Case: House and Defence Force Retirement and Death Benefits Authority [2008] AATA 38
Outcome: related
is an appeal from a decision ( House and Defence Force Retirement and Death Benefits Authority (Cth) [2008] AATA 38) of the Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal set aside the decision of the Defence Force Retirement and Death Benefits Authority ("the Authority") and substituted the following decision: For the purposes of section 34(1B)(a) of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"), alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments of the recipient member; and The percentage of incapacity in relation to the civil employment of Mr House for the purposes of section 34(1) is 30%; and For the purposes of section 30 of the Act, the invalidity classification of Mr House is Class B with effect from 19 November 2004. "Appeals" from decisions of the Tribunal pursuant to s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") are on issues of law only, and fall within the original jurisdiction of this Court. The orders sought by the Authority in this appeal are: That the determination of the Tribunal be set aside. That the reviewable decision before the Tribunal be affirmed. Such other orders as the Court sees fit. Accordingly, the Authority confirmed the decision of the delegate to refuse Mr House's request for a review of his classification. The Tribunal's decision the subject of this appeal (House [2008] AATA 38) A person who is affected by a decision of the Authority and who is dissatisfied with the decision may request the Authority to reconsider the decision (s 99(2) of the Act). An application may be made to the Tribunal to review a decision of the Authority, being a decision which has been confirmed or varied (s 99(6) of the Act). In this case Mr House sought review of the Authority's decision by the Tribunal. The Tribunal considered in detail evidence given by Mr House, and by a psychologist, an occupational therapist, and a psychiatrist called as witnesses by Mr House. The Tribunal also considered in detail evidence given by a psychiatrist and an orthopaedic surgeon called as witnesses by the Authority. Clearly a failure by the Tribunal to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279, Australian Postal Corporation v Sellick [2008] FCA 236 at [35] ). However in this case, aside from a bare reference by the Tribunal to the existence of its 2004 decision (at [4]), there is no indication that it had taken into consideration the submission of the Authority concerning previous consideration by the Tribunal of issues relating to Mr House's personality disorder. This absence of reference to its earlier decision is particularly surprising where the Tribunal has found that Mr House had greater incapacity than that found by the Tribunal in 2004, notwithstanding the evidence before the Tribunal in these proceedings that, between August 2001 and November 2004, inter alia , Mr House had stopped drinking ( House [2008] AATA 38 at [15] ), was no longer an active alcoholic ( House [2008] AATA 38 at [52] ), and Mr House was maturing and less affected by his personality disorder ( House [2008] AATA 38 at [60] ). In relation to the incapacity of Mr House for each kind of employment the Tribunal found as follows: I accept the evidence of Dr Reddan who gave an opinion of percentages of incapacity which are mentioned in the report of 1 June 2007. Dr Reddan took account of the alcohol condition as well as the personality disorder condition in providing her opinion. These percentages are driver, minimal, 5% (which Dr Reddan conceded could be increased to 10%); mobile plant operator, minimal, 5%; labourer, minimal, 5%; storeman, minimal, 5%; mining and construction labourer, small, 15%; security officer, moderate, 30%; powder monkey, small, 20%; sub-contractor in mining and construction, small, 20%; foreman in any of these fields, moderate, 30%. ( House [2008] AATA 38 at [117] ) The Authority submitted that the conclusion of the Tribunal that therefore Mr House's level of incapacity for civil employment was 30% suggested that the Tribunal had only taken into consideration the levels of incapacity for security officer and foreman (evidence of Dr Reddan in relation to both kinds of employment indicating 30% incapacity). In my view this submission raises a serious question as to whether the Tribunal actually did take into consideration evidence before it of the levels of incapacity of Mr House in relation to all kinds of employment listed, and not merely the levels of incapacity in relation to security officer and foreman. The fact that, in relation to the other seven kinds of civil employment listed, the evidence accepted by the Tribunal was that Mr House's incapacity ranged from 5% to 20%, means that the finding by the Tribunal of 30% incapacity warrants some explanation of the process of reasoning. Unfortunately, in my view such explanation as there is in the Tribunal's statement of reasons is inadequate. The Tribunal leaps directly to the conclusion on the basis of a "value judgment" that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) of the Act is 30%. I reject the submission on behalf of Mr House that criticism of the Tribunal's reasoning in this context is examination "minutely and finely with an eye keenly attuned to the perception of error". With respect, the conclusion of the Tribunal supports the Authority's submission that a relevant consideration, namely the evidence as to the levels of incapacity in respect of kinds of employment other than security officer and foreman, was not considered.