Case: House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667
Outcome: cited
particular significance was the decision of the Tribunal immediately preceding the decision of the Tribunal the subject of this appeal. That decision House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 was upheld on appeal to the Federal Magistrates Court ( House v D.F.R.D.B. Authority [2004] FMCA 833). I shall return to this decision later in the judgment. The decision of the Authority Mr Harding, appearing on behalf of Mr House, submitted in summary: Principles relevant to appeals to this Court from Tribunal decisions were explained in Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 286-287. These principles include the following: a wrong finding of fact is not sufficient to demonstrate error of law; only in exceptional circumstances should the decision of the Tribunal not be the final decision; the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts; the reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error. In relation to the Authority's claim that the Tribunal erred by revisiting findings of fact already made by the Tribunal in House [2004] AATA 667 and by not taking that decision into account, in fact the Tribunal made key findings on critical issues which differed from those of the earlier Tribunal decision. Accordingly, the decision of the Tribunal in House [2004] AATA 667 was made redundant. Specifically: in House [2004] AATA 667 , the Tribunal had found that the incapacity by reason of which Mr House was retired was the effects of alcoholism and that Mr House's prescribed physical and mental impairments were alcoholism and alcoholic liver disease, and not his personality disorder; in the decision the subject of this appeal, the Tribunal found that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments; the Tribunal in the decision the subject of this appeal recognised it faced different evidence and different issues as to the kinds of civil employment which a person with the applicant's skills, qualification and experience might reasonably undertake; the fact that the 2004 decision of the Tribunal was upheld by the Federal Magistrates Court in House [2004] FMCA 833 is irrelevant it simply means that, in the view of the Federal Magistrates Court, the earlier decision of the Tribunal was not infected by legal error. In relation to the Authority's submission that the Tribunal had failed to take into account a relevant consideration, namely that Mr House's condition had improved, any comparison between Mr House's level of functioning at the effective date of the Tribunal's decision and earlier points in time must recognise that, until the Tribunal's decision, Mr House's personality disorder had not been considered to be one of his prescribed physical and mental impairments. In relation to the Authority's submission that the Tribunal failed to take into account relevant considerations as to the kind of employment Mr House could undertake in determining Mr House's overall incapacity for civil employment, the Authority was inviting the Court to consider the Tribunal's reasons "minutely and finely with an eye keenly attuned to the perception of error". In relation to the Authority's submission as to misdirection, that submission does not take the Authority's case any further than other grounds of appeal. In relation to the Authority's submission as to the alleged failure of the Tribunal to give adequate reasons, in relation to the issues which the Authority raised the Tribunal was not required to expressly give an explanation. The Tribunal made findings with reasons in respect of each of the issues under s 34 of the Act in compliance with s 43(2B) AAT Act. The Tribunal was required to make a global assessment, such an assessment is not a mathematical exercise, and a precise identification of how the Tribunal arrived at 30% incapacity is not necessary. Because the decision as to Mr House's degree of incapacity is a "value judgment", not a mathematical exercise, if the Court upholds the Authority's appeal the appropriate course is for the Court to remit the matter to the Tribunal as the arbiter of fact. Consideration First ground of appeal I have set out these observations of her Honour in some detail to illustrate the point that the submission of the Authority before me has substance. It is unnecessary for me, in these proceedings, to look further into previous deliberations and decisions of the Tribunal. The submission of the Authority in relation to its submission before the Tribunal in these proceedings is that the issue whether Mr House has a personality disorder has previously been before the Tribunal. The excerpts from her Honour's judgment and the reasons for decision of the Tribunal in House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 support this submission.