FEDERAL COURT OF AUSTRALIA

Vock v Repatriation Commission [2005] FCA 967

VETERANS’ ENTITLEMENTS – entitlement to disability pension - Repatriation Commission rejected appellant’s claim that he suffered from social anxiety disorder –Administrative Appeals Tribunal affirmed decision of the Repatriation Commission – no applicable Statement of Principles – conflicting medical evidence – whether Administrative Appeals Tribunal had sufficiently set out its reasons for preferring the evidence of Dr Danesi over that of Dr Wainwright

Veterans’ Entitlements Act 1986 (Cth) s 120

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Tate v Repatriation Commission [2003] FCA 1169 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Staunton-Smith v The Secretary of the Department of Social Security (1991) 32 FCR 164 referred to

Dodds v Comcare Australia (1993) 31 ALD 690 applied

Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377 applied

De Domenico v Marshall (1999) 94 FCR 97 cited

Myralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 applied

Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 referred to

ERIC VOCK v REPATRIATION COMMISSION

QUD 5 of 2004

TAMBERLIN J

SYDNEY (HEARD IN BRISBANE)

14 JULY 2005

ON APPEAL FROM THE VETERANS’ AFFAIRS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  The orders of the Administrative Appeals Tribunal made on 18 December 2003 are set aside.

3.                  The matter is remitted to the Administrative Appeals Tribunal for further consideration in accordance with law.

4.                  The respondent is to pay the costs of the appellant of the appeal.

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

ON APPEAL FROM THE VETERANS’ AFFAIRS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (Veterans Affairs Division) (“the AAT”), given on 18 December 2003, affirming a decision of the respondent, the Repatriation Commission (“the Commission”), dated 14 March 2001, that the appellant, Mr Vock, did not suffer from social anxiety disorder. 

2                     It is common ground between the parties there is no applicable Statement of Principles which must be considered in this case.  The AAT therefore stated that the question before it was whether it was reasonably satisfied as to the matters alleged by the appellant. Section 120(4) of the Veterans’ Entitlements Act 1986, (Cth) states:

“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension under Part II or Part IV, decide the matter to its reasonable satisfaction.” (Emphasis added)

3                     Counsel for the appellant has identified a number of passages in the AAT decision that are said to reflect the errors of law which are the subject of the appeal.  These passages read as follows:

“The Diagnosis

19.  Dr Danesi concluded in his report of 13 March 2002 that the applicant suffered from social anxiety disorder. He enlarged on his reasons in his report of 21 January 2003 to explain why he preferred a diagnosis of social anxiety disorder over avoidant personality disorder (in short: because the applicant demonstrated prominent symptoms of anxiety that were more consistent with a diagnosis of social anxiety disorder).  The expression ‘social phobia’ is an alternative label for social anxiety disorder.  Dr Danesi explained in his report of 21 January 2003 that social phobia:

‘revolves around a marked and persistent fear of one or more social or performance situations in which the person is exposed to unfamiliar people or possibly scrutiny by others.  The individual feels that he or she will act in way or show anxiety symptoms that would be humiliating or embarrassing.’

…

23        Dr Wainwright also concluded the applicant did not have post traumatic stress disorder or social phobia.  Dr Wainwright accepted the applicant suffered from stress in some situations, but the stress was not excessive and did not interfere with his normal relationships or functioning.  His successful maintenance of long-standing relationships and his occupation and charity work (in which he is exposed to the public) are not consistent with a diagnosis of social phobia, Dr Wainwright concluded.

24.              I note that Dr Boulnois reached a similar conclusion in his report dated 4 April 1996.  Dr Boulnois queried whether the applicant was affected by his epilepsy medication.

25.              Dr Danesi also reported the applicant said he would snore heavily and stop breathing while he slept.  Dr Wainwright reported the applicant complained he never felt refreshed in the morning.  Dr Wainwright noted the applicant did shift work.  In Dr Wainwright’s opinion, the applicant suffered from sleep apnoea – a condition which explained many if not all of his symptoms.

26.              After seeing the applicant in the witness box and considering all the circumstances, I prefer Dr Wainwright’s diagnosis.  Mr Vock is an anxious man, but he appears to function more or less normally.  I cannot be satisfied he suffers from a compensable psychiatric disorder.  I have already concluded he does not suffer from alcohol abuse or dependency.”

4                     Counsel for the appellant submits that there are two substantial errors of law disclosed in the AAT’s Reasons for Decision.  The first ground of appeal is that there is no discernible reference in the Reasons for Decision to the AAT having considered the evidence pursuant to s 120 upon which a conclusion favourable to the Commission can be reached. In particular, it is said that it is not possible to discern from the Reasons for Decision what considerations were taken into account by the AAT and why Dr Wainwright’s diagnosis was preferred over that of Dr Danesi. 

5                     Counsel for the appellant submits that a decision-maker is required to set out its findings of fact and to refer to the evidence which it considers material to the decision, and that this has not been done in the present case. 

6                     The second ground of appeal is that the appellant has not been sufficiently informed of the AAT’s reasons for its decision.  Counsel for the appellant refers to Tate v Repatriation Commission [2003] FCA 1169 at 38, where Cooper J, after referring to ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), said:

“The sections only oblige the decision-maker to 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. … The Court may infer that any matter not mentioned in the reasons was not considered to be material by the decision-maker. ….  The drawing of that inference may or may not reveal the existence of reviewable error of law on the part of the decision-maker.”

His Honour also referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] –[69].

7                     Cooper J then referred to the principle that the reasons of the AAT are not to be construed minutely and finely with an eye attuned to the perception of error, remembering that reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

8                     In the present case, the essential gravamen of the complaint is that the appellant has not been given the reasons for the findings of the AAT in the final paragraphs of the Reasons for Judgment.  There has simply been a preference of one medical diagnosis over another without any reference to the evidence upon which this finding was based.

reasoning

9                     At the beginning of its Reasons for Decision, the AAT posed the correct question for itself when it said that it must decide whether it is reasonably satisfied as to the matters alleged by the appellant.  The AAT then referred to the written evidence and reports and oral evidence as given by Mr Vock, Dr Wainwright and Dr Danesi.  The AAT then briefly set out the history of the matter.  The AAT made no adverse comment in the decision as to the credibility of Mr Vock, Dr Wainwright or Dr Danesi.

10                  It is apparent from the penultimate paragraph of the Reasons for Decision that the AAT preferred Dr Wainwright’s evidence over that of Dr Danesi.  The two diagnoses were in direct conflict.  However, the decision discloses no reasons for reaching the conclusion that Dr Wainwright’s diagnosis should be preferred. There is a statement that the decision-maker observed the appellant in the witness box and considered all the circumstances but these observations are not connected by any reasoning with the AAT’s preference for Dr Wainwright’s evidence. 

11                  The AAT is, of course, not bound by the rules of evidence. However, under s 43(2B) of the AAT Act, where the AAT gives written reasons for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.  This provision is based on the premise that it is necessary for a decision-maker to set out its reasons for the decision when giving a decision in writing.  A substantial failure by the AAT to disclose its reasons may constitute an error of law: see Staunton-Smith v The Secretary of the Department of Social Security (1991) 32 FCR 164 at 165 per O’Loughlin J.  The adequacy of reasons can be a matter of substance.  As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691:

“The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation.  It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the court should insist on its fulfilment.  But it is the substance of the obligation that matters. … Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the tribunal’s reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include ‘findings on material questions of fact.’”

12                  In the present case, there is no reasoning nexus between the AAT’s observation of the appellant and the remarks which the AAT appears to have made in passing and the ultimate conclusion that the diagnosis of Dr Wainwright is to be preferred over that of Dr Danesi. 

13                  In Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377 at 377, Hill J said:

“… the obligation under s43(2B) is not satisfied by a statement of the tribunal’s conclusion of fact.  The parties are entitled to know what evidence the tribunal accepted and what evidence it took into account.  Likewise, the parties are entitled to know what evidence the tribunal rejected.  Without this knowledge the parties will have but an incomplete idea of the tribunal’s process of reasoning and a lessened respect for the tribunal’s decision-making process.”

14                  These observations were cited with approval by the Full Federal Court in De Domenico v Marshall (1999) 94 FCR 97 at 117.

15                  The decision does refer to Dr Danesi’s evidence but does not say what material it took into account in finding that the evidence of Dr Wainwright was to be preferred.

16                  In Myralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 95, Sackville J (with whom Davies and Beazley JJ agreed) considered the consequences of a failure to give reasons:

“What is required is that the Tribunal set out in ‘short and measured, but specific terms its findings in connection with matters relevant to its decision … it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns.

The standard required is not one of perfection and regard must be had to the composition of the tribunal, which does not necessarily include trained lawyers.”  (Emphasis added)

In that case, their Honours set aside the orders of the Refugee Review Tribunal on the basis that there had been a failure to provide reasons which dealt with the substantial issue.

17                  The rationale for the requirement that a decision-maker spell out the reasons for its conclusions on substantial issues is the need to inform the public and the parties with an immediate interest in the outcome of the proceedings of the manner in which the decision was arrived at.  This, in turn, enables a determination to be made as to whether an error of law has been committed by the decision-maker.  In Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, Sheppard J points out:

“The provision of reasons engenders confidence in the community that the tribunal has gone about its tasks appropriately and fairly.  The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration.  There is yet a further purpose to be served in the giving of reasons.  An obligation to give reasons imposes upon the decision-maker an intellectual discipline.   The tribunal is required to state publicly what its reasoning process is.”

18                  The decision under appeal does not satisfy these principles.

19                  In this case, the question is not whether the reasons that were given by the AAT were unsound but rather whether it is possible to ascertain from the Reasons for Decision the reasons or the evidence that led to the AAT’s finding that the evidence of Dr Wainwright was to be preferred.  The decision notes certain matters and makes certain suggestions but does not identify them as reasons for this finding.

20                  By way of example, par 25 of the Reasons for Decision relates to the possibility of Mr Vock suffering from sleep apnoea and the decision makes the tentative suggestion that this condition may explain certain symptoms of Mr Vock.  This is not referred to as a reason for preferring the evidence of Dr Wainwright.  The 1996 report of Dr Boulnois is also referred to by the AAT, however, no indication is given of its relevance to the finding that Dr Wainwright’s evidence is to be preferred to that of Dr Danesi.  The report of Dr Boulnois was written more than seven years prior to the date of the hearing and Dr Boulnois was not called at the hearing to give evidence.  In the AAT’s Reasons for Decision. there is simply a general note that Dr Boulnois had queried whether Mr Vock was affected by epilepsy medication.

21                  Finally, there are some ambiguous and inconclusive remarks in the penultimate and critical paragraph of the Reasons for Decision about the decision-maker having seen the appellant in the witness box and considered all the circumstances.  These remarks beg the question what it was about the appellant that was significant to the AAT and what circumstances the AAT referred to?  There are further questions, uncertainties and ambiguities arising as to how it was that the appearance of Mr Vock was used by the AAT.  In addition, one does not know what is meant by the AAT’s reference to Mr Vock as “an anxious man” but “appearing to” function more or less normally.  It is not disclosed whether this reference is based on the written material, the oral evidence or the personal observations and lay opinion of the decision-maker.  One may well ask to whom this appearance of Mr Vock being anxious but functioning normally manifested itself?  It is not clear whether the decision-maker was acting on his own observations or some expertise of his own to make a decision as to which expert should be preferred.  There is no identification of the evidence on which the finding that the diagnosis of Dr Wainwright is to be preferred is based.

22                  Accordingly, in my view, there has been a substantial error of law in the present case because the requirements of s 43(2B) of the AAT Act have not been complied with.

23                  It should be noted that counsel for the appellant also raised the issue that the finding of the AAT was that there was no “compensable psychiatric disorder”.  Counsel submitted that the use of the expression “compensable” made it unclear whether the decision-maker had travelled beyond the question posed in s 120(4) concerning diagnosis and into the areas covered by the other subsections of s 120.  This created confusion or left an uncertainty as to whether the decision-maker had properly exercised the function of deciding, to his reasonable satisfaction, whether the appellant was suffering from social anxiety disorder.

24                  It should be noted that the AAT, in the second paragraph of its Reasons for Decision, referred to the question that it must decide, namely, whether it is reasonably satisfied as to the matters alleged by the appellant.  The first issue was seen to be whether the appellant suffered from social anxiety disorder.  On a fair reading of the Reasons for Decision of the AAT, I am not persuaded that any error of law is disclosed by the reference to the expression “compensable psychiatric disorder”.  Such a conclusion would require an inference that the decision-maker had ignored what had been said earlier in its Reasons for Decision as to the exercise on which it was embarking.  The expression “compensable psychiatric disorder” is consistent with a finding that there was no psychiatric disorder and, accordingly, that no compensation was payable.  It does not, in my view, necessarily imply that the decision-maker had incorrectly proceeded to consider the other questions requiring determination under s 120 of the Act.

25                  For the aforementioned reasons, I am of the view that the appeal in the present case should be allowed.  The orders of the AAT made on 18 December 2003 should be set aside and the matter remitted to the AAT for consideration in accordance with law.  The respondent should pay the costs of the appellant of this appeal.

Associate:

Dated:              14 July 2005