The first question of law
49 The first question of law identified in the notice of appeal is whether the Tribunal failed to consider relevant evidence. Grounds 1 and 3 appear to relate to this question. By these grounds it is contended, in summary, that:
(a) in determining the status of the applicant's mental health condition, the Tribunal overlooked evidence of impacts on the applicant's mental health condition since the date of the affirmed decision; and
(b) the Tribunal made an error of law in dismissing the evidence of the treating doctor and the treating specialists in favour of the opinion of a non-treating specialist.
50 The applicant's contentions are developed in his written submissions: see, in particular, the applicant's Submission and Chronology at paragraphs 13, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 32 and 35; and the applicant's written submissions in reply at paragraphs 5, 6, 7, 10, 13, 14, 15. These submissions relate to both the applicant's mental health condition and to his spinal condition.
51 As noted above, there is an issue whether the first "question of law" constitutes a question of law as required by s 44 of the AAT Act. The Secretary submits that, in reality, the applicant's complaint concerns the weight the Tribunal gave various pieces of evidence, and that issues relating to the weight to be given to evidence do not give rise to a question of law, relying on Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472 (Edington) at [61].
52 I note that, in the passage from Edington relied on by the Secretary, Kenny and Lander JJ stated that, generally speaking, issues as to the weight to be given to evidence do not give rise to a question of law; their Honours' statement was not unqualified. In the present context, the matters raised by the applicant, if established, could give rise to a question of law if, for example, they constituted a failure to take into account the information provided by health professionals specified in the relevant Table, as required by s 7(1) of the Determination (set out at [25] above). I therefore proceed to consider whether the matters raised by the applicant are established.
53 I will consider in turn each of the four sections of the Tribunal's reasons (see [39]-[40] above).
54 First, in the section of the Tribunal's reasons relating to the applicant's mental health condition and the issue whether this was fully treated and fully stabilised as at 10 July 2015, the Tribunal undertook a careful and detailed examination of the medical evidence. The Tribunal considered:
(a) the medical report of the applicant's treating general practitioner, Dr Chris Olszewski, which was lodged with the Secretary on 20 April 2015 (at [25], [33]);
(b) a report of a psychologist, Ms Lyn Bender of 12 October 2010 (at [37], [54]-[55]);
(c) a report of another psychologist, Mr Francois Joubert, of October 2012 (at [38]-[39], [56]-[57]);
(d) reports of Dr Gerke Witt, prepared on or about 20 January 2014, 16 June 2015 and 17 July 2015 (at [40]-[43], [58]-[59]);
(e) a report (or "Opinion") prepared by a clinical psychologist engaged by the Secretary's Health Professional Advisory Unit (HPAU), dated 29 June 2015 (the HPAU report) (at [44]);
(f) two reports prepared by a clinical psychologist, Dr Michael King of 28 April 2017 and 22 August 2018 (at [45]-[47], [60]);
(g) a report of Mr Bryan Kimpton of 23 April 2019 (at [48], [61]); and
(h) a report of Associate Professor Mendelson of 15 March 2019 (at [49]-[52], [53], [60], [62]-[63]).
55 In light of the Tribunal's detailed analysis of the reports and other evidence, I am not satisfied that it failed to have regard to relevant evidence. Further, insofar as the Tribunal preferred the evidence of the non-treating specialist (Associate Professor Mendelson) over the treating doctor (Dr Olszewski) and the treating specialists (including Dr Witt) and certain other evidence, the Tribunal gave clear and cogent reasons for preferring the evidence of Associate Professor Mendelson at [53] and [62]-[63] of its reasons. The Tribunal stated:
53. The Tribunal considers that the Applicant's mental health conditions including PTSD had not been fully treated and stabilised as at 10 July 2015. It does not accept the conclusion in the HPAU report. It prefers the conclusions of Associate Professor Mendelson which is to a considerable extent supported by the slightly more recent opinion of Mr Kimpton. The effect of the other reports referred to will also be considered. The opinion expressed in the HPAU report relied upon a conclusion that in the light of moderate improvements achieved with the treatments to date, it cannot be asserted that psychiatric treatment would result in a significant improvement in the next 24 months. This conclusion or opinion was arrived at after taking into account comments from Dr Olszewski and the contents of reports and observations made by Dr Witt. The Tribunal considers that neither Dr Olszewski nor Dr Witt went that far. They acknowledged that there had been no psychiatric intervention as at the relevant date. Dr Olszewski considered planned treatment could include medication and noted that his symptoms fluctuate. Dr Witt also noted that the Applicant's symptoms tended to fluctuate and also noted there had been past treatment with medication and psychological therapy. Neither of them reached the conclusion that the HPAU report did; that psychiatric treatment would not result in significant improvement in the next 24 months. Both of them did not rule psychiatric treatment out. Given the extent of the Applicant's problems that have been extensively recorded, it seems illogical, or perhaps unlikely, to reach a conclusion that psychiatric treatment would not be undertaken. To do otherwise would not exhaust all of the Applicant's possible treatment options and maximise the potential treatment outcomes.
…
62. By way of conclusion, the Tribunal should make several other comments on why it prefers the opinions expressed by Associate Professor Mendelson both in his report, and oral evidence given to the Tribunal. As noted above, and for the reasons outlined there, the report was prepared specifically for the purposes of this application, after a detailed letter of instruction was given to him with a vast array of reports and other material. Associate Professor Mendelson also as noted previously, is a vastly experienced consultant psychiatrist of very high esteem. His evidence in the witness box was given professionally and impartially, understanding that his obligations as an expert witness were to the Tribunal not to the party calling him. He was an impressive witness. In both his report and his oral evidence he provided rationally based reasons for reaching the conclusion he did, that he considered the Applicant had not received optimum treatment for his conditions.
63. Associate Professor Mendelson concluded that optimum treatment in psychiatric terms involves a combination of medication and psychological therapies. He reached his conclusions also after considering established professional literature and guidelines which in his undoubted experience provided an appropriate basis for consideration of the optimum level of treatment within the requirements of the Act and the Impairment Tables. He also considered the other experts' reports and explained why he disagreed, or otherwise differentiated from them, and the conclusions reached in them. After explaining with appropriate reasons, why he recommended a course of treatment, he opined that he would have expected such treatment to have led to significant amelioration of symptoms even if full remission had not been achieved. Importantly, he considered such recommendations to be further reasonable treatment. As described by him, the Tribunal finds the recommendation of psychiatric intervention and referral to the Psychological Trauma Recovery Centre at Austin Health is "reasonable treatment" available to the Applicant within the meaning of Clause (7) of the Impairment Tables. When an eminent consultant psychiatrist such as Associate Professor Mendelson expresses this opinion it is difficult to see why it should not be accepted. There is also really nothing in the other material in evidence before the Tribunal (or for that matter that emerged in cross examination of him) which strictly poses a challenge to his recommendations. For these reasons, the Tribunal prefers them over any other opinions that have been expressed, including insofar as they conflict with those reports of Bender, Joubert, Dr Witt and the contents of the HPAU.
56 It was open to the Tribunal to prefer the evidence of Associate Professor Mendelson for the reasons it gave. No error is shown in the Tribunal's preference for the evidence of Associate Professor Mendelson over the other evidence.
57 The next section of the Tribunal's reasons relates to the applicant's mental health condition and the level of functional impairment as at 10 July 2015 under the Impairment Tables. As Bromberg J stated in Sesalim at [17]-[22] (followed in Prahauser v Administrative Appeals Tribunal [2020] FCA 1658 at [36]), the assessment of a person's functional impairment in accordance with the Tables is not a mechanical task amenable to a precise answer; it is, rather, a task which involves a broad evaluative judgment on which reasonable minds may differ, and perhaps substantially so: at [17]. In the present case, the Tribunal noted at [67] that the several reports relied upon by the applicant and referred to earlier in the Tribunal's reasons did not specifically address the application of Table 5 and the descriptors contained therein. The Tribunal indicated that it would nevertheless examine these reports, together with the other evidence before the Tribunal: at [67]. The Tribunal referred to the evidence of several of the health professionals in its subsequent consideration of the issue: see [68]-[98]. Having reviewed this section of the reasons, and the references to the various medical reports that were in evidence, I am not satisfied that the Tribunal overlooked evidence relating to the applicant's mental health condition, or that it erred in law in its treatment of the medical evidence relating to that condition. The Tribunal provided cogent reasons for reaching the conclusions that it did in relation to each of the descriptors: at [69]-[99].
58 I now turn to the section of the Tribunal's reasons dealing with his spinal condition and whether the condition had been fully treated and fully stabilised. In this section, the Tribunal considered:
(a) the report of Dr Olszewski of 20 April 2015 (at [102]);
(b) evidence of a conversation between Dr Olszewski and a member of the HPAU on 10 June 2016 (at [104]);
(c) a report of Mr Brendan O'Brien of 29 September 2015 (at [105]);
(d) a report of Dr David Oehme of 23 February 2016 (at [106]);
(e) a report of Dr Bryden Dawes of 19 February 2019 (at [107]);
(f) a report of a physiotherapist, Ms Melissa Manuelpillaj (undated) (at [109]);
(g) a report of another physiotherapist, Ms Johanna Cross of 14 January 2016 (at [110]); and
(h) other physiotherapy reports that were in evidence (at [111]-[112]).
59 In light of the detailed consideration of this material (at [102]-[114]), I am not satisfied that the Tribunal overlooked evidence relating to the applicant's spinal condition. Further, the contention that the Tribunal made an error of law by dismissing the evidence of the treating doctor and the treating specialists in favour of the non-treating specialist does not appear to be directed to this section of the reasons. In any event, it was open to the Tribunal to prefer the medical evidence that it did, for the reasons it gave.
60 I now consider the section of the Tribunal's reasons dealing with the applicant's spinal condition and his level of functional impairment under the Impairment Tables. The Tribunal noted at [117] that there was limited evidence from the applicant and the experts on activities involving spinal function. The Tribunal considered the evidence given by the applicant himself at [117]-[122] and had regard to the medical evidence at [123]-[127]. In several instances, the Tribunal noted that the medical reports did not address the relevant matters. In light of the Tribunal's consideration of the medical evidence in these paragraphs, I am not satisfied that the Tribunal overlooked relevant evidence. Further, it is not established that the Tribunal erred by dismissing the evidence of the treating doctor and the treating specialists (if and to the extent that that contention has application to this section of the reasons).
61 Fundamentally, grounds 1 and 3 and the associated submissions express the applicant's (strong) disagreement with the conclusions that the Tribunal reached in each of the four sections of its reasons discussed above. These grounds and submissions are largely directed at the merits of the Tribunal's decision, rather than demonstrating an error of law. In particular, the applicant has not shown that the Tribunal failed to consider the medical evidence relied on by the applicant. To the contrary, the reasons of the Tribunal show that it carefully considered the medical evidence that was before it.
62 I note for completeness that some of the applicant's submissions complain about inconsistency between decisions of the Tribunal about his case. However, in each instance the Tribunal needed to decide the matter on the basis of the issues and material before it on that occasion.
63 For these reasons, grounds 1 and 3 are not made out.