Re Wade Ewart Cox v Lawrence George O'Donnell and David Glen Rossi [1992] FCA 26; (1992) 106 ALR 145 (1992) 34 FCR 42 (1992) 26 ALD 733 (5 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: WADE EWART COX
And: LAWRENCE GEORGE O'DONNELL and DAVID GLEN ROSSI
No. ACT G11 of 1990
FED No. 19
Administrative Law
[1992] FCA 26; (1992) 106 ALR 145
(1992) 34 FCR 42
(1992) 26 ALD 733

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Applicant when a serving commissioned officer of the Defence Force wounded in action in Vietnam - After further service in the Defence Force applicant tendered a resignation of his military office - Resignation accepted as from 3 January 1979 - Applicant seeking invalidity benefit under Defence Force Retirement and Death Benefits Act 1973 (Cth) - Application to Chief of General Staff under s.37 of that Act for determination that, at the time the applicant was retired from Defence Force, grounds existed "on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties" - Whether s.37 applies to a member who retires at his own request - Long history of defective administrative decision-making in relation to question whether such grounds existed - Decision that grounds did not exist - Reasonable expectation that before decision made comprehensive and impartial medical review of applicant's medical condition at time of retirement would be carried out by independent medical practitioner - Expectation not fulfilled - Whether medical report relied on by decision-maker deficient - Whether deficiencies remedied - Whether reasons of decision-maker adequate.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Defence Force Retirement and Death Benefits Act 1973 (Cth), s.37

Century Metals and Mining N.L. v Yeomans [1989] FCA 273; (1989) 100 ALR 383

HEARING

CANBERRA
5:2:1992

Counsel for the applicant: Mr R. Selby

Solicitors for the applicant: Macphillamy Cummins and Gibson

Counsel for the respondents: Mr P.A. Coppel

Solicitor for the respondents: Australian Government Solicitor

ORDER

The decision made on 13 February 1990 by the first respondent that, at the time of the applicant's retirement from the Defence Force, grounds did not exist on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties be set aside.

The matter be remitted to the Chief of the General Staff, Army Office, Department of Defence for further consideration and for determination according to law.

The respondents pay the applicant's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

By his further amended application filed on 8 February 1991, Wade Ewart Cox ("the applicant") seeks, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), an order of review in respect of a decision made on 13 February 1990 by Lieutenant-General Lawrence George O'Donnell, Chief of the General Staff, Army Office, Department of Defence ("the first respondent"). By that decision, which was made under s.37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) ("the Act"), the first respondent determined that, at the time of the applicant's retirement from the Defence Force, grounds did not exist on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. The further amended application also seeks, pursuant to the Judicial Review Act, an order of review in respect of conduct engaged in by David Glen Rossi ("the second respondent") in connection with the making of the decision by the first respondent.

2. Section 37 of the Act provides:
"37. Where a contributing member has been retired otherwise than

on the ground of invalidity or of physical or mental incapacity to
perform his duties but, after his retirement, the Chief of Naval
Staff, the Chief of the General Staff or the Chief of the Air
Staff or a person authorized in writing by the Chief of Naval
Staff, the Chief of the General Staff or the Chief of the Air
Staff, as the case requires, informs the Authority that, at the
time the member was retired, grounds existed on which he could
have been retired on the ground of invalidity or of physical or
mental incapacity to perform his duties, he may, for the purposes
of this Act, be treated as if he had been retired on that ground."

The reference to the Authority is a reference to the Defence Force Retirement and Death Benefits Authority established by s.8 of the Act (s.3(1)). In the Act, "retirement" means retirement as a member of the Defence Force, and includes discharge from the Defence Force, and "retire" has a corresponding meaning (ibid.). "Invalidity" is not defined.

3. The Act is intituled "An Act to make provision for and in relation to a Scheme for Retirement and Death Benefits for Members of the Defence Force". It makes provision in Part III (ss.17-22) for the payment to the Commonwealth of fortnightly contributions by eligible members of the Defence Force. It is, however, unnecessary to refer to the detail of those provisions. Part IV (ss.23-25) and Part V (ss.26-37) are respectively headed "Retirement Benefits" and "Invalidity Benefits". Where a contributing member retires and is not entitled to invalidity benefit and the specified criteria are satisfied, the member is entitled, on his retirement, to retirement pay at the rate applicable to him in accordance with s.23 (s.23(1)). Section 26 provides that, subject to certain provisions to which it is also unnecessary to refer, where a contributing member is retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he is entitled, on his retirement, to invalidity benefit in accordance with Part V. Where a member of the scheme, with an exception which is not material for present purposes, is, or is about to become, entitled to invalidity benefit, the Authority is to determine his percentage of incapacity in relation to civil employment and to classify him Class A, Class B or Class C according to the percentage of incapacity (s.30(1)). The Act delimits the matters to which the Authority may have regard in making that determination (s.30(2)).

4. The present application is but the latest episode in the comparatively long history, to which it will be necessary to make some reference, of the attempts by the applicant to obtain an invalidity benefit under the Act and, as a first step in that process, to have the Chief of the General Staff, or a person authorized in writing by him, inform the Authority that, at the time he was retired, grounds existed "on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties".

5. The applicant relied on an affidavit affirmed by him on 4 February 1991. He was not cross-examined. The respondents relied on the affidavit of the first respondent sworn on 12 April 1990 and the affidavit of the second respondent sworn on 18 April 1990. There was no cross-examination of the first respondent. The second respondent was cross-examined. Each of the affidavits was admitted into evidence without objection.

6. It should, perhaps, also be mentioned that in the application as originally filed, William Orril Rodgers and Peter Raymond Phillips were joined as respondents. However, by an order made by consent on 24 July 1990 those persons ceased to be parties to the proceeding.

7. The applicant served as a member of the Defence Force (the Australian Army) from 20 September 1965 until 3 January 1979. On 10 December 1966 he had been appointed to a Commission in the Australian Regular Army. He served in South Vietnam where, on the night of 8/9 November 1969, he was wounded in action, receiving multiple wounds, including wounds to the mouth, head, neck and left knee, The applicant continued to serve in the Army until November 1978 when, pursuant to s.17 of the Defence Act 1903 (Cth), by writing under his hand, he tendered the resignation of his military office, requesting release with effect from 3 January 1979. His resignation was accepted and it became effective from the last mentioned date.

8. On 11 December 1978 the applicant had been examined by a medical board, referred to in the material as a Final Medical Board (FMB). The board was constituted by Drs Boyle and Daniel. The record of the examination discloses that, although certain specified disabilities were discovered to each of which a percentage degree of incapacity was assigned, the applicant was found to be medically fit and was classified "CZE", that classification being a downgrading by one level from the classification "FE" at which the applicant had been classified when last assessed on 23 November 1973. The initials "FE" are an abbreviation for the expression "Forward everywhere", that classification denoting that the member is medically fit to serve anywhere, including in a forward or combat zone. The initials "CZE" are an abbreviation for the expression "Communications zone everywhere", that classification denoting that the member is medically fit to serve anywhere but in a forward or combat zone. It appears that there are three lower medical classifications, being in descending order of fitness "BE" (Base everywhere), "HO" (Home only) and "MU" (Medically unfit). It further appears that the "Confirming Authority" noted the papers "Fit - non medical discharge".

9. It is common ground that at all relevant times prior to his retirement from the Defence Force the applicant was "a contributing member" within the meaning of that expression in s.37 of the Act.

10. The applicant states, and it is not disputed, that since 1970 he had been in receipt of a disability pension from the Department of Veterans' Affairs; that, prior to the date of his resignation becoming effective, that pension was being paid at 50% of the General Rate; that in 1986 he applied to the Department of Veterans' Affairs for an increase in his pension; and that, following an application to the Administrative Appeals Tribunal, he was awarded a pension pursuant to the Veterans' Entitlements Act 1986 (Cth) -

(i) at 100% of the General Rate for the period 15 August 1977 to 3
January 1979;
(ii) at the Intermediate Rate for the period 4 January 1979 to 31
December 1985; and

(iii) at the Special Rate from 1 January 1986.

11. The applicant claims that as a result of investigations in 1986-7 he became aware of a number of conditions extant at the date of his discharge which were serious and would have materially affected his course of action and entitled him to a disability pension. Those matters were the subject of some correspondence and, in a letter dated 21 July 1987 addressed to Major-General William Orril Rodgers, described as the Director of Army Health Services, the applicant requested that the Chief of the General Staff review his case and, in exercise of the power conferred by s.37 of the Act, inform the Defence Force Retirement and Death Benefits Authority that, at the time of his retirement from the Defence Force on 3 January 1979, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. The general nature of the case the applicant was making appears from the text of the letter and it is desirable to refer to its contents in some detail as it provides a convenient backdrop against which to view subsequent events. The applicant claimed that he had been "incorrectly discharged with undisclosed injuries as a result of war wounds" and that, had those injuries been correctly examined and disclosed, his category of discharge would have entitled him to a pension. The letter was accompanied by a number of documents which he said were appended "to establish that I was suffering from injuries that were not disclosed on my med (medical) board and that the JSMC (Joint Services Medical Centre) were informed of those injuries and did not disclose their full implication to me". He added: "Nor was any attempt made to establish the full extent of my disability". The letter continued:

"My head, back and leg injuries have at last been correctly and
fully assessed and they are confirmed as follows:
a) The headaches and eye pain are the result of the
cervical and cerebral injuries. (See Annex E). These
problems have never been considered by Army Staff in detail.
b) The pains are not only from disc injuries to the
4th/5th 5th/6th cervical and L5/S1 discs as established by
discogram and CT Scan but also minor injuries and subsequent
disturbance to the legs and hips as indicated at Annexes F and G.
c) Cervical disc damage causes pain to the chest and upper
stomach/diaphram (sic) and pain and numbness to the arms and

hands.

d) The pain in my neck, back and legs are (sic) due to a nerve
pressure and a series of rheumatic and arthritic and muscular
disorders which have been established since the inception of
the wounds and have been getting steadily worse. None of
these problems were adequately diagnosed by Army Staff.
e) I also suffer from sensory neural deafness.
Disorders disclosed at annex H and I are
1) Trigeminal (nerve) damage and scarring as known
2) Cervical Spondylosis
3) Soft tissue Rheumatism in the injured areas
4) Trauma and Stress induced Crystal proven Gout in the
wounded knee and the load bearing knee.
5) Osteo Arthritis in the ankle and knee of the left leg
6) A pain induced stress situation which is to be
subsumed into the assessed disabilities.
7) The Gastro Intestinal diseases appear to be linked to
the disc damage which causes nerve pain and
stimulation both by pressure and stress.
It is regrettable that these examinations were not conducted as a
matter of course on presentation of my symptoms to JSMC. That
they were not now is history but that they were aware of the
symptoms and of the specialist opinions re disc injury is a matter
of fact. One of the reasons I left Russell for open air work was
my discomfort with the neck and eyes at office work. I now find
that my injuries were known and that it was only as a matter of
time before my physical breakdown but I was not told of the longer
consequences."

The annexures referred to in the above extract from the letter are not attached to the copy of the letter that is in evidence.

12. On 17 November 1977, the applicant filed in this Court an application (numbered ACT G 83 of 1987) seeking an order of review under the Judicial Review Act in respect of a decision conveyed to the applicant by a letter dated 16 November 1987 signed by the first respondent that the first respondent had been advised that the information provided by the applicant presented no new evidence on which to overturn the original decision that insufficient grounds existed at the time of his discharge to warrant a discharge on medical grounds.

13. Included as part of one of the annexures to the affidavit of the second respondent sworn on 18 April 1990 and filed in the present proceeding is a copy of an affidavit sworn by the applicant on 24 March 1988 and filed in support of the application numbered ACT G 83 of 1987. The latter affidavit, after referring to the service of the application and to the provision by the applicant of additional information at the Army's request, contains (par 4) the following statement which has not been disputed -

"After an approach by the Ombudsman requesting an independent
review it was decided to appoint a tribunal of Navy, Air and Civil
medical officers."

A statement to the same effect is also made in par 57. Paragraph 61 of the affidavit reads:

"61. My request to be present at the review and to submit to it
was ignored. On investigation it appeared that the
documents were sent to single officers in Navy and Air. I
could not find out their names and was told by a Navy Staff
Officer that the Navy Medical Officer did not wish to speak
to me. I have no way of knowing what information was before
the review or ascertaining its accuracy. I believe that the
procedure was a farce aimed at obviating criticisms of
denial of natural justice. DAHS admit that Navy and Air did
not see Dr Davies' report of 19 Feb '88."

The initials "DAHS" denote the Directorate of Army Health Services.

14. Also of particular significance for present purposes is par 51 which reads as follows:

"51. I say and the facts are, that I have sustained a series of
deep structure injuries of the spine on 9 Nov '69 which were
not diagnosed and despite undisputable medical evidence, the
Directorate of Army Health Service is refusing to accept
this as altering my condition as diagnosed at discharge and
that the Directorate is providing incorrect statements in an
attempt at refuting the evidence before them. I further
state that there was evidence in the possession of the Dept.
at the time of discharge that indicated that I had disc
injury as well as vertebral disease and the Dept. took
insufficient action to establish its full extent or inform
me of its consequence. As a result I have sustained very
serious losses."

15. The application numbered ACT G 83 of 1987 was listed for directions on a number of occasions. On one such occasion, 8 April 1988, the Court was provided by counsel for the first respondent with a copy of a letter dated 25 March 1988 addressed to the applicant by Brigadier W.D. Rolfe, Director of Army Legal Services, reading as follows:

"I refer to your letter of 11 March 1988 requesting reasons for
the decision which is the subject of your Federal Court
application for an Order of Review and advise that it is not
considered necessary to provide the reasons.
As indicated to you in November 1987 and repeated since that time
I have, on behalf of the Chief of the General Staff, admitted that
the decision made in October 1987 was not properly made in
accordance with the law and that upon receipt of further evidence
the Chief of the General Staff would make a fresh decision.
I confirm receipt of further evidence from you and the agreement
that once the brief is prepared for the Chief of the General Staff
a copy will be forwarded to you to enable you to comment on its
content and to invite you to attach further comments for
consideration by the Chief of the General Staff. I advise that
advice has been provided to Army Staff in order for the brief to
be prepared and I anticipate a copy will be forward to you next week.
In these circumstances I do not believe it is necessary to further
consider the previous decision of October 1987 and, therefore,
unnecessary to provide reasons for a decision which is admitted to
have not been made in accordance with the law."

16. On 2 September 1988, by consent, the application was dismissed and the first respondent ordered to pay the applicant's costs of the application.

17. On 2 August 1988 the first respondent had made a decision that, at the time of the applicant's retirement from the Defence Force, there did not exist grounds on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. It appears that that decision was made following a medical review of the case by Major-General Rodgers who was then described as the Director-General of Army Health Services. In a submission to the first respondent prior to the decision being made, the applicant commented adversely upon the report made by Major-General Rodgers and made the following, amongst other, assertions:

"3. The Department assured the Ombudsman and the Australian
Government Solicitor's representative stated to Mr Justice
Neaves that an independent review would be conducted.
4. Despite these assurances and a letter by DGAHS staff to AVM
Frost of Feb '88, no such independent review was conducted
and your staff have agreed to disregard the farce that did
eventuate as limited, biased and irregular. (My letter of 27
Apr '88 refers).
5. Because DGAHS staff would not agree to a proper independent
review Maj General Rogers (sic) was nominated as the medica l
reviewer. His report of the 14 Jul '88 was not initially
released to me at his express orders and was obtained at my
insistence on 18 Jul '88 because of the legal requirements.
I consider his report biased, incorrect and highly defamatory."

18. On 29 August 1988, the applicant commenced a further proceeding in this Court (numbered ACT G 39 of 1988) under the Judicial Review Act seeking an order of review in respect of the decision made by the first respondent on 2 August 1988. The respondents to that proceeding were the first respondent in the present proceeding and Major-General Rodgers. In a letter dated 1 September 1988 addressed to the applicant's then solicitors, the first respondent stated that the medical findings accepted by him showed that, as at 3 January 1979, the applicant "was medically fit to continue service in the Regular Army in a restricted capacity".

19. After some preliminary steps had been taken in relation to the proceeding, the respondents consented to orders that the decision the subject of the application be set aside and that the respondents pay the applicant's costs of the application. Those orders were made on 9 December 1988.

20. The first respondent subsequently arranged for the second respondent, who was then the Director of Medical Services, 2nd Military District with the rank of Colonel, to conduct a medical review in connection with the application under s.37 of the Act. Major-General Rodgers telephoned the second respondent and requested him to conduct such a review. That telephone call was followed by a letter dated 3 January 1989 addressed to the second respondent by Colonel L.O. Peters, Acting Director-General Personnel Operations - Army. The letter is headed "Review of DFRDB Entitlements for Ex Maj Cox" and reads as follows:

"1. In proceedings before the Federal Court a previous decision
made under section 37 of the DFRDB Act 1973 was set aside. It has
become necessary for an officer who has not been previously
involved in the former member's case to conduct a medical review.
2. Research indicates that you have not previously treated Maj.
Cox or been involved in his medical classification. Provided this
is correct, the CGS has directed that you are to complete the
medical review. For that purpose Reference A is enclosed. Would
you please forward your report direct to DSC-A and return the brief.
3. In view of the previous court proceedings, it will be
necessary for Army to show that you have not been previously
involved in the case or discussed the matter with any officer who
has been involved. Would you please ensure that you do not
discuss this case with other persons."

Attached to the letter as Reference A was a series of documents. One of the documents stated that "the purpose of this brief" was to permit the second respondent, in accordance with s.37 of the Act, to -

"a. determine (in hindsight) what MAJ Cox's medical condition
was at the time of his discharge; and
b. advise whether or not MAJ Cox could have been retired on the
ground of invalidity or of physical or mental incapacity to
perform his duties."

That document concluded with the following recommendation:

"It is recommended that in determining what MAJ Cox's medical
condition was at the time of discharge, you address each of the
conditions alleged by MAJ Cox to have justified a discharge on
medical grounds."

21. The second respondent's report is dated 15 February 1989. Under the sub-heading "Preamble", a short reference is made to the applicant's military service and this is followed by a paragraph, par 9, to which particular attention was directed by counsel for the applicant. The paragraph reads:

"9. Ex Major Cox is painted as an aggressive, brash,
introspective man with hypochondriacal tendencies by several
specialists and by a general duties medical officer. His
personality has complicated interpretation of his symptoms. This
description is in accord with my personal recollections of the
man. He served at Kapooka during my posting there although he was
never a patient of mine."

22. The several specialists and the general duties medical officer are not identified in the report and, so far as I am aware, the material upon which the second respondent relied in attributing to them the views set out in par.9 of the report is not reproduced in the documents annexed to the second respondent's affidavit as being the documentation supplied to him. Comments of the kind referred to in par.9 of the report are contained in documents referred to in the reasons for decision of the Administrative Appeals Tribunal dated 2 February 1990 to which reference is made later in these reasons. It is to be noted, however, that the Tribunal was highly critical of the information contained in those documents. It is also to be noted that, in the course of his oral evidence, the second respondent agreed that he did not know the applicant well and, in answer to a question what precisely was his association with the applicant, said:

"We were officers in the same camp at Kapooka outside Wagga Wagga.
We were members of the same officers' mess and therefore met
socially at mess functions and in passing our daily business."

23. Under the sub-heading "Deliberations", the report states that the applicant's Central Medical Record and Unit Medical Record had been reviewed as had the additional medical opinions which post-dated the applicant's discharge and were provided in the brief of material made available to the second respondent under cover of the letter dated 3 January 1989. The report does not, however, discuss, or indeed refer to, the contents of the documents in which those opinions were expressed. The only discussion appearing under that sub-heading is set out in pars 13-15 inclusive in the following terms:
"13. Ex Major Cox consulted JSHC in Mar 78 regarding his knee,

Feb 78 regarding a recurrence of his neck symptoms, and as far
back as May 77 regarding the pain behind his eye. In fact it is
reported that in Dec 77 he was leading a full and active life.
Review by a specialist was to occur if ex Major Cox thought he
needed it. There is no evidence that ex Major Cox chose to avail
himself of this help. The inference drawn from this is that he
was relatively symptom free.
14. While it is conceded that the FMB was less than thorough in
recording past history, there is no evidence in the board's
proceedings to indicate that ex Major Cox was symptomatic at the
time. This is corroborated in part as the member had not reported
sick for some months prior to the board with any symptom relevant
to the major issues (neck, eye, knee, gastrointestinal).
15. Ex Major Cox's hearing deteriorated between 73 and 78. This
is reasonably attributed to service. At discharge a moderate
degree of sensori-neural deafness was recorded. No mention of
tinnitus was made."

24. Then follows (pars 16 and 17), under the sub-heading "Determination", a statement of the conclusion to which the second respondent had come. Those paragraphs read:
"16. Viewed in hindsight, at discharge ex Major Cox was suffering

from intermittent neck pain and pain behind the eyes. His neck
pain was attributed to spondylosis of C6/7 although no substantial
evidence existed to confirm this. His cervical spine was
otherwise reported as normal. Headaches were associated with
this. He had damage to the right trigeminal nerve with some
numbness of parts of the face, and he had mild hypersalivation.
He had a moderate degree of sensori-neural deafness. There was
some early osteo-arthritis in the left knee as a result of his
past wounding. He suffered occasional indigestion and was
diagnosed as having diverticulosis. Haemorrhoids were present but
asymptomatic. Shrapnel was still present extracranially. The
board found him P3 U2 L3 H3 E1 E1 M2 S2 and this translated to a
PES of CZE - a grading which permitted continuance of service if
he so chose.
17. Notwithstanding the shortcomings of the record of the FMB
proceedings, I concur with the finding of the board. In
particular, there was no ground singularly, or as a composite of
medical problems, sufficient to retire him on the ground of
invalidity, or physical or mental incapacity to perform his duties."

25. By letter dated 9 February 1989 addressed to the first respondent, the applicant made a request under s.48 of the Freedom of Information Act 1982 (Cth) that there be expunged from his service records "all statements which intimate that a psychiatric or psychological condition is present or likely or any such like reference". That request having been refused, the applicant sought a review of the decision by the Administrative Appeals Tribunal. That application was heard on 26 June and 4 July 1989 and a decision thereon was given on 2 February 1990. The Tribunal set aside the decision under review and, in substitution therefor, decided to amend the applicant's service medical records and any psychological records in a number of respects.

26. The Tribunal was of opinion that the offending documents should not be removed from the applicant's files even if it had power so to direct as such removal "would obscure the history of the matter and would in fact obscure a prima facie case that serious errors occurred in some medical assessments of the applicant nearly 20 years ago". After referring to the applicant's account of the circumstances in which he was wounded in Vietnam, the Tribunal observed:

"That the incident should have been virtually put to one side in
much of the later consideration of his medical difficulties, and
ceaseless search made instead for some cause within himself of his
medical difficulties, both anterior and exterior to the trauma
that occurred, is quite baffling to someone looking in on the
story from the outside."

27. In relation to each of the documents under consideration, the Tribunal made a finding that, because of later findings and opinion supporting a prima facie case that the applicant's medical problems derived from wounds sustained in Vietnam, the document was incorrect, incomplete, misleading or out of date or exhibited a combination of those characteristics. In relation to one of the documents, the Tribunal said:

"The report in addition makes a number of pejorative comments
about the applicant expressed in lay terms. It would be dangerous
to make any use of it for any administrative purpose in the light
of these circumstances and in the light of what has now been found
about the existence of musculo-skeletal injuries and trigeminal
nerve damage."

The Tribunal also expressed the hope that its reasons for decision would be of some assistance -

"in the assessment of the extent to which the reasonableness of
the applicant's essential claim, namely that his extensive
symptomatology and his eventual resignation from the Army were due
to the trauma suffered by him in Vietnam, should be judged."

28. On 22 September 1989, the applicant had commenced a further proceeding in this Court under the Judicial Review Act (proceeding numbered ACT G 54 of 1989). By that application he sought an order of review in respect of the failure of the first respondent to make a decision under s.37 of the Act, and in respect of his failure "to obtain or provide an independent and unbiased review". The proceeding also sought orders of review in respect of certain conduct alleged to have been engaged in by Major-General Rodgers, Major-General Phillips and Colonel (now Brigadier) Rossi, those persons being respectively named as second, third and fourth respondents to the proceeding. In particular, it was alleged that there had been a repudiation "of an agreement to an independent external review pursuant to a consent agreement and a court order of 9 Dec. 1988". Allegations of reasonable apprehension of bias, bad faith and fraud were also made.

29. On 1 November 1989, the applicant commenced a further proceeding (numbered ACT G 61 of 1989) in this Court under the Judicial Review Act. The parties to that proceeding were the same as the parties to the proceeding numbered ACT G 54 of 1989. The subject-matter of the two proceedings was also the same though there were some differences in the allegations made and in the relief sought.

30. On 17 November 1989, the Australian Government Solicitor, acting for the respondents in the proceeding numbered ACT G 54 of 1989, wrote to the then solicitors for the applicant in the following terms:

"I refer to the telephone conversation between your Mr O'Keefe and
my Mr Coppel of 17 November 1989. I confirm that you are now
instructed by Mr Cox in this matter.
I enclose herewith a copy of a draft agreement that was sent to Mr
Cox under cover of letter dated 10 November 1989. The First
Respondent is still prepared to execute the draft Agreement should
it be acceptable to your client."

The essence of the draft agreement was that the first respondent, before making a decision in relation to the applicant under s.37 of the Act, would have regard to the medical report prepared pursuant to the agreement by "the nominated practitioner". The agreement provided that within two months of the date of the agreement the first respondent was to forward to the applicant a notice containing the names of three legally qualified medical practitioners who satisfied certain criteria specified in the agreement and who were prepared to conduct an independent medical review of the applicant. From those names the applicant was to nominate one who would then be provided with the material identified in the agreement for the purpose of conducting the review. It was further provided that the review was not to be conducted until after the final determination of the application under the Freedom of Information Act to which reference has already been made, including any appeal from the decision of the Administrative Appeals Tribunal and any subsequent proceedings relating thereto. In his affidavit sworn on 12 April 1990 and filed herein the first respondent has deposed that the letter dated 17 November 1989 was written "(i)n an attempt to satisfy the applicant's concern for an independent medical review".

31. By letter dated 23 November 1989 the applicant, through his solicitors, informed the Australian Government Solicitor that he was not prepared to consent to the draft agreement. No reasons were advanced to support the applicant's attitude and the matter was not further explored before the Court.

32. On 15 December 1989, the Court, at the request of the parties to the proceedings numbered ACT G 54 of 1989 and ACT G 61 of 1989, made consent orders in each matter in the following terms:

"1. The First Respondent make a decision for the purposes of
Section 37 Defence Force Retirement and Death Benefits Act
1973 whether grounds existed at the date of the Applicant's
retirement from the Defence Force on which the Applicant
could have been retired on the grounds of invalidity or of
physical or mental incapacity to perform his duties.
2. The Second, Third and Fourth Respondents refrain from
engaging in any conduct relating to the making of the
decision referred to in paragraph 1. hereof.
3. Any report or document already in existence relevant to the
making of the decision referred to in paragraph 1 hereof be
transmitted to the First Respondent by a person or persons
other than the Second, Third or Fourth Respondents."

33. It appears that, on 12 February 1990, Lieutenant-Colonel Andrew H. Braban personally delivered to the first respondent written material relevant to the question whether, at the time that the applicant was retired from the Defence Force, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. It further appears that on the following day, 13 February 1990, the first respondent determined that such grounds did not exist.

34. In a memorandum dated 12 February 1990 forwarding the material to the first respondent for his consideration, Lieutenant-Colonel Braban referred to the proceedings commenced by the applicant in this Court which, he said, "related primarily to an independent medical review being done, in the sense that it be a review conducted outside Army". The memorandum continued:

"On 23 Oct 89 you agreed to that course however MAJ Cox did not
continue to press for that action. On 15 Dec 89 the Federal Court
ordered that you make a decision under DFRDB Act Section 37, the
effect of which is that you can now act upon the internal medical
review conducted by BRIG Rossi."

By what process of reasoning Lieutenant-Colonel Braban reached that conclusion does not appear from the material before the Court. The mere circumstance that the applicant had declined to consent to the terms of the draft agreement submitted to him provided no foundation for the conclusion that the applicant was no longer pressing for an independent medical review.

35. The memorandum of 12 February 1990 referred to the medical review conducted by the second respondent and noted that, since that review, the Administrative Appeals Tribunal had ordered amendment of the applicant's medical records. It was said that the medical documents referred to in the Tribunal's decision were attached to the memorandum. However, the reasons for decision, as distinct from the formal decision, of the Tribunal do not appear to have been included in the documentation forwarded to the first respondent under cover of the memorandum. The first respondent was also informed that the applicant's Central Medical Record was not included in the material as it was being retained by the Administrative Appeals Tribunal. No reference was made to the applicant's Unit Medical Record.

36. In his affidavit sworn on 12 April 1990 the first respondent has deposed, and his statement was not challenged, that in reaching the decision the subject of this application he took into account the material that was delivered to him by Lieutenant-Colonel Braban and no other material.

37. What purport to be the reasons for the first respondent's decision were conveyed to the applicant by letter dated 15 March 1990. After stating that the evidence considered by him was that forwarded to him with the memorandum dated 12 February 1990, some of the material being specifically identified, the letter continues:

"I accept that aspects of your Final Medical Board were incomplete
and that you are now suffering from conditions consequential to
you being wounded in Vietnam. I accept also that there has been a
deterioration in your condition since your retirement.
Nonetheless I consider that the medical reports and other
documents do not either of themselves or collectively, provide
evidence that at the time of retirement, you were an invalid or
that you were unable to perform the duties required of you.
Accordingly I determined that at the time of retirement, you were
not an invalid. In considering your physical and mental capacity
to perform duties, I found that you were able to perform your
duties at the time of your retirement and that therefore you could
not have been discharged on the grounds of physical or mental
incapacity to perform your duties.
In reaching the Determination, I placed special emphasis on the
amendments to your medical records ordered by the Administrative
Appeals Tribunal, and took those into account when considering the
report by Colonel Rossi, and kept in mind that your medical
problems derived from wounds sustained in Vietnam rather than from
any psychiatric basis."

38. Counsel for the respondents raised a threshold argument, submitting that the applicant was not within the purview of s.37 of the Act as he was not properly described as a contributing member who "has been retired" otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties within the meaning of those words in s.37. This conclusion was not based on a contention that the reference to a member who had been retired was inapt to refer to a member whose period of military service had been terminated by reason of the acceptance of a resignation. It was, however, said to follow because the applicant, having himself initiated the termination of his military service and had, thus, retired at his own request, was properly described as a contributing member "who had retired" and not as a contributing member "who had been retired". The section, on its proper construction, applied, so it was submitted, only to a contributing member who had not himself initiated his retirement but whose retirement was brought about either by the effluxion of his term of service, whether by reason of his attaining the compulsory retiring age for the rank held by the member or otherwise, or by virtue of action taken against him on disciplinary or inefficiency grounds. A comparison was drawn between the language of s.37 which refers to the situation where a contributing member "has been retired" and that of other provisions, such as s.23(1), which refer to the situation where a contributing member "retires".

39. In considering this submission it is appropriate to have regard to certain of the provisions of the Defence Act. Sections 10 and 10A make provision for the appointment and promotion of officers of the Army and for the specification of the term of any appointment. Section 10A(2) provides that, upon completion by an officer of the period of service for which he was appointed, the appointment is to be terminated with all convenient speed, but until the appointment is so terminated he remains an officer of the part of the Army in which he is serving. Section 17(1) provides that an officer of the Army may, by writing under his hand, addressed to the Chief of the General Staff, tender the resignation of his military office, but the resignation is not to be accepted, and is not effective, except as provided by the section. The resignation may, in certain circumstances, be rejected by the Chief of the General Staff (s.17(2)). The resignation may be accepted or rejected by the Governor-General (s.17(5)) and may, in the limited circumstances mentioned in s.17(3)(a), be accepted by the Chief of the General Staff. Section 17(6) provides that, where the Governor-General or the Chief of the General Staff accepts the resignation of an officer, the resignation becomes effective on the seventh day after the date on which it is accepted or on such other date as may be specified in the instrument of acceptance. Section 39(1) provides, inter alia, that a member of the Army other than an officer is entitled to be discharged upon the expiration of the period for which, on his original enlistment or subsequent re-engagement, he was engaged to serve. When a member other than an officer becomes entitled to be discharged, he is to be discharged with all convenient speed; but until he is discharged he remains a soldier of the part of the Army in which he is serving (s.39(5)).

40. In my opinion, the limited construction of s.37 of the Act for which counsel for the respondents contended should not be accepted. Reading the Act as a whole and bearing in mind the provisions of the Defence Act to which I have referred, I am not satisfied that there is a sufficient indication of a legislative intention to exclude from the purview of s.37 a contributing member whose retirement results from the tender of a resignation pursuant to s.17 of the Defence Act. To give the provision the limited operation for which the respondents contend would, in my view, run counter to the evident beneficial purpose of the provision. It cannot be said that the statute consistently uses the expressions "is retired" or "has been retired" to refer only to a contributing member whose period of military service has been terminated otherwise than at his own request. That this is so is sufficiently demonstrated by reference to ss.23(3)(b) and 23(4) which refer to a member who is, or has been, retired at his own request.

41. The respective functions of the Chiefs of Staff and the Defence Force Retirement and Death Benefits Authority under s.37 of the Act were considered by a Full Court of this Court in Defence Force Retirement and Death Benefits Authority v Britt [1984] FCA 312; (1984) 4 FCR 306. At p 309 the Court said:

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

The latter decision was held to be one to be determined by the Authority in the exercise of the wide discretion which the section conferred upon it. Later, on the same page, their Honours said:

"The section confers a specific function upon the Chiefs-of-Staff,
that is, the function of determining whether the member could have
been retired on the ground of invalidity and informing the
Authority of that fact. This is a function properly imposed upon
the Chiefs-of-Staff for they are aware of the requirements of
service and are therefore able to determine whether the member's
medical condition was such as to justify his retirement on the
ground that he was unable to perform his duties."

42. In determining what was the applicant's medical condition at the time of his retirement, the first respondent was not confined to a consideration of the material that was before the Final Medical Board. Nor was he confined to such material as was available at the date of the applicant's retirement. His obligation was to consider whatever information was available at the time he made his determination that could throw light on the applicant's medical condition at the relevant date.

43. It is not in dispute that the first respondent, not having the necessary medical qualifications and experience, was entitled, in forming an opinion as to the applicant's medical condition at the time of his retirement from the Defence Force, to have regard to, and rely upon, expert medical opinion. It must also be acknowledged that, in an ordinary case, it would be a matter for the first respondent to select the person or persons with expertise in the appropriate field or fields of medicine whose advice he would seek. Having regard to the history to which reference has already been made, the present case can hardly be described as an ordinary case. I am satisfied on the material before the Court that the applicant was led to believe that the first respondent would, before making a determination under s.37 of the Act, have a comprehensive and impartial medical review of the applicant's condition at the time of his retirement carried out by a medical practitioner with appropriate qualifications and experience who was independent in the sense that he was not a member of the Defence Force and that, in making his determination, the first respondent would take into account the report arising from that comprehensive medical review. I have already said that I do not regard the circumstance that the applicant declined to agree to the terms of the agreement forwarded to his solicitors under cover of the letter dated 17 November 1989 from the Australian Government Solicitor as warranting the conclusion on the part of Lieutenant-Colonel Braban, a conclusion with which the first respondent appears to have agreed, that it was no longer necessary to have an independent medical review.

44. In my opinion, the circumstances were such as to give rise in the applicant to an expectation, reasonably based, that a determination under s.37 would not be made except in accordance with the procedure outlined above. That expectation was, in fact, not fulfilled and, in my opinion, the doctrine of procedural fairness entitles the appellant to hold the first respondent to his agreement or undertaking that the procedure agreed to would be followed: see Century Metals and Mining NL v Yeomans [1989] FCA 273; (1989) 100 ALR 383 at pp 408-413. It would be unfair to the applicant and inconsistent with good administration to allow the first respondent to do other than follow the agreed procedure. To require the first respondent to follow that procedure involves no conflict with the statutory duty imposed upon him by s.37.

45. The conclusion just stated is sufficient to entitle the applicant to relief. I should, however, deal with other aspects of the matter.

46. The first respondent, in making the determination under review, relied heavily upon the report of the second respondent dated 15 February 1989. As to that report, a number of critical comments can properly be made. Notwithstanding the statement in the report (par 12) that medical opinions post-dating the applicant's discharge were reviewed, the report appears to confine itself to a consideration of material that was available at the time of the applicant's retirement and, indeed, to only some of that material. For example, no comment is made upon the reports of Dr A. Robson that pre-dated the applicant's retirement. There is no reference to the content of any of the post-retirement documents, including post-retirement medical reports, and no discussion of the question whether those reports throw light upon the medical condition of the applicant at the time of his retirement. In particular, no comment is made upon Dr Robson's later reports or upon the report dated 19 February 1988 by Dr W.A. Davies in relation to which the Administrative Appeals Tribunal was to comment (p 23 of the reasons for decision) that it was "a very telling document deserving anxious study" and that it raised "a prima facie case that the applicant's problems had not in the past been understood". The reference to what was said by the Administrative Appeals Tribunal highlights the circumstance that the second respondent did not see fit to, and the first respondent did not request him to, supplement his report in any way in the light of the Tribunal's criticisms of a number of the documents concerning the applicant's pre-retirement medical condition. In this connection it is also pertinent that the source of the statements attributed to certain specialists and a general duties medical officer in par.9 of the second respondent's report may have had their source, at least in part, in a document or documents of which the Tribunal was highly critical. The further observation can be made that the second respondent failed to discuss and express an opinion in relation to "each of the conditions alleged by (the applicant) to have justified a discharge on medical grounds", a failure which is all the more surprising in the light of the history of the matter and the recommendation that he should do so in the memorandum forming part of Reference A attached to the letter to him dated 3 January 1989.

47. By reason of the matters to which I have referred, I am of opinion that the second respondent failed to take into account relevant considerations and that, in consequence, his report provided no sound foundation upon which the first respondent could rely in making the determination under review. The mere assertion by the second respondent that in preparing his report he reviewed the post-retirement medical reports is not sufficient to overcome the difficulties to which reference has been made.

48. Some comment should also be made upon the document purporting to set out the first respondent's reasons for the determination he made. The first thing to be said is that the document does not suggest that the first respondent took any step to remedy the deficiencies in the second respondent's report. Indeed he could hardly have done so in the time which elapsed between the receipt of the material by him on 12 February 1990 and the making of his decision on the following day. Lest it be thought that the matter has been overlooked, I should mention that the first respondent stated, though without elaboration, that he considered the post-retirement material identified in his letter to the applicant dated 15 March 1990. However, he does not set out what findings, if any, he reached as to the applicant's medical condition at the date of his retirement or any reasons for the conclusion he reached. Again, he states that he placed special emphasis on the amendments to the applicant's medical records directed by the Administrative Appeals Tribunal but no enlightenment is offered as to what effect, if any, such amendments were regarded by the first respondent as having upon the second respondent's report. Further, the deficiencies in the purported statement of reasons are not remedied by anything to which the first respondent deposed in his affidavit sworn on 12 April 1990. It is also to be noted that the first respondent did not have before him the applicant's Central Medical Record or the reasons for decision of the Administrative Appeals Tribunal.

49. Having concluded that the applicant is entitled to relief on the basis of what has already been said, I have found it unnecessary to consider the other submissions made by counsel for the applicant, in particular the submission that the decision should be set aside for reasonable apprehension of bias on the part of the second respondent.

50. For the reasons set out above, the decision made on 13 February 1990 by the first respondent is set aside and the matter remitted to the Chief of the General Staff for further consideration and for determination according to law. The respondents must pay the applicant's costs of the application.