Giger and Repatriation Commission (Veterans' entitlements)
[2017] AATA 1219
•4 August 2017
Giger and Repatriation Commission (Veterans' entitlements) [2017] AATA 1219 (4 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4018
Re:Vera Giger
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:4 August 2017
Place:Brisbane
The Application for Review, specifically proceeding number 2016/4018, be dismissed pursuant to section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Senior Member T. Tavoularis
CATCHWORDS
VETERANS’ AFFAIRS – war widows’ pension – whether the Applicant’s husband’s death was “war-caused” – where there was a previous Tribunal decision – application dismissed
PRACTICE AND PROCEDURE – re-litigation of issues – Matusko test – former resolution of issues by the Tribunal – effect of an earlier Tribunal decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Veterans’ Entitlements Act 1986 (Cth)CASES
Border v Repatriation Commission (No 2) [2010] FCA 1430
Matusko and Australian Postal Corporation [1995] AATA 14
Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532REASONS FOR DECISION
Senior Member T Tavoularis
4 August 2017
INTRODUCTION
This decision relates to an application made by the Repatriation Commission (“the Respondent”) for the Tribunal to dismiss under s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) an application for review lodged by Ms Vera Giger (“the Applicant”).[1] The Applicant is seeking review of a decision by the Veterans’ Review Board dated 20 June 2016,[2] affirming a decision by the Respondent dated 20 October 2015, which rejected her application for the war widows’ pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
[1] Exhibit 2, Respondent Statement of Facts, Issues and Contentions, p 8.
[2] Exhibit 3, T Documents, T 58, pp 320-326.
For the reasons below, I accept the Respondent’s request and accordingly dismiss the Applicant’s Application for Review before the Tribunal.
BACKGROUND
The Applicant’s husband, Mr Jack Giger, served in the Royal Australian Navy between April 1948 and December 1960.[3] During this period, he spent some nine months on “operational war service” in the Korean War, as well as four other, substantially shorter, periods in 1959 and 1960 in the Far East Strategic Reserve. It is not contested that each of these periods constitutes “operational war service”.[4]
[3] Ibid, T 4, p 8.
[4] Exhibit 6, Applicant’s Submissions dated 24 February 2017; Exhibit 7, Respondent’s Submissions dated 24 February 2017.
It is apparent that, towards the end of his service, Mr Giger’s mental health began to deteriorate and he was diagnosed with “schizophrenia”.[5]
[5] Exhibit 3, T Documents, T 4, p 13.
In December 1966, Mr Geiger suicided. The findings of the Coronial Inquest into his death noted Mr Geiger was “in a state of mental depression” at the time of his death.[6]
[6] Ibid, T 10, p 56.
Some 38 years after Mr Geiger’s untimely death, in 2004, the Applicant first lodged a claim for the war widows’ pension. This claim was rejected by the Respondent.[7] The Respondent’s decision was appealed to the Veterans’ Review Board which affirmed the Respondent’s decision.[8] The Applicant then appealed to Tribunal, where, after a full hearing, Deputy President Hack affirmed the Respondent’s decision on 30 November 2007.[9]
[7] Ibid, T 13, pp 74-80.
[8] Ibid, T 15, pp 74-80.
[9] Ibid, T 42, pp 275-286.
In July 2015, the Applicant again lodged a claim for a war widow’s pension.[10] The Respondent again refused her claim,[11] in a decision that was affirmed by the Veterans’ Review Board in June 2016.[12] Dissatisfied with this result, the Applicant has again appealed to the Tribunal.[13]
[10] Ibid, T 43, pp 287-295.
[11] Ibid, T 49, pp 305-307.
[12] Ibid, T 58, pp 320-326.
[13] Ibid, T 2, pp 3-4.
THE ISSUES
In light of the above, the Respondent has applied for the Tribunal to dismiss the present application under s 33(1)(a) of the AAT Act.[14] The question is thus whether the Tribunal should allow this case to, effectively, be re-litigated.
[14] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, p 8.
Although, as the Tribunal previously noted in Moore and Military Rehabilitation and Compensation Commission, the re-litigation of Tribunal decisions is a vexed area of law,[15] I do not propose to weigh in on this debate. Rather, the scope of this decision is limited to the grounds on which the Respondent made its interlocutory application: s 33(1)(a) of the AAT Act.
[15] Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532, [18].
Both the Applicant and Respondent have drawn my attention,[16] appropriately, to Matusko and Australian Postal Corporation (“Matusko”),[17] where the Tribunal concluded:
[16] Exhibit 6, Applicant’s Submissions dated 24 February 2017, [52]; Exhibit 7, Respondent’s Submissions dated 24 February 2017.
[17] [1995] AATA 14.
(a)No formal issue estoppel arises from the Tribunal’s [previous] findings…
(b)The Tribunal should not generally allow re-litigation of issues already decided.
(c)But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) Where there is a different decision,
(ii) Where there is a clear legislative intent,
(iii) Where the reconsideration decision is not final,
(iv) Where there has been a change in circumstances or fresh evidence, or
(v) Where justice to the parties requires a departure from the general rule.[18] (emphasis added)
[18] Matusko and Australian Postal Corporation [1995] AATA 14 (“Matusko”), [35].
Although the list provided at point (c) in Matusko is neither exhaustive nor definitive, it is a useful guide as to the kind of circumstances where the Tribunal’s discretion to allow further consideration of issues may be enlivened.
I therefore consider that there is a general prohibition on the Tribunal allowing issues it has previously decided to be re-litigated, unless there is a reason to do so. There are thus two issues before me:
(a)whether the issues in the present case are the same as were previously determined by the Tribunal in 2007; and
(b)if they are, whether there is a reason for the Tribunal to consider them anyway.
ARE THE PRESENT ISSUES THE SAME AS THOSE IN THE PREVIOUS PROCEEDINGS?
The fundamental question in the previous Tribunal proceedings (i.e. those that concluded with Deputy President Hack’s decision in November 2007) was whether Mr Giger’s death was related to his war service in accordance with the Statement of Principles (“SoP”) regime, and accordingly whether the Applicant was entitled to a war widows’ pension.[19] Here, precisely the same issues are at hand.[20] That is not in contention.
[19] Exhibit 3, T Documents, T 42, p 276.
[20] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, p 7 which lists the relevant steps required in determining this issue.
As both the current and previous Tribunal proceedings deal with the same issues, the general prohibition on the re-litigation of issues applies, unless the Applicant can show that there is a reason for the Tribunal to reconsider the issues.
IS THERE A REASON FOR THE TRIBUNAL TO RECONSIDER THESE ISSUES?
The Parties’ Submissions
Although both the Applicant and the Respondent drew the Tribunal’s attention to Matusko to indicate the preferable approach for the Tribunal to take, neither explicitly stepped through the factors the Tribunal should consider.
I will first set out the relevant portions of their respective submissions and then discuss the relevance of those submissions to the present application.
The Applicant’s Submissions
The Applicant’s primary submission was that the law governing the grant of war widows’ pensions has changed so substantially that it warrants a re-litigation of the issues.[21] Specifically, the Applicant’s representatives pointed to the case of Border v Repatriation Commission (No 2) (“Border”),[22] which she contends to have determined “that a more beneficial construction of the stressor factors in the SoPs ought to be applied [now] than had been the case” at the time of the 2007 Tribunal decision.[23]
[21] Exhibit 6, Applicant’s Submissions Dated 24 February 2017, [53].
[22] [2010] FCA 1430.
[23] Exhibit 6, Applicant’s Submissions Dated 24 February 2017, [53].
The Applicant further sought to adduce new material, namely a 2017 report by Dr Palazzo, a consultant historian. The resulting contention of the Applicant is that in determining the matter in 2007, the Tribunal overlooked the evidence of Mr Hughes.[24] The Applicant now says that Mr Hughes’ evidence is complemented by the 2017 report by Dr Palazzo, which, in turn, constitutes “fresh evidence”, thus bringing this case within the realm of point (c)(iv) of Matusko.
[24] Ibid, [54].
The Respondent’s Submissions
At the heart of the Respondent’s submissions about re-consideration of the issues is the contention that “there is no substantive difference between the Applicant’s claim for a war widows’ pension… previously Determined by the Tribunal on 30 November 2007 to that currently being pursued”.[25] To that end, it argued that no new primary evidence had been adduced and that the 2017 report of Dr Palazzo does not raise any new fact or contention.[26] Further, the Respondent contended that, given the issues at hand have been fully agitated at a contested hearing, this weighs against re-litigation.[27]
[25] Exhibit 7, Respondent’s Submissions Dated 24 February 2017, [2].
[26] Ibid, [4]-[5].
[27] Ibid, [6].
The Respondent also dealt with the impact of the decision in Border. It does so by saying that the matters considered by the Federal Court in Border included the interpretation of requirements for a “category 1A stressor” under the SoP, as distinct from the interpretation of the requirements for a “category 1B stressor” relevant to the claim for war widows’ pension now being advanced by the Applicant. The resulting contention of the Respondent is that the Applicant in this matter fails to identify any new circumstance or contention of fact and/or law that she did not previously raise in the earlier proceedings heard and determined by this Tribunal some 10 years ago.[28]
[28] Ibid, [9].
In addition, the Respondent contends that the latest application merits dismissal pursuant to s 33(1)(a) of the AAT Act on the primary ground that the Applicant is doing little more than re-litigating her previous claim for a war widows’ pension. Specifically, the Respondent says that (1) the 2007 decision of the Tribunal fully and finally adjudicates all of the matters on the record, and (2) it would be inappropriate and unreasonable for this Tribunal to allow re-litigation of the Applicant’s claim.[29]
[29] Ibid, [10].
Change in Circumstances or “Fresh” Evidence
The two major contentions of the Applicant each fall under the umbrella of Matusko point (c)(iv): whether there has been a change in circumstances or there is fresh evidence before the Tribunal. I will now turn to addressing whether the 2017 report by Dr Palazzo constitutes “fresh” evidence, and then whether the Federal Court decision in Border warrants a change in circumstances worthy of the re-litigation of this case.
“Fresh” Evidence?
The specific portion of Mr Hughes’ evidence apparently overlooked by the Tribunal in its previous decision comprises paragraph 5 of his abovementioned statement. For the sake of completeness, it reads as follows:
Due to the action information broadcast system through which came orders for the gun crew, such as type of ammunition to load, range and bearing of the target and target details, we were fully aware of what we were shooting at. Different types of ammunition were used for different targets. A VT fuse, which sent out a pulse and detonated on a target echo, was designed for use against aircraft but was also used against enemy troops in the jungle because it would detonate 80ft above the ground and shower shrapnel everywhere. The ship would normally use a spotter in a small aircraft to direct fire upon the target and report back whether the target had been destroyed or not. We would hear radio transmissions between the aircraft and the ship. So we were well aware of the targets that we were seeking to destroy and the outcome of our bombardment in real time.[30]
[30] Exhibit 3, T Documents, T 39, p 271.
The Applicant says that in the previous proceedings, the Tribunal overlooked this evidence. That contention is postulated as little more than a bald assertion some 10 years after the decision now said to be, somehow, defective. The Applicant must have surely had this realisation upon initial receipt of the 2007 decision. It was then open to her to lodge an appeal to the Federal Court on the basis of what she now contends to have been an error of fact or law (or both) in the Tribunal’s 2007 decision. She never did so.
The further report of Dr Palazzo now sought to be relied upon reads as follows:
I have been asked by Mr Terence O’Connor to provide additional information in the matter of Jack Giger and the nature of his service during the Korean War. In particular, I have been asked to comment on the veracity of the shore bombardment procedures outlined in paragraph 5 of the statement by Anthony Hughes.
I can confirm that it was standard operational procedure to employ spotter aircraft during the conduct of shore bombardment missions by the Royal Australian Navy and the United Nations’s [sic] ships. I have been able to locate a description of the conduct of shore bombardment missions that make it clear that bombarding ships adjusted their fire by coordination with a spotter aircraft. The ships also received information on the effectiveness of their fire. The examples are as follows:
·The HMAS Sydney was congratulated for the first-class job its aircraft did while spotting for the USN New Jersey’s guns. Document A
·Document A also outlines the coordination between the aircraft and the bombarding ship and confirms that the aircraft would direct the fire onto the target.
·Spotting aircraft communicated with the ship via radio and reported on the fall of shot and the accuracy of the fire until the target was destroyed. Document B
In the limited time I had, I was unable to ascertain the specific means by which targeting information from the aircraft was shared with the gun crews working in the ship turrets. However, such information had to be shared in order for the necessary adjustment of fire to be undertaken. Importantly, this information had to be shared in real time as any delay in the relay of the spotter aircraft’s advice could result a target escaping [sic]. In addition, the gun crews would be told when they were on-target in order to fire-for-effect as well as to cease fire when the target was destroyed. For the purpose of morale, it would be expected that the gun crew would also be told of the effect their fire had on the target.
Source for Documents A & B: Norman Bartlett, With the Australians in Korea, Australian War Memorial.[31]
[31] Exhibit 5, Additional Information on the Naval Service of Jack Giger in the Korean War provided by Dr Albert Palazzo, dated 22 February 2017.
Even a cursory examination of paragraph 5 of Mr Hughes’ statement in conjunction with what Dr Palazzo has to say that in his latest statement does not convince me that “fresh evidence” is somehow spawned sufficient to meet the requirements of point (c)(iv) of Matusko. The Applicant’s contention that both documents, read together, somehow now constitute fresh evidence is, to my mind, misplaced. I could understand, and possibly accept such a contention if the later report in some way materially overturned or otherwise augmented the interpretation of Mr Hughes’ evidence in such a way as to convincingly demonstrate that the earlier decision either (a) allocated disproportionate weight to Mr Hughes’ evidence, or (b) should have given that evidence more attention or scrutiny. In other words, does Dr Palazzo’s 2017 report result in such a change in interpretation of the earlier evidence (be it that of Mr Hughes or anyone else) such that it can be considered a material change in circumstances or fresh evidence in and of itself? I do not think so.
That is not what has occurred here. Any reservations the Applicant may have had about the 2007 decision and any alleged failure by the decision-maker to appropriately incorporate paragraph 5 of Mr Hughes’ statement into his deliberations, is a matter that she had every opportunity to ventilate on appeal. It is, to my mind, telling that she did not do so. Instead, she now urges this Tribunal, some 10 years later, to exercise its discretion to re-open a matter and allow it to be re-litigated on the basis that Mr Hughes’ evidence “… has now been complemented by the further report of Dr Palazzo…” and that this amalgam of statements somehow constitutes “fresh evidence”.[32] I do not accept that contention.
[32] Exhibit 6, Applicant’s Submissions Dated 24 February 2017, [54].
As mentioned, I have had regard to the report from the consultant historian, Dr Palazzo, dated 22 February 2017. I have also had regard to the various statements of evidence, reports and other submissions filed by the Applicant in the previous Tribunal proceedings, including Dr Palazzo’s previous report dated 28 August 2006.[33] I have significant difficulty in being convinced that Dr Palazzo’s latest report raises any new fact or contention relevant to the hypothesis being advanced by the Applicant in these proceedings. I therefore agree with the contention made on behalf of the Respondent that there is no substantive difference between this present claim by the Applicant for a war widows’ pension, and her earlier claim, fully heard and then determined by the Tribunal on 30 November 2007.
[33] Exhibit 3, T Documents, T 17, pp 90-119.
I also consider it important and relevant that the previous application was decided by the Tribunal after a fully-contested hearing, where the evidence was presumably probed, tested and weighed. In these circumstances, and given the detailed reasons appearing in the Tribunal’s November 2007 decision, it is all the more telling that the Applicant did not see fit to lodge any appeal. There is no fresh evidence that warrants re-litigating this case.
Is the Border Decision a Change in Circumstances?
The Applicant contends that the Federal Court decision in Border, although not directly on point with the present application, does somehow demonstrate that a more beneficial construction of the stressor factor(s) in the SoPs ought to have been applied than had been the case up to that point. The Applicant further contends that at the previous hearing, the Tribunal misconstrued the SoP by placing an unduly restrictive interpretation on the requirements to be met for a “category 1B stressor”.[34]
[34] Exhibit 6, Applicant’s Submissions Dated 24 February 2017, [53].
It is difficult to see how the decision in Border mitigates in favour of any necessity to re-ventilate the issues contested at the previous hearing. In Border, the Federal Court turned its mind to a consideration of the requirements for a “category 1A stressor” under the SoP. This is a separate and distinct exercise from any interpretation of the requirements for a “category 1B stressor” which I understand to be the central contention of the Applicant’s substantive case.
Without wading into the substantive merits of this case, I do not consider that either of these arguments by the Applicant constitute a change in circumstances of the Applicant. Indeed, as a matter of construction, the argument that the Tribunal took a more restrictive approach than the Applicant hoped for may well have been an issue of law to be ventilated on appeal. It is neither desirable nor appropriate that this now be remedied by way of the Tribunal to exercising its discretion to re-open the matter on the pretext of either fresh evidence or a change in circumstances.
I therefore cannot find any convincing factual or legal basis now sought to be relied upon by the Applicant that was not ventilated by her in the earlier, contested and adjudicated proceedings before the Tribunal, culminating in its decision of November 2007.
Justice to the Parties
The remaining question is whether justice to the parties weighs in favour of the Tribunal allowing re-litigation of the issues that were before the Tribunal when it made its 2007 decision.
The Applicant asserts that justice requires she be given the opportunity to re-ventilate the issues raised at the 2007 hearing and to give and call fresh evidence in support of those claims. I recognise this element as an important consideration, but I think it loses weight when one considers she has already had the opportunity to do so on appeal, but elected to forsake it, presumably on advice. I am not satisfied that the Applicant has pointed to new evidence regarding whether the Applicant’s death can be considered “war-caused” for the purposes of the Act. Rather, she has purported to augment or re-define certain of the evidence already contemplated at the previous hearing by way of super-imposition of the latest report of Dr Palazzo over that already-considered evidence.
The only new evidence the Applicant has adduced and sought to rely on for the purposes of the Respondent’s present application is the report of Dr Palazzo from February 2017. However, because that report sheds no real light on whether her husband’s death could be considered “war-caused” for the purposes of the Act, I am not satisfied that not having the opportunity to present it at a fresh hearing would visit any injustice upon the Applicant.
Conversely, I must also bear in mind the real risk of prejudice that would be occasioned to the Respondent arising from the difficulty and expense of it being compelled to again respond to evidence about an asserted war-caused death that occurred over 50 years ago.
CONCLUSION
As the Applicant has not provided a sufficiently compelling reason for the Tribunal to allow for her case to be re-litigated, the Tribunal will follow the general rule of not allowing re-litigation of the issues. In particular, I do not consider that:
(1)Dr Palazzo’s report of February 2017 – either on its own, or as an amalgam with paragraph 5 of Mr Hughes’ statement from the 2007 proceedings – constitutes fresh evidence or a change in circumstances warranting the exercise of the Tribunal’s discretion;
(2)The Border decision changes the circumstances relevant to this case, as it dealt with a “category 1A stressor”, whereas this case is concerned with the application of a “category 1B stressor”;
(3)Any purportedly restrictive interpretation of the SoP by the Tribunal in 2007 constitutes a change in circumstances for the purposes of the Matusko point (c)(iv); and
(4)Justice to the parties favours the re-litigation of this case.
Thus, the finding of the Tribunal is that:
(a)Its decision of 30 November 2007 correctly reflects the adjudication of the matters on record; and
(b)It would be inappropriate and unreasonable to allow the re-litigation of the Applicant’s claim.
I therefore order that the Application for Review, specifically proceeding number 2016/4018, be dismissed pursuant to section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis
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Associate
Dated: 4 August 2017
Date of hearing: 24 February 2017 Counsel for the Applicant: Mr Anthony Harding Advocate for the Applicant: Mr Terence O'Connor Solicitors for the Applicant: Terence O'Connor Solicitors Advocate for the Respondent: Ms Rachel Blake Solicitors for the Respondent: Moray & Agnew Lawyers
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