Todd v Repatriation Commission

[2008] FCA 1276

COURT	Federal Court, Brisbane
JUDGE	Logan J
DATE OF DECISION	21 July 2008
DECISION	The appeal was dismissed
ISSUES	Whether the Tribunal erred in failing to give reasons or sufficient reasons for the conclusion reached – whether Tribunal had explained why it preferred a particular body of evidence

Facts

Mr Todd served in the Royal Australian Navy and rendered operational service in 1969 in HMAS Vampire and in 1972 in HMAS Sydney. He made a claim unsuccessfully for anxiety disorder, on the basis that causation was due to his medical condition of pleural plaques. The decision was affirmed on review by the Veterans’ Review Board (VRB). Mr Todd sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of the Commission and Mr Todd appealed the decision of the Tribunal to the Federal Court.

The Tribunal’s reasoning

The key part of the Tribunal’s reasoning relevant to the appeal concerned the observations it had made regarding the evidence of two psychiatrists, Dr Likely and Dr Mulholland. In relation to the evidence of Dr Likely, the Tribunal stated:

[11] Dr Likely’s evidence was unsatisfactory in several respects. His oral evidence was presented in a disorganised fashion. He also contradicted his own written report of 22 January 2007. In that report, he said he had changed his longstanding view that the applicant suffered from PTSD—yet at the hearing he repeated the view that PTSD was an appropriate diagnosis. While we do not criticise a clinician for changing his view in a considered way, we were unable to clearly discern the basis for Dr Likely’s change of mind in this case. We formed the impression that Dr Likely’s objectivity may have been affected by his longstanding relationship with his patient.

In relation to the evidence of Dr Mulholland the Tribunal stated:

[12] The respondent tendered two reports by Dr Mulholland. The second report was a short clarification of matters referred to in his original report. Dr Mulholland says the applicant suffers from generalised anxiety disorder which pre-dates the diagnosis of the respiratory conditions. We were impressed with the opinions offered in Dr Mulholland’s reports for two reasons. Firstly, Dr Mulholland is an independent expert who has seen and apparently considered all of the material. His objectivity has not been compromised by a treating relationship with the applicant. Secondly, his reports are clear and demonstrate careful and consistent analysis.

Grounds of appeal

The applicant challenged the Tribunal’s decision on the ground that the Tribunal fail to give reasons or sufficient reason to support the conclusion reached.
The applicant put forward two further issues linked to this ground of appeal:

had the Tribunal erred in accepting the evidence of another psychiatrist, Dr Mulholland, in preference to that of Dr Likely; and
should the Tribunal have considered a contention raised in a medical opinion of a third psychiatrist, Dr Stephenson, even though the parties had not expressly raised it before the Tribunal.

The Court’s Consideration

Did the Tribunal fail to give reasons or sufficient reasons?

Justice Logan noted that the Tribunal was not required to exhaustively set out all the evidence before it, but where there is a controversy in medical evidence, it must explain why it prefers a particular body of medical evidence. He held that the Tribunal had done so, and there was no error of law in the way it had explained the reasons for its preference.

Did the Tribunal err in not considering a contention raised in the opinions of Dr Stephenson?

Justice Logan considered that the question before him was whether, though the parties narrowed the issues by concession, the Tribunal was nonetheless obliged in the discharge of its duties to make the correct or preferable decision in respect of the review application, to look beyond the issues that were identified for it. He did not consider the Tribunal had erred in this aspect of the appeal. His Honour held that having regard to the way Dr Stephenson had modified her opinion, and the fact that reference to her reports were of a historical rather than argumentative nature, it was not surprising that the Tribunal chose to make no reference to either of those reports.

Formal decision

Justice Logan held that there was no error of law in the way the Tribunal had approached its task. As such, Mr Todd’s appeal was dismissed.

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