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[2006] FCAFC 63
Federal Court of Australia (Full Court)
2006-05-12
Graham JJ
Original judgment source is linked above.
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 The section was repealed with effect from 22 March 2001 (see the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth)) but transitional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').
18 As to the first, Dr Miller noted that the appellant had been admitted to hospital on 5 August 1981 claiming to have taken an 'overdose' of alcohol, giving the history of the breakdown of his marriage as the cause. He was diagnosed as having reactive depression and personality disorder. The final diagnosis was situational crisis. On his discharge the medical officer noted that he was not a significant suicide risk nor psychiatrically ill. As to the second and third, Dr Miller noted that the appellant's medical record made no reference to either condition.
19 The appellant saw Dr Hoff, a psychiatrist, on 12 August 1981 and commenced psychotherapy. At review on 25 September 1981 Dr Hoff considered the appellant had maintained his stability. On 8 March 1982, Dr Hoff noted that the appellant showed elements of a personality disorder and that he developed reactive depression when things catch up with him. In respect of the appellant's first claimed condition at the time of the discharge, Dr Miller then concluded: 'The diagnosis of aggravation of adjustment disorder with emotional features was not established during Mr Rana's service.' 20 Dr Miller then turned to the medical reports which had been submitted by the appellant. A summary of Dr Miller's observations are as follows: · Dr Hoff, in a report dated 9 March 1989, had noted his previous contact with the appellant whilst he was serving in the Army. Dr Hoff had also seen the appellant from 2 July 1987 for treatment of reactive depression. He had given evidence at the Administrative Appeals Tribunal ('AAT') in December 1987 that the appellant was suffering from reactive depression and elements of a personality disorder. · Dr De Pasquale, another psychiatrist, had produced three reports, dated 20 November 1986, 8 April 1987 and 4 February 2002. In the first, the doctor related a history of problems in the Army leading to a breakdown of the appellant's marriage. She considered that the Army was responsible for an aggravation of a pre-existing personality problem. In the second, Dr De Pasquale noted that the appellant's complaints were of a psychological and reactive nature. In the last report the doctor noted that the appellant had been diagnosed as suffering from a personality disorder, adjustment disorder and paranoid disorder; he had psychotic episodes and required anti-psychotic medication. His daily functioning was not impaired, but his social functioning was. She was of the opinion that he suffered from a chronic delusional disorder, persecutory type. · Dr Kutlaca's report of 5 June 1985 covered interviews between January and April 1985. The appellant's symptoms were said to be anxiety, depression and disorientation. The doctor was of the opinion that the appellant did not suffer from major psychopathology, but there were a number of life events to which he had not adapted well. He suggested that the appellant met DSM3 criteria for Adjustment Disorder with mixed emotional features. This was a transient disorder. · Dr Goss, an oral surgeon, had reported a diagnosis of grinding of the teeth which, Dr Miller noted, is associated with anxiety and depression but does not cause those conditions. 21 Dr Miller was of the view that the reports indicated the presence of psychiatric conditions. There was however no contemporaneous evidence to support their existence at the time of his discharge. With respect to the remaining documents tendered by the appellant, Dr Miller considered that they had no particular value in respect of the issue in the matter. He concluded that 'The available evidence 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.' 22 Whilst Dr Miller may have confused the ground of 'invalidity' with the ground of 'physical or mental incapacity to perform his duties' in his conclusion, nevertheless, it is abundantly clear from the terms of his report that his focus was upon the correct issue and he appropriately addressed it. 23 Dr Miller's first report was forwarded to the appellant for comment and to enable him to provide any other documentation he wished to be taken into account before a submission was made to the delegate. The appellant responded, by letter dated 30 March 2004, that he found 'the letter with Dr Miller's opinion very bizarre.' He attacked Dr Miller's ability and made the point that the Doctor had not seen the appellant. He asserted that the Doctor's opinion was not valuable and could not be used by the Major. He went on, at some length, to complain of racism and physical and other abuse which he suffered in the Army. He said that his Army service had contributed to his reactive depression and the other disorders he claimed to suffer from. He referred to a hearing which the AAT had just concluded and in which Dr De Pasquale and a Dr Davies had given evidence. He suggested a copy of the transcript be obtained. He also referred to a hearing conducted in 1988 by the AAT, which, he said, accepted that his absenting himself from the Army was due to racism and other forms of abuse he had suffered from. He also referred Major Tattersall to the decision in Britt, which would assist in a consideration of his case. 24 The appellant's letter and the decision in Britt were provided to Dr Miller. In relation to the former he advised: '… This document records Mr Rana's objections to opinion provided in Ref B. The document reflects Mr Rana's own opinions but does not provide any supporting evidence for his view.' and with respect to the decision in Britt: '… I do not agree that this case is analogous with that of Mr Rana. At para 11 Dr Alderman opined that had Mr Britt had a further Interim Survey it would have been recommended that he be discharged on medical grounds. It would seem from the evidence that Mr Britt's discharge on the grounds of expiration of his engagement was done for financial reasons. Mr Rana's case does not rest on these considerations.' In this 'second report', dated 14 April 2004, Dr Miller concluded that 'The additional material provided by Mr Rana is of no probative value in this matter.' 25 Neither this report nor Dr Miller's comments contained within it were provided to the appellant. He did however write a further letter to Major Tattersall on 9 April 2004. The appellant said that he hoped that notice was taken of the AAT decision that he provided. We take this to be a reference to Britt. He again railed against Dr Miller and his failure to link the racism and violence he had endured with his psychiatric condition. He repeated much of what he had earlier said. The appellant provided further material. It does not form part of the appeal record. Major Tattersall noted in the brief that much of it was irrelevant, but that a number of further medical reports were also provided. The appellant's letter of 9 April refers to reports from Dr Hoff, Dr Chester, Dr Lynch and Dr Cotton and to hospital records. The appellant said that he was attaching another decision of the AAT. It is not apparent which decision he is referring to but it may well be the Tribunal's decision of 22 April 1988 concerning him (Rana v Commonwealth of Australia No 86/207), since Dr Miller refers to this decision in his reply. 26 Dr Miller responded to this further material, in his 'third report' of 28 July 2004, as follows: 'Material submitted by Mr Rana. 2. Letter by Mr Rana dated 9 Apr 04. This letter forwards a number of 'exhibits' together with Mr Rana's comments. 3. Letter from Dr Hoff (Psychiatrist) dated 18 Mar 85. This provides a detailed outline of Mr Rana's consultations with Dr Hoff. Dr Hoff diagnosed reactive depression related primarily to his domestic problems. 4. Letter from Dr Hoff dated 25 Sep 81. This is included in the letter reviewed at paragraph 3. 5. E-mail Hutchinson to Johnson of 6 Feb 04. This advises that Minister Vale's office does not hold files related to MRC clients including Mr Rana. 6. Letter from Dr Chester (Psychiatrist) dated 29 Jul 92. This relates to Mr Rana's referral to psychoanalysis and expresses the opinion that he is not suitable for psychoanalysis. This is of no relevance in the issues in this matter. 7. Letter from Dr Lynch (Psychiatrist) dated 23 Aug 93. This is sent at Mr Rana's request to Dr Cotton who was nominated as his treating psychiatrist. Dr Lynch opined that Mr Rana had a severe personality disorder but not a Major Depressive Disorder. 8. Letter from Dr Cotton (Psychiatrist) dated 28 Mar 96. This expresses the opinion that Mr Rana was not suffering from a disabling psychiatric disorder, indeed Dr Cotton found him 'normal in all respects'. 9. Letter from Australian Government Solicitor (AGS) Adelaide dated 24 Feb 04. This deals with attempts to locate witnesses required by the AAT in the matter of SAN v Comcare. This is not relevant to the issues in this matter. 10. Letter from AAT Adelaide dated 19 Feb 04. This provides information about medication alleged to have been taken by Mr 'San' during his admission to Royal Adelaide Hospital in 1981. 11. Letter from AGS Adelaide dated 26 Feb 04. This deals with efforts to locate the witnesses referred to in paragraph 9. 12. Letter of AAT Adelaide dated 23 Feb 04. This refers to procedures needed if documents are to be tendered. 13. Letter from CO 16 Air Defence Regiment dated 4 Feb 04. This advised that 16 Air Defence Regiment is unable to provide certain information. 14. Fax Cover Sheet from 16 Air Defence Regiment dated 5 Feb 04. This deals with a member of 16 Air Defence Regiment named Brown. 15. Letter from Minister for Sport, Recreation and Tourism and Minister Assisting the Minister for Defence dated 26 Nov 85. This deals with matters relating to compensation and Military Police investigation into Mr Rana's complaints. 16. Letter from John Mellowship Anthropologist dated 17 Feb 91. This describes certain cultural imperatives relating to Mr Rana. This does not shed any light on Mr Rana's state of health at the time of his discharge. 17. Copies of clinical records. These have been reviewed previously. 18. Decision by AAT in the matter of Mr R and the Commonwealth of Australia dated 22 Apr 88. This determined that the decision of the Commissioner of Employees' Compensation dated 9 October 85 was affirmed. The Tribunal thus did not find in favour of Mr Rana. This material does not address the issue in this matter i.e. whether or not Mr Rana was unfit for duty in the Army as the result of a medical condition. 19. Decision by the AAT in the matter of Mr Wayne Walker, Applicant, and the Defence Force Retirement and Death Benefits Authority dated 13 Sep 00. This matter deals with the level of invalidity classification determined by the DFRDB Authority after it had been determined that, under S37 of the DFRDB Act 1973, Mr Walker could have been discharged from the Army on the grounds of invalidity. This is in no way analogous to the issues in Mr Rana's case. 20. Decision by the AAT in the matter of Eric Trusty and Repatriation Commission dated 5 May 93. This matter deals with the exclusion from a pension of a person who suffered invalidity or incapacity due to a condition that existed when the person commenced full time service in the Defence Force. This is not the situation Mr Rana is in and I can see no analogy with his circumstances. 21. A schedule of questions apparently signed by Dr De Pasquale undated. This does not provide any useful information in this matter. 22. Letter from Dr Cotton (Psychiatrist) dated 28 Mar 96. See paragraph 8. 23. Letter from Professor Thorn dated 21 Oct 02. This expresses Professor Thorn's concern that Mr Rana may not be suitable to undertake a course at the International Graduate School of Management. She appears to base her concerns on previous reports by Dr De Pasquale. This does not provide any information on Mr Rana's state of health at the time of his discharge. 24. Letter from Dr De Pasquale dated 4 Feb 02. This provides the opinion that Mr Rana suffers from a chronic delusional disorder that will require life long psychiatric follow up and medication. It does not provide any information about the time of onset of this disorder. 25. Verification and Impact Statement provided by Dr De Pasquale dated 22 May 02. This does not provide any relevant information in this matter. 26. Letter from Royal Nepalese Consul General dated 24 Jun 87. This confirms Mr Rana's appointment as the Honorary International Marketing Consultant for Nepalese Hospitality and Tourism in Australia and New Zealand. This is not relevant to the issues in this matter. 27. Letter from Dr De Pasquale dated 20 Sep 02. This states that Mr Rana is capable of doing group work for a course of study. This is not relevant to the issues in this matter. 28. Letter from Commonwealth Ombudsman dated 1 Apr 04. This advises Mr Rana they are closing his file. 29. Argument by University of South Australia in Federal Magistrates Court requesting dismissal of applicant's application. This is irrelevant. 30. Letter from Professor McWha dated 7 Jul 03. This requests Mr Rana to desist from seeking studies at the University of Adelaide. This is irrelevant. 31. Letter from Chairman Mount Lofty Ranges & Greater Adelaide Interim Integrated Natural Resource Management Group undated. This is irrelevant. 32. Letter from Dr Hoff dated 19 Apr 02. This deals with an assessment of permanent impairment by Dr Hoff. He indicated an incapacity of 100%. This does not indicate Mr Rana's health status at discharge. 33. Letter by Dr Cotton dated 20 June 03. This deals in general with Mr Rana's state of health at present. Dr Cotton feels he is stable and well controlled. Much of the report deals with problems with access to Mr Rana's daughter. None of this provides any assistance in assessing his state of health at the time of his discharge. 34. The material submitted by Mr Rana does not support his contention that, at the time of his discharge, grounds existed whereby he could have been discharged on the grounds of invalidity.' 27 The principle of procedural fairness has regard to information which needs to be addressed by the person to be affected by the decision. The cases dealing with the principle do not suggest that fairness will demand that each new document received by a decision-maker must be provided to the person, as the appellant contends. As Wilcox J pointed out in Wickramagema v Griffin (1990) 95 ALR 187at 192, the application of the principle depends upon the content of what is being put before the decision-maker. This may be seen by the approach taken in Kioa v West, his Honour observed. If it had been sufficient that there was a document not seen by the appellants, it would have been unnecessary for the High Court to analyse the submission which went to the delegate to see if there was particular material in it which attracted the obligation of natural justice. 28 In Kioa v West, Brennan J (at 629) held that, in the ordinary case, fairness will require that an opportunity should be given to the person to be affected by the decision to deal with 'adverse information that is credible, relevant and significant to the decision to be made'. The context of that statement, as was pointed out in Applicant VEAL (at [16]), was his Honour's earlier remarks that: '[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.' 29 In Kioa v West Mason J expressed the relevant principle to be applied in somewhat different terms. His Honour said (at 587): 'But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.' 30 Wilcox J in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100at 128-129 did not regard Mason J as disagreeing with Brennan J's formulation. The context of the case was the withholding of a critical allegation relating to Mr Kioa's personal behaviour and this explained the reference to a consideration personal to the applicant. In another matter the critical matter may not be personal to the affected person but nevertheless one which, in fairness, the person should be given an opportunity to address, his Honour considered. We respectfully agree. 31 Senior Counsel for the respondents submitted that it was no part of the delegate's or the investigating officer's duty with respect to procedural fairness to ensure that the appellant's attention was directed to the deficiencies in his case. As a general proposition this is correct: see Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180at 189, referring to Sullivan v Dept of Transport (1978) 20 ALR 323at 343 and Century Metals and Mining NL v Yeomans ([1989] FCA 383); Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); ex parte Applicant S154/2002 (2003) 201 ALR 437at [58] per Gummow and Heydon JJ. It may be otherwise where the critical factor or issue was the absence of corroboration of claims: Broussard, 189. The point in this case must surely however be that the appellant had already been alerted to the lack of evidence concerning his mental condition at the relevant time. This was made plain by Dr Miller's first report, which was provided to him. 32 There can be no doubt that the appellant understood the issue which arose under s 37. His material was directed to satisfying the delegate that he suffered from one or other of the psychiatric conditions which in 2003, he alleged that he had been suffering from at the time of his discharge from the Army (see [17]). Dr Miller, at the investigating officer's request, reviewed the medical evidence put forward by the appellant. He summarised the effect of the reports and concluded that they did not provide evidence to support the contention that the appellant could have been discharged on the grounds of invalidity. The delegate stated the same conclusion. 33 The appellant responded to Dr Miller's adverse opinion on two occasions and by the provision of further medical records and reports and decisions of the AAT, together with his own arguments. Again, there can be no doubt that the appellant knew that it was necessary for him to address Dr Miller's conclusion about the lack of evidence at the relevant time. In these circumstances it cannot be said that there was a need to direct the appellant's attention to the fact that he had not overcome the deficiencies in his case. The question remains whether there was anything in Dr Miller's second and third reports which fairness required to be put to the appellant for response. 34 Dr Miller's last two reports, or advices, contained a restatement of his earlier opinion. It was based upon his assessment of the evidence proffered by the appellant including his assessment of decisions of the Administrative Appeals Tribunal as irrelevant. Importantly, his commentary on the evidence did not raise any new issue or matter. It is difficult therefore to see what the appellant needed to respond to. 35 In Kioa v West, the information which the Court considered needed to be provided to Mr Kioa for comment was information provided from another source and which he had not dealt with. The point of the case was that it had not been brought to his attention. This is made plain in the judgment of Mason J. In his Honour's view information which needed to be provided to a person in Mr Kioa's position was information which called for a reply. Brennan J's statement that information having significance to a decision-maker should be made available must also be read in this light. It is implicit in his Honour's description of that information that it is information of which the person to be affected by the decision is unaware. 36 In a sense, it may be said that any reaffirmation of opinion, and associated rejection of material put forward as probative, may be of significance to a decision-maker. Absent the identification of some new issue or opinion as relevant to the original opinion however, its significance will simply lie in the fact that it is unchanged. We do not consider this qualifies the information as significant in the sense referred to by Brennan J. 37 As to the rejection of the evidence which founds the opinion, we do not understand the authorities to suggest that such an assessment, without more, requires a further opportunity to respond. If that were the case, the decision-making process would be extended indefinitely. In Minister for Immigration and Multicultural and Indigenous Affairs: ex parte PALME (2003) 201 ALR 327; HCA 57, the Minister had been provided with a submission which contained conclusions about the applicant which were said to be open to the Minister on the evidence. Their Honours (Gleeson CJ, Gummow & Heydon JJ) were not persuaded that the rules of procedural fairness came into play and said, at [21]): 'It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature involved here of the 'pitch' or 'balance' in the statement of relevant considerations in the submission.' 38 A similar approach was taken by Mason J in Kioa v West, where his Honour observed that comments upon facts did not attract the need to respond. 39 The remaining grounds, those set out in pars (2) and (4) (see [9]) may be dealt with shortly. Neither of them was raised before his Honour and the appellant should not be permitted to agitate them now. In any event they are misconceived. 40 Ground (2) reflects a misunderstanding of what the delegate was saying in the fourth last paragraph of his reasons. We do not understand him to say that the facts there stated formed part of his decision about the appellant's condition, assuming for present purposes that the delegate would need to give notice that he had formed such an opinion. Rather the delegate was observing that there was a dearth of evidence available concerning the appellant's state of mental health during the time of his service. The fact that the appellant had absented himself from the Army, so that its process of medical assessment could not be completed, was one reason for the lack of evidence. The highest that the delegate's statement can be put, in a sense at all adverse to the appellant, is that the delegate may also be implying that the appellant's problems with evidence were brought about by his own actions. The statement was not relevant to the decision about the appellant's condition and there is nothing to suggest that it was taken into account by the delegate in arriving at that decision. It has the hallmarks of a comment made in passing. There was no necessity for the Appellant to respond to it. 41 The allegation in ground (4) is relied upon to show that the delegate misunderstood the medical questions raised by the reports. The evidence does not however make plain that this was the case and that a diagnosis of an adjustment disorder is the same as one of reactive depression. The appellant acknowledged this during argument on the appeal when he said that had he appreciated that the delegate did not understand that the conditions were the same, he would have asked Dr Hoff for a report clarifying this. The appellant also sought to address the question by putting further evidence before the Court, which shows that he suffered from an adjustment disorder during his period of service (in his affidavit of 30 January 2006). It is not shown that this evidence was before the delegate and it should not be received. In any event it does not permit the conclusion for which the appellant contends. The finding that it was not established that the appellant suffered from an adjustment disorder at the time of discharge was one for the delegate, on the state of the evidence. It is not one for this Court. 42 The appeal should be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Kenny and Graham.
Associate: Dated: 12 May 2006 For the Appellant: In Person
Solicitor for the Respondent: Australian Government Solicitor
Rana
Chief of Army Staff
[1989] FCA 383
(1989) 98 ALR 180
(1984) 4 FCR 306
(1985) 159 CLR 550
(1993) 43 FCR 100
(2003) 201 ALR 327
(2003) 201 ALR 437
(1978) 20 ALR 323
(1990) 95 ALR 187