Federal Court of Australia

The Court orders that:

1. The application be dismissed

2. The applicant pay the respondents' costs.

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 670 of 1996
	)
GENERAL DIVISION	)

BETWEEN:	JOHN GEORGE MEADE Applicant
AND:	REPATRIATION COMMISSION Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY
DATED:	18 APRIL 1997

REASONS FOR JUDGMENT

The applicant served in the Pacific for three years during the Second World War, facing combat in Phillip Island, New Guinea and the South China Sea. It is accepted that he has been diagnosed as having a number of war caused incapacities including, relevantly for present proceedings, generalised anxiety disorder.

On 12 December 1994, the Repatriation Commission assessed the applicant's war disability pension at 100% of the general rate of pension plus the extreme disablement adjustment as specified in subsection 22(4) of the Veterans Entitlement Act ("the Act"). That decision was affirmed by the Veterans Review Board on 10 August 1995 and, following review by the Administrative Appeals Tribunal ("the Tribunal"), the decision was affirmed on 19 July 1996.

The question before the Tribunal was whether the applicant should be granted the special rate of pension pursuant to the Act which provides for such a special rate for veterans to whom section 24 applies. These proceedings are an appeal pursuant to section 44 of the Administrative Appeals Tribunal Act (Cth) 1975 which authorises an appeal to this court on a question of law.

Under section 24(1), that section applies to a veteran if certain pre-requisites are satisfied. The relevant provisions of section 24 are as follows:

"(1) This section applies to a veteran if:

(c) ..... the veteran is, by reason of incapacity from war-caused disease alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages...that the veteran would not be suffering if the veteran were free of that incapacity;...

(2) For the purposes of paragraph (1)(c):

(a) a veteran who is incapacitated from ... war-caused disease ... shall not be taken to be suffering a loss of salary or wages .... by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused ..... disease;... or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason ...."

The question before the Tribunal was whether the pre-requisite specified in section 24(1)(c) of the Act had been satisfied with respect to the applicant. The Tribunal stated its task as being to determine, relevantly, whether the applicant's incapacity from war caused disease is preventing him from continuing work and as a result he is suffering a loss of remuneration.

In the applicant's notice of appeal, the questions of law said to be raised are as follows:

"(a) The sole issue in dispute before the Tribunal was whether the Applicant met the so-called "alone" test i.e. the requirements of paragraphs 24(1)(b) and (c) of the Act at the application date (18 October 1992) that his war caused injuries alone prevented him from continuing to engage in remunerative work;

(b) The Tribunal found to its reasonable satisfaction that the Applicant was retrenched at age 55 because he drank alcohol to excess and but for his drinking he would have continued work.

(c) The Tribunal found to its reasonable satisfaction that the Applicant was still drinking to excess at the application date.

(d) The Tribunal did not find that the drinking of alcohol to excess was a war-caused disability.

(e) The Tribunal reasoned that if the Applicant could no longer work at age 55 because of a non-war caused disability and also at the application date then it could not reasonably be satisfied that at the application date he satisfied the so-called "alone" test of paragraphs 24(1)(b) and (c) of the Act.

(f) The question of law is whether the Tribunal failed to take into consideration a relevant consideration in its finding that the Applicant's drinking to excess was not a war caused disability within the meaning of the Act."

The grounds of appeal stated in the notice of appeal are as follows:

"(a) The Tribunal's reasons make no reference to the evidence of Doctor Lambeth whose report is among the section 37 documents.

(b) Dr Lambeth states that it is highly likely that alcoholism is also related to his war service, being secondary to the Applicant's anxiety state.

(c) The Tribunal's reasons make no reference to the evidence of the Applicant of a connection between his anxiety state and his alcoholism.

(d) The Tribunal listed in the reasons for its decision generalised anxiety state as one of the Applicant's war caused disabilities.

(e) Hence the Tribunal failed to take into account the casual connection between war-caused disability of general anxiety state and the Applicant's alcoholism in finding that the drinking of alcohol to excess was not a war-caused disability."

The Tribunal found that the applicant was retrenched from his job as a mine supervisor in 1982 at the age of 55 because he drank alcohol to excess and, but for his drinking, he would have continued to work until the average retirement age of 65. The Tribunal found that the main reason the applicant was retrenched and was unable to find further employment at the age of 55 was because of his excessive alcohol consumption and the impact this had on his work duties.

It was contended on behalf of the applicant that it was implicit in the Tribunal's conclusion that alcohol abuse was not accepted as a war caused disability. The thrust of the applicant's contention is that the Tribunal failed to take into account evidence as to the casual connection between a war caused disability consisting of "general anxiety state" and the applicant's alcoholism. The question of law said to be raised is whether the Tribunal failed to take into consideration a relevant consideration in making a finding in which there is implicit a conclusion that the applicant's drinking to excess was not a war caused disability.

I was referred to the following evidence which was said to support the conclusion that the applicant's alcoholism was a war caused incapacity:

1. A report by Dr. Lambeth of 5 March 1993 containing the following statement:

"Mr Meade has also suffered from alcoholism, although he is now in sobriety. It is highly likely that the alcohol is also related to his war service, being secondary to his anxiety."

2. The original claim for disability pension made by the applicant containing the following response to a question as to how service caused the disability of anxiety state:

"I was an alcoholic for many years. I am anxious about everything."

3. A report by Fiona Curdie-Evans, consultant occupational therapist of 22 April 1996 containing, inter alia, the following statement:

"Mr Meade indicated that he has suffered from Generalised Anxiety Disorder since the 1940's. He attributes it to his alcoholism. He stated that he started drinking when he was 18 years old because drinking was part of the Navy lifestyle."

4. Evidence given in chief by the applicant as follows:

"Now, you have also said that in about 1980 you were drinking a fair bit?---- Yes. In your life when did you commence drinking? ----- Well, I was 16 and I went to Flinders and the first leave I had everybody seemed to drink and I went on my own. The next leave I had a few drinks, I - you'd only have two or three drinks and you were half silly because I wasn't used to it and eventually when I went on the ship whenever they went off the ship everybody - you were a loner if you didn't go with them, so I drank and drank and just continued on.

You have also said that about 1980 you were feeling anxious? ---- Yes...

The feeling of anxiety that you had in 1980, had you experienced it before? --- Yes.

When did you commence experiencing that feeling?-----Well, when I was at sea during the war. I suppose, like a lot of others I was frightened and nervy or whatever and that's when you'd go ashore you'd have a few drinks and forget about it. Then after the war I was the same and I used to have dreams, I was drowning and various things like that. I found that when I drank the worries would seem to go away, they were there again the next day, of course. I had that problem all right through and I still have that effect now".

It was said on behalf of the applicant that the absence of reference anywhere in the Tribunal's reasons for decision to that evidence gives rise to an inference that the evidence was overlooked. It was said that such a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal failed in some respects to exercise its powers according to law (see Repatriation Commission v O'Brien [1985] HCA 10; 58 ALR 119 at 136 and 137).

The difficulty with the contention is that it appears that it was never put to the Tribunal that there was a causal connection between the applicant's anxiety state and his alcoholism. Counsel for the applicant said that it was simply assumed that there was such a connection.

Counsel for the applicant was unable to refer me to any part of the address to the Tribunal to the effect that a finding should be made that there was, in fact, a causal connection between the applicant's accepted anxiety state and his alcohol disorder. However, I was referred to a passage in the transcript of submissions to the Tribunal by counsel for the applicant in the following terms:

"We have heard a lot of evidence from Mr Meade about his alcoholism and his anxiety state and Dr Lambeth at pages 27 through to 29 provides a report on Mr Meade's psychiatric condition at that time and once again, this is a disability which is now accepted and this is a quite important one given the evidence of both Mr Bailey and Mr Meade concerning the reasons for Mr Meade not being kept on at the mine in 1982. Once again, 1993 we have qualified psychiatrist giving a long history of a certain psychiatric condition and it is clearly a permanent problem that Mr Meade has had to live with.

So, the position then is that Mr Meade has had a continuing state of permanent incapacity at all relevant times. That is, from the late 70s or thereabouts onwards which, in our submission, have been due solely to his accepted disabilities and the evidence is that these conditions have not improved. So, coming back to 24(i)(c) we have accepted disabilities which led to Mr Meade losing his job in 1992 - sorry 1982 - or conditions which are now accepted, which led to him leaving his job in 1992, the back problem - principally the back problem and his drinking problems. He continues to suffer from those conditions and since they have not improved the implication must be that he is as disabled now as he was 14 years ago.

Therefore, there is a situation where, we would submit, that you should be reasonably satisfied that his accepted disabilities alone at the application date and now, for that matter, prevent him from doing remunerative work. Now, to add to - to just complete the picture we have the evidence from Mr Meade that he would have been - sorry, we have the evidence from Mr Bailey that he would have been kept on at the mine but for his health problems. We have the evidence from Mr Meade that had he been offered a job as production foreman down at Tomago, he would have taken it. We have the evidence from Mr Bailey that the Tomago operation was a large operation and that there were such positions."

Counsel for the Repatriation Commission, on the other hand, contended that the issue of whether the applicant's excessive drinking was a symptom of his anxiety state had never been raised for consideration by the Commission, the Veterans Review Board or the Tribunal. The Tribunal was simply not reviewing a decision on that subject matter.

In accordance with the Tribunal's practice directions, the parties before the Tribunal filed statements of issues and statements of facts and contentions. In its document, the Commission relevantly contended that the applicant did not satisfy section 24(1)(c) and that there was no sufficient evidence that at the date of application the applicant would, but for his war caused disabilities, still be engaging in remunerative work. The applicant's document stated as follows:

"1. the Applicant was prematurely forced out of the workforce due to his accepted disabilities.

2. the Applicant is entitled to a pension at the special rate.

3. Mrs Curdie-Evans, Occupational Therapist states in report dated 22 April 1996 that the Applicant's "war caused injuries were the major contributing factors towards the redundancy." Mrs Curdie-Evans adds to this by stating that following "his redundancy in 1982 and up until the present day I do not feel that Mr Meade has had the physical or emotional capacity to obtain and maintain any type of employment". She is further of the opinion that ..."his incapacity to work is a product of his accepted disabilities."

Neither of those documents gives any indication that there was an issue before the Tribunal as to whether there was a causal connection between the applicant's anxiety state and his alcohol abuse. It cannot be concluded, therefore, that the Tribunal, in attributing the applicant's loss of employment in 1982 to his alcohol problem rather than one of his accepted disabilities, erred in failing to explain why it reached the conclusion, implicitly, that there was no causal connection between the anxiety state and the alcoholism. The Tribunal can hardly be criticised for not making a finding on a matter about which it was not asked to make a finding.

The Tribunal, in its reasons, also noted that at the date of application, the applicant was still drinking but has now been sober for the past two years. It was observed that, if he could no longer work at 55 years of age because of his drinking, it follows that he would not be working at the date of application or beyond the average retirement age. It was contended on behalf of the applicant that that was also an error of law because that was a conclusion that was contrary to all the evidence.

However, the difficulty with such a contention is that that conclusion is precisely what the Tribunal was asked to reach in the passage from the addresses cited above. If any meaning can be given to that passage in this regard, it is that the Tribunal should be satisfied that the "accepted disabilities" both at the application date and at the time of the submission, prevented the applicant from doing remunerative work. If the reference to accepted disabilities is to be taken to be a reference to the drinking problem, it is not open to the applicant to contend now that the Tribunal should not have found that the drinking problem continued up to the date of the application.

The Commission's primary submission before me, however, was that both of the matters now relied upon by the applicant miss the point. The Tribunal found, as I have said, that the applicant, but for his drinking, would have continued to work until the average retirement age of 65. That age would have been reached before the application date. The Tribunal therefore concluded, therefore, that the applicant did not satisfy the pre-requisite in section 24(1)(c) and that there were other reasons why he stopped work in 1982.

The Commission contended before me that the finding by the Tribunal was that, whatever the position might be in relation to the excessive alcohol consumption question, the applicant would have stopped working before the date of the application because he would have reached the age 65 and would have retired in any event. In other words, the Tribunal found that one reason which prevented the applicant from continuing to undertake remunerative work was that he had, by the date of the application, reached the retirement age of 65.

While the reasoning of the Tribunal is a little obscure in that respect, it is difficult to see what other significance could be attached to the references to the average retirement age in the reasons for decision. The Tribunal went on to refer to an observation by the Full Court in Repatriation Commission v Strickland [1990] FCA 366; (12 AAR 343 at 351) to the effect that the Tribunal may reasonably proceed from the premise that applications for pensions made after the age 65 would fail unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war caused incapacity.

Thus the Tribunal appears to have made a finding of fact that, because the applicant had reached average retirement age before the date of the application, whatever the position might have been in relation to war caused disease, that war caused disease did not alone prevent him from continuing work. That is a finding of fact and does not raise any question of law within the meaning of section 44 of the Administrative Appeals Tribunal Act.

Accordingly, the appeal should be dismissed and the applicant should pay the costs of the Repatriation Commission.

I certify that this and the preceding nine pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated: 18 April 1997

Heard: 25 March 1997

Place: Sydney

Decision: 18 April 1997

Appearances:

Counsel for the applicant: J. Fitzgerald

Solicitor for the applicant: Vardanega Roberts

Counsel for the Respondent: R.M. Henderson

Solicitor for the Respondent: Australian Government Solicitor