Stojchevski v Secretary, Department of Employment and Workplace Relations [2005] FCA 58 (8 February 2005)

Last Updated: 10 February 2005

FEDERAL COURT OF AUSTRALIA

Stojchevski v Secretary, Department of Employment and Workplace Relations
[2005] FCA 58

ADMINISTRATIVE LAW – decision of Administrative Appeals Tribunal vitiated by misconceptions of nature of finding appearing in medical opinion tendered in evidence – proceedings remitted to Administrative Appeals Tribunal for re-determination according to law


Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to
Collector of Customs (Tas) v Davis (1989) 23 FCR 378 applied
New South Wales Associated Blue-Metal Quarries Limited v Commissioner of Taxation (Cth) [1955] HCA 23; (1956) 94 CLR 509 applied






















JOHN STOJCHEVSKI v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1376 OF 2004



CONTI J
8 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1376 OF 2004

BETWEEN:	JOHN STOJCHEVSKI APPELLANT
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Appeal be allowed.

2. Proceedings be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The respondent pay the appellant’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1376 OF 2004

BETWEEN:	JOHN STOJCHEVSKI APPELLANT
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS RESPONDENT

JUDGE:	CONTI J
DATE:	8 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background to the appeal proceedings

1 This is an appeal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) from a decision of a member of the Administrative Appeals Tribunal (‘AAT’) in its General Administrative Division made on 2 September 2004, which affirmed in turn a decision of the Social Security Appeals Tribunal (‘SSAT’) made on 6 January 2004 to the effect that the appellant did not qualify for a disability support pension (‘dsp’) pursuant to s 94(1)(b) of the Social Security Act 1991 (Cth) (‘SS Act’). That was because in the view of the SSAT, the disability impairments of the appellant should be assessed at no higher than 15 points under the Impairment Tables set out in Schedule 1B of the SS Act.

2 In so finding, the SSAT affirmed the decision by a delegate of the respondent originally made on 22 September 2003, which had been subsequently affirmed by an authorised review officer of the Department on 11 November 2003. Thus the appellant faced by way of context to the present appeal four administrative decisions already made adversely to his social security application.

3 At the hearing of the appeal before the Federal Court, the appellant was not represented by a legally qualified practitioner. He was however accompanied by his son Dr Michael  Stojchevski, to whom I shall refer as Dr Stojchevski. Dr Stojchevski was born in Australia and holds a doctorate in physics and related scientific study. I allowed him to speak on his father’s behalf, since the appellant did not have a good command of English, and in particular, of medical terminology.

4 The appellant was born in Macedonia some fifty–eight years ago, as the youngest of six siblings of a working class family. He migrated to Australia at the age of 21 years, being sponsored for that purpose by his in-laws. He attained the equivalent of the higher school certificate in Macedonia, but experienced difficulty in finding work there. After arrival in Australia, he worked in a variety of labouring jobs for about 15 years. Thereafter he worked for nine years (until about 1989) as a customs liaison officer with the Commonwealth Bank, after which he worked as a security officer at Garden Island for two years before ‘being let go’, and lastly he worked for six months with the Sydney City Council. Since that time (1995) the appellant has been unemployed. He has been receiving Newstart since 1996. He separated from his wife many years ago, though they have continued to live under the same roof. He has two brothers and one sister, each of whom has remained in Macedonia.

5 Section 94 of the SS Act, so far as is material, provides as follows:

‘94(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

...

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: for ‘work’ see subsection (5)

...

94(4) For the purposes of subparagraph 2(b)(ii), if a person has turned 55, the Secretary may, in considering whether education or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.

94(5) In this section:

...

"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

...

"on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

...

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person’s locally accessible labour market.’

6 As state earlier, Schedule 1B to the SS Act provides for Impairment Tables for the Assessment of Work-Related Impairment in the context of an application for the Disability Support Pension. Table 3 stipulates the following ratings and criteria to be used in relation to "Upper Limb Function’:

‘TABLE 3. UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria

NIL Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function of manual handling or

Unable to use non-dominant upper limb at all.

THIRTY Unable to use dominant upper limb at all.’

7 Table 4 stipulates the following rating and criteria to be used to assess ‘Function of the Lower Limbs’ which fall to be assessed with ‘Spinal Function" the subject of Table 5:

TABLE 4. FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.

Rating Criteria

NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair.

THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

•	Requires quad stick, crutches or similar walking aid, or

•	Is unable to transfer without assistance.

FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.’

8 Table 5 relating to ‘Spinal Function’ rating and criteria stipulates the following:

‘TABLE 5. SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.1 CERVICAL SPINE

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of quarter of normal range of movement.

TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY Loss of three-quarters of normal range of movement and constant neck pain.

THIRTY Loss of almost all movement, or complete ankylosis in position of function.

FORTY Ankylosis in an unfavourable position, or unstable joint.

TABLE 5.2 THORACO-LUMBAR-SACRAL SPINE

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of one-quarter of normal range of movement.

TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:

•	with many physical activities and

•	with standing for about 30 minutes and

•	with sitting or driving for about 60 minutes.

or

•	Loss of half of normal range of movement.

TWENTY Loss of half of normal range of movement as well as back pain or referred pain:

•	With most physical activities and
•	With standing for about 15 minutes and
•	With sitting or driving for about 30 minutes.

or
Loss of three-quarters of normal range of movement.

FORTY Ankylosis in an unfavourable position, or unstable joint.’

9 Each of those functional capacities affects a person’s ability to work, and reflects proportional severity of the impact of the respective medical conditions on normal function, in so far as functions are related to work performance. They purport thus to be function based, rather than diagnosis based. The difficulty does not appear however to have emerged in the present circumstances. The respondent Secretary pointed out that any issue arising as to which Table or Tables are appropriate to use depends on what are the functional losses in relation to which a person is found to have suffered. Two or more medical conditions, in this case the appellant’s thoraco lumbosacral spine spondylosis and bilateral hip pain, may therefore result in a common impairment and, if that is the case, it would be inappropriate to assign a separate impairment rating for each medical condition. Otherwise, the respondent Secretary further pointed out, to do so would result in the same functional loss being assessed more than once. That difficulty does not appear however to have emerged in the present circumstances. The respondent Secretary acknowledged that if there is a choice between Tables under which a particular impairment may be assessed, the general approach, which the respondent Secretary would adopt, would be to choose the Table that enables a higher rating to be assigned. What should be the appropriate Table in the event of dispute, the respondent Secretary further contended, would be a matter for the AAT. Any such issue did not arse in the present context.

History of the critical assessment and review processes in more detail.

10 The appellant lodged a claim for a dsp with Centrelink on 22 May 2003, nominating thereby the following medical details of disability:

(i) depression;

(ii) cervical spine injuries; and

(iii) degenerative changes in acromio-clavicular joints of both shoulders, and traumatic deformity of the inferior aspect of the glenoid on the right side.

11 Diagnostic reports forwarded with the original lodgment application included an X-ray report of the cervical spine and both shoulders, the report of a radiologist Dr Bryant of 15 November 2002 containing the following:

‘CERVICAL SPINE

There is an exuberant anterior osteophyte formation at C5/6 with some lesser change above. Degenerative disc disease is present at C6/7.

There is some bony narrowing of the C7/T1 neural foramen bilaterally.

BOTH SHOULDERS

There is post traumatic deformity of the inferior aspect of the glenoid on the right side.

There is some degenerative change in both acromio-clavicular joints.’

12 From that time, a number of medical reports were obtained in relation to the appellant, each of which have been cited and/or partially extracted in chronological sequence in the decision of Dr J D Campbell of 2 September 2004, the member of the AAT from whose decision this present appeal has been brought. Those medical reports comprised the following, in addition to the report of the radiologist Dr Bryant of 15 November 2002 already extracted:

(i) Dr Kolmacic (treating doctor) of 9 July 2003;

(ii) Dr Kecmanovic (consulting psychiatrist) of 23 July 2003;

(iii) Dr Todorovic (further treating doctor) of 30 July 2003;

(iv) Dr Paul (medical adviser with Health Services Australia) of 2 September 2003;

(v) Bryant (further CT scan of lumbar spine) of 6 November 2003

(vi) Dr Guirgis (consultant orthopaedic surgeon retained by the applicant) of 18 November 2003;

(vii) Dr Todorovic (as above) of 19 March 2004 and again on 25 March 2004; and

(viii) Dr Stewart (also a medical adviser with Health Services Australia) of 4 May 2004.

Thus it will be seen that only the first four of those reports were made prior to the delegate’s decision, the fifth was obtained prior to Departmental Review Officer’s decision, and the remainder thereafter. All reports were however made prior to the AAT decision. That report upon which the appellant primarily relied, namely that of Dr Guirgis, was made prior to the AAT decision. No point was taken on behalf of the respondent that any report to be relied upon necessarily had to be made before the delegate’s decision. That is understandable, in that because of the often changing nature of a physical condition, it may sometimes be expedient or even critical for there to be up-to-date reports obtained before any review hearing takes place.

13 The AAT made the following findings of fact in respect of the appellant’s impairments suffered and symptomatology associated with each impairment:

‘(a) Cervical Spine: Degenerative cervical spondylosis with disc degeneration at C6/7.

Major symptom is pain in back of neck radiating to back of head causing headaches.

(b) Shoulders: Degenerative changes in both acromio-clavicular joints.

Full thickness tear left supraspinatus tendon.

Major symptom is pain in left shoulder when left arm abducted and/or elevated.

(c) Hips: Osteoarthritis both hips with left hip worse than right.

Major symptom is pain, with some restriction of movement and pain radiation to knees when standing for extended periods.

(d) Thoraco-lumbar spine: Lumbar spondylosis with episodic low back pain.

(e) Depression: History of depressive episode in 1969. Symptoms of difficulty with sleeping, irritable mood, limited social interaction, limited activity and poor concentration. Treated with anti depressants and sedative. Continues care under general practitioner and psychiatrist.’

14 Having made those findings, which were apparently non-controversial so far as they went, the AAT concluded that the appellant satisfied s 94(1)(a) of the SS Act, in that the appellant was considered to suffer from both physical and psychiatric impairments. The AAT thereafter turned to the assessments required to be made in accordance with the appropriate Impairment Tables under Schedule 1B of the SS Act, which I have already extracted, namely those relating to the upper and lower limbs and spinal functions.

The AAT assessments in sequence in accordance with the appropriate Impairment Table under Schedule 1B of the Act

15 The first assessment made by the AAT related to the appellant’s claim based on Table 5.1, that involving Cervical Spine issue arising (being also referred to as the Cervical Spondylosis issue); the Table appropriate thereto is ‘Table 5.1 Cervical Spine’ (supra).

16 The AAT observed that there were no references in the medical reports of Drs Kolmacic or Todorovic to an examination of the appellant’s cervical spine, nor was there any documentation as to a range of movement; those reports were of course made prior to the delegate’s decision. The AAT next observed that Dr Paul had reported on 2 September 2003 that the appellant had a nearly normal range of movement of the cervical spine on clinical examination; that report was also made prior to the delegate’s decision. Thereafter the AAT observed that Dr Guirgis reported on 18 November 2003 a less than one quarter loss of normal range of movement of the cervical spine; as I have already indicated, that report, upon which the appellant placed critical reliance, was not obtained until after the Departmental review on 11 November 2003.

17 Purportedly pursuant to Table 1 (relating as earlier indicated to the cervical spine), the AAT concluded that the appropriate impairment rating for cervical spondylosis in relation to the appellant ‘during the operative period’ should be ‘nil points’, the appellant having a nearly normal range of movements of the cervical spine during the operative period. The AAT did not indicate precisely what was meant by ‘the operative period’, for what that might ultimately matter.

18 Purportedly in relation to Table 3, the AAT observed that the appellant’s major upper limb complaint was concerned with the functioning of the left limb, resulting from the ruptured left supraspinatus region, which caused pain with abduction and/or elevation of the left arm, and a loss of 25 per cent of the normal range of movement of the left shoulder, with consequential loss of strength and interference with manual handling and dexterity. In observing that the left arm is the appellant’s non-dominant arm, the AAT concluded that the appellant had a rating of five impairment points pursuant to Table 3; the AAT further concluded that notwithstanding that one of the medical reports in evidence referred to a loss of function in the right upper limb, the appellant had a nil impairment rating in relation to the right upper limb.

19 The third assessment made by the AAT related to the appellant’s more critical claims, being those based on the Table 4 ‘Function of Lower Limbs’ issue arising, and also upon the Table 5.2 ‘Thoraco-Lumbar-Sacral Spine’ issue arising, or more precisely, what the AAT referred to as the ‘Thoraco lumbar spine spondylosis and bilateral hip pain’ issue. The AAT observed that the appellant had lumbar spondylosis and arthritis in both hips with pain and loss of function being more severe in the left hip, and further that the appellant complained of back pain which radiated to his knees, if he happened to be left standing for more than one hour. The AAT acknowledged that there was evidence before the AAT from Dr Guirgis that the appellant had a loss of one quarter of normal range of movement of the lumbar spine at clinical examination.

20 Nevertheless from the symptomatology and findings at clinical examination, the AAT concluded that the appellant had an impairment rating of ten under Table 4, by reference to the appellant having ‘a demonstrable loss of strength, mobility, balance and coordination, which caused moderate interference with walking, sitting, climbing and squatting (partial)’. Alternatively, the AAT concluded that the appellant had ‘an impairment rating of ten under Table 5.2’, as he had ‘a loss of one quarter of normal range of movement of the thoraco-lumbar sacral spine as well as back pain and referred pain with many physical activities and with sitting or driving for about 60 minutes.’ In the result, the AAT considered that the appellant’s low back/hip impairments could be assessed under either Tables 4 or 5.1, with the appropriate assessment being the highest impairment rating, and concluded that the appellant’s low back/hip impairment had an impairment rating of ten.

21 Under the fourth heading Depression, the AAT gave consideration to the matter of the appellant’s condition in that regard, referring in context to Table 6 headed ‘Psychiatric Impairment’, which I have not reproduced. The AAT referred to an assessment by Dr Kolmacic, the appellant’s treating general practitioner, as to the appellant’s depression being ‘well managed and causing minimal or limited impact on his ability to function’, and to an assessment by Dr Kecmanovic, consultant psychiatrist, that the appellant had symptoms of dysthymia, which he had difficulty in assessing. The AAT further referred to assessments by Dr Todorovic and Dr Paul, both of whom described the appellant’s mental health symptoms as in effect not severe, and also by Dr Guirgis, who spoke of a diagnosis of depression/adjustment disorder, without however nominating any mental health history or clinical treatment. In the result, the AAT concluded that the appellant’s ‘mental health symptoms are mild and regular which cause subjective distress’ to the appellant, and that ‘within the operative period and for the reasons nominated earlier, the assessment of the appellant’s psychiatric impairment was nil for the purposes of Table 6’. Once again however, the AAT did not indicate what was intended by the expression ‘the operative period’.

22 In the result, the AAT concluded that the combined impairment rating in relation to the appellant was 15, and as such did not satisfy s 94(1)(b) of the SS Act, and that therefore the appellant did not qualify at all for a disability support pension. In making that assessment, the AAT provided the following summary of the medical practitioners’ views as to whether the appellant had a continuing inability to work within subsections (2), (4) and (5) of s 94 of the SS Act (extracted in [5] above):

‘Dr Kolmacic - no definitive comment

Dr Kecmanovic - no definitive comment

Dr Todorovic - no definitive comment in report of 30 July 2003

Dr Paul - unfit for heavy work, but with educational, vocational or on-the-job training fit for light low skilled work for more than 30 hours per week (25 September 2003)

Dr Guirgis - no definitive assessment (18 November 2003)

Dr Todorovic - permanently unfit for any strenuous work involving excessive pressure to his neck, lower back, shoulders, hips and knees (19 March 2004)

- the impairment prevents the [appellant] from doing his usual job or other work for which he is skilled for at least two years. The impairment will prevent the [appellant] from undertaking education or vocational training within the next two years (25 March 2004).’

The dates bracketed above referred implicitly to reports of the medical practitioners identified respectively in the left hand column.

23 The conclusion of the AAT to the foregoing medical reports was as follows:

(i) there was an absence of definitive comment from most doctors as to the appellant’s ability or inability to work;
(ii) Dr Todorovic’s latest two reports of 19 March 2004 and 25 March 2004, ‘albeit outside the operative time frame for consideration in addressing the claim,’ were ‘clearly contradictory’; that was because ‘the earlier report states the [appellant] is unfit for a particular type of work activity, and the latter, being a week later, is particular in defining the [appellant] as unfit for work’;
(iii) ‘the [appellant] does not have a continuing inability to work’, and his ‘impairments do not prevent him from undertaking light low skilled activities for 30 or more hours per week within the next two years’; and
(iv) ‘the [appellant’s] impairments do not prevent him from undertaking educational, vocational or on-the-job training during the next two years, with such training being likely to enable the [appellant] to do work within the next two years’; in so finding, the AAT stated that it ‘ ... notes the symptoms experienced by the [appellant] in the various reports and the assessment of his work capacity by Dr Paul’.

24 The summary of the AAT in conclusion was that the appellant had failed to satisfy the statutory requirements of having a continuing inability to work pursuant to subsections (2), (4) and (5) of section 94 of the SS Act, and accordingly the AAT found that the appellant failed to qualify for a disability support pension ‘pursuant to both ss 94(1)(b) and 94(1)(c) of the SS Act. The AAT observed in conclusion that ‘it is evident that the [appellant] changed his treating general practitioner three times during the period in question and his treating psychiatrist twice during the period in question’, and moreover that ‘... the assessment process in this matter would be assisted in the future by relevant reports from both the treating general practitioner and the treating psychiatrist’.

25 In the result, the AAT affirmed the decision under review.

The case on appeal

26 The appellant raised the following purported questions of law on the appeal -

1. Did the AAT miscalculate the appellant’s impairment points?
2. Did the AAT err in its interpretation of the evidence in determining that the appellant’s impairment points did not total 20 or more?

The respondent’s submissions

27 It is convenient and appropriate to first outline the respondent Secretary’s submissions, since the appellant was not legally represented, and understandably did not have a comprehensive understanding of the implications of legal principle involved.

28 The respondent Secretary emphasised at the outset of submissions that s 44 of the AAT Act confers jurisdiction on this Court only upon a question of law, and contended that no question of law was raised by the appellant on the appeal. I was referred to what the Full Federal Court observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (Neaves, French and Cooper JJ) said at 286:

‘The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the [AAT]. The appealable error of law must arise on the facts found by the [AAT] or must vitiate the findings made or must have led the [AAT] to make a finding it was legally required to make ... Only in exceptional circumstances should the decision of the [AAT] not be the final decision’.

29 The Full Court in Pozzolanic subsequently provided illustrations and explanations of the fundamental principle involved. At 287, the following appears:

‘This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in language of the [AAT] nor with unhappy phrasing of the [AAT’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.’

Thereafter five general propositions were listed by the Full Court as emerging from the cases:

‘1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law ...

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact ...

3. The meaning of a technical legal term is a question of law ...

4. The effect or construction of a term whose meaning or interpretation is established is a question of law ...

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.’

30 Moreover in Collector of Customs (Tas) v Davis (1989) 23 FCR 378, Beaumont J observed at 382:

‘In the present case, it is not suggested that any of the material terms of the legislation have any special meaning. It follows their ordinary meaning should be treated as a question of fact. On the other hand ... can it be said that the evidence before the [AAT] "reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined"? If so, a question of law is involved’.

31 Earlier in New South Wales Associated Blue-Metal Quarries Limited v Commissioner of Taxation (Cth) [1955] HCA 23; (1956) 94 CLR 509 at 512, Kitto J applied the principle to the issue there involved as follows:

‘The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact’.

32 The focus of the appellant’s submissions concerned the medical report of Dr Guirgis made on 18 November 2003, which was made after the decision of the delegate given on 22 September 2003, and the affirmation of that decision on 11 November 2003 by a Departmental authorised review officer, but prior to the decisions of the SSAT and the AAT respectively on 6 January 2004 and 2 September 2004. Dr Guirgis’ report of 18 November 2003 which I have earlier extracted, spoke of a loss of cervical spine function of ‘about one quarter of normal range’, whereas in par 31 of the reasons for decision of the AAT, the member recorded Dr Guirgis as having ‘reported a less than one quarter loss of normal range of movement of the cervical spine.’ Had one quarter loss of cervical function per se been found by the AAT, the appellant would have apparently achieved the 20 points required for qualification, instead of the 15 points accepted by the AAT as established below.

33 According to Mr Markus of the Australian Government Solicitor, who appeared for the Secretary and provided considerable assistance to the Court, the Secretary’s postulation of ‘less than one quarter loss...’ was based on the report of Dr Paul, he being a general and not specialist practitioner in the employ of House Services of Australia, a government organisation which renders medical assistance to the Department of Social Security. Dr Paul’s report, as I have earlier indicated, was furnished earlier on 2 September 2003, and therefore prior to the delegate’s decision on 22 September 2003. Dr Paul’s handwriting is very difficult to decipher, but be that as it may, Dr Paul’s report was placed before all decision-makers referred to at the beginning of these reasons, and it is common ground that he expressed inter alia that conclusion. Strictly speaking, it would seem, neither the SSAT nor the AAT was obliged to take into account Dr Guirgis’ report, not having been provided to the original decision maker by reason of having been subsequently commissioned, but that position was not adopted by either Tribunal, which in my opinion was both a practical as well as appropriate course to pursue in the particular circumstances of this case.

34 The following additional matters were emphasised to the Court at the hearing on behalf of the appellant by his son Dr Stojchevski:

(i) Dr Paul ‘didn’t actually perform an examination on my father, and the other doctors weren’t actually instructed to do so’ (there was however some evidence of at least a limited albeit supposedly perfunctory, examination having been undertaken);

(ii) Dr Guirgis was a specialist orthopaedic surgeon who provided a ‘quite comprehensive’ report; his assessment of ‘total body impairment percentages was as follows:

‘• Cervical spine function (Table 5.1) 5 points. Loss of about one quarter of normal range of movement.

• Lumbar spine function (Table 5.2) 10 points. Loss of one quarter of normal range of movement as well as back pain or referred pain: with any physical activities and with standing for about 30-minutes, and with sitting or driving for about 60-minutes.

• Upper limb function (Table 3) 5 points. Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function and handling.

• Depression/Adjustment disorder (Table 6) 10 points. Moderate and regular symptoms and generally functioning with some difficulty.’

I would infer from the evidence that Dr Guirgis was the most senior medical practitioner, certainly of specialised qualifications, who reported on the appellant;

(iii) those percentages were subsequently adopted by Dr Todorovic in his report to Centrelink of 25 March 2004;

(iv) ‘the [AAT] made an error in misinterpreting or omitting data or information so that the impairment would in effect fall below the threshold’;

(v) ‘... Dr Paul assessed my father as having ten points under Table 4... Dr Guirgis also assessed my father as having ten points under Table 5.2... the [AAT] has in effect combined Dr Paul’s finding under Table 4 with Dr Guirgis’ finding under Table 5.2 and they’ve combined the two ten point assessments into one... Table 4 and Table 5 should be treated as separate tables’;

(vi) having been informed that the appellant had been examined by a specialist psychiatrist Dr Sokolvic, whose report in writing was still awaited by the time of the AAT hearing, the AAT should have ‘taken some time to wait for that’;

(vii) ‘... by allocating five points, I think [Dr Guirgis] was stating his opinion... [that] it was very close to one-quarter and the [AAT] somehow interpreted that as meaning less than one-quarter’.

My conclusion

35 Despite the commendable care and detail which the AAT applied to the complexity of the task on hand, I think that the AAT did misinterpret Dr Guirgis’ report to the material extent complained of by the appellant at the hearing, and as reflected in the submissions on behalf of the appellant as summarised immediately above. Therefore the question arises as to whether its decision was vitiated according to law. What is here involved is not merely a decision upon material placed before the AAT which could have reasonably admitted of a different conclusion as to the significance thereof. Nor was it a case of mere looseness of language used by the AAT, nor a merely semantic error. It was a mistaken interpretation of an expert opinion which, if not made, would have produced the difference between qualification for a statutory entitlement. The critical material in evidence before the AAT did not reasonably admit of any different conclusion, involving as it did a qualifying calculation as to that entitlement. The principle as to involvement of a question of law is I think within the scope of the dicta in Davis and Blue-Metal Quarries which I have earlier cited.

36 The appeal must therefore be upheld, and the proceedings remitted to the AAT for consideration and determination according to law, that is to say, upon the footing of the true meaning and import of Dr Guirgis’ report in evidence. The appellant is entitled to his costs of the appeal, which presumably would be confined to any court fees outlaid, the appellant not having been represented on the appeal by a qualified practitioner.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti .

Associate:

Dated: 8 February 2005

The Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 2004
Date of Judgment:	8 February 2005