, the substance of what is sought to be reviewed is the same outcome from a claim for the same benefit or entitlement in the same circumstances. We emphasise that it may be exercised for the power under s 42B is discretionary. If it is to be exercised on this basis, it is imperative that the substance of the decision under review and the factual basis on which it was made are the same. New evidence would mean that they are not the same.
49. Finally, we pay heed to the note of caution sounded by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.):[62]
"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. ..."[63]
Consideration: can, and if so should, the Tribunal exercise the power under s 42B?
50. This is a question that was addressed in Re Rana and Military Rehabilitation and Compensation Commission when one of us concluded that the power under s 42B of the AAT Act should not be exercised. That really should be an end of the matter. The parties then proceeded to a full hearing of Mr Rana's application on the basis that the Tribunal would not dismiss his application under
s 42B of the AAT Act. To make a further application after the evidence has been presented seems to us to be too late in the proceedings. Whether in time, money or emotion, the parties have incurred all the expenses that they are going to incur in relation to the full hearing. Even if it transpires that the decision of which Mr Rana seeks review is, in substance, the same outcome from a claim for the same entitlement in the same circumstances, that will only become apparent from the evidence that has been led in the substantive hearing. It was not apparent from the evidence that was available preceding the hearing.
51. Considerations relating to public administration do not hold the same sway when the application comes so late in the proceedings. If they required diversion, the agency's resources have already been diverted from the resolution of claims made by others. The costs have already been incurred. As for consistency of outcome, considerations of resolution of the individual matter become more weighty at this late stage than a potential blip in consistency of outcome when regard is had to the overall pattern of the MRCC's decisions.
52. For these reasons, we decline to exercise the power to dismiss
Mr Rana's application and do so regardless of whether we consider it to be frivolous or vexatious in the sense in which we understand those terms to be used.
53. For the sake of completeness, we will, however, consider whether the decision of which Mr Rana seeks review is, in substance, the same outcome from a claim for the same entitlement in the same circumstances as he has made previously.
54. Mr Snell asks us to characterise the claim that was before the primary decision-maker in Re SAN and Comcare by reference to [1] and [3] of the Tribunal's reasons. In our view, only [1] describes the claim. Paragraph [3] refers to Mr Rana's letter to Comcare when applying for review of the primary decision-maker's decision. It does not reflect on the proper characterisation of the initial claim which was set out in [3] and confirmed in [5] when the Tribunal said:
"[1] ... On 28 August 2001, the applicant made a claim against the respondent for rehabilitation and compensation for 'psychotic paranoid reaction' resulting in a 'mental condition' attributed to 'emotional and physical harassment by the other defence force members at Adelaide, Kapooka and Bandiana' during his service with the Australian Army: T4, p 42. He subsequently asserted that that 'correct diagnosis' should have been 'post-traumatic stress disorder with features of paranoid pscizonphrenia (sic): T6.
[5] At a directions hearing on 2 July 2003, Deputy Presidents Forgie and Jarvis decided that this tribunal had jurisdiction to hear the application for review of the respondent's decision to refuse the applicant's claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder (PTSD) on the basis that the 1988 tribunal decision[[64]] did not determine the applicant's entitlement to compensation for these two conditions. ..."[65]
55. The claim was for psychotic paranoid reaction and for post traumatic stress disorder (PTSD) and the decision made by the Tribunal reflected the claim. It decided to set aside Comcare's decision that Mr Rana was not entitled to make the claim and substituted a decision that Mr Rana was not entitled to compensation under the SRC Act in respect of paranoid psychosis or PTSD.[66] As is apparent from the extract I have set out from the Tribunal's reasons, Mr Rana gave his condition other names. The Tribunal also reframed his claim for psychotic paranoid reaction into terms of paranoid psychosis. It did so on the basis of the evidence given by two psychiatrists that the reference to "paranoid psychotic reaction" described or embraced a condition identified as paranoid psychosis.[67]
56. Mr Rana's claim in the earlier proceedings, Re Mr R and Commonwealth of Australia was summarised by the Tribunal as a claim for "... a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment with the Australian Army."[68] The Tribunal's decision was framed in terms of personality disorder, adjustment disorder and reactive depression and found that Mr Rana's Army service had not caused his personality disorder but had aggravated his adjustment disorder and his reactive depression for a period.[69]
57. In both Re Mr R and Commonwealth of Australia and Re San and Comcare, Mr Rana relied on events he alleged had occurred during his service in the Australian Army. In the earlier of those cases, the Tribunal referred to his alleging that:
"... he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. ..."[70]
In the later of those cases, the Tribunal also noted that Mr Rana had relied on events related to alleged sexual and physical assaults, racial taunts, harassment and bullying, stressful working conditions and humiliation and frustration. They are detailed in the summary of Mr Rana's evidence at [91] to [100] of the Tribunal's decision.[71]
58. Mr Snell submitted that it is clear from the claims and the Tribunal's subsequent decisions on review that:
"It is now clear that in the previous proceedings the Applicant has already sought compensation for psychiatric conditions included amongst which was a condition answering the description of the term 'paranoid schizophrenia' as that term is now employed under DSMIV, (though not always then so described by either the claimant, the medical practitioners who gave evidence about it or by the Tribunal itself). ..."[72]
59. We were not given a copy of the passage from DSM-IV - the Diagnostic and Statistical Manual of Mental Disorders[73] - to which Mr Snell referred. Without wishing to reproduce extensive passages from DSM-IV, we note that a chapter is entitled "Schizophrenia and Other Psychotic Disorders". The disorders referred to in the chapter are all characterised by having psychotic symptoms as the defining feature. Those symptoms may be among those that lead to a diagnosis of schizophrenia but they could also be among those leading to a diagnosis of a Delusional Disorder. Other disorders that may present with features that are psychotic but not defining are dealt with elsewhere in DSM-IV.[74] Psychotic features may, for example, be a specifier in a major depressive disorder but such a disorder is the subject of the chapter entitled "Mood Disorders" and considered quite separately from schizophrenia. Adjustment disorders are the subject of a separate chapter by that name and, again, are considered quite separately from schizophrenia. A subtype is an adjustment disorder with depressed mood. Personality disorders are the subject of a separate chapter in DSM-IV and paranoid personality disorders come under that chapter.
60. The diagnosis of mental disorders is clearly a complex task. It is a matter on which the Tribunal must frequently make findings and come to decisions but it is an area in which it relies on expert evidence. In the absence of evidence specifically directed to the subject, we are not prepared to find that the conditions of adjustment disorder and reactive depression and paranoid psychosis and PTSD, for which Mr Rana has previously claimed compensation, are encompassed or the same as the condition of schizophrenia or one of the subtypes of schizophrenia described in DSM-IV.
61. It follows that, even though the claim may arise from the same circumstances, we do not consider that we are being asked to review a decision where the Tribunal has previously reviewed a decision having the same outcome and made on a claim for the same benefit or entitlement. Therefore, we do not consider that there is any basis on which we would consider it appropriate to exercise the power under s 42B. Mr Rana's application in this matter is not frivolous or vexatious.
62. In Re Rana and Military Rehabilitation and Compensation Commission,[75] Deputy President Forgie decided that the SRC Act applied rather than the Military Rehabilitation and Compensation Act 2004. Subject to exceptions that are not relevant in this case, s 14(1) of the SRC Act provides:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
63. Until its amendment with effect from 13 April 2007, s 4(1) defined an "injury" to mean:
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employees' employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."[76]
64. Over the years, the SRC Act has been amended. Mr Rana drew our attention to the addition of s 5B, defining the word "disease" and the consequential amendment of s 4(1) of the SRC Act to include a provision that the word "disease has the meaning given by section 5B." Section 5B and the consequential amendments were added with effect from 13 April 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Amendment Act).[77]
65. Mr Snell submitted that the amendments were not relevant as the conditions for which Mr Rana seeks compensation predated them. Mr Rana's position was that the relevant date to which I must have regard is the date of diagnosis. He acknowledged, though, that those diagnoses had been made in 2005.
66. We think that the answer lies in the 2007 Amendment Act itself. The transitional provisions are found in item 41 of Part 2 of Schedule 1 to the 2007 Amendment Act. Item 41(1) provides that the definition of "disease" in the SRC Act as amended:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that the employee suffers on or after the day after this Act receives the Royal Assent."
For the purposes of that subitem, "an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988,"[78] Section 7(4) of the SRC Act provides:
"For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
67. The effect of s 7(4) is that the crucial dates in determining whether the SRC Act in its amended or unamended form applies depends not on the date of diagnosis but on the earlier of the dates on which Mr Rana either sought treatment for them or on which he was first incapacitated or impaired as a result of them. Given that the conditions were diagnosed during or before 2005, Mr Rana clearly sought treatment for them or was incapacitated or impaired as a result of them before the 2007 Amendment Act came into operation. Therefore, we have had regard to the law as it existed before the amendments came into operation.
STATEMENTS OF PRINCIPLE UNDER VETERANS' ENTITLEMENTS ACT 1986 NOT RELEVANT
68. Mr Rana submitted that the Statements of Principle (SoPs) made by the Repatriation Medical Authority (RMA) under the VE Act are a useful guide. We have decided that we cannot have any regard to the SoPs in these proceedings.
69. The RMA was established to determine SoPs for the purposes of the VE Act and the MRC Act.[79] If the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to one or more of four types of service rendered by a veteran or by members of the Forces, the Authority must determine a SoP in respect of that kind of injury, disease or death. The four types of service are operational service, peacekeeping service rendered as a member of a Peacekeeping Force, hazardous service rendered by members of the Forces and warlike or non-warlike service.[80] Each of those types of service is defined in the VE Act. The SoP sets out the factors that must, as a minimum exist and which of those factors must be related to service rendered by a person before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of their service.[81]
70. It is immediately apparent from the description that, quite apart from whether Mr Rana has rendered one or other of the specified types of service, there are three reasons why SoPs cannot apply. First, they may only be used for purposes under the VE Act and the MRC Act. Second, even if they were not so limited, they address a question that is different from the one that we must answer. Taking the VE Act as an example, SoPs are one element in the standard of proof prescribed by s 120 of that enactment. Where a claim for a pension in respect of incapacity from an injury or a disease relating to operational service rendered by a veteran is made, the Commission, and so the Tribunal, is required to decide that the injury or disease was a war-caused injury or disease "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."[82] The Commission must be satisfied on that basis if, after consideration of the whole of the material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[83] Reasonableness of the hypothesis must be assessed by reference to SoPs in accordance with s 120A.
71. The third reason lies in the very different standards of proof that apply when making decisions under the SRC Act and those under the VE Act when regard must be had to the SoPs. Under the VE Act, the standard of proof, and so the questions that must be asked as a consequence, is very different from the question we must address under the SRC Act. Like the VE Act, the SRC Act provides for determinations and decisions to be made under it in response to claims made for benefits or entitlements provided under it. Unlike the VE Act, the SRC Act does not expressly provide for the standard by which Comcare and the MRCC must decide whether or not the person making the claim meets all of the criteria that must be met in order to receive those benefits or entitlements. The SRC Act does not tell the Tribunal what standard it must use although the AAT Act does tell it that it is not bound by the rules of evidence and may inform itself on any matter as it thinks fit.[84] Giving the Tribunal that liberty does not provide any guidance as to the standard it must apply.
72. Guidance for both the Tribunal and the primary decision-makers comes from the general law. Goldberg J has said that it is appropriate in such cases for the decision-maker "... to apply language akin to the civil standard of proof to determine its level of satisfaction."[85] Language of that sort is the language of "balance of probabilities".[86] When certain allegations are made, that language must be understood in light of the principles considered in cases such as Briginshaw v Briginshaw[87] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[88] but this is not such a case.
73. We will return to the civil standard of proof but, for the moment, it is enough to note that it is a different standard from that adopted in relation to specified circumstances under the VE Act. The standard of proof under the VE Act limits the matters to which the Tribunal can have regard in reaching a decision on a certain aspect. That under the SRC Act does not. Instead, the Tribunal may inform itself as it thinks fit but its liberty to do so is necessarily qualified by the requirement that it rely only on material that is probative of a matter in issue. The SoPs have been drafted in order to comply with the VE Act but, if presented as evidence in the Tribunal, they would not be regarded as probative in proceedings under the SRC Act. That would follow from the fact that the factors they set out are, in reality, no more than bare assertions resting on the authority of the RMA. No doubt the RMA has made the SoPs after careful consideration of medical and scientific evidence but the basis on which they are made cannot be tested by cross-examination by the parties or questioning by the Tribunal. They do not provide material on which the Tribunal can be satisfied of the fundamental soundness of the criteria they establish. The principles referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles[89] in the context of a trial in a court apply equally to the Tribunal.[90]
74. For these three reasons, SoPs can have no place in proceedings under the SRC Act as it is presently drafted and we declined to have regard to them at the hearing.
75. On the first day of the hearing, Mr Rana wanted to tender a report by the Military Police regarding its investigation of certain allegations he had made regarding incidents that had occurred during his service in the Army. He submitted that it was relevant to the issues we have to decide. Ms Bean, who was then the MRCC's counsel, opposed its being admitted into evidence in light of the directions that had been made on an earlier occasion.
76. Those directions had been made in Re Rana and Military Rehabilitation and Compensation Commission when Deputy President Forgie decided that the Tribunal should have regard to the findings of fact set out by earlier Tribunals presided over by Deputy Presidents Layton and Jarvis respectively. She would not permit Mr Rana to challenge the findings that those Tribunals had made regarding the circumstances of his service in the Army. She would not permit him to challenge the findings they had made regarding the compensability of the conditions for which he had previously been denied compensation and on the basis of which they had affirmed the reviewable decisions before them. Any evidence that was to be given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions now claimed by Mr Rana. On those issues, she directed that:
(2) under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a) inform itself as to the circumstances of and events arising during the applicant's employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re "SAN" and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b) not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
(1) by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2) by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
77. Deputy President Jarvis subsequently made a direction varying this direction. It appears on the file and is dated 22 August 2008. In so far as it relates to these proceedings, reads:
(a) requires the hearing of these proceedings to proceed other than on the basis of the decision of this Tribunal in paragraph 1(2)(a) of the decision of Deputy President Forgie made on 1 July 2008; or
the applicant must, within 14 days of the receipt of a further medical report proposed to be obtained from Dr Jha, apply for further directions;
78. Although the discussion at the hearing proceeded on the basis that Mr Rana had 14 days from the date of Deputy President Jarvis's direction, it is clear from his direction that he had 14 days from the date on which Dr Bal Jha's further report was obtained. Dr Jha's further report is dated 8 September 2008 and was received in the Tribunal on 9 September 2008. Although there is no note on the file, it appears that copies of the report, addressed to the Tribunal, were sent to Mr Rana and the MRCC's solicitors at or about that time. On 15 September 2008, the Deputy District Registrar was dealing with summonsed documents and the scheduling of witnesses whom it is noted the Tribunal had agreed to fund. He wrote an email to the MRCC's solicitors to the effect that he had, on that day, spoken with Mr Rana "... who has agreed that he now only intends to call Dr Jha and Dr Miller and he will not pursue his other witnesses as previously requested. ...".
79. Clearly, Mr Rana was thinking of his matter at this time but there is no mention of any matter relating to the circumstances and events occurring during his employment with the Army. There is no mention in the file of his raising those circumstances or of his wishing to take up Deputy President Jarvis's invitation.
80. Despite that, we considered whether we should permit Mr Rana to rely on the report of the Military Police. We have done so for two reasons. First, directions made under s 33(1) of the AAT Act can clearly be varied or revoked at any time by virtue of s 33(3). Second, the invitation that Deputy President Jarvis extended to Mr Rana to apply to the Tribunal for further directions might have unwittingly misled him. Although setting a time frame within which to do so, the invitation was framed in terms of if Mr Rana "requires the hearing of these proceedings to proceed other than on the basis of the decision of this Tribunal in paragraph 1(2)(a) of the decision of Deputy President Forgie made on 1 July 2008". The word "requires" might suggest to a reader that Mr Rana is the arbiter of the way in which the Tribunal may proceed because it will have regard to what he "requires". We are sure that Deputy President Jarvis did not intend to convey that suggestion but it is unfortunate for it is clear to us that Mr Rana feels that we are denying his right to lead all material that he considers relevant.
81. We are certainly denying him an opportunity to present all material that he considers relevant but we are not denying his "right" to do so. He has no right of the sort he describes. That he does not do so is clear from that fact we do not have a duty to receive all of the material that he considers relevant. Our duty lies in the AAT Act and the SRC Act and in the nature of the task that those enactments require us to perform. His right, correlative to our duty, is that we perform the task that we are required to do under the AAT Act and the SRC Act.
82. In considering what our task is, we have had regard to Mr Rana's reference to the observations of Lord Diplock in Hunter v Chief Constable of West Midlands.[91] Lord Diplock's speech was based on the proposition that there is a "... general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiff by criminal courts of competent jurisdiction should be treated as an abuse of the process of the court."[92] His Lordship said that the test for permitting the admission of fresh evidence to challenge that general rule had to be either that the fresh evidence would entirely change the aspect of the case or that it would probably have an important influence on the result of the case even though it need not be decisive.[93]
83. From his submissions, especially at 12 and 35-37, we understand
Mr Rana to say that the standard prescribed by Lord Diplock was too high and that we should have regard instead to the standard established by the High Court in Commonwealth Bank of Australia v Quade.[94] The High Court was concerned not with a case of civil proceedings attempting to attack a verdict previously reached in a criminal trial but with an appeal from a judgment reached in a civil proceeding. Following the trial, it came to light that the respondent Bank had not complied with a pre-trial discovery order in that it had not disclosed a considerable number of documents which were in its possession and which were relevant to the trial. The High Court said that:
"... In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, ... reconciliation of 'the demands of justice' and the 'policy' that there should be an end to litigation at least prima facie ... dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.
The position is, however, different in a case such as the present where the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his possession or under his control. The application to that category of case of the general rule that a new trial should only be ordered on the ground of fresh evidence if it is 'almost certain' ...or 'reasonably clear' ... that the opposite result would have been produced if the evidence had been available at the first trial would, particularly where the failure was deliberate or remains unexplained, serve neither the demands of justice in the individual case nor the public interest in the administration of justice generally. In so far as the demands of justice in the individual case are concerned, it would cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party's misconduct. In so far as the public interest in the administration of justice generally is concerned, it would be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalize, failure to comply with pre-trial orders and procedural requirements.
It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice' .... In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party ..., any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so."[95]
84. The principles in these cases are not directly apposite in this case in that we are neither considering the matter as an appellate court considering evidence that has not previously been tendered nor considering whether these proceedings are an abuse of our processes in the sense that the proceedings should be seen as an attempt to re-litigate a matter already decided. The cases are relevant, though, to the extent that they focus our attention on two matters, the demands of justice in the individual case and the public interest in the administration of justice generally. Those matters are equally relevant in the Tribunal but, just as their expression may differ in the courts from circumstance to circumstance and case to case, so too may it find a different expression in the Tribunal. Its precise expression in any particular case depends on the Tribunal's duty in performing the particular task in hand.
85. The task we are required to carry out is that of reviewing, on its merits, a reviewable decision made by the MRCC or its predecessor under the SRC Act on a claim for compensation made by Mr Rana. That task is not undertaken by reviewing the decision only on the basis of the evidence that the parties choose to give it and considering only the submissions or arguments that the parties make to it. That is the role of a court engaged in an adversarial process in a civil proceeding. The Tribunal's task is to review the decision on the basis of the evidence and material that is relevant. It must begin with the material that is produced by the decision-maker under s 37 of the AAT Act and with the material produced subsequently by both the applicant and the decision-maker. That evidence and material may lead the Tribunal to find other avenues of enquiry that it may require or invite the parties to pursue. It is only on very rare occasions that the Tribunal's budgetary considerations lead it to incur cost itself in pursuing avenues of enquiry. Analysis of what is produced costs nothing that is not already incorporated in its on-going costs and nor does consideration of legal issues whether or not they have been raised by the parties. At the end of the process, the Tribunal must reach the correct or preferable decision.[96]
86. The process that is followed must have regard to the Tribunal's obligation to give every party to a proceeding a reasonable opportunity to present a case and to inspect any documents to which the Tribunal proposes to have regard in reaching a decision as well as to make submissions.[97] This obligation is in addition to its obligation under the general law to ensure that it accords natural justice. This is a notion that has tended to be subsumed in the concept of procedural fairness[98] but it remains a separate entity. In Minister for Immigration and Ethnic Affairs v Pochi,[99] Deane J accepted the principles made clear by Willmer LJ and Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore[100] that the Deputy Industrial Injuries Commissioner:
"... was not, on the hearing of the appeal, bound by the rules of evidence or procedure applicable in a court. He was free to obtain information from any source available to him. He was however bound to observe the principles of natural justice. Each of Willmer LJ and Diplock LJ made clear, in the course of his judgment, that he was of the view that the principles of natural justice operated not only in respect of the procedure adopted by the tribunal but also in respect of the material upon which a decision was based. ..."[101]
"... There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness. I respectfully agree with the conclusion of Diplock LJ that it is an ordinary requirement of natural justice that a person bound to act judicially ' base his decision' upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements of natural justice may vary according to the nature of the inquiry ... and that conclusion may not be of universal validity in that it may not, for example, apply in respect of some domestic forums. It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it ... Implicit both in Diplock LJ's conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it ...
Examination of the provisions of the Administrative Appeals Tribunal Act 1975 discloses nothing which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that it was the legislative intent that the Tribunal should, in a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material. To the contrary, s 43(2) of the Act which requires the Tribunal to give its reasons in writing expressly provides that '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'. ..."[102]
88. As Deane J said, the requirements of the rules of natural justice may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it. So too may be those of procedural fairness however described. That raises for consideration ss 2A, 25(4A) and 33(1)(b) of the AAT Act.
"In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."
The objective stated in s 2A is complemented by s 33(1)(b) of the AAT Act which provides that:
(a) ...
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit;
90. An analysis of s 2A is often linked with a consideration of cases such as Aon Risk Services Australia Limited v Australian National University[103] (Aon) and Haset Sali v SPC Ltd[104] (Haset Sali). Those cases are focused on the extent to which a court, in considering an application for such things as an adjournment, an extension of time to comply with certain directions or permission to amend pleadings, must have regard to the effect such adjournments, extensions and amendments on a court's overall system of case management.
" In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried."[105]
92. His Honour's view mirrored that expressed in the joint judgment of Brennan, Deane and McHugh JJ in Haset Sali when they said:
"11. In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ... [(1979) [1979] FCA 48; 27 ALR 330, at p.337] this 'may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing'. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."[106]
" The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales ... The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application."[107]
93. French CJ approved both passages in Aon.[108] He continued:
" The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn ..."[109]
94. It is clear from the judgments and from the context in which the High Court considered the relevance of case management in Aon that case management is not a deciding factor. It is, instead, a relevant factor and the weight it is accorded can only be determined when regard is had to all of the factors that are relevant. In Aon, the factors that the High Court had to consider included those in Rule 21 of the Court Procedure Rules (ACT). That Rule provides:
"(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.
(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving -
(a) the just resolution of the real issues in the proceedings; and
(b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(3) The parties to a civil proceeding must help the court to achieve the objectives.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court."
95. In their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ weighed the objectives identified in Rule 21 when they said:
"97. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings[[110]] in mind. ... The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
98. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith [[1884] 26 Ch D 700] Bowen LJ described an order for costs as a panacea that heals all .... Such a view may largely explain the decision of this Court in Shannon v Lee Chun ...[(1912) [1912] HCA 52; 15 CLR 257 at 262-266; [1912] HCA 52], which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment .... In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
102. The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment."[111]
96. It is clear from this passage that their Honours saw a just resolution of proceedings as the paramount purpose of Rule 21. That is so even though Rule 21 gives no higher emphasis on its face to the "the just resolution of the real issues" than it does to the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. Section 2A of the AAT Act is in the same form. It gives no higher emphasis to the mechanism of review's being fair and just than it does to its being economical, informal and quick.
97. How does the High Court's analysis fit with the earlier views expressed by the High Court in relation to provisions such as s 2A of the AAT Act? It expressed them in relation to s 420 of the Migration Act 1958. That section is very similar to an amalgamation of ss 2A and 33(1)(b) and (c) of the AAT Act in providing that:
"(1) The [Refugee Review] Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."
98. In Minister for Immigration and Multicultural Affairs v Eshetu[112] (Eshetu) the High Court said of s 420:
"... The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins[[113]]. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."[114]
99. We think that Eshetu and Aon can be reconciled in that what the former expresses as exhortatory, the latter expresses as a requirement to pursue. A requirement to pursue is not an obligation to achieve the outcome stated in s 2A. It is only an obligation to put effort into achieving it. Exhortation, which is the expression of the obligation favoured in Eshetu, is strong encouragement or advice to achieve that outcome. In substance, there is no difference between them.
100. Having regard, then, to the exhortation and applying the analysis in Aon to s 2A leads to the conclusion that the provision requires the Tribunal to pursue the objective of providing a mechanism of review that has fairness and justice as its paramount purposes. Economy, informality and speed must be pursued but not at the expense of fairness and justice.
101. It is also clear from Aon that fairness and justice do not take single forms. They are to be understood in, and to take their form from, what is required to reach a fair and just resolution of the "real issues" in the proceeding and what is required for the timely disposal of the proceedings and of all others. Those objectives are not to be attained at the expense of giving the parties the proper opportunity to present their case. What amounts to a proper opportunity is determined by reference to, among other relevant matters, the speedy and efficient disposition of the matter but, as s 33(1)(b) makes clear, there may only be as much speed and efficiency as is permitted by the requirements of the AAT Act and of every other relevant enactment and by a proper consideration of the matters before the Tribunal.
102. Other relevant factors include the Tribunal's functions and its duties. We have referred earlier to those functions and to the Tribunal's duties to act with procedural fairness and to reach the correct or preferable decision. Is the place of the Tribunal and of its decisions in the overall system of public administration another relevant consideration? Its decisions are one part only of the administrative decision-making process when Parliament has conferred power upon it to review the merits of a particular decision or class of decisions. This was explained by Davies J in Jebb v Repatriation Commission[115] when he said that "... the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as part of that continuum ...".[116]
103. Public administration has many facets. In the development of policy, it could be said that the books are never closed. Policy development requires constant tending whether it is nurturing it from its rudimentary beginnings, testing and expanding it, exposing it to the criticism of those who have no hand in its development, discussing and negotiating with those who do, implementing it or overseeing its operation and reviewing it. Some policy is implemented in the form of enactments under which the Tribunal is given power to review decisions. These enactments begin as Bills introduced into Parliament. Parliament itself has a hand in shaping the policy if it amends the Bill presented to it.
104. The confines of decision-making are different from those of policy-making. They are the confines that have been developed in the process of policy-making and require decisions to be made within them and according to them. In the case of the compensation jurisdiction, the SRC Act represents the outcome of a process of policy consideration. What Comcare and MRCC do is to determine claims for entitlement according to it. The SRC Act and the policy underpinning it intend that their decisions will be consistent with the enactment and so consistent with each other and determinative of the claims. Unlike the fluidity that may attend the process of policy-making, decision-making is intended to be an orderly and consistent process of finalisation unattended by fluidity and uncertainty.
105. Orderly and consistent public administration does not necessarily require that a particular matter never be revisited. We have already referred to s 14(5) of the VE Act which contemplates that a veteran may make more than one claim for the same condition arising from the same circumstances. The review processes regarding decisions made under the VE Act and the Social Security Act 1991, for example, contemplate that decisions will be made more quickly and on more restricted information at the primary level but that the issues will be revisited and further material sought should the decisions be reviewed either internally or by an external tribunal including this Tribunal.
106. Within certain boundaries, a matter may also be revisited through the appeal process provided by Parliament under s 44 of the AAT Act and the judicial review process under the Administrative Decisions (Judicial Review) Act 1977 and under s 39B of the Judiciary Act 1903.
107. All of these decisions, from those of the primary decision-maker to the judgment of a court are part of a continuum of decision-making in relation to a particular claim. Those made by the various levels of administrative decision-makers must be correct according to the law and on the evidence and, if a discretion must be exercised, the preferable option must be selected. If asked, the task of a court is to pass judgment on the correctness of the Tribunal's decision in law.
108. Having regard to all of these processes, it would seem that the decision-making process is intended to provide an applicant with the opportunity to present all relevant evidence and material on a claim to the decision-maker and for both to have that opportunity on review of the decision that is made. It would seem that it is intended that, as a rule, the issues arising out of the claim will be brought to a conclusion. This leads to an orderly disposition of all persons' claims. It also leads to a fair distribution of the effort required to consider those claims according to the issues they raise. Resources are not diverted to a consideration of issues that have already been considered and decided upon.
109. Furthermore, as was said in relation to adherence to the requirements of natural justice in the administrative decision-making process - and we would add of procedural fairness - the whole package of administrative decision-making:
"... will ultimately promote administrative efficiency because of the greater public satisfaction and the fewer grievances that will result from the higher quality of decision-making thereby produced."[117]
110. That brings us to s 25(4A), which provides:
"The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers."
The Federal Court has found that this enables the Tribunal to defer consideration of an issue in a case until another has been heard and determined as a preliminary issue.[118] The provision has been referred to in passing in cases such as Shi v Migration Agents Registration Authority[119] but there has been no consideration of its scope.
111. The Tribunal has previously relied on s 25(4A) of the AAT Act in cases such as Re Slater and Telstra Corporation Limited[120] in which Senior Member McCabe declined to revisit what were, he found, to be in essence the same issues as those determined in previous proceedings reviewing decisions made by the decision-maker regarding claims for compensation made by Mr Slater. He limited the scope of the proceedings before him to new evidence and changes in circumstances. Another occasion on which the Tribunal has relied on the power in s 25(4A) is found in Re O'Neill and Child Support Registrar.[121] Senior Member Bean considered whether she was able to look behind certain findings and decisions that had been made by courts and by another Tribunal. Deciding that her powers to do so were limited, she relied on s 25(4A) to frame directions that limited the evidence to that on which she could make a decision.
112. The power given to the Tribunal under s 25(4A) does not detract from the Tribunal's duty to accord procedural fairness, whether under s 39 of the AAT Act or the general law, or to accord natural justice to the parties.
113. Applying these principles to the question of whether we should allow Mr Rana to rely on the Military Police Report; we do not think that we should. The Military Police Report was admitted in evidence and considered extensively in Re SAN and Comcare. The Tribunal took it into consideration together with the evidence of Mr Rana and a number of witnesses in making its findings of fact regarding Mr Rana's allegations that he had been sexually assaulted during his service in the Army. Given that we are not revisiting the findings of fact made on such matters by the Tribunal in Re SAN and Comcare, as well as those in Re Mr R and Commonwealth of Australia, to admit the Military Police Report in evidence would serve no worthwhile purpose. We are not revisiting the circumstances of Mr Rana's employment in the Army for the reasons we have given above and those which were given in Re Rana and Military Rehabilitation and Compensation Commission.
THE RELEVANT LEGISLATIVE PROVISIONS OF THE SRC ACT
114. We have already set out the relevant provisions at [62]-[63] above. In this section of our reasons, we refer to the authorities to which we must have regard in deciding whether Mr Rana has suffered an "injury" and, in particular, a "disease" as it is defined in s 4(1). It is apparent from the definition of "disease" that it has three aspects. One is that Mr Rana is suffering an ailment or an aggravation of his ailment, and so a disease. The second is that the ailment, or its aggravation, must have been "contributed to" by his employment. The third is that it must have been contributed to "in a material degree" by his employment. All those aspects must be decided in Mr Rana's favour before we are required to turn to whether either of the diseases, and so injuries, for which he claims compensation "results in" incapacity for work or impairment.
115. We have already referred to the standard of proof, which is the civil standard.[122] That is the standard relied upon by the courts in determining a causal relationship in cases before them.[123] The civil standard entails a balance of probabilities test so requiring "... a court to reach a level of actual persuasion".[124]
116. In applying that standard, the general law draws a distinction between probabilities and possibilities. As Dixon CJ said in Jones v Dunkel:[125]
"... the law ... does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."[126]
"... One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provide a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."[127]
117. There are cases in which the evidence is clear and direct. It points clearly and directly either to the existence, or absence, of a causal relationship between an act or omission and a specific injury or disease. The absence of such evidence does not mean that a court cannot determine causation. As Spigelman CJ said in Seltsam Pty Limited v McGuiness:
" In circumstances where the aetiology of a disease is uncertain, or subject to
significant scientific dispute, the courts are not thereby disenabled from making decisions as to causation on the balance of probabilities. As Herron CJ said in EMI (Australia) Ltd v BES [1970] 2 NSWR 238 at 242:
'Medical science may say in individual cases that there is no possible
connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.'"[128]
118. The Court of Appeal in Seltsam Pty Limited v McGuiness was concerned with epidemiological studies but the observations regarding that evidence are equally applicable to all circumstantial evidence:
" The Courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form 'strands in a cable' of a circumstantial case."[129]
119. In Comcare v Mooi[132] (Mooi), Drummond J reviewed the meaning of the word "disease" as defined in the SRC Act and concluded that:
"Only conditions involving a disturbance of the normal functions of body or mind are within the term 'disease', as defined, and thus 'injuries' for the purposes of s 14(1) of the Act."[133]
120. Earlier in his judgment in Mooi, Drummond J had said:
"... But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to 'injuries' compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under
"... the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee's capacity to work is not more compensable than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness."[135]
121. The definition of "disease" requires that the ailment or its aggravation have been "contributed to" in a material degree by the relevant employment. As Windeyer J explained in Federal Broom Co Pty Ltd v Semlitch[136] (Federal Broom) in the context of a similar requirement in the Workers' Compensation Act 1926 (NSW):
"... This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which the work was performed. ..."[137]
122. The event or occurrence that is the contributing factor does not require the further characteristic that it is an event or occurrence that is out of the ordinary or not part of the person's normal work or of the conditions in which it is normally performed. Federal Broom provides an example. Ms Semlitch had a history of functional mental illness predisposing her to delusions. She lifted a tea chest in the course of her work and suffered a minor physical strain. As a result of her mental illness, she magnified that physical strain into a serious and continuing derangement of her internal organs. Windeyer J said:
"... Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated of stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so."[138]
123. Whether there has been a contribution at all is one thing but the degree of contribution must be a "material degree" and that is another. The distinction is illustrated by the High Court's judgment in Amaca Pty Ltd and Ors v Ellis as Executor of the Estate of Paul Steven Cotton (dec) and Ors[139] (Amaca). Mr Cotton had been a smoker of between 15 and 20 cigarettes a day for 26 years before he died of lung cancer. The Court accepted that smoking can cause lung cancer. Mr Cotton had also been exposed to respirable asbestos fibres for approximately 15 years while working for two separate employers. Both were among those sued. The Court accepted that breathing in asbestos fibres can also cause lung cancer. Mr Cotton's lung cancer was not of a sort that is peculiarly associated with asbestos fibres. In summary:
"... The evidence at trial showed that most sufferers of lung cancer have smoked, some have been exposed to asbestos, some have smoked and been exposed to asbestos, and some have neither smoked nor been exposed to asbestos. The evidence also showed that not everyone who smokes, not everyone who has been exposed to asbestos, and not everyone who has smoked and been exposed to asbestos, will develop lung cancer."[140]
124. The task of medical practitioners and of scientists differs from that of a court:
" When, as here, medical and scientific examination cannot say whether exposure to respirable asbestos fibres was a cause of Mr Cotton's cancer, the medical practitioner and scientist have little choice but, as one witness said at trial, to 'take it into consideration in looking at what might have caused his lung cancer'. In their inquiries, the uncertainty about cause means that they cannot 'exclude it from the end result'.
The courts' response to uncertainty arising from the absence of knowledge must be different from that of the medical practitioner or scientist. The courts cannot respond to a claim that is made by saying that, because science and medicine are not now able to say what caused Mr Cotton's cancer, the claim is neither allowed nor rejected. The courts must decide the claim and either dismiss it or hold the defendant responsible in damages. As Dixon J rightly said[[141]], albeit in a context very different from this:
'There are few, if any, questions of fact that courts cannot undertake to inquire into. In fact it may be said that under the maxim res iudicata pro veritate accipitur [a thing adjudicated is received as the truth] courts have an advantage over other seekers after truth. For by their judgment they can reduce to legal certainty questions to which no other conclusive answer can be given.' (emphasis added)
The plaintiff recognised that the courts were asked in this case to reduce to legal certainty a question of causation to which no other conclusive answer can be given."[142]
125. The reason for the difference between the two approaches was explained by the Mason CJ in the earlier case of March v Stramare (E&MH) Pty Ltd[143] (March):
" It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because 'questions of cause and consequence are not the same for law as for philosophy and science', as Windeyer J. pointed out in The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell (1932) 147 LT 262, per Lord Wright at p 264; Sherman v. Nymboida Collieries Pty. Ltd. [1963] HCA 63; (1963) 109 CLR 580, per Windeyer J. at pp 590-591."[144]
126. In Amaca, the High Court said that the first question to be asked was" "... is it more probable than not that the negligence of the defendant was a cause of Mr Cotton's cancer?"[145] On the evidence, which included epidemiological studies, the High Court decided that:
" It was not shown to be more probable than not that asbestos was a cause of (a necessary condition for) his cancer. It was not shown that exposure to asbestos made a material contribution to his cancer. Material contribution was not shown because a connection between Mr Cotton's inhaling asbestos and his developing cancer was not demonstrated."[146]
127. Once it was decided that there was no connection between Mr Cotton's exposure to asbestos and his cancer, questions of materiality became irrelevant. The issue in Amaca was:
"... whether one substance that can cause injury did cause injury. Or, to adopt and adapt what Starke J said in Adelaide Stevedoring Co Ltd v Forst[147], was Mr Cotton's cancer 'intimately connected with and contributed to' by his exposure to asbestos? Questions of material contribution arise only if a connection between Mr Cotton's inhaling asbestos and his developing cancer was established. Knowing that inhaling asbestos can cause cancer does not entail that in this case it probably did. ... [T]hat inference was not to be drawn in this case. Questions of what is a material contribution do not arise."[148]
General principles: a contribution to a material degree
128. The divergence between the approach taken by science and medicine as well as philosophy has diminished with the growth of the courts' powers to apportion responsibility but it is not possible to remove the divergence altogether for "... legal questions of causation are asked and answered with a view to allocating legal responsibility, very often on the basis of fault ...".[149]
129. Fault is not the basis on which liability is imposed under the SRC Act for a disease. The basis is that of material contribution. That basis for liability will be founded if the disease was "contributed to in a material degree by the employee's employment".
130. Under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act), where "... an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and ... any employment of the employee by the Commonwealth was a contributing factor to the contraction ... or to the aggravation, acceleration or recurrence ...." the Commonwealth's liablity to pay compensation was determined in accordance with the 1971 Act.[150] No reference was made to a "material contribution" by the employment to the contraction, aggravation, acceleration or recurrence of the disease. In Treloar v Australian Telecommunications Commission[151] (Treloar), the Full Court of the Federal Court noted that the word "material" did not appear to qualify the expression "contributing factor". In working out what the expression signified, the Full Court derived considerable support from the judgments of the High Court in Federal Broom Company Pty Limited v Semlitch.[152]
131. The High Court had considered s 6(1) of the Workers' Compensation Act 1926-1960 (NSW) which also adopted a "contributing factor" as the causal connection between employment and an injury. Kitto J said:
"Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition."[153]
"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."[154]
"21. In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a 'contribution'. Consistently with what was said by Windeyer J 'contribution' does not require that the contributing factor be a causa sine qua non: the 'but for' test is not appropriate nor is the causa causans or 'real effective cause' or 'proximate cause' formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not 'contribute'.
The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that this section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, IT matters not that the contribution be large or small.[155]
133. The Full Court did not need to consider the meaning of the word "material" as it does not appear in s 29 of the 1971 Act. Therefore its consideration of the word was obiter dicta and not binding on a single Judge of the Federal Court. It was persuasive, though and, in Wiegand v Comcare Australia[156] (Wiegand), von Doussa J was persuaded and applied Treloar[157] in considering the meaning of the expression "contributed to in a material degree" as it appears in the SRC Act. The approach in Treloar did not, however, persuade a differently constituted Full Court of the Federal Court when it heard Comcare v Canute.[158] The majority considered the legislative history of the SRC Act in detail:
"...[T]he observations of the Full Court in Treloar at FCR 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a 'but for' test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be 'more than a mere contributing factor' and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word 'material' contained in the definition of 'disease' in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of 'material' and nothing more need to [sic] said about this issue."[159]
134. Finn J has also considered Treloar and the meaning of "material contribution" in Comcare v Sahu-Khan.[160] He did not mention the Full Court's judgment in Wiegand but agreed with the Full Court's conclusion in Canute that the inclusion of the word "material" imposes an evaluative threshold below which a causal connection may be disregarded.[161] His Honour was not persuaded by the reasoning of the Full Court in Treloar that, once employment was found to be a contributing factor, it did not matter whether the contribution was of any particular size or degree. Finn J concluded:
" Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) 'in a material degree' requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ('the threshold evaluation');
(iii) whether this will be so in a given case will be a matter of fact and degree."[162]
135. Earlier in his judgment, Finn J had ventured into other words that "... probably captures the essence of what the legislature was conveying."[163] That meaning is drawn from the Shorter Oxford English Dictionary and is:
"4. In a material degree; substantially, considerably."[164]
CIRCUMSTANCES RELATING TO MR RANA'S EMPLOYMENT AND CONDITIONS CONSIDERED BY OTHER TRIBUNALS
136. In the dismissal proceedings, Deputy President Forgie decided that the parties should not be permitted to canvass the circumstances of Mr Rana's employment in the Army and the circumstances of the conditions that he has suffered apart from paranoid schizophrenia or diabetes or challenge the findings of fact made by two differently constituted Tribunals in reaching their earlier decisions. She directed that:
"under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a) inform itself as to the circumstances of and events arising during the applicant's employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re R and Commonwealth of Australia proceedings No S86/207, Decision No. 4293 [[1988] AATA 133] and SAN v Comcare Decision No 2001/378; [2004] AATA 445; and
(b) not permit the parties to lead further evidence regarding the matters in ... (a); ..."[165]
137. Neither in the reasons for making that direction nor in the direction itself is there explained what is meant by a "finding of fact". The term was used in its ordinary sense and that sense may be gleaned from those cases dealing with issue estoppel in the courts. One of the three criteria that must be satisfied in order to establish issue estoppel is that the same question has been decided.[166] In Blair v Curran,[167] the High Court considered how this criterion was satisfied in practice. Dixon J said:
" A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion ... [In issue-estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, this is, the title to the right established. ...
... But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. ...'[168]
138. In Kuligowski v Metrobus, the High Court made clear that the decision must be of a final, and not interlocutory character.[169] It is clear from its judgment that findings of fact may be expressly made or "... must be treated as having been actually litigated and determined" by virtue of the structure of the legislation and nature of the proceedings.[170]
139. Coming back to the direction, it is to the effect that we will inform ourselves of the circumstances of, and events arising, during Mr Rana's employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the differently constituted Tribunals in Re Mr R and Commonwealth of Australia and Re SAN and Comcare. Findings of fact are the ultimate findings on those subjects and not any evidentiary facts which those Tribunals found as facts preliminary to their final findings of fact.
140. As an example of the distinction, we refer to the following passage from the decision in Re SAN and Comcare regarding Mr Rana's claim that he had been sexually assaulted during his Army service. It came at the end of a lengthy analysis of the evidence regarding Mr Rana's allegations that he had been sexually assaulted during his Army service:
" A number of the witnesses who disputed the applicant's allegations of sexual assaults gave their evidence by telephone, and we are mindful that it is difficult for the Tribunal to assess credibility when evidence is given in this way (see Federal Commissioner of Taxation v Grbich and Shen (1993) 31 ALD 97). However, in the circumstances of this matter we think that it was not unreasonable for the respondent to adduce the evidence of these witnesses in this way, having regard to the expense which would have otherwise been involved in their travelling from interstate to attend the Tribunal hearing. The witnesses concerned contradicted the applicant's evidence of the assaults. They all gave their evidence carefully and were not evasive in answering questions put to them in cross-examination. We found no reason to doubt the truthfulness of their evidence, and we also accept the truthfulness of the evidence given by Mr O'Neill, who did give evidence in person. The applicant was, however, evasive at times in giving his evidence, and we found his evidence inconsistent and unsatisfactory. We do not accept the applicant's evidence that he was sexually assaulted whilst employed by the Army. We find that no such assaults took place."[171]
141. The Tribunal's findings that Mr Rana was evasive at times and that his evidence was inconsistent and unsatisfactory are evidentiary findings. So too are its findings that the witnesses who disputed his allegations of sexual assaults were not evasive, that there was no reason to doubt their truthfulness or, in the case of Mr O'Neill, that he was truthful. They are findings that are no more than steps in the Tribunal's process of reasoning leading it to find that Mr Rana was not sexually assaulted while he was employed by the Army. It is that finding of fact that is one of the facts fundamental to the Tribunal's findings regarding the circumstances of, and events arising, during Mr Rana's employment.
142. With that distinction in mind, we have informed ourselves of the circumstances of, and events arising, during Mr Rana's employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the following findings of fact made in Re Mr R and Commonwealth of Australia and Re SAN and Comcare:
(1) Mr Rana had a personality disorder, at a low order, before he came to Australia;[172]
(2) Mr Rana joined the Army on 14 October 1990;[173]
(3) Mr Rana completed his initial 16 week training period at Kapooka in New South Wales and then became a trainee storeman at Bandiana in Victoria from January to March 1981;[174]
(4) Mr Rana was transferred to the 16th Air Defence Regiment workshop at Woodside in South Australia;
(5) Mr Rana was granted special extended leave in February 1981 when his father, who lived in Nepal, became very ill. He and his father had an emotionally difficult and stressful reconciliation;[175]
(6) within a short time of his return to duties, his work performance decreased and his absenteeism increased. He suffered pain from the venereal herpes simplex II he had contracted in the course of his journey to Nepal and continued to feel stressed because of harassment in the Army;[176]
(7) Mr Rana was posted to a camp in Queensland in early September 1981. During the first week, his father died but he was not told of it until the completion of the camp at the end of October 1981. As a result, he felt deprived of the opportunity to perform the rituals that his Hindu religion and filial duties require of him as the first born son;[177]
(8) Mr Rana returned to Woodside but the officer in command had been replaced by another whom he felt was less supportive of him. He was charged with being absent without leave (AWL) in December 1981 when he failed to appear at parade and again in February 1982 when he was charged with giving a false account in addition to the AWL charge. A third charge of sleeping on duty was laid in March 1982;[178]
(9) the Army wrote to Mr Rana stating that his performance was unsatisfactory. He was on sick leave in April 1982 when he returned to Nepal to live with his mother. On 13 July 1982, he was discharged from the Army on the basis that his retention was not in the interests of Australia or the Army;[179]
(10) apart from his employment in the Army, Mr Rana experienced a number of significant events, which occurred before his Army service or in the period of 16 years after his Army service and until his paranoid psychosis was diagnosed. They were unrelated to his Army service and included:
(b) the underlying causes of its breakup: inability to have intercourse because of his suffering from herpes, poor assimilation into the Australian community, rejection by his wife's family, difficulty with employment, pressures from his family to return to Nepal, unemployment, financial problems and lack of access to his daughter;
(c) his bankruptcy, loss of sexual drive, the break-up of a subsequent de facto relationship with the mother of his second child, ongoing Family Court proceedings in relation to his first child, his difficulties over the years to establish any other intimate relationship and difficulties with various employers;
(e) difficulties with his relationships with universities resulting in their refusal to permit him to undertake further studies;[180] and
(f) self-consciousness about his noble Nepalese background, experiencing the contrast between his background and the irreverent and sometimes racist Australian environment and ;[181]
(c) treatment was not sought for it before 1998;[183]
(c) treatment was not sought for it before 1998;[184]
(14) the drugs Haloperidol and Benztropine were administered to Mr Rana on 3 and 4 August 1981 respectively;[185]
(15) Mr Rana was not sexually assaulted during his service in the Army;[186] and
(16) Mr Rana was subject to non-sexual assault and abuse during his Army service but this did not contribute to his suffering from paranoid psychosis or PTSD;[187]
143. Applying those findings to the relevant criteria that had to be met in order to establish the relevant connection between his Army service and the conditions from which he suffered, the Tribunals found the following ultimate facts:
(1) all of the stresses, including those in his personal and Army life, did not cause his personality or adjustment disorder and reactive depression but did culminate in their aggravation;[188]
(2) the aggravation of his personality or adjustment disorder and reactive depression attributable to his Army service ended in April 1985.[189]
(3) Mr Rana's Army service did not contribute to the development of his paranoid psychosis;[190]
(4) Mr Rana's service in the Army did not contribute to his PTSD;[191] and
(5) as Mr Rana was not suffering from either paranoid psychosis or PTSD before his Army service, his employment with the Army could not be said to have contributed to their aggravation.[192]
144. In oral evidence, Mr Rana referred to a number of matters relating both to the circumstances of his employment and his earlier conditions. This was not consistent with the direction that we would not receive further evidence on those matters. Apart from that difficulty, the MRCC did not come to the hearing ready to meet additional matters raised by Mr Rana. Despite that, we have looked to the matters raised by Mr Rana. For the most part, they are matters set out in his Army records and medical records and are encompassed within the matters addressed by the previous two Tribunals. There were other matters relating to his background and these have been set out in the reasons for decision of the Tribunal in Re SAN and Comcare.[193] We have not had regard to them.
146. Mr Rana canvassed his medical history with care. He referred to the notes of his admission to the Repatriation General Hospital at Daw Park in South Australia (Daw Park) on two occasions in March 1982. The notes of both admissions refer to his suffering from a viral infection and to anxiety neurosis with a previous history of psychiatric problems.[197] Dr David Kutlaca, a Psychiatrist, wrote a comprehensive report to the Acting Senior Medical Officer on 5 June 1985.[198] He diagnosed transient symptoms of anxiety and depression from an Adjustment Disorder with mixed emotional features. That developed as a response to his experiencing significant stressful events in the Army. Many of these factors have "remitted" but he considered that there were sufficient factors in Mr Rana's personal development to suggest a further diagnosis of Personality Disorder when he took cultural factors into account. Dr Kutlaca used that term to refer to "... characterologic deficits predisposing generally to difficulties in work, leisure, and socialization, and there is evidence of factors in his development predisposing to this type of disorder."[199]
147. Mr Rana referred to his having seen Dr Carmine De Pasquale. Dr De Pasquale, who is a Psychiatrist, wrote a report on 20 November 1986 setting out
Mr Rana's history. He wrote in terms of Mr Rana's having a "pre-existing personality problem" and, to the extent that it contributed to his loss of confidence, depression, anxiety and social withdrawal, to the Army's being responsible for the aggravation of that personality problem.[200]
148. Mr Rana referred to his having been impulsive even at school before he came to Australia. He had been physically abused by his teacher and by his father. His concentration was not good in the Army. Mr Rana recalls Dr De Pasquale's writing in his report that he "... had dropped his rifle at the Army public drills because of some - certain things to do with my memory and concentration and also maybe due to, well, sexual disease that I had contacted [sic] in Bangkok. ..."[201] What Dr De Pasquale had in fact written was that Mr Rana was suffering the pain of florid herpes:
"While he was on parade on Anzac Day the pain down below was such that he just dropped his rifle in public. His commanding officer was not too pleased. He rushed to see the army medical officer and when Mr Rana told him the full story the poor man thought that he was having auditory hallucinations uttering 'what the hell is this man doing in the army?'. He was right. Mr Rana had confused the Australian army for a picnic at Hanging Rock. The army too had miserably failed to recognise that Mr Rana was not army material by any stretch of anybody's imagination. ..."[202]
149. Dr De Pasquales' prognosis was that Mr Rana was showing signs of improvement and maturity. Usually personality problems improve as a person ages. If he were helped to rehabilitate himself through a University course, he thought that Mr Rana's future prognosis was good in terms of independence and quality of life.
150. Mr Rana expressed the view that he had a predisposition to paranoid traits when he saw Dr Kutlaca in 1985 and was diagnosed with a personality disorder. That personality disorder has escalated to paranoid delusional disorder and now to paranoid schizophrenia.[203]
151. The medical material is voluminous and we will refer only to some of the reports. Despite that, we consider that they represent a fair sample of the views being expressed by Mr Rana's treating medical practitioners at the time they were written.
152. In or about August 1981, Dr Lane wrote a report on behalf of Professor Pilowsky after Mr Rana had been a patient at the Royal Adelaide Hospital (RAH) between 3 and 5 August 1981. He set out the history of Mr Rana's wishing to commit suicide and being depressed after his wife and child had left him. Dr Lane set out Mr Rana's family history in Nepal and his activities since he has been in Australia. The diagnosis was that Mr Rana was suffering from reactive depression and had sociopathic traits to his personality.[204] He was transferred to Daw Park where he stayed from 5 to 10 August 1981 where he received counselling and support regarding his future plans and the legal implications and emotional factors related to his separation from his wife. He was found to have a marked propensity to be manipulative. When he would not tolerate the limits set with regard to his behaviour on the ward, he was discharged.[205]
153. A report by Dr Vaughan Carr, a Senior Visiting Psychiatrist at the RAH noted that Mr Rana had been admitted as an inpatient on 3 August 1981 and discharged on 5 August 1981 but referred to Daw Park. The diagnosis on discharge had been reactive depression as well as sociopathic personality disorder.[206] Dr Carr's report was dated 11 January 1985.
154. Dr Hoff is a Consultant Psychiatrist who saw Mr Rana in 1981 in Adelaide. He wrote in his report that he considered that Mr Rana was suffering from a reactive depression. The condition resulted from a number of factors including his having migrated to Australia, differences in cultures between Nepal and Australia and his domestic problems. Other factors also included his having given up tertiary studies in Nepal, some degree of restlessness and expectations by his Nepalese family.[207]
155. Dr K Jagerman, of St Margaret's Rehabilitation Centre wrote a case note on 15 April 1984. At the time, Mr Rana's treating psychiatrist was Dr Kutlaca at the Glenside Hospital. Dr Jagerman summarised Mr Rana's work experience at the time at a Japanese Restaurant and the fact that stress and depression usually caused a reactivation of his herpes at least once a month. "The phase of auditory hallucinations was stated to have applied to his Queensland experiences only lasting approximately for six months."[208] In Dr Jagerman's opinion, the "... diagnosis ... does not favour a recurrence of psychotic breakdown but a relapse into another frank psychotic disturbance cannot be excluded in the future. This tarnishes the prognosis."[209]
156. Dr Murphy, a Psychiatrist in Brisbane, wrote a report dated 5 October 1984.[210] At the time, Mr Rana was a patient at the Rosemount Psychiatric Hospital in Brisbane. Dr Murphy recorded that Mr Rana had complained of confusion of thought, difficulty in concentration and, when acutely depressed, of auditory hallucinations. He diagnosed Mr Rana as suffering from a Paranoid Mental State. He considered this to be the natural progression of some pre-existing or underlying condition rather than attributable to his employment.
157. On 5 October 1984, Dr G B Murphy, a Psychiatrist in Brisbane, wrote a report to the Director of Commonwealth Health concluding that Mr Rana suffered from a personality disorder of the paranoid type involving people he associates with for any length of time.[211] In his view, Mr Rana's condition was the natural progression of some pre-existing or underlying condition and not attributable to his employment. Dr Frank New, a Staff Psychiatrist at the Royal Brisbane Hospital, noted that Dr Cantor's diagnosis after Mr Rana's admission from 17 September to 2 October 1984 was atypical adjustment disorder.[212]
158. A further report relating to his treatment as an inpatient at the Royal Brisbane Hospital is dated 9 October 1984. It recorded that Mr Rana:
"Presented to casualty complaining of feeling lonely and unhappy. Gave a long past history of being involved in subterfuge and spying activities which was thought to be delusional. Extensive checking revealed his ostensible past history to be based on fact but probably exagerated [sic] in its presentation. Rana vocalised prolifically during his presentation and his mood settled. He related his problems to living in Australia, and decided to emigrate back to Nepal. No medications. No follow-up.
Very motivated to join in all Occupational Therapy activities. Very warm and friendly to all patients. Self-care very good.
OTHER INFORMATION RELEVANT TO NURSING MANAGEMENT:
Patient settled into ward routine quickly and all paranoid ideation disappeared 24 hours post admission. Patient was very happy whilst in ward but had great difficulty with intending discharge."[213]
159. While in Brisbane, Mr Rana was an inpatient in the Psychiatry Department of the Royal Brisbane Hospital. The report, written by Dr CH Cantor, Senior Psychiatry Registrar and dated 21 March 1985 records that:
"At the time of admission he talked of spying and various other topics which were suggestive of delusional and/hallucinatory experiences. Subsequent exploration of these made a psychosis seem unlikely.
He was seen as elaborating facts with copious fantasy in the context of anxiety and depression."[214]
The stresses identified by Mr Rana related to the break up of his marriage and were listed by Dr Cantor. Mr Rana "... was deemed to have personality problems of an inadequate type and was treated by individual and milieu psychotherapy"[215] and was discharged on 2 October 1984.
160. On 8 August 1985, Dr JE Smith, the Psychiatric Registrar at the RAH wrote to the duty doctor at the Glenside Hospital referring Mr Rana for admission. Dr Smith wrote, in part:
"... He gives a complicated history of harassment, blackmail and 'intelligence' supervision following bad experiences in the army, which he left in 1982. He states he is applying for compensation following 'manipulation, brainwashing and torture' by Vietnam Veterans in the Army. He says the Military Police contacted him today about this case, & he is now fearful that the Vietnam Veterans will try to kill him.
He says tonight he heard voices of these Veterans threatening to kill him. Before today, he was feeling well, although he says he had to leave Darwin because the Military Police made his employers sack him.
He felt suicidal tonight, having the idea that he should shoot himself.
He has a past history of 'nervous breakdown' treated at Glenside, Repatriation Hospital & Royal Brisbane Hospital.
He denies alcohol or drug use. On ..., he is neatly groomed. He behaved in an intense, agitated fashion. His conversation was normal in form, but preoccupied with his paranoid ideas which seemed of delusional intensity. His affect was anxious.
He described auditory hallucinations & there was no cognitive impairment.
Asst: He appears psychotic at present. This may be schizophreniform, or alcohol or drug related.
In addition, personality factors may be contributing to his presentation. I feel he requires inpatient management at present."[216]
161. The duty doctor at the Glenside Hospital, Dr Seidel, took a different view. He wrote of Mr Rana's story about problems with the Army as sounding paranoid but as being taken seriously by Dr Kutlaca, who had written a favourable report. The notes record that Mr Rana understood there was to be an enquiry into his allegations against the Army and he felt that he would be victimised. He felt desperate and had some suicidal thoughts but no plans at that time. Dr Seidel noted that Mr Rana was moderately anxious, had no true hallucinations and that he found it difficult to determine whether there were delusions. Mr Rana was happy to be sent home with a sleeping tablet. Dr Seidel diagnosed situational crisis and a personality disorder with a differential diagnosis of a paranoid psychosis.[217]
162. On 9 April 1987, Dr De Pasquale wrote a further report. He had not seen Mr Rana between 27 October 1986 and 30 March 1987 and he noted that there was very little else that he could add. He noted that Mr Rana maintained that his rather traumatic experience in the Australian Army was responsible for his present family, social and emotional problems and he had to accept what Mr Rana told him. He had no reason to deny what he told him. Overall, Dr De Pasquale felt that
Mr Rana was more settled with himself but there was no doubt that he had some permanent emotional disabilities created by the irretrievable break up of his marriage with the loss of access to his young daughter. Emotionally, many wounds were still open and Mr Rana was still suffering.[218]
163. On 21 April 1988, Dr De Pasquale noted that Mr Rana has variously been diagnosed as suffering from depression, paranoid reaction, personality disorder and adjustment reaction. He had seen Mr Rana five times since September 1986 and, at no stage, had he "... found him to be psychotic or so emotionally disturbed as to be considered dangerous."[219]
164. In a report dated 29 May 1988, Dr Hoff repeated his diagnosis of reactive depression and also diagnosed personality disorder.[220] Dr Hoff's final report was dated 3 April 1991. In it, he noted that he had given Mr Rana sick certificates for Nervous Disorder on several occasions but that he had told Mr Rana he was concerned about continuing to do so.[221]
165. Mr Rana consulted Dr Anthony Newcombe on 29 May 1991 and described a range of depressive symptoms. Dr Newcombe, who is also a Psychiatrist, diagnosed a Major Depressive Disorder after reporting that Mr Rana had described a range of depressive symptoms. The symptoms were severe in nature and had been increasing in severity since December 1990. Mr Rana had required hospitalisation as a result of the severity of the symptoms but Dr Newcombe thought that he would improve and return to his premorbid level of functioning in some six to eight weeks.[222]
166. Mr Rana later consulted another Psychiatrist, Dr Michael Lynch. He wrote a report dated 23 August 1993 to Dr Alan Cotton, to whom Mr Rana had turned for further psychiatric treatment. Dr Lynch summarised Mr Rana's history and concluded:
" Basically he has, in my opinion, a severe Personality Disorder. He is immature, narcissistic, manipulative and litiginous. I did not feel he would benefit from Psychotherapy and I was not convinced he was suffering from a Major Depressive Disorder. I limited my involvement to attempting to rationalize and coordinate the rehabilitation programme. He left therapy when I refused to take part in the litigation her [sic] proposed."[223]
167. Mr Rana was admitted as a voluntary patient to the Hillcrest Hospital in Adelaide from 10 to 13 December 1993. He had previously been admitted to that hospital for adjustment disorder and depression. The Discharge Summary issued by the hospital also noted a previous admission at the RAH for depression. On admission to the Hillcrest Hospital, Mr Rana had been extremely anxious about a pending court review of the access arrangements to his daughter. He was settled on discharge.[224]
168. In a report dated 20 June 1994, Dr Cotton wrote that he had been treating Mr Rana on a fairly regular basis since 10 August 1992. He had treated him for a fluctuating level of anxiety and depression with an associated underlying obsessional personality. He had prescribed 75mg, and later 150mg, of Anafranil for him at night and understood Mr Rana had been taking it on a regular basis for the previous two or three years. Dr Cotton found Mr Rana to be reasonably emotionally stable and to be adopting a much more positive approach to life.[225]
169. At Mr Rana's request, Dr Cotton wrote to the Registrar of the Supreme Court of South Australia on 28 March 1996. He wrote that Mr Rana had been studying for the previous two years and that, throughout that time, he had:
There was no suggestion that he was suffering from any significantly disabling psychiatric illness, this manifestly being the case when one looks at his overall level of functioning, both academically and interpersonally.
At all times, he has been quite lucid, there have been no over determined ideas, and in my view, he has been quite realistic in his approach, his life, his study and his social circumstances.
It is my view then, that he is not suffering from a disabling psychiatric illness, my purpose in seeing him merely being to offer him appropriate emotional support while he pursues his University academic career."[226]
170. Dr Cotton wrote a similar letter to the Registrar of the Adelaide Magistrates' Court on 16 August 1996. He added that:
"... although at times he has suffered from some symptoms of anxiety and depression, I have not been aware of any psychotic thought disorder or evidence of delusional ideation.
It is my view then that although at times he has become somewhat apprehensive and depressed, this has largely been reactive to his circumstances and has not significantly disturbed his perception of reality.
171. Mr Rana returned to Dr De Pasquale who wrote a report dated
24 February 1998 to Mr Rana's general practitioner, Dr Sophie Giannakodakis. In it, he wrote:
"Thank you very much for referring Ranjit Rana, an old friend of mine. I have hundreds of pages on Mr Rana. This time he is not asking for a medico-legal report but he wants to discuss with me his sexual problems. He was sexually molested when a schoolboy and he was also sexually molested when in the army. He is finding it difficult to relate to men and to women. He has two daughters, one from his first wife and another from his defacto. Both relationships ended up in separation. His relationship with his first daughter, 17 years of age, is not a close one but he reports a good relationship with his second younger daughter. Mr Rana has always been troubled by paranoid ideas. It seems though that his paranoid delusions at present are upsetting his everyday life. He feels that people know about his sexual problems and often they do things on purpose to upset him. Actually he has gone so far as to call the police to his next door neighbours because he felt that they were spying on him and that they were aware of his sexual problems. He reported that over the last year or so he has called the police over 150 times. Obviously Mr Rana needs psychiatric follow up. As you probably know he has seen over the years at least a dozen psychiatrists in Adelaide. Mr Rana is not a reliable patient and he moves fast from one therapist to another. He certainly needs follow up and medication. I will try my best but there is not much I can do unless he cooperates. I encouraged him to take a combination of anti-depressants eg Prozac 20mg in the morning and 1mg of Risperidone at night. Of course it is a small dose but if he takes it and if he can tolerate it, I will slowly increase the dose. I will keep you informed."[228]
172. On presentation at Daw Park on 25 June 1998, Mr Rana was suffering from depression and anxiety, paranoid ideation and suicidal thoughts. He initially demonstrated some thought disorders and bizarre forms of behaviour as well as being disinhibited, intrusive, impulsive and demanding. Mr Rana was discharged on
17 July 1989 with an increase in the dosage of Risperidone to 4mg bd to control his mental state. The principal diagnosis was that of Psychotic Disorder (not otherwise specified).[229]
173. In a letter dated 16 June 1999 and addressed to Judge Burley, a Master of the Supreme Court of South Australia, Dr Giannakodakis wrote:
"Mr Rana has a condition called 'Obsessive-Compulsive Personality Disorder' rather than 'Obsessive-Compulsive Disorder' which is a very different psychiatric condition.
Obsessive-Compulsive Personality Disorder describes a pervasive trait within the personality. Obsessive-Compulsive Disorder is a type of mental illness which belongs to the group known as 'neuroses' and requires long term psychotherapy and pharmacological treatment.
Mr Rana does not, and never has, suffered from the neurosis know as Obsessive-Compulsive Disorder.'[230]
174. Another psychiatrist, Dr Tony Davis, was asked by the Australian Government Solicitor for a report. In a report dated 27 February 2003, Dr Davis set out Mr Rana's history in some detail.[231] He recorded Mr Rana's understanding of his having been sexually abused both as a child and in the Army in some detail. Dr Davis noted that there had been no talk about sexual abuse until 1998. Dr Davis also described Mr Rana's symptoms in detail. On the basis of his examination of Dr Rana and his reading of earlier reports, Dr Davis considered:
"... that Mr Rana has a paranoid personality, and that features of this disorder have been evident since his early adult life. In more recent times, he has developed a paranoid psychosis, characterised by paranoid delusions and a degree of perceptual disorder. At this point in time, I consider that the dual diagnoses of chronic paranoid psychosis and paranoid personality disorder are appropriate. It is difficult to date the emergence of the psychotic disorder, although the reports prepared in the early to mid 1990s do not highlight psychotic features.
Mr Rana has been prone to episodic depression and anxiety, as he has confronted a number of overwhelming stressors in his life. He has had various forms of treatment including anxiolytic medication, anti-depressant medication and anti-psychotic medication. This has been combined with various forms of counselling and psychologic support. He currently continues with maintenance anti-psychotic medication and psychiatric support, which is appropriate.
I consider that the paranoid psychosis was not materially contributed to by his service in the Army.
... Mr Rana does have the symptoms of a paranoid pscychosis.
i) I consider that multiple constitutional and developmental factors underpin the paranoid personality disorder, and the subsequent emergence of the paranoid psychosis. His developmental history highlights some extraordinary experiences, both in Nepal and Australia, that have contributed to pathological personality development. He has never been able to establish trust in others and has struggled to maintain any form of stable relationship, either with family members, fellow students, work colleagues or people in authority (either in the Army, workplace or the University sector).
In keeping with his paranoid personality style, Mr Rana has always tended to project feelings on to others, perceiving others as threatening, intimidating, or untrustworthy. This has resulted in pathological relationships throughout his life.
With the passage of time, and exposure to multiple stressors, he has become increasingly isolated and withdrawn, and experienced the emergence of paranoid delusional beliefs. He has found it increasingly difficult to test reality and to maintain an objective appraisal of the external world.
In keeping with his paranoid personality style, he has been extremely litigious, and has sought recompense for the multiple hurts that he has endured throughout his life. At no point has he considered that he has played a part in the evolution of interpersonal difficulties.
175. In a report dated 8 September 2008,[233] Dr Jha canvassed Mr Rana's personal and employment history as well as his medical and psychiatric history. He canvassed previous medical reports he had been given and the decisions in Re Mr R and Commonwealth and Re SAN and Comcare. Dr Jha noted from the previous reports he had read that Mr Rana had exhibited some psychiatric problems towards the later months of his Army service but his main problems had been adjustment disorder with emotional disturbance such as anxiety and depression as well as Post Traumatic Stress Disorder (PTSD). He had not presented with psychotic symptoms either during the later months of his Army service or for the few years following his discharge from the Army. The symptoms of PTSD had persisted for a short time only and had since abated.[234]
176. Dr Jha wrote that Mr Rana had presented with psychotic symptoms only during 1998 while he was being treated by Dr De Pasquale.[235] At the time,
Dr De Pasquale was treating him initially with Risperdol but, after difficulties with sexual functioning, with Seroquel (200mg) two tablets TDS and, for depression, Prozac. Dr Jha wrote that Mr Rana:
"... does not have enough personality traits to put him into any specific type of personality disorder, but he has traits of personality disorders belonging to all the three clusters of personality disorder. He has mainly personality traits of antisocial, borderline and narcissistic personality under cluster B: Obsessional personality traits under cluster C and later on he showed personality traits of paranoid personality disorder under Cluster A. These personality traits have been mainly responsible for his adjustment problems and under stressful situation he has presented to different psychiatrists with symptoms of emotional disturbance in the form of anxiety and depression.
Mr Rana has suffered from various types of psycho-social stresses in his life like separation from his wife, family law courts, death of father in September 1981, two motor vehicle accidents, bashing in the bus and various problems in his multiple jobs and financial difficulties before joining army, during army service and after discharge from army service."[236]
177. Dr Jha's principal diagnoses were those of Adjustment Disorder, PTSD and Paranoid Schizophrenia.[237] He said that he could not comment on the seriousness of the harassment Mr Rana felt he suffered in the Army. It was difficult for him to say how much truth there was in what Mr Rana felt or how much exaggeration. On the other hand, Mr Rana might have felt reluctant to mention them earlier as he had joined the Army against his wife's wishes and did not want to lose further face by revealing it to her. As a member of a Nepalese warrior family, he would have felt humiliated to admit that he could not survive as a soldier in the Australian Army.
178. As to his diagnosis of Paranoid Schizophrenia, Dr Jha wrote:
"... He presented with psychotic symptoms only during his presentations in 1988 [1998[238]]. He was predisposed to develop paranoid schizophrenia because of his repressed homosexuality which happened during his early school years. According to psychoanalytical school of great Sigmund Freud it has got a very important role to play in the development of paranoid schizophrenia. Paranoid schizophrenia has a very slow, gradual and insidious onset. It is possible that he was in the process of evolving into the development of paranoid schizophrenia but it took a number of years to do so and was manifest many years after his discharge from the army. It is possible that the hardship undergone by Mr Rana during his army placement had some contribution in the genesis of his psychiatric illness but it is not entirely so."[239]
179. When responding to the question whether Mr Rana's military employment was the principal cause of Mr Rana's condition of Paranoid Schizophrenia, Dr Jha circled the description "probably".[240] As to the extent of the contribution of that employment, he circled the words "Significant" and "Substantial".[241] The factors in that employment that contributed to the condition were described by Dr Jha as:
"Claims of physical, emotional and sexual harassment because of race, creed and colour"[242]
Mr Rana's obsession with the harassments continues and is likely to continue either indefinitely or until his claims are settled.
180. In his examination of Dr Jha, Mr Rana questioned him about his reference to there being no mention of sexual harassment until the reports of 1998. His questions were directed to whether Dr Jha had believed him or not. Dr Jha said that his only point had been that Mr Rana had made no previous mention of sexual harassment. It was "... not for the doctor to believe or not ...".[243] He had never told Mr Rana that he did not believe him or denied that his experiences occurred.
181. As to his statement in his report that Mr Rana's experiences in the Army had made some contribution in the genesis of his psychiatric illness but not entirely so, the following exchange occurred between them:
"...But, because you know that in your case that was not only the traumatic events in your life, even before joining the army you had lots of traumatic events, you know, bashing from your father, you know, that sexual assault when you were at your school, you know. My point, you know, that you were a vulnerable subject and you were exposed to different types of trauma long before joining the army, therefore I can't say that things which happened to you in the army was the only factor responsible for your problems. It may be the cumulative effect of other things also. That's what I said.
What you're trying to say is that there are many factors but among those factors when you give weight, the army contribution would be significant reason?---I think that I will give more importance to the army thing, because something horrible happened to you in the army, according to your words."[244]
182. In cross-examination, Dr Jha said that he had himself made a diagnosis of Paranoid Schizophrenia in respect of Mr Rana. He did so on the basis that
Mr Rana had been hearing voices and suffered other psychotic symptoms. Dr Jha accepted what Mr Rana had told him of his experiences in the Army and felt that they were quite horrific. When asked about a causal connection between those experiences and Paranoid Schizophrenia, Dr Jha said:
"... there may be, you know, that some relation between that and emerging of, you know, that psychotic inlet.
... But as I told you, that is not the only cause, you know. Many people they suffer from paranoid schizophrenia, it would be with daily stresses, you know, but a major contributing factor, you know, people actually who are exposed to such situation, they suffer from some type of schizophrenia, some type of mental illness, not necessarily paranoid schizophrenia.
Yes, but it's the case isn't it that if those events didn't occur, if Mr Rana's history was not accurate then you would not be satisfied that there was any possible link between his army service and his paranoid schizophrenia?--- But you know that it was without, even if he would not have joined the army and if he would have suffered from schizophrenia, you know that probably many people they suffered from schizophrenia without any predisposition or without any contributing factor, but Mr Rana, unfortunately he had lots of other contributing factors, you know, so he was a more vulnerable subject to the block, some sort of psychiatric illness, you know. He could have suffered even without, you know, joining the army.
Yes?---But that made him - by joining the army and whatever you know, that he was subjected to so much of trauma, if that is correct, you know, that will make him more predisposed to the block, you know, that psychiatric illness."[245]
183. In cross-examination, Ms Bean asked Dr Jha to assume that Mr Rana had been called racist names and that, probably associated with his race, colour or creed, had been punched, hit and kicked on several occasions by fellow soldiers in the Army. She asked him to assume that sexual assaults had not occurred. Dr Jha responded that "Look, if sexual assault didn't occur, then those things might be a contributing factor."[246] The following exchange then occurred between Ms Bean and Dr Jha:
"MS BEAN: So if - putting aside any sexual assault and just limiting it to matters that I refer to, so some name calling, being punched, hit and knocked on various occasions, that makes it very - wouldn't you agree that that makes it extremely unlikely that there's going to be any connection between those events and his paranoid schizophrenia developing much later?--- [DR JHA] Look, as I told you, the reason that it is difficult to establish direction connection with one particular incident, you know, and I have been telling you, you know - you know, that - probably know that there were other factors in case of Mr Rana, even before joining the army.
[MS BEAN} Yes?--- [DR JHA]You know, that those factors were agitated when he was in the army, you know.
[MS BEAN] Yes. If you assume that the army factors are of the kind that I just put to you, that makes it far - far less likely, does it not, that they've made any contribution?--- [DR JHA]Well, that will - you know, even though those things - sexual assault - didn't happen, that, you know, that when these factors will make some material contribution to the already existing - you know, that predisposition perhaps that - which Mr Rana had, you know. So that is not going to diminution - or that is going to add, you know, there may be some extra, you know, predisposing factors. Hard life in the army and all that, you know, that he was not able to - you know, that - come to expect this and so of the army and all that, you know, that probably lots of senses and all that, you know. Maybe I don't know - you know, that maybe because he was not able to cope probably, you know, he was finding army life very stressful.
[MS BEAN] Nevertheless it's - would you agree with the proposition that if he had suffered sexual assaults during his army service, that that is more likely to have - events of that kind, you know - - - ?--- [DR JHA] That would be more likely, you know; that - you know, more likely. But it will be of that, you know, that all people actually who have the stressors, may not be of sexual nature, you know; there may be other types of these stressors also, you know. As he says bashing, name calling, pointing at him and all that, you know, that all of those things may be, you know, that contributing factor but not to - you know, that I will not call it - that CVA, you know, that, you know, maybe my - you know that the factors - that maybe the cause.
[MS BEAN] ... Dr Jha, from what you said so far, I take it that you would agree with the proposition that the nature of the stress that someone is subjected to, so the severity and nature of the stressor is relevant to the likelihood of a causal connection between that stress and paranoid schizophrenia?--- [DR JHA] Not my point at all that these stressors are cumulative factors, cumulative - cumulative no. Maybe where that one last stress actually which can result in mental ....., you would not say that was the only stressor which caused the mental illness, you know. What I am telling you, that it has been a cumulative effect, you know. Maybe that was the last straw on the camel's back - you know that - maybe you know that - lots of the stressors, you know, including this stressors also. If ..... June, that's when this all did happen. He had enough, you know, stressors in the army, you know, like name calling and all that, you know. Depends upon the personality of the individuals, you know. A person actually may not consider name calling very significantly. There may be other people who will get a very similar problem to you. That depends upon, actually, how a person reacts to those comments and all that, you know. So he has mentioned, you know, that he has reacted to those comments. He was not used to that type of comments before, you know, and therefore you know that it was distress for him.
[MS BEAN] Nevertheless, you would agree though, wouldn't you, that the nature of severity of any particular stress is relevant to its importance in precipitating psychiatric illness. In this case - - - ?--- [DR JHA] No, sometimes you know that precipitating factor, a person actually who is vulnerable to the developmental illness, sometimes, actually the precipitating factor will be very mild. You know, that we find, you know, that there may be a very - in ..... you know, that the precipitating factor which can result in mental illness. But I will not say that was the factor which was responsible for mental illness; I will simply say that was one addition to the ..... you know that precipitating factors which Mr Rana had, you know. Because it happened actually, you know, that what I want to say, Mr Rana had personality problems but he never had psychotic symptoms, you know. It happened actually only when he was in the army, that he had the psychotic symptoms, you know. So much so that what he was admitted to a psychiatric hospital. So that stress may be more contributory, you know, that then the stressors because he was able to handle those stressors before but he couldn't handle the stress, you know, in the army. It presented in mental breakdown.
[MS BEAN] I see. So in your opinion, it's not the nature or severity of stress, has no importance in assessing causation?--- [DR JHA] It - in the ..... severity is important but not always, it varies from individual to individual, you know. Sometimes actually even minor trauma, it can result actually, you know that, sometimes you push the wall, with great force, the wall will collapse and sometimes if there is weakness in the wall, then it will be a very gentle push, you know. So because, you know, that Mr Rana was already vulnerable, he was already exposed to formative stress, you know, so this stress may be the last straw on the camel's back, you know, it resulted in mental illness. So I don't say that only the military, you know, trauma, was 100 per cent contributory but, you know, it had significant contribution to me, in his illness, yes.
[MS BEAN] I think you've already agreed that the more severe the stress, the more likely it is, as a general proposition?--- [DR JHA] That you know, its in general terms but its not always true.
[MS BEAN] Yes, I accept that in the individual case it may be different?--- [DR JHA] In the individual, very - yes, but in general, mostly they are the stress, you know, that are likely to be more, you know, that the possibility of rejecting mental illness.
[MS BEAN] Yes, including in the case of schizophrenia, paranoid schizophrenia?--- [DR JHA] Mm."[247]
184. Later, Ms Bean had asked Dr Jha to assume that Mr Rana had suffered a number of other stressors, such as imprisonment for unpaid fines in Boggo Road gaol when a major riot and fire occurred. She asked him to comment on the contribution of all of the events and incidents in Mr Rana's life to his Paranoid Schizophrenia:
"So there are many events and incidents which have contributed to his psychiatric state and to the deterioration of his psychiatric condition across time?---I told you that his psychiatric illness is the result of these cumulative things, you know; all those things put together may be responsible. I can't isolate actually, you know, the particular event which could be significantly - you know, it all depends how the individual passage, the event and the situation. It depends upon the individual, how he perceives. He must have perceived but he didn't perceive them in the same way as his - you know, that operation in the army because he never mentioned about that, you know. But he must have suffered but the amount of suffering depends upon the personality of the individual, you know. He gave more importance to his suffering when he was in the army as compared to things happen to him after army.
It's because of the focus he placed upon those events that you recorded them - more importance than some other events?---Well, a person actually who has got anti-social type of personality, you know, that they are always involved in some sort of activity and all that, you know, that probably - you know, that they are ego - they don't feel so much of distress as a normal individual ..... you know. So because Mr Rana had that type of personality, so it is very difficult for me to say how much actually effect the incidents he had. He might have some effect, you know, but you know that he didn't actually really consider that they were quite significant. It all depends, you know, that a person who has got personality disorder, it depends actually how he perceive things and how he behaves or integrates and all that, you know. After, actually, you know, that when he was in the gaol and when he got out of the gaol - you know, I don't know whether he saw any abnormal type of behaviour, you know, that - he was not in the gaol because of psychiatric problems, you know. He was in the gaol because of commission of some crimes and not paying fine, you know, that probably wrote off some traffic offences or something like that, you know. So I don't know. He didn't narrate to me about, you know, that it was effect of these things or his mental condition.
If he reported later, though, that at that time, following that experience, his mental condition deteriorated quite badly, if he reported that himself, that would also suggest that it was a very significant stress that had a big effect on him?--- ..... reason he had, you know, whether he was admitted to any psychiatric hospital. I remember once he was, you know, that he was admitted to ..... psychiatric hospital in Queensland. I don't - I can't really correlate it, really, how it happened. Did it happen before the incident or after an incident?
This incident happened in November '83 and he was admitted to the Brisbane hospital in approximately August 1984?---That means it had not - no relationship, you know. How much ..... in his mental condition, which is very difficult for me to say, because you know that, is there any evidence that he sought some psychiatric help or he was - because, you know, Mr Rana had, you know, several consultations with the psychiatrist and several times he had been admitted to psychiatric hospitals. ..... you know, that the events became very stressful to him. How serious this event was perceived by Mr Rana, it is very difficult upon me to say. If you have been immediately admitted to a psychiatric hospital, then I would have told you that it might be ruled stressful but degree of the stressfulness it is very difficult for me to say.
In determining that now, you're relying a great deal upon what Mr Rana says about the effect of the events on him. That is, the events in his military service. In assessing how much effect they have on him, you're entirely reliant really, aren't you, on what Mr Rana has told you about the effect on him?---What authority I have got, that I have to trust my patient and have to believe his words, you know, until and unless ..... proved wrong, you know. So whatever Mr Rana told me, as a person and as a doctor, I thought whatever he was telling me was correct, you know?
Yes?---But you know that it is not for me to say whether ..... treatments were right or wrong, you know? I considered them as truthful and honest ....."[248]
185. Finally, Ms Bean explored the sentence in his report in which Dr Jha had said that "It is possible that the hardship undergone by Mr Rana during his army placement had some contribution in the genesis of his psychiatric illness but it is not entirely so."[249] The following exchange occurred between Ms Bean and Dr Jha:
"Now, that is an accurate statement of your opinion, isn't it?---Because, you know, that he had so many stresses.
Yes?---If he had only one stress in life, then ..... tell him that he had the stresses before during army and after that, you know. So I can't entirely say that, you know, that stresses actually he had in the army were responsible, he could have suffered without going to the army, you know. It is very difficult for me to say, you know. But, you know, that according to him he perceives that actually hardship he had while he was in the army was ..... the other stresses he experienced in his life before and after, according to his perception. So, look, I don't know, you know, that we have to give due importance to the perception of the people actually who are suffering, you know. You may not agree, I may not agree, no, but if he thinks that, you know, that he has perceived ..... that torture ..... then I think it would be important.
But having regard to, of course, what Mr Rana has told you, but also having regard to all of the information that's available and taking into account all of the other stressors, of which you're aware, before army service and after, it's taking into account all of those factors, isn't it, that's led you to conclude that it's possible that there has been some causal contribution, but it's not possible to be definite about that. It's no more than a - - -?---Look, it is very difficult, you know, because you know that psychiatry is not a very precise science, you know, you can't say two plus three is four, you know.
No?---So I'm just talking in terms of the possibility, you know.
Yes?---There are many possible factors you know, that, you know, that including the things which happened to him in the army, but of all the things, you know, that he perceives the army suffering was far greater than the other distresses actually he experienced before and after then. That's what I want to say.
Yes, and it's impossible for you to evaluate the relative importance of the different factors now after so long?---That depends upon the perception of the individual. What went through his mind at the time, you know, I don't know, so I can't - that I don't have that special type of ability to know that - assess the effect of each and every stress you know. It is very difficult, I can't say that.
In addition, Dr Jha, the time delay is also a factor isn't it, which perhaps makes relationship less likely between the army - events during the army and the paranoid schizophrenia given that that was only diagnosed in 1998. So there's a delay of 16 or 17 years between the stressor occurrence and the manifestation of the condition?---I don't know that, probably, you know, that some sort of, you know, mental history was - he probably - in the case of Mr Rana, is starting from '81, but what sort of illness ..... is very difficult to say. So I know that sometimes, as I told you, that paranoid schizophrenia there are other types of schizophrenia also where the onset is very slow. It is very difficult actually for the doctor or to family members to decide, you know, whether something wrong is going on, you know. So it is quite imperceptible, you know. So probably Mr Rana was in the process of ..... of illness, therefore it was not clear that something was happening to him, whether it will result in anxiety, whether it will result in depression, whether it will result in paranoid schizophrenia, it is very difficult for anyone to say until the final picture emerges. You know that before '98, you know, you'll find, you know, that he has been seen by different psychiatrists and everybody has put, you know, different diagnoses. But from '98 onwards, you know, there has been only one diagnosis. So because, you know that - because the illness was in the ..... process and the final picture was the paranoid schizophrenia. Sometimes it takes time, you know. It is very difficult for me to say. As I told you that, you know, that, you know, the previous ..... factors were continuing all through, you know. So that may be the cause, you know."[250]
186. Professor Goldney had examined Mr Rana on 11 December 2007 and
8 January 2008 in relation to proceedings involving Mr Rana and the Repatriation Commission. For the purposes of the present proceedings, he was given copies of the two previous Tribunal decisions, a transcript of proceedings in the Federal Court in SAD 67 of 2004 and three volumes of medical material relating to Mr Rana for the years from 1980 to 2008, including undated material. Professor Goldney noted that the material was consistent with the information he already had.
187. In Professor Goldney's opinion, Mr Rana suffers from a condition that falls into the broad spectrum of disorders referred to as paranoid psychoses or paranoid disorders. Most likely his particular condition takes the form of paranoid schizophrenia but it could be a delusional disorder. Professor Goldney's reasons for preferring a diagnosis of paranoid schizophrenia were that:
"... Mr Rana's symptoms best conform to such a diagnosis, as described in the American Psychiatric Association's Diagnostic and Statistical Manual IVth edition, text revision. Specifically, he has had delusions and hallucinations for greater than a month, his work record and inter-personal relationships have deteriorated, his condition has persisted longer than six months, and his symptoms are not due to substances or another psychiatric condition."[251]
188. The expression "Paranoid Psychosis" is "... simply descriptive of the clinical picture, rather than delineating a specific syndrome."[252] Professor Goldney wrote:
"Paranoid schizophrenia is considered to be a condition of unknown aetiology, which simply arises in some persons. There is an inherited component, and it is probably related to biological/biochemical changes of unknown cause. It is probable that external stressors can play a role in the precipitation of the illness, but in such circumstances there is a clear temporal relationship between such precipitation and the onset of the disorder."[253]
"... Other possible causes of paranoid psychosis include substance abuse, such as amphetamines and/or marijuana; a paranoid psychosis can also be associated with severe depressive conditions; a paranoid psychosis can also be related to dementing processes; and there is also another condition, namely a delusional disorder, which would be a reasonable alternative diagnosis for Mr Rana in contrast to the 'paranoid schizophrenia' diagnosis. All of these more specific terms are part of the 'paranoid psychosis' spectrum of illnesses. Indeed, it can be particularly challenging to distinguish between them, and sometimes it is only in retrospect, or after one has assessed a treatment response, that one can be more confident about the diagnosis.'[254]
Other factors that have been implicated are influenza suffered by a person's mother when pregnant with the person, maternal starvation during the first trimester, ethnic minorities, advancing paternal age and developmental issues affecting the development of a person's brain.[255]
190. Professor Goldney expanded upon the role of external stressors later in his report:
"... It could also be argued that but for those stressors the illness would not have occurred. However, for any such association to be credible, or indeed tenable, there needs to be a very direct temporal relationship between the alleged stressors and the onset of the paranoid schizophrenic illness. That is simply not the case with Mr Rana. Therefore I fail to see how there can be either a significant or a substantial contribution to the development of his paranoid schizophrenia."[256]
There are many cases in which a person develops Paranoid Schizophrenia without suffering from a stressor.
191. Stresses suffered by Mr Rana in the form of being punched, hit and knocked on various occasions by fellow soldiers for reasons probably associated with his race, colour or creed:
"... fall far short of issues such as child sexual abuse which was alleged to have occurred in Mr Rana's life before he came to Australia; the issue of his association with his father who was portrayed to me as being alcohol-dependent and aggressive towards Mr Rana; his life experiences as - I'm not quite sure what the word would be - as an operative with American intelligence in Nepal, you know, would be an anxiety provoking sort of situation; problems in his marriage; other issues subsequent to his army service. He was involved in, I think, a riot and/or a fire in the Boggo Road Gaol. There have been other sort of ongoing stressors; litigation with various entities around the place. When one adds all that up, I regard what occurred in the army as being of relatively little consequence."[257]
192. Professor Goldney could not exclude the hardship undergone by
Mr Rana during his Army service "... as a possibility. However, in practical terms it's such a remote possibility that it's not at all likely. ..."[258] Mr Rana explored the impact of the stressors he had endured in cross-examination of Professor Goldney. The following is an example:
"That's not entirely correct, you see, I put it to you that the military police thoroughly investigated when I made complaint to the defence minister in 1984 from Queensland and based on his order to the military police, the military police interviewed over 25 people, all associated I was in army and this military police report was produced to me only in 2004 so this is indeed a contemporaneous evidence and it has not been judicially reviewed?---I accept that that data may exist, however, one has to balance that with what has been documented elsewhere when many of my colleagues have assessed you and have not recorded as being particularly significant stressors your army experience and so, you know, one has to sort of weigh those issues up and in doing so I've come to my conclusions.
I would like to remind you that Dr Kutlacca had indicated that if there was proof what happened to me, what I told him based on thorough fact, he would indicate that adjustment disorder had exacerbated what that time- - -?---I'm not disagreeing with that, you know, I have accepted that you have an adjustment disorder at the time. Time limited, you've had many years of apparent good health according to, for example, Dr Cotton, who saw you over a period of 5 years during the 1990s, there is no indication of a diagnosis of a psychotic disorder and no confirmatory indication of that until 1998 and you know, the time association is just not in favour of your hypothesis.
Well, you are just putting arbitrary value, time limited, what does that mean, how do you come to that conclusion? Everything is timeless. What is your source?---Well, I've described my source, for example, in, you know, the Bradford Hill criteria for assuming any sort of causal relationship that will recognise criteria being the literature for 40 or 50 years and I really can't offer any more.
There is a literature which says that the psychological impact of non-sexual criminal offences and victims which says in some a depression indicates that the independent of the offence victims of crime experience similar kinds of reactions, the psychological effects of sexual assault, physical assault, robbery, burglary, kidnapping, varying intensity, question many features all the victims of sexual assault, suffer greater distress than victims of robbery and burglary, so if that is the case which was permission by the solicitor's general of Canada and the conclusion the victim of ..... is such that one cannot put such adjustment related time limits. What do you have to say of that?---The likelihood of such effects would date back to your pre-army service, the sexual abuse during childhood of any exacerbation of that, you know, I accept that it would have made you a little more sensitive to that but again it would have been a time limited exacerbation and there is no temple relationship between the onset of your paranoid schizophrenia and the sexual abuse which you say occurred during your army service. On the other hand, it would have contributed to the adjustment disorder and I acknowledge that.
In the army, in the tribunal of 2004, I interviewed or I cross-examined one of the witnesses who used to regularly expose his private part and that used to make me very, very uncomfortable about it. If that's the sort of, you know, impact occurred on me, would that be significant stressor?---Not in causing schizophrenia, no, no. If that caused schizophrenia, we'd have so much more schizophrenia.
Don't put any value in one incident, I'm just proposing in terms of accumulation. Accumulation of number of issues, incidents?---That's - it would have an infinitesimal extra impact compared to all the other issues that occurred in your life and we're just speaking about the hypothetical possibility that such stressors may be contributory anyway because the illness may prove to be, you know, virtually 100 per cent, just in inexorable onset of an illness with no relationship to external stressors, we just don't know.[259]
193. In considering the time from which Mr Rana has suffered from Paranoid Schizophrenia, Professor Goldney had regard to evidence of psychotic symptoms to be found in the reports of Dr Murphy on 5 October 1984, Dr Cantor on 21 March 1985 and Dr Jagerman on 15 April 1985. None of those doctors had diagnosed the condition, though. Professor Goldney also noted that there had been quite lengthy periods of apparent well-being for Mr Rana in the 1980s and until the late 1990s. In view of these matters, he considered "... one is not on firm ground in considering that Mr Rana had a paranoid schizophrenic illness until the late 1990s."[260] References by Dr De Pasquale on 24 February 1998 to paranoid delusions and in the discharge summary from Daw Park for Mr Rana's hospitalisation between 25 June 1998 and 17 July 1998 to a Psychotic Disorder (not otherwise specified) indicates that the condition had emerged clinically at that time. The precise diagnosis, though, was not clear at that time.
194. In giving oral evidence, Professor Goldney explained that:
"...I had access to the reports and - of, for example, psychiatric personnel in Brisbane in 1984, when he had had some psychotic symptoms, but those psychotic symptoms resolved very quickly and the description of him which is contained in that clinical record is totally unlike symptoms of schizophrenia and in fact the clinicians at that time didn't consider the schizophrenia was the diagnosis. He was seen by other practitioners during the 1980s, also during the 1990s and the diagnosis of schizophrenia, or indeed paranoid psychosis, just simply wasn't entertained until 1998. So unless a number of psychiatrists over the years have been incorrect, you know, there is no indication that schizophrenia was present until 1998."[261]
195. Professor Goldney expanded upon this in giving oral evidence. Referring to the notes dated 9 October 1984 of Mr Rana's admission to the Royal Brisbane Hospital between 17 September 1984 and 2 October 1984,[262] Professor Goldney said:
"... That simply is not the history of somebody who has got a psychotic illness. It's more the history of somebody who may have had transient symptoms related to substance abuse or it could also be the sort of symptoms that people give as a passport to admission to hospital, so to speak and the fact that all those symptoms disappeared within 24 hours, then also:
Simply not consistent with a psychotic diagnosis at all."[263]
197. As to the cause of Mr Rana's Paranoid Schizophrenia, Professor Goldney did not agree with Dr Jha's proposition that his Army experiences had been the straw that broke the camel's back. Professor Goldney would have agreed with the proposition had Mr Rana's Paranoid Schizophrenia emerged in 1982. As it is, it did not emerge until the late 1990s when so much else has happened in his life. In those circumstances, to say that Mr Rana's Army service had been the straw that broke the camel's back was not credible.[266] Professor Goldney did acknowledge that Mr Rana's Army experiences would have contributed to some emotional distress at the time and that he would have suffered an adjustment disorder with depressed mood or anxious.[267] That was a condition that was time limited and was a condition whose symptoms were not consistent with those of Paranoid Schizophrenia. When Mr Rana did develop Paranoid Schizophrenia over 15 years later, there was no association with his Army service. That is particularly so when consideration is given to the relative importance of other stressors in Mr Rana's life.
Consideration: the tension between maintaining the dual roles of treating medical practitioner and expert witness
198. We were not part of the Tribunal's decision to ask Dr Jha for a report.[268] The letter of instructions enclosed the two decisions, a letter from Mr Rana and a request to list the materials Dr Jha took into account in providing his report regarding paranoid schizophrenia and diabetes. A Deputy Registrar advised Dr Jha:
"As mentioned in Mr Rana's letter, when preparing your report, the circumstances and events arising during his employment with the army and of the conditions he has suffered apart from paranoid schizophrenia and diabetes, should be derived from findings of fact made by this Tribunal in the two earlier decisions, namely the 1988 decision by Deputy President Layton, and the 2004 decision by Deputy President Jarvis and Dr Eriksen. ..."[269]
Mr Rana's letter to Dr Jha referred to the same material and, in summary, asked him to report on the conditions from which he suffers, whether his employment was the principal cause of his condition, whether he would have contracted the disease or suffered an aggravation, acceleration or recurrence if it had not been for his employment, the extent to which his employment contributed to the contraction of the disease or its aggravation, acceleration or recurrence, the extent of that recurrence, the employment factors, if any, that contributed to his condition, whether they were likely to continue indefinitely or were only temporary, the treatment that is indicated and whether he would benefit from a rehabilitation counsellor. Mr Rana also asked Dr Jha to comment on whether he agreed or disagreed with the opinions expressed by
199. Although we would have worded the questions differently in relation to any causal link between Mr Rana's employment and any condition from which he is suffering, we also acknowledge that Mr Rana has tried to follow the form of letter given to Professor Goldney. We appreciate his efforts but there is a difference between witnesses such as Professor Goldney and, for example, Dr Stevenson, on the one hand and Dr Jha on the other. The difference lies in the fact that Professor Goldney and Dr Stevenson have not had an ongoing relationship with Mr Rana whereas Dr Jha has been, and continues to be, his treating psychiatrist. Professor Goldney and Dr Stevenson have been called as witnesses with expertise in particular subject areas. It would appear that Dr Jha has been called on the same basis and so as an expert witness but he has that additional relationship with Mr Rana. There is nothing improper about that but it causes a difficulty for us.
200. It is a difficulty that is mentioned in the Draft Guidelines relating to Opinion Evidence issued by the President in October 2008 (Draft Guidelines) as well as in the Practice Direction issued by the Chief Justice on 5 May 2008[270] and only recently replaced by Practice Note CM 7 with effect from 25 September 2009.[271] Each is concerned only with opinion evidence and not with other forms of evidence or assistance that an expert witness might be asked to give. Each sets out the duties of an expert witness to the Court or the Tribunal. In the Draft Guidelines, that duty is expressed in this way:
"A person giving evidence on his or her special knowledge in an area:
(a) has an overriding duty to provide independent and impartial assistance to the AAT;
(b) is not an advocate for a party to a proceeding;
(c) has a paramount duty to the AAT and not to the party who engaged them."[272]
201. An expert might have had a pre-existing professional relationship with a person who is the subject of the report that might lead to his or her having a conflict, or being perceived to have a conflict, in his or her ability to meet these duties in some way. The Draft Guidelines touch upon it when they say:
"If a person is, or becomes, aware of an actual or perceived conflict of interest that may impact on his or her role, the person must disclose this to the party who engaged them and to the AAT."[273]
This is a subject that is not contemplated in Practice Note CM 7 but it was dealt with at some length in the previous Practice Note in the Federal Court. It reads:
"An expert is not disqualified from giving evidence by reason only of a pre-existing relationship with the party that proffers the expert as a witness, but the nature of the pre-existing relationship should be disclosed.
The expert should make it clear whether, and to what extent, the opinion is based on the personal knowledge of the expert (the factual basis for which might be required to be established by admissible evidence of the expert or another witness) derived from the ongoing relationship rather than on factual premises or assumptions provided to the expert by way of instructions.
All experts need to be aware that if they participate to a significant degree in the process of formulating and preparing the case of a party, they may find it difficult to maintain objectivity."
202. Taking a superficial view, it could be thought that the relationship between a treating medical practitioner and a patient is such that he or she could also fulfil the duties required of an expert witness. The Code of Professional Conduct issued by the Medical Board of South Australia sets out the duties of a medical practitioner registered with that Board. That Code sets out:
"... general principles which promote professionalism in the practice of medicine, thereby protecting the health and safety of the public. These principles complement the requirements of the Medical Practice Act 2004 and case law. However, they are not a substitute for the provisions of law and case law and in the event of any doubt, the legislative provisions take precedence. The Code applies to all medical practitioners in South Australia."
203. The Code sets outs four standards. Standard 1 relates to clinical competence and performance. Good clinical care has a number of features. Among them is "an adequate assessment of the patient's condition, based on the history and clinical signs and appropriate examination". Standard 2 relates to Professional and Ethical Obligations. Among them is that of "Maintaining trust with patients through your interaction with patients". A medical practitioner takes the history from the patient. Clinical signs may support that history but there will be instances in which a medical practitioner is not in a position to obtain any independent or objective confirmation of the history given by the patient. The treatment that is prescribed has some regard to that history and it cannot be otherwise if trust is to be maintained with the patient. It immediately becomes apparent that there may be occasions on which the "overriding duty to provide independent and impartial assistance to the AAT" is not consistent with the trust that marks the relationship between medical practitioner and patient. If such an occasion arises, a treating medical practitioner cannot also act as an expert witness.
204. That is not to say that the evidence of a treating medical practitioner is not valuable. It may well be extremely valuable as is apparent from the following extract from the judgment of Ipp J in Bakovic v Rosebridge Nominees Pty Ltd.[274] The Full Court of the Supreme Court of Western Australia considered the proposition that:
"... no factual presumption to the effect that the opinions expressed by the treating psychiatrist (or a treating medical practitioner, in general) are less reliable because of the intimate relationship that sometimes arises between patient and doctor. I accept unreservedly the general proposition that no such presumption exists, and a judicial decision based on such a presumption would be tainted by fundamental error. Each case depends upon its own circumstances. In many instances the opinion of the treating psychiatrist or treating medical practitioner will be more reliable than the opinion of a consultant who has seen the patient only once or twice or three times. Frequently, it will be found that a long standing relationship between medical practitioner and patient will enable the medical practitioner concerned to express more reliable opinions, having a greater depth of knowledge and understanding of the patient concerned, than some other medical practitioner called in purely for medico-legal or other short term purposes. On the other hand, it cannot be gainsaid that there will be instances where the close relationship between doctor and patient will result in the medical practitioner being so subjectively influenced that the opinions expressed by him or her will be regarded as less reliable than those expressed by a more objective expert."[275]
Consideration: the diagnosis and onset of the condition
205. The consensus of the medical evidence is that Mr Rana is suffering from Paranoid Schizophrenia. Dr Jha has diagnosed that as has Professor Goldney. It is a diagnosis that is supported by the earlier medical material to which we have referred. We are satisfied that Mr Rana suffers from that condition.
206. As to the date of its onset, there is some debate. Reference to psychotic episodes or of auditory hallucinations suffered by Mr Rana is found in various guises in the reports of Dr Cantor on 21 March 1985 and of Dr Jagerman on 15 April 1985. Neither of those doctors had diagnosed the condition, though and, in a later report, Dr Cantor said that subsequent exploration of Mr Rana's experiences made a psychosis seem unlikely. That was in 1985 whereas Dr Murphy had diagnosed Mr Rana to be suffering from a Paranoid Mental State in his report on
5 October 1984. Dr Smith identified psychotic features in August 1985 but Dr Seidel was less certain they were present although not entirely dismissive of them. Psychiatrists consulted by Mr Rana between 1986 and the late 1990s did not refer to psychotic features. Indeed, Dr Cotton specifically discounted the suggestion that he was suffering from any psychosis or even any disabling psychiatric disorder.
207. It is not until 1998 and Mr Rana's admission to Daw Park that
Mr Rana exhibits paranoid ideation and his then treating Psychiatrist, Dr De Pasquale, refers to paranoid delusions. There is then a consistent reporting by Dr Davis, Dr Jha and Professor Goldney of Mr Rana's suffering from a psychosis. In view of the history of the diagnoses and the reporting of Mr Rana's symptoms, we are satisfied that Mr Rana was suffering from Paranoid Shizophrenia from or about some time in 1998. From time to time, he suffered from symptoms of a psychosis but they were not ongoing or sustained to an extent that would support a diagnosis of Paranoid Schizophrenia. As Dr Jha said, brief psychotic symptoms cannot be the basis for a diagnosis of Paranoid Schizophrenia and, in his opinion, they did not become sustained until 1998.[276] This accords also with the evidence given by Professor Goldney, who also noted that there had been quite lengthy periods of apparent well-being for Mr Rana in the 1980s and until the late 1990s. It seems to us that the history of Mr Rana's symptoms as recorded in the contemporaneous medical reports and records of the day and the current evidence of Dr Jha and Professor Goldney all support our finding that Mr Rana first suffered from Paranoid Schizophrenia in or about 1998.
Consideration: the tension between Dr Jha's role as treating Psychiatrist and as expert witness
208. That brings us to the evidence of Dr Jha, who is now Mr Rana's treating medical practitioner. On the basis of his evidence, I find that he accepted what Mr Rana told him about his symptoms and his Army service. As he said to
Ms Bean, who had asked him whether he relied on what Mr Rana had told him regarding his Army service:
"... I have no information from other sources, you know, I totally relied on the statement given by Mr Rana."[277]
"What authority I have got, that I have to trust my patient and have to believe his words, you know, until and unless ..... proved wrong, you know. So whatever Mr Rana told me, as a person and as a doctor, I thought whatever he was telling me was correct, you know?"[278]
209. This is a completely understandable position to adopt when treating a patient. It is not necessarily a position that is inconsistent with that of an expert witness if the medical practitioner is also open to considering information that may be inconsistent with that conveyed by the patient. Consideration is all that is required.
210. Dr Jha's evidence shows the strain that may arise on occasion when adopting the two roles. His written report provides an example. In the substantive text, he acknowledges that it is difficult for him to comment on the seriousness of the harassments endured by
Mr Rana during his Army service. It is difficult for him to say how much truth there is in them and how much is exaggeration. His conclusion is that it is "possible that the hardship undergone by Mr Rana during his Army placement had some contribution in the genesis of his psychiatric illness but it is not entirely so."[279] Having put it no higher than a possibility, Dr Jha then marked "probably" as the answer to the question whether Mr Rana's Army service was the principal cause of his condition. That question was one of ten questions prepared by Mr Rana in a form sent to Dr Jha. To be fair to Dr Jha, the question prepared by Mr Rana only gave him four options: definitely not, probably not, probably and definitely. Possibly was not amongst them but it is clear from his answer to question 5 that Dr Jha would not have selected it had it been offered to him for, at question 5, he marked "significant" and "substantial" as the answers to the question regarding the contribution by Mr Rana's Army service to the contraction of his paranoid schizophrenia.
211. The strain continued in Dr Jha's oral evidence. When asked to consider whether it would be significant to know if Mr Rana had been subjected to some other unwanted sexual advances by male persons and possibly molested on a couple of occasions by males, Dr Jha's response was that Mr Rana had never told him of that. He did not know whether it was authentic or not. This followed a passage in which we had explained to Mr Rana that Ms Bean was entitled to put different factual scenarios to Dr Jha to seek his opinion. That she did so did not mean that we would make a finding of fact that they had occurred. Whether we do or not depends on whether there is evidence of them or whether they are agreed between the parties but the propositions could be put to Dr Jha.[280] When the propositions were put, we explained to Dr Jha that he was being asked to assume the facts for the moment and give an opinion. He repeated that Mr Rana had not told of these things and that they were not in his report.[281] He was struggling with the role of an expert witness in this particular case and we do not think that we can regard him as being able to separate himself from the role of treating psychiatrist to a degree that is sufficient to enable him to take up the role of an expert witness. That he was, in effect, asked to do so by the way in which he came to be asked for a report was unfair to him even though those asking would not have intended that he be treated unfairly in any measure.
212. That is not to say that Dr Jha's role as Mr Rana's treating psychiatrist is not an important one. It is an important role and his insight into Mr Rana's history and symptoms as well as his diagnoses are important. The insight that he gives us is that Mr Rana has revealed to him certain parts of his history but not others. Dr Jha acknowledges that there are many possible causal factors in the development of Mr Rana's paranoid schizophrenia. It is his opinion that Mr Rana perceives his suffering during his Army service as being far greater than his suffering from his other experiences. We accept Dr Jha's evidence in that regard.
Consideration: whether relevant causal link between Mr Rana's Paranoid Schizophrenia and his Army service
213. When we have regard to the whole of Dr Jha's evidence, we find that the highest he puts the causal factor between Mr Rana's experiences during his Army service and his Paranoid Schizophrenia is that of a "possibility". This is consistent with the text of his report (as opposed to his answers to the questions in the form prepared by Mr Rana and in giving some of his oral evidence) and with the position he came to in cross-examination by Ms Bean.[282] Professor Goldney would not go so far and discounted all possibility.
214. Even if we accept Dr Jha's evidence that the link between Mr Rana's Army service and his Paranoid Schizophrenia is possible, we do not think that it can be said that the condition was contributed to in a material degree by his Army service. That is a matter that must be decided on the balance of probabilities and Dr Jha would not go that far. Recognition that there is a possibility of something does not equate with satisfaction that something is so on the balance of probabilities.
215. Professor Goldney's evidence does not support our finding that Mr Rana's Army service made a material contribution to the onset of his Paranoid Shizophrenia. We have also had regard to all of the medical material that preceded the diagnosis and that dated from his Army service but do not find support in that either. Early reports in the 1980s by treating and other Psychiatrists such as Dr Lane, Dr Carr, Dr Hoff, Dr Jagermann, Dr Kutlaca, Dr Murphy and Dr Cantor make no mention of any history given by Mr Rana regarding his Army service. Mr Rana's Army experiences are not mentioned until 1985 when Dr Smith does so and this is followed by references by Dr Seidel and Dr De Pasquale in 1987. References to it appear in later reports by those such as Dr Hoff but as one of a range of factors. We find that Mr Rana's condition fluctuated in these years and we find on the basis of
Dr Cotton, who was his treating psychiatrist between at least 1992 and 1996 that
Mr Rana was not suffering from any disabling psychiatric illness and that he was not aware that he was suffering from any psychotic thought disorder or evidence of delusional ideation.
216. Having regard to all of the material, therefore, we are not satisfied that Mr Rana's Paranoid Schizophrenia was contributed to in a material degree by his employment in the Army.
217. On the basis of the evidence of Dr David Miller, who is a Consultant Physician, we find that Mr Rana is suffering from diabetes mellitus type 2. As a result of his suffering from diabetes and having bleeding gums with recession because of chronic gingivitis, Mr Rana's general medical practitioner, Dr Henry Fellner, referred Mr Rana to Dr Mark Bartold, a Periodontist. Dr Bartold wrote a report dated 1 April 2009 on the state of Mr Rana's oral health and future care and treatment. There is no further reference to diabetes in his report or clinical records.[283]
218. In view of our decision regarding Mr Rana's Paranoid Schizophrenia, we cannot be satisfied that his Army service contributed to his diabetes mellitus type 2 in a material degree (or at all) as a consequence of his taking all or any of the medication he was prescribed for Paranoid Schizophrenia. Mr Rana also rested his claim on the food he ate while in the Army and on stress. We have considered the matter on those two bases but have also considered his argument regarding the medication should we prove to be incorrect in our finding regarding the causal connection between his Army service and his Paranoid Schizophrenia.
219. In his oral evidence, Mr Rana said that he might have had diabetes because he was under stress but there was no need for him to undertake a test for it. His mother died recently of diabetes and his younger sister suffers from it.[284] He referred to the entry in the notes of Daw Park that he was "Feeling generally unwell. Tired, lethargic".[285] These symptoms, he said, could have been referable to glandular fever or to diabetes, he did not know.[286] We note that the notes relate to Mr Rana's admission to Daw Park on 20 March 1982.
220. He linked the reference in Dr Leonello's report dated 27 March 1998 to his suffering from a slow urinary stream as a result of taking Risperidone with memories of extra bladder problems and getting sweaty.[287] He thought that had something to do with diabetes but also acknowledged that he was having a serious reaction to Risperidone.[288]
221. In giving evidence, Mr Rana said that he has been prescribed Seroquel.[289] Dr Jha referred to Mr Rana's having been prescribed Diamicron,[290] Diaformin (also available under the name of Metformin) and Dipidel[291] as well. He noted that Professor Goldney had recommended that Mr Rana take Quetiapine, which is also known as Seroquel and which is prescribed when patients do not respond to the common drugs. It is taken under supervision and only after undergoing heart examination and blood tests. Quetiapine was not prescribed in India when Dr Jha practised there but it is prescribed all over the world as well as in Australia.
222. Dr Jha did not know whether Quetiapine, if Mr Rana had taken it, would have aggravated his diabetes.[292] Dr Jha had prescribed Haloperidol but he did not think that Mr Rana's diabetes could be attributed to that drug. He said:
"No, I don't, no. I don't think so, no. But I have treated a thousand such people with haloperidol, nobody suffered from diabetes."[293]
Dr Jha prescribed Benztropine to combat the side effects of Haloperidol.[294]
223. Speaking of Quetiapine as Seroquel, Dr Jha gave the following responses to Mr Rana at the hearing regarding his records of the anti-psychotic medication that Mr Rana had been prescribed:
(1) Mr Rana was prescribed Haloperidol for two days a long time ago (1981)[295]
(2) Mr Rana told him that he was taking Risperidone from 1998 until 2002;
(3) Mr Rana was probably taking a 3mg dose of Risperidone each day;[296]
(4) Mr Rana was prescribed Quetiapine in 2002;[297]
(5) Mr Rana was probably prescribed a 200mg dose of Quetiapine to be taken at night but later, on 19 December 2005, the dose was recorded as 100mg (three tablets);[298]
(7) the dose was recorded by Dr David Miller, a Consultant Physician, as 200 mg twice a day;[299]
(8) Mr Rana was probably suffering from side effects so he did not vary the dose;[300]
(9) although he felt that Mr Rana was not taking the proper dose, he did not increase the dose as he knew that Mr Rana was not in the mood to have the dose increased and was worried about side effects;[301] and
(10) Mr Rana was prescribed Fluoxetine, which is sold under the name of Prozac, at a dosage rate of 20mg.[302]
224. Mr Rana gave evidence that Dr Carmine De Pasquale, a Psychiatrist who had treated him previously, had given him three samples that had been given to him by salesmen. They included "Olanzapine and that sort of drug ...", Mr Rana said.[303]
225. In his report dated 8 September 1988, Dr Jha wrote:
"Mr Rana has suffered from certain physical health problems like toxoplasmosis, glandular fever, genital herpes, myalgia and diabetes II. He believes that his diabetes has been caused because of the Atypical antipsychotic drugs like Risperdal and Seroquel prescribed to him. It has been seen that some of the current Atypical antipsychotic drugs can cause metabolic syndromes like diabetes but the chances of getting it with Seroquel is [sic]very remote. It is more common with Atypical antipsychotics like clozaril and Olanzapine."[304]
226. In cross-examination, Ms Bean drew Dr Jha's attention to this passage and he said of the connection between antipsychotic medication and drugs that:
"... it is quite common with two drugs, Quetiapine and Olanzapine, you know, that with you know, that other drugs like Risperidone and Seroquel, then the probability is much less but I can't entirely rule out, you know, but you know, the fact is this happens only when the person, you know, is on very high dose. In case of Mr Rana, he was mostly getting 200 milligram or 300 milligram, that is not a, you know, that very high dose of Seroquel so with such a low dose and you know, that so far the reports we have seen, Seroquel is not blend to the same extent as the other drugs, you know. So the chances of the block being ..... with Seroquel is much less but I can't entirely rule out, you know. Chances is much less but maybe 2 per cent, 5 per cent, you know, that I can't say that, you know, it is possible."[305]
227. Dr Miller is a Fellow of the Royal Australian College of Physicians and a Member of the Australian Society of Nephrology. He practises as a General Physician with major interest in diseases of the kidney. Although not an endocrinologist, he sees a lot of diabetes and considers himself an expert in the condition. Endocrinologists have a narrower range of expertise, he said. Diabetes is certainly included in his range of expertise.[306]
228. Dr Miller's attention was drawn to notes of the RAH dated
20 February 1991 showing his glucose to be 4.4 mmoL/L.[307] That reading was in the normal range of 3.8 to 5.8 mmoL/L after fasting, he said, and did not suggest that
Mr Rana was suffering from diabetes at the time. A reading of 5.9 mmoL/L was recorded on 14 July 1992.[308] Dr Miller said that, if that was a non-fasting level, there would be nothing to question for it could be affected by the food Mr Rana had eaten. If it was a fasting level, he would consider it suspicious but not diagnostic of diabetes.[309] An earlier reading taken on 8 August 1989 showed a glucose reading of 6.6 mmoL/L.[310] All readings were taken at the RAH and Dr Miller could not comment on whether its normal practice was to take blood tests after fasting. A blood glucose level of 6.6 mmoL/L after fasting would probably not cause symptoms but would be enough to support a diagnosis of diabetes. He would call it asymptomatic or presymptomatic diabetes. Had the readings been taken after fasting, Dr Miller would have expected the RAH to follow up on them. [311]
229. Dr Miller wrote two Medical Notes and a letter to Dr Fellner, who is Mr Rana's General Practitioner. In his second note dated 10 July 2008, Dr Miller wrote that Mr Rana's military employment was definitely not the principal cause of his diabetes and that he would have contracted diabetes regardless of the conditions of his employment.[312] Conditions during his employment probably contributed to the exacerbation of diabetes. The drugs used in treating Mr Rana's psychiatric condition probably contributed to the worsening of his diabetes. Stress is a factor contributing to aggravations in diabetic control but the aggravations are limited to the period of stress. The effects ceased when employment ceased.
230. In his oral evidence, it was clear that Dr Miller had previously told
Mr Rana that his second note was not a "legal report".[313] It had been prepared in response to a series of questions put to him by Mr Rana. His statement that
Mr Rana's employment probably made a significant incidental contribution to exacerbations of his diabetes was incorrect. His military employment had been completed some 25 years before he was diagnosed with diabetes.[314] Dr Miller accepted that Mr Rana experienced stress in the Army and suffered from glandular fever. He also accepted that it is possible that Mr Rana could have been suffering from sub-clinical diabetes without knowing it while he was in the Army.[315] A large number of people - in the order of four for every one who is diagnosed - have diabetes and do not know it. Dr Miller said:
"... So I cannot deny that you may have had diabetes. If you ask me whether it was likely, I would say no but I can't deny that it was possible."[316]
231. In answer to a question by Mr Rana regarding the role of stress, Dr Miller said:
"I think I can only say as a generalisation that people under stress, if they already are prone to diabetes or have diabetes, may develop higher blood sugar levels which can either exacerbate the diabetes they have or can accelerate the development of diabetes which would have happened anyway.[317]
Later, Dr Miller ruled out stress as a cause of hypoglycaemic attacks suffered by
232. In giving evidence, Dr Miller said that type 2 diabetes is more prevalent in people from south eastern Asia than it is in the European population or the Australian population other than those with Aboriginal heritage. There is a strong link between diabetes and a person's genetic makeup. With his history, Mr Rana was more likely to develop diabetes than a person who did not share it. Mr Rana's mother had died of diabetes and his younger sister suffers from it.
233. As to the impact of Mr Rana's family history and being Nepalese on the probability of his contracting diabetes, Dr Miller said:
"I can't say, on the balance of probability, how likely it would be that you would have had diabetes when you were in your twenties, when you were in the army. However, yes, the answer is that it does make you more liable than the average person to develop diabetes some time in your life. ... It can occur at any age. It tends to occur, on average, around the age of 40 to 50."[319]
234. Dr Miller discounted the change in Mr Rana's diet from vegetarian in an agrarian Nepalese society to a diet of meat and fatty foods and an increased intake of alcohol and smoking as factors in the increased risk of contracting diabetes. They would only become factors if Mr Rana had put on weight and become obese. He was not obese. Therefore, it is unlikely that those factors were relevant in the onset of his diabetes. In any event, being overweight is only one of the factors and it is not a necessary factor.[320]
235. Ms Bean explored the aspect of the relationship between anti-psychotic medication and diabetes and whether the mechanism is via weight gain. Dr Miller replied:
"I think that's not necessarily so in every case. That's certainly been suggested as the likely mechanism in many cases where diabetes has been diagnosed in people on antipsychotic medication. A lot of them have gained weight and gaining weight is a risk factor for developing diabetes, it's not the cause, it's another risk factor. However, I haven't had a chance - I haven't been briefed on this appearance here today, I'm afraid, and I haven't had a chance to study all the literature critically, but I believe that in not all cases has there been weight gain. But there are some cases where diabetes - we've suspected that diabetes is more - occurs more readily in people on these antipsychotic medications in the absence of weight gain, yes, some of them. Mostly, however, they've gained weight.
So in the absence of any weight gain it's less likely that there's a causal - - -?---Yes, well, in general certainly that's true, yes, yes."[321]
236. There is no direct link between smoking and the development or worsening of diabetes. Alcohol is not a cause of diabetes but a diabetic who consumes large amounts of alcohol may well suffer poor control of his diabetes as a consequence during the period in which he is drinking it. There is no long term association between heavy alcohol consumption and the development of diabetes or its worsening.[322]
237. Dr Miller recorded the medications taken by Mr Rana for diabetes as Diaformin (Metformin), Glyade (or Glicazide) and Gemfibrozil. He had also recorded Mr Rana as taking Lipidol to control his cholesterol and Creatin as a medication to reduce muscle pain resulting from his taking Lipidol. Crestor, known also as Rosuvastatin, was another medication prescribed for his high cholesterol but Mr Rana was not taking it when he first saw Dr Miller.
238. Mr Rana had the following exchange with Dr Miller regarding Olanzapine and its role in the onset of diabetes:
"Having said all that, now let's turn to medication. First I was put in antipsychotic medication by Dr Carmen DePasquale [sic] in 1998?---Right.
It gave me serious reaction like more, you know, toilet runs, sweatiness and things like that but he did not put me in test for diabetes but I did suffer subsequently. Drugs were tested around and he gave me three samples, given to him by salesmen, like olanzapine and that sort of drugs?---Yes.
Would those combination of drugs accumulated in my system cause me to have dysfunctional metabolism?---No, I don't believe they would.
Is olanzapine more than likely to contribute to bringing diabetes late on-set?---There have been reports, not well substantiated, that olanzapine and other similar drugs can accelerate the development of diabetes in a person who is already predisposed to be diabetic. The risk is not certain of that happening. It's perhaps 20 to 30 per cent more than in somebody who is not on one of those drugs. It's a contentious area. We don't really know the answers and we don't have good figures to assess the added risk, if any, of a person on olanzapine or similar medication developing diabetes earlier than they otherwise would have.
So it seems that in your discipline there is a ..... going resource either supported by the medicine industry of course?---Yes. I don't know who supported the research but there have been studies suggesting that drugs used to treat schizophrenia, including olanzapine, in people taking them diabetes is more likely. It's also more likely in people with schizophrenia, assuming that's what the person has, anyway."[323]
239. When asked further by Mr Rana regarding the contribution of the anti-psychotic drugs he has taken to his diabetes, Dr Miller also said:
"From what I've read and what I've said, there is evidence, some of it varying and some of it conflicting, that antipsychotic drugs do have an adverse effect on the blood sugar level and in other words, the management of diabetes in some people. Not in most but there is a - it can't be discounted as a possible factor. That's right. Yes."[324]
240. As to the particular role of Risperidone, that Mr Rana had taken between 1998 and 2002, and Seroquel (Quetiapine) that he has taken since then,
Dr Miller said that they were on a list of drugs relatively more likely to lead to diabetes. They can lead to raised blood sugar in susceptible patients. The following exchange took place between Ms Bean and Dr Miller regarding the role of the two drugs in the development of Mr Rana's diabetes:
"The two mentioned are included in some studies which - and the suggestion is that both of those are included amongst the antipsychotic medications that can lead to rises in blood sugar in susceptible patients, yes.
Where such an effect does occur, though, you would expect that it would occur within a relatively short period of time would you, of the taking of medication?---The reports suggest that it occurs, yes, within the first weeks of beginning taking the drug, yes, if it occurs at all, yes.
So assuming the introduction of risperidone in 1998 and seroquel in 2002 and assuming the onset of diabetes in 2005 that would tend to suggest there's no causal relationship wouldn't it between the drugs and the diabetes?---Well, it certainly would in respect of the risperidone, because that had been finished a long time before the onset - well, the diagnosis of diabetes. It doesn't get the ..... seroquel off the hook, though, because I believe he was taking that in '05 when he was first diagnosed with diabetes. I think that's true.
Well, yes, doctor. However, noting that he'd been taking it since 2002 - - -?---I see what you mean, yes, I see your point.
- - - at that point and drawing that together with your previous answer, that would militate against the connection in the case of that drug, wouldn't it?---Yes, well, yes, except that we don't know, we don't have any data from when he first took that tablet in 2002 as to the state of his blood glucose levels then. But certainly no diagnosis of diabetes had been made, but we have no knowledge of what his blood sugar was. It may have been raised without him knowing it. I don't know. So I can't totally exclude that as a factor early in the course of the tablet in '02, no. Whether it has a bearing on anything now is a moot point, but, no, I can't exclude that.
Taking into account the time delay, however, and the other risk factors operating in Mr Rana's case, in particular his family history and his age, it's not a probable explanation, is it?---I think if there is any relationship now it's probably a less than five per cent likelihood, something like that. I mean, I think there are many factors militating against him as being a diabetic, quite apart from the medication that he's taking. I think that is - if it has any effect at all, it's a minor effect. I can't discount that it may have a minor effect but I don't believe it has. It's a major issue with his diabetic control as of now.
Similarly in relation to causation, doctor, that is, in relation to the role - the actual precipitation of diabetes, is it?---No, I don't believe any of these drugs have ever been implicated in the causation of diabetes at all. No.
So you wouldn't regard either of those drugs as a causal - - - ?---No.
- - - or contributory factor to the - - - ?---Possibly contributory to the control.
Just excuse me, doctor, I'll just make sure that I've asked you everything that I need to. Doctor, just as a matter of completeness, in terms of the worsening of control of diabetes, what is the mechanism by which the control of the diabetes becomes more difficult by virtue of the anti-psychotic medications where that effect does occur?---I think nobody knows. There are theories, for instance, that somebody with schizophrenia may be less likely to be meticulous about dietary or control or may not take tablets regularly or well - that's one theory. Whether that's so in this case, I'm not commenting but I don't believe it is so in this case but that is one of the theories and nobody - other than that, I don't believe there is any good evidence as to why there is a statistically increased chance in the early times of giving these drugs that diabetes can be either exacerbated or unmasked. I don't think anybody knows why. I certainly don't. But the literature doesn't really give any answers on causation."[325]
241. Dr Miller agreed with the proposition put by Dr Peter Stevenson, who is a Consultant Physician, that it is very hard to pinpoint the contribution by drugs. He also agreed, and added that it is well documented, that those who have been diagnosed with schizophrenia are two to four times more likely to contract type 2 diabetes. Taking schizophrenics and non-schizophrenics, there are proportionally more schizophrenics with diabetes than non-schizophrenics with the condition. The risk ratio is something like two to four times the number.[326] Nobody knows why that is so. It is mainly a genetic condition and the actual cause is quite unknown. The relationship that has been identified is a purely statistical relationship and it is an unexplained relationship. It may be that both schizophrenia and diabetes have genetic components but that is a speculative proposition. He could not say that it is a link but it is possible that it is a link. The fact that the two conditions are observed together does not mean that schizophrenia causes diabetes.[327] A family history is not necessary for either condition for there are plenty of schizophrenics and diabetics who have none but that does not deny the possibility that it could have a genetic component.[328]
242. Dr Stevenson, who is a Fellow of the Royal Australasian College of Physicians and a member of the Royal College of Physicians of the United Kingdom, has been a Consultant Physician in General Medicine and Critical Care Medicine since the early 1970s. He said that there are two types of diabetes: insulin dependent diabetes, which is not relevant in this case, and non-insulin dependent (diabetes mellitus 2), which is more common and becoming increasingly so.
243. Dr Stevenson noted in his report that Mr Rana had shown him a report dated in 1982 indicating that he did not suffer from diabetes.[329] He recorded that
Mr Rana's mother, grandmother and sister have been diagnosed with diabetes and that Mr Rana was diagnosed in 2005 as suffering from diabetes mellitus type 2.[330]
244. In re-examination, Dr Stevenson observed that Mr Rana's glucose had been 6.6 mmoL/L on 8 August 1989.[331] He would need to know whether it had been taken on a fasting or non-fasting basis. If he were fasting, it would be consistent with the pattern that people who have diabetes mellitus type 2 often present with abnormalities for some years before the diagnosis is made. On 20 February 1991, Mr Rana's glucose level was recorded as 4.4 mmoL/L.[332] That level, Dr Stevenson said, is where Mr Rana's fasting level should have been. If his earlier 1989 level had been constant, he would have expected Mr Rana to be getting worse and worse. Instead, the reading was one that "... you wouldn't mind ... yourself."[333] On 14 July 1992, Mr Rana's glucose reading was 5.9 mmoL/L.[334] Dr Stevenson described that reading as reflecting a slightly elevated level but, again, he would need to know whether or not Mr Rana had been fasting. He could not draw any firm conclusions from that reading other than to say it was "not overtly diabetic, it's just over the border though".[335]
245. Dr Stevenson said that, whether a person contracts diabetes mellitus is fundamentally determined at birth. Twin and familial studies have established that it is a constitutional and very strongly genetically-determined condition. There is a rate of almost 100% in the concordance of diabetes mellitus type 2. Environmental factors may affect the timing of the expression of diabetes mellitus by bringing it forward by a few months or years but, whether or not a person will contract it, is fundamentally determined at conception. Obesity, which may also be a factor in the onset of diabetes mellitus, is not a factor that is relevant in Mr Rana's case.
246. As to the incidence of diabetes mellitus in the populations of South East Asia generally and of Nepal in particular, Dr Stevenson said:
"... [G]enerally there's a very high incidence in South Eastern Asian populations. India is now, well, it's the world capital of diabetes with up to 12 per cent of adults. Surprisingly in Nepal it is even higher although the figures aren't quite so well worked out and it's rather patchy, it ranges between 16 per cent of all adults in Kathmandu valley up to over 19 per cent of adults over the age of 40 which are about four times the figure in the Australian population and very similar to figures for Australian Aborigines. So from a mixture of genetic and environmental factors it's a very high diabetes area."[336]
247. In Mr Rana's case, the causes of his diabetes mellitus would be tangled:
"Well, there's a very strong and compelling history of genetic disposition which is the fundamental cause in most people and probably most people in South East Asia, it's thought that some infections have some effect on the expression of diabetes but it could be childhood infections. Even such factors as maternal nutrition and the nutrition of grandparents have shown to have flow-on effects in the incidence of diabetes, so it would be that tangle of constitutional effects. There were postulated effects with regard to drugs which I addressed in the report but which did not seem to be major.'[337]
248. In his report, Dr Stevenson had reviewed the medication that had been prescribed to Mr Rana over the years:
"As the issue of medication seemed important I reviewed the documentation. It seemed that the major medication prescribed for schizophrenia was initially Risperdal and subsequently Seroquel. Dr Fellner alluded to the prescription of olanzapine. In the 1980s he had occasional sleeping tablets and benzodiazepines. Phenothiazines were prescribed at Hillcrest Hospital and also dothiepin and trifluoperazine in 1991. Dothiepin and Stelazine continued. In 1994 he was hospitalised with an overdose of fluoextine. Risperidone was being prescribed by 1998 and he was also on medication for herpes urethritis (Zovirax). In 2004 2008 - he was taking Seroquel. In 2007, quetiapine (Seroquel) was listed as prescribed by Professor Jha. In 2007 olanzapine was listed as prescribed on medication sheet at the Royal Adelaide Hospital though on under Regular Medications, the date 6/07, olanzapine is written 5-10mg prn and it is then crossed out. In the chequerboard where the administration of medication is to be recorded it is not recorded as ever having been given.
On review of the medication charts from the Royal Adelaide Hospital, 6/6/07, there was written medication olanzapine wafer, oral 10mg stat, which had been signed - against it was written 'Pt refused' (patient refused)."[338]
249. Dr Stevenson said that schizophrenia is also a risk factor for the onset of diabetes mellitus. Studies have shown that there is an increased relative risk by a factor of 2:4 but the reasons for that increased risk are unclear. As the studies have involved those suffering from schizophrenia who have been treated with the older anti- psychotics and those who have not, the increased risk factor exists irrespective of any possible drug effect. In his oral evidence, Dr Stevenson explained that the relationship between schizophrenia and diabetes was more an association than a postulated causal link. Schizophrenics are generally more obese than the general population. The increased incidence of diabetes in schizophrenics - two to four fold - would probably reflect an overlap in the genetic predisposition to the two conditions. It is difficult to see any causal mechanism whereby schizophrenia would cause diabetes or obesity would cause schizophrenia. The best "working hypothesis" would seem to be that there is an overlap of genetic disposition to the conditions.[339]
250. Severe trauma or critical care illnesses may lead to a condition known as diabetes of stress. Such factors may temporarily unmask the latent disposition to diabetes in a genetically-predisposed person. The patient becomes overtly diabetic for the period of the psychological stress and then usually reverts to a non-diabetic or latent diabetic state when the extreme stress is removed. As for psychosocial stress, Dr Stevenson said:
"Psychosocial stress and its effect on diabetes are subtler and more speculative. It may be that diabetic control temporarily worsens during unusual severe external stressors. The physiological stress is obviously less than in major medical disease. Compliance and monitoring of diabetes may be affected. However, even considerable social stress in the 1980s is not a plausible risk factor for the development of chronic long-term diabetes in the next century. ..."[340]
251. As for the contribution of drugs to Mr Rana's diabetes mellitus,
"There have been claims that the newer generation of antipsychotic agents, the so-called atypical antipsychotics, have the potential of unmasking or inducing diabetes in susceptible persons. The evidence is complex and to some degree contradictory, but there does appear to be an effect relevant particularly to some of the agents. It has to be interpreted cautiously because, as I have stated above, diabetes is 2-4 times more common in schizophrenics anyhow.
At least one report from Buffalo, suggested that treating schizophrenics effectively with modern agents reduced and not increased the incidence of diabetes. However, most studies would suggest a minor increase.
A recent review by Smith et. al. 'First versus second generation antipsychotics and risk of diabetes in schizophrenia': systematic review and meta-analysis, Journal of Psychiatry (2008) 192: 406, concluded that the increased prevalence of diabetes and schizophrenia is partly attributable to antipsychotic treatment, in particular second generation antipsychotics. They found the overall relative risk of diabetes in patients prescribed one of the second generation antipsychotics was 1.32. [This number indicates in fact a modest elevation and means medication may be relevant in about a third of new cases. From a causative point of view this means that a person taking an antipsychotic agent who develops diabetes is about twice as likely to develop the diabetes because of constitutional factors, as because of any effect of the agent.]
Because of the very strong underlying genetic basis of type 2 diabetes, the effect of a pharmacological agent seems at worst to bring forward or unmask genetically-inevitable diabetes rather than to cause diabetes de novo in a person who otherwise would not have suffered it.
Professor Joseph Proietta in a review on Diabetes and antipsychotic drugs in the Australian Prescriber in 2004 noted considerable variations in the risk of elevating diabetes. In Risperidone the relative risk was minimally raised 1.02. The risk with Olanzapine was significantly raised 4-fold. This however has not been the conclusion of all studies. A recent review by Lambert et. al. in the American Journal of Epidemiology_, Vol. 164, 'Diabetes risk associated with the use of Olanzapine, Quatiapine and Risperidone in veterans' health administration patients with schizophrenia', concluded diabetes risks were higher in patients under the age of 50 years. For all three second generation antipsychotic agents the hazard ratio was 1.6-1.7. There were no significant differences amongst the three second generation antipsychotics. ..._
It is of interest that in those studies most cases of either Quetiapine-associated or Risperidone-associated hypoglycaemia appeared within 3-6 months. Also, the major postulated factor seems to be the precipitation of weight gain - not relevant here.
Anecdotal evidence suggests Olanzapine is the agent with the highest risk of unmasking diabetes. Olanzapine does not actually seem to have been ingested by Mr Rana. So far as I could tell, it was offered once but declined.
So in summary and specific, the evidence is that some of the second generation antipsychotic agents have relatively weak but significant effects in the potential unmasking of diabetes in susceptible patients. This seems to be often associated with weight gain - not relevant here. It seems generally to occur in the first 3-6 months of prescription of the agent (this does not seem to be the case here). It probably does not precipitate diabetes in someone who would not otherwise have got it, but it may well unmask or bring forward diabetes mellitus by perhaps 3-6 months.
I understand there is a 7-year interval between the initial prescription of antipsychotic agents and the subsequent diabetes in this case, so medication is probably not a factor here.'[341]
252. The footnote that I have omitted from this extract of Dr Stevenson's report referred to the study by Messrs Lambert and others entitled "Diabetes Risk Associated with Use of Olanzapine, Quetiapine, and Risperidone in Veterans Health Administration Patients with Schizophrenia - Lambert et al. 164 (7): 672 - American Journal of Epidemiolgy" (Lambert report)[342] and reads:
"Assuming that the observed associations are causal, approximately one third of new cases of diabetes may be attributed to use of olanzapine, risperidone and quetiapine in patients taking these medications. Average length of follow-up was also similar (just over 1 year). ..."[343]
253. In his oral evidence, Dr Stevenson expanded upon the report by Messrs Smith and others entitled "First versus second generation antipsychotics and risk for diabetes in schizophrenia" (Smith report):
"... The Smith review is a meta analysis in the journal of psychiatry and that's the one I quote at the top of page 8 because it's, I suppose, the newest, the biggest and it ties things together mostly. That showed - that concluded that there was an association but it was weak and the relative risk was 1.32 so this is an increase by a factor of about one-third. This means that, you know, if you compare that with, say, a risk of about two, that means it is a toss up in the individual case where the factor you're looking at, the drug has had a causal influence or whether it's something else. If it's 1.3 then it's even weaker than that. So the suggestion is that of new cases of diabetes in schizophrenics, a minority may well be associated, accelerated, aggravated in some degree by the medication. Other studies have tended - some have said that the risk is higher with some drugs like olanzapine and lower with risperidone and others have found not too much difference between it. I suppose of interest is looking at when it happens and it seems to be the strongest mechanism postulated is weight gain and most of the case reports seem to suggest that onset of diabetes in the first three to six months, or in one case report up to bit over a year, it is probably the time course and the association with weight gain. So that's, I suppose, the markers which would make one think that in an individual case there is likely to be or is more arguably an association."[344]
254. In Dr Stevenson's opinion, Mr Rana was not obese and obesity did not seem to be a major issue.[345] The circumstances of Mr Rana's Army service were not plausibly a risk factor in the development of his diabetes over 20 years after his discharge. Mr Rana's change of diet on his arriving in Australia and his adoption of an "Australian diet" would not be a major or substantive issue.[346] The onset of his diabetes was adequately explained by his family history and his nationality. There did not seem to be any pattern that particularly suggested an association with, or an aggravation by, prescription of antipsychotic drugs. The reason for that was that they had been commenced some seven years previously. On the balance of probabilities, he did not consider that antipsychotic drugs had contributed to the development of
255. As to the role of psychological stress in the development of diabetes, Dr Stevenson said that he was aware of a study suggesting psychosocial stress in the first year of life as a risk factor for the development of diabetes - usually type 1 - later in life. The studies can only be described as tentative. People under stress may not control their diabetes as effectively but he knew of no link that would put social stress of any sort as a causal factor for the development of diabetes a quarter of a century later.[348]
256. We are satisfied that Mr Rana suffers from diabetes mellitus type 2. The precise time from which he has suffered that condition is difficult to pinpoint. We are satisfied that his blood glucose levels recorded in 1991 and 1992 would not have supported a diagnosis at that time. Although it is not clear whether the readings were taken after Mr Rana had fasted or not, Dr Miller and Dr Stevenson were clear in their evidence that, even if taken after fasting, they were not at a level that would have supported a diagnosis. The earlier reading taken in 1989 would have been sufficient to support a diagnosis had it been taken after Mr Rana had fasted. The lack of any evidence that the RAH followed up the readings to carry out further tests suggests that it was taken after fasting. That suggestion is supported by the later readings in 1991 and 1992 that would not have led to a diagnosis.
257. It was not until much later that the diagnosis was made. It was not made until some time in the 2000s. The precise date is not clear but we are satisfied that it had certainly been made by July 2008 when Dr Miller referred to it. It was clearly established when Dr Fellner referred Mr Rana to Dr Bartold in 2009.
Dr Miller referred to its having been made in 2005. We have no other evidence on which we are satisfied that a diagnosis was made or that Mr Rana was suffering from diabetes between the commencement of his Army service and its diagnosis in 2005.
258. There are essentially three propositions on which Mr Rana based his claim that his diabetes was contributed to in a material degree by his Army service. We will consider each in turn.
259. The first is that his Army service contributed in a material degree to his diabetes on the basis of the food that he ate. There is no evidence to support our finding, on the balance of probabilities, that Mr Rana's change of diet from a vegetarian diet in an agrarian Nepalese society to that he adopted in Australia contributed to the onset of his diabetes. We have no evidence of Mr Rana's diet during his Army service. Even if we were able to assume that it was the unhealthiest of diets, Dr Miller specifically rejected the proposition that a change of diet from vegetarian food to meat and fatty foods would have that outcome. He also rejected the proposition that an increased intake of alcohol and smoking are factors in the increased risk of contracting diabetes. They would only have become factors if
Mr Rana had put on weight and become obese. We have no evidence that Mr Rana has ever been overweight let alone obese before the onset of his diabetes.
260. That brings us to the second basis on which Mr Rana has made his claim. It is that of stress experienced during his Army service. On the basis of his own evidence, we accept that Mr Rana found his experiences in the Army very stressful. On the basis of the medical evidence, we are not satisfied that any stress from which he suffered, however severe, would have contributed in a material degree to the onset of his diabetes. The highest that Dr Miller put any causal link was that it was possible that Mr Rana was suffering from sub-clinical diabetes in the Army. Any stress could have accelerated its onset but Dr Miller rejected the proposition that the causal link was probable when there was a 25 year gap between Army service and diagnosis. Dr Stevenson too referred to environmental factors, which would include stress, as accelerating the onset by a few months or a few years but rejected the proposition that it would be a cause of diabetes. Severe trauma or critical care illnesses may lead to a condition of diabetes of stress but we are not satisfied that
Mr Rana has suffered from a trauma or illness of this type. Paranoid Schizophrenia is not an illness of the type to which Dr Stevenson was referring.
261. Given the expert evidence of Dr Miller and Dr Stevenson when read against a background of there being no evidence that Mr Rana suffered from diabetes between 1989 and 2005, we are not satisfied that any stresses he suffered during his Army service contributed in a material degree to his diabetes mellitus type 2.
262. That brings us to the medication Mr Rana took as a result of his Paranoid Schizophrenia. Medication and its effects is the third basis on which Mr Rana sought to base his claim. As we said earlier, once we found that Mr Rana's Paranoid Schizophrenia was not contributed to by his Army service, we could not be satisfied that it contributed to his diabetes mellitus type 2 as a consequence of his taking all or any of the medication he was prescribed for Paranoid Schizophrenia. Should we be found to be incorrect in our finding regarding the causal connection between his Army service and his Paranoid Schizophrenia, we have considered his claim for diabetes on the basis of his medication.
263. On the basis of the evidence of Dr Jha, Dr Stevenson and Dr Miller and assuming that Mr Rana took the medication, we are satisfied that his taking Haloperidol would not have contributed to his developing diabetes. It is possible that Risperidone, Olanzapine and Quetiapine (also known as Seroquel) can unmask or induce diabetes in susceptible persons. This is the evidence of Dr Stevenson and Dr Miller as well as of Dr Jha. Possibility is not enough and, in looking further, we have given greater weight to the evidence of Dr Miller and Dr Stevenson than to that of
Dr Jha. Dr Jha is a Psychiatrist, whose specialty does not relate to diabetes, whereas Dr Miller specialises in diseases of the kidney and Dr Miller is a Consultant Physician in General Medicine and Critical Care Medicine.
264. On the basis of the evidence of Dr Miller and Dr Stevenson, we find that the earliest time from which Mr Rana had taken Risperidone was 1998 and Seroquel 2002. Mr Rana was offered Olanzapine in the RAH in 2007 but we are satisfied from the hospital's records that he did not take it at that time. Mr Rana's evidence was that the medication prescribed by Dr De Pasquale included "Olanzapine and that sort of drug" and reference to his taking it was made by Dr Fellner. We accept that he has been prescribed Olanzapine at some time while he was being treated by Dr De Pasquale. The earliest reference we can find to Dr De Pasquale's treating Mr Rana is in 1986. He did so for some time but there was then a break of some years before Mr Rana was again referred to him in 1998. Given that Olanzapine belongs to the newer generation of anti-psychotic agents, we consider it more likely that Dr De Pasquale prescribed Olanzapine during 1998 rather than during the earlier period of treatment. As we can find no reference to Dr De Pasquale's treating
Mr Rana after 1998, we find that their professional relationship ended either in that year or shortly thereafter.
265. On the basis of the evidence of Dr Miller and Dr Stevenson, we find that it is possible that Olanzapine, Risperidone and Seroquel may unmask or accelerate the onset of diabetes by two or three months. That unmasking will generally occur in the first two or three months of prescription or perhaps six months. In one instance in the literature, it was reported at twelve months but not longer. Given that Mr Rana was diagnosed with diabetes in 2005 and he was prescribed Risperidone from 1998, we are not satisfied that it contributed in a material degree to the onset or acceleration of his diabetes. We reach the same conclusion in relation to Olanzapine which was prescribed in 1998. The time between taking the drug and the diagnosis of diabetes is too great to satisfy us that the drug made a material contribution to Mr Rana's diabetes. We also note that, even if we accept Mr Rana's evidence, he took only in a very small quantity of the drug as he was given a sample of it and not a prescription. That further diminishes any causal connection.
266. Seroquel was prescribed in 2002 and so somewhat closer to the date of diagnosis of his diabetes in 2005 but, even then, a couple of years after the prescription. Dr Miller assessed any contribution it might have made as probably less than 5% given the risk factors attributable to Mr Rana's cultural heritage and family history. Dr Stevenson also assessed any contribution as low. His review of the literature led him to conclude that a person who is taking an anti-psychotic agent and who develops diabetes is about twice as likely to develop that diabetes from constitutional factors than from the agents.
267. On the basis of the evidence given by Dr Miller and Dr Stevenson, we find that Mr Rana is a person who is constitutionally susceptible to developing diabetes. That is as a result of his Nepalese heritage and his family history. We also find that his diabetes was diagnosed at least two years after he was prescribed Seroquel. The time delay and the other constitutional factors lead us to conclude that the likelihood of Seroquel's accelerating or unmasking Mr Rana's diabetes is very low. The likelihood of its causing diabetes is even lower and, on the evidence of
Dr Miller and Dr Stevenson, we find that there is no acknowledgement that there is any likelihood at all. In light of this, we are not satisfied that Mr Rana's taking Seroquel contributed to the onset or acceleration of his diabetes in a material degree.
(1) affirm the reviewable decision of the respondent dated 9 May 2007 in proceedings No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses; and
(2) affirm the reviewable decision of the respondent dated 14 February 2005 in proceedings No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during the applicant's service in the Australian Army.
I certify that the preceding two hundred and sixty seven paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and Professor PL Reilly
Signed: .......................................................................
Counsel for the Respondent Ms Bean (8, 9 & 10 December 2008)
[2] After the MRC Act came into operation, the MRCC was given responsibility for decisions under the SRC Act as well as the MRC Act.
[3] Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
[4] Officers of the Military Compensation and Rehabilitation Service of the Department of Veterans' Affairs acted as delegates of Comcare in claims made under the 1988 Act.
[5] T documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) in S2005/58 (TS2005/58 documents) at 131-132 and refusal on 14 February 2005 to review decision at 136-137
[9] [2005] AATA 1069; (2005) 89 ALD 180; Deputy President Walker
[11] Documents lodged under s 37 of the AAT Act in S2007/1885 (T2007/1885 documents) at 51
[16] Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595 at [3]- [22]; 390-395; 597-603
[17] [1988] AATA 133; (1988) 15 ALD 167; Deputy President Layton, Senior Member Kiosoglous and Dr Williams, Member
[19] [2004] AATA 445; (2004) 81 ALD 149; Deputy President Jarvis and Dr Eriksen, Member. Appeal dismissed in Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 per Finn J and appeal from that judgment dismissed in Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85 per Marshall, Mansfield and Stone JJ. Mr Rana's application to the High Court for orders nisi for prerogative writs dismissed: Rana v Marshall J [2007] HCA Trans 189 per Crennan J.
[22] Transcript, 10 December 2008 at 144
[24] [2004] AATA 1156; (2004) 40 AAR 45; Downes J, President
[25] [2003] FCA 318; (2003) 73 ALD 659; Cooper J
[26] [2004] AATA 1182; (2004) 39 AAR 496 at [4]- [5]; 498
[30] [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253 at 130; 255
[32] [2003] FCAFC 318; (2003) 73 ALD 659 at [33]; 667
[33] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253; Downes, Greenwood and Tracey JJ
[34] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 at [22]- [23]; 579; 258
[35] [1999] FCA 753; (1999) 56 ALD 84; 29 AAR 350; Wilcox, Branson and Tamberlin JJ
[37] [2010] AATA 180; (2010) 51 AAR 422 generally and particularly at [71]-[75]; Deputy President Forgie
[38] [2010] AATA 180; (2010) 51 AAR 422 at [75]; 441
[40] [2005] FCA 640; (2005) 147 FCR 39; 41 AAR 1 at [8]; 42; 5
[41] "This section applies to an employee who is incapacitated for work as a result of an injury ...": SRC Act, s 19(1).
[42] [2005] FCA 640; (2005) 147 FCR 39 at [39]; 49
[43] [2005] FCA 640; (2005) 147 FCR 39 at [48]; 50
[44] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385; at [24]-[111]; 603-632; 395-426; Deputy President Forgie
[45] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385 at [112]- [118]; 632-635; 426-429
[46] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[47] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[53] [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467; Mathews, President, Hill and Beaumont JJ. Presidential Members
[55] (1988) 14 NSWLR 481 at 488
[56] (1988) 14 NSWLR 481 at 488
[57] Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 485 per Yeldham J
[58] (1988) 14 NSWLR 481 at 491
[60] [1976] 1 NSWLR 478 at 488
[61] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385; at [24]-[111]; 603-632; 395-426
[63] [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253 at 128-129; 254
[64] Re R and Commonwealth [1988] AATA 133; (1988) 15 ALD 167
[65] [2004] AATA 445; (2004) 81 ALD 149 at [1] and [5]; 152-153
[66] [2004] AATA 445; (2004) 81 ALD 149 at [170]; 193
[67] [2004] AATA 445; (2004) 81 ALD 149 at [5]; 153
[68] [1988] AATA 133; (1988) 15 ALD 167 at [3]; 168
[69] [1988] AATA 133; (1988) 15 ALD 167 at [103]- [104]; 168
[70] [1988] AATA 133; (1988) 15 ALD 167 at [3]; 168
[71] [2004] AATA 445; (2004) 81 ALD 149 at [91]- [100]; 169-173
[72] Respondent's submissions at [2.12]
[77] 2007 Amendment Act, Act No. 54 of 2007, s 3, Schedule 1, Part 1, items 5 and 11 and s 2(1), item 2.
[78] 2007 Amendment Act, s 3, Schedule 1, Part 2, item 41(2)
[80] The types of service are defined at ss 5C(1) and 6 to 6F, 5Q(1A) and 68(1), 5Q(1A), 68(1) and 120(7) and 5C(1) of the VE Act respectively.
[85] Christine Lodowski v Comcare [1998] FCA 158; Goldberg J
[86] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; 67 ALJR 170 at [2]; 449-450; 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ
[87] [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J
[88] [1992] HCA 66; (1992) 110 ALR 449; 67 ALJR 170 (1992) at [2]-[4]; 450; 170-171
[89] [2001] NSWCA 305; (2001) 52 NSWLR 705; Priestley, Powell and Heydon JJA
[90] "There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved?
Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?": [2001] NSWCA 305; (2001) 52 NSWLR 705 at [87]; 745
[92] [1981] UKHL 13; [1982] AC 529 at 545 per Lord Diplock, with whom Lords Russell of Killowen, Keith of Kinkel, Roskill and Brandon of Oakbrook agreed
[93] [1981] UKHL 13; [1982] AC 529 at 545
[94] [1991] HCA 61; (1991) 102 ALR 487, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ
[95] [1991] HCA 61; (1991) 102 ALR 487 at 490-491
[96] Drake v Minister for Immigration [1979] AATA 179; (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60 at 589; 419; 68 per Bowen CJ and Deane J
[98] See, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583-585 per Mason J
[99] [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 66; 688; 159 per Deane J, with whom Evatt J agreed
[100] [1965] 1 QB 456; 1 All ER 81 at 476; 87
[101] [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 66; 689-690; 160 per Deane J, with whom Evatt J agreed
[102] [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 67-68; 689; 160
[105] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951at [5]; 182; 17; 956
[106] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [11]; 629; 843-844
[107] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [23]; 636; 849
[108] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951 at [26]; 190; 24; 961
[109] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951 at [27]; 190-191; 24-25; 961 footnote omitted
[110] In Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294, Dawson, Gaudron and McHugh JJ had decided that the trial Judge had erred in refusing an application by JL Holdings for leave to amend its defence saying at 155; 357-358; 297:
"... Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment ,such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. ..."
[111] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951at [97]-[99] and [102]; 213-215; 43-44; 975-976 footnotes omitted
[112] [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
[114] [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746 at [49]; 628; 588; per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594
[116] [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285 at 333; 289
[117] Professor SD Hotop (now Deputy President Hotop), Principles of Australian Administrative Law, 6th edition, 1985 at 171 referred to with approval by Lee J in Courtney v Peters & Ors [1990] FCA 526; (1990) 27 FCR 404; 98 ALR 645; 98 ALD 557 at 411; 653; 565
[118] Robert Bosch (Australia) Pty Ltd v Mr Egon Fice, Member of the Administrative Appeals Tribunal [2009] FCA 247 (2009) 175 FCR 258 at [54]- [57]; 271-272 per Ryan J
[119] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345 at [122]; 320; 417; 494; 1168 per Kiefel J
[120] [2005] AATA 527 per Senior Member McCabe
[123] Seltsam Pty Limited v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262; Spigelman CJ, Stein JA and Davies AJA at [98]; 278 per Spigelman CJ
[124] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [136]; 284
[126] [1959] HCA 8; (1959) 101 CLR 298; 32 ALJR 395 at [2]; 305; 396-397
[127] [1959] HCA 8; (1959) 101 CLR 298; 32 ALJR 395 at [1]; 305; 397
[128] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [94]; 277
[129] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [98]; 278 per Spigelman CJ
[130] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [136]; 284
[131] [2000] NSWCA 29; (2000) 49 NSWLR 262 at [137]; 285
[132] (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 disapproved in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29; 87 ALD 341 at [24]; 33; 345 per Branson, Conti and Allsop JJ but not in relation to the meaning of "disease".
[133] (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at 445; 696; 166; 500
[134] (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at 443-444; 694; 164-165; 696; 499
[135] [2010] HCA 5; (1996) 69 FCR 439; 240 CLR 111; 137 ALR 690; 23 AAR 160; 42 ALD 495 at 446; 697; 167; 501
[136] [1964] HCA 34; (1964) 110 CLR 626; 38 ALJR 64; McTiernan, Kitto, Taylor, Windeyer and Owen JJ
[137] [1964] HCA 34; (1964) 110 CLR 626; 38 ALJR 64 at 641; 70
[138] [1964] HCA 34; (1964) 110 CLR 626; 38 ALJR 64 at 642; 70
[139] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226; French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
[140] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226 at [2]; 121; 578; 228
[141] Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 340
[142] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226 at [5]- [6]; 121-122; 578-579; 228
[143] [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423; 65 ALJR 335; Mason CJ, Deane, Toohey, Gaudron and McHugh JJ
[144] [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423; 65 ALJR 335 at [5]; 509;425; 335
[145] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226 at [40]; 129; 585; 233
[146] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226 at [65]; 135-136; 590; 236
[147] [1940] HCA 45; (1940) 64 CLR 538 at 567
[148] [2010] HCA 5; (2010) 263 ALR 576; 84 ALJR 226 at [68]; 591; 237
[149] [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423; 65 ALJR 334 at [15]; 514; 429; 337
[151] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535; Sweeney ACJ, Sheppard and Foster JJ
[153] [1964] HCA 34; (1964) 110 CLR 626; 38 ALJR 64 at 632; 66
[154] [1964] HCA 34; (1964) 110 CLR 626 at 641; 70
[155] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]- [22]; 323; 328; 541-542
[157] [2002] FCA 1464; (2002) 72 ALD 795 at [23]; 795-76
[158] [2005] FCAFC 262; (2005) 148 FCR 232; 89 Ald 258; 41 AAR 539; French, Gyles and Stone JJ
[159] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [ 68]; 250; 276; 557 per French and Stone JJ. An appeal to the High Court was allowed but not on this point: Canute v Comcare [2006] HCA 47; (2006) 226 clr 535; [2006] HCA 47; 229 ALR 445; 91 ald 552; [2006] HCA 47; 80 ALJR 1578; Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ.
[161] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [13]; 542; 529
[162] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [16]; 542-543; 539
[163] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [15]; 542; 530
[164] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [15]; 542; 530
[165] [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595 at [138]; 434; 640
[166] Carl Zeiss Stiftung v Rayner & Keeler Ltd [No. 2] [1967] 1 AC 853 at 935 per Lord Guest approved in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at [21]; 373; 7; 1035 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ
[167] [1939] HCA 23; (1939) 62 CLR 464; Latham CJ, Rich, Starke, Dixon and McTiernan JJ
[168] [1939] HCA 23; (1939) 62 CLR 464 at 531-533
[169] [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at [25]; 375; 9; 1036-1037
[170] [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at [53]; 384; 16; 1041-1042
[171] [2004] AATA 445; (2004) 81 ALD 149 at [161]; 190
[172] Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167 at [102]; 168
[173] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [57]; 165
[174] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [59]; 165
[175] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [61]- [62]; 165
[176] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [63]- [64]; 165-166
[177] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [68]; 166
[178] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [69]; 166
[179] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [69] and [71]; 166-167
[180] (a)-(e): Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [143]; 184 and Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167 at [102]; 168
[181] (f): Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167 at [102]; 168
[182] Findings 1(a) and (b): Re SAN and Comcare
[183] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [37]; 160
[184] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [38]; 160-161
[185] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [141]; 183
[186] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [161]; 190
[187] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [163]; 190-191
[188] Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167 at [102]; 168
[189] Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167 at [105]- [106]; 169
[190] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [144]; 184
[191] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [145]; 184
[192] Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149 at [149]; 185-186
[193] [2004] AATA 445; (2004) 81 ALD 149 at [72]- [90]; 167-169
[194] Transcript at 34-35 and see report of Dr De Pasquale dated 24 February 1998, Exhibit 1 at 1120
[220] Exhibit 1 at 467 and see also further reports dated 18 November 1988, 3 December 1988, 9 March 1989 and 16 May 1989 at Exhibit 1 at 468-469, 480-481 and 490
[235] During cross-examination, Dr Jha acknowledged that the reference in his report to "Mr Rana's psychotic problem started from August 1981. ..." should have been a reference to his "psychiatric problem": Transcript at 83-84. Dr Jha agreed that the notes of the RAH, on which he was relying, had referred only to Mr Rana's suffering from a panic attack on 3 August 1981 and that a panic attack was not a psychosis.
[238] Dr Jha corrected this passage to read "1998" in cross-examination: Transcript at 96
[251] Exbibit 4 at 2 and see Transcript at 144 and 153
[256] Exhibit 4 at 5 and see Transcript at 146-147
[268] We note that this course is unusual but not unprecedented e.g. Re Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988 at [10] per Lander J, Presidential Member, and Dr Eriksen, Member.
[270] Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia
[271] Expert Witnesses in Proceedings in the Federal Court of Australia
[272] Draft Guidelines at [1] and see also Practice Note CM 7 at [1] and Practice Direction at [1]
[274] [1999] WASCA 78, Ipp, Owen and Steytler JJ
[275] [1999] WASCA 78 at [23] per Ipp J with whom Owen and Steytler JJ agreed. Special leave to appeal to the High Court refused on 4 August 2000; [2000] HCATrans 420 per Gummow and Hayne JJ
[280] See, for example, Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242 at [260]; 304 (citations omitted)
[282] See, for example, Transcript at 98
[287] Exhibit 1 at 1121 and see also Transcript at 34
[300] (1), (2) and (3): Transcript at 50
[336] Transcript at 199 and see also 204
[344] Transcript at 201 and see also 207-208
(2010) 240 CLR 111
(1998) 14 NSWLR 481
(2005) 190 FLR 242
(1948) 76 CLR 1
(1939) 62 CLR 464
(1991) 178 CLR 134
(1998) 90 FCR 334
(1979) 46 FLR 409
(1985) 159 CLR 550
(1991) 171 CLR 506
(1980) 44 FLR 41
(1999) 197 CLR 611
(1997) 189 CLR 146
(2009) 175 FCR 258
(2000) 49 NSWLR 262
(1990) 26 FCR 316
(1949) 78 CLR 62
(2009) 174 FCR 574
(1979) 24 ALR 577
(1993) 67 ALJR 841
(1992) 28 NSWLR 26
(1990) 27 FCR 404
(1959) 101 CLR 298
(2010) 263 ALR 576
(2009) 239 CLR 175
(1938) 60 CLR 336
(1964) 112 CLR 125
(1993) 116 ALR 625
(1988) 80 ALR 329
(1985) 101 CLR 298
(2004) 220 CLR 363
(2001) 52 NSWLR 705
(1992) 110 ALR 449
(2005) 147 FCR 39
(2008) 235 CLR 286
(1961) 105 CLR 569
(1963) 109 CLR 580
(1988) 14 NSWLR 481
(1991) 102 ALR 487
(2005) 145 FCR 29
(1940) 64 CLR 538
(2005) 148 FCR 232
(1996) 69 FCR 439
(2007) 156 FCR 536
(1964) 110 CLR 626