Rana v Chief of Army

INTRODUCTION 1 These two applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to review decisions of the Chief of Army were heard together. They have a common factual background. 2 The applicant (Mr Rana) was born in 1955. He enlisted in the Australian Army on 14 October 1980. He was discharged on 13 July 1982 on the ground of his 'retention not being in the interest of Australia or the Army', pursuant to Australian Military Regulation 176(1)(n). 3 On 14 September 2003 Mr Rana wrote to the Defence Force Retirement and Death Benefits Authority (the Authority) regarding his status under the provisions of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the DFRDB Act). It is common ground that his letter invoked s 37 of the DFRDB Act. He sought an order that the Chief of Army inform the Authority that, at the time he was retired, grounds existed on which he could have been retired on the ground of physical or mental incapacity to perform his duties. 4 Section 37 of the DFRDB Act provides: 'Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.' 5 The nature of that power, and in particular the respective functions of the Chief of Army and of the Authority under that section, were addressed in Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306 at 309 (Britt). The Full Court (Fox, Woodward and Davies JJ) said: 'Section 37 does not confer upon the Chief's-of-Staff power to determine that a person be treated as if he had been retired on the ground of invalidity. Section 37 confers on the Chief's-of-Staff only the function of determining and informing the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity. There remains a decision to be made, namely, whether, in the circumstance of the case, the member should be treated as if he had been retired on that ground. Is that decision a matter of discretion? In our opinion, it is … … Is this discretion imposed upon the Chiefs-of-Staff or upon the Authority? In terms it is imposed upon the Authority and we can see no justification for reading the section in any other way. The section confers a specific function upon the Chiefs-of-Staff, that is, the function of determining whether the member could have been retired on the ground of invalidity and informing the Authority of that fact. This is a function properly imposed upon the Chiefs-of-Staff for they are aware of the requirements of service and are therefore able to determine whether the member's medical condition was such as to justify his retirement on the ground that he was unable to perform his duties. But that is the only function which s 37 confers upon the Chiefs-of-Staff. It does not confer upon them the power to decide whether, in the whole of the circumstances of the case, the former member should be treated as if he had been retired on the ground of invalidity or even the power to request that he be so treated.' 6 On 5 April 2005 a delegate of the Chief of Army (the delegate) determined that, at the time of his discharge, grounds did not exist whereby Mr Rana could have been discharged because of physical or mental incapacity to perform his duties. Consequently, s 37 of the Act did not activate further so as to entitle the Authority to determine whether Mr Rana may in fact be treated for the purposes of the fixing of benefits under the DFRDB Act, as if he had been retired on that ground. It is that decision which Mr Rana first seeks to set aside under the ADJR Act. I shall call it 'the principal decision'. 7 Initially, Mr Rana alleged that the decision-maker was not validly authorised by delegation to have made that decision on behalf of the Chief of Army. Upon the relevant materials being adduced, he did not maintain that submission. There is no issue that the delegate was a duly appointed delegate of the Chief of Army for the purposes of making that decision. 8 Because Mr Rana's contentions require careful reference to the reasons for the principal decision, I shall set out the major part of those reasons. They were as follows: 'In making this determination, I state that I have read through the Defence position brief, as presented by MAJ Tattersall and note the development of this case. I am conscious that MAJ Tattersall has offered a differing point of view to that which I have formed by personal investigation. I am guided by the three reports from Dr Miller that advise that on the available evidence, it does not support the contention that, at the time of his discharge, grounds existed whereby Mr Rana could have been discharged on the grounds of invalidity. I further support the interpretation of the AAT decision S86/207 by Dr Miller, in that the two cases are not identical, and that there exist sufficient difference as to be not applicable. Further, I am strongly guided by the evidence of Dr Hoff as late as 8 March 82 that "the diagnosis of aggravation of adjustment order with emotional features was not established during Mr Rana's service". Additional issues that firm my view not to accept Mr Rana's case I note the inference that Mr Rana "may well have suffered from an aggravation of a psychiatric condition as a result of his Army service"; but not to the extent to warrant discharge. Further I note the comment in S86/207, which is based upon Dr De Pasquale's consultation with Mr Rana over three meetings in 1986, "Dr De Pasquale did not consider that the applicant was suffering from a psychiatric personality disorder". It was noted that Mr Rana suffered from a personality problem which was aggravated by events, such as marital difficulties being a contributing factor. It is acknowledged that these events occurred during his Army service. The strength of argument against Mr Rana's contention is further reinforced in my determination by Dr Miller's assessment that there is "no contemporaneous evidence that he (Mr Rana) had these conditions whilst serving in the Army, nor if he did that they rendered him medically unfit for Army service". From the Service history report available to me there is evidence that Mr Rana gave the appearance of being a dysfunctional soldier who poorly performed his duties as a ECN 366-0 STM TECH ORD. However, he presented for medical assessment by Dr Hoff and despite receiving psychotherapy was released by Dr Hoff for return to his normal duties. By absenting himself without leave from his workplace Mr Rana frustrated the normal assessment of medical employment classification by the Defence Health Service to the extent that his discharge in absentia was ordered without the benefit of a final medical board. As stated earlier, I am influenced by Dr Miller in his assessment of the medical documentation available to him from Mr Rana's Central medical file and the variety of medical and other documentation provided by Mr Rana in support of his claim. I note that Dr Miller retains his view despite three requested reviews of his guidance to me, confirming my view that Mr Rana was not sufficiently affected by his presentation to attract consideration of a medical discharge. I do acknowledge that Mr Rana was troubled during his service within the Army. Germane to his workplace dysfunction, is the number of times he absented himself without leave from his workplace. Absence without leave led to his involuntary separation from the Army. However there is clearly no substantive evidence that influences me that he was incapable of performing his duties due to a physical or mental condition during the 21 months service in the Army. In making this determination, I state clearly that I have arrived at this decision from my own independent assessment of all the facts presented to me in the Defence position brief.' 9 The reference to the 'Defence position brief' (the brief) is a reference to a brief prepared by another officer of the Australian Army and dated 3 April 2005 which was submitted to the delegate and upon which the delegate made his decisions. In the brief, the officer who prepared it (the investigator) recommended at its conclusion that the delegate determine that, at the time of his discharge from the Army on 13 July 1982, there were grounds on which Mr Rana could have been discharged on the ground of invalidity or of a physical or mental incapacity to perform his duties. 10 It should be noted that s 37 of the DFRDB Act does not require there to be a connection between the invalidity or physical or mental incapacity to perform duties in the relevant service and the service itself. Invalidity for whatever reason may be sufficient to provide a ground for retirement. It does not require the invalidity to have been work caused or service related. It is also important to note that, in determining whether grounds existed, at the time Mr Rana was retired from the Australian Army, on which he could have been retired for invalidity or mental or physical incapacity to perform his duties, it is appropriate to consider material available up to the time of the decision. The decision-maker is not confined to such material as was available at the date of Mr Rana's retirement. The decision-maker is to consider whatever information was available at the time the determination is made and which would throw light on the medical condition at the relevant date: see per Neaves J in Cox v O'Donnell (1982) 34 FCR 42 at 55. 11 The second decision under review arose from a letter of Mr Rana to the Chief of Army of 29 September 2003 requesting that his record of discharge be amended pursuant to s 44(2) of the Defence Act 1903 (Cth) (the Defence Act). At the time s 44(2) provided: 'Where a soldier has been discharged under subsection (1) and the Chief of the General Staff or any person to whom powers under that subsection have been delegated is satisfied that the soldier could properly have been discharged under that subsection for a prescribed reason other than that for which he was discharged, the Chief of the General Staff or the delegate, as the case may be, may, at the request of the soldier, take such steps as are necessary to ensure that he is treated as having been discharged for that other reason, including the taking of steps to amend any relevant order of discharge and any other relevant documents.' The 'prescribed' reasons were those set out in Army Military Regulation 176. Relevantly they included in Reg 176(h) the ground that the soldier is medically unfit. 12 Section 44 of the Defence Act was repealed by the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth) (the amending Act) which was assented to on 22 March 2001. Item 90 of Pt 2 Schedule 2, item 90 of the amending Act provided that the repealed sections (including s 44) should continue to apply, in relation to a person who was enlisted under the former s 36(3) of the Defence Act immediately before the amendment, as if the repeal had not happened. Consequently, it was appropriate for the delegate of the Chief of Army to address Mr Rana's request in accordance with the terms of the former s 44(2) of the Defence Act. 13 In any event, the Defence (Personnel) Amendment Regulations 2002, which commenced on 1 December 2002, included Regulation 99 which was in terms similar to s 44(2) of the Defence Act until its repeal. It now provides an alternative means by regulation by which the reason for termination of service may be treated in a different way. When those regulations came into force, the former Australian Military Regulation 176 was omitted. 14 The same delegate of the Chief of Army by letter of 28 April 2002 decided not to amend the reason for Mr Rana's retirement from the Australian Army in the central army records. He said: 'You are aware that I recently determined your request, pursuant to Section 37 of the DFRDB Act, for consideration of whether grounds existed on which you could have been retired as an invalid or because of mental or physical incapacity to perform military duties. I found that grounds did not exist whereby you could have been discharged because of physical or mental incapacity to perform his duties. Having regard to that decision not to change your reason for discharge and pursuant to Regulation 99 of the Defence (Personnel) Regulations 2002, I will not amend your reason for discharge from the Army …' 15 That is the second decision which Mr Rana seeks to set aside. I shall call it 'the second decision'. It is common ground that the outcome of the application concerning the second decision is dependent in large measure (though not entirely) on the outcome of the application concerning the principal decision.