FEDERAL COURT OF AUSTRALIA

Rana v Chief of Army [2005] FCA 1283

RANJIT RANA v CHIEF OF ARMY

SAD 74 of 2005

RANJIT RANA v CHIEF OF ARMY

SAD 79 of 2005

MANSFIELD J

14 SEPTEMBER 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay to the respondent costs of the application.

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

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     These two applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to review decisions of the Chief of Army were heard together.  They have a common factual background.

2                     The applicant (Mr Rana) was born in 1955.  He enlisted in the Australian Army on 14 October 1980.  He was discharged on 13 July 1982 on the ground of his ‘retention not being in the interest of Australia or the Army’, pursuant to Australian Military Regulation 176(1)(n). 

3                     On 14 September 2003 Mr Rana wrote to the Defence Force Retirement and Death Benefits Authority (the Authority) regarding his status under the provisions of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the DFRDB Act).  It is common ground that his letter invoked s 37 of the DFRDB Act.  He sought an order that the Chief of Army inform the Authority that, at the time he was retired, grounds existed on which he could have been retired on the ground of physical or mental incapacity to perform his duties. 

4                     Section 37 of the DFRDB Act provides:

‘Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.’

5                     The nature of that power, and in particular the respective functions of the Chief of Army and of the Authority under that section, were addressed in Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306 at 309 (Britt).  The Full Court (Fox, Woodward and Davies JJ) said:

‘Section 37 does not confer upon the Chief’s-of-Staff power to determine that a person be treated as if he had been retired on the ground of invalidity.  Section 37 confers on the Chief’s-of-Staff only the function of determining and informing the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity.  There remains a decision to be made, namely, whether, in the circumstance of the case, the member should be treated as if he had been retired on that ground. 

Is that decision a matter of discretion?  In our opinion, it is …

…

Is this discretion imposed upon the Chiefs-of-Staff or upon the Authority?  In terms it is imposed upon the Authority and we can see no justification for reading the section in any other way.  The section confers a specific function upon the Chiefs-of-Staff, that is, the function of determining whether the member could have been retired on the ground of invalidity and informing the Authority of that fact.  This is a function properly imposed upon the Chiefs-of-Staff for they are aware of the requirements of service and are therefore able to determine whether the member’s medical condition was such as to justify his retirement on the ground that he was unable to perform his duties.  But that is the only function which s 37 confers upon the Chiefs-of-Staff.  It does not confer upon them the power to decide whether, in the whole of the circumstances of the case, the former member should be treated as if he had been retired on the ground of invalidity or even the power to request that he be so treated.’ 

6                     On 5 April 2005 a delegate of the Chief of Army (the delegate) determined that, at the time of his discharge, grounds did not exist whereby Mr Rana could have been discharged because of physical or mental incapacity to perform his duties.  Consequently, s 37 of the Act did not activate further so as to entitle the Authority to determine whether Mr Rana may in fact be treated for the purposes of the fixing of benefits under the DFRDB Act, as if he had been retired on that ground.  It is that decision which Mr Rana first seeks to set aside under the ADJR Act.  I shall call it ‘the principal decision’.

7                     Initially, Mr Rana alleged that the decision-maker was not validly authorised by delegation to have made that decision on behalf of the Chief of Army.  Upon the relevant materials being adduced, he did not maintain that submission.  There is no issue that the delegate was a duly appointed delegate of the Chief of Army for the purposes of making that decision.

8                     Because Mr Rana’s contentions require careful reference to the reasons for the principal decision, I shall set out the major part of those reasons.  They were as follows:

‘In making this determination, I state that I have read through the Defence position brief, as presented by MAJ Tattersall and note the development of this case.  I am conscious that MAJ Tattersall has offered a differing point of view to that which I have formed by personal investigation.

I am guided by the three reports from Dr Miller that advise that on the available evidence, it does not support the contention that, at the time of his discharge, grounds existed whereby Mr Rana could have been discharged on the grounds of invalidity.

I further support the interpretation of the AAT decision S86/207 by Dr Miller, in that the two cases are not identical, and that there exist sufficient difference as to be not applicable.

Further, I am strongly guided by the evidence of Dr Hoff as late as 8 March 82 that “the diagnosis of aggravation of adjustment order with emotional features was not established during Mr Rana’s service”.

Additional issues that firm my view not to accept Mr Rana’s case I note the inference that Mr Rana “may well have suffered from an aggravation of a psychiatric condition as a result of his Army service”; but not to the extent to warrant discharge.  Further I note the comment in S86/207, which is based upon Dr De Pasquale’s consultation with Mr Rana over three meetings in 1986, “Dr De Pasquale did not consider that the applicant was suffering from a psychiatric personality disorder”.  It was noted that Mr Rana suffered from a personality problem which was aggravated by events, such as marital difficulties being a contributing factor.  It is acknowledged that these events occurred during his Army service.

The strength of argument against Mr Rana’s contention is further reinforced in my determination by Dr Miller’s assessment that there is “no contemporaneous evidence that he (Mr Rana) had these conditions whilst serving in the Army, nor if he did that they rendered him medically unfit for Army service”.

From the Service history report available to me there is evidence that Mr Rana gave the appearance of being a dysfunctional soldier who poorly performed his duties as a ECN 366-0 STM TECH ORD.  However, he presented for medical assessment by Dr Hoff and despite receiving psychotherapy was released by Dr Hoff for return to his normal duties.

By absenting himself without leave from his workplace Mr Rana frustrated the normal assessment of medical employment classification by the Defence Health Service to the extent that his discharge in absentia was ordered without the benefit of a final medical board.

As stated earlier, I am influenced by Dr Miller in his assessment of the medical documentation available to him from Mr Rana’s Central medical file and the variety of medical and other documentation provided by Mr Rana in support of his claim.  I note that Dr Miller retains his view despite three requested reviews of his guidance to me, confirming my view that Mr Rana was not sufficiently affected by his presentation to attract consideration of a medical discharge.

I do acknowledge that Mr Rana was troubled during his service within the Army.  Germane to his workplace dysfunction, is the number of times he absented himself without leave from his workplace.  Absence without leave led to his involuntary separation from the Army.  However there is clearly no substantive evidence that influences me that he was incapable of performing his duties due to a physical or mental condition during the 21 months service in the Army.

In making this determination, I state clearly that I have arrived at this decision from my own independent assessment of all the facts presented to me in the Defence position brief.’

9                     The reference to the ‘Defence position brief’ (the brief) is a reference to a brief prepared by another officer of the Australian Army and dated 3 April 2005 which was submitted to the delegate and upon which the delegate made his decisions.  In the brief, the officer who prepared it (the investigator) recommended at its conclusion that the delegate determine that, at the time of his discharge from the Army on 13 July 1982, there were grounds on which Mr Rana could have been discharged on the ground of invalidity or of a physical or mental incapacity to perform his duties.

10                  It should be noted that s 37 of the DFRDB Act does not require there to be a connection between the invalidity or physical or mental incapacity to perform duties in the relevant service and the service itself.  Invalidity for whatever reason may be sufficient to provide a ground for retirement.  It does not require the invalidity to have been work caused or service related.  It is also important to note that, in determining whether grounds existed, at the time Mr Rana was retired from the Australian Army, on which he could have been retired for invalidity or mental or physical incapacity to perform his duties, it is appropriate to consider material available up to the time of the decision.  The decision-maker is not confined to such material as was available at the date of Mr Rana’s retirement.  The decision-maker is to consider whatever information was available at the time the determination is made and which would throw light on the medical condition at the relevant date:  see per Neaves J in Cox v O’Donnell (1982) 34 FCR 42 at 55.

11                  The second decision under review arose from a letter of Mr Rana to the Chief of Army of 29 September 2003 requesting that his record of discharge be amended pursuant to s 44(2) of the Defence Act 1903 (Cth) (the Defence Act).  At the time s 44(2) provided:

‘Where a soldier has been discharged under subsection (1) and the Chief of the General Staff or any person to whom powers under that subsection have been delegated is satisfied that the soldier could properly have been discharged under that subsection for a prescribed reason other than that for which he was discharged, the Chief of the General Staff or the delegate, as the case may be, may, at the request of the soldier, take such steps as are necessary to ensure that he is treated as having been discharged for that other reason, including the taking of steps to amend any relevant order of discharge and any other relevant documents.’ 

The ‘prescribed’ reasons were those set out in Army Military Regulation 176.  Relevantly they included in Reg 176(h) the ground that the soldier is medically unfit.

12                  Section 44 of the Defence Act was repealed by the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth) (the amending Act) which was assented to on 22 March 2001.  Item 90 of Pt 2 Schedule 2, item 90 of the amending Act provided that the repealed sections (including s 44) should continue to apply, in relation to a person who was enlisted under the former s 36(3) of the Defence Act immediately before the amendment, as if the repeal had not happened.  Consequently, it was appropriate for the delegate of the Chief of Army to address Mr Rana’s request in accordance with the terms of the former s 44(2) of the Defence Act.

13                  In any event, the Defence (Personnel) Amendment Regulations 2002, which commenced on 1 December 2002, included Regulation 99 which was in terms similar to s 44(2) of the Defence Act until its repeal.  It now provides an alternative means by regulation by which the reason for termination of service may be treated in a different way.  When those regulations came into force, the former Australian Military Regulation 176 was omitted.

14                  The same delegate of the Chief of Army by letter of 28 April 2002 decided not to amend the reason for Mr Rana’s retirement from the Australian Army in the central army records.  He said:

‘You are aware that I recently determined your request, pursuant to Section 37 of the DFRDB Act, for consideration of whether grounds existed on which you could have been retired as an invalid or because of mental or physical incapacity to perform military duties.  I found that grounds did not exist whereby you could have been discharged because of physical or mental incapacity to perform his duties.

Having regard to that decision not to change your reason for discharge and pursuant to Regulation 99 of the Defence (Personnel) Regulations 2002, I will not amend your reason for discharge from the Army …’

15                  That is the second decision which Mr Rana seeks to set aside.  I shall call it ‘the second decision’.  It is common ground that the outcome of the application concerning the second decision is dependent in large measure (though not entirely) on the outcome of the application concerning the principal decision.

the grounds of review

16                  Mr Rana provided seven separate sets of written submissions, as well as making oral submissions at the hearing of the applications.  The submissions largely overlap.  They must of course be tied to one or other of the grounds of review available under s 5 of the ADJR Act.  They are expressed in a scattergun fashion, and understandably (as he is not represented) somewhat discursively.  I have considered those submissions.  They are variously expressed, and sometimes in offensive or unhelpful epithets.  In my view, his submissions can be refined to the following propositions concerning the principal decision:

1.                  The delegate committed a breach of the rules of natural justice in connection with the making of the decision because –

(a)            the investigator, by the brief, including the recommendation, created a legitimate expectation on the part of Mr Rana that the delegate would not make a determination adverse to Mr Rana without giving him the opportunity to be heard before the delegate.  Mr Rana claims he was deprived of the right to be heard both orally and in writing by the delegate, including being given the opportunity to cross-examine the delegate himself and to cross-examine Dr Miller to whose reports reference was made by the delegate in the reasons for the determination referred to above; and

(b)            Mr Rana was not given the opportunity to comment to the delegate upon the three reports of Dr Miller to which reference is made in the reasons for decision of the delegate.

2.                  The making of the decision was an improper exercise of the power because the delegate –

(a)            took into account an irrelevant consideration, namely the contents of Dr Miller’s reports;

(b)            failed to take into account a relevant consideration, namely the evidence provided by Mr Rana, the ‘Military Police Report’, the 1988 AAT decision and a decision of the AAT in 2003, all the medical evidence and in particular the evidence of Dr Jha provided in December 2004, and that Mr Rana was absent without leave because of his mental condition;

(c)            exercised the power to make the decision in the way that was so unreasonable that no reasonable person could have so exercised the power, as the delegate could not rationally rely on Dr Miller’s reports in the face of the 1988 AAT decision, and because the medical evidence was not capable of supporting the delegate’s decision, and because the delegate could not rationally reach a decision inconsistent with the 1988 AAT decision;

(d)            made the decision in bad faith because he was forced into making the decision by direction of the AAT due to the delay in making the decision, and gave no proper genuine and realistic consideration to its making.

3.                  The decision involved an error of law because the delegate did not conduct the inquiries which he should have conducted, including in relation to the 1988 AAT decision, because the delegate placed reliance on Dr Miller’ reports when they were inadmissible or should have been excluded on discretionary grounds because Dr Miller had not exposed  his reasons for his views, and because the delegate did not ask himself the right questions under s 37 of the Act.

4.                  There was no evidence or other material to justify the making of the decision, if Dr Miller’s reports should have been excluded by reason of s 7 of the Evidence Act 1995 (Cth) (the Evidence Act) as Dr Miller had never examined Mr Rana.

17                  Mr Rana also complained about the validity of the delegation (subsequently abandoned), about the adequacy of the reasons of the delegate, and at one point about the validity of Regulation 99 of the Defence (Personnel) Regulations 2002.  He did not pursue the latter issue in his oral submissions.  As I have found that the relevant provision is s 44(2) of the Defence Act, rather than the subsequently inactive regulations, it is not necessary to address that issue in any event. 

18                  Mr Rana also contended that the delegate should have disqualified himself from making the second decision because he had made the principal decision adversely to Mr Rana.  I can deal with that submission immediately.  In my view, the point does not demonstrate reviewable error on the part of the delegate.  It is common ground that the principal decision had the consequence of leading to the second decision.  No additional material was adduced by Mr Rana to indicate that the reason he wanted his discharge record altered was other than that he wanted his retirement to be treated as on the grounds of physical or mental incapacity.  Had the principal decision been differently made, the Authority would then have addressed whether in fact the grounds of his retirement might in fact be treated as for physical or mental incapacity.  The decision under s 44(2) of the Defence Act would no doubt have reflected no different decision on that question.  It could not be argued that, by invoking s 44(2) of the Defence Act, Mr Rana was indirectly entitled to have a different person make a decision which would in substance be a decision also under s 37 of the DFRDB Act as to whether grounds existed so that his retirement could have been on the grounds of invalidity.  In the particular circumstances, therefore, I reject that contention concerning the second decision.

19                  To address Mr Rana’s contentions, it is necessary to refer in some detail to the material before the delegate.

the material before the decision-maker

20                  At the hearing, counsel for the delegate for the Chief of Army produced a folder containing ‘relevant documents’.  It is not necessary to refer to all of them at present.  In the light of that folder, only one additional document was adduced in evidence.  That is the record of the second decision.  Mr Rana accepted that was the material before the delegate, and was the material upon which his applications should be determined.  He elected not to read the extensive affidavits which he had sworn in the proceedings in the light of that documentary material.

21                  The relevant material comprised the brief, the principal decision and the reasons for it; the second decision and the brief reasons for it, and the documents referred to in the brief.  The documents referred to in the brief comprised the instrument of delegation dated 7 December 2000, Mr Rana’s letter of application dated 14 September 2003, Mr Rana’s letter of application dated 29 September 2003, Mr Rana’s letters to the investigator dated 28 November 2003, 30 March 2004 and 9 April 2004, medical reports from Dr Miller dated 3 March 2004, and 28 July 2004, medical report from Dr Kutlaca dated 5 June 1985, medical report from Dr De Pasquale dated 20 November 1986, medical report from Dr Hoff dated 13 March 1985, a copy of a decision of the Administrative Appeals Tribunal (AAT) concerning Mr Rana dated 28 April 1988 (the 1988 AAT decision) and a minute enclosing copies of all documents relating to Mr Rana’s service history dated 15 December 2003.  The service history included or comprised what Mr Rana in his contentions called the Military Police Report.

22                  On 22 April 1988 the AAT in the 1988 AAT decision determined an application by Mr Rana for review of two determinations both of 9 October 1985 under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the Compensation Act).  The first determination flowed from a claim made on 4 September 1984.  It was determined that Mr Rana suffered from a disease, namely adjustment disorder, to which his service in the Australian Army was a contributing factor and that he was entitled to compensation up to and including 11 April 1985, but not thereafter.  Mr Rana claimed before the AAT an ongoing entitlement to compensation after 11 April 1985.  The second determination concerned a particular impairment claimed by Mr Rana to be due to his army service, but which was rejected.  It is not necessary to refer to it further.

23                  Hence, relevantly the AAT was only called upon to decide whether Mr Rana was incapacitated for work since 11 April 1985 due to any psychiatric condition arising out of his army service.  It noted the Commonwealth’s position that:

‘… whilst liability to pay compensation was accepted by the Department of Defence for a period up to 11 April 1985, on the material before the Tribunal, there is doubt as to whether the applicant ever suffered any incapacity due to a psychiatric condition resulting from Army service …  Further, even if the applicant did suffer from such psychiatric condition resulting from Army service, he has not been incapacitated for work since 12 April 1985 as a consequence of that condition.’

24                  The AAT recorded Mr Rana’s medical and personal history whilst in the Australian Army.  Soon after his enlistment, he complained of victimisation, and of feeling stressed.  He was given 2-3 weeks leave, until 9 July 1981, to visit his father in Nepal during which he contracted a disease with quite painful symptoms.  Thereafter his absenteeism increased.  His wife left him, apparently for reasons unrelated to his Army service.  He was hospitalised for about one week in August 1981 due to panic attacks, and then received counselling.  He was referred to Dr Hoff, a psychiatrist employed by the Australian Army, on 19 August 1981, and received counselling from him from time to time thereafter.  Mr Rana’s father died in September 1981.  Nevertheless, he maintained his army duties (apart from the one week of hospitalisation in August 1981) until 20 March 1982, but with increased absenteeism.  He was then hospitalised between 20 and 31 March 1982.  At that time Dr Hoff considered Mr Rana was suffering from a personality disorder with reactive depression.   Whilst on sick leave, on 9 April 1982, Mr Rana went to Nepal to live with his mother.  During his unauthorised absence, he was discharged from the Australian Army on 13 July 1982.

25                  Mr Rana (as the AAT recorded) returned to Australia on 14 December 1982.  Thereafter he had a series of labouring and other unskilled jobs, and was intermittently in receipt of unemployment benefits.  He was imprisoned for two months ending on 12 January 1984, for non-payment of fines imposed for certain criminal convictions.  On 9 February 1984, he applied for an invalid pension, but his application was rejected as he was assessed as suitable for labouring work.  During 1984, Mr Rana had several short term jobs in restaurants.

26                  On 4 September 1984 Mr Rana first made his compensation claim in respect of his service in the Australian Army.  Later that month he was briefly admitted to a psychiatric hospital, and was assessed as unfit for work at that time.  He was discharged from treatment during October 1984.  In January 1985, Mr Rana was a passenger in a car involved in a car accident, and received sickness benefits for a time.  He was working again at least by February 1985 in a restaurant.  During this period he saw both Dr Jagermann and Dr Kutlaca.  He continued working more or less continuously until he again returned to Nepal in January 1986.  Following his return to Australia (the AAT decision does not indicate a date) Mr Rana worked in another restaurant for a time, and then between July 1986 and January 1987 he received sickness benefits apparently following an injury sustained in that work.  He worked only intermittently then to the time of the AAT decision.

27                  On 9 October 1985 the determination of workers’ compensation was made in Mr Rana’s favour for the lump sum payment of compensation for the period 25 December 1982 to 11 April 1985.

28                  The AAT referred to the medical evidence of Dr Kutlaca, Dr Hoff and Dr De Pasquale.  It noted all three were of the opinion ‘that the applicant may well have suffered from an aggravation of a psychiatric condition as a result of his Army service’.  They disagreed about the nature of the psychiatric condition and the period of incapacity arising from the Army-service caused aggravation.  The AAT on those matters preferred the evidence of Dr Kutlaca and Dr Hoff.  It found that Mr Rana had a personality disorder.  That condition, it said, due to earlier stresses he experienced which would have ‘laid a vulnerable foundation which was further aggravated by the conditions of his Army service’, led to further stresses thereafter.  It then said:

‘All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which the Army service was but one component.’

29                  The AAT found that any continuance of the disorder since April 1985 was probably not related to the stresses experienced in Army service.  It also did not accept that Mr Rana has been incapacitated for work as a result of any aggravation of his disorder, even if the aggravation had an ongoing operation.

30                  The AAT conclusion was as follows:

‘The Tribunal not being satisfied that since April 1985 the applicant has been incapacitated for work as a result of the contraction and/or aggravation of an injury arising out of or in the course of his employment with the Army pursuant to s 29 of the Act, … the determinations of the Commission are affirmed.’

31                  What is clear is that in the 1988 AAT decision, the AAT was not required to address, and did not make any findings about, the capacity of Mr Rana to perform his duties at the time of his retirement on 13 July 1982.  Moreover, the AAT noted that although compensation had been paid to Mr Rana under the Compensation Act for the period from 25 December 1982 to 11 April 1985, the Army before the AAT did not accept that Mr Rana even suffered incapacity for his Army duties due to his Army service.  Finally, I note that the determination of Mr Rana’s entitlement to compensation (as far as the AAT reasons disclose) commenced on 25 December 1982.  That was some 5-6 months after his retirement from Army service.  Even that does not, therefore, point firmly to Mr Rana having been incapacitated at the time of his retirement.

32                  The medical reports before the delegate included the following:

(a)                Dr MD Miller, dated 3 March 2004 to the investigator.  Dr Miller obviously had access to Mr Rana’s defence medical records.  He referred to the diagnosis and discharge assessment at the time of Mr Rana’s hospitalisation between 5 and 10 August 1981, and Dr Hoff’s contemporary information and opinions.  He also referred to the medical reports submitted by Mr Rana:  Dr Hoff 9 March 1989; Dr De Pasquale 20 November 1986, 8 April 1987 and 4 February 2002; Dr Kutlaca 5 June 1985; and Dr Goss (oral surgeon) 13 February 1987.  He also referred to other material submitted by Mr Rana.  He concluded:

‘These [medical] reports … indicate the presence of psychiatric conditions.  There is, however, no contemporaneous evidence to support their existence at the time of his discharge …

The available evidence does not support the contention that, at the time of his discharge, grounds existed whereby Mr Rana could have been discharged on the grounds of invalidity.’

Dr Miller’s report was the subject of a detailed submission/statement from Mr Rana to the investigator on 30 March 2004.  That submission appears to have been sent to Dr Miller for his views.

(b)                Dr Miller dated 14 April 2004 to the investigator.  Dr Miller referred to Mr Rana’s ‘submission/statement’ as reflecting ‘Mr Rana’s own opinions but does not provide any supporting evidence for his views’.  He described it as having ‘no probative value in this matter’.  Dr Miller also commented upon the AAT decision in Britt v Defence Force Retirement and Death Benefits Authority (12 July 1985).

(c)                Dr Miller dated 28 July 2004 to the investigator.  He listed and referred to further material submitted by Mr Rana to the investigator, including the further medical reports submitted.  He concluded:

‘The material submitted by Mr Rana does not support his contention that, at the time of his discharge, grounds existed whereby he could have been discharged on the grounds of invalidity.’

(d)                Dr D Kutlaca, psychiatrist, dated 5 June 1985 to the Department of Health concerning Mr Rana’s compensation claim against the Australian Army.  Dr Kutlaca first saw Mr Rana on 29 January 1985.  Dr Kutlaca’s report contains a detailed personal history, consistent with that recorded in the 1988 AAT decision.  Dr Kutlaca opined that Mr Rana suffered from transient symptoms of ‘anxiety and depression’ in response to stressful events (some possibly service-related if Mr Rana’s history were accepted as reliable) during his Army service, and which he described as an adjustment disorder.  He said that Mr Rana had significantly recovered by the time of his report, so Mr Rana was then fit for any type of suitable employment.  Dr Kutlaca did not express any view as to whether, at the time of his retirement from the Army, Mr Rana was or may have been eligible for discharge on the grounds of invalidity.

(e)                Dr C De Pasquale, psychiatrist, dated 20 November 1986, also concerning Mr Rana’s compensation claim against the Army.  His first examination was on 16 September 1986.  Dr De Pasquale said that if (as Mr Rana claimed) the Army service contributed to his ‘loss of confidence, depression, anxiety and social withdrawal’, then it is responsible for ‘an aggravation of a pre-existing problem’.  He expressed a positive prognosis.  He did not comment directly upon whether, at the time of his discharge, grounds existed for that discharge to be for invalidity.

(f)                  Dr De Pasquale dated 9April 1987.  This report did not alter those views.

(g)                Dr De Pasquale dated 4 February 2002.  De De Pasquale resumed regular treatment of Mr Rana in 1998.  He then diagnosed Mr Rana as suffering from a ‘chronic delusional disorder persecutory type’, which Mr Rana continued to attribute to abuse and discrimination in his service with the Australian Army.  That report did not address Mr Rana’s fitness or otherwise for work or to remain in the Australian Army at the time of his discharge.

(h)                Dr L Hoff, psychiatrist, dated 13 March 1985, to Department of Defence also concerning his compensation claim.  Dr Hoff saw Mr Rana first on 12 August 1981.  Over a period of three weeks from that time, Mr Rana became ‘much more settled’.  He had been hospitalised for assessment of urological problems.  Dr Hoff regarded Mr Rana as suffering from a reactive depression for cultural and domestic reasons and the fact of his migration to Australia, and possibly from some discrimination in the Army.  He did not then assess invalidity to maintain Army service.

33                  Mr Rana’s letters to the investigator referred to his treatment under Dr Hoff.  He provided a copy of the 1988 AAT decision.  He referred to the medical evidence given at that hearing.  He referred to medical evidence of Dr De Pasquale and of a Dr Davies which he said was given in a hearing before the AAT on 4 September 2003 (he said, in an application to revisit the 1998 AAT decision) and he referred to and enclosed various other medical reports.  He referred to his service history record. 

34                  The service history record details offences of failing to appear on parade on 5 January 1982, and being absent without leave and failing to obey a lawful command on 26 February 1982.  Mr Rana also received an ‘Administrative Warning for Discharge’ on 12 February 1982 for continued unauthorised absence from his place of duty, and for performing duties inefficiently.  I refer to that aspect of the record as it was the only part to which Mr Rana drew my attention during his submissions.  The record also includes a report of Dr Hoff dated 9 March 1989.  So far as that report refers to Mr Rana’s condition at around the time of his retirement, it describes Mr Rana as ‘suffering from reactive depression and problems of acculturalisation’, and that Dr Hoff made an effort to assist with supportive psychotherapy.  It does not expressly address whether, at the time of his retirement, Mr Rana was unfit for service by reason of physical or mental incapacity.  The report also contains the reports of Dr Kutlaca and Dr De Pasquale referred to above, and a report of Dr Goss, dental surgeon, dated 13 February 1987.  Dr Goss’ report does not address Mr Rana’s capacity to work at about the time of his retirement.  The service history report also contains the statements obtained by the Military Police concerning Mr Rana’s allegations of racial discrimination whilst in the Army.

consideration

35                  In my view that material does not indicate that the delegate failed to accord procedural fairness to Mr Rana in connection with the making of the decision.

36                  In Kioa v West (1985) 159 CLR 550 at 587 Mason J said:

‘The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.  But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.’

The delegate, through the investigator, gave Mr Rana the opportunity to produce such information and material as he considered appropriate.  Mr Rana took up that opportunity, including adducing the extensive material referred to above.

37                  The investigator also sought the medical opinion of Dr Miller.  That was clearly an appropriate thing to do.  None of the medical evidence otherwise made available from the service history record or provided by Mr Rana addressed specifically the question whether Mr Rana was or may have been eligible for retirement in July 1982 on the grounds of physical or mental incapacity.  Dr Miller’s reports were then provided to Mr Rana, and he was given an opportunity of responding to them.

38                  There is nothing in the brief, or in the other material now before the Court, which indicates that the delegate, or the investigator, conveyed to Mr Rana that Mr Rana would be given a further opportunity to be heard before the delegate.  In my view, it was clear that the investigator, on behalf of the delegate, was the person collating the information relevant to the delegate’s decision and it was at that stage that Mr Rana was entitled to put such material as he wished to put in support of his application, and be given the opportunity to comment upon other material of significance which the investigator had procured.  As discussed above, that is what happened.  Mr Rana was given the opportunity by the investigator to put material to the investigator, and he did so.  That material was included in the brief which the delegate considered.  Mr Rana was also given the opportunity to comment upon the other material which the investigator had procured, in particular the reports of Dr Miller.  Again, Mr Rana made some submissions about those reports.  His submissions were included in the brief considered by the delegate.  The report of Dr Jha and the decision of the AAT in 2003 to which Mr Rana referred in his submissions were not put before the Court, and (so far as the material goes) were not before the delegate.  Even if they were, there is no material now before the Court to indicate that their contents were such as to strengthen the contentions of Mr Rana on this general ground of review.

39                  The nature of Mr Rana’s claims about his entitlement to be heard indicate, in my view, that they go beyond that which the law provides.  He was given the opportunity to make submissions and to comment on possible adverse material.  Those submissions were before the delegate.  There is nothing in the DFRDB Act which then entitles him to make oral, as distinct from written submissions, to the delegate.  There is nothing in that Act which entitles him to cross-examine the decision-maker.  The delegate was entitled to have regard to medical evidence to assist him in making his determination, as the issue involved consideration of issues including medical issues:  Catton v Chief of Army [2003] FMCA 275 at [26].  Contrary to his contention, Mr Rana was given the opportunity to comment to the delegate upon the reports of Dr Miller.  He did so.  Those comments were included in the brief considered by the delegate.

40                  For those reasons, I do not consider that the complaint of breach of the rules of natural justice in connection with the making of the principal decision, or in connection with the making of the second decision, is made out.

41                  The claims of Mr Rana that the making of the decision involved an improper exercise of discretion by the delegate must also be rejected.  The issue which the delegate had to address involved an assessment of whether, on the information available to the delegate, grounds existed on which Mr Rana could have been retired for physical or mental incapacity to perform his duties at the date of his retirement, namely 13 July 1982.  As the recital of the medical evidence before the delegate reveals, the only doctor who had primary knowledge of Mr Rana’s condition at that time was Dr Hoff.  He did not directly address that issue in the evidence which was before the delegate.  The other evidence of doctors who had examined Mr Rana later in time also did not directly express an opinion as to Mr Rana’s fitness or otherwise to perform his duties as at the date of his retirement.  As the issue to be decided by the delegate required an assessment of the available material, and as that assessment involved a medical issue, it was appropriate for the delegate, initially through the investigator, to procure medical information on that question.  That was the content of Dr Miller’s reports.  It was not irrelevant to the determination of the delegate.

42                  It is a matter for the delegate as to the weight to be attached to particular evidence.  There is nothing to indicate that the delegate did not take into account any of the material submitted to him, including that submitted by Mr Rana.  Mr Rana in his submissions strongly urged that he had been absent without leave because of his incapacity to perform his duties.  That was a view which he expressed in submissions which were before the delegate.  There is nothing to indicate that the delegate did not give consideration to those claims, even though the delegate was not satisfied in terms of s 37 of the DFRDB Act that grounds existed on which Mr Rana could have been retired for physical or mental incapacity.  There is also nothing to indicate that the delegate failed to have regard to all of the material in the brief including the 1988 AAT decision, and his service records.

43                  A decision by an administrative decision-maker may be set aside if it was so unreasonable that no reasonable person could have made it.  Mr Rana clearly vehemently believes that Dr Miller’s reports are erroneous, and that the material before the delegate including the 1988 AAT decision and the other medical evidence was all one way.  As I have sought to indicate by my analysis of the 1988 AAT decision and of the other medical evidence, none of that material (other than the reports of Dr Miller) directly addressed the capacity of Mr Rana to perform his duties at the time of his retirement on 13 July 1982.  It is not for the Court to form its own view on the question which the delegate was required to address, or as to the weight which the Court might have placed upon particular pieces of evidence.  The role of the Court is to determine whether the decision was made in a way which contravenes a provision of the ADJR Act.  As the evidence emphasised by Mr Rana does not directly address his capacity to perform his duties at the relevant time, and in the light of the reports of Dr Miller and (as his report concerns relatively contemporaneous events) of Dr Hoff, in my view, the contention that the delegate’s decision was so unreasonable that no reasonable person could have made it must fail.

44                  There is no material to support the contention that the decision of the delegate was made in bad faith.  There is no evidence that the delegate was forced to a prompt decision by some direction of the AAT and so determined to make an adverse decision whatever the evidence.  Even if the threatened or actual proceedings in the AAT by Mr Rana (to which he referred in submissions) led to the speeding up of the brief from the investigator, there was no delay by the delegate then in making the decisions the subject of these proceedings.  The brief is dated 3 April 2005.  The decision of the delegate was made two days later.  Nor is there any foundation for thinking that the delegate did not carefully consider the material in the brief.  The reasons for decision indicate to the contrary.

45                  I have carefully considered whether the delegate erred in law in making the decision.  The refined nature of the question which the delegate is required to address under s 37 of the DFRDB Act is explained in Britt, as set out in [5] above.  It is not the role of the delegate to decide whether in fact Mr Rana could have been discharged because of physical or mental incapacity to perform his duties.  The role is to determine whether grounds existed on which he might have been so retired.

46                  The delegate has correctly identified the question which he was required to address in the first and third paragraph of his reasons for decision.  He addressed the medical evidence, in particular that of Dr Hoff, to see whether it could support the claim that Mr Rana was unfit to perform his duties by reason of his condition.  He carefully assessed the service history report.  He indicated an awareness of difficulties Mr Rana had during his Army service.  Although the penultimate sentence of his decision might suggest that the delegate was looking to whether in fact Mr Rana could have been discharged because of incapacity (rather than whether grounds existed on which he might have been so discharged), I do not think a proper reading of the decision overall, including that sentence, indicates that he made such an error.  It is a conclusion in the light of the evidence to the effect that there is no sound basis for thinking that grounds existed upon which Mr Rana could have been discharged because of incapacity to perform his duties.  In context, it reflects a consideration directed to the question which the delegate has elsewhere correctly identified and addressed.  I note that, at one point, the delegate refers to the view that Mr Rana may have suffered from an aggravation of a psychiatric condition as a result of his Army service, but not to the extent to warrant discharge.  That does not indicate that the delegate erred by addressing work caused by aggravation only.  It indicates simply that the delegate was aware of Mr Rana’s medical condition at the time of his discharge, and leading up to it, but did not think that particular evidence could demonstrate incapacity to perform his duties.  It was but a step in the delegate’s process of reasoning.

47                  In my view, the decision did not involve any error of law on the part of the delegate.  He addressed the right question.  The appropriate inquiries were undertaken by the investigator, including through Mr Rana.  It was not inappropriate to have regard to Dr Miller’s reports.  The Evidence Act does not apply to the delegate in the making of his decision.  The reasons for decision are sufficient to expose the delegate’s thinking leading to the conclusion which he reached.  The real criticism of the delegate’s reasons in Mr Rana’s submissions was that Mr Rana disagreed with them.  It was not that they did not sufficiently expose the reasons for the principal decision.

48                  Accordingly, in my judgment, Mr Rana has failed to make out that either the principal decision or the second decision was the result of reviewable error on the part of the delegate.  Each application should be dismissed with costs.

Associate:

Dated:              12 September 2005