Rana v Military Rehabilitation & Compensation Commission

Federal Court of Australia (Full Court)|2005-05-18|Before: Finn J, Stone JJ

THE COURT 1 This is an appeal from a judgment of Finn J given on 12 January 2005 in Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6. Finn J dismissed Mr Rana's appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") of 6 May 2004. The AAT decided that Mr Rana was not entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the conditions of paranoid psychosis and post traumatic stress disorder. The application before the AAT was made on 9 October 2001 ("the 2001 claim"). 2 Mr Rana represented himself on the appeal, as he did before Finn J. His notice of appeal contains 15 "grounds", none of which identifies any intelligible basis for setting aside the orders below. 3 The application before Finn J under s 44 of the AAT Act did not involve his Honour in any fact finding exercise. The appeal could only be brought in relation to questions of law. Section 44(1) of the AAT Act provides: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." 4 The grounds of appeal which complain about Finn J's "exclusion of evidence", finding of "wrong facts", "wrongly determin(ing) facts", "not considering fresh evidence" and "factual error" are entirely misconceived. 5 Likewise, it was not the role of Finn J in an appeal under s 44 of the AAT Act to disturb findings of fact made by the AAT, as distinct from identifying legal error. Consequently the ground of appeal of Mr Rana which alleges that there was sufficient material before the AAT to support an aspect of his case is similarly misconceived. 6 The search for a real issue of any substance for this Full Court to consider is, unfortunately for Mr Rana, a fruitless expedition.

· In 1984 he claimed that while serving in the Army he was subjected to abuse of various kinds;

· An AAT decision in 1988 accepted that he was subject to racist taunts and was assaulted;

· In March 1982, he was diagnosed with personality disorder with a reactive depression; and

· The 1988 AAT decision found any continuance of his mental health problems beyond April 1985 were not related to his army service. It found that he was entitled to compensation only until 1985.

· A further claim made to the respondent was rejected on the ground that it dealt with the same issues that had been dealt with in the 1988 decision, without any new evidence being provided. 8 The 2001 claim was confined to two matters, in respect of which Mr Rana contended that he was entitled to compensation - his paranoid psychosis and his post traumatic stress disorder. 9 Two events occurred before and during the hearing of the 2001 claim in the AAT which affected the AAT proceeding. The first concerned a statement Mr Rana made to the South Australian police concerning alleged sexual assaults. The respondent attempted to locate persons mentioned in the statements but experienced difficulty in so doing. The AAT drew no adverse inference against the respondent in that regard. 10 The second event occurred while the AAT proceeding was part heard, when a copy of a military police investigation report was provided to the AAT and to Mr Rana ("the 1986 Report"). The report was finalised in April 1986 and referred in detail to complaints made by Mr Rana in a letter to the Department of Defence in 1985 about his mistreatment whilst serving in the Army. These complaints referred to regular physical and verbal attacks "in terms of colour, race and religion" but not to the assaults described in the statement made to South Australian police. Mr Rana briefly questioned his treating psychiatrist, Dr De Pasquale, about the 1986 Report. Two days later he sought to recall Dr De Pasquale. That application was refused. 11 The AAT decision was lengthy. It dealt, in detail, with the relevant evidence before it. It considered that it was most unlikely that Mr Rana's army service contributed to the development of his paranoid psychosis. It also found that Mr Rana's service in the Army did not contribute to his post-traumatic stress disorder condition. The AAT found that Mr Rana was not suffering from either condition prior to his Army service such that that service could not be said to have aggravated those conditions. 12 The AAT found that the alleged sexual assaults on Mr Rana, whilst serving in the Army, did not take place. It accepted that Mr Rana experienced the events found by the 1988 Tribunal (physical assaults and abuse) but found that those events did not contribute towards his psychiatric conditions. 13 The AAT decision dealt with other issues including the respondent's failure to produce certain documents, in respect of which it drew no adverse inference. It set aside a summons directed to the Australian Federal Police, as sought by Mr Rana, but did accede to the issue of a more particularised summons, which was answered. It explained its reasons for not allowing the recall of Dr De Pasquale. It also gave its reasons for not requiring an additional witness to be called by the respondent and for its refusal to allow Mr Rana to call another doctor to give evidence.

The primary judge's reasoning 14 Finn J observed at [58] that: "…far from being concerned with questions of law, Mr Rana still has sought primarily to have this Court engage in extensive merits review, and to controvert fact findings." 15 At [59], citing from well-established authorities, his Honour said: "It is well accepted that the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or, subject to the proviso noted below, because it adopts unsound or questionable reasoning." The proviso concerned the topic of illogical reasoning. Later at [59] Finn J said: "If there is evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law." 16 At [60] Finn J said that: "There was evidence before [the AAT] to which it referred which was rationally and logically capable of supporting its fact findings about Mr Rana's two psychiatric conditions. There is simply no basis in my view in which to distil an error of law out of the Tribunal's fact finding process." 17 His Honour next turned to consider Mr Rana's submissions concerning procedural fairness. Finn J noted that s 33(1)(c) of the AAT Act provided that the AAT was not bound by the rules of evidence. The primary judge described as "the central plank", in Mr Rana's submissions about procedural fairness, that Mr Rana allegedly was denied practical fairness by the AAT's refusal to allow him to recall Dr De Pasquale. Finn J considered that Mr Rana took no "reasonable and timely" steps to have Dr De Pasquale recalled and that the AAT had given Mr Rana a reasonable opportunity to present his case. It was open to the AAT, his Honour considered, to form the view that Dr De Pasquale had already given evidence on the very matter for which Mr Rana sought his recall. No practical unfairness arose in the circumstances. 18 Finn J considered that Mr Rana's other complaints about the AAT's decision involved a challenge to the merits of the decision rather than a challenge based on a point of law. 19 His Honour referred to Mr Rana's submissions that the AAT's statement of reasons, made under s 43(2B) of the AAT Act, was inadequate. Mr Rana contended that the AAT did not make any finding on two material questions of fact. The first concerned the AAT's alleged failure to refer to the respondent's alleged non-compliance with a direction given by the AAT for it to inquire about a police report concerning the Woodside Army Camp. His Honour considered that complaint to be baseless. At [77] his Honour said: "To the extent that the Tribunal considered the request to Comcare to make further inquiries, it clearly regarded the responses made by Comcare via the AGS and at the 14 January 2004 hearing sufficient for its purposes and gave reasons for this. …" 20 The second matter concerned the AAT's alleged failure to find facts concerning the link between the 1986 Report and Mr Rana's two psychiatric conditions. Finn J considered that the AAT's reasons left no doubt why it considered Mr Rana's claims should be rejected and in so doing the AAT considered it had sufficient evidence to come to the view it did about Mr Rana's conditions and the alleged nexus between them and the non-sexual assaults and abuses suffered by Mr Rana. Finn J considered that s 43B(2) of the AAT Act had been satisfied by the AAT's reasons, which revealed its processes of reasoning; see Comcare v Lees (1997) 151 ALR 647 at 656. 21 Finally the primary judge dismissed, as baseless and as an allegation which should not have been made, Mr Rana's contention that the AAT was actually biased, given its preference for the evidence of another doctor (Dr Davis) over evidence given by Dr De Pasquale.

Consideration 22 No ground of appeal raised by Mr Rana deals with any intelligible legal error in the reasoning of Finn J. The first ground of appeal alleged that Finn J erred in "law and discretion" without saying how. The second ground complained about wrongful exclusion of evidence by Finn J, as did the third and fourth grounds. Those ground effectively sought to cavil with issues of merit decided by the AAT. The sixth ground asserted that Finn J had erred in law by applying the wrong test or fell into "jurisdictional or factual error", without saying how. All of the following grounds refer to questions of fact apart from the final ground which states that: "The jurisdictional error of the appeal judge in the use of proper test being looking from present to the past per Whiteman v Secretary Department of Veterans Affairs [1996] 845 FCA 1 (17 September 1996)." 23 Whiteman is a judgment of Madgwick J in which the Court considered whether the applicant was discharged from military service on the ground of invalidity, or physical or mental incapacity to perform duties, under s 4AAA of the Defence Service Homes Act 1918 (Cth). The matter involved a question of construction of that legislation. The Court considered the AAT's view of the section to be too narrow and that the word "duties" should be understood more widely such that incapacity to perform some duties would satisfy the section. Whiteman's relevance to the instant appeal is illusory. 24 In support of his grounds of appeal, Mr Rana has filed voluminous written material which challenged findings of fact made by the AAT and, in addition, sought leave for further evidence to be given on this appeal. The application to adduce additional evidence on appeal is rejected. Although the Court has the discretion to admit further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) it would not do so where the admission of the evidence in question would serve no useful purpose. The evidence sought to be adduced concerned matters of fact, which were not relevant to any issue that the primary judge was required to consider. They bear no relevance to anything this Full Court must consider in this appeal. 25 In his oral submissions before the Court Mr Rana did not identify any error in the reasons for judgment of Finn J. When pressed to show, by reference to the judgment below, where the primary judge had erred, Mr Rana referred to two passages. The first involved his Honour's reference at [3] to Neil v Nott (1994) 121 ALR 148, 150. That judgment was merely referred to in passing by his Honour whilst acknowledging that Mr Rana did not have the benefit of legal representation. The second was Finn J's reference to the AAT making it clear to Mr Rana during the AAT hearing that a central issue before it was whether certain sexual assaults had occurred. Neither passage raises any arguable legal error in Finn J's reasons for judgment, which Mr Rana inappropriately described as "irrational".

Order 26 It is appropriate to order, in the circumstances, that the appeal is dismissed. There is no good reason why costs should not be paid by Mr Rana to the respondent.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield and Stone.

Solicitor for the Respondent: Australian Government Solicitor

Administrative Appeals Tribunal Act 1975(Cth)ss 33(1)(c), 43(2B), 44.

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