House v Department of Defence

[1996] FCA 187

CATCHWORDS

ADMINISTRATIVE LAW - Appeal from AAT - whether "reviewable decision" within s60(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) - earlier AAT decision - issue estoppel - no issues necessarily established as legal foundation or justification for earlier AAT decision.

WORDS AND PHRASES - "reviewable decision".

Administrative Appeals Tribunal Act 1975 (Cth) s44(5)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss60(1), 62, 64(1)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Plumb v Comcare (1993) 39 FCR 236 - Foll
Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Bogaards v McMahon (1988) 80 ALR 342
Re Hospital Benefit Fund of Western Australia Inc v Department of Health Housing and Community Service (1992) 28 ALD 25
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 Commonwealth v Sciacca (1988) 17 FCR 476
Blair v Curran (1939) 62 CLR 464 - Appl

David Richard House v Department of Defence
No. QG2 of 1995
Cooper J, Brisbane, 22 March 1996

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

No QG2 of 1995

On appeal from the General Division of the Administrative
  Appeals Tribunal constituted by a Senior Member

BETWEEN:

DAVID RICHARD HOUSE

Appellant

AND:

DEPARTMENT OF DEFENCE

Respondent

JUDGE MAKING ORDER:     Cooper J

WHERE MADE:  Brisbane

DATE OF ORDER:                22 March 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

Pursuant to s44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the case be remitted to the Administrative Appeals Tribunal to be heard and decided again by the Administrative Appeals Tribunal in accordance with law and these reasons.

Note: Settlement and entry of orders is dealt with in       Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
  No QG2 of 1995

On appeal from the General Division of the Administrative
  Appeals Tribunal constituted by a Senior Member

BETWEEN:

DAVID RICHARD HOUSE

Appellant

AND:

DEPARTMENT OF DEFENCE

Respondent

CORAM:  Cooper J

PLACE:  Brisbane

DATE:  22 March 1996

REASONS FOR JUDGMENT

By notice of appeal filed 14 January 1995 David Richard House appeals from a decision of the Administrative Appeals Tribunal ("the AAT") constituted by Deputy President Breen given on 7 December 1994.

In order to understand the matter before the court, it is necessary to have regard to the factual background to that decision.

Background
                  On 1 October 1968 Mr House enlisted in the Australian Army.  Between 28 May 1970 and 1 June 1971 Mr House served in the conflict in Vietnam and was posted to Townsville, Queensland on his return to Australia where he remained until his
discharge on medical grounds on 27 May 1975. 

In 1977 Mr House applied to the Commissioner for Employees Compensation ("the Commissioner") for compensation for the medical condition of cirrhosis of the liver due to alcoholism.  Mr House had alleged that this condition was caused by his posting to Townsville and the treatment he received at the hands of his fellow soldiers and his commanding officer in the course of his employment there.  According to Mr House that treatment consisted of racist remarks concerning his Aboriginal wife, the attitude of other soldiers to his relationship with his wife and other Aborigines and the racist attitude of his commanding officer to his association with Aboriginal persons.

On 18 August 1977 a determination was made by the Commissioner that the Department of Defence was not liable to pay compensation in this regard.  Mr House applied on 17 January 1978 to the Commonwealth Employees Compensation Tribunal for a review of the Commissioner's decision.  That application was struck out without a decision being given.  It subsequently became clear that the Tribunal had acted in the mistaken belief that the Repatriation Commissioner had accepted Mr House's claim.

On 2 November 1990 the application was reconsidered by a delegate of the Department of Defence and was again refused.  Mr House then applied to the AAT for a review of that decision (AAT Application No. Q90/520).  The AAT (Mr K J Lynch, Senior Member and Dr G S Urquhart and Captain E T Keane, Members) affirmed the decision under review in a decision given on 30 March 1992.
                  Mr House made a new claim for compensation which was lodged with Comcare on 13 January 1993.  The grounds of that application appear in a letter from Mr House dated 5 December 1992 :-

"This letter is asking you to consider my disability of organic personality disorder not of alcoholism or cirrhosis of the liver as in my last claim that was disallowed by your Dept and consequently by the AAT.

I have lost the last AAT decision and cannot remember it so if you could send me a copy through FOI I would greatly appreciate it.  I thought there were errors of law in that determination but my solicitor went on to better and brighter things and was not interested in going further.

My personality disorder is not war caused.  It had its rise in the racially expressed bigotry concerning my wife and the termination of an Army career which I regard as unfair and unwarranted.  It is service related in that I had to tolerate bigotry in my normal working hours.  I had to tolerate in my normal working hours comments from superior officers telling me to keep away from `black scum'.  I had to tolerate racist comments from fellow soldiers in normal working hours.  Its manifestation did become alcoholism outside of normal working hours.  There can be no getting away from the fact that superior officers in the Army created my personality disorder by racist comments ...

Alcoholism might have started in Vietnam but it was prolonged and made worse by racist comments and actions both inside and outside of normal working hours.  I don't need you to comment saying as I lost the last case I would lose this case.  The last was for cirrhosis of the liver not personality disorder so make a decision about personality disorder not cirrhosis and then we can go to the AAT.

What came first the chicken or the egg or in my case alcoholism or personality disorder.  Was my personality disorder prolonged and worsened by racist comments and the termination of an Army career.  You have plenty of evidence in medical files to support my view.

Dr Steinberg claimed that even alcoholism started in Vietnam (and I realise I am not covered by your Dept for Vietnam) and continued in Townsville because of the pressure of taking out my ex-wife.  No-one has denied or rebutted that evidence.  And extreme racist comments were made in normal working hours and have now created a monster".

On 22 January 1994 a determination was issued by a Mr J Wade, a
delegate of Comcare stating that the Department of Defence was not liable to pay Mr House compensation in respect of his personality disorder.  The reasons for determination noted that a diagnosis of "organic personality disorder" was entered after appropriate specialist investigation by a Departmental Medical Officer.  The Medical Officer's report, after diagnosing the organic personality disorder as defined, contained the following :-

"Aetiology:  The cause of the organic personality disorder in this veteran is alcoholism.  Alcoholism is a dependence on alcohol to such an extent that it interferes with interpersonal relationship, psychological function or physical health.  In this veteran it has also caused his accepted disability `liver cirrhosis'.

From reading the service documents I am of the opinion that the disability was first manifest in Vietnam and was aggravated by his defence service in Darwin [sic]."

The reference to "defence service in Darwin" is clearly intended to refer to Mr House's service in Townsville.

Mr Wade, in reaching his determination, also had regard to the determination made by the Repatriation Board - Queensland in relation to a claim by Mr House for benefits under the Repatriation Act and the Veterans Entitlement Act and the decision and findings of the AAT in relation to Mr House's claim for compensation for cirrhosis of the liver.  Mr Wade concluded :-

"On the basis of this evidence, I cannot find that your Army employment contributed to the personality disorder for which your claim is made.  I am therefore satisfied that liability does not exist for this condition."

On 26 January 1994 Mr House wrote requesting reconsideration of the decision.  The letter provided a general outline of the evidence that Mr House considered relevant to the reconsideration and any possible determination by the AAT.  Mr House noted that a Dr Slaughter had said that his primary problem was a personality disorder and that his alcoholism was secondary to that.  The letter outlined various instances and circumstances of racist behaviour directed towards Mr House by fellow soldiers, Townsville police and his commanding officer.  It also outlined the attempts made by Mr House to obtain a transfer out of Townsville and explained the circumstances in which Mr House re-enlisted in 1974.

The letter concluded in part :-

"A condition of me being in the Army is to obey my C.O. and superiors.  I did not have a personality disorder on enlistment ...

He told  me to keep away from Black Scum during working hours ... The Army also encourage you to drink and you have to attend or are expected to attend social gatherings but don't bring Black Scum, Boongs and Coons."

On 2 June 1994, in response to Mr House's letter, L Ryan, a delegate of Comcare, wrote to Mr House a letter headed "SAFETY, REHABILITATION AND COMPENSATION ACT 1988 RECONSIDERATION NO. ADF 94Q/9".  The letter was in the following terms :-

"I refer to your letter dated 26 January 1994 in which you requested reconsideration of the determination dated 22 January 1994 in respect of your personality disorder.

DECISION

I have decided to affirm the decision dated 22 January 1994 which disallowed your claim for this condition.

REASONS

I have considered all of the documentation on your compensation files
including (a) the various reports referred to in the determination dated 22 January 1994 and (b) your explanatory letters.

I note that you advised in your letter dated 26 January 1994 that `Dr Slaughter said the primary problem was personality disorder and my alcoholism was secondary to that'.  However, it has been shown that your alcoholism was well established at least as early as your Vietnam service from 1970 to 1971 which preceded the service in Townsville and the events which occurred then, and which you claim as the reason for your personality disorder (racially expressed comments etc).  If your alcoholism was secondary to the personality disorder, that is, resulting from the personality disorder, the personality disorder must have been present prior to the stated service in Townsville and, therefore, could not have had its origins there.

I note your advice concerning Dr Slaughter's opinion, a Department of Veterans' Affairs Department Medical Officer has commented that the cause of your organic personality disorder is alcoholism.  As the Administrative Appeals Tribunal has previously dismissed your claim for alcoholic diseases as not being contributed to by your Army employment, compensation for the personality disorder is not payable if the disorder has originated from the alcoholism.

As stated in the determination dated 22 January 1994, liability to pay compensation for your personality disorder would only exist if your Army employment contributed in a material way to the contraction, aggravation or acceleration of the disease.  Further, it must be shown that the contributing factor is either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.  I am unable to find, from the evidence available, that your personality disorder was contributed to in a material way by your Army employment and I have therefore affirmed the determination dated 22 January 1994."

Mr House then wrote to the District Registrar of the AAT in Brisbane seeking review of the decision of 2 June 1994.  The matter went before Deputy President Breen on Friday 2 December 1994.  Mr House appeared in person and Mr M Belcher of the Australian Government Solicitor represented the Department of Defence.  It is clear from the reasons for decision of Deputy President Breen that Mr Belcher contended that this application involved the same facts as were the subject of the AAT decision of 30
March 1992 referred to earlier and that as a result the AAT had no jurisdiction to hear what would constitute no more than an appeal against an earlier AAT decision.

Deputy President Breen accepted this submission and said :-

"... There is no doubt that though Mr House's present claim features different diagnostic labels, in fact the factual issues remain substantially the same.  Those issues have been the subject of a hearing by the Tribunal. ...

The Tribunal made its findings of fact and gave a decision.  It is clear from the terms of Mr House's correspondence re-presented above, that indeed he seeks, so far as factual issues are concerned, a further hearing of the same issues as those determined earlier.  In those circumstances, and notwithstanding the fact that Document T10 in the `T' Documents filed in respect of this present application refer to the determination of 2 June 1994 as a `reviewable decision', I find in fact that there is no reviewable decision and that the Tribunal has no jurisdiction to hear again a claim for compensation based on factual issues already resolved at the Tribunal level."

There are two questions of law which follow from the reasons of Deputy President Breen :-

(a)Was the determination of 2 June 1994 a "reviewable decision" within the meaning of s60(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act") and

(b)Did the earlier AAT decision create an issue estoppel which precluded Mr House arguing the question of whether his personality disorder was caused or contributed to by his Army employment?

Reviewable Decision
  Section 60(1) of the Comcare Act defines "reviewable decision" to mean a
decision made under s38(4) or s62 of the Comcare Act.  Section 38(4) relates to rehabilitation and is not relevant here.  Section 62 of the Comcare Act provides, as far as is relevant :-

"62(1)A determining authority may, on its own motion:

(a)reconsider a determination made by it;  or

(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

(2)A request to a determining authority to reconsider a determination made by it may be made by:

(a)the claimant

.....

(3)A request for reconsideration of a determination shall:

(a)set out the reasons for the request;  and

(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

(4)     On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

(5)     Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit."

The instant case concerns the construction of s62(2)(a);  a request made by a claimant to a determining authority to reconsider a determination made by it.  Mr Maguire of counsel for the Department of Defence submitted that, upon the proper construction of s62, Deputy President Breen was correct in finding that there was no "reviewable decision" and therefore no jurisdiction in the AAT to review under s64(1) of the Comcare Act.  Mr Maguire submitted that the absence of the words "whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination" (in s62(1)) from s62(2) had the effect that the opportunity for a claimant to make a request to a determining authority to reconsider a determination ceased once an appeal was instituted or completed in respect of that determination.

Mr Maguire submitted that the statement of Lockhart J, with whom Black CJ and Gummow J agreed, in Plumb v Comcare (1993) 39 FCR 236 at 241 that :-

"Section 62 thus empowers the respondent to reconsider prior determinations made by it (or its predecessor) whether or not those determinations had been subject to review by the AAT.  On receipt of a request to it by a claimant, a determining authority is required to reconsider the determination (s62(4)).  Where a determination is reconsidered pursuant to s62 a decision may be made affirming or revoking the determination or varying it in such manner as is thought fit (s62(5))."

was too broad and applied only to s62(1) and not to s62(2).

I do not accept Mr Maguire's submission.  Whatever the effect of the words following s62(1), they do not operate to displace the clear words of s62(2), (3), (4) and (5).  Mr House, a "claimant" as defined in s60(1), requested that a determination be reconsidered by the determining authority (s62(2)) by writing to the appropriate body in accordance with s62(3).  The determining authority (Comcare) accepted the request and caused the determination to be reconsidered (s62(4)).  The delegate of Comcare affirmed the determination (s62(5)) that Mr House was not entitled to compensation.  Mr House received a notice in writing conforming with the requirements for notification of a reviewable decision (s63).  A further reviewable decision was therefore made and Mr House, by his letter of 7 June 1994 to the District Registrar of the AAT in Brisbane applied for a review of it.  I can see no reason why the passage cited above from the judgment of Lockhart J in Plumb ought not be applied.  Deputy President Breen erred in concluding that the determination of 2 June 1994 was not a "reviewable decision" which could be reviewed by the AAT pursuant to s64(1) of the Comcare Act.

Issue Estoppel
                  The decision of Deputy President Breen on 7 December 1994 was :-

"The Tribunal, being satisfied that it has no jurisdiction to review the decision the subject of this application, dismisses the application for review."

In his reasons Deputy President Breen based the lack of jurisdiction on his view that the factual issues had already previously been resolved by the AAT.  The respondent contended that the decision of Deputy President Breen was correct and maintainable due to the operation of the principle of issue estoppel with respect to the issues determined in the previous proceedings in the AAT and the issues which the appellant sought to raise for consideration in the proceedings which Deputy President Breen dismissed for want of jurisdiction.

In support of its submission the respondent relied upon the decision of the High Court of Australia in Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 402, 403 in the judgment of Barwick CJ (with whom McTiernan and Menzies JJ agreed) and at 453 in the judgment of Gibbs J (with whom Stephen J agreed) as authority for the proposition that the doctrine of res judicata has application to the decisions of statutory tribunals. The respondent also relied upon the observation of Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 351 - 352 that there was no feature of the AAT sufficient to distinguish it from the Land Board in Daera Guba and that the High Court decision must be applied to proceedings and determinations in the AAT, and, the decision of the AAT presided over by its then President, O'Connor J, in Re Hospital Benefit Fund of Western Australia Inc v Department of Health Housing and Community Service (1992) 28 ALD 25 at 30 that a decision of the AAT can give rise to issue estoppel in a subsequent proceeding before the AAT.

Mr Maguire on behalf of the respondent argued that the decisions of Full Courts of this court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 and Commonwealth v Sciacca (1988) 17 FCR 476 did not in fact decide that a finding of an administrative tribunal will not give rise to an issue estoppel or if either of them did so decide, then the relevant parts of the decisions were per incuriam. The basis of this later submission was that neither court had had referred to it the decision of the High Court in Daera Guba. 

Whether or not the doctrines of res judicata and issue estoppel apply to proceedings in the AAT is a complex and controversial question.  The issues and policy
considerations are examined extensively by Hall in "Res Judicata and The Administrative Appeals Tribunal" (1994) 2 AJ Admin L 22.  However, Mr House, who was unrepresented, was given no notice that the respondent intended to raise these issues on the hearing of the appeal, nor is he by training or experience equipped to argue them.  Fortunately, it is not necessary to resolve the question to decide this appeal.  Even if the doctrines apply, there must be a coincidence of issues or causes of actions before the doctrines can have any relevant operation.  In the instant case for the reasons that follow, I am of the opinion that the issues which Mr House wished to raise in the proceedings dismissed by Deputy President Breen were different issues involving a different medical condition, namely an organic personality disorder caused or contributed to or exacerbated by the racist conduct of fellow soldiers and the last commanding officer during Mr House's service in Townsville.  The claim now advanced by Mr House is independent of the claim based on his alcoholism, although this condition may or may not have played some part in the claimed organic personality disorder.  It is to misconceive the nature of the claim now made by Mr House to dismiss it as merely featuring "different diagnostic labels".

The earlier AAT decision related to a claim by Mr House that the medical condition cirrhosis of the liver suffered by him and caused by alcoholism, was compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), a predecessor of the Comcare Act.

In the earlier proceedings Mr House claimed that he acquired cirrhosis of the liver from excessive drinking which began during his period of service in Vietnam
and continued after his return to Australia.  The AAT reviewed medical evidence as to the condition of Mr House's liver and considered whether and if so to what extent the employment of Mr House in the Army contributed to the development of the cirrhosis.

The AAT said :-

"... the applicant must show that the working conditions in the relevant period, namely the attitude of his fellow workers, the other soldiers, to his choice of associates and his lifestyle caused an increase of alcohol dependence to a material extent.

11.     The applicant claims that his dislike of Townsville made him more alcohol addicted than he was during service in Vietnam.  He did not try seriously until 1974 to obtain a transfer from Townsville.  His alcohol dependency was well established by that time.  As there is evidence only in the most general terms of the attitude of the other soldiers to the applicant's lifestyle and choice of companions, the Tribunal cannot determine the extent to which, if at all, the aggravation of the applicant's addiction was caused by the attitude of other soldiers.  Even if there was aggravation of the applicant's condition by the attitude of other soldiers to his lifestyle, the Tribunal does not consider that this is an event or occurrence in the course of employment or a characteristic of the conditions in which the work was performed.  In particular the attitude of other soldiers to the applicant's lifestyle has not been related to his employment as such.

.....

While these exchanges between the applicant and other soldiers may have occurred while they were on duty they may have occurred when the applicant and others were off duty in barracks or on leave.  There is no particularity in the evidence before the Tribunal."

and continued :-

"... In this present matter, on the other hand, any behaviour of fellow workers towards the applicant was kept to the applicant and fellow workers and not reported to superiors.  There is no evidence that any such occurrence was brought to the notice of any officer or senior N.C.O. nor is there evidence of any overt behaviour which would have attracted the attention of any supervisor.

13.     Finally, the Tribunal has no expert evidence on the effect of the work environment upon Mr House.  The question is not one which the Tribunal can answer as a matter of common knowledge and it looks, then,
for expert evidence to establish the relationship (Tubemakers of Australia v Fernandez (1976) ALJR 720 at 725).  The medical evidence put before this Tribunal addresses the alcoholic problem but not the relationship of work environment to drinking.  One report refers to the loss of social contacts as a consequence of, not as a contributor to, the applicant's worsening addiction'."

The AAT affirmed the decision under review, concluding :-

"... we do not find that the alcoholic diseases in respect of which the claim for compensation is made have been contributed to by the applicant's employment with the Army during the period when his engagement therein was covered by the 1971 Compensation Act."

In my view, the only thing that this AAT decision can be said to have determined, in the relevant sense for the purposes of issue estoppel (see Blair v Curran (1939) 62 CLR 464 at 531), is that Mr House's alcoholism and consequent liver disease were not employment related for the purposes of the applicable statutory provisions. The decision is based, to a significant extent, upon the absence of particular evidence of Mr House's work conditions and the effect they had upon him. However the AAT does not appear to have rejected Mr House's evidence that he was subject to racist slurs from fellow soldiers and his last commanding officer. The reasons of the AAT record :-

"... It was made clear to the Tribunal in the course of the hearing that there were many factors acknowledged by the applicant to have contributed to his condition.  He acknowledged that he was under considerable pressure from his fellow soldiers to give up his association with Aborigines.  He said, also, that there was community pressure particularly from the police force indicating disapproval of his association.  His last commanding officer, during his Army service, was critical of his lifestyle and told him to give it up but there is no evidence of other persons in authority in the Army bringing any pressure or directions on the applicant."

In passing it should be observed that, providing that a contributing factor could be shown between the conduct of the last commanding officer and the medical
condition complained of and that the criticism was made by the commanding officer in his capacity as such, it is questionable whether Mr House was required to show that other persons in authority acted in a similar manner before he could succeed on his claim as the reasons of the AAT may seem to suggest.

The AAT decision did not determine (in the relevant sense) that the racist attitudes and remarks did not occur or exist nor that, if they did, they had no effect on Mr House.  Nor did the AAT determine that any relevant exchanges between Mr House and other soldiers, including his commanding officer, did not occur in the course of his employment.  Rather, the AAT confined itself to answering, in the negative, the question it posed at the beginning of its reasons, namely, whether the attitudes of Mr House's fellow soldiers to his association with Aborigines caused an increase of alcohol dependence to a material extent.  The question of whether the alleged racist conduct of other soldiers and his last commanding officer contributed to his now diagnosed organic personality disorder was not an issue before the AAT.

There was no determination or finding which could be said to have been necessarily or actually decided as the groundwork of the AAT decision so as to preclude Mr House from raising the matters he wished to have determined in his application for compensation for an organic personality disorder.  It is not sufficient to found an issue estoppel that an issue or issues are raised or relied upon in earlier proceedings, those issues must have been "necessarily established as the legal foundation or justification" for an earlier judgment, decree or order (Blair v Curran at 531).

In my view, Deputy President Breen erred in concluding that the earlier AAT decision precluded Mr House from again raising the racist remarks and attitudes of his fellow soldiers and his commanding officer in relation to the claim for compensation for an organic personality disorder.

The matter will be remitted to the AAT to be heard and decided again in accordance with law and these reasons.  Mr House appeared in person and there will be no order as to costs.

THE COURT ORDERS THAT :-

Pursuant to s44(5) of the Administrative Appeals Tribunal Act 1975 (Cth) the case be remitted to the Administrative Appeals Tribunal to be heard and decided again by the Administrative Appeals Tribunal in accordance with law and these reasons.

I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date:22 March 1996

Associate

Applicant in Person:  Mr D R House

Counsel for the Respondent:            Mr R Maguire

Solicitors for the Respondent:          Australian Government Solicitor

Date of Hearing:  31 August 1995

Place of Hearing:  Brisbane

Date of Judgment:  22 March 1996