FEDERAL COURT OF AUSTRALIA

Military Rehabilitation & Compensation Commission v SRGGGG

[2005] FCA 342

COMPENSATION – Commonwealth employees – Administrative Appeals Tribunal proceedings – claim for psychiatric illness arising out of employment with Australian defence Force Academy – causation – whether Tribunal substituted its own opinion for expert evidence – whether Tribunal addressed contentions seriously advanced and worthy of serious consideration – whether decision supported by probative evidence.

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – adequacy of reasons for decision – whether relevant considerations taken into account.

GUARDIANSHIP – where claimant’s father appointed as guardian to perform function of advocacy – whether guardian exceeded terms of appointment by instructing solicitors and maintaining proceedings on claimant’s behalf.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Guardianship Act 1987 (NSW)

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 cited

Australian Telecommunications Corporation v Davis (1991) 30 FCR 467 cited

Brackenrig v Comcare Australia (1995) 56 FCR 335 cited

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited

Comcare v Forbutt [2000] FCA 837 cited

Commissioner of Taxation v Osborne (1990) 26 FCR 63 cited

Commonwealth v Angel (1992) 34 FCR 313 cited

Commonwealth v Pharmacy Guild (1989) 91 ALR 65 cited

Commonwealth v Smith (1989) 18 ALD 224 cited

Copperart Pty Ltd v Commissioner of Taxation (Cth) (1994) 50 FCR 345 cited

De Domenico v Marshall (1999) 94 FCR 97 cited

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 cited

Dornan v Riordan (1990) 24 FCR 564 cited

Hawkins v Comcare (2001) 115 FCR 127 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 followed

Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126 cited

O’Brien v Repatriation Commission (1984) 1 FCR 472 cited

Pettitt v Dumbley [1971] 1 NSWLR 376 cited

Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 cited

Repatriation Commission v Hughes (1990) 13 AAR 34 cited

Repatriation Commission v O’Brien (1985) 155 CLR 422 cited

Rodriguez v Telstra Corporation Ltd [2002] FCA 30, (2002) 66 ALD 579 distinguished

Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 cited

Telstra Corporation v Arden (1994) 20 AAR 285 cited

Matthew Smith, ‘The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons’ (1992) 3 Public Law Review 258

MILITARY REHABILITATION AND COMPENSATION COMMISSION V SRGGGG

N 513 OF 2004

MADGWICK J

4 APRIL 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 513 OF 2004

BETWEEN:	MILITARY REHABILITATION AND COMPENSATION COMMISSION APPLICANT
AND:	SRGGGG RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	4 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

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	N 513 OF 2004

BETWEEN:

MILITARY REHABILITATION AND COMPENSATION COMMISSION

APPLICANT

AND:

SRGGGG

RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Madgwick J:

1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 17 March 2004, which concerned a claim made by the respondent’s father on his behalf under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘SRC Act’). By its decision, the Tribunal found that the respondent was entitled to compensation for ‘psychiatric illness, more particularly described as severe chronic depression, body dysmorphophobia [or dysmorphia] and obsessive personality disorder’.

2 Although the respondent’s initial claim was brought in 1991 against Comcare under the SRC Act, s 144(3) of the SRC Act, inserted by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth), provides the applicant, the Military Rehabilitation and Compensation Commission (‘the Commission’), with the power to determine and administer claims made under the SRC Act that are ‘defence-related’, were brought before the Military Rehabilitation and Compensation Act 2004 (Cth) commenced and had not been concluded as at the commencement date, namely 1 July 2004. Accordingly, the determinations of previous decision-making bodies will be referred to as decisions of the Commission, the replacement party to these proceedings.

BACKGROUND AND PROCEDURAL HISTORY

3 The respondent was born on 9 October 1972. He served in the Royal Australian Navy from 22 January 1991 to 7 February 1992. He was appointed at the rank of midshipman to commence military training and academic studies at the Australian Defence Force Academy (‘ADFA’) in 1991. The case presented on behalf of the respondent was that he had had very unpleasant and disturbing experiences there, of a kind sometimes referred to as ‘bastardisation’, in consequence had severe psychiatric illness, but was prone to deny such stressors and overstate his well-being to medical advisors. The respondent was discharged at his own request on 7 February 1992, after he had received and responded to a ‘Notice to Show Cause’ why his appointment should not be terminated.

4 On 8 June 1999, some seven years after his discharge, the respondent claimed compensation under the SRC Act for ‘depression and psychotic personality disorder, muscle dysmorphia, obsessional behaviour’, which he attributed to his year at ADFA. The Commission rejected this claim on 1 September 1999.

5 Subsequently, upon reconsideration, on 29 January 2001 the Commission varied its original determination and accepted liability for the respondent’s depression for a period of one year after the respondent’s discharge, up to 6 February 1993. However, the Commission affirmed its denial of liability for the respondent’s claimed other psychiatric problems: psychotic, muscle dysmorphia and obsessional behavioural conditions. On 15 February 2001, the respondent applied to the Tribunal for review of the Commission’s decision, however he withdrew this application by a letter dated 12 March 2001.

6 On 21 November 2001, the respondent requested the Commission to reconsider its 29 January 2001 decision, on the basis of new evidence that body dysmorphic disorder was the most likely cause of all the respondent’s symptoms. The Commission reviewed the further evidence submitted to it, but decided on 9 January 2002 not to vary or revoke its determination of 29 January 2001. The respondent then applied to the Tribunal for review of the Commission’s decision of 9 January 2002.

7 The Tribunal heard the matter on 25 and 26 September 2003 and 17 February 2004. Oral evidence was given by the respondent’s parents and three psychiatrists: Dr Canaris, Prof. Tennant and Dr Nielssen. The respondent did not give oral evidence before the Tribunal, nor did his treating psychiatrist, Dr Lyndon. A report by Dr Lyndon regarding the respondent’s unfitness to give evidence due to a ‘serious Chronic Psychiatric disorder’ was received into evidence. There were many other medical reports before the Tribunal.

8 On 17 March 2004, the Tribunal set aside the Commission’s decision and remitted the respondent’s claim to the Commission, with the direction that the respondent was entitled to compensation for ‘psychiatric illness, more particularly described as severe chronic depression, body dysmorphophobia and obsessive personality disorder’, and ordered the Commission to pay the respondent’s costs. It is this decision that the Commission now appeals.

THE TRIBUNAL’s decision

9 The practical issue before the Tribunal was the Commission’s liability for the respondent’s claimed psychiatric illness after 6 February 1993, the date until which liability (for depression) had been accepted, and continuing. Given the Commission’s complaints about the Tribunal’s decision, set out below, it is necessary to outline the decision in some detail.

(i) The Tribunal on respondent’s father’s capacity

10 The Tribunal dealt with a preliminary point concerning the capacity of the respondent’s father to give instructions on the respondent’s behalf. The Guardianship Tribunal of New South Wales had made an order on 16 April 2003 that the respondent’s father be appointed his guardian under the Guardianship Act 1987 (NSW) for limited functions, including a power to act as the respondent’s ‘advocate’. The Tribunal concluded (at [8] – [9]):

‘When one reads the reasons for the decision of the Guardianship Tribunal, it is clear that that Tribunal found a Guardianship Order should be made so as to permit the [respondent’s] father to maintain the claim by the [respondent] against the [Commission].

We are entirely satisfied that the [respondent’s] father has the proper legal authority under the law in force in the State of New South Wales to represent the [respondent] and maintain the current proceedings. If the [Commission] did have doubts about this, those doubts should have been raised much earlier than they were, preferably by way of a directions hearing prior to the first day of the substantive hearing.’

(ii) The Tribunal on diagnosis

11 The Tribunal then proceeded ‘to determine the preferable diagnoses of the illnesses suffered by the [respondent]’. The Tribunal referred to a report of Dr Lyndon (the respondent’s current treating psychiatrist) dated 2 January 2003, in which that doctor diagnosed a moderately severe, major depression and considered there were features which indicated Asperger’s syndrome. The Tribunal referred to a report of Prof. Parker, dated 16 July 2003, in which he stated: ‘I have no doubt that [the respondent] has extreme social anxiety, … is quite perfectionistic, … [and] may additionally have Asperger’s … but it would not necessarily be mandatory to bring [the Asperger’s syndrome] diagnosis on board’.

12 The Tribunal had regard to a bundle of medical reports dated from January 1993 to July 2003, and said:

‘Those reports give a variety of diagnoses including obsessive compulsive personality, social phobia and preoccupation with body size and shape and avoiding personality disorder, dysmorphobic disorder with body building obsession and associated steroid abuse, schizophrenia, major depression, double depression personality disorder, social phobia, body dysmorphia, obsessive compulsive disorder, a major depressive episode in the year after discharge from ADFA, social phobic disorder, avoidant and perfectionist personality traits and secondary dysmorphic disorder and major depression.

…

Of [those] reports … the reports of Dr Dent [a psychiatrist] can be disregarded. In a letter dated 17 August 1999, he wrote that he had seen the [respondent] at the request of his mother whilst he was treating the mother at the University of Sydney’s Pain Management and Research Centre and that he had not been aware of the [respondent] having been a Cadet Midshipman.’

13 I interpolate that, on the beneficial view of the Tribunal’s reasons which the Court should take, the Tribunal should be understood as having indicated that, as Dr Dent had not had the advantage of having a history of any ill-treatment at ADFA, his opinion might be disregarded.

14 The Tribunal then set out a passage from the ‘comprehensive report’ of Dr Nielssen, dated 18 December 2000 (at [16]) obtained by the respondent:

‘…

PSYCHIATRIC DIAGNOSIS

It was not possible to make a definitive psychiatric diagnosis from the history, examination and documents available.

The most likely diagnosis is major depressive illness, now partially resolved, on a background of avoidant personality traits. This diagnosis is based on the reports of symptoms of major depression, and a response to treatment with antidepressant medication, as well as the history of impaired social performance and the cumulative observations of several psychiatrists, especially Dr McKay.’

15 Dr Nielssen was called to give oral evidence before the Tribunal by the Commission. The Tribunal accepted Dr Nielssen’s evidence that he would discount the diagnosis of Asperger’s syndrome, and his evidence that ‘although his report had been criticised as containing an incomplete history and that there were deliberate falsehoods provided by the [respondent] to him, he did not believe that this affected his opinion as to diagnosis or causation.’

16 It noted Dr Nielssen’s opinion, given in cross-examination, that, ‘with the history elicited by Prof. Tennant available to him, he would agree that the [respondent] met the criteria for the diagnosis of body dysmorphia to be made and that at the time he saw him, the [respondent] was partly depressed and suffering from body dysmorphia.’

17 The Tribunal then noted Dr Canaris’ ‘diagnosis of severe chronic depression with obsessive-compulsive disorder and body dysmorphophobia’, saying (at [20]):

‘Of particular relevance is the comment in Dr Canaris’ report of 21 August 2002 that:

‘the documentation from other psychiatrists who dealt with your client is at once confusing and consistent.’ ’

18 Turning to the evidence of Prof. Tennant, the Tribunal said (at [21] – [22]):

‘Professor Tennant in a report dated 26 July 2002 to the [Commission] diagnosed the [respondent] as suffering from body dysmorphophobia, recurrent major depression and anxious obsessional schizoid personality disorder or traits. These diagnoses were made after examination of documents and without having interviewed the [respondent].

In a later report dated 3 June 2003, Professor Tennant, after having interviewed the [respondent], stated that his diagnosis remained essentially unchanged…’ (emphasis added).

19 The Tribunal considered and rejected the diagnosis of Asperger’s disorder, saying (at [24]):

‘Generally speaking, the Tribunal gives great credence to the opinions of treating medical practitioners. In this matter however, we are not convinced that the [respondent] does suffer from Asperger’s disorder.’

20 The Tribunal then said (at [26]):

‘Whereas there have been numerous reports and diagnoses by psychiatrists regarding the [respondent] since his discharge from ADFA, we note that depression is a common theme in these reports. We prefer the diagnoses of those psychiatrists who have examined the [respondent] most recently. As pointed out by Dr Canaris, he, and most psychiatrists, would have the experience of treating many patients in whom the correct diagnosis is not made until many years after their initial presentation. In our view, this is particularly so in the case of this [respondent] whose condition has now become more florid and established.

We therefore prefer the opinions of Drs Canaris and Nielssen and Professor Tennant who consider that the [respondent] is suffering from severe chronic depression and body dysmorphophobia. We also accept as the correct diagnosis Professor Tennant’s diagnosis of obsessive personality disorder.’ (emphasis added)

(iii) The Tribunal on causation

21 The Tribunal turned to consider whether the psychiatric illnesses currently suffered by the respondent were the result of the treatment afforded to him at ADFA.

History

22 The Tribunal quoted a reference provided by the headmaster of the school at the time the respondent completed his Higher School Certificate, which recommended the respondent ‘with confidence’. The reference further stated that the respondent:

‘… was a quiet, pleasant young man … reliable, honest, diligent and committed… [who] developed excellent study habits in his final year revealing independent, sound organization and real determination. He tackled [a] demanding course…[and on leaving school] achieved his ambition of studying Aeronautical Engineering at the University of N.S.W. …’.

23 As to what had occurred at ADFA, the Tribunal acknowledged that the respondent had not given evidence in the proceedings, but said that it had the father’s contemporaneous notes of telephone conversations with the respondent and agreed with Prof. Tennant’s opinion as to whether the respondent was capable of giving evidence before the Tribunal: ‘… [the respondent’s] evidence would add nothing to what has been reported by his parents, and by psychiatrists’ reports.’ The Tribunal referred to particular evidence given by the respondent’s mother as to complaints of sexual abuse at ADFA as having ‘the inherent unreliability of hearsay’.

24 The Tribunal then set out the evidence suggesting that the respondent was not psychologically robust enough for entry into ADFA, including the following:

· a Navy psychologist’s report dated 21 August 1990 that stated the respondent ‘[m]ay experience some difficulty in adjusting to the high level demands at ADFA – both academic and personal’;

· another Navy psychologist’s report dated 25 September 1990: ‘I doubt that he has the “presence” to succeed at the Academy’, and which formally did not recommend the respondent to the Selection Board for reason of his personality;

· The ADFA Selection Board’s notes which revealed that the respondent was not recommended for selection to ADFA;

· A Minute dated 28 January 1992, where the Assistant Director Naval Office Postings states that ‘there is some evidence that [the respondent’s] treatment from senior cadets was at times excessive … [the respondent’s] failure was in many ways to be expected and the offer of [an ADFA place to him in Information Technology] simply to fill a target of 16 … was unfair on the individual’; and

· A handwritten note on that Minute referring to ‘the mismanagement of [the respondent’s] selection and entry to ADFA’.

25 The Tribunal set out an account by the respondent in the context of ‘showing cause’ why he should not be discharged from ADFA dated 13 December 1991, part of which stated:

‘…Missing meals to meet Military and Cleaning requirements could well have played a part in my not being able to reach the level of strength required. …’

26 In context, the Tribunal may be taken to have understood that excessive requirements were being alluded to.

27 Part of the respondent’s subsequent letter of resignation dated 30 January 1992, expressed his felt need to return to an environment where ‘study is encouraged and not actively hindered’.

28 Dealing with the purposes of the psychological testing of potential ADFA recruits, the Tribunal said: ‘[i]t seems clear, given the remarks in the psychologist’s reports and from our own knowledge that psychological assessment includes an assessment of whether a person can cope mentally with the inherent stresses of an institute such as ADFA.’

29 The respondent’s parents’ evidence of his experiences at ADFA was then recorded. This evidence included:

· seeing the contents of a cadet’s room at ADFA thrown out of the first floor window of an accommodation block;

· a female senior cadet entering the respondent’s room and berating him, in front of his parents when they were visiting ADFA, apparently for not having enough posters on his wall;

· pointless extra tasks imposed on juniors, such as the respondent, by senior cadets, which had resulted in the respondent missing meals and being unable to study;

· the respondent sleeping on the floor in order to keep his bed in inspection order;

· the respondent’s statement that he was being bullied and subjected to some form of unwarranted genital manipulation; and

· the respondent being made to run from Mount Ainsley back to ADFA during the night with the choice of wearing either ‘shoes or shorts’.

30 The Tribunal then referred to other material which, to an extent, corroborated the parents’ evidence, including a letter by Vice-Admiral Beaumont, dated 2 January 1992, reports by newspapers in 1992, and a 1998 ‘Report of [an official] review into policies and practices to deal with sexual harassment and sexual offences at the Australian Defence Force Academy’ (‘the ADFA report’). The Tribunal quoted the following paragraphs from that report:

‘75 per cent of the cadets found that they were expected to meet standards which were, realistically, unattainable and over one-quarter stated that this happened often or all the time …

…

Once cadets become known as squeezers, they will become subject to varying types of harassment designed to motivate them into doing better. If, in the view of their fellow cadets, they cannot make the grade, they may become the subject of harassment designed to encourage them to leave the Defence Academy…

…

Given the cadet emphasis on physical prowess, great pressure is brought to bear on cadets to make and maintain the grade physically. Lack of physical prowess is the possible reason for labelling a cadet a squeezer.’

31 The Tribunal ‘found these paragraphs significant in evaluating the effect of the [respondent’s] failure to complete his physical training tests.’ It stated that the following paragraph was ‘perhaps the most important finding for the purposes of the [respondent’s] case’:

‘Some former cadets carry the emotional scars from experiences of harassment and assault that occurred at the Defence Academy. A number have put such experiences behind them; others are still traumatised to the extent that they cannot talk about their time at the Academy. …’

32 The Tribunal noted that whilst the respondent was at ADFA, there was an ‘emphasis on physical training’, citing an Officer Cadet Performance Summary in December 1991 which said the respondent ‘has not passed a PT test since arriving at the Academy’. The Tribunal recalled that the respondent in his ‘show cause’ letter had sought to explain ‘not being able to reach the level of strength required’.

Medical evidence on causation

33 The Tribunal then turned to the medical evidence dealing with the question of causation, commencing with the reports of Dr Canaris, who was, as the Tribunal put it, ‘under no doubts that the [respondent’s] experiences at ADFA are the cause of his current conditions’. In his Report of 21 August 2002, Dr Canaris stated:

‘However, as I gave the matter further thought, it occurred to me that the matter was considerably more complicated. Firstly, the psychological reports on [the respondent] raise the question of whether he should ever have been accepted into the military whether at ADFA or in any other setting. He was clearly a fragile individual who might well have decompensated in the setting of the ordinary demands of military life. This aims to train people to operate under extreme circumstances such as fighting wars. To have accepted him in the first place for whatever reason was to do him a gravedisservice placing him at substantial risk of triggering or accelerating profoundly any propensity to psychiatric disorder.

…

…if we look at symptoms reported today, we see his body dysmorphic disorder and steroid abuse presumably based on his reported belief that he was a weakling. These symptoms resonate strongly with a military culture with its (appropriate) emphasis on physical fitness coupled with his failure to pass physical fitness tests. His failure to pass these tests could not in itself be blamed on the Academy. However, if there is evidence that he was taunted as a weakling, then the seeds of body dysmorphic disorder are effectively sown.

Given his manifest vulnerability, the seeds of disorder fell on fertile soil. However, it is important in assessing causal connections in psychiatry to look not only at mental processes but also at their content.

Similar considerations apply to his obsessional behaviours. From the beginning, [the respondent] complains of pointless meetings, excessive cleaning of equipment and the like. Again, the analogy of the seeds of obsessive-compulsive behaviour being sown onto fertile soil holds. This would be especially the case if [he] faced penalties or losses of privileges arbitrarily imposed by senior cadets for failing to come up to what were for him impossible standards.

In other words, evidence for a persisting albeit attenuated causal link between ADFA experiences and current symptoms exists if the patient’s account of his behaviour, which is supported by Dr McKay’s documentation is accepted.’ (Emphasis added)

34 The Tribunal set out the opinion of Dr Lee (whose opinion was sought by the Commission):

‘The rigorous disciplinary demands and ethos of military training (here interpreted as bastardisation) may be a “traumatic” factor which personalities such as [the respondent’s] may not be able to accommodate and can serve to be a triggering or aggravating mechanism for decompensation to illness states.’ (Emphasis added)

35 Dr Lee’s answer to the question from the Commission as to when service related effects would cease was also set out, as follows:

‘ … It is difficult to address this issue, as conceivably it could last only a short time or continue indefinitely, depending on the person’s capacities to “recover”, through medication and psychotherapy to correct existing dysfunctional perceptions, cognition and unconscious conflicts.’ (Emphasis added)

36 Turning to Dr Nielssen’s opinion, the Tribunal recorded his view in December 2000 that the contribution military employment made to the respondent’s conditions was best described as ‘significant’ and ‘influential’; at that time, when he saw the respondent, the influence of the events at ADFA was of relatively little significance, although those events would have been highly significant in the first year or so after the respondent’s discharge.

37 The Tribunal then said (at [61]):

‘Cross-examined at the hearing of this matter and having been given additional information, Dr Nielssen revised his opinions and conceded that the [respondent’s] current depression was recurrent and could have as a contributing factor the initial stressors at ADFA.’

More important however is the following passage of questioning of Dr Nielssen by the Tribunal:

‘Q: Now, you would agree with me though, that people who go there are psychologically assessed before they go?

A: Yes.

Q: And obviously part of the reason for a psychological assessment is to see whether you are capable of making it or not?

A: Yes.

Q: In this case we have a person who was enlisted against psychological advice?

A: Yes.

Q: So that if one can take the deliberate stresses which are put upon people at ADFA without any resort to particular incidents of what is termed ‘bastardisation’, the particular stresses, etcetera, could it not be that a person such as the current applicant who has later developed psychiatric illness that what he has been through at ADFA realising that he was vulnerable and should not have been there, it can be a contributing factor to his psychiatric illness?

A: Yes, I agree with that. …’ (Emphasis added)

38 Finally, the Tribunal set out the opinion of Prof. Tennant who ‘in his report of 26 July 2002 to the [Commission], whilst diagnosing the [respondent] as suffering from recurrent major depression and body dysmorphia implicated the use of steroids as the major contributor to his depressive illness and rejected any contribution from stress whilst at ADFA.’

39 The Tribunal then said:

‘Cross-examined, Professor Tennant conceded that the [respondent’s] military service was a stressor although adding that his opinion was that the greater stressor was being asked to leave ADFA. Further cross-examined, he conceded that if the [respondent] had withheld from him the extent of ‘bastardisation’ experienced by him at ADFA, then the level of stress upon the [respondent] would have been greater.’

The Tribunal’s reasoning on causation

40 The Tribunal then found (at [62]) first, that given the parents’ evidence ‘no doubt as a result of his psychiatric illness, the [respondent] has not disclosed the full extent of what occurred to him at ADFA to any of the examining psychiatrists’; and secondly, that ‘the incidents described by the [respondent] to his parents, particularly to his father of extra duties, petty harassment and unrealistic demands did occur. [The 1998 Report] and the letter of Vice-Admiral Beaumont tend to corroborate the parents’ evidence in this regard’.

41 The Tribunal continued (at [63]):

‘Professor Tennant also stated in cross-examination that significant stressors occurred whilst at ADFA and they contributed to the depression experienced after discharge. He did consider most stressors were short lived but added the caveat “unless there is a degree of underlying pre-existing vulnerability.” Professor Tennant had previously stated that the [respondent] had a pre-existing genetic vulnerability (to depression).’ (Emphasis added)

42 The Tribunal held that it was not necessary that it be satisfied that the respondent was subjected to ‘bastardisation’ whilst at ADFA; it would be ‘sufficient that the employment positively contributed to the development of the [respondent’s] depression, that is to say … provided external stimulus to aggravate or accelerate his disease.’

43 The Tribunal accepted that a military training institute such as ADFA ‘must of necessity expose its students to situations where they are required to perform their duties while under extreme pressures, … [i]f students are found to be unable to cope under pressure, it is better that they do not assume leadership positions in the ADF.’ It continued (at [66] – [67]):

‘That having been said, this necessary culling process does not mean that authorities at ADFA are entitled to turn a Nelsonian “blind eye” to behaviour designed to humiliate and demean or what amounts to nothing more than pointless excuses to punish.’

44 The Tribunal then expressed its conclusions as to the causation issue:

‘We find that Dr Nielssen correctly summarised the factors in this matter in his answers to the Tribunal questions quoted above [see [36] – [37] above]. It has been acknowledged by the Navy that the [respondent] was judged psychologically unsuited for entry into ADFA but he was enlisted in order to make up numbers. The inevitable result of what the [respondent] experienced at ADFA has been psychiatric illness including depression which still continues.’ (Emphasis added)

45 Referring to an article in evidence by a clinical psychologist, Dr Jefferys, the Tribunal acknowledged Prof. Tennant’s criticism that the article was extracted from ‘a non-peer review journal’, but nevertheless found that it ‘clearly supports the opinion of Dr Canaris and indeed that of Dr Nielssen that the [respondent’s] condition of body dysmorphia is a direct result of the [respondent’s] experiences at ADFA.’ The Tribunal also accepted Dr Canaris’ evidence that ‘the [respondent’s] obsessive personality disorder is as a result of his time at ADFA.’

46 Accordingly, the Tribunal set aside the decision under review and remitted the matter to the Commission with the direction that the respondent ‘is entitled to compensation pursuant to the [SRC Act] for psychiatric illness, more particularly described as severe chronic depression, body dysmorphophobia and obsessive personality disorder.’

The appeal

47 By its Notice of Appeal filed 14 April 2004, the Commission seeks orders that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal, constituted, for determination in accordance with the law.

48 The Commission suggests six bases of error of law by the Tribunal, as follows:

‘(a) The Tribunal substituted itself as an expert witness, and informed itself as to the cause of the respondent’s psychiatric illnesses.

Particulars

The Tribunal found that the respondent did not disclose the full extent of his experiences at the Australian Defence Force Academy to any of the examining psychiatrists … and informed itself that: “The inevitable result of what [the respondent] experienced at ADFA has been psychiatric illness including depression which still continues.”…

(b) The Tribunal failed to mention and deal with contentions seriously advanced and worthy of serious consideration.

Particulars

(i) The contention that the Tribunal could not make findings of fact on the balance statements (sic) about his experiences at ADFA, and the respondent’s parents gave evidence that the respondent tells lies;

(ii) The contention that the respondent’s depression is not a recurrence of a depressive episode which he experiences in 1992 because medical reports indicate that the respondent did not suffer from depression between 1993 and May 1999;

(iii) The contention that the opinions of Doctor Nielssen and Professor Tennant should be preferred because each of them interviewed and assessed the respondent.

(c) The Tribunal failed to comply with its obligation under s. 43(2B) Administrative Appeals Tribunal Act 1975 to give reasons for its decision.

Particulars

(i) The Tribunal gave no reasons for rejecting the opinions of Doctor Nielssen and Professor Tenant regarding the causation of the respondent’s psychiatric illnesses;

(ii) The Tribunal gave no reasons for rejecting the opinions of Doctor Dent, merely stating that Doctor Dent’s reports “can be disregarded”…;

(iii) The Tribunal gave no reasons for finding that the respondent’s current depression is a recurrence of depression experienced in 1992.

(d) The Tribunal failed to take into account relevant considerations.

Particulars

(i) The advantage which Doctor Nielssen and Professor Tenant enjoyed over Dr Canaris and the Tribunal itself by virtue of having interviewed, observed and assessed the respondent;

(ii) The absence of evidence that the respondent suffered from depression during the period 1993 to May 1999.

(e) The Tribunal took into account irrelevant considerations.

Particulars

(i) The Tribunal took into account its own purported expert assessment of the causation of the respondent’s psychiatric illnesses;

(f) The Tribunal erred in its interpretation of the Limited Guardianship Order made by the Guardianship Tribunal on 16 April 2003.

Particulars

(i) The Limited Guardianship Order appointed the respondent’s father to be his guardian to perform three functions, which relevantly included the function acting as the respondent’s “advocate”. The Order did not authorise the respondent’s father to give instructions or maintain proceedings on his behalf.’

consideration

Grounds (a) and (e) - Expert evidence

Submissions

49 The Commission submits that the Tribunal’s finding that the respondent had not disclosed the full extent of what occurred to him at ADFA to any of the examining psychiatrists (see [40] above) was a finding that all of the psychiatric opinions before it were flawed. The Commission further submits that, having made that finding, the Tribunal was bound to conclude that there was no expert evidence before it upon which it could ground a conclusion regarding causation. It is submitted that the Tribunal erred in law by proceeding to formulate its own opinion on causation (see the passage emphasised in [44] above), as if it were entitled to substitute itself as an expert witness.

50 The respondent submits that on a proper reading of the decision, the medical evidence was not considered ‘flawed’, the Tribunal merely found as a fact that, as a result of his psychiatric condition, the respondent did not disclose the full extent of his ADFA experiences to any of the examining doctors. The respondent submits that the Tribunal’s decision in relation to causation was reasonable and open to it on the medical evidence. In making its decision the Tribunal relied on the written and oral evidence of Dr Canaris, the oral evidence of Dr Nielssen, and the opinion of Dr Jefferys regarding body dysmorphophobia. The finding in question, namely that the respondent had not disclosed the full extent of what occurred to him at ADFA to any of the examining psychiatrists, must be read in the context of the Tribunal’s decision as a whole, and particularly in the context of the Tribunal’s statement two paragraphs later that it is ‘sufficient that the employment positively contributed to the development of the [respondent’s] depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.’

Conclusions

51 In my view, the Tribunal made no finding, either explicitly or necessarily implicitly, that the evidence of the doctors was ‘flawed’. Nor, as a matter of law, was it required to do so. The Tribunal merely found that, taking into account all the evidence, the respondent had considerably understated the incidents at ADFA to his doctors. The evidence (including that of the respondent’s parents) which the Tribunal accepted suggested that what occurred at ADFA was more serious. The Tribunal then assessed the medical evidence in the light of what it considered to be the true history. That history was considered by the doctors whose opinions were evidently most valued by the Tribunal. It seems that Drs Canaris, Lee and Nielssen all accepted a causal link on the relevant history. That history was one of stressful military training experiences and a degree of harassment.

52 A decision-maker such as the Tribunal, at least one not bound by the rules of evidence, is entitled to reason logically and to draw inferences from expert opinions before it. In the course of an administrative inquiry (or of curial litigation) it is often practically impossible (particularly having regard to the desirability of maximising expedition and minimising expense) to ensure that every potentially relevant item or version of the history is put before a medical or other expert witness. Non-expert decision-makers should, of course, exercise due caution as to matters the subject of, and concerning, expert opinions: the subject matter at hand may, upon some difference in the history emerging, bring more or different matters into focus for an expert than for a non-expert; further, if the decision-maker introduces a new view of the facts without proper notice to the parties, a denial of their right to be heard may occur. Subject to such matters, however, decision-makers are not obliged to leave their capacity for reasoning and drawing inferences behind them when they come to deal with the evidence of expert witnesses. Where, as here, the Tribunal includes a member with a medical background, a conclusion that the permissible scope of the drawing of inferences as to medical matters has been exceeded should not be readily reached by a supervising court. Nor does it appear that the Tribunal’s reasoning could properly be said to have taken either of the parties by surprise, so as to constitute a denial of procedural fairness.

53 In argument, counsel for the Commission placed much reliance on Rodriguez v Telstra Corporation Ltd [2002] FCA 30, (2002) 66 ALD 579, a decision of Kiefel J. The facts in that case were significant. The AAT, including a medically qualified member, without any medical evidence on relevant questions, concluded that an employee’s admittedly ‘ongoing major depressive disorder’ had ceased to be caused by certain potentially compensable factual events and had become instead, caused by other, non-compensable events. This was because the employee had, after a time, complained to doctors less of the compensable events than of the non-compensable events. Her Honour said:

‘… If the tribunal did act upon the medical opinion of one of its members it did not state this. In any event if a view is formed by a tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it. …

The tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)) and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force …The drawing of an inference without evidence is an error of law … Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205 at 210; … a Full Court of this court held that it was unjustifiable, and therefore legally erroneous, for a tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter.

It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the court or tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.

Given my view as to the need for expert medical opinion on the topic, it is not necessary for me to consider the balance of the tribunal’s reasoning. …’

54 I do not, with respect, disagree with anything that fell from her Honour. It is to be remembered, however, that her Honour was writing in the context of the case before her. This, by contrast, is not a case in which the Tribunal has ‘[gone] beyond the opinions expressed by the experts in evidence’: the Tribunal merely accepted some of those opinions over others and logically applied the logic and doctrines inherent in those opinions to a history of disturbing events at ADFA that, in general, was even stronger than that which at least some of the doctors had had. There was a basis for the Tribunal’s decision in evidence that had probative force. In the circumstances, the Tribunal did not commit the error of basing its conclusion on its own view of a matter which, being expert, required expert evidence. The question whether the respondent had continuing, if recurrent, depression and whether any such continuing depression was still caused by his time at ADFA did need expert evidence, but there was ample evidence of that kind before the Tribunal. The Tribunal was, by that evidence, put in a position where it could infer that the correct history, as the Tribunal perceived it, provided even stronger reasons than some of the doctors had for answering those questions favourably to the respondent.

55 In my view, there was sufficient of the accepted history put before the current medical witnesses to justify the Tribunal’s acceptance of the opinions it preferred.

56 The separate claim that the Tribunal substituted its own opinion on causation should also be rejected. Again, the Tribunal’s conclusion must be read in the context of the reasons as a whole. It is tolerably clear from the entirety of those reasons that the Tribunal’s reasoning relied on the medical evidence before it. It is permissible to discriminate between expert witnesses on the basis of their appeal to the informed lay decision-maker’s sense of the probabilities: Repatriation Commission v O’Brien (1985) 155 CLR 422.

57 As the Tribunal noted, Prof. Tennant, in cross-examination, said that significant stressors had occurred whilst at ADFA and they contributed to the respondent’s depression experienced after discharge, but that most stressors were short lived, unless there were a degree of underlying pre-existing vulnerability. The Tribunal also noted that the Professor had previously found that the respondent had a pre-existing genetic vulnerability to depression. The Tribunal acknowledged the necessarily stressful environment of ADFA, including, by implication, that the respondent had been subjected to ‘behaviour designed to humiliate and demean or what amounts to nothing more than pointless excuses to punish’. The Tribunal also recorded its finding, as set out in [44] above, that the Navy acknowledged that the respondent was psychologically unsuited for entry into ADFA but enlisted him in order to make up numbers.

58 The Tribunal then said that the ‘inevitable result of what the [respondent] experienced at ADFA has been psychiatric illness including depression which still continues’. In drawing this conclusion, the Tribunal was not, in my view, substituting its own opinion, and/or formulating its own opinion as an expert witness, regardless of the actual evidence on causation. The Tribunal had previously stated that it preferred the evidence of the psychiatrists who had examined the respondent most recently: Dr Canaris, Dr Nielssen and Prof. Tennant. Dr Canaris was of the view that evidence for a persisting, albeit attenuated, causal link between ADFA experiences and current symptoms would exist if the account given on behalf of the respondent of his behaviour was accepted. Dr Nielssen conceded that the respondent’s current depression was recurrent and could have as a contributing factor the initial stressors at ADFA. Further, Dr Nielssen agreed that the stresses of ADFA could be a contributing factor to a psychiatric illness later developed by a vulnerable person, unfit to have been at ADFA, such as the respondent. It can be seen that, on that evidence, combined with Prof. Tennant’s opinions (set out above in [39] and in [41] particularly), the conclusion of a causal link between the respondent’s employment at ADFA and his psychiatric illness including depression was well open to the Tribunal on the evidence.

59 The Commission argued that, despite these comments in cross-examination, Dr Nielssen and Prof. Tennant had not resiled from their earlier views to the effect that any contribution by his ADFA experiences to the respondent’s mental problems was, in the main, short-lived. However, Prof. Tennant’s evidence appears to have been more complex than that, acknowledging, for example, that an initial stressor causing depressive disorder could make the patient more susceptible to recurrence of depression from later stressors. Dr Nielssen conceded that the initial ADFA stressor was a contributing factor to the respondent’s recurrent depression and that there was ‘quite often a co-morbidity with depression and dysmorphic disorder’. The Tribunal had the benefit of viva voce evidence from the doctors. What weight it gave to their evidence or to different parts of it was a matter for the Tribunal.

60 In any case, the submission that the Tribunal simply created and applied its own opinion was predicated on the premise that all the medical evidence was flawed because of the difficulties about the histories the doctors had. As I have indicated (at [51] above), I do not accept that premise.

61 No error of law appears to me to have been shown. Accordingly, Grounds (a) and (e) fail.

Ground (b) – Contentions not mentioned

Submissions

62 The Commission submits that the Tribunal failed to mention three contentions, which were ‘seriously advanced and worthy of serious consideration’ and that this constitutes an error of law (relying on Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276).

63 The first of the three was the contention that the Tribunal could not make findings of fact about the respondent’s experiences at ADFA on the balance of probabilities because the respondent did not give evidence and the Tribunal could not assess his credibility, particularly given that the respondent’s case was conducted on the basis that he tells lies. I interpolate that, to the extent that this is a contention of law, it follows from what I have said that it is unfounded. The contention is capable of being seen also as going to the facts which the Tribunal should, in the Commission’s submission, have accepted. If the Tribunal failed to deal with it, and had been obliged to do so, that failure therefore produced no practical injustice, and there is no case for this Court to intervene.

64 The Commission’s second contention was that the respondent’s current ‘episode of depression’ is not a recurrence connected with the depressive episode, which the respondent experienced after leaving ADFA, because medical reports indicate that the respondent did not suffer from depression between 1993 and 1999. This contention entirely involves factual matters.

65 Thirdly, the Commission contended that the opinions of Dr Nielssen and Prof. Tennant should be preferred to that of Dr Canaris because each of them interviewed and assessed the respondent and achieved a rapport with the respondent, and the Tribunal had no opportunity to assess the credibility of the respondent for itself.

66 In general, the respondent submits, correctly in my view, that the Tribunal is not obliged to deal with every argument or submission raised by a party (relying on Commonwealth v Smith (1989) 18 ALD 224; Australian Telecommunications Corporation v Davis (1991) 30 FCR 467 (‘Davis’) at 472.2; Comcare v Forbutt [2000] FCA 837 (‘Forbutt’)). It need only set out the reasons it considered material to its decision (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (‘Yusuf’) at 346). There is, however, a question whether all relevant (that is, necessarily relevant) considerations were taken into account.

67 Specifically addressing the Commission’s first contention, the respondent submits that the Tribunal assessed for itself that central facts occurred without reference to evidence from the respondent, relying instead on the evidence of the mother, father and letters from the Commonwealth. Thus, the Tribunal made its core finding on depression (which had already been admitted by the Commonwealth as having been employment-caused for a limited period) without reference to the respondent’s evidence at all, but by relying largely on Commonwealth records. Accordingly, the contention that the respondent might personally have lacked credibility was not a contention worthy of serious consideration in the present case.

Conclusion

68 I agree generally with the respondent’s submissions. The Commission’s submission that the Tribunal failed to address the Commission’s first contention (that the Tribunal could not make findings of fact about the respondent’s experiences at ADFA on the balance of probabilities, because the Tribunal could not assess his credibility), must be rejected. The Tribunal specifically dealt with this contention at [30] of its reasons (and see [23] above). For convenience, the passage is set out as follows:

‘In dealing with the allegations made regarding the treatment meted out to the [respondent] at ADFA, the [Commission] point[s] to the fact that the [respondent] had not himself given evidence in these proceedings. That may be so but his father made contemporaneous notes of telephone conversations with him. As Professor Tennant stated in his final report discussing the question as to whether the [respondent] was capable of giving evidence:

“… I believe his evidence would add nothing to what has been reported by his parents, and by psychiatrists reports.” ’

69 The Tribunal later set out the evidence to which it clearly had regard in relation to this issue, which included the respondent’s account of his difficulties at ADFA in his reply to the Notice to Show Cause, the evidence of the respondent’s parents (including contemporaneous notes of phone calls and their own observations when visiting the respondent), letters from the Commonwealth, newspaper reports, and the ADFA report.

70 It is implicit in the Tribunal’s approach that it accepted that what was said by the respondent about ADFA was unreliable, except when corroborated, and that what he has said in recent years about his well-being is unreliable; nevertheless, the Tribunal may be, and was, able to establish a history and a set of present observations and medical conclusions about symptoms relevant to his mental health. Thus, it is clearly implicit in the Tribunal’s approach that it did not accept the Commission’s submissions as to relevant factual matters because they were not apt to the case in the way it unfolded. There was no need for this to be spelled out by the Tribunal. One can see why the Tribunal took the factual views it did, despite those submissions. That, in my opinion, is enough. There was no misunderstanding of the Commission’s case, and from the care taken by the Tribunal to explain its approach, no reason to feel that the Commission’s submission was overlooked.

71 In relation to the Commission’s second contention, in effect that the Tribunal did not explain how the prima facie significant 10-year gap in depressive symptoms did not preclude a finding of a connection between the respondent’s present depression and his youthful ADFA experiences, the respondent submits that the Tribunal plainly accepted a thesis of recurrent depression. Among other things, the respondent points to Dr Nielssen’s concession (emphasised in [37] above) that the respondent’s current depression was recurrent and could have as a contributing factor the initial stressors at ADFA.

72 I was, at first blush, attracted to the Commission’s contention: there is no discussion in express terms of how the 10-year lacuna can be, as it were, explained away. Nevertheless, upon closer examination, I think that the Tribunal did address the substance of the submission.

73 The Tribunal said (I repeat, for convenience, the matter recited above):

‘55. In answer to the question as to when would service related effects cease, Dr Lee opined:

“It is difficult to address this issue, as conceivably it could last only a short time or continue indefinitely, depending on the person’s capacities to ‘recover’, through medication and psychotherapy to correct existing dysfunctional perceptions, cognition and unconscious conflicts.”

56. Dr Nielssen in a report to the [Commission] dated 18 December 2000 opined that the contribution military employment made to the [respondent’s] conditions were best described as “significant” and “influential”.

57. In his report of 18 December 2000, Dr Nielssen opined that at the time he saw the [respondent], the influence of the events at ADFA were of relatively little significance, although they would have been highly significant in the first year or so after the [respondent’s] discharge.

58. Cross-examined at the hearing of this matter and having been given additional information, Dr Nielssen revised his opinions and conceded that the [respondent’s] current depression was recurrent and could have as a contributing factor the initial stressors at ADFA.

59. More important however is the following passage of questioning of Dr Nielssen by the Tribunal:

“Q: Now, you would agree with me though, that people who go there are psychologically assessed before they go?

A: Yes.

Q: And obviously part of the reason for a psychological assessment is to see whether you are capable of making it or not?

A: Yes.

Q: In this case we have a person who was enlisted against psychological advice?

A: Yes.

Q: So that if one can take the deliberate stresses which are put upon people at ADFA without any resort to particular incidents of what is termed ‘bastardisation’ the particular stresses, etcetera, could it not be that a person such as the current [respondent] who has later developed psychiatric illness that what he has been through at ADFA realising that he was vulnerable and should not have been there, it can be a contributing factor to his psychiatric illness?

A: Yes, I agree with that. ...”

…

63. Professor Tennant also stated in cross-examination that significant stressors occurred whilst at ADFA and they contributed to the depression experienced after discharge. He did consider most stressors were short lived but added the caveat “unless there is a degree of underlying pre-existing vulnerability.” Professor Tennant had previously stated that the [respondent] had a pre-existing genetic vulnerability (to depression).

…

67. We find that Dr Nielssen correctly summarised the factors in this matter in his answers to the Tribunal questions quoted above. It has been acknowledged by the Navy that the [respondent] was judged psychologically unsuited for entry into ADFA but he was enlisted in order to make up numbers. The inevitable result of what the [respondent] experienced at ADFA has been psychiatric illness including depression which still continues.’

74 Thus, the Tribunal –

· specifically considered the subject of when service related effects would cease;

· appears to have accepted the ‘recurrent’ depression thesis;

· accepted that the ADFA stressors were a ‘contributing factor’; and

· found that the respondent’s ‘psychiatric illness including depression [emphasis added] … still continues.’

75 In the light of these passages in the Tribunal’s reasons, I cannot say that the Tribunal failed to deal with the considerations raised by a substantial submission of the Commission. It was unnecessary for the Tribunal to rehearse and negative the submission in more or less precise terms or at all: it is the substantial matters, raised by the submission and worthy of consideration, which needed to be addressed. As it seems to me, these considerations were addressed, adversely to the Commission.

76 In specific response to the Commission’s third contention (see [65] above), the respondent says that Dr Canaris in fact had an opportunity to observe the respondent and assess him, pointing to his evidence in cross-examination, part of which was as follows:

‘…it is often the case in psychiatry that you have to obtain your information from collateral sources because the patient will simply not cooperate with the examination. So to say I haven’t examined him is not correct, I have examined him as best as I could. He was an extremely difficult patient to examine and so the assessment is based on the information I could obtain.’

77 The Commission’s contention raises no question of law: it entirely involves factual matters. Thus, Ground (b) also fails.

Ground (c) – Failure to provide reasons

Submissions

78 The Commission submits that the Tribunal failed to give reasons firstly, for rejecting the opinions of Dr Nielssen and Prof. Tennant regarding the causation of the respondent’s psychiatric illnesses and their opinions that he does not suffer from obsessive-compulsive disorder; secondly, for rejecting Dr Dent’s opinion; and thirdly for finding that the respondent’s current depression is a recurrence of depression experienced in 1992.

79 The respondent submits (relying on Yusuf) that the Tribunal is only bound to provide reasons as to the matters it did accept on a subjective basis, and that there was no duty to provide reasons why it rejected evidence. In any event, the respondent submits, the Tribunal did accept part of the oral evidence of Dr Nielssen. It is submitted further that the Tribunal found facts and explained its thought processes, and that it was plainly open to the Tribunal to resolve the matter by preferring one medical expert witness over another (relying on Davis). Further, the respondent contends that the choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning (Telstra Corporation v Arden (1994) 20 AAR 285 at 296 – 297, per Burchett J), and that the Tribunal is not bound to discuss every conflict in its reasons for decision (Commonwealth v Angel (1992) 34 FCR 313).

80 As to the evidence of Dr Dent, the respondent submits that the reason for disregarding his two reports was that they were not medico-legal reports and on their face were only marginally relevant to the issues the Tribunal had to decide.

81 In relation to the alleged failure of the Tribunal to set out reasons for its finding that the respondent’s current depression is a recurrence of the depression experienced in 1992, the respondent contends that the Tribunal’s reasons plainly state the acceptance of the oral evidence of Dr Nielssen as to how later depression episodes could be considered recurrent from the episode upon leaving ADFA. The respondent additionally submits that the finding was reasonable and open to the Tribunal on the basis of other evidence.

Conclusion

82 There have been many cases about, and much has been written on, the subject of the adequacy of reasons for decision where there is an obligation to give them. See e.g. Pettitt v Dumbley [1971] 1 NSWLR 376; Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, 507; O’Brien v Repatriation Commission (1984) 1 FCR 472 (c.f. Repatriation Commission v O’Brien (1985) 155 CLR 422, 445 – 456 per Brennan J); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Commissioner of Taxation v Osborne (1990) 26 FCR 63, 65; Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437, 444; Commonwealth v Pharmacy Guild (‘Chemists’ Dispute Case’) (1989) 91 ALR 65; Dornan v Riordan (1990) 24 FCR 564, 567, 573 – 574; Copperart Pty Ltd v Commissioner of Taxation (Cth) (1994) 50 FCR 345; Brackenrig v Comcare Australia (1995) 56 FCR 335; De Domenico v Marshall (1999) 94 FCR 97, 116 – 117; Forbutt; Yusuf; Hawkins v Comcare (2001) 115 FCR 127, 141 – 142. There seems to be general agreement that such adequacy depends upon the purposes for which and the context in which the reasons are to be given. Two of the central purposes for which reasons are required, where they are required, to be given are (1) to assist the parties to understand the result and (2) to enable a disappointed party to consider whether to take advantage of any right to appeal or of judicial review.

83 A litigant before the AAT, disaffected with its decision, has (i) a statutory right to ‘appeal’ to this Court only on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth); (ii) a statutory right to seek (mainly) jurisdictional judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’) (I note that in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, Gyles J expressed the view that jurisdictional attacks on administrative decisions should, where possible, be brought under the ADJR Act rather than under the AAT Act); and (iii) a constitutional right to rectify jurisdictional abuse of power (see Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476). Except in unusual cases, none of these remedies is actuated by factual errors. Thus, the purposes for the requisite giving of reasons do not include the correction of alleged factual error. It is necessary, however, that a litigant should know whether a decision turns on a legal or factual error: Dennis Willcox, as explained (correctly, in my opinion) by Heerey J in Forbutt at [60] – [61]. However, ‘there is no defect in failing to refer to contrary evidence’ as distinct from that accepted and relied upon by the Tribunal: Forbutt and the cases there cited at [58], [61]. Heerey J pointed out in Forbutt:

‘If there is no defect in failing to refer to contrary evidence, it is hard to see how there can be error in failing to discuss contrary argument.’

84 Further, as McHugh JA said in Soulemezis v Dudley (Holdings) Pty Ltd 10 NSWLR 247, 281 – 282, a case where there was an appeal only on a matter of law:

‘… the question is not whether his Honour’s finding that the applicant was ‘fit for work’ … was correct. It is whether his Honour gave reasons, however erroneous for that finding. While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion [only that] he held that the applicant was fit for work …. What is decisive is that his Honour’s judgment reveals the ground for judgment although not the detailed reasoning in support of this finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law.’ (Emphasis added)

85 As Mr Matthew Smith pointed out in a 1992 article: ‘The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons’ (1992) 3 Public Law Review 258 at 264 – 265:

‘… the judicial observations are not always easily reconciled, and are heavily affected by the special circumstances of each appeal. They provide little more guidance to the Tribunal than does general advice that

“adequate reasons are those which refer to the evidence and disclose the substantial findings and the substance of the reasons for those findings. They need not be lengthy unless the case so requires but they should enable a court to determine whether or not a reviewable error occurred.” [A formulation in Repatriation Commission v Hughes (1990) 13 AAR 34 at 35].

Indeed, it is difficult to imagine the formulation of any useful recipe for producing “adequate” reasons, even if that concept is defined as covering only those reasons which will not allow a Dornan [v Riordan (1990) 24 FCR 564] challenge. The continual restatement by the court of the objectives of reasoned adjudication by the Tribunal will not necessarily produce reasons which reveal satisfactory cerebration prior to decision, since this quality depends mainly on the calibre of the Tribunal members and the resources available to them.’

86 In my opinion, these observations and the comments of Heerey J in Forbutt have added weight after the decision in Yusuf concerning the obligation of the Refugee Review Tribunal, not materially different from that of the Administrative Appeals Tribunal, to set out ‘the reasons for the decision’. McHugh, Gummow and Hayne JJ said (at 345 – 346):

‘As was rightly observed in the joint judgment in Singh [(2000) 98 FCR 469], this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word “material” in s 430(1)(c). It was said that “material” in the expression “material questions of fact” must mean “objectively material”. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.’ (Emphasis mainly supplied and footnotes omitted)

87 Earlier and more expansive formulations in this Court of the content of the duty to give reasons, make findings etc in particular cases must now be understood in the light of what their Honours said in Yusuf.

88 As to Dr Nielssen’s and Prof. Tennant’s opinions on causation, it is clear from what I have already said that, in my view, there were adequate reasons given for the Tribunal’s decision. It can readily be seen that Dr Canaris’ views were preferred to those of other doctors where they conflicted, and Dr Nielssen’s conclusions were regarded by the Tribunal as significant. To the extent that Prof. Tennant was not accepted, it is clear that the other medical opinions were preferred. In any case, as the Tribunal’s reasons at [61] – [63] thereof show, parts of Prof. Tennant’s evidence were consistent with a conclusion that his ADFA experiences contributed to the respondent’s present psychiatric illness.

89 No error of law is shown. The parties would readily understand why the respondent succeeded in the litigation and the Commission did not. There is no appeal on matters of fact.

90 As to Dr. Dent, there was, as I have indicated, on a beneficial view of par 15 of the Tribunal’s reasons (see [12] – [13] above), a basis given for rejecting Dr Dent’s opinion. In any case, the Tribunal’s acceptance of the notion of ADFA-implicated, recurrent depression can clearly be seen to account for not according importance to the various doctors, including Dr Dent, who did not detect symptoms of depression in the 10-year period referred to above. There was no need in law for separate discussion of Dr Dent’s views.

91 The Commission suggested in argument that, as Dr Dent had had adverse publicity in connection with the recent and well-known legal saga of Mr John Marsden, the Tribunal may have simply shunned any view or evidence of his. If that had been done, that would have amounted to a legal error. However the suggestion, in my opinion, has not been sheeted home.

92 As to the supposed lack of reasons given for finding that the respondent’s current depression is a recurrence of depression experienced in 1992, the respondent’s submission should be accepted. In addition, the Tribunal’s reference in par 63 (see [41] above) to Prof. Tennant’s evidence is to a concession by him of the continuing causative potential of a stressor in a vulnerable individual, which the Tribunal clearly considered the individual to be.

93 While a lack of evidence to support the Tribunal’s finding is not, no doubt advisedly, a point taken by the Tribunal, there was ample evidence, beyond that referred to in its reasons by the Tribunal, to support its conclusion. For example, Prof. Tennant said in cross-examination (at Court Book 763):

‘Now doctor, it is possible, is it not, that his Defence Force Academy training – the time he spent there – could be a contributor to the conditions that he has today?---Absolutely, the depression.’

94 The significance of that is that, in a context where there was no paucity of evidence to support the Tribunal’s conclusion, there was less need, in order that the parties might understand the reasons for the Tribunal’s decision, for the Tribunal to furnish or express a detailed explanation of its thinking. In any case, see Yusuf.

Ground (d) – Relevant Considerations

Submissions

95 The Commission submits that the Tribunal failed to take into account firstly, the advantage enjoyed by Doctor Nielssen and Prof. Tennant over Dr Canaris and the Tribunal itself by virtue of their having interviewed, observed and assessed the respondent; and secondly, the evidence that the respondent did not suffer from depression during the period 1993 to May 1999.

Conclusion

96 As to the supposed advantages (in the circumstances) of the examining doctors, this itself is a question of fact. Implicitly the Tribunal resolved it against the Commission. A ‘relevant consideration’ for administrative law is a mandatorily relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Yusuf; Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126. There is no need expressly to take into account every suggested reason for according some pieces of evidence more weight than others (see the discussion of the necessity for reasons above).

97 As to the alleged failure to take into account the asserted lacuna in observed and diagnosed depression in the 10-year period, the discussion above in relation to the supposed failure to give reasons also indicates that, in my opinion, this matter was adequately taken into account by the Tribunal.

Ground (f) – Guardianship Order

Submissions

98 Finally, the Commission contends that the Tribunal erred in its interpretation of the Limited Guardianship Order made by the Guardianship Tribunal on 16 April 2003, which appointed the respondent’s father to be his guardian to perform three functions: accommodation, health care and advocacy. The appellant submits that the Order did not authorise the respondent’s father to give instructions or maintain proceedings on his behalf.

99 The respondent’s counsel submits that the respondent’s father acted as his advocate in the proceedings by instructing a solicitor to brief counsel to appear and to espouse his son’s cause in the Tribunal. The respondent relies on the ordinary meaning of the noun ‘advocate’ (see Macquarie Dictionary, 3^rd edition) as:

· One who defends, vindicates, or espouses a cause by argument; an upholder; a defender;

· One who pleads for or on behalf of another; intercessor;

· (Chiefly Scottish) one who pleads the cause of another in a court of law; a barrister; one summoned to help another (in a legal case).

Conclusion

100 The Tribunal said in its reasons (set out again for convenience):

‘When one reads the reasons for the decision of the Guardianship Tribunal, it is clear that the Tribunal found a Guardianship Order should be made so as to permit the [respondent’s] father to maintain the claim by the [respondent] against the [Commission].

101 The Guardianship Tribunal’s reasons provide significant context for interpreting the scope of the ‘advocacy’ function referred to in its order:

‘[The respondent’s parents] … have mounted a subsequent appeal in the Administrative Appeals Tribunal against their loss of a compensation claim in respect of their son. The whole of the application for guardianship and financial management orders stems from that application and the recommendation by the Senior Tribunal member of the Administrative Appeals Tribunal that [the respondent] needs a guardian to be appointed to represent his interests and to act on his behalf in the proceedings, where he is not legally represented. Because of [the respondent’s] severe agoraphobia it is stated that he could not attend the proceedings, nor is he capable at times of giving instructions.

…

The [Guardianship] Tribunal was satisfied that[,] due to the nature of other legal proceedings the need for [the respondent] to be represented to protect his interests and any future claim[,] that it was appropriate that a guardian be appointed.

…

The [Guardianship] Tribunal was satisfied that … orders of this [Guardianship] Tribunal could serve to ensure that [the respondent] has proper representation through his parents in appropriate proceedings in which [the respondent] was not capable at this time of representing himself. ’ (Emphasis added)

102 The Guardianship Tribunal’s intention was clearly to ensure that the respondent had ‘proper representation’ given that ‘he could not attend the proceedings’, nor was he ‘capable at times of giving instructions.’ The tenor of the Guardianship Tribunal’s reasons demonstrates a desire to permit the respondent’s claim for compensation to progress under the supervision of the respondent’s father. There is no question that instructing a solicitor and engaging a barrister was anything other than in the respondent’s best interests. Although it might have been possible for that Tribunal to express its meaning in a more technically precise manner, it is clear that the Guardianship Tribunal intended that the father’s ‘advocacy’ function should extend to ‘giving instructions’. That, in turn is a plain indication that the father was authorised to obtain legal representation for his son and, on the latter’s behalf, instruct the legal representatives.

103 Accordingly, I see no error in the Tribunal’s finding on this issue and this ground also fails.

Disposition

104 The appeal should be dismissed with costs.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 4 April 2005

Counsel for the Applicant:	Ms R Henderson

Solicitor for the Applicant:	Sparke Helmore

Counsel for the Respondent:	Mr M Robinson

Solicitor for the Respondent:	Walker Hedges & Co

Date of Hearing:	16 September 2004

Date of Judgment:	4 April 2005

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