Giger and Repatriation Commission (Veterans' entitlements)
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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).
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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) by the Applicant, seeking a war widow's pension following the death of her husband, Mr Jack Giger. Mr Giger, who served in the Royal Australian Navy during the Korean War and other operational periods, was diagnosed with schizophrenia towards the end of his service and died by suicide in 1966. The Applicant's initial claim for a war widow's pension in 2004 was rejected, a decision affirmed by the Veterans' Review Board and subsequently by the Tribunal in 2007. A further claim in 2015 was also refused and affirmed by the Veterans' Review Board, leading to the present application for review. The Respondent sought to have the application dismissed, arguing it constituted an attempt to re-litigate issues already determined.
The primary legal issue before the Tribunal was whether the current application should be permitted to proceed, effectively allowing for the re-litigation of issues previously decided by the Tribunal in 2007. This question was to be determined by reference to the principles established in *Matusko and Australian Postal Corporation*, which generally disallows re-litigation of decided issues unless there is a reason to do so, such as a change in circumstances or fresh evidence. The Applicant contended that a recent report by Dr Palazzo constituted fresh evidence and that the Federal Court decision in *Border* represented a change in circumstances warranting a reconsideration of the case.
The Tribunal considered the Applicant's arguments regarding fresh evidence and a change in circumstances. It found that the evidence presented by Dr Palazzo did not constitute "fresh" evidence but rather an attempt to augment or redefine evidence already considered in the 2007 proceedings. The Tribunal noted that the Applicant had not demonstrated that the evidence was overlooked in the previous hearing and that the opportunity to appeal the 2007 decision on these grounds had been forgone. Furthermore, the Tribunal determined that the *Border* decision, which concerned a "category 1A stressor," did not represent a change in circumstances relevant to the Applicant's case, which centred on a "category 1B stressor." The Tribunal concluded that there was no convincing factual or legal basis for re-litigating the issues that had been fully contested and adjudicated in the earlier proceedings.
Accordingly, the Tribunal accepted the Respondent's request and dismissed the Applicant's application for review. The Tribunal found no fresh evidence or change in circumstances that would justify re-litigating the matter, and it was not satisfied that justice to the parties required a departure from the general rule against re-litigation, particularly given the Applicant's prior opportunity to appeal the 2007 decision.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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].
Evidence
Evidence Before The Court
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 BIn 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.
Decision
Reasons for decision
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.
