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[2010] FCA 281
respondent. Appeal dismissed; applicant ordered to pay the respondent's costs (Order at front and para [94]).
Rana, discharged from the Army in 1982 under an administrative ground, sought a veterans' pension on the basis his discharge was for mental incapacity. The AAT first decided whether he met the statutory threshold in s 69 (membership/discharge ground). After assessing contemporaneous medical and lay evidence the AAT found he had a personality disorder but it did not materially impair his capacity at discharge, so s 69 did not apply. The Federal Court held that was a factual conclusion supported by evidence, the appeal raised no question of law, and dismissed the appeal. The Court also approved the AAT's approach of deciding the antecedent s 69 issue first.
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Rana enlisted in the Australian Army in October 1980 and served at the 16th Air Defence Regiment workshop (paras [4], [8], [9]). Between August 1981 and March 1982 he had hospital admissions and psychiatric treatment (paras [5], [13]). He was disciplined for absences and poor performance in early 1982, received warnings, fines and confinement, and his commanding officer recommended discharge (paras [6], [10]-[12]). Approval was given on 18 March 1982 to discharge him under reg 176(1)(n) of the Australian Military Regulations 1927, that his retention was not in the interests of Australia or the Army, and he was administratively recorded as discharged effective 13 July 1982 (paras [12], [14]-[16]).
8 cited instruments linked from this judgment.
Decades later, in 2003 the applicant sought treatment under the Defence Force Retirement and Death Benefits Act 1973 (s 37) and benefits under the Veterans' Entitlements Act 1986, asserting his discharge was for invalidity or mental incapacity to perform duties (paras [18]-[26]). The Repatriation Commission's delegate, the Veterans' Review Board and a Deputy President of the Administrative Appeals Tribunal (AAT) each concluded he was not a member of the Defence Force for the purposes of s 69 of the VE Act and denied pension entitlements (paras [1], [1]-[3], [31]-[33]).
Rana appealed to the Federal Court. He also brought an application under s 39B/Judicial Review Act to quash an AAT Member's procedural ruling on a preliminary issue; the Court concluded that application had no utility because the Deputy President proceeded on that Member's ruling and that no ground for quashing was made out (paras [2]-[3], [33]). Ultimately, Justice Lander dismissed the appeal and ordered costs to the respondent (Order and para [94]).
There were two interconnected legal foundations to the decision.
First, the statutory scheme: Part IV of the Veterans' Entitlements Act applies only if the person comes within s 69. Section 69(1)(d) covers the case where service was terminated before completion of three years by reason of discharge on the ground of invalidity or physical or mental incapacity to perform duties (paras [24]-[27]). The AAT made the antecedent inquiry whether Rana fell within s 69(1)(d) before addressing s 70 (entitlement), which was sensible because if s 69 does not apply, there is nothing to consider under s 70 (paras [28]-[29]).
Second, the nature of the question: the Court treated the s 69 enquiry as essentially factual, asking whether, at the time of discharge, Rana's mental state materially interfered with his capacity to perform his Army duties (para [38]). Lander J emphasised that the AAT's role was to assess evidence and make factual findings; the Federal Court's supervisory jurisdiction on appeal from the AAT is confined to questions of law (paras [34], [45], [90]-[92]). Rana's grounds principally attacked the AAT's factual findings and invited merits review, which is not available on appeal (paras [45], [81], [89]).
On the facts, the Deputy President accepted contemporaneous records, the evidence of the treating psychiatrist Dr Hoff and the opinions of Dr De Pasquale and Professor Goldney that, while Rana had a personality disorder, it did not materially impair his capacity to perform duties at the time of discharge. The AAT also accepted lay evidence from soldiers who observed the applicant (paras [48]-[63]). Those factual conclusions were open on the evidence and defeated the s 69(1)(d) claim (paras [62], [69]-[70], [87]).
Finally, the Court required that an appeal from the AAT must state the question(s) of law with precision under Order 53 r 3(2). The applicant failed to articulate pure legal questions distinct from merits complaints (paras [39]-[41], [42]-[46]), which further disposed of the appeal.
Before: The established principle is that appeals from the AAT lie only on questions of law under s 44 of the AAT Act (para [34]). Authorities such as Attorney-General (NSW) v Quin and the High Court's immigration jurisprudence reinforce the distinction between judicial review and merits review (para [45]).
What this judgment confirms: (1) the AAT may sensibly determine antecedent factual thresholds (here s 69 membership) before wasting time on substantive entitlement questions (paras [28]-[29], [72]); (2) the Federal Court will not re-weigh factual evidence or undertake merits review where the tribunal’s findings are open on the evidence (paras [81], [87]-[89]); and (3) appellants must identify precise questions of law when appealing AAT decisions under O 53 r 3(2) (paras [39]-[41]).
It did not, and did not need to, resolve whether Madgwick J’s approach in Whiteman (looking behind administratively noted reasons for discharge) is correct; Lander J expressly declined to decide that point because the Deputy President’s factual conclusion was the same regardless (paras [31], [33], [93]). So Whiteman remains a live but undetermined issue for future authority in contexts where conflicting administrative records exist.
Para [28]-[29]: "The Member of the AAT decided that the antecedent question whether the applicant was a member of the Defence Force ... should be decided before addressing s 70." Translation: Before asking whether Rana was entitled to pensions, the tribunal sensibly asked the simpler question first: did he meet the basic statutory test in s 69?
Para [38]: "It was a factual enquiry." Translation: Determining whether someone falls within s 69 is a matter of fact, looking at their condition and capacity at the time, not a point of statutory interpretation.
Para [62]: "not satisfied that Mr Rana's mental state ... interfered in any material degree with his capacity to undertake any of his Army duties." Translation: The tribunal accepted medical and witness evidence that any psychiatric condition did not significantly stop him doing his job in 1981–82.
Paras [39]-[41]: discussion of O 53 r 3(2) and Birdseye. Translation: If you want to appeal an AAT decision to the Federal Court, you must clearly set out a legal question, not just say the tribunal was wrong about the facts.
Cases where entitlement to statutory benefits depends on an antecedent factual threshold (for example, whether a person was a 'member' or whether a discharge had a particular ground), and the administrative tribunal elects to determine that threshold first as a preliminary issue (paras [24]-[29]).
Appeals to the Federal Court that are framed as challenges to tribunal factual findings rather than pinpointed legal errors will be dismissed for raising no question of law (paras [34], [41], [45], [90]-[92]).
Situations where contemporaneous medical records, treating practitioner evidence and reliable lay witness accounts are in conflict with later retrospective expert opinions; the tribunal's choice between them is a factual exercise entitled to deference (paras [52]-[63], [87]).
This judgment itself does not overrule or markedly alter existing authorities. It applies familiar principles: appeals are confined to questions of law (Quin, immigration authorities cited at para [45]); the Court follows Collector of Customs cases and Pozzolanic in discussing law/fact distinctions (paras [35]-[37]); it applies Birdseye's approach to pleaded questions of law in O 53 r 3(2) (para [40]).
It also treats Whiteman as a precedent the AAT may follow, but Lander J did not decide whether Whiteman was correct, leaving open the possibility that future courts could re-examine Madgwick J's approach in the appropriate case (paras [31], [93]).
Practitioners should expect subsequent courts to follow Lander J's approach here: require precise articulation of legal issues on appeal, decline to reweigh factual assessments supported by evidence, and permit tribunals to resolve antecedent factual questions as preliminary matters when efficient and fair.
Whiteman's reach: Lander J explicitly declined to decide whether Madgwick J in Whiteman was wrong or distinguishable (paras [31], [33], [93]). Where an administrative note records a ground of discharge, but a tribunal finds a different factual ground, the question whether a reviewing court can safely 'look behind' the administratively recorded reason remains a live issue for future litigation.
Precise contours of 'material degree' of incapacity: The Court accepted the AAT's qualitative assessment that psychiatric symptoms were not materially impairing (paras [62], [69]). Future cases may explore the evidentiary thresholds and medical-legal standards for when a mental condition meets the statutory 'incapacity' requirement in s 69(1)(d).
Interaction between administrative records and later statutory schemes: The decision highlights potential tension where a Chief of Army's administrative determination under s 37 (DFRDB Act) has been judicially sustained (paras [20]-[23], [31]). When two administrative processes and separate tribunals reach conflicting factual outcomes, courts will need to address finality, res judicata and administrative consistency issues in future disputes.
Pleading practice on appeals from tribunals: Birdseye and the Court's emphasis on Order 53 r 3(2) (paras [39]-[41]) reinforce the need for appellants to plead crisp legal questions. The precise level of specificity required, particularly where mixed law-and-fact issues arise, may see further refinement.
Practical takeaways: litigants seeking veterans' entitlements must treat the s 69 membership/discharge ground as a primary, fact-sensitive hurdle; appeals from tribunals must isolate discrete legal errors, not merely reargue the merits; and where contemporaneous records and treating practitioners conflict with later experts, tribunals are entitled to prefer the contemporaneous material if reasonably open on the evidence (paras [52]-[63], [87]-[89]).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal (the AAT) given on 4 September 2009 in which he affirmed a decision of the respondent made on 15 September 2003 rejecting his claims for a pension under the Veterans' Entitlements Act 1986 (Cth) (the VE Act). The delegate of the respondent had determined, as did the Veterans' Review Board and as did the Deputy President, that at the relevant time the applicant was not a member of the Defence Force as defined in s 69 of the VE Act. 2 At the same time as this appeal was heard, I also heard an application by the applicant under s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) to quash a decision of a Member of the AAT given on 15 May 2009 directing that the hearing of the applicant's application for review of the respondent's decision proceed by way of preliminary hearing upon the issue whether the applicant was a veteran/member of the Defence Force for the purposes of s 69 of the VE Act. 3 Whilst the Member's decision did not bind the Deputy President, the Deputy President refused to vary that ruling and proceeded in accordance with it. It seems to me that there is no utility in the separate proceeding to quash the decision of the Member, when it was the Deputy President who proceeded on the preliminary hearing upon his own decision not to vary the decision of the Member. At one stage the applicant appeared to understand and indeed agreed with that approach, but later resiled from that position and prosecuted that other proceeding. I will give separate reasons for dismissing the application to review the Member's decision on the ground that no ground for allowing the application has been shown and for the further reason that the application has no utility. 4 The applicant was born in Nepal in April 1955. He married his wife who was an Australian citizen in Nepal and emigrated to Australia in April 1978. In October 1980 the applicant enlisted in the Australian Army. After completing basic training in early January 1981 and further training in March and April 1981 he was posted to the 16th Air Defence Regiment (16 AD REGT) at Woodside in South Australia. Within 16 AD REGT he was deployed in the regimental workshop (16 AD REGT WKSP). 5 In August 1981 his wife left him with the only child of the marriage who was then aged six months. On 3 August 1981 the applicant was admitted to the Royal Adelaide Hospital. Contemporaneous nursing notes show that he was diagnosed with "reactive depression". On 5 August 1981 he was transferred to the Repatriation General Hospital at Daw Park from which he was discharged on 10 August 1981. Shortly after his discharge in August 1981 the applicant was seen by Dr Lothar Hoff, who was a consultant psychiatrist and also an officer in the Citizens' Military Forces. The applicant consulted Dr Hoff between August 1981 and March 1982. 6 On 5 January 1982 the applicant was charged for failing to appear at a place of parade appointed by his Commanding Officer. He was fined $10 and confined to barracks for three days. The next month he was subject to a formal warning that he was "regarded as unsatisfactory in the performance of (his) duties and as an administrative liability". He was told at that time that, unless his performance improved and less time was necessary to be spent by Unit Officers on his personal problems, his Commanding Officer LTCOL G D Carter would recommend his discharge. 7 The warning was reduced to writing and signed by both LTCOL Carter and the applicant. The warning stated: 2. You are regarded as unsatisfactory in the performance of your duties because of the following: a. your continued absences from your place of duty have adversely affected your work performance, and the performance of your section, and b. whilst at your place of work you have performed inefficiently, duties which are within the scope of your rank and ECN. 3. You are regarded as an administrative liability because of your continuing inability to manage your personal affairs, particularly your family circumstances, which necessitates considerable time and effort to be expended by your OC, immediate superiors and the unit RMO. 8 On 12 February 1982 the Officer Commanding 16 AD REGT WKSP, MAJ George Watts completed a confidential report on the applicant which assessed his performance and commented upon his aspirations for his next posting. The applicant at that time expressed a desire to be posted to the Special Air Services Regiment in Perth, the 1st Aviation Regiment at Oakey or Headquarters, 4 Military District in Adelaide. His stated preference was for "any job concerning aviation or intelligence". 9 However, MAJ Watts assessed his performance as below average. He wrote: Pte RANA has suffered complex emotional stress which he has allowed to influence his effectiveness as a soldier. He has been given ample opportunity to overcome his problems however it is felt that he has started to rely on them as a psychological crutch. RANA has been counselled several times, in an attempt to help him sort out his problems. His behaviour and the excess of attention afforded to him has started to undermine the efficiency of the Repair Parts Supply Platoon. 10 On 5 March 1982 the applicant was charged and convicted of absenting himself without leave from 0800 hours on 26 February 1982 to 2345 hours on 27 February 1982, and of disobeying a lawful command given by his superior officer, being that he return to work at the 16 AD REGT WKSP. He was ordered to be confined to barracks for 14 days. 11 Following upon those convictions. LTCOL Carter requested that the applicant be discharged commenting: ... attitude and conduct are of a poor standard, and his continuing absences have caused him to become an administrative burden on the unit. 12 On 18 March 1982 approval was given for the applicant to be discharged under reg 176(1)(n) of the Australian Military Regulations 1927 (Cth) (the Army Regulations) in that "his retention (in the Army) was not in the interests of Australia or the Army". 13 On 20 March 1982 the applicant was admitted to hospital where he remained until 24 March 1982. He was re-admitted again on 26 March 1982 and remained in hospital until 31 March 1982. Both admissions were apparently the result of physical ailments, although while he was in hospital a clinical note was made of "anxiety and personal problems" contributing to his symptoms. 14 On 9 April 1982 the applicant left Australia for Nepal. After 13 April 1982 he was considered by the Army to be absent without leave. Whilst in Nepal the applicant communicated with the Army. On 8 July 1982 the Defence Attaché at the Australian Embassy in New Delhi, Group Captain R E Gillard wrote to the applicant confirming that the applicant had been discharged from the Australian Army effective 13 July 1982. 15 The applicant's Army records show that he was discharged on that date in reliance upon reg 176(1)(n) of the Army Regulations. Regulation 176(1)(n) of the Army Regulations then provided: (1) For the purposes of section 44 of the Act, each of the following reasons is a reason for the discharge of a soldier, other than a national serviceman: (n) that the Chief of the General Staff is satisfied that the retention of the soldier in the Army is not in the interest of Australia or of the Army. 16 Regulation 176 is there referring to s 44 of the Defence Act 1903 (Cth) which provides for the discharge of soldiers who have not completed their period of service or not attained the age prescribed for compulsory requirement. 17 There is a further note in September 1983 that the applicant was discharged under reg 176(1)(q) of the Army Regulations on the ground that he was absent without leave, but that second note need not be further addressed. 18 On 14 September 2003 the applicant 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) invoking s 37 of that Act. 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 or a person authorised in writing by 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 purpose of this Act, be treated as if he had been retired on that ground. 19 The applicant sought to have the Chief of Army inform the Authority that, at the time the applicant 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. 20 Section 37 of the DFRDB Act empowers the relevant Chief of Staff to inform the Authority of the matters contained in s 37, but does not empower the Chief of Staff to determine whether the member could have been retired on the grounds of invalidity or of physical or mental incapacity to perform his duties. The Chiefs of Staff have the power to inform the Authority of that matter, but no further power. Once the Authority is informed, the Authority may treat the contributing member as if he had been retired on the ground of invalidity or of physical or mental incapacity to perform his functions: Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306 at 309. 21 In response to the applicant's request, a delegate of the Chief of Army determined that at the time of the applicant's discharge grounds did not exist whereby the applicant could have been discharged because of a physical or mental incapacity to perform his duties. As a result, s 37 of the DFRDB Act was not engaged and the Authority was not thereafter entitled to determine that the applicant should be treated for the purpose of fixing benefits under the DFRDB Act as if he had been retired on that ground. 22 The applicant sought a review of the decision of the delegate of the Chief of Army, but Mansfield J found no reviewable error and dismissed the application: Rana v Chief of Army [2005] FCA 1283. The applicant appealed from the order of Mansfield J dismissing his application for review, but that appeal was dismissed by the Full Court of the Federal Court on 12 May 2006: Rana v Chief of Army Staff [2006] FCAFC 63. On 4 May 2007 Crennan J of the High Court of Australia dismissed the applicant's application for the issue of the writs of certiorari and mandamus against the three judges sitting as the Full Court of the Federal Court, and Mansfield J holding that the applicant's submissions revealed no grounds for the grant of the relief sought. 23 As a result, the ground for the termination of the applicant's service with the Army remained under reg 176(1)(n) of the Army Regulations; namely, that his retention in the Army was not in the best interests of Australia or the Army. 24 The applicant has sought the benefits under the VE Act which are payable to members of the Forces identified in s 69 of that Act. 25 Relevantly, s 69(1) provides: (1) Subject to this section, where a person: (a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or (b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date; this Part applies to the person: (c) if the person: (i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and (ii) has, whether before or after that date, completed 3 years' effective full-time service as such a member; or (d) if: (i) the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and (ii) the person's service as such a member was terminated before the person had completed 3 years' effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person's death or the person's discharge on the ground of invalidity or physical or mental incapacity to perform duties; ... 26 Section 69 is contained within Part IV of the VE Act which provides for pensions for members of the Defence Force or Peackeeping Force and their dependants. Paragraph (d) of s 69(1) would apply to the applicant if the applicant had been discharged from the Army "on the ground of invalidity or physical or mental incapacity to perform duties". The applicant contended that he qualified under s 69 and that his discharge had been on that ground. If the applicant qualified by reason of that ground, he may be entitled to benefits under s 70 of the Act. 27 Section 69 of the VE Act provides that where a person has served in the Defence Force for the period mentioned in s 69(1)(a) or is serving in the Defence Force for the period mentioned in s 69(1)(b), Part IV applies to the person if the person also comes within paragraphs (c), (d), (e) or (f) of s 69(1). If s 69 applies, a person's dependants may be entitled to compensation in the case of death of the person or the person may be entitled to a pension if incapacitated from a defence-caused injury or a defence-caused disease: s 70(1) of the VE Act. 28 The Member of the AAT decided that the antecedent question whether the applicant was a member of the Defence Force for the purpose of s 69 should be decided before addressing the question whether the applicant had an entitlement to benefits under s 70. The Deputy President, from whose decision the appeal has been brought, declined as I have said to vary the Member's decision and proceeded to determine that antecedent question. 29 Notwithstanding the applicant's complaint, to proceed in that way was practical and not unfair to the applicant. There was no point in the AAT addressing any issues relating to the applicant's eligibility for a pension under s 70 if the AAT found that the Part did not apply to the applicant because the applicant could not bring himself within s 69 of the VE Act. There was no unfairness in proceeding that way. The applicant could not point to any evidence which might be adduced on any other issue which could not have been adduced on the issue which was addressed. 30 The respondent contended before the AAT and on appeal that the issue was determined by the fact that the applicant had not been discharged for any of the reasons mentioned in s 69(1)(d) but had been discharged on the ground that "his detention (in the Army) was not in the interests of Australia or the army". The reason given by the Army was said to be conclusive of the issue. 31 The Deputy President rejected that submission, instead following a decision of Madgwick J in Whiteman v Secretary, Department of Veterans' Affairs (1996) 69 FCR 510 in which his Honour concluded that it was open to the AAT to look behind the administratively noted ground of discharge to determine the actual ground of discharge. Whilst the respondent conceded that the Deputy President was bound to follow Madgwick J's decision, it argued by way of notice of contention that I should either decline to follow Madgwick J's decision on the ground that it was wrongly decided, or not apply it on the ground that it was distinguishable. The point of distinction, it was put, is that the applicant has already unsuccessfully challenged the Army's administrative note that he was discharged because his retention in the Army was not in the interests of Australia or the Army and not because of invalidity or physical or mental incapacity to perform duties. There is considerable force in the respondent's contention, even assuming Madgwick J's decision to be correct. If the applicant succeeded on this appeal and obtained a determination that his discharge was due to what I will call a s 69(1)(d) reason, that would give rise to two conflicting decisions as to the ground of his discharge. The decision of the Chief of Army that at the time of the applicant's discharge grounds did not exist whereby the applicant could have been discharged because of a physical or mental incapacity to perform his duties, has been shown to contain no reviewable error and it stands unimpeachable. It would be a curious result if the applicant could obtain a conflicting decision in a separate review application. 32 However, the Deputy President proceeded to consider whether s 69(1)(d) grounds existed and, like the previous decision-maker, the Chief of Army, found them absent. 33 The applicant has asked this Court to consider whether the Deputy President was right to so conclude. In my opinion, no reviewable error has been demonstrated and, for that reason, this appeal can be dismissed. In those circumstances, I do not need to make a decision whether Madgwick J's decision is either correct or distinguishable. 34 Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides for an appeal to this Court "on a question of law" from any decision of the AAT in any proceeding before the AAT. 35 It is often very difficult to distinguish between a question of fact and a question of law, although such a distinction is vital in many fields of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394. The Court said in that case: Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. 36 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, the Court identified five general propositions: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. (Footnotes omitted.) 37 The fifth proposition which is relevant to this appeal was qualified by the Court. It said at 288: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council (1980) 144 CLR 1 at 8. 38 In this case no question as to the construction of s 69 arose. The question for the AAT was whether the applicant could bring himself within the purview of the statute. It was a factual enquiry. 39 Order 53 of the Federal Court Rules deals with appeals from the AAT. Order 53 rule 3(2) provides: (2) The notice of appeal should be signed by the applicant or is solicitor and shall state: (a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made; (b) the question or questions of law to be raised on the appeal; (c) the orders sought; and (d) briefly but specifically the grounds relied upon in support of the order sought. 40 In Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321, Branson and Stone JJ said at [18]: In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 41 The applicant has not been able to articulate with the precision required by the Rules and by the decision in Birdseye v Australian Securities and Investments Commission 76 ALD 321 the questions of law which he says arise as a result of the decision of the AAT. 42 In the amended notice of appeal which was filed at the hearing of the appeal the appellant has identified what he says are the grounds of appeal on questions of law. Each of the grounds which I shall set out below are particularised at length and in each case the particulars show that the questions raised are not questions of law at all. The grounds of appeal are, without their particulars: (i). DP Hack erred in law by denying the applicant natural justice or failed to accord the applicant procedural fairness per s. 5(1)(a)(b) of the Administrative Decisions (Judicial Review) Act 1977. (ii). DP Hack did not properly take into account the relevant evidence presented by the applicant at the hearing. This is per s. 5(1)(e) and (2)(b) of the Administrative Decisions (Judicial Review) Act 1977. (iii). Making of the decision by DP Hack was an improper exercise of power conferred by the AAT Act, in that irrelevant consideration was taken into account. This is per s. 5(1)(e) and (2)(a) of the Administrative Decisions Judicial Review Act 1977. (Footnotes omitted.) 43 The notice of appeal seeks the quashing of the Deputy President's decision and the remitter of the application to the AAT constituted by some other Member. 44 The notice of appeal identifies grounds and findings of fact: 4. GROUNDS: The decision is unreasonable, unfair and irrational, which is not supported by substantial evidence. Further, the approach taken by DP Hack was unusual and is inconsistent with two previous Tribunals, which have relied on the same sets of evidences. Lastly, it is illegal as the assumptions of the experts were based on misrepresentation, fraud and falsehood on the part of the Australian Government Solicitors who wrote the brief and the conclusion reached by DP Hack is unsafe and unsatisfactory. In sum, the decision of DP Hack is not supported by reasonable evidence and is based of (sic) his misapprehension of facts in applying to the construction of Whitman (sic) law. 5. FINDINGS OF FACTS that the Court is asked to make are: (i). The applicant suffered from aggravation reactive depression or reactive anxiety depression or adjustment disorder with mixed emotional features within an underlying personality disorder materially and significantly contributed by the applicant's Army service. (ii). The applicant was totally and partially incapacitated to be employed in the Army from the day of his discharge in 15 July 1982 to April 15 1985 which was contributed by his Army service as a result of him suffering racial and other forms of discrimination. (iii). The diagnosis of adjustment disorder with mixed emotional features was made by Dr. D.D Kutlaca, where he relied on all papers supplied to him by the Commonwealth of Australia. The same sets of documents were also supplied to Drs. Hoff, Goldney, Davis and Pasquale, Tribunals of 1988, 2004 and to DP Hack. (iv). The applicant's suffering of adjustment disorder is linked with the observations of Major Watts, where he inferred that the applicant was suffering "complex emotional problems." (v). The applicant was suffering from trauma and significantly from adjustment disorder at the time of his discharge from the Army, and the real reason for discharge dominantly was his psychiatric condition, accordingly entitled to the disability pension according to law. 45 The grounds of appeal, although stated as questions of law when identified, are not in fact questions of law at all. What the applicant has sought on this appeal is a review of the merits of the decision which, of course, is not open to this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39] per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650. 46 The applicant contended before the AAT that he was subjected to racial abuse and discrimination and was a victim of sexual assaults of varying severity during the period of his service. The perpetrators included both senior non-commissioned officers and other recruits. He contended that the treatment to which he was subject, together with his personal life, resulted in him suffering from a psychiatric condition which prevented him from adequately performing his duties and led to his discharge from the Army. He contended therefore he came within s 69(1)(d)(ii) in that his service was terminated before he had completed three years effective full-time service by reason of his discharge on the ground of invalidity or mental incapacity to perform duties. 47 The respondent, on the other hand, contended that whatever condition the applicant suffered from at the time of his discharge was mild and was not such that it rendered him incapable of carrying out his duties, and did not lead to his discharge from the Army. The Commission contended that the applicant was discharged for the reasons given; that is, because his retention in the Army was not in the interests of Australia or the Army. 48 The Deputy President referred to the evidence of three psychiatrists, Dr Jha, Dr De Pasquale and Professor Goldney, all of whom expressed the view that the applicant suffers from a mental disorder. Dr Jha said he suffered from adjustment disorder, post-traumatic stress disorder and paranoid schizophrenia. Dr De Pasquale was of the opinion that he suffers from a paranoid delusional disorder and that he has paranoid personality, and suffers from post-traumatic stress disorder. Professor Goldney was of the opinion that the applicant has a chronic psychotic illness which has gradually evolved over the years and has an underlying paranoid personality disorder. 49 The Deputy President determined that he did not need to inquire into whether the applicant suffered a mental disorder for the reasons which the applicant advanced. The question to be determined by the Deputy President was not the cause of the applicant's condition, but whether he had a condition at the relevant time which interfered with his capacity to perform his duties. 50 The Deputy President addressed the contemporaneous medical evidence, including that of Dr Hoff and the evidence of the three psychiatrists to whom I have already referred. The Deputy President concluded at [43]: I am well satisfied that Mr Rana was suffering a mental condition, namely, personality disorder at the time of his discharge from the Army in 1982. In addition I am satisfied that Mr Rana was suffering from a personality disorder prior to his enlistment. The next question then is whether Mr Rana's mental state in 1982 caused incapacity to perform some of his Army duties. That question involves, as well, a consideration of the seriousness of the condition in 1981 and 1982. 51 The Deputy President next turned his attention to the question whether the applicant had the capacity to perform his duties during his Army service. He noted the evidence given by the applicant which he said was expressed in the language of psychologists or psychiatrists in part and in the language of the statements of principles by which matters of causation between disease or injury and military service are determined for the purpose of the VE Act. He noted the evidence was inconsistent with both contemporaneous evidence and the evidence of medical practitioners and fellow soldiers and officers who served with him. 52 The Deputy President turned his attention to the contemporaneous medical evidence and, in particular, that relating to his admissions to hospitals in 1981. He had regard to reports written by the applicant's Commanding Officer to Dr Hoff concerning the applicant and Dr Hoff's comments in the months that follow. 53 The Deputy President said at [53]: What is apparent from all of the contemporary medical reports is that there is no connection drawn between Mr Rana's difficulties with service life that led ultimately to his discharge and any psychiatric condition, either by Mr Rana or by the reporting practitioners. There is a similar absence of any such connection in the evidence of the soldiers and officers who served with him at the time. 54 The Deputy President then addressed the evidence of five soldiers who served with the applicant in 1981 and 1982. He discussed the evidence of each of those witnesses. 55 The Deputy President concluded that the contemporary medical evidence did not draw any connection between the applicant's difficulties with his service life which ultimately led to his discharge and any psychiatric condition. He also found there was no evidence of any connection of that kind in the reports of soldiers and officers who served with him at the time. In particular, he relied on the evidence of the five soldiers and officers who served with him, whose evidence he accepted. 56 He concluded at [60]-[61]: 60. I accept the evidence of each of these witnesses. Mr Rana appeared not to take issue with their observations of the manner of his performance of his duties rather the issues that he raised with them related to his claims of discrimination and victimization that I find it unnecessary to deal with. Mr Rana was critical of Mr Liebenau for his inability to remember a telephone number given to him in 1982 and, as well, asserted that Mr Liebenau had somehow tampered with a notebook that he had used during his period of service and in which he had made contemporaneous notes regarding discipline matters concerning Mr Rana. It was never made clear to me what point Mr Rana sought to make from these criticisms but I reject them. Mr Rana also seemed to suggest in cross-examination of these witnesses that there had been something unfair about the Army's disciplinary processes against him. Mention was made, for example, of him not being permitted to have access to a lawyer, but I am unable to see how, even were that to have been true, it bore on the issues that I have to decide. 61. There is, however, nothing in their evidence that suggests that there was any apparent connection between the matters that led to Mr Rana's discharge and any psychiatric condition. The general tenor of the evidence was that Mr Rana was quite capable of performing his allotted duties but that his laziness and arrogance created a problem in his performance. Importantly there is nothing in the evidence that suggests Mr Rana was experiencing difficulties of the nature claimed by him in his evidence. The highest at which the evidence may be put is the comment by MAJ Watts in March 1982 that Mr Rana had "complex emotional stresses" which he had "allowed to influence his effectiveness as a soldier". But that falls far short of demonstrating that some abnormal condition of the mind was hindering Mr Rana's capacity to perform all or part of his duties. 57 The last source of evidence the Deputy President addressed was the evidence of a number of psychiatrists starting with Dr Hoff. He referred to a report of Dr David Kutlaca in June 1985. He referred to reports of Dr De Pasquale who had commenced treating the applicant in late 1986 and continued to do so intermittently until 2004. He referred to the written evidence of Dr Jha, which was to the effect that the applicant had exhibited some psychiatric problems towards the later months of his Army service, but his main problems were adjustment disorder with emotional disturbances like anxiety and depression and post-traumatic stress disorder. Dr Jha said in his evidence that the applicant had presented with serious psychiatric problems which might actually impair his "ability to work properly, you know in the Army". He said his condition might affect his attention and concentration. 58 Professor Goldney considered that there were insufficient symptoms documented in the clinical records to substantiate the view that the applicant had a significant psychiatric illness which would have precluded him from working. He disagreed with Dr Jha's characterisation of the applicant's symptoms as being serious. 59 After discussing the evidence, Deputy President Hack said that only the opinion of Dr Jha supported "the proposition that Mr Rana's mental state in 1981 might have had anything other than a transient impact upon his capacity to undertake his Army duties". 60 The Deputy President observed that the opinion of Dr Hoff, Dr De Pasquale and Professor Goldney were all to the contrary. He preferred their opinions to Dr Jha's opinion and concluded that he was unable to accept Dr Jha's opinion. He gave reasons for doing so. Dr Jha had acknowledged that Dr Hoff had the advantage of being the applicant's treating psychiatrist and was in the best position to determine the extent and severity of the applicant's symptoms, and any impact upon his functioning. 61 The Deputy President accepted the evidence of Dr Hoff that the applicant's mental state did not interfere with his capacity to undertake his duties. He also accepted the opinion of Dr De Pasquale that in 1982 the applicant had not been suffering from any mental disorder so severe that he could not do his job as a storeman. He also accepted the opinion of Professor Goldney that the applicant's mental state would not have caused him other than transient and minor interference with his concentration and ability to undertake his duties. 62 Moreover, he accepted the body of lay evidence from those soldiers who had served with the applicant that the applicant's work was not compromised by any mental state from which he might have suffered. He concluded that he was "not satisfied that Mr Rana's mental state in 1981 and 1982 interfered in any material degree with his capacity to undertake any of his Army duties". 63 As the applicant's case depended upon the Deputy President accepting that his mental state gave rise to the behaviour which led to his poor work performance and resultant discharge, his application had to fail. 64 The Deputy President addressed further arguments put by the applicant. He rejected the applicant's contention that the determination of the preliminary issue was inappropriate. He observed that the applicant did not contend in the course of the hearing that the determination of the latter by first addressing whether or not the applicant came within s 69 of the VE Act prevented the applicant from calling any evidence he desired to call on that issue or prejudiced him in any way. 65 He rejected an argument put by the applicant that he had not been lawfully discharged from the Australian Army because he had not undergone a final medical examination. He rejected the claim that the applicant thereby was still a member of the Australian Army and entitled to a pension under s 70 of the VE Act. 66 He rejected an argument put by the applicant that because the applicant had been paid compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) from 14 July 1982 to December 1984 for a condition described as "adjustment disorder", that meant that he was entitled to a pension under the VE Act. He rejected an associated argument that the Commonwealth was now estopped from contending that he was not entitled to compensation. 67 Lastly, he rejected the applicant's criticism of the witnesses to whom he had previously referred. 68 It can be seen that Deputy President Hack approached the application in a logical fashion. First, he addressed the issue whether the applicant was suffering any mental condition at the time of his discharge from the Army in 1982. He answered that in the affirmative by concluding that the applicant was suffering from a personality disorder prior to his enlistment. He did not inquire into the reasons why the applicant was suffering from a personality disorder at the time of his discharge noting, relevantly and appropriately, that the question of cause was not an issue. 69 Secondly, he addressed the issue whether the applicant's mental state in 1982 was such as to render the applicant incapable of performing his duties by reason of that mental condition. As a matter of fact he concluded that the applicant's mental condition was not in 1982 serious. It was not as a matter of fact, the Deputy President concluded, of a kind that which would have interfered in any material degree with the applicant's capacity to undertake any of his Army duties. 70 The answer to that second issue was fatal to the applicant's claim that his service was terminated by reason of his discharge on the ground of a mental incapacity to perform duties. Because the applicant could not bring himself within s 69 of the VE Act, then Part IV of that Act did not apply to him and he was not therefore entitled to a pension. The determination of that preliminary issue adverse to the applicant meant that the applicant's claim for a pension had to fail. 71 The first ground of appeal asserts that the Deputy President denied the applicant natural justice or failed to accord the applicant procedural fairness. 72 Insofar as the applicant would suggest that to proceed to determine the preliminary question amounted to jurisdictional error, that claim must be rejected. The way in which Deputy President Hack approached the application was both sensible and practical. If the applicant was not a member of the Defence Force at the relevant time, there was no point conducting the s 70 inquiry whether he was incapacitated from a defence caused injury or defence caused disease. The applicant suffered no prejudice by the Deputy President proceeding in the way that he did. 73 In support of this ground of appeal the applicant complained that Dr Hoff's evidence was given in circumstances where he had not seen the applicant since 1981 and was therefore not an expert. He complained of the evidence of Dr De Pasquale who had agreed in earlier proceedings, in consideration of the applicant terminating the patient medical practitioner arrangement, not to give evidence against the applicant. He complained of the evidence of Professor Goldney which he said had been contaminated by the Australian Government Solicitor's communications with him. 74 Dr Hoff gave evidence in response to a summons by the AAT to produce documents and to give evidence. He responded to the summons and produced his medical records, attended to give evidence and answered questions put to him. There is nothing in the complaint made by the applicant in respect of Dr Hoff's evidence. 75 Dr De Pasquale was also twice summonsed to produce documents and formally summonsed to give oral evidence at the AAT hearing. No complaint can be made about the fact that he gave evidence. His doing so did not constitute a denial of natural justice or a failure to accord the applicant procedural fairness. 76 There was no evidence before the AAT or before the Court that the communications between the Australian Government Solicitor and Professor Goldney in any way affected his evidence. The applicant had the opportunity of cross-examining Professor Goldney on the opinions which he offered. 77 The applicant has made a number of complaints in the particulars to the ground of appeal relating to the AAT's findings. He complained that the AAT failed to hold that the applicant's mental condition was caused by the applicant's Army service. That however was not an issue on the application. The applicant did not need to prove that his mental condition was caused by the applicant's Army service for the purpose of the Deputy President determining whether or not the applicant was a member of the Defence Force at the relevant time. The cause of the applicant's present incapacity would have been an issue if the Deputy President was addressing a s 70 of the VE Act inquiry. But at the s 69 of the VE Act level the reason why the applicant suffered a mental condition was not relevant. In any event, to proceed in the manner in which the AAT did, which in my view was appropriate, was not to disadvantage the applicant at all. 78 The remaining particulars complain of failure by the AAT to accept the evidence adduced by the applicant and prefer the evidence led by the respondent. Those issues go to merit and not to the claimed jurisdictional error. 79 In my opinion, the first ground which complains that the AAT denied the applicant natural justice or failed to accord the applicant procedural fairness is not made out. 80 The second ground is that the Deputy President did not properly take into account the relevant evidence presented by the applicant. 81 The particulars which are said to support this question of law take issue with the Deputy President's findings and complain that the Deputy President ought to have made factual findings supporting the applicant's case. This is a further attempt by the applicant to have this Court embark upon a merits review of the Deputy President's decision which is impermissible. No question of law is raised in relation to this ground and this ground cannot be maintained. 82 In the particulars accompanying this ground of appeal the applicant complains of findings which he says are inconsistent with previous decisions of the AAT in which he has been involved. He does not thereby claim that the Deputy President failed to have regard to those decisions as factual matters. His complaint is that the conclusions reached by the Deputy President are not consistent with those previous findings. However, the AAT did have regard to those previous decisions: see [88]-[92]. 83 In any event, those previous decisions did not address the issue which was before the Deputy President, which was whether the applicant was discharged by reason of any incapacity to perform his military duties. 84 The rest of the complaints go to the merits and the failure by the Deputy President to make findings consistent with the evidence adduced by the applicant, and the Deputy President preferring the evidence of the respondent. They are not matters that can be examined on this appeal. 85 The third ground complains of the Deputy President taking into account irrelevant considerations. 86 This ground also is particularised by complaints concerning the findings made by the Deputy President and the failure by the Deputy President to make findings which would support the applicant's case. This ground repeats the complaints in the earlier grounds that the Deputy President should not have found adversely to the applicant. This ground raises no question of law and is again an attempt to have this Court embark upon a merits review of the applicant's case. 87 The applicant's claim before the AAT failed because the Deputy President accepted a body of evidence from three separate psychiatrists over different periods of time to the effect that the applicant's mental condition, whatever it might have been at the time of his discharge from the Army, was not such that it would have incapacitated him from carrying out his duties. That body of medical evidence was supported by the evidence of a number of soldiers who served with him at the time who gave evidence of their observations of the applicant's conduct immediately prior to his discharge. There was evidence before the Deputy President which would have allowed him to come to the decision which he did. There was evidence from Dr Jha which would have supported the applicant's case, but the Deputy President preferred the evidence of Dr Hoff, Dr De Pasquale and Professor Goldney, which the Deputy President was entitled to do. Not only was Dr Jha's evidence inconsistent with that of his peers, but it was also inconsistent with the lay evidence of the former soldiers who gave evidence. 88 This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant. 89 The applicant has wrongly assumed that because he adduced evidence in support of the proceeding the AAT was bound to accept it. The AAT was not bound to accept the applicant's evidence or contentions. It was bound to conduct a review of the decision and to determine whether on the evidence before him the decision under review was the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The process which the Deputy President embarked upon was inquisitorial but it was "for the applicant to advance whatever evidence or argument (the applicant) wishes to advance in support of (his) contention ...": Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]. The Deputy President's duty was to decide whether the applicant's claim was made out. 90 The applicant is not entitled to argue under the guise of questions of law that the Deputy President arrived at the wrong factual conclusion. 91 Insofar as the applicant complains of the way in which the AAT proceeded and that amounts to a question of law, for the reasons given that complaint is dismissed. 92 Because the applicant's notice of appeal otherwise only raises factual findings which he says should or should not have been made, no questions of law are raised. 93 In those circumstances, I need not address the respondent's notice of contention that Whiteman v Secretary, Department of Veterans' Affairs 69 FCR 510 should not be followed because it is wrong or, if not wrong, distinguishable.
94 The appeal must be dismissed. The applicant must pay the respondent's costs of the appeal. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
Rana
Repatriation Commission
[2009] AATA 671
(1999) 197 CLR 510
(1990) 170 CLR 1
(1996) 186 CLR 389
(1993) 43 FCR 280
(1984) 4 FCR 306
(1979) 24 ALR 577
Appeal dismissed; applicant ordered to pay the respondent's costs (Order at front and para [94]).
(1996) 185 CLR 259
(1999) 197 CLR 611
(1996) 69 FCR 510
(1980) 144 CLR 1