Administrative Law - Veterans' Affairs - appeal from Administrative Appeals Tribunal - whether breach of natural justice where particular matters not put to witnesses - failure of Tribunal's reasons to mention certain submissions - failure of Tribunal to consider effect of provision not relied upon - whether decision against the evidence.

Administrative Appeals Tribunal Act 1975, s.43(2B)

Veterans' Entitlements Act 1986, ss.22; 24

Solicitors for the respondent: Australian Government Solicitor

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal on questions of law from the Administrative Appeals Tribunal in a case concerning a pension claim under the Veterans' Entitlements Act 1986 ("the V.E. Act"). The applicant is a Vietnam veteran, diagnosed as suffering from a depressive neurosis condition which, so the Tribunal thought, entitled him to, at most, 90% of the general rate of pension mentioned in s.22 of the V.E. Act. The applicant challenges the Tribunal's decision on four grounds: first, findings were made against him about matters which were not put to him when he gave evidence; secondly, the written reasons of the Tribunal were inadequate; thirdly, the Tribunal did not consider whether the applicant had satisfied paragraph 24(2)(b) of the V.E. Act; and fourthly, there was no evidence to support two of the Tribunal's findings.

2. The applicant joined the regular Army in 1963 and left in 1969, when his six-year engagement expired; he did not apply for re-engagement. He served in South Vietnam for about seven months. After he left the Army, he had difficulty in re-establishing himself in civilian life and, it appears, regretted having abandoned what, in retrospect, he thought to be a worthwhile and secure occupation as a soldier. According to the applicant's evidence, his personal life was at material times unsatisfactory.

3. The applicant was, on 9 September 1988, accepted as suffering from war-caused neurosis. The applicant's pension was increased on 12 January 1989 to 50% of the general rate with effect from 17 September 1984 and, on 25 August 1989, to 60% of the general rate with effect from 8 December 1988. The Veterans' Review Board increased it, by a decision given on 8 January 1990, to 80% of the general rate with effect from 17 September 1984 and 90% with effect from 11 August 1986. The Board also determined that the applicant was not entitled to payment of the special rate of pension under s.24 of the V.E. Act. The applicant challenged this decision by an application for review to the Tribunal. There, it was contended that the applicant should be granted pension at the special rate under s.24 of the V.E. Act and that the disability pension was assessed at too low a level; the major contention was the former. It seems desirable to set the relevant part of s.24 out:

"(1) This section applies to a veteran, other than a veteran to whom

section 25 applies, if -

(a) either:

(i) the degree of incapacity of the veteran from war-caused

injury or war-caused disease, or both, is determined under

section 21A to be at least 70% or has been so determined by

a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is

suffering from pulmonary tuberculosis, receiving or entitled

to receive a pension at the general rate;

(b) the veteran is totally and permanently incapacitated, that is to

say, the veteran's incapacity from war-caused injury or war-caused

disease, or both, is of such a nature as, of itself alone, to

render the veteran incapable of undertaking remunerative work for

periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused

injury or war-caused disease, or both, alone, prevented from

continuing to undertake remunerative work that the veteran was

undertaking and is, by reason thereof, suffering a loss of salary

or wages, or of earnings on his or her own account, that the

veteran would not be suffering if the veteran were free of that

incapacity.

(2) For the purpose of paragraph (1)(c) -

(a) a veteran who is incapacitated from war-caused injury or

war-caused disease, or both, shall not be taken to be

suffering a loss of salary or wages, or of earnings on his

or her own account, by reason of that incapacity if -

(i) the veteran has ceased to engage in remunerative work

for reasons other than his or her incapacity from that

war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from

engaging in remunerative work for some other reason;

and

(b) where a veteran, not being a veteran who has attained the

age of 65 years, who has not been engaged in remunerative

work satisfies the Commission that he or she has been

genuinely seeking to engage in remunerative work, that he or

she would, but for that incapacity, be continuing so to seek

to engage in remunerative work and that that incapacity is

the substantial cause of his or her inability to obtain

remunerative work in which to engage, the veteran shall be

treated as having been prevented by reason of that

incapacity from continuing to undertake remunerative work

that the veteran was undertaking".

4. The substantial question in the case was, and is, whether the applicant has satisfied the condition in para (1)(c) of s.24(1). There was no dispute about paras (a) and (b).

5. At the conclusion of the hearing before the Tribunal, there was a brief adjournment, at the conclusion of which the Deputy President who formed part of the Tribunal gave brief oral reasons which rejected the applicant's claim. They were to the effect that the 90% assessment was correct, or perhaps slightly generous. The reasons added:

"The fact that this man, the applicant, Mr Hoskins, suffers a

distressing psychiatric condition does not justify his suborning (sic)

almost the whole of his everyday lifestyle to it.

In our view the reality of the condition's impact upon him rests well

below the level at which he chooses to place it".

The Tribunal added, in substance, that apart from anything else, the applicant suffered from a back condition which was not war-caused, which contributed to his incapacity.

6. The applicant then requested written reasons, which were delivered a little later. In paragraph 13 of those reasons, there is to be found the following:

"We were of the view, and we remain of the view, that conscious

exaggeration by him of his symptoms is a ploy and it is our view that

the reality of the impact upon him of the condition rests well below

that at which he chooses to place it".

7. The Tribunal also discussed the report of a Dr. Jenkins which was in evidence, and his oral evidence. It made comment upon that evidence and, in particular, upon a statement of the doctor to the effect that the applicant "could work eight hours per week but it would have to be selective employment". The Tribunal said, in effect, that this statement presumably was based on the condition of depressive neurosis but that it was not persuaded that the doctor's assessment was accurate.

8. The notice of appeal, read with particulars subsequently furnished, raised the four grounds mentioned above and also asserted that the Tribunal should have applied paragraph (b) of s.24(2) of the V.E. Act.

9. It seems unnecessary, for the purposes of these reasons, to set out the provisions relating to the general rate of pension and determination of the degree of incapacity. I will pass to the grounds raised.

10. It appears from an examination of the record that it is correct, as submitted, that topics which were the subject of important findings against the applicant were not directly put to him. Some specific complaints are dealt with below, but it is convenient first to look at the question broadly. The essence of the unfairness, if there was any, was that it was never suggested to the applicant that he was exaggerating his condition, as the Tribunal found. Mr O'Gorman argued for the applicant that such a finding should not have been made, without giving the applicant an opportunity to respond to that suggestion during his evidence.

11. Mr O'Gorman referred to Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, a personal injury case in which a new trial was ordered on the ground of a denial of natural justice. During argument, the trial Judge expressed a view about one of the factual issues and said that he did not accept a medical witness who gave evidence about it. He discouraged further submissions on the point but, in his reasons, accepted the doctor. The South Australian Full Court held that the Judge's error made no difference to the result. As to that, the High Court commented:

"All that the appellant needed to show was that the denial of natural

justice deprived him of the possibility of a successful outcome" (147).

12. It appears to me that this doctrine should be applied in the present case. If, in truth, the failure to put to the applicant the suggestion that he was exaggerating his symptoms was a breach of the requirements of natural justice, then one should not speculate as to whether or not questioning on the point might have enabled the applicant to improve his position.

13. It appears to me, then, that the applicant is entitled to have the decision set aside, unless the question of exaggeration should be taken to have been inherently in issue. In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray C.J., in discussing the rule in Browne v Dunn (1894) 6 R 67, said:

"In my view, however, the point fails here, both because the

circumstances of the case do not bring it within the rule and because,

in any event, the cross-examination of the appellant and the

preliminaries to the trial were sufficient to bring to his attention and

that of his advisers that it was being suggested that his account of his

disabilities was exaggerated.

... But these principles cannot, in my view, be applied without

qualification to a challenge to the witness's credit generally,

particularly the credit of a plaintiff in an action for damages for

personal injuries in relation to his evidence about his symptoms and

incapacities. Damages are always in issue. Such a plaintiff knows that

the defendant will contend that his injuries do not deserve the sum

which he himself has placed on them. And in many other cases the

witness must know that the other side will contend that he is not

telling the truth, and even in some cases that he is deliberately not

telling the truth.

... The rule in Browne v Dunn has much more force when applied to

evidence relating to a particular fact or topic than when sought to be

applied to the general credit of the witness, though even in the latter

case the failure to cross-examine at all may, in appropriate

circumstances, be taken as an acceptance of the general credit of the

witness as well as the truth of his evidence on particular matters

unless that evidence is patently absurd or incredible" (207).

The other members of the Full Court agreed with the Chief Justice.

14. It sometimes occurs that a witness complaining of physical or mental trouble is suggested to be guilty of exaggeration in specific ways: for example, because he or she has engaged in an activity which should be beyond the capacity of a person suffering from the disabilities claimed. But that is unlikely to be the case where the complaint is one of a depressive or neurotic condition.

15. Courts and tribunals which have in modern times had the task of determining whether or not such conditions exist, their severity and their cause, often have little objective evidence to go on. The task is not made easier by the knowledge that some people who suffer seriously from bouts of depression and the like can attain considerable success despite their condition. There is no acid test of the existence of a claimed serious neurosis. All the court or tribunal can do is to try to form an impression from the description of the claimant's behaviour given by him or her and that given by others, as well as from such opinion evidence as is called. Here, the applicant complained of a considerable number of troubles, such as feeling irritable and unapproachable. It would seem fairly difficult to put to a witness sensible questions directly challenging such claims.

16. It is my opinion that where the claim is one of a severe depressive neurosis, it is open to the Tribunal to find its severity to be exaggerated, consciously or otherwise, without having put that suggestion to the claimant. It is my opinion that such a claimant must, especially when represented professionally, surely appreciate that his or her task is to convince the Tribunal of the reality and seriousness of the complaints made. Following the South Australian case just referred to, I hold that there was no obligation in the Tribunal, or in the respondent's representative at the hearing before the Tribunal, to question the applicant along the lines submitted by Mr O'Gorman, and that the failure to do so was not an infringement of the requirements of natural justice.

17. That conclusion disposes substantially of the issues raised under this head, with one exception, consisting in the Tribunal's treatment of the evidence of the Dr. Jenkins referred to above.

18. This has two elements. The first is that the Tribunal implicitly criticised Dr. Jenkins for not specifying what condition produced the result that the applicant could work eight hours per week but only in "selective employment". The Tribunal's comment that this assessment was not related to any particular condition was simply a correct assertion of fact; Dr. Jenkins did not so relate it. The Tribunal went on:

"We assume that the Doctor had in mind the condition of depressive

neurosis when he made this statement, but in any event we are not

persuaded that it is an accurate assessment. It relies largely on the

case history given to the witness by the applicant".

I hold the view that it was not unfair for the Tribunal to reject Dr. Jenkins' evidence on this point without putting to him that it was incorrect. Dr. Jenkins had, as the Tribunal said, no more information than the applicant had given him. Having seen and heard the applicant, the Tribunal formed the impression that his account of the severity of his depressive neurosis was exaggerated, from which it necessarily followed that Dr. Jenkins' opinion, which was apparently based on acceptance of that account, was erroneous.

19. I am therefore of opinion that the first ground of appeal fails.

20. It was contended that the written reasons given by the Tribunal in the circumstances explained above were deficient for failure to comply with requirements of s.43(2B) of the Administrative Appeals Tribunal Act 1975. That provision reads as follows:

"Where the Tribunal gives in writing the reasons for its decision, those

reasons shall include its findings on material questions of fact and a

reference to the evidence or other material on which those findings were

based".

It is argued for the applicant that the Tribunal failed to mention two submissions made. The first was that the applicant's back condition is psychosomatic and the second, detailed submissions in relation to the assessment of the level of pension.

21. The answer which may immediately be made is that there is nothing in the Administrative Appeals Tribunal Act to require the Tribunal to mention any submissions at all; certainly s.43(2B) does not so require. The scope of the obligation to give reasons was discussed by Jenkinson J. in Dennis Wilcox Pty. Ltd. v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276. His Honour held in effect that if a submission worthy of serious consideration and seriously advanced is not dealt with, one ought to infer that it has been overlooked, giving rise to an error of law. The applicant's contention in this Court must be taken to be that the reasons were necessarily deficient if they did not deal with those issues. In my opinion, such a contention could not be sustained. Assuming the back condition was part of the neurosis, then the Tribunal reached and stated a conclusion as to the severity of the neurosis. As to the level of pension, it is true that the Tribunal did not go through the arithmetical exercise which the applicant's counsel desired, but in the circumstances it was not unfair to take the broad view which was stated, namely that the 90% was, if anything, too high - especially since the question of the degree of incapacity was not of central importance.

22. It was contended that the Tribunal failed to consider the application of this paragraph, which is quoted above. It is true that neither set of reasons makes any reference to this provision. The effect of paragraph (2)(b) of s.24 of the V.E. Act is to provide an extension of the meaning of the expression "prevented from continuing to undertake remunerative work that the veteran was undertaking", which is to be found in paragraph (1)(c). The contention on behalf of the applicant here is, as I understand it, that the Tribunal failed to give consideration to the question whether he was genuinely looking for work and would, but for his incapacity, have got some.

23. The record shows that the matter was not argued in this way. Counsel for the applicant before the Tribunal accepted that he had to satisfy the "alone test" in paragraph (1)(c). The Tribunal's reasons make no reference to the question whether the applicant could have gained assistance from paragraph (2)(b).

24. In my opinion, the Tribunal does not necessarily make any error of law if it omits to deal with a contention which might have been, but has not been, made. The problem has been discussed in a number of cases: see, for example, Secretary, Department of Social Security v Cooper (1990) 97 ALR 364 at 369, 370. It is implicit in Mr O'Gorman's submission that the Tribunal's error of law consisted in failing to deal with the application of a provision which could have brought the applicant success.

25. Suppose that an applicant before the Tribunal is entitled to succeed if he or she satisfies the conditions in one of two distinct provisions, A and B, but the applicant relies only on A. One can see that there might be an error of law if the necessity of considering B was obvious, but the mere possibility that had B been relied on the applicant might have won cannot vitiate the Tribunal's decision. Here, Mr O'Gorman could not contend that reliance on paragraph (2)(b) must have brought the applicant success before the Tribunal. The matter was argued before me as if I could properly, by examining the evidence relevant to the paragraph (2)(b) point, determine whether there was an error of law. That could be so, if that evidence was susceptible of only one reasonable conclusion, namely that the applicant satisfied paragraph (2)(b), but it seems plain that a decision adverse to the applicant on the point was open. Indeed, Mr Logan argued for the respondent that the evidence was overwhelmingly against the applicant, on this point.

26. I have come to the view that since paragraph (2)(b) was not relied on, the Tribunal's not having said anything about it was not an error of law, since that provision is not one which must have brought the applicant success, nor one which evidently required consideration. This Court has no jurisdiction to try the facts, nor can it lawfully set aside the Tribunal's decision unless an error of law is shown. In my view, the third ground of appeal fails.

27. Mr O'Gorman submitted that the Tribunal was obliged to find that the applicant had a depressive neurosis "and yet the Tribunal states that it is not persuaded that this is an accurate assessment". The relevant passage in the Tribunal's reasons has been referred to above, but the whole paragraph should be quoted.

"In his oral evidence, Dr Jenkins stated that the applicant 'could work

eight hours per week but it would have to be selective employment'.

This statement of incapacity for work was left somewhere in limbo as it

was not related to any particular condition. We assume that the Doctor

had in mind the condition of depressive neurosis when he made this

statement, but in any event we are not persuaded that it is an accurate

assessment. It relies largely on the case history given to the witness

by the applicant".

28. In my view, the submission misunderstands what the Tribunal has said. The inaccuracy which the Tribunal attributed to the doctor's assessment did not relate to the existence or otherwise of depressive neurosis, but to its consequences.

29. The Tribunal was not, in my opinion, obliged to accept the doctor's evidence. In Re Hope; Ex parte Carter (1985) 59 ALR 609 at 611, a case dealing with the existence of a trust, Spender J. quoted Hart J. with approval:

"Whether uncontradicted testimony should be accepted or not in my opinion

must depend on all the circumstances of the case including its inherent

probability and the possibility of calling evidence in denial" (Re Gear

(Deceased) (1964) Qd R 528 at 535).

The expression "depressive neurosis" is not itself absolutely precise. It refers to a mental condition producing a certain group of behaviour patterns. The extent to which psychiatrists or, indeed, anyone else, can swear positively to the cause or likely consequences of such a condition is very much a matter of debate; the study of the human mind is in its infancy. It seems to me clear that the Tribunal was free to accept or reject the opinion of Dr. Jenkins, whether or not another doctor was called to agree or disagree with him.

30. Under this heading, the applicant also relies upon three other matters, of which it seems to me necessary to mention one only. This is the Tribunal's view that the back condition contributed to the applicant's incapacity. This is said not to have been supported by any of the medical evidence, but in my opinion there was ample evidence to support the finding and that was helpfully referred to by Mr Logan; I do not propose to rehearse it. A strong case indeed is required to set aside the Tribunal's decision on factual grounds.

31. Therefore, the fourth contention on behalf of the applicant also fails.

32. It is, perhaps, unnecessary to reiterate the point, but this Court is not concerned with the question whether or not the Tribunal's decision is correct; its only jurisdiction is to consider errors of law. In deciding that the application to this Court must fail, I do not imply either that I think the Tribunal's decision on the facts to be correct or that I think it to be wrong. The application will be dismissed and I will hear the parties on the costs.