Rana v Chief of Army Staff

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the judgment of a single judge of this Court, dismissing two applications to review decisions of the delegate of the Chief of Army pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). 2 The appellant enlisted in the Australian Army on 14 October 1980 and was discharged on 13 July 1982 on the ground of his 'retention' not being in the interest of Australia or the Army. On 14 September 2003, the appellant wrote to the Defence Force Retirement and Death Benefits Authority seeking an order that the Chief of Army inform the Authority that grounds existed on which he could have been retired on the ground of physical or mental incapacity to perform his duties. 3 Section 37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth)('The DFR&DB 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.' 4 'Retirement' under the Act includes discharge from the Defence Force: s 3. The function of the relevant service chief under s 37 is to determine and inform the Authority that grounds existed upon which the member could have been retired on the stated grounds at the time of his retirement. There then remains a decision, to be made by the Authority, whether the member should be treated as if they had been retired on that ground: see Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306at 309 ('Britt'). 5 On 5 April 2005, the Chief of Army's delegate, Brigadier Orme, determined the first question against the appellant. The matter did not then proceed to a consideration by the Authority. 6 The appellant had also written to the Chief of Army on 29 September 2003 requesting that his record of discharge be amended pursuant to s 44(2) of the Defence Act 1903 (Cth). The section was repealed with effect from 22 March 2001 (see the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth)) but transitional provisions continued to apply s 44 in relation to a person who was enlisted before the amendments commenced (see s 90). The amended Defence (Personnel) Regulations 2002 made similar provision as s 44(2): see reg 99. Section 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 included the ground that the soldier was medically unfit: Army Military Regulations 176. The Chief of the General Staff was the predecessor office to that of Chief of Army. 7 The same delegate advised the appellant that, having regard to his decision on the application under s 37, no amendments would be made. The applications for review relate to these two decisions. The focus of the appellant's case is necessarily upon the first decision. 8 The reasons given for the first decision 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 On appeal the appellant does not pursue each of the grounds of review which had been contained in his lengthy submissions before his Honour and which his Honour refined to a series of propositions. The appellant's Notice of Appeal is however discursive. In the course of discussions by the Court with the appellant during argument on the appeal the following grounds were identified: (1) That the appellant was not afforded procedural fairness because he was not provided with the second and third reports by Dr Miller. (2) That the appellant was also denied procedural fairness in that he was not given the opportunity to comment upon the fact that he had frustrated the normal assessment of the medical employment classification by the Defence Health Service, before the delegate made that finding. (3) That either breach of procedural fairness is an error of law which will automatically result in the appeal being allowed. (4) That the delegate was wrong to hold that the diagnosis of adjustment disorder with emotional features was not made during the appellant's service. The diagnosis of reactive depression means the same thing and it was made during his service. 10 There was another ground sought to be agitated by the appellant. He submitted that he had a legitimate expectation that the delegate would follow the recommendation contained in the 'Defence position brief'. The brief was prepared for the delegate and was in the nature of a report. It was recommended by its author, Major Tattersall, that the delegate determine that there were at the time of his discharge, grounds upon which the appellant could have been discharged namely invalidity or mental incapacity to perform his duties. The delegate did not follow the recommendation. The appellant says that the delegate should not have taken this course without giving him the opportunity to make further submissions. There could however have been no expectation on the part of the appellant relating to the recommendation. There is no evidence to suggest that the appellant ever knew of it or saw the brief, which is stated to be a confidential document. This matter is raised for the first time and there is no apparent basis for it. We do not propose to deal further with this aspect of the argument. 11 The starting point in cases involving allegations of breaches of procedural fairness is the statute creating the power to make the decision in question: Kioa v West (1985) 159 CLR 550at 614, Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 222 ALR 411; HCA 72 at [8]. The application and the content of a duty to act fairly depends upon the circumstances of the case and factors such as the nature and subject matter of the inquiry and any rules pertaining to it. These are ascertained largely by the construction of the statute: Kioa v West, 584, 614. 12 The DFR&DB Act provides for a scheme of benefits payable to members of the Armed Forces, in the nature of superannuation. A decision by the Authority, that a member could have been retired on the grounds of invalidity or physical or mental incapacity, is to the advantage of a member as it provides the basis for special entitlements under the Act. 13 The Act itself says nothing about the process to be undertaken when s 37 is invoked. In Part XV 'Redress of Grievances' of the Defence Force Regulations, made pursuant to the Defence Act 1903 (Cth), it is provided that a complaint may be made by a member of the Forces 'concerning any matter relating to his or her service': reg 75(1). This provision would extend to the reason for a member's discharge. The complaint is required to be in writing: reg 75(2) and is to be referred, in the case of a member of the Army, to commanding officers and to the Chief of Army: reg 76. An officer to whom a complaint is referred 'shall investigate the complaint without undue delay or cause it to be investigated without undue delay': reg 77(1). Where the officer is satisfied that there are grounds for the complaint, but the officer does not have power to redress it, the officer is required to refer the complaint to an officer who does have that power: reg 77(3). 14 It will be recalled that s 37 contains a power in the Chief of Army to advise the Authority that grounds existed upon which the member could have been retired on the grounds there stated. The Chief of Army may delegate that function to an officer of the Army holding rank not below the rank of Brigadier: reg 81(b). 15 It is the process undertaken and leading to the advice or recommendation of the delegate which is here in question. That process includes the steps undertaken by the investigating officer which would include the receipt and consideration of material from the appellant in support of his case and any inquiries the officer considered necessary in the circumstances. There is nothing to prevent the delegate making further inquiries. There is nothing in the DFR&DB Act or the Defence regulations which would deny the application of procedural fairness to that process. The reference to the investigating officer investigating a complaint without undue delay might be relevant to the extent of the duty to afford procedural fairness in some situations, but would not appear to assume importance in this case. The appellant's case is with respect to ground 1 that he was entitled to see the reports because they were additional reports by Dr Miller which were adverse to him. On that view no consideration is necessary to be given to the contents of the reports. We do not consider that to be a correct approach to the question of what procedural fairness requires, as we shall explain later in these reasons. 16 The appellant claimed that at the time of his discharge from the Army, in absentia on 13 July 1982, he was suffering from a psychiatric medical condition and could have been discharged on the ground of mental incapacity to perform his duties. When authorising the Directorate of Entitlements to investigate his claim, he said that he had been under the care of a number of psychiatrists since approximately 1981. 17 The first report of Dr Miller, who wrote under the letterhead of the Department of Defence, was dated 3 March 2004. In it Dr Miller noted the appellant's claim that he suffered from the following conditions, which could have led to his discharge: a. Aggravation of adjustment disorder with mixed emotional features; b. Delusional disorder, persecutory type; and c. Delayed onset Post Traumatic Stress Disorder ('PTSD').