FEDERAL COURT OF AUSTRALIA
Spaleta v Secretary, Department of Social Services [2024] FCA 916
ORDERS
Appellant | ||
AND: | SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
1 In 2006, the appellant, Ms Spaleta, opened a lingerie store in Brighton, Victoria. In the years that followed, she was apparently exposed to asbestos and some kind of toxic mould that was present in the building. That exposure led to her suffering a range of medical problems. In May 2011, she vacated the premises and ceased working; but she has continued to suffer from the effects of her exposure. Those effects apparently include:
(1) a respiratory infection and/or allergic condition; and
(2) panic attacks described as including, from time to time, loss of consciousness (which may have resulted in other injuries to her arm and foot), screaming, and a loss of capacity to breathe or breathe effectively.
2 On 24 November 2015, and in consequence of her subjection to those conditions, Ms Spaleta applied to the Commonwealth agency known as Centrelink for a type of social security benefit known as a “disability support pension” (or “DSP”). A DSP provides income support payments to a person who has a physical, intellectual or psychiatric impairment, and who meets certain other criteria.
3 On 16 May 2016, Centrelink rejected Ms Spaleta’s DSP claim (the “Decision”). Thereafter, the following events transpired, namely:
(1) on 12 August 2016—and at Ms Spaleta’s request—the Decision was referred to an authorised review officer within Centrelink (the “Authorised Review Officer”);
(2) on 1 October 2016, the Authorised Review Officer affirmed the Decision;
(3) on 30 December 2016, Ms Spaleta applied to the Administrative Appeals Tribunal (the “AAT”) for a review of the Decision on its merits;
(4) on 4 April 2017, a hearing was held by the Social Services & Child Support Division of the AAT, which that day affirmed the Decision (I shall refer, hereafter, to that affirmation as, the “First AAT Decision”);
(5) on 9 June 2017, Ms Spaleta applied to the General Division of the AAT for a review of the First AAT Decision;
(6) that application for review was the subject of a hearing before the AAT on 28 February 2018 (hereafter, the “AAT Hearing”); and
(7) on 18 May 2018, the General Division of the AAT affirmed the First AAT Decision (hereafter, the “Second AAT Decision”).
4 By an amended notice of appeal from a tribunal dated 15 June 2018 (hereafter, the “Application”), Ms Spaleta moves the court for relief in various forms, including the setting aside of the Second AAT Decision, a declaration that she qualified for the DSP from 24 November 2015, and the payment to her of arrears as calculated from that date.
5 In support of her application, Ms Spaleta relied upon three affidavits: the first made on 20 March 2019, the second on 9 July 2021 and the third on 15 July 2021. All were read into evidence without objection. The respondent opposes the granting of the relief for which Ms Spaleta moves and, to that end, relies upon (and read into evidence) an affidavit sworn on 18 January 2019 by his solicitor (or, perhaps, the former solicitor of his predecessor), Mr Nam Nguyen.
6 For the reasons that follow, the Application should be dismissed. Ms Spaleta should pay the respondent’s costs.
THE STATUTORY FRAMEWORK
7 Section 23(1) of the Social Security Act 1991 (Cth) (the “SS Act”) contains the following definitions:
23 Dictionary
(1) In this Act, unless the contrary intention appears:
…
income support payment means a payment of:
…
(b) a social security pension; or
….
social security payment means:
(a) a social security pension; or
…
social security pension means:
…
(b) a disability support pension; or
…
8 Ms Spaleta’s claim for a DSP concerned a social security payment, which is a kind of income support payment. The eligibility criteria for the DSP is (and was) governed in part by s 94 of the SS Act, which relevantly provides (and provided) as follows, namely:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
…
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
…
…
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
…
9 The Impairment Tables to which s 94(1)(b) and s 94(3B) refer are the subject of s 26 of the SS Act, which provides (and provided):
26 Impairment Tables and rules for applying them
Impairment Tables
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
10 The Impairment Tables in force at the relevant time were found within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth). Section 6 of the relevant Impairment Tables assumes some significance in this matter. It provided as follows, namely:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c)…a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
11 In order that Ms Spaleta might qualify for a DSP, then, she must first be “assigned” an impairment rating; and that, in turn, requires that one or both of her conditions be permanent (that is, be fully diagnosed, fully treated, and fully stabilised), and that the impairment or impairments that result from one or both of them be more likely than not to persist for more than two years. If those preconditions are met, the various tables within the Impairment Tables assign points to Ms Spaleta’s conditions such that an impairment rating for each impairment is duly calculated.
12 Ordinarily, a social security payment becomes payable on a “start day” calculated according to provisions of the Social Security (Administration) Act 1999 (Cth) (hereafter, the “Administration Act”). The following sections of the Administration Act are pertinent for present purposes:
41 Commencement
(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.
42 Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
13 Schedule 2 to the Administration Act provides that, subject to certain exceptions not presently relevant, the “start day” in relation to a claim for a social security payment is the day on which the claim is made. Item 3 of sch 2 provides (and provided) as follows, namely:
3 Start day—general rule
(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.
…
14 Thus, in the normal case, a social security payment becomes payable on the day on which the claim is made. There are, however, some qualifications. One is set out in item 4 of sch 2 of the Administration Act, which relevantly provides (and provided):
4 Start day—early claim
(1) If:
(a) a person…makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…
15 In considering Ms Spaleta’s application for a review of the First AAT Decision (above, [3(5)]), the AAT’s task was to determine afresh whether the Decision was the correct or preferable decision on the material before it: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314-315 [98] (Hayne and Heydon JJ). Inherent in that task was a need to determine whether Ms Spaleta was eligible for a DSP at any point between 24 November 2015 (when she made her claim) and 24 February 2016 (which was 13 weeks later—hereafter, the “Qualification Period”).
THE SECOND AAT DECISION
16 In the written reasons that it published in support of the Second AAT Decision, the AAT identified as follows the main issue for its consideration (references omitted):
The Respondent at all relevant times contended that the impairments arising from the medical conditions suffered by the Applicant cannot be assigned a total impairment rating of 20 points or more under the Impairment Tables. Therefore, she does not satisfy the provisions of s 94(1)(b) of the Act.
Therefore the determinative issue in this Application is whether, during the qualification period, the Applicant had a rating of 20 points or more under the Impairment Tables.
…
The Tribunal can only assign an Impairment Rating to an impairment if:
(a) the Applicant’s condition causing that impairment is “permanent”; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The Applicant’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”, the following must be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
A condition is “fully stabilised” if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
17 In those same reasons, the AAT identified the evidence that it had to consider in determining Ms Spaleta’s claim (references omitted):
The following evidence was adduced during the course of this hearing:
(a) The T documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;
(b) A Psychological Assessment report prepared by Ms Nicole Plotkin, psychologist, dated 12 February 2018;
(c) An “Analytical Report” produced by Jill Lark of “Mouldlab” on 3 July 2013;
(d) An “Asbestos Identification Analysis – 17 Church Street, Brighton” prepared by Noel Arnold and Associates dated 25 February 2013; and
(e) The oral evidence of the Applicant.
In the T documents there were several medical reports which were referred to by both parties to this application throughout the course of the hearing…[namely]:
(a) Report by Dr Nathan Serry, consultant psychiatrist dated 25 September 2015 addressed to Vincent Ryan Solicitor;
(b) Report by Dr Richard Prytula, consultant psychiatrist/psychoanalyst dated 10 October 2016; addressed to Allianz Australia Workers Compensation (Victoria) Ltd;
(c) Report of Dr Alan Segal, dermatologist dated 24 October 2016; addressed to Sarah Gill, Case Manager, Allianz; and
(d) Dr Jonathan Burdon, respiratory physician dated 19 December 2016 addressed to Allianz Australia Workers Compensation (Victoria) Ltd.
…
The Applicant’s treating general practitioner, Dr Colin Leong, provided several medical certificates which are also contained in the T documents and which diagnosed the Applicant as suffering from depression and mould exposure. The contents of such medical certificates will also be considered further in these reasons.
18 The Second AAT Decision contains a footnote that pertains to the report of Ms Plotkin (referred to in the preceding extract—hereafter, the “2018 Plotkin Report”), which refers to a previous report also prepared by Ms Plotkin in 2016 (the “2016 Plotkin Report”). The footnote reads (errors original):
It should be noted that this report of Ms Plotkin was prepared following the Respondent Department sending to the Applicant’s husband (who at all times to this application acted as her representative and at the hearing as her advocate) a letter of 13 November 2017 with an accompanying “Dear Doctor” letter and the Impairment Tables number 1, 5 and 14. The response of Ms Plotkin was to address each of the specific questions numbered 1 to 8 contained in the “Dear Doctor” letter. Additionally, it must be recalled that Ms Plotkin provided a “Psychological Report” with respect to the Applicant for Shine Lawyers on 9 September 2016. This first report from Ms Plotkin was referred to throughout the course of the hearing and is found on pages 29 to 31 of the T documents.
19 Considering the report prepared by Dr Serry (hereafter, the “Serry Report”), the AAT noted:
…Dr Serry further opines that given the severity of the Applicant’s condition and nature of her symptoms she should be under the care of a treating psychiatrist for the foreseeable future. Critically, he further observes that given the severity of the Applicant’s condition and its duration as at [25 September 2015], she would require treatment on an ongoing basis, initially weekly and then potentially monthly. The Applicant submitted through her husband that on a proper reading of this aspect of Dr Serry’s report he was, in effect certifying that her condition had stabilised. He further submitted that such report indicated that the Applicant is acutely ill with a relatively small chance of improvement and because of this the condition was stable and fully treated as at that date. The Tribunal finds that to construe the language used by Dr Serry in this way is to strain it and place a meaning on it that a proper reading could not provide. As noted earlier in these reasons it is unfortunate that the specific questions asked of Dr Serry have not been provided so as to give more accurate context to his comments. However, it does not seem possible to reach a conclusion that where he states the Applicant will require treatment on an ongoing basis that her condition is fully stabilised and fully treated in the relevant sense as required by the s 94 [of the SS Act] requirements and as contended by her.
20 The Second AAT Decision also considered the report prepared by Dr Prytula (hereafter, the “Prytula Report”) as follows (references omitted):
The report of Dr Prytula, a psychiatrist, was also in evidence. He concludes that she has developed a secondary adjustment disorder with mixed anxious and depressed mood having arisen as a consequence of her physical condition and her concerns over it. In response to a question as to the expected duration of the incapacity, he concluded that he was unable to project a timeline for return of any capacity and it would very much likely depend on the outcome of the current litigation. He further stated in response to a question:
• What is required to achieve a full return to work?
Full return to work would require an improvement in her condition and symptoms and resolution of the current litigation process.
These responses are not consistent with a condition that is fully treated and stabilised and demonstrate that resolution of the litigation is likely in his opinion to lead to relief from and/or improvement of the current incapacity. Once again these responses are not consistent with the s 94 [of the SS Act] requirements being satisfied.
21 In relation to Ms Spaleta’s mental health issues, the AAT had occasion to consider the medical certificates issued by Dr Leong (hereafter, the “Leong Certificates”), and Ms Spaleta’s use (or non-use) of medication. It observed:
…The Applicant stated that she had been taking two types of medication prescribed by Dr Leong for some time. She stopped taking them due to suffering side-effects including weight gain. It is surprising in the circumstances that as her condition deteriorated and the medication prescribed by her general practitioner was having such side-effects, that she did not seek the assistance of a mental health professional such as a psychiatrist to further explore the possibilities of being prescribed some other form of medication that may not have had the adverse side-effects that she complained of. This is a reasonable avenue to pursue that was open to her during the qualification period which she had not availed herself of. In this context once again it seems that there is insufficient evidence for the Tribunal to reach a conclusion that the Applicant’s anxiety and depression have been fully treated and fully stabilised in the relevant sense required by the Impairment Tables.
22 As to the state of Ms Spaleta’s mental health, the AAT concluded that Ms Spaleta “does not attract a rating under [the Impairment Tables].”
23 The AAT then turned to consider Ms Spaleta’s respiratory infection and allergic reaction. In relation to the report prepared by Dr Segal (hereafter, the “Segal Report”), the AAT made the following observations:
The report of Dr Segal, dermatologist on 24 October 2016 reveals that he conducted an examination of her and identified the relevant conditions [namely, a scaling eczematous eruption within the right hairline, areas of increased pigmentation on the cheeks and various parts of the neck, erythematous areas on the anterior neck, increased pigmentation on the left posterior shoulder, and irritable sensations on her skin]. He concluded that her current problems were as a result of contact over an extensive period to the mould she was exposed to in the workplace. He further stated that the length of her incapacity cannot be determined. He recommended that the Applicant “consult an allergist for skin prick testing to define the exact mould or fungal allergen” that was causing her problems and “for possible desensitization to be carried out”. He also recommended treatments with topical or oral steroids or other immunosuppressants that might be considered by an allergist…
24 The AAT also considered Dr Burdon’s report (hereafter, the “Burdon Report”), observing:
Dr Burdon, a respiratory physician, in his report of 19 December 2016 noted that the clinical history provided by the Applicant to him was consistent with mould exposure and a general allergic response to such moulds. He stated that she continues to suffer from allergic illness related to mould exposure. When asked as to the timeframe for resolution of the injury he stated that it is always difficult to be certain of the timeframe by which there will be a complete resolution of symptoms. He states that he is of the opinion that it is likely her symptoms will continue long-term. However, he does note that she continues to suffer from significant psychological conditions requiring therapy and she has not fully recovered from her allergic illness. …
25 As to Ms Spaleta’s respiratory infection and allergic reaction, the AAT concluded that:
[T]he toxic mould exposure and consequent respiratory infections and allergic reactions suffered by the Applicant had not been fully treated or stabilised within the relevant sense required during the qualification period. As such, no impairment rating can be assigned.
26 The AAT held that the application for review must fail because, amongst other reasons, it was not possible to assign a rating under the Impairment Tables in respect of Ms Spaleta’s state of mental health or her respiratory and allergic reaction conditions.
27 Despite this, the Second AAT Decision sought to address the allocation of impairment points under Table 5 “for completeness”, being the table titled “Mental Health Function”. After considering Ms Spaleta’s various conditions, the AAT assigned (or said that it would have assigned) her 10 points in relation to her mental illness.
28 The AAT also gave some consideration to whether Ms Spaleta had a continuing inability to work (albeit that that, too, was not necessary to decide given the conclusions reached about her conditions). After referring to various reports that suggested that she enjoyed at least some capacity for work, the AAT concluded that Ms Spaleta had failed to establish that she laboured under a continuing inability to work for the purposes of s 94(1)(c) of the SS Act.
THE PRESENT APPLICATION
29 Ms Spaleta’s present application is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter, the “AAT Act”), which relevantly provides that:
Appeal on question of law
(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
30 What is or is not a “question of law” is plainly of some significance. In Onassys v Comcare [2022] FCA 90, Abraham J observed (at [19]-[21]):
19 Whether a notice of appeal contains a question of law is an issue of substance and not form. In cases of doubt, the Court will consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, the Tribunal’s reasons for its decision and, having considered all those matters, satisfy itself that there is in fact a question of law: [Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315] at [94]. If the question, properly analysed, is not a question of law, no amount of formulary can make it into a question of law: Haritos at [92].
…
21 The fact that an appellant is unrepresented is a relevant matter to be taken into account: see for example, Chen v Secretary, Dept of Social Services [2019] FCA 1155 at [35]; Lim v Secretary, Dept of Education, Employment and Workplace Relations [2008] FCA 1058 at [13]. The notice of appeal should be read fairly and as a whole, particularly in cases involving unrepresented parties: Haritos at [104], citing Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77]. Where as a matter of substance a question of law exists, the Court has a procedural discretion to grant leave for an amended notice of appeal to be filed: Haritos at [107]. In appropriate cases, the Court may reframe the questions relied upon so as to give precision to an inelegantly specified question of law, however care must be taken, especially in the face of an objection to competency, not to “visit on a respondent party a judicially attractive question of law which the notice does not fairly raise”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11]; Rana v Repatriation Commission [2011] FCAFC 124 at [14].
31 By her notice of appeal, Ms Spaleta identifies four grounds upon which she alleges that the AAT erred in law, namely:
1. arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, that the [appellant]’s mental health condition was not fully treated and stabilised in [the] face of the report of Dr Nathan Serry [containing the] Certificate of Assessment of Degree of Impairment Arising From Stabilised Injury
2. arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, in the face of the evidence before it and expert report of Dr Burdon that there was a prospect of improvement or recovery, including from treatment of the [appellant]’s allergic illness and that the condition was not fully treated and stabilised
3. taking into account irrelevant considerations in assessing a rating of 20 points or more under the impairment tables, that [fell] outside the relevant timeframe, being as at the date of the claim or within 13 weeks of lodging such claim, the relevant period being from 24 November 2015 to [24] February 2016
4. arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, in the face of the evidence before it, that the [appellant]'s conditions did not attract a rating of 20 or more points under the impairment tables and a continuing inability to work
32 That same document also identifies four questions of law that Ms Spaleta says arise for the court’s consideration. It is convenient to replicate them in full, namely:
Whether;
(a) it was open to the Tribunal on the evidence and material before it to find that the [appellant]’s mental health condition was not fully treated and stabilised;
(b) it was open to the Tribunal on the evidence and material before it, to come to the conclusion that the [appellant]’s allergic illness during the qualification period was not fully treated or stabilised;
(c) the Tribunal took into account irrelevant considerations in assessing and making its determination that the [appellant]'s conditions did not attract a rating of 20 points or more under the Impairment Tables;
(d) the Tribunal took into account irrelevant considerations in assessing and making its determination that the [appellant] did not have a continuing inability to work
33 The present application has had an unfortunately drawn out history. It was initially listed for hearing in September 2019; but that hearing was vacated at Ms Spaleta’s request, apparently so that she might organise some legal representation. In January 2020, the hearing was rescheduled but, thereafter, the limitations of the covid-19 era intervened. The parties were advised that the rescheduled hearing could take place virtually; but Ms Spaleta requested that it be postponed until such time as it could transpire in person. The court indulged that preference.
34 The matter was then listed a third time for hearing on Monday, 19 July 2021, when it appeared that it would be possible to hear it in person. Alas, Melbourne was plunged into its fifth “lockdown” on Friday, 16 July 2021 and it was necessary to vacate that hearing date as well. Thereafter, the matter appeared to fall from collective consciousness until early 2023, when it was resuscitated at the court’s initiative. At a case management hearing conducted on 10 February 2023, it was referred for mediation before a registrar.
35 That mediation was unsuccessful and the matter was listed yet again for hearing on 14 March 2024. That hearing went ahead as scheduled. Ms Spaleta appeared on her own behalf (accompanied by her husband, Mr Bob Spaleta, who had represented Ms Spaleta at the AAT Hearing). Ms Latta appeared on behalf of the respondent.
36 During her oral submissions to the court, Ms Spaleta sought leave to file and serve some supplementary written submissions. She explained that it was necessary for her to do so because there were authorities that she wished to find that were “quite relevant” to her case. Although unorthodox, that course was not opposed; and the court was disposed to grant the indulgence that was requested. Both parties were given leave to file supplementary written submissions and both did so.
37 In her supplementary written submission, Ms Spaleta sought to impress upon the court that the reasons that underpin the Second AAT Decision are insufficient, or otherwise not of the standard required by the AAT Act. In that sense, she sought to press a point perhaps not apparent from her originating application. It is summarised by the following extract from her supplementary written submission, namely (errors original):
It is submitted the Tribunal failed to deliver a Decision that meets the statutory requirement under s 43(2B) of the Act and which properly informs the reader of the Decision of the documentary evidence brought before it, viva voce evidence given at hearing and addresses articulated submissions of substance and relevance made by the applicant, all of which apply to material issues to be determined in the proceeding and to which relevant statutes and statutory definitions (per s 94 of the Social Security Act 1991 and the Impairment Tables) are required to be applied. …
38 In her supplementary written submission, Ms Spaleta also made a bald assertion that she was denied natural justice. In the absence of any particulars to substantiate that suggestion, nothing further need be said of it.
39 Also in her supplementary written submission, Ms Spaleta made reference to (and relied upon) a suite of authorities to make good the legal propositions upon which her assertions are founded. It is clear that she commands an impressive understanding of the relevant law, and the respondent—rightly, with respect—does not materially dispute what she asserts. The controversy in this case lies in the application of legal principle to the facts.
SUMMARY OF MS SPALETA’S CASE
40 As the analysis above shows, the following questions of law arise (or appear to arise) for the court’s consideration, namely:
(1) whether the AAT took into account irrelevant considerations by considering reports that were issued outside of the qualification period (the “Irrelevant Considerations Question”);
(2) whether the AAT wrongly concluded that Ms Spaleta’s mental health condition was not fully treated and stabilised (the “Mental Health Condition Question”);
(3) whether the AAT wrongly concluded that Ms Spaleta’s respiratory or allergic illness was not fully treated and stabilised (the “Respiratory or Allergic Illness Question”);
(4) whether the AAT wrongly concluded that Ms Spaleta’s conditions did not attract a rating of 20 points under the Impairment Tables (the “Rating Question”);
(5) whether the AAT wrongly failed to conclude that Ms Spaleta has a continuing inability to work (the “Continuing Inability To Work Question”); and
(6) whether the reasons that underpinned the Second AAT Decision met the requirements of s 43(2B) of the AAT Act (the “Section 43(2B) Question”).
THE IRRELEVANT CONSIDERATIONS QUESTION
41 Ms Spaleta contends that the AAT improperly took account of reports that were produced after the conclusion of the Qualification Period. As those reports referred to potential treatments for her conditions, she submits that the AAT was wrongly led to the conclusion that they were not fully treated and stabilised. Ms Spaleta maintains that, had the AAT not improperly considered the reports that were produced after the conclusion of the Qualification Period, it may have concluded that her conditions were fully treated and stabilised, which in turn may have led to a different conclusion about her eligibility to receive the DSP.
42 Further, Ms Spaleta submits that, read together, s 94 of the SS Act and the Impairment Tables demonstrate a legislative intention that long-standing diagnosed conditions shouldn’t be precluded from being characterised as “fully treated” and “fully stabilised” merely because further examination by another medical practitioner has suggested some other diagnosis or other treatment.
43 Ms Spaleta relies on the observations of Woodward J (with whom Northrop J relevantly agreed) in McDonald v Director-General of Social Security (1984) 1 FCR 354 (hereafter, “McDonald”), 360:
In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future. (Cf. Re Tiknaz and Director-General of Social Services (1981) 4 A.L.N. No. 19.)
44 The respondent submits that the AAT was not precluded from considering aspects of reports that were relevant to the state of Ms Spaleta’s health during the Qualification Period. That is so, he submits, regardless of when the reports were prepared or finalised. Reliance was placed on the following observations of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 (hereafter, “Harris”), 253 [1]:
…It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
45 It is uncontroversial that the two reports—the Segal Report and the Burdon Report—were prepared after the Qualification Period concluded. The Segal Report was based on a clinical assessment that was made on 24 October 2016, eight months after the conclusion of the Qualification Period. The Burdon Report was issued based on a clinical assessment that occurred on 14 December 2016, between nine and ten months after the conclusion of the Qualification Period.
46 As the reasons for the Second AAT Decision (above, [23]) make clear, Dr Segal had assessed Ms Spaleta’s conditions as having stemmed from “contact over an extensive period to the mould she was exposed to in the workplace”. Dr Segal correctly identified that that workplace was the one at which Ms Spaleta worked between 2006 and 2011, and that her symptoms arose from 2009. There is nothing to suggest that Dr Segal considered any condition that arose, or recommended any new treatment that had become available, after the Qualification Period had concluded. Although plainly based upon an assessment made after the Qualification Period, the Segal Report sought to (and did) offer insights into the nature of Ms Spaleta’s conditions prior to and during the Qualification Period. The AAT was entitled to consider it on that basis and I do not accept that, by doing so, it committed any error of law that would entitle Ms Spaleta to the relief that is now sought.
47 Similar observations may be made about the Burdon Report. It is apparent from what is replicated above (at [24]) that Dr Burdon considered Ms Spaleta’s historical diagnoses and observed that she “continue[d]” to suffer from allergic illness. The AAT did not rely on the Burdon Report for the purposes of assessing any post-Qualification Period change in her health. Rather, it took account of the report insofar as it cast light on Ms Spaleta’s position prior to and during the Qualification Period. It was entitled to do so.
48 Although the submission was advanced with considerable care and skill, I do not consider that Ms Spaleta can establish any error of law on the part of the AAT insofar as it was minded to take account of either report. On the contrary, its consideration of them was orthodox.
THE MENTAL HEALTH CONDITION QUESTION
49 Ms Spaleta submits that the Serry Report confirmed that her mental health impairment is (and, during the Qualification Period, was) severe, fully diagnosed, fully treated, and fully stabilised, and that it had persisted for more than two years after initially being diagnosed. On those bases, the report was said to stand as proof that her condition is and was permanent. Particularly was that said to be so in light of the Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury that was attached to the report (hereafter, the “Certificate”). Ms Spaleta submits that, on the totality of the evidence—and, more particularly, in light of the Serry Report and the Certificate—it was not open, or not reasonably open, to the AAT to find otherwise than that her condition was fully stabilised and fully treated.
50 Ms Spaleta submits that the AAT “ignored” the Certificate, as evidenced in part by the fact that the issuing of the Certificate necessitated a threshold level of injury of 15% (therefore, it is implied, her level of injury must have been at least 15%). The respondent replies that the Second AAT Decision did not “ignore” the Certificate, as the AAT explicitly confirmed that the Serry Report—which attached the Certificate—was “in evidence” and the information in the Certificate was replicated in the Serry Report itself. The respondent contends that the AAT was correct not to consider a percentage of impairment that had been calculated under the Wrongs Act 1958 (Vic) (hereafter, the “Wrongs Act”) (as opposed to the SS Act). Further, the respondent says that the AAT was not under any obligation to isolate every issue of fact (in this case, being what meaning if any should be drawn from the existence of the Certificate) and record a specific finding in respect of each: Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368, 370 (Foster J).
51 I agree. It was not necessary for the Second AAT Decision specifically to note the existence of the Certificate in circumstances where the substance of it was located within the Serry Report, and the conclusion that Ms Spaleta’s condition was “stabilised” was reached under an entirely different legislative regime. Furthermore, the AAT was not obliged to adopt the conclusion reached by Dr Serry.
52 Ms Spaleta further contends that it was not open to the AAT to conclude that the 2016 Plotkin Report and the 2018 Plotkin Report “do not support [Ms Spaleta’s] contention that she satisfies the s 94 [of the SS Act] requirements”, in circumstances where:
(1) the AAT had found that the 2018 Plotkin Report and the Serry Report reached the same conclusion (that Ms Spaleta suffered from chronic major depression and panic disorder); and
(2) the 2018 Plotkin Report had stated that her conditions “[had] stabilised and maintenance based counselling support [was] recommended”.
53 With respect, the respondent correctly identifies that Ms Spaleta’s submission is misconstrued because:
(1) Dr Serry and Dr Plotkin only reached the same conclusion as to diagnosis—not whether her condition was fully treated and stabilised;
(2) the 2016 Plotkin Report did, in fact, contain recommendations for further therapeutic support; and
(3) it was therefore open to the AAT to infer from Dr Plotkin’s reports that Ms Spaleta’s condition was not fully treated and stabilised.
54 Ms Spaleta also submits that it was not reasonably open to the AAT to find that there was no corroborating evidence (or sufficiently corroborating evidence) of the impairment produced that satisfies the definition of “[the] descriptors”, given the existence of the Certificate and what was said in McDonald, 360 (Woodward J, with whom Northrop J agreed—above, [43]).
55 Without context, the AAT’s use of the word “descriptors” is apt to confuse; but, on careful analysis, it is clear that the Second AAT Report is there referring to a table in the Impairment Tables—Table 15: “Functions of Consciousness”, which contains the two column headings “[p]oints” and “[d]escriptors”. While I accept Woodward’s J conception of the true test of permanence, I agree with the respondent that the Second AAT Decision proceeded upon an assessment of the functional impact from loss of or altered state of consciousness—whereas the Certificate dealt with impairment resulting from the more generalised psychiatric injury and symptoms. It cannot be said that the existence of the Certificate precluded the AAT from a finding that there was no corroborating (or sufficiently corroborating) evidence of functional impact from loss of or altered states of consciousness.
56 In her oral submissions, Ms Spaleta asserted that the Second AAT Decision contained a number of findings that were either not open, or not reasonably open, to be made. Ms Spaleta went to great lengths to document each alleged error, and there was some degree of overlap and repetition from her written submissions. It is sufficient, however, to refer to each of Ms Spaleta’s primary allegations made orally at the hearing, some of which require a degree of context to properly comprehend.
57 Pursuant to Ms Spaleta’s claim for DSP, the respondent had required her to be assessed on various occasions by a rehabilitation counsellor. In 2016, that assessment produced a report (hereafter, the “Job Capacity Assessment Report”). Ms Spaleta alleged that the Job Capacity Assessment Report had:
(1) failed to acknowledge or address the Certificate;
(2) failed to recognise that Dr Serry’s opinion as related in the Serry Report was that her psychiatric injury was stabilised; and
(3) incorrectly remarked that the Serry Report indicated that reasonable treatment may increase Ms Spaleta’s functioning.
58 The respondent, however, pointed out that the AAT relied on the Job Capacity Assessment Report only for completeness in an assessment of whether Ms Spaleta had a “continuing inability to work”. Even were that not the case, it was said that the AAT was entitled to prefer the opinions within the Job Capacity Assessment Report over other experts, and it was not an error of law for the AAT to adopt such a view (regardless as to whether the Job Capacity Assessment Report did or did not contain the alleged deficiencies identified by Ms Spaleta). I agree. The AAT was entitled to consider the Job Capacity Assessment Report and favour its conclusions, whether or not it addressed the Certificate or properly recognised Dr Serry’s opinion or made incorrect remarks. It is the AAT’s reasoning and conclusion that is here in focus, not the reasoning and conclusion of the Job Capacity Assessment Report.
59 The Serry Report considered, amongst other things, the extent to which further care was necessary for Ms Spaleta. Dr Serry’s opinion was that Ms Spaleta “should be under the care of a treating psychiatrist for the foreseeable future” but observed that the approximate cost of an hourly session was “of the order of $300.00 per hour”. Ms Spaleta argued that for someone in her financial circumstances this did not amount to a “reasonable cost” within the meaning of s 6(7)(b) of the Impairment Tables (or, by extension, amount to a “reasonable treatment” within the meaning of s 6(7) more generally), and that the Second AAT Decision failed to consider this point despite her (by way of examination-in-chief from her husband) having made submissions on it. To this, counsel for the respondent replied that this was never a submission that had been put to the AAT, and consequentially was not addressed in the Second AAT Decision.
60 Having considered the transcript of the AAT Hearing, I accept that submission. During the course of that hearing, Ms Spaleta referred to her poor financial situation; but there was never any obvious suggestion that the cost of the treatment to which Dr Serry referred was unreasonable. In the circumstances, the AAT was not obliged to make in its reasons any observation based upon s 6(7)(b) of the Impairment Tables.
61 Under the heading “THE CONTENTIONS OF THE PARTIES”, the Second AAT Decision outlined Ms Spaleta’s submissions to the AAT. The Second AAT Decision stated in part:
The submissions on behalf of [Ms Spaleta] centred around an analysis of the various medical reports that were in evidence. There was particular emphasis on the reports prepared by Dr Serry and Ms Plotkin. Much of those submissions concentrated on how such reports could be construed in terms of whether or not firstly, [Ms Spaleta’s] conditions had been fully treated and fully stabilised (the Respondent accepted that the conditions were fully diagnosed). Secondly, whether or not [Ms Spaleta] was suffering from a severe impairment, being an Impairment Rating of 20 points under the relevant Impairment Table.
62 Ms Spaleta said that, in fact, she did not make any such submissions and instead “referred to [the] exact wording as written by Dr Serry and Ms Plotkin”. Having reviewed the transcript of the AAT Hearing, in my view the Second AAT Decision did not unfairly characterise Ms Spaleta’s submissions. While it is true that she referred to the exact wording as she says, in my view she did so in an attempt to persuade the AAT to construe, accept and weight the relevant reports in a particular way.
63 Ms Spaleta also submitted that the AAT fell into error by refusing to accept into evidence the Certificate, in circumstances where the Certificate contained a medical opinion “not subject to any specific Act”, though she acknowledged the Certificate was issued “under” the Wrongs Act. The AAT did not refuse to accept the Certificate itself into evidence. To the contrary, it accepted the Serry Report.
64 Ms Spaleta also contended that, while the Second AAT Decision referred to Ms Plotkin’s responses to the “Dear Doctor” letter (see above, [18]) in its consideration of the 2018 Plotkin Report, the AAT nonetheless failed to consider the report’s content—that is, the Second AAT Decision failed to consider that Ms Plotkin had explicitly stated that Ms Spaleta’s psychiatric injury was fully treated and stabilised with a functional impact that would persist for more than two years from the starting date of the Qualification Period. She added that the 2018 Plotkin Report was issued on 12 February 2018, just some days shy of two years from the end of the Qualification Period, in circumstances where a condition is considered permanent if it is likely to persist for more than two years: Impairment Tables, s 6(4). Given that she had stopped working in 2011—and, as of the hearing before this court some 13 years later, was still unfit for work—she rhetorically questioned when her condition “becomes permanent” within the meaning of the Impairment Tables.
65 Ms Spaleta plainly does not agree with the findings made in the Second AAT Decision; but that does not suffice to establish that it proceeded upon any relevant want of consideration of the 2018 Plotkin Report. The Second AAT Decision explicitly refers to that report, contains a footnote explaining its context and notes when it was produced relative to the other evidence.
66 In the 2016 Plotkin Report, Ms Plotkin considered whether further therapeutic support might be needed. Ms Plotkin stated that Ms Spaleta “would benefit from [Eye Movement Desensitization and Reprocessing (EMDR)] trauma therapy”. In the 2018 Plotkin Report, Ms Plotkin added:
EMDR therapy could be helpful to help her deal with symptoms of PTSD. [Ms Spaleta] would need a lot more support to help her have the resources to be ready to cope with the processing that can occur between EMDR sessions. Also the success of EMDR therapy is also likely to be affected by her future uncertainty regarding her family's and her own health, it is not just a matter of helping [Ms Spaleta] to get over the past.
67 Ms Spaleta complains that, in her circumstances, EMDR could not reliably be expected to result in a significant functional improvement with a high success rate and low risk. Therefore, she said, EMDR could not meet the definition of a “reasonable treatment” as defined in s 6(7) of the Impairment Tables. Respectfully—and acknowledging that Ms Spaleta might well be right—I agree with the respondent that there was nothing before the AAT that ought to have compelled it to conclude that EMDR did not have a high success rate or anything other than low risk. It was open to the AAT to find that EMDR was not a reasonable treatment within the meaning of the Impairment Tables; but, equally, it was also open to find that it was. It was not an error of law for the AAT to find, as it did, that the availability of EMDR “[did] not support [Ms Spaleta’s] contention that she satisfies the s 94 requirements”.
68 Ms Spaleta also submitted that both the Serry Report and the Prytula Report observed that her prognosis was “guarded”. She argued that this finding meant that it was not open to the AAT to conclude that the psychiatric treatments proposed in those reports met the requirements of s 6(7) of the Impairment Tables because they could not “reliably be expected to result in a substantial improvement in functional capacity” nor have “a high success rate”. The respondent suggested that Ms Spaleta had assigned meaning to the word “guarded” that it ought not carry.
69 Dr Serry’s opinion (recorded in the Serry Report) was as follows, namely:
[Ms Spaleta’s] prognosis is guarded. She has a very significant psychiatric condition which has had substantial impact. There has been a marked deterioration in terms of her psychosocial functioning.
70 Dr Prytula’s opinion (recorded in the Prytula Report) was as follows, namely:
[Ms Spaleta’s] prognosis is guarded as the picture is one of extreme anxiety and decompensation without any apparent clarity in purpose in moving forward as seen in the lack of any respiratory function testing and respiratory treatment exploration.
71 Dr Serry and Dr Prytula appear to be using the word “guarded” to refer to any anticipated changes in Ms Spaleta’s condition, absent additional medical intervention. The opinions could not be understood as asserting that there were no reasonable treatments available to her at all.
72 Ms Spaleta further contended that the Second AAT Decision misrepresented her submissions to the AAT when it asserted that she had ceased taking her medications “due to suffering side effects including weight gain”. Rather, she argued, she had submitted to the AAT that she had stopped taking those medications because they had made her suicidal. That is a fair criticism. Ms Spaleta’s evidence was that she had been advised that other medication would cause weight gain; but that was not the reason that she stopped taking what she had been prescribed. Insofar as it held otherwise, the AAT’s reasoning is open to criticism. Nonetheless, nothing turned on that incorrect finding. It was open to the AAT to observe that it was reasonable for Ms Spaleta to pursue other forms of medications. Its conclusions about the nature of Ms Spaleta’s conditions were not attended by any error of law as alleged.
73 Ms Spaleta further submitted that it was unreasonable for the AAT to rely on some of the Leong Certificates, in circumstances where more contemporary medical reports were available. That submission cannot be accepted. It is a matter for the decision-maker, not the court, to consider all of the admissible evidence and determine the appropriate weight to be given to it: Leone v Minister for Home Affairs (2020) 277 FCR 526, 543 [41] (Davies, Steward and Jackson JJ).
74 In conclusion, Ms Spaleta argued that the AAT disqualified her for a DSP on the basis that, because psychiatric treatment was mentioned in the reports, her psychiatric injury was not fully treated and stabilised. That, she maintains, was contrary to the weight of the evidence. For the reasons outlined, that submission might well have much to commend it; but it does not establish any error of law sufficient to warrant relief in this court.
75 Ms Spaleta’s supplementary written submission, which in part expanded upon previous submissions and which I have therefore not replicated here, canvassed a number of further issues. Some require a degree of context.
76 The Serry Report contained an assessment of Ms Spaleta’s impairment “using the appropriate American tables for impairment assessment”, which was used “for the purposes of an action under the Wrongs Act”. That assessment involved classifying impairments into classes, where higher numbered classes represented greater levels of impairment. Dr Serry made an assessment of Ms Spaleta’s collective impairment “between Classes 2 and 3”, but had "rounded up” to Class 3 (which represented an impairment of 25%). Ms Spaleta submits that that assessment represented a “high level” of impairment and a “comparative indicator of the severity of [her] mental health condition”, and that that had been put to the AAT. But, she submits, the AAT failed to rely on that assessment, and also incorrectly referred to the Certificate as a “Certificate of Assessment of Degree of Impairment” (omitting the words “Arising from a Stabilised Injury”). Furthermore, she observes, at the AAT Hearing, the AAT had accepted her submission that the Certificate represented Dr Serry’s medical opinion that her mental health condition was stabilised. Thus, it was not open (or not reasonably open) for the AAT to then find as it did.
77 The respondent correctly identifies that Ms Spaleta’s complaints take issue with the AAT’s findings of fact. It is a matter for the AAT to make a finding as to whether or not Ms Spaleta’s mental health condition was fully treated and fully stabilised, and a finding to the contrary is amendable to correction only insofar as it was beyond what the evidence was capable of supporting: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390, 418 [91] (Hayne, Heydon, Crennan and Kiefel JJ). For the reasons canvassed above, it was open to the AAT to conclude as it did notwithstanding material that might have inclined it the other way (including Dr Serry’s assessment and the AAT’s apparent acceptance of Ms Spaleta’s submission at the AAT Hearing).
78 Turning to the Leong Certificates, Ms Spaleta submits in her supplementary submission that it was not open to the AAT to prefer the opinion of a general practitioner over that of a psychiatrist or psychologist, especially in circumstances where:
(1) the Certificate had been issued as arising from a “stabilised injury”;
(2) the 2018 Plotkin Report stated that her mental health condition was stabilised, would persist for more than 24 months, and recommended maintenance-based counselling; and
(3) the Serry Report and the 2018 Plotkin Report were produced well after the Leong Certificates.
79 While addressing a slightly different point, the respondent correctly submits that the AAT did not “prefer” the evidence of one expert over another—rather the AAT recorded in its reasons what was said in those reports, identified similarities and differences between them, and came to its own conclusion.
80 Ms Spaleta also submits that because the AAT did not specifically engage with the phrase “guarded prognosis”, the Second AAT Decision failed to correctly identify that an available treatment must, among other things:
(1) be reliably expected to result in a substantial improvement in functional capacity (see Impairment Tables, s 6(7)(c)); and
(2) have a high success rate (see Impairment Tables, s 6(7)(e)).
81 It is difficult to understand the relationship between a purportedly “guarded prognosis” and whether a treatment is reasonable. Nevertheless, for the reasons outlined above (at [71]), there is no basis for criticising the Second AAT Decision for not specifically engaging with the word “guarded” in the way Ms Spaleta suggests that it ought to have. But more to the point, the AAT was plainly alive to what was necessary in order for a treatment to qualify as reasonable. For example, in dealing with the Segal Report, the Second AAT Decision observed that certain measures had been recommended, and that those measures “[seemed] to be reasonable treatment[s] as contemplated by paragraph [6] of the Impairment Tables”.
82 Ms Spaleta also contends that the AAT’s misrepresentation of the reason that she discontinued the medications to which paragraph [72] above refers also led to its failure to correctly identify the requirement that treatments must be reasonable treatments within the meaning of s 6(7) of the Impairment Tables. Respectfully, the AAT did not so fail. On a close read of the AAT’s reasons (see above, [21]), it is apparent that whether it misapprehended the specific side-effect from which Ms Spaleta was suffering is of no moment: the surprise expressed by the AAT that Ms Spaleta did not seek to further explore other forms of medication applies equally regardless of any side-effects. It cannot properly be held up as evidence that the AAT failed correctly to identify the requirements of s 6(7) of the Impairment Tables.
83 The respondent grouped Ms Spaleta’s contentions on the mental health condition question into two broad grounds of review. The first is that Ms Spaleta alleges that there was “no” probative material before the AAT upon which the conclusion could be drawn that her mental health condition was not fully treated and stabilised. The second is that Ms Spaleta alleges that it was “unreasonable” for the AAT to find that her mental health condition was not fully treated and stabilised.
84 As to the former, the respondent relies on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, in which Mason CJ said (at 356):
So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning there is no place for judicial review as no error of law has taken place.
85 The respondent also relies on Nedeljko Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 (hereafter, “Kuljic”), where von Doussa J said (at 123-124):
For the AAT to accept some of the evidence in preference to other evidence where there is conflict does not necessarily indicate error on the part of the Tribunal. The inquiry that the Court on appeal would have to make is whether there was evidence upon which the AAT could reach the conclusions which it did. If there were no evidence at all to justify those conclusions there would be an error of law, but provided there is evidence which justifies acceptance of the body of evidence that was accepted, the most that can be said is that the decision so reached might be wrong as a matter of fact; no question of law would arise in that event.
86 The respondent says that it is clear that the AAT considered Ms Spaleta’s submissions, and duly considered the evidence before it, including the Serry Report (and the Certificate), but that it simply did not agree with Ms Spaleta’s interpretation. I agree. Ms Spaleta’s submissions thus far do not establish that it was not open (or not reasonably open) for the AAT to conclude that her mental health condition was not fully treated and stabilised.
87 In relation to the unreasonableness ground of review, the respondent relies on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 (endorsed by Hayne, Kiefel and Bell JJ in Minister of Immigration and Citizenship v Li (2013) 249 CLR 332), within which Lord Green encapsulated the foundation of an “unreasonableness” argument as follows (at [683]):
[There must be] something so absurd that no sensible person could ever dream that it lay within the powers of the authority…[It] is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head.
88 The respondent takes the position that the AAT’s conclusion was based on all of the available evidence, and it cannot be said to have been unreasonable in the manner described by Lord Green.
89 Plainly, Ms Spaleta disagrees with the AAT’s characterisation of the various expert reports. She may or may not have good reason to do so; but that is not the question that presents here. For the reasons that the respondent identifies, it was open to the AAT to favour the conclusions that it drew about the evidence that it had. Whether those conclusions were good conclusions is not for the court to say; it is more important simply to note that they cannot be impugned as products of legal error.
90 So to observe is not to dismiss all of Ms Spaleta’s submissions. To varying degrees, it is apparent that at least some of her criticisms of the AAT’s reasoning might be fair. Nonetheless, its conclusions about the nature of Ms Spaleta’s conditions was not attended by any error of law as alleged and it follows that I would reject Ms Spaleta’s contentions on that front.
THE RESPIRATORY OR ALLERGIC ILLNESS QUESTION
91 Ms Spaleta submits that none of the medical evidence before the AAT suggested that her allergic illness was temporary. In fact, she submits, it had been previously diagnosed and had persisted for over two years; and, had the AAT properly taken account of the evidence, it could not reasonably have concluded otherwise than that her condition was fully treated and stabilised. She also relies on Gyles’s J judgment in Harris (above, [44]).
92 The respondent argues that Ms Spaleta seeks impermissibly to take issue with the findings of fact by the AAT, in circumstances where the AAT had weighed the relevant elements of the various medical reports in relation to their effect on whether her respiratory or allergic illness condition was fully treated and stabilised.
93 At the hearing, Ms Spaleta asserted that the AAT erred in failing to recognise that the Burdon Report had stated that there was no treatment available to her as to her respiratory injury and that her conditions were likely to continue long-term. She argued that it was consequentially not open (or not reasonably open) for the AAT to conclude otherwise.
94 The Burdon Report stated, in part (errors original):
4. …[W]hat do you consider are the timeframes for resolution of the claimed injury?
It is always difficult to be certain as to the timeframe to complete resolution of symptoms. Ms. Spaleta presently suffers from significant psychological symptoms and I am unable to comment on these problems in terms of prognosis, as they fall outside my area of particular expertise. Given that Ms. Spaleta has not been exposed to the moulds since May, 2011 and her symptoms continues, albeit to a lesser extent, I am of the opinion that it is likely that her symptoms will continue long term.
5. In your clinical opinion, is the worker’s current treatment appropriate?
Yes.
6. If in your clinical opinion, the worker’s current treatment is appropriate, how long should the currently prescribed treatment continue?
See my response to Question 5 above.
7. Would the worker be able to undertaken the activities of daily living and/or return to or stay at work or would the worker’s capacity to do so be reduced if the current treatment was ceased?
Ms. Spaleta is not undertaking any specific treatment. Her daily activities are reduced, as outlined in the body of my report above, for example, she is unable to undertake her own household chores as she experiences panic attacks and feels generally unwell.
8. Do you recommend any change to the worker's current treatment?
No.
9. In your clinical opinion can the worker return to work in their pre-injury duties and hours?
In my opinion, and with the information I presently have at hand based on Ms. Spaleta's current clinical condition, I am of the view that Ms. Spaleta is presently unfit to return to work. She can certainly not return to work to employment in her previous workplace. I am of the view that at the present time she is unfit for work in both a part-time and full-time capacity for the foreseeable future.
95 Taking account of that analysis, the Second AAT Decision concluded:
This use of words by Dr Burdon in this context seems to indicate that there was a reasonable prospect of improvement or recovery from the allergic illness. Once again consideration of this report indicates that it is not open to the Tribunal to find on this evidence that the conditions were fully treated or stabilised during the qualification period. The tenor of Dr Burden’s report is one that indicates the possibility of further treatment and potential stabilisation and/or recovery. He certainly does not express an opinion that such conditions were fully treated or stabilised at that time.
96 To the extent that Ms Spaleta takes issue with the AAT’s assertion that it was not open to find that her condition was fully treated and stabilised, Ms Spaleta’s contention is not without force. It was, in my view, open to the AAT to find on the above evidence that her conditions were fully treated and stabilised. But that is insufficient to make out legal error. Ms Spaleta asserts that the only conclusion reasonably open to the AAT was that her respiratory illness was fully treated and stabilised. That is not so. In my view, it was reasonably open for the AAT to find either way.
97 Ms Spaleta also submitted that the AAT had considered speculation as to available treatments referred to in the Segal Report and the Prytula Report, and thereby relied on irrelevant considerations. In relation to the Segal Report, the AAT observed that Dr Segal had recommended that Ms Spaleta “consult an allergist for skin prick testing” for “possible desensitization” and recommended topical or oral steroids. The AAT held:
…Given the length of time [Ms Spaleta] had suffered from the affliction prior to seeing Dr Segal it is surprising that no course of medication as part of a treatment program had been undertaken by [Ms Spaleta] for the allergic reaction to the toxic mould exposure. Critically, [Dr Segal] stated: “It is impossible to prognosticate her clinical course until these measures have been carried out”. This is once again recommending treatment and seems to be reasonable treatment as contemplated by paragraph 6 of the Impairment Tables. For these reasons it is impossible for the Tribunal to reach a conclusion that these conditions had been fully treated or stabilised during the qualification period.
98 In relation to the Prytula Report, the AAT held (references omitted):
Dr Prytula, although a consultant psychiatrist, in his report of 10 October 2016 quite reasonably makes an observation in the following terms: “She appears also not to have had any respiratory function tests. This would seem to be important and may well allay her anxieties.” Whilst this opinion is expressed in the context of a psychiatric or mental health examination, it does indicate that there are logical and rational further tests [that] could be undertaken and could have been undertaken prior to or during the qualification period, which might have enabled further treatment to improve her condition or alternatively stabilise it.
99 In my view, it is not speculation to say that such treatments appeared—on the evidence—to have not been carried out, and that such treatments could conceivably assist with the relevant condition. That was a sufficient basis upon which to permit the AAT to find that Ms Spaleta’s condition was not fully treated and fully stabilised.
100 Ms Spaleta submitted that, relative to other available reports, the Leong Certificates were comparatively dated. Ms Spaleta argues that, by relying on the Leong Certificates—and in circumstances where the Burdon Report was issued some nine months after the last of them—the AAT “considered the irrelevant over the relevant”. She submits that it was, on that basis, not open to the AAT to conclude as it did. That submission largely reflects the same point that Ms Spaleta made in relation to her mental health condition (see above, [73]).
101 With respect, the respondent correctly identifies that the AAT was obliged to (and did) consider all of the medical reports about Ms Spaleta’s respiratory or allergic illness condition. For the same reasons outlined in relation to her mental health condition, it was a matter for the AAT to weight each report and come to its own conclusion on that evidence. That is precisely what it did.
102 By her supplementary written submission, Ms Spaleta submits that the AAT ignored that the Burdon Report had not recommended any treatments for her condition, incorrectly concluded that the Burdon Report indicated the possibility of further treatment and potential stabilisation, and then incorrectly concluded that it was not open to it to find that her respiratory condition was fully treated and stabilised.
103 The respondent submits that, in considering whether Ms Spaleta’s condition was fully treated and stabilised, the AAT comprehensively considered and summarised all of the relevant medical reports. Having done so, its conclusions on those questions, he submitted, could not be impugned as products of legal error.
104 In addition to the AAT’s findings outlined above (at [97] and [98]), the AAT considered the evidence as follows (references omitted):
[Ms Spaleta] gave evidence that Dr Segal recommended allergy testing and after she saw him she had such tests undertaken. Apparently, she advised that no other medical practitioner or healthcare professional had previously suggested that she have an allergy test prior to her consulting Dr Segal. Whilst no documentary evidence of such allergy testing was introduced during the course of the hearing [Ms Spaleta] stated that the tests “came back negative”. The tests revealed that her immune system was turning against her as a result of long-term exposure to the toxic mould.
It is surprising that given the conditions [Ms Spaleta] was undoubtedly suffering from, and obviously recounting to various medical practitioners and healthcare professionals, that an allergy test (which seems a logical examination to undertake), did not occur until after [Ms Spaleta] saw Dr Segal on 24 October 2016. This testing did not occur until after the qualification period and in any case no report or test results were provided to the Tribunal. It is surely a part of a program of “reasonable treatment” that [Ms Spaleta] could have undertaken as contemplated by subparagraph 6(6) “Fully stabilised” in paragraph 6 “Applying the Tables” of the Impairment Tables. It should be borne in mind that of course Dr Leong in the very first medical certificate provided to Centrelink dated 1 February 2012 diagnosed respiratory infections, fungal skin infections and dermatitis. One would have expected that as time passed and this “Temporary” condition did not improve, that an allergy test would have been undertaken as part of a reasonable treatment program. This observation and diagnosis is in addition to the obvious frequent panic attacks coupled with the reaction to dust causing choking that [Ms Spaleta] had suffered for some years and was suffering during the qualification period. Once again as this treatment option was open it is indicative of a conclusion being reached that during the qualification period this condition had not been fully treated and had not fully stabilised.
… Dr Burdon…seems to indicate that there was a reasonable prospect of improvement or recovery from the allergic illness. Once again consideration of this report indicates that it is not open to the Tribunal to find on this evidence that the conditions were fully treated or stabilised during the qualification period. The tenor of Dr Burden's report is one that indicates the possibility of further treatment and potential stabilisation and/or recovery. He certainly does not express an opinion that such conditions were fully treated or stabilised at that time.
Dr Prytula, although a consultant psychiatrist, in his report of 10 October 2016 quite reasonably makes an observation in the following terms: “She appears also not to have had any respiratory function tests. This would seem to be important and may well allay her anxieties.” Whilst this opinion is expressed in the context of a psychiatric or mental health examination, it does indicate that there are logical and rational further tests could be undertaken and could have been undertaken prior to or during the qualification period, which might have enabled further treatment to improve her condition or alternatively stabilise it.
The reports of Dr Leong identified above are also relevant to the extent that whilst they were not expressing an opinion as at the date covered by the relevant period they do indicate that at the time he considered the condition, whilst ongoing, was likely to improve within two years. At the very least this indicates that the prognosis for [Ms Spaleta] is uncertain.
105 The AAT was not obliged exhaustively to enumerate each expert finding from each report. It was entitled to rely upon—and to weigh as it saw fit—the competing evidence that was before it. It was entitled to attribute greater probative weight to reports that were less contemporaneous than others. No process of its reasoning in those regards is open to be criticised as bespeaking an error of law.
106 On the contrary, it is plain from the reasons underpinning the Second AAT Decision that in relation to Ms Spaleta’s respiratory or allergic illness, the AAT gave due consideration to the evidence that was before it and that it came to a conclusion that was based fairly upon that evidence. Again, Ms Spaleta might or might not have good reason to complain about whether or not the conclusions to which the AAT was attracted were the conclusions to which it ought to have been attracted. What cannot be said, however, is that they were beyond what was open to it. To ask this court to overturn the Second AAT Decision merely because it ought to have favoured conclusions different to those that it did is an invitation to indulge in impermissible merits review.
107 It follows that I do not accept that the AAT erred in law as alleged.
THE RATING QUESTION
108 Ms Spaleta submits that on a proper consideration of the evidence, her conditions were such as to attract a rating of 20 or more points under the Impairment Tables. She submits, on that front, that the AAT improperly preferred some expert reports over others which led it to findings that were not open to it.
109 The respondent contends that no question of law arises when the AAT prefers certain evidence to other evidence on questions of fact: Kuljic, 123-124 (von Doussa J). Furthermore, the respondent submits that, in fact, the AAT did not “prefer” any particular evidence over other evidence; but rather found that the evidence of all relevant experts supported the conclusion to which the AAT was drawn. The respondent also observes that this question was put as a “taking account of irrelevant considerations” ground (see ground three in [31] above), but that Ms Spaleta has not identified the irrelevant considerations of which she says that the AAT wrongly took account.
110 To the extent that Ms Spaleta seeks to cavil with the proper scoring of her conditions, such a contention rises no higher than to cavil with the merits of the Second AAT Decision. Whether the AAT should have assigned a particular score for a particular descriptor may be debated, but it is not a basis upon which to impugn the Second AAT Decision as one that is infected by an error of law. It is, more simply, an invitation to engage in impermissible merits review.
111 At the hearing, Ms Spaleta submitted that the AAT failed to recognise that an injury that she had sustained to her foot (due to a loss of consciousness following a panic attack) was relevant under various tables within the Impairment Tables as “indicative of the effect of psychiatric injury”; and that, in any case, the conclusions that Dr Serry and Ms Plotkin expressed were sufficient to attract a rating of 20 points thereunder.
112 The respondent, however, argues that the Serry Report—and, in particular, the Certificate within it—was an assessment made under a different statutory scheme (namely, the Wrongs Act), which did not necessarily translate to a certain number of points under the Impairment Tables. Furthermore, the respondent asserts that the Second AAT Decision correctly stepped through the relevant tables—precisely what the AAT would have been required to do had it found that Ms Spaleta’s conditions were fully treated and stabilised.
113 It cannot be said that the AAT neglected to consider Ms Spaleta’s foot injury or the circumstances within which it was said to have arisen. Under the heading “SOME OBSERVATIONS ON THE EVIDENCE”, the Second AAT Decision explicitly acknowledged that, during the course of a panic attack, she had suffered a fractured foot. That it did not expressly address that injury in the course of considering the specific assignment of points under the Impairment Tables does not indicate that the AAT failed to recognise anything. A lack of relevant consideration might be inferred from a failure expressly to address an issue in written reasons for a decision, but such an inference should not too readily be drawn, especially when the issue has (as in this case) been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ).
114 Ms Spaleta also submitted that the AAT wrongly relied on her holding a driver’s licence, when the relevant provision in the Impairment Table stated that points should be awarded based on the likelihood that an applicant might obtain such a licence. Ms Spaleta said that she had only been issued a driver’s licence because of international agreements that entitled her to one. She maintained that she would not herself be able to pass a driving test due to her impairment or impairments. She argues that she ought to have been assigned points because, if she were to have sat a test (which she noted was presently “very hard”), she likely would not (or alternatively, may not) be issued a licence. The respondent submitted that it is the having of a driver’s licence that was “one of the criteria for an assessment”.
115 Table 15 of the Impairment Tables, “Functions of Consciousness”, describes what a “moderate functional impact” is, and contains a stipulation (amongst others) that an applicant “is unlikely to be granted a driver’s license and may have other safety-related restrictions on activities”. A “mild functional impact” requires that the person “may have restrictions on a driver’s licence due to the medical condition”.
116 Ms Spaleta is correct to observe that the use of qualifying words such as “unlikely” and “may” means that it was open to the AAT to assign points under Table 15. Nonetheless, the AAT was not wrong to place some significance upon the existence of Ms Spaleta’s driver’s licence (and that she appeared to have obtained it without impediment) when determining whether to assign points under Table 15.
117 In her supplementary submission, Ms Spaleta maintained that the AAT wrongly failed to assign points under the Impairment Tables to her conditions. In particular, she contended that:
(1) the AAT failed to address Table 1 (titled “Functions requiring Physical Exertion and Stamina”) despite evidence in relation to that table being adduced and submissions being made at the AAT Hearing;
(2) the AAT failed to assign a rating under Table 15 (titled “Functions of Consciousness”) despite evidence in relation to that table being adduced and submissions being made at the AAT Hearing; and
(3) the AAT failed to address the issue of Ms Spaleta’s injured arm at all, or that it and her fractured foot were both consequences of her having fallen unconscious due to a violent panic attack, which ought to have been addressed under Table 15.
118 It is true that Ms Spaleta, through her representative, made arguments at the AAT Hearing that Table 1 ought to be applied, as the following extract from the transcript makes clear:
MR SPALETA: So, if I could take you to Table 1.
SENIOR MEMBER: Yes.
MR SPALETA: To the Table that’s marked – the 10-point Table for moderate functional impact applied to - - -
SENIOR MEMBER: Just a minute, just a minute. Table 1, yes, which one do you want?
MR SPALETA: The 10-point one.
SENIOR MEMBER: Yes.
MR SPALETA: The prerequisite for getting over that hurdle is that you must get over most of the elements within each of the Tables. So, if it’s six, you need four, for instance. So, where, under 10 points, where it says that:
The person in 1(a) experiences frequent symptoms when performing day to day activities around the home and community
…
119 Ms Spaleta, through her representative, went on to outline the symptoms that she submitted met the criteria to be allocated 10 points under Table 1. While I am not necessarily persuaded that the symptoms described met the relevant requirements under Table 1, I accept that, had it found that her conditions were fully treated and stabilised, the AAT would have been obliged to consider what she had advanced about the application of that table. It did not. But for its findings about her conditions not being fully treated and stabilised, that failure would likely have required the setting aside of the Second AAT Decision.
120 As for the assignment of a rating under Table 15, I do not accept that the AAT failed to consider any of the issues upon which Ms Spaleta relied. True it is that no express consideration was given to Ms Spaleta’s arm injury (as opposed to the injury that she sustained to her foot) but I do not consider that to be of any moment. The AAT was alive to her having suffered physical injuries as a result of (separate) panic attacks. The AAT accepted that Ms Spaleta has in the past lost consciousness following a panic attack, and it was not necessary for it to expressly consider her injured arm, separate to her injured foot, in order to conclude as it did.
121 It follows that the AAT did not wrongly conclude that Ms Spaleta’s conditions were, in either case, such as to warrant a rating of 20 points under the Impairment Tables.
THE CONTINUING INABILITY TO WORK QUESTION
122 Ms Spaleta submits that it was not open to the AAT to find that she did not have a continuing inability to work, and that, by concluding as it did on that issue, the AAT did not properly consider the evidence before it.
123 In oral submissions, the respondent submitted that the AAT correctly accepted the opinions stated in the Job Capacity Assessment Report, which had been drafted by experts for the purposes of s 94(1)(c) of the SS Act. To the extent that the AAT preferred the contents of the Job Capacity Assessment Report to other available evidence, the respondent submitted that that was something that the AAT was entitled to do in its task as the decision-maker in a merits review process.
124 Ms Spaleta submits that:
(1) the report (and similarly produced reports from previous years, hereafter the “Employment Services Assessment Reports”) had assessed her work capacity as low as “0-7 hours per week”, but the AAT had failed to address submissions on this issue;
(2) the respondent failed to provide any supporting evidence as to the assessors’ alleged specialised knowledge or experience;
(3) the Job Capacity Assessment Report failed correctly to identify the requirements for a DSP, including whether certain treatments were reasonable treatments within the meaning of s 6(7) of the Impairment Tables, and failed to properly address the Certificate or correctly apply the tables themselves;
(4) the Job Capacity Assessment Report misrepresented the Serry Report; and
(5) the AAT failed to rely on the Job Capacity Assessment Report only as an aid in assessing the evidence.
125 The respondent observes that the AAT was not required to address all the submissions made by each party on each issue. Rather, the Second AAT Decision outlined what it would have found in relation to a rating and Ms Spaleta’s continuing inability to work, had it found that one or both of her conditions were fully treated and stabilised. To the extent that it made such (obiter) findings, they amounted to findings of fact that the AAT was entitled to make. I accept that contention. Nonetheless, it is prudent specifically to address each of Ms Spaleta’s submissions.
126 First, it cannot be said that the Second AAT Decision failed to give due consideration to the Job Capacity Assessment Report and the Employment Services Assessment Reports. Specifically, the AAT observed that the reports had assessed Ms Spaleta’s work capacity (or, more specifically, her “Baseline Work Capacity” which purports to exclude temporary impacts) as “15-22 Hours per week”. It is apparent that the AAT did consider the point of Ms Spaleta’s submission, whether or not it specifically referred to the submission itself, and it duly considered the reports to which she referred.
127 Second, as to the purported failure by the respondent to provide supporting evidence, it was the respondent’s prerogative to put forward the supporting evidence that it chose to—and the AAT’s prerogative to accept, or refuse to accept, the contentions advanced by each party. The AAT was not bound by strict rules of evidence: AAT Act, s 33(1)(c).
128 Third (and fourth), there was no submission that the Job Capacity Assessment Report was obliged (or failed) to meet the requirements of any particular criteria or obligations. The focus of this appeal is upon whether the Second AAT Decision contained an error of law, not whether the Job Capacity Assessment Report met some requirements that were not put before this court. It was the AAT’s duty properly to consider the contents of the Serry Report, which it appears to have done. There is no evidence to suggest that the AAT misunderstood the report’s contents.
129 Fifth, there is nothing to suggest that the AAT impermissibly “deferred” its decision making to the Job Capacity Assessment Report. The Second AAT Decision merely concluded, on all of the available evidence, that Ms Spaleta had some capacity to work. That was a finding of fact that the AAT was entitled to make.
130 Finally, Ms Spaleta asserts that the AAT did not give proper regard to s 94(3B) of the SS Act (in particular, to the definition of “severe impairment”), the Impairment Tables, the evidence, and her submissions regarding Table 1, because, if it had, it would have found that the “continuing inability to work” test was either satisfied or not required for her to be eligible for a DSP. To make such allegations on this limited basis amounts to an invitation to engage in impermissible merits review.
131 I do not accept that the AAT’s conclusions about Ms Spaleta’s ability to work bespeak any error of law.
THE SECTION 43(2B) QUESTION
132 By way of her supplementary submission, Ms Spaleta now submits that the AAT failed to meet the statutory requirements imposed by s 43(2B) of the AAT Act to include certain findings when giving reasons for its decision. In a similar vein, Ms Spaleta now alleges that the Second AAT Decision “failed to inform the reader” of various things, namely:
(1) the existence of the Certificate and Ms Spaleta’s submissions in relation to it;
(2) that the 2018 Plotkin Report stated that Ms Spaleta’s mental health condition was “stabilised and that maintenance based counselling support [was] recommended and that [her] mental health condition would persist for more than 24 months”;
(3) that psychiatric treatment would cost $300 per hour (see above, [59]);
(4) that the Serry Report and the Prytula Report stated that Ms Spaleta’s mental health condition was “guarded”; and
(5) that the Burdon Report had not recommended any treatment for her respiratory condition.
133 Section 43(2B) of the AAT Act provides as follows, namely:
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
134 The respondent contends that, in substance, Ms Spaleta’s submission simply takes issue with the AAT’s findings of fact and does not identify any error of law. For reasons already outlined, that criticism is a fair one.
135 Nonetheless, a tribunal’s failure to provide sufficient reasons could, in the right circumstances, reflect a distinct error of law. To the extent that Ms Spaleta now presses her submission as a ground of appeal, it must fail for two reasons.
136 First, it is not a ground that is outlined in Ms Spaleta’s notice of appeal. She cannot now advance it without first obtaining leave pursuant to r 33.15 of the Federal Court Rules 2011 (Cth).
137 Second—and, again, appreciating the care and skill with which Ms Spaleta’s contentions were advanced—I do not accept her contention about the adequacy of the AAT’s reasons. It was not necessary for the AAT to refer to every piece of evidence that was submitted to it. Insofar as it was led to make findings as to the nature of Ms Spaleta’s conditions, its reasons for doing so were adequately clear, as was the evidential basis upon which it relied.
138 Insofar as Ms Spaleta’s supplementary submission should be taken as an application for leave to advance a further ground, that application should be (and is) refused for want of merit.
DISPOSITION
139 Ms Spaleta has not established that the Second AAT Decision was attended by any error of law. Her appeal must be dismissed. There is no reason why the usual order for costs ought not to be made.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
