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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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A v Repatriation Commission
Von Doussa J
14 August 1998
[Full Text]
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This was an application for an extension of time within which to appeal to the Federal Court from a decision of the Administrative Appeals Tribunal. The Tribunal had assessed the applicant's degree of incapacity at 60 per cent of the General rate.
In considering the application for an extension of time, the Court applied the principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305. These included the length of the delay, the reason for delay and whether an extension of time would cause prejudice to the respondent. Another important consideration was whether, on the merits of the substantive application, there was any prospect of success on the applicant's part.
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Submissions
Counsel for the applicant submitted that the Tribunal had erred in law because it rejected an opinion by a psychiatrist as to the extent of emotional and behavioural disability suffered by the applicant. Counsel submitted that there was no evidence before the Tribunal which justified rejection of the psychiatrist's assessment.
The applicant suffered from an adjustment disorder as a result of his Defence service, which led to impotence. Between 1990 and 1997 he underwent a series of prosthesis implants in his penis. Unfortunately, serious infections and a number of operations substantially lessened the size of his penis and made intercourse a physical impossibility at times. In 1996, after recurring infections, the treating urologist removed the penile implant and advised the applicant that he believed it was not possible to reinsert any further device.
On 22 May 1996 a psychiatrist revised earlier assessments he had made on the basis that some sexual function was possible. The psychiatrist thought that the applicant's sexual life had come to an end and that his impotence would thereafter be total and complete. He advised that: "In light of the disastrous situation with the penile implant, this has caused a further increase in his anxiety level. I would, therefore, assess his GARP rating at more than 30 but less than 45".
In evidence before the Tribunal, the psychiatrist stated his opinion that the appropriate assessment of the adjustment disorder, having regard to the criteria contained in Chapter 4 of GARP 4, was 45 impairment points. The Tribunal considered that this assessment was too high and that a rating of 20 points was more appropriate.
The applicant's supervisor gave evidence that he found statements in the medical reports inconsistent with his observations of the applicant's work performance. Counsel for the applicant contended that the Tribunal fell into an error in logic, and in law, by reasoning that because the supervisor had found the medical reports to be inconsistent with his, the applicant must therefore have been exaggerating. Counsel argued that the belief of inconsistency by the supervisor could be explained by the fact that the applicant, through embarrassment, had not discussed his predicament with the supervisor.
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Court's conclusions
The Court rejected this submission saying:
"First, there is no support in the stated reasons of the Tribunal for the suggestion that the Tribunal reasoned in this way. Further, I think that upon a proper reading of the evidence, the supervisor was expressing surprise and a belief that there was inconsistency not about the fact that he was unaware of the subjective distress of the applicant, but about the fact that his observations, and the reports he had received, did not bear out the suggestion that the applicant was not fit for work. On the contrary, the supervisor was under the belief that the applicant was performing very satisfactorily. I read the evidence as indicating that the inconsistency to which the supervisor was referring related not to subjective distress which the applicant asserted, but to his work performance."
The Court said that the Tribunal's conclusion was a finding of fact which was open on the evidence and that no error of law had been demonstrated. The Court made the following observations:
"The Veterans' Entitlements Act requires the Tribunal, upon a review, to assess the degree of incapacity, and to do so by applying the GARP criteria. The Tribunal has an independent obligation to fulfil that task itself, having reviewed all the factual material adduced before it. The Tribunal would have fallen into error had it merely accepted the psychiatrist's opinion, without taking into account the fact that a finding of exaggeration on the part of the applicant had been made.
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In my opinion it is not shown that the Tribunal fell into error of law. On the contrary, the Tribunal assessed the evidence before it, as it was obliged to do, and applied the facts as found to the criteria in GARP. It was open to the Tribunal to make a finding that the applicant had exaggerated the extent of his incapacity. It was then rational, indeed necessary, to modify the psychiatrist's evidence to reflect that finding. In discounting to a degree the psychiatrist's assessment of incapacity the Tribunal did not take into account an irrelevant matter. It took into account only evidence before it that bore directly on the extent of the incapacity of the applicant. The conclusion was plainly open on the evidence and was not unreasonable.
In my opinion as an appeal on the merits would fail on the ground that no error of law can be demonstrated in the reasoning of the Tribunal, it would be inappropriate to grant an extension of time. For these reasons the application will be dismissed."
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Formal decision
The Court dismissed the appeal.