Deslandes v Repatriation Commission

[2015] FCCA 1786

Facts

Mr Deslandes served in the Royal Australian Navy from 1 May 1974 until 28 September 1977. His application for a disability pension for lumbar spondylosis was refused by the Repatriation Commission. The decision was affirmed on review by the Veterans’ Review Board and Administrative Appeals Tribunal (the Tribunal). Mr Deslandes’ appeal to the Federal Court was transferred to the Federal Circuit Court of Australia.

Grounds of appeal

The questions of law said to arise on the appeal were summarised as follows:

Question 1: whether the Tribunal failed to act according to the ‘substantial merits’ of the case for the purposes of s 119(1)(g) of the VEA.

Question 2: whether the Tribunal erroneously applied s 120(4) of the VEA because it impermissibly placed an onus on the Appellant to provide contemporaneous records showing how much weight he had lifted during his service (and therefore satisfying factor 6(h) of the SOP).

Question 3: whether the Tribunal failed to apply s 119(1)(h) of the VEA. In particular, the Appellant states that the Tribunal failed to take into consideration the fact that there were no clinical records from the physiotherapist who was treating the Appellant around the time of the accident in 1977.

Question 4: whether the Tribunal erred by failing to take into account a relevant consideration, namely a medical report of Dr Sharwood.

Question 5: whether the Tribunal erred by failing to give reasons, as required under s 43(2) of the AAT Act, about the Appellant’s evidence of his treatment for back condition.

The Court’s consideration

Questions 1 & 3

Section 119(1)(g) of the VEA provides that the Commission (and the Tribunal on appeal) “shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities”.

By s199(1)(h) the Tribunal is directed to take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including the effect of the passage of time on the availability of witnesses, and the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, was not reported to the appropriate authorities.

The applicant argued that by reason of s199(h), the Tribunal was obliged to take into account the difficulty that lies in the way of the Tribunal ascertaining the existence of the fact that he complained about back pain to a physiotherapist he consulted 8 days after a motor vehicle accident, because of the absence of those treatment notes. The Court noted that the Tribunal needed to be satisfied that the applicant had sustained trauma (as defined in the SoP) to his lumbar spine from the motor vehicle accident. The Court found that the physiotherapy notes would not have affected the outcome of the Tribunal’s quest for evidence, because the applicant gave no evidence that he told the physiotherapist anything about his back pain, other than that he had a sore back. Ultimately, the applicant gave no evidence to the Tribunal, and could point to no evidence, that either altered mobility or range of movement of the lumbar spine developed within the 24 hours of the motor vehicle accident. The Court concluded that insisting upon some evidence that establishes the necessary elements of the definition of trauma to the lumbar spine is not a failure to act according to s119(1)(g).

Question 2

This question related to the Tribunal’s rejection of Mr Deslandes’ claim for lumbar spondylosis on the basis of the SoP factor for carrying or lifting heavy loads. In paragraph 13 of the Tribunal’s reasons the Tribunal indicated:

The applicant’s estimates of the weight he lifted are not substantiated by any contemporaneous material. I am unable to be reasonably satisfied that the applicant performed the amount of lifting required by factor (h) in the SoP, during his service and prior to the onset of lumbar spondylosis.

The Court considered the Tribunal was entitled to remark upon and take into account the lack of any contemporaneous material that demonstrated the weights that had been lifted by the applicant, and by doing so it did not place or suggest that there was an evidentiary onus on the applicant to provide contemporaneous material to satisfy the SoP factor.

Question 4

The Tribunal had before it two reports from Dr Sharwood, an orthopaedic surgeon. The applicant argued that the Tribunal failed to take into account the second report of Dr Sharwood. The Court accepted the Tribunal made no mention of Dr Sharwood’s evidence in its reasons, but considered the evidence was of little or no value. Dr Sharwood’s evidence did not support the hypothesis that the applicant experienced a trauma of the nature anticipated in the SoP – rather, his opinion assumed that as a fact without setting out his own findings about that, or the basis of his assumption.

Question 5

The applicant argued that the Tribunal failed to give sufficient reasons under s43(2) of the AAT Act for failing to accept his evidence about:

• The symptoms and signs of pain, and tenderness; mobility and range of movement of the lumbar spine; and the duration of those symptoms and signs;
• The physiotherapy treatment obtained by him in respect of his back following the accident;
• The estimate of weights carried or lifted by him relevant to factor 6(h) of the Statement of Principles.

The respondent submitted that the Tribunal’s reasons for decision clearly considered the applicant’s evidence about the length and type of his treatment around the time of the motorbike accident, however the Tribunal also recorded that his claimed were not supported by any contemporaneous medical records. At this point the Tribunal was faced with a choice between two conclusions open on a consideration of the facts – either accept the applicant’s evidence, or the medical records that set out the injuries and diagnosis made at the time of, or close to, the accident. The Court noted the Tribunal chose the latter as it was entitled to do.

In relation to the weights lifted by the applicant, the Court was of the view the Tribunal did deal with that issue. It noted that there were no contemporaneous notes dealing with the weights lifted by the applicant during his work. In light of the applicant’s own evidence in cross-examination, it was not surprising that the Tribunal expressed an inability to be satisfied about the weights lifting by him in his work.

The Court’s decision

The appeal was dismissed.

Editorial note

The Court considered there are limits upon the operation of ss119(1)(g) and 119(1)(h):

Whilst s.119(1)(g) directs the decision-maker to disregard legal forms and technicalities in favour of substantial justice, it does not provide warrant for a decision-maker to rewrite the Act to achieve more a just result than that for which Act provided: Golfins v Repatriation Tribunal (1980) ADL 557. Section 119(1)(g) overrides neither the provisions of the Act nor the provisions of an instrument made under statutory authority including a Statement of Principles: Knight v Repatriation Commission (2002) FCA 103. Section 119(1)(g) does not require the Tribunal to take a more benevolent view of Mr Deslandes’s case than it would otherwise have done: Grundman v Repatriation Commission [2001] FCA 892.

Both parties referred to Repatriation Commission v Bey (1997) 79 FCR 364, in which the Full Federal Court said at 373-374:

The second complaint is that his Honour was wrong in ruling that the Tribunal had no obligation to raise any favourable inference pursuant to s 119 to the Act. Section 119(1)(g) requires the Tribunal (standing in the place to the Commission) to act according to substantial justice and the substantial merits to the case, without regard to legal form and technicalities. Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way to ascertaining the existence to any tact, matter, cause or circumstance. The respondent’s contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with law: Golfins v Repatriation Tribunal [1980] FCA 105; (1980) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumer v Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544 at 555-556. Paragraph (h) of s119(1) is a provision of the same character as par (g): see the words which introduce it - “without limiting the generality to the foregoing”. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase “difficulties that ... lie in the way of ascertaining the existence of any ... cause” as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress.