CATCHWORDS

ADMINISTRATIVE LAW - Procedural Fairness  - whether the Veterans' Review Board was required to afford applicant the right to be heard before exercising investigatory powers - s152 Veterans Entitlements Act  1986 (Cth) - Whether the Board erred in deciding that it had no power to reconvene an adjourned hearing.

ADMINISTRATIVE LAW - whether Board's decision to refuse to reconvene to enable applicant to be heard constitutes "conduct" - s6 Administrative Decisions (Judicial Review) Act 1977 (Cth).

Veteran's Entitlements Act 1986 (Cth): ss 138, 151, 152, 153.

Administrative Decisions (Judicial Review) Act 1977 (Cth): s6.

Courtney v Peters (1990) 98 ALR 645; followed.

Kioa v West (1985) 159 CLR 550; applied.

Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493; distinguished.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; discussed.

"A" v JR MARSH, SENIOR MEMBER, FJ CROSS, SERVICES MEMBER AND BT EGAN, MEMBER COMPRISING THE VETERANS' REVIEW BOARD and REPATRIATION COMMISSION

No NG 272 of 1995

CORAM:  HILL J

PLACE:  SYDNEY

DATED:  16 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG272 of 1995

                                   )

GENERAL DIVISION                   )

              BETWEEN:      "A"

                             Applicant

                  AND:      JR MARSH, SENIOR MEMBER,

                             FJ CROSS, SERVICES MEMBER AND

                             BT EGAN, MEMBER COMPRISING THE VETERANS' REVIEW BOARD

                             First Respondent

                             REPATRIATION COMMISSION

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    16 AUGUST 1995

                      MINUTES OF ORDER

THE COURT ORDERS THAT:

     (1)  The application be allowed.

     (2)  The matter be remitted to the Veterans' Review Board for reconsideration in accordance with these reasons.

     (3)  The second respondent pay the costs of the applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG272 of 1995

                                   )

GENERAL DIVISION                   )

              BETWEEN:      "A"

                             Applicant

                  AND:      JR MARSH, SENIOR MEMBER,

                             FJ CROSS, SERVICES MEMBER AND

                             BT EGAN, MEMBER COMPRISING THE VETERANS' REVIEW BOARD

                             First Respondent

                             REPATRIATION COMMISSION

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    16 AUGUST 1995

                    REASONS FOR JUDGMENT

          The applicant seeks judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of what is said to be the "conduct" of the first respondent, the Veterans' Review Board ("the Board"), in refusing to reconvene and hear argument from the applicant as to why a certain letter, which the Board proposed to send, should not be sent.  The Board filed a submitting appearance and took no part in the proceedings.

          The applicant is a Serviceman.  He suffered an accident on 8 November 1991.  Subsequently in March 1992 he lodged an application for a pension claiming that he suffered certain physical injuries and also "post-traumatic stress disorder".  His claim was accepted and his injuries assessed

at ten percent of the general rate.  He was dissatisfied with that assessment and applied to the Board for a review of that assessment.

          The matter came initially before the Board in December 1994.  On that occasion the matter was adjourned because of the unavailability of the applicant's representative.  The hearing was then adjourned until 24 January 1995.

          At the adjourned hearing the applicant was not personally present although he made himself available by telephone from his place of employment.  There was evidence before the Board from a Doctor Martha Baz, an occupational health practitioner, as to a loss of range of movement.  She said, however, that the applicant suffered an impairment from a psychiatric condition which led her to advise that he had an eighty percent degree of incapacity.  The assessment of psychiatric illness was reinforced by two qualified psychiatrists, a Doctor Thompson and a Doctor McMurdo.  The latter only saw the applicant once.  However, Doctor Thompson, who reported on 6 July 1994, said that he had seen the applicant since June 1993 as "his regular psychiatrist".  He reported that the applicant had developed severe post-traumatic stress disorder which badly affected the applicant's emotional state, his behaviour and his relationships.  He said that the psychiatric condition had become worse since the
accident with a severity being equivalent to at least forty-five points on the Department of Veterans' Affairs GARP Scale.

          A Services clinical psychologist had seen the applicant in February 1992.  That psychologist, referred to by the Board as a "treating psychologist", (it is unclear how often he "treated" the applicant) reported that the applicant suffered some symptoms common to post-traumatic stress disorder as a result of the injury but that he had responded well to counselling.  He said that his opinion at that time was that the applicant was "symptom-free".  There was an opinion from another psychiatrist, a Doctor Subhas, also given in 1992, which was to the effect that the applicant did suffer post-traumatic stress disorder and was at that stage having difficulty coming to terms with the psychological as well as the physical trauma of his accident.  Doctor Robbie, a psychiatrist, reported in April 1993 that in his opinion the post-traumatic stress disorder was of "mild degree" but thought the matter should be reviewed in six months time when the applicant's condition would decide the future for him.

          One thing that emerges from all these reports is that the applicant wished to continue his career with the Armed Services and in the particular area of activity with which he was concerned.  As the report of Doctor Robbie suggested, it was the applicant who wished to go back to the
rigours of his service and the psychiatrist who wondered whether he would be able to do this.

          At the hearing the Board took the opportunity to take evidence from the applicant by telephone.  The concern of the members was apparently in reconciling the medical evidence before them with their understanding of the particular job with the Services that the applicant was performing at the time of the hearing.  The applicant had a current medical classification "FE", the highest physical classification, and was required, at least on occasions, to carry out certain work which might be thought to be inconsistent with the bodily injuries which he had suffered.  He was also questioned about medication prescribed to him by Doctor Thompson and the job he was then performing.  It is unnecessary to recite this evidence, save to say that his particular Service job at the time of hearing was assisting other persons who were instructing.  It did not involve quite the same physical skills as his previous service had.

          At the conclusion of this evidence and after some discussion, the Board adjourned.  Almost two months later the Board wrote to the applicant advising him that the proceedings had been adjourned to enable the Board to seek a report from the Department of Veterans' Affairs.  Its formal decision was expressed in the following terms:

          "On 24 January 1995 the Veterans' Review Board decided to adjourn the hearing of the application under section 152 of the Veterans' Entitlements Act 1986 pending further investigation in terms of the letter to the Secretary, Department of Veterans' Affairs, which is attached."

          The attached letter referred to what were said to be "marked discrepancies" in the evidence, gave some examples and then requested the Secretary of the Department of Veterans' Affairs to arrange for the provision of the following additional advice considered necessary by the Board for it to make a "balanced decision on impairment and disability pension":

          "a.  Copies of ... ["A's"] medical records since the most recent items provided with the S137 report.

          b.   An examination and report by a Regular [Services] Medical Officer, who will be experienced in the military requirements for physical and metal health for young [Service people]in the various [Services] employment categories.  This report should address the Department's criteria for determination of medical impairment and lifestyle effects and recommend ratings for the applicat's [sic] accepted disabilities.

          c.   If this [Services] report indicates an ongoing psychiatric condition of consequence, it may be appropriate to have a psychiatrist prepare an assessment of impairment.

          d.   A combined impairment assessment in light of the [Services] doctor's report, and the additional specialist advice on the applicant's psychiatric
condition if this is deemed necessary."

          By letter dated 16 March 1995 the Veterans' Advocacy Service, which acted for the applicant, wrote to the Registrar of the Board saying, inter alia, that the applicant had raised legitimate concerns with that Service, that an approach to the Department of Defence would severely prejudice the applicant's current employment.  The letter asked the Board to reconsider the course it had determined to take and sought opportunity to make further submissions at a resumed hearing.

          To this request the Board replied through the Registrar in the following terms:

          "1)  The Board's hearing has been completed and there is no provision for the Board to reconvene, hear further submissions, and reconsider its decision at this stage.

          2)   The Board's powers under Section 152 are broad and allow for a request to be made for any medical examination that the Board thinks necessary with respect to a review.

          3)   It is difficult to see how the information sought might compromise the veterans' employment, given that the [particular Service] is aware of the applicant's psychological condition.

          4)   Effect on employment is one of the criteria in Table 4 of the guide for assessment of psychiatric impairment."

          It should be said at the outset that in so far as the Board reached its conclusion on the basis that it had no power to reconvene or reconsider its decision, the Board was clearly in error.  This error was acknowledged by counsel for the Repatriation Commission ("the Commission"), the second respondent.  On this being pointed out, counsel for the applicant sought leave to amend the application for review.  The amendment was not opposed although counsel for the Commission submitted that as a matter of discretion the matter should not be sent back to the Board because, having regard to the other paragraphs of the letter of 29 March 1995, the Board would in any event come to the same conclusion.

          The question which the applicant desired to litigate was whether in deciding to exercise its power, under s152 of the Veterans' Entitlements Act 1986 ("the Act"), the Board was required, in the circumstances, to afford to the applicant the right to be heard.  Those circumstances were said to involve the situation where the applicant might be prejudiced, not by the information itself being obtained but collaterally, as in this case, by virtue of the impact the inquiry might have on his employment.

          It could not be in doubt that the Board, reviewing a decision of the Commission, was generally bound to afford an applicant procedural fairness.  Thus Courtney v Peters (1990) 98 ALR 645 established that the Board, if it desired to rely
upon certain evidence adverse to an applicant, must inform the applicant of that intention and give the applicant a right to be heard in regard to that material.  Whether or not that requirement to afford natural justice stems from s138 of the Act is, as Lee J pointed out, arguable.  Sub-section 1(b) of that section requires the Board to "act according to substantial justice".

          As the cases make clear, the question whether there is a requirement to apply the principles of natural justice and if so the content of that requirement will involve a question of construction of the relevant legislation, it being clear that the requirements of natural justice vary from case to case: Kioa v West (1985) 159 CLR 550 at 584-5 per Mason J.

          But while it is true that a statutory tribunal in coming to a conclusion adverse to the interests of an applicant seeking review will ordinarily be required to afford procedural fairness to that applicant, it does not follow that it will be required to give an applicant an opportunity to be heard on every occasion in which it exercises a power conferred upon it.  In the present case the Board was exercising a power conferred upon it by s152 of the Act.  That section provides:

          "(1)The Board may, at any time, request the Secretary:

              (a)  to forward to the Board further documents in the custody of the Secretary relating to a review;

              (b)  to obtain, and forward to the Board, further documents relating to a review; or

              (c)  to arrange for the making of any investigation, or any medical examination, that the Board thinks necessary with respect to a review, and to forward to the Board a report of that investigation or examination.

          (2)  Where a request is made under subsection (1), the Board shall adjourn any hearing of the review to which the request relates and may, in the case of a review of a decision with respect to a pension assessment, vary that assessment pending the completion of that review, having regard to the records and evidence on which the Commission reached that decision."

          It could ordinarily not be said that the Board was required to hear argument from the parties before deciding, for example, to request the Secretary to forward to the Board documents or indeed to request the Secretary to arrange for the making of some medical examination.  The power conferred by s152 is a power to obtain information or investigate facts.  The power to investigate is ordinarily not a power, the exercise of which can be said to be adverse to any party.  Once, of course, information is obtained, use of it in a way adverse to a party will bring the rules of natural justice into play but those rules as such are not enlivened merely by exercising the power of investigation.

          Some assistance can be derived from cases on whether investigatory powers can be exercised by administrative authorities without first enabling a person who may be affected by the investigation to be heard.  That is a matter dealt with by Lindgren J in Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493.  The question there was whether the Australian Securities Commission was required to afford the applicant procedural fairness by way of a hearing before issuing a notice pursuant to s33 of the Australian Securities Commission Act 1989 (Cth).  After a careful review of the authorities, albeit in proceedings for interlocutory relief, his Honour concluded that there was not a serious issue to be tried on the question whether a requirement to afford natural justice existed before the investigatory power was enlivened.

          While it is true that Minosea can be distinguished, in that the Australian Securities Commission is inherently an investigatory body while the Board is required to adjudicate and come to a decision affecting the pension entitlements of applicants, I do not think that the Board, when exercising the power under s152 of the Act, is doing more than obtaining information preparatory to the making of its decision.  The language of s152 is broad and appears unconfined.  There is no need to import as a prerequisite to the use of that power an obligation to afford a person affected by its exercise the right to be heard.

          In coming to this conclusion it is pertinent to note that there is no requirement in the Act that information provided either to the Commission or the Board be kept confidential and in particular not be disclosed to the employer of an applicant.  There is provision for confidentiality in s153(2) of the Act which operates in certain circumstances to permit the Board to not make available certain information to an applicant.  Interestingly that prohibition does not apply to prevent the Board making available information to the Commission or any other party.  If anything, s153(1) supports the view of the Commission that no requirement to afford natural justice is to be implied in s152.  Section 151, when read together with s153(3) ensures that information furnished by the Commission to the Board for the purposes of a review will be made available to parties to the application before the Board.  However, s153(3) operates only in respect of documents furnished pursuant to s137(4).  The Act is silent as to documents obtained under s152 of the Act.  In my view the applicant's main submission must be rejected.

          It is, however, clear, as I have already indicated, that the Board erred in law in refusing to entertain submissions from the applicant on the ground that it had no power to reconvene.  Counsel for the Commission urged that I not send the matter back to the Board because, it was submitted, to do so would be futile.  The submission was that
having regard to the other grounds contained in the Board's letter of 29 March 1995, it would be inevitable that the Board would continue to maintain its refusal to hear the applicant on the question of whether the request for a medical examination should be made.

          It may well be that the Board might maintain its decision.  Whether it would do so or not depends to some extent on how much it was influenced in its conclusion by the view that it had no power in any event to reconvene.  That, after all, was the very first ground which it gave.  All I need consider is whether it is possible that, absent the error of law, the Board may have reached another conclusion.  If I am so satisfied, and I am, then it seems to me I should not exercise my discretion against the applicant.

          The real gravamen of the applicant's complaint is that a requirement that he be examined by a Services doctor would ensure that that doctor's report would become a permanent part of his Services file.  Whether or not that would have an impact upon his Service I do not know.  Before me there was no evidence that it would, but it is sufficient that I can infer that there is a real possibility that it could.  Although, as the Board itself points out in its letter of 29 March 1995, the particular Service to which the applicant is attached is aware of the applicant's psychological condition, that is, the Board might find, not
necessarily correct.  All the file before the Board indicated was that the applicant had been examined by a Services psychologist in 1992 and appeared to have responded well.  Nothing in that report, it might be thought, would cast the same sort of doubt on his employment that a more pessimistic assessment now given by a Services doctor who would be bound to report the result would.

          No doubt if there were a real risk to the applicant's employment, the Board, when it came to reconsider the matter, might be prepared to adopt some other course, such as for example requiring the applicant to be examined by some independent doctor at his own cost, that doctor being selected by the Commission.  One would assume that there might well be competent doctors whose evidence the Commission would accept who would be aware of the military requirements for physical and mental health for Service people as well as the criteria for determination of medical impairment, not being doctors employed by the relevant Service.

          One final question remains, namely whether the present application is competent having regard to the provisions of s6(1) of the ADJR Act.  That section empowers the Court upon the grounds set out in it to review "conduct".

          It is clear that the Board has made no "decision" which this Court is entitled to review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336-7.  However, in that case Mason CJ said:

          "If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character."

          Later (at 341-3) his Honour commented further upon the distinction between "decision" and "conduct".  His Honour said:

          "However, once it is accepted that `decision' connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of `conduct' in the statutory scheme of things becomes reasonably clear.  In its setting in s6 the word `conduct' points to action taken, rather than a decision made, for the purpose of making a reviewable decision.  In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination.  Thus, conduct is essentially procedural and not substantive in character.  Accordingly, s3(5) refers to two examples of conduct which are clearly of that class, namely, `the taking of evidence or the holding of an inquiry or investigation'.  It would be strange indeed if `conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

          Accordingly, there is a clear distinction between a `decision' and `conduct' engaged in for the purpose of making a decision.  A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.  It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge.  In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous.  To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to `conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.

          ...

          Some reference must be made to s6(1)(f) which speaks of an error of law being `committed in the course of the conduct'. On its face, this provision permits of review of any error of law made, for example, in an inquiry held for the purpose of making a `decision'.  Such a review of conduct might entail a challenge to a substantive, as well as procedural, error of law.  However, this ground of review of `conduct' does little to expand the `error of law' ground contained in s5(1)(f) relating to errors of law `involved' in the decision.  Ordinarily, if not always, an error of law made in the course of conduct engaged in for the purpose of making a decision would be an error of law involved in the decision itself: see, eg Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412.  This ground of review does not detract, therefore, from the argument that the AD(JR) Act maintains a dichotomy between reviewable decisions and reviewable conduct.

          It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as `conduct' unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant
conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable."

          The determination of the Board to refuse to reconvene to enable the applicant to be heard on whether a Service doctor should be engaged to examine him was clearly a matter of conduct.  The challenge to that determination is an attack upon the proceedings engaged in by the Board preparatory to the making of its decision and in accordance with what was said by Mason CJ is properly a challenge to "conduct" and reviewable.  In my view the Court did not lack jurisdiction.

          Finally, I should add that, without opposition by the Commission, upon the application of the applicant I made an order that the name of the applicant not be published in connection with the present proceedings.  I did so having regard to the prejudice which might accrue to the applicant in his Service career by the publication of his name.

          It seems to me on the material before me in the appeal papers that there is a very real risk that the applicant's career could be prejudiced if it became known that he has been diagnosed by a number of psychiatrists as suffering from post-traumatic stress disorder.

          I would order that the application be allowed and that the matter be remitted to the Board for reconsideration in accordance with these reasons.  The second respondent should pay the applicant's costs.

I certify that this and the

preceding sixteen (16) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:  16 August 1995

Counsel and Solicitors       CA Vindin instructed by

for Applicant:               Veterans' Advocacy Service

Counsel and Solicitors       K Henderson instructed by the

for Respondents:             Australian Government Solicitor

Date of Hearing:             20 July 1995

Date Judgment Delivered:          16 August 1995