Kowalski and Anor; Repatriation Commission and Anor and
[2009] AATA 853
•6 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 853
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3352
VETERANS' APPEALS DIVISION ) Re REPATRIATION COMMISSION Applicant
And
KAZIMIR KOWALSKI
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1544
VETERANS' APPEALS DIVISION ) Re KAZIMIR KOWALSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date6 November 2009
PlaceAdelaide
Decision A. In Application 2008/3352 the Tribunal:
(1) sets aside the decision of the Veterans’ Review Board of 7 July 2008;
(2) substitutes a decision that the applicant’s decision of 20 February 2008 be affirmed.
B. In Application 2009/1544 the Tribunal adjourns the application to a date to be fixed.
...............Signed...........
Deputy President
CATCHWORDS
DEFENCE & WAR – veterans – entitlements – invalidity service pension – gastro oesophageal reflex disease (GORD) – whether “defence-cause” – no evidence to connect defence service to disease – decision of Repatriation Commission restored
PRACTICE & PROCEDURE – estoppel – former adjudication of matters of record - Anshun estoppel – whether Commission estopped from contesting factual findings of the Veterans’ Review Board – no Anshun estoppel within the ascending hierarchy of merits review
PRACTICE & PROCEDURE – disqualification – actual bias or apprehended bias – disqualification refused
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Henderson v Henderson (1843) 3 Hare 100; 67 E.R. 313
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission & Hadfield (1990) 19 ALD 425
Repatriation Commission v Smith (1987) 15 FCR 327
Robertson and Repatriation Commission (1998) 50 ALD 668Shi v Migration Agents’ Registration Board [2000] HCA 31; (2000) 235 CLR 286
Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381; (2006) 43 AAR 469
Singh v Secretary, Department of Employment & Workplace Relations [2007] FCAFC; (2007) 46 AAR 447
Wong v Minister for Immigration and Multicultural Affairs [2004] FCAFC 242; (2004) 146 FCR 10Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120B, 196B,
Australian Defence Medal Regulations 2006
REASONS FOR DECISION
6 November 2009 Deputy President P E Hack SC Introduction
Mr Kazimir Kowalski served in the Australian Army between April 1972 and October 1973. He suffers from a condition called gastro-oesophageal reflux disease (GORD). He made a claim to the Repatriation Commission to have that condition accepted as being “defence-caused” as that expression is used in the Veterans’ Entitlements Act 1986 (Cth). On 20 February 2008 the Commission rejected that claim because it was not satisfied that Mr Kowalski’s GORD was defence-caused.
Mr Kowalski sought a review of the Commission’s decision by the Veterans’ Review Board. The Commission, in accordance with what I understand to be its ordinary practice, did not appear before the Board nor make any submissions to the Board as to why its decisions ought to be accepted. On 7 July 2008 the Board determined that Mr Kowalski’s GORD was defence-caused and remitted the matter to the Commission for assessment of the rate of pension.
On 18 August 2008, following the remitter from the Board, the Commission assessed Mr Kowalski’s pension at 10% of the General Rate. The Board affirmed this decision on 3 April 2009.
There are two applications before the Tribunal. In Application 2008/3352 the Commission seeks a review of the Board’s decision of 7 July 2008 accepting GORD as a defence-caused condition. In Application 2009/1544 Mr Kowalski seeks a review of the Commission’s decision to assess his pension for the disability occasioned by GORD at 10%. For the reasons explained in paragraphs [73] to [74] below that latter application is to be adjourned. The Commission’s application is the only application that I need decide.
In that application Mr Kowalski contends that the Commission, having made a deliberate and conscious decision not to attend the hearing before the Board, having made a deliberate and conscious decision not to raise all of its defences or to make any written or oral submissions to the Board, is now precluded by an “Anshun estoppel”[1] from asserting that the Board was wrong to conclude that his GORD was defence-caused. The consequence, Mr Kowalski says, is that the Commission’s application is an abuse of process and must be rejected. In what I understood to be a distinct and separate argument Mr Kowalski also contends that, as a matter of statutory construction, the Commission’s application cannot be treated as a hearing de novo; it was, he said, to be treated as an appeal in the strict sense such that the Commission was obliged to identify an error in the reasons of the Board. And, he said, there was no legal error in the Board’s reasoning.
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Legislative background
By virtue of s 70 of the Veterans’ Entitlement Act the Commonwealth is liable to pay a pension by way of compensation to a “member of the Forces” where the member is incapacitated from a “defence-caused injury or defence-caused disease”. It is accepted that Mr Kowalski was a member of the Forces. He answers that description, and Part IV of the Act applies to him, because he satisfies s 69(1) (f) of the Veterans’ Entitlement Act. It is not in issue that Mr Kowalski’s GORD answers the description of “disease” in s 5D (1) of the Veterans’ Entitlement Act.
What amounts to a defence-caused disease is dealt with in s 70(5) of the Veterans’ Entitlement Act in these terms:
“(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d)the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
Note:The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.”
By operation of s 120(4) of the Veterans’ Entitlement Act factual issues in the proceedings are to be decided to the standard of “reasonable satisfaction”. That imports the civil standard of proof[2]. The application of s 120(4) of the Act is set out in s 120B(3) in these terms:
[2] Repatriation Commission v Smith (1987) 15 FCR 327.
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
Section 196B of the Veterans’ Entitlement Act permits the Repatriation Medical Authority to determine two distinct types of SoP. The type relevant to defence service is set out in s 196B(3) of the Act in these terms:
“(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular … disease … can be related to:
…
(b) defence service (other than hazardous service) rendered by members of the Forces;
…the Authority must determine a Statement of Principles in respect of that kind of … disease … setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.”
Section 196B(14) of the Act then details various circumstances that can be used to identify how factors required by Statements of Principles to be related to service can be shown to be related. So far as is presently material that sub-section provides as follows:
“(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or …”
The Repatriation Medical Authority has determined an SoP – Instrument No. 12 of 2005 - that applies to GORD in the context of defence service. It defines GORD as “a chronic clinical condition involving the regurgitation of gastro-duodenal contents into the oesophagus together with resultant chronic symptomatic or histological evidence of oesophageal inflammation”. It is worth emphasising at this juncture that it a chronic condition with chronic evidence of oesophageal inflammation.
Clause 5 of the SoP sets out the factors that must exist before it can be said, on the balance of probabilities, that GORD is connected with the circumstances of relevant service which includes defence service. The only factors having any possible relevance to the present proceedings are as follows:
“…
(b)being obese at the time of the clinical onset of gastro-oesophageal reflux disease; or
…
(d)consuming an average of at least 500 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; or
…
(g)being treated with a smooth muscle relaxant drug, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of gastro-oesophageal reflux disease; or
…”
Paragraphs (l), (n) and (q) of Clause 5 set out similar factual matters in the context of “clinical worsening” of GORD.
Clause 8 of the SoP sets out other relevant definitions in these terms:
“‘a smooth muscle relaxant drug’ means:
(a)an anti-cholinergic drug;
(b)a beta-adrenergic drug;
(c)a nitrate drug;
(d)a calcium channel blocker drug;
(e)theophylline; or
(f)aminophylline;
‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;”The preliminary arguments
It seems logical to deal first with Mr Kowalski’s claimed estoppel and, in that context, to first examine what was decided in Anshun. The Authority hired a crane to Anshun. The contract obliged Anshun, as hirer, to indemnify the Authority, as owner, from any claims arising out of the use by Anshun of the crane. A workman, Mr Solterales, was injured when a load slipped from the crane. He brought proceedings against the Authority and Anshun in the Supreme Court of Victoria. The Authority and Anshun served notices requiring contribution on each other but the Authority did not plead or rely upon the contractual indemnity. Mr Solterales obtained judgment against each of the Authority and Anshun. As between the defendants liability was apportioned 90% to the Authority and 10% to Anshun. The Authority satisfied 90% of the judgment and costs and Anshun satisfied the balance.
In subsequent proceedings in the Supreme Court the Authority sought to recover the amount paid by it to satisfy the judgment and its costs. It relied for the first time upon the contractual indemnity.
At first instance McGarvie J granted a perpetual stay of the Authority’s proceedings on the basis that the claim was a matter that should have been raised in the earlier proceedings. The decision was affirmed in the Full Court. On the Authority’s further appeal Gibbs CJ, Mason & Aicken JJ referred to the following remarks of Sir James Wigram V-C in Henderson v Henderson[3]:
“where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
In Anshun their Honours went on to say[4]:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.”
[3] (1843) 3 Hare 100 at p. 115 ; 67 E.R. 313 at p. 319.
[4] 147 CLR 589 at 602-3 (per Gibbs CJ, Mason & Aicken JJ)
The rationale of the doctrine is well explained in this passage from the judgment of the Full Court in Wong v Minister for Immigration and Multicultural Affairs[5]:
“[36]The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium (it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.”
[5] [2004] FCAFC 242; (2004) 146 FCR 10, 17 at [36]
It is quite clear that Anshun estoppel can have operation within the Tribunal. So much has been authoritatively determined in Singh v Secretary, Department of Employment & Workplace[6]. There the respondent had made a decision in November 1999 to recover from compensation payments payable to Mr Singh, amounts of social security payments totalling $88,633.34 that had earlier been made to Mr Singh and his spouse. That decision was reviewed internally and by the Social Security Appeals Tribunal and this Tribunal (in October 2000). An appeal to the Federal Court from the Tribunal’s decision was dismissed by consent in December 2000. There was considerable further litigation by Mr Singh thereafter. It will suffice for present purposes to say that in October 2005 Mr Singh sought a recalculation of the compensation debt but this request was refused. That decision was affirmed by the Social Security Appeals Tribunal and this Tribunal. In the later proceedings Mr Singh sought to allege “fraud” on the part of various bodies concerned with the payment to him of compensation. The Tribunal dismissed the application.
[6] [2006] FCA 1381; 43 AAR 469 (Weinberg J); affirmed by [2007] FCAFC; 46 AAR 447 (Dowsett, Siopis & Middleton JJ)
The operation of an Anshun estoppel in administrative proceedings is illustrated by the following passage from the judgment of Weinberg J at first instance. His Honour said:
“[38]Although the Tribunal briefly referred to Mr Singh's contention regarding ‘fraud’ on the part of various bodies, it did not consider that contention in any detail when it decided to dismiss Mr Singh's application as frivolous and vexatious. Rather it summarised the totality of Mr Singh's various attempts to avoid having to repay the sum of $88,633.34, and concluded that he was attempting again to review decisions that had previously been made by the Tribunal and various courts.
[39]It would have been preferable had the Tribunal endeavoured to unravel Mr Singh's somewhat convoluted argument, and deal with it in more specific terms. The real reason why Mr Singh was correctly prevented from raising this issue of ‘fraud’ before the Tribunal was because he ought to have raised it in 2002, when Mr Singh was provided with the SSAT's reasons for decision. However, Mr Singh did not raise this matter when he lodged his appeal to the Tribunal on 30 May 2002, and self-evidently the Tribunal did not address the point when it delivered its reasons for decision affirming the decision of the SSAT, on 17 December 2002.
[40]Mr Singh submitted that the reason he had not read the SSAT's reasons for decision at the time he received them was because he was ‘not capable’ of understanding all English, and that he had ‘no capacity to read’. However, Mr Singh gave no explanation of why he had not organised for the document to be translated to him at that time.
[41]Mr Singh is therefore confronted with the fact that, by reason of his failure to read the SSAT's reasons for decision, or to have them translated to him, he did not raise, on merits review, an argument that would have been open to him. This brings into play the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd … There the High Court accepted as correct the extended principle expressed by Sir James Wigram VC in Henderson v Henderson …
[42]In Anshun, the Court found that the principle laid down in Henderson extended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun. Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through ‘negligence, inadvertence or even accident’ led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this.”
On appeal from his Honour’s decision Siopis and Middleton JJ said:
“The Anshun principle can be applied to proceedings in the nature of judicial review of administrative action, insofar as it would avoid an abuse of process”[7].
Their Honours referred to Wong v Minister for Immigration and Multicultural Affairs[8] as authority for that proposition.
[7] At [32]
[8] [2004] FCAFC 242; (2004) 146 FCR 10 at [39]
As it seems to me, Mr Kowalski’s reliance on an Anshun estoppel is misplaced. Whilst an Anshun estoppel can operate in the Tribunal setting it does so to prevent the bringing of another proceeding in the Tribunal if the basis of the second proceeding is an issue so closely connected to the issues litigated in the original proceeding in the Tribunal that it was unreasonable not to have relied upon the issue, now sought to be raised, in the original proceeding. But the policy considerations that inform an Anshun estoppel, and the notion of such an estoppel, can have no application between differing levels in a hierarchy of administrative decision-makers, all the more so where the second and third tier decision-makers, i.e. the Board and the Tribunal, undertake merits review of the antecedent decision.
Understandably, Mr Kowalski did not suggest that there was any authority for the proposition advanced by him. He did, however, rely on some observations of the Tribunal in Re Repatriation Commission & Hadfield[9]. In that case the Commission sought a review of a decision of the Veterans’ Review Board that had set aside an earlier decision of the Commission rejecting a claim for a widow’s pension. The Tribunal said this:
“3.The applicant Repatriation Commission took no part whatsoever or at all in the proceedings before the Veterans' Review Board. Now however faced with a decision by that body that it resents, it made application for further review by this Tribunal, and at that review did not allege that there was any error of law by the Veterans' Review Board but relitigated the facts of the case.
…
5.…
The Veterans' Review Board that dealt with this particular matter was constituted by a senior member, services member and a member. Although not specifically required by the legislation senior members of the Veterans' Review Board are invariably legally qualified. It can be seen therefore that the composition of the Veterans' Review Board in many ways resembles that of the Administrative Appeals Tribunal and the Board has the qualifications and experience to fully determine disputed matters of both fact and law which might arise in matters brought before it.
6.In matters such as this where the facts have been found by the Veterans' Review Board, then the right of the Repatriation Commission to apply for further review should be restricted to questions of law, particularly when, as in this case, the Commission has not deigned to take any part in the proceedings before the Veterans' Review Board.”
[9] (1990) 19 ALD 425 at 426.
The case does not stand as authority for the proposition relied upon by Mr Kowalski. Indeed the fact that the Tribunal went on to consider, and then reject, the factual propositions advanced by the Commission demonstrate, as seems plain from the use of “should be restricted”, that the Tribunal as then constituted was merely voicing a concern about what those members perceived to be the unfairness in the legislation that permitted the Commission to seek the review of the Board’s decisions and contest factual matters when it had chosen not to appear before the Board. The Tribunal suggested that the course adopted by the Commission was undesirable, not that it was impermissible as a matter of law.
Necessarily, the position is governed by the legislation. Division 5 of Part IX of the Veterans’ Entitlement Act deals with proceedings before the Board. By virtue of s 147(1) of the Act the parties to a review by the Board are the applicant for the review and the Commission. Section 148 of the Act makes it plain that the parties to the review are not bound to appear but may elect to do so. That section sets out a procedure for the parties to inform the Principal Member of the Board in writing within a specified time whether that person wishes to appear personally at the hearing. Where a party chooses not to appear before the Board “the review may be heard and determined in the absence of that party”[10].
[10] See s 148(4), Veterans’ Entitlement Act.
Provision for an application to the Tribunal for a review of a decision of the Board is made in these terms by s 175 of the Veterans’ Entitlement Act:
“(1)Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a)of the decision of the Commission that was so affirmed;
(b)of the decision of the Commission as so varied; or
(c)of the decision made by the Board in substitution for the decision so set aside;
as the case may be.”
The Commission has standing to make application to the Tribunal by a combination of s 27 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 176(2) of the Veterans’ Entitlement Act. The effect of the former is that where an enactment makes provision for an application to the Tribunal for a review of a decision it may be made by or on behalf of “any person …whose interests are affected by the decision”. The latter is in these terms:
“(2)For the purposes of the application of section 27 of the Administrative Appeals Tribunal Act 1975 to and in relation to a reviewable decision:
(a)if that decision is a decision of the Commission as varied by the Board—the Commission shall be taken to be a person whose interests are affected by that reviewable decision; and
(b)if the Board has set aside a decision of the Commission under section 19 or 31 of this Act and made another decision in substitution for the decision so set aside—the Commission shall be taken to be a person whose interests are affected by the decision of the Board to set aside the decision of the Commission and by the decision of the Board made in substitution for the decision so set aside.”
Thus the Commission’s entitlement to make application for a review is conferred by the statute. I can see nothing in the statute, and no provision was drawn to my attention, that would modify or detract from the Commission’s unfettered right to make application for a review of the Board’s decision where, as here, the Board has set aside the Commission’s decision and made another decision in substitution for it. That being so, it is well-settled that the task of the Tribunal is as expressed by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[11] in these terms:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
Again I can see nothing in the statute that suggests that the ordinary task performed by the Tribunal is qualified or modified in any way merely because the Commission is the applicant for review. There are modifications to the Administrative Appeals Tribunal Act, but they apply regardless of the identity of the applicant.
[11] (1979) 46 FLR 409, 419; 24 ALR 577, 589. See more recently Shi v Migration Agents’ Registration Board ([2000] HCA 31; 235 CLR 286
There is then nothing in Mr Kowalski’s Anshun estoppel argument.
The same is true of his alternate argument regarding the nature of the hearing. For the matter to be regarded as an appeal in the strict sense rather than a hearing de novo would require some statutory modification. As I understood Mr Kowalski’s argument it was that the nature of the hearing was changed because the subject matter of the review was the decision of the Board rather than a decision of the Commission. That, of course, is the consequence of the Board having set aside the Board’s original decision but I cannot see how that can possibly have any effect on the nature of the hearing.
Thus I reject both of Mr Kowalski’s preliminary arguments. Mr Kowalski insisted on lodging a document, which he described as an application, raising his Anshun estoppel argument. I need not make any formal decision in relation to that application. As is plain, I reject the substance of the application.
Factual background
There is, surprisingly, little true controversy about the facts. Mr Kowalski did not give evidence before me but relied upon some factual concessions made by the Commission and upon an affidavit of his lodged in the Tribunal in connection with other proceedings and which formed part of the s 37 documents. I do not understand what follows to be in dispute. It is, by and large, taken from the contemporaneous documents.
Mr Kowalski’s service in the Australian Army was as a consequence of the National Service Act 1951 (Cth). He was able (quite properly) to defer his call-up until April 1972 because of his continuing study. He served until his discharge on 19 October 1973 “having completed his prescribed period of service”[12].
[12] See Exhibit 1, page 48.
The majority of Mr Kowalski’s service was undertaken at the Amberley base of the Royal Australian Air Force. Mr Kowalski was a draughtsman and it seems clear from the material that he was required to undertake a heavy workload that resulted in considerable stress in his employment in the Army. In earlier proceedings in the Tribunal Mr Kowalski spoke of consuming “at least a jug of full strength beer”[13] daily during his period of training and thereafter whilst serving. I am content to act on the basis of that evidence.
[13] The evidence is extracted in Exhibit 16, the Commission’s Statement of Issues, Facts and Contentions.
Mr Kowalski’s medical treatment during his service is documented in the material before me. The first reference in the Australian Army “Attendance and Treatment Card” to any complaint of any present relevance is on 17 July 1973[14] when Mr Kowalski complained of epigastric pain occurring 1½ hours after meals. The pain was reported as being relieved by antacids. Mr Kowalski was prescribed Kolantyl gel and Merbentyl. Subsequently Mr Kowalski was prescribed Librax. Each of these medications is an anti-cholinergic drug and thus satisfies the definition of smooth muscle relaxant drug in the SoP for GORD. In late July or early August 1973 Mr Kowalski was prescribed a barium meal. In early August 1973 Mr Kowalski complained of re-gurgitation. A diagnosis of duodenal ulcer was made. The report of the barium meal was “No hiatus hernia or oesophageal reflux could be detected”[15]. It did detect a small duodenal ulcer.
[14] The report of Dr David Hetzel of 14 November 2008 refers to an attendance on 14 June 1973 and as complaint of “lower chest pain after meals relieved by antacids”. I am unable to locate that reference in the medical records however I will treat 14 June 1973 as the first relevant attendance.
[15] Exhibit 1, page 57.
Mr Kowalski underwent a discharge medical examination on 19 September 1973. An affirmative answer was given in answer to the question on that document, “Have you ever had or have you now … Recurrent indigestion, ulcer of stomach or duodenum?” The handwritten particulars given in explanation of that entry are as follows:
“X ray report … Duodenal ulcer
Member [complaining of] ‘heartburn’ & epigastric pain. Having ant-acids with relief.”
On the following page the attending medical practitioner has recorded “Duodenal ulcer” as the “Diagnosis of disabilities discovered”.
Prior to his discharge Mr Kowalski made a claim for compensation for his duodenal ulcer. For the purposes of that claim a report was obtained from Dr Hugh Gilmore, a specialist physician, who saw Mr Kowalski in February 1974. He reported that Mr Kowalski “first had symptoms in May, 1973 whilst doing National Service, which are typical of those produced by duodenal ulcers.” A determination was made in April 1974 that Mr Kowalski had a disease, the duodenal ulcer, to which his employment in the Army was a contributing factor. Mr Kowalski saw Dr Gilmore again in October 1976. Dr Gilmore reported that:
“since I saw him in February 1974, he has had recurrence of ulcer pain, usually quite quickly relieved by standard ulcer treatment, which he had for some time readily to hand, by virtue of supplies given him at the time of discharge from the Services.”
It is material to note that there is no reference in either of Dr Gilmore’s reports to the condition of GORD or similar conditions.
It appears that up until August 1980 Mr Kowalski sought and obtained re-imbursement for the cost of antacid treatment from the compensation authorities. There are, in addition, medical certificates from Dr Robert Pearlman attesting to Mr Kowalski’s unfitness for work because of, generally, his ulcer. On one occasion, on 18 December 1978, Dr Pearlman wrote that Mr Kowalski was suffering from “Dyspepsia – duodenal ulcer”.
The next relevant event appears to be a consultation with Dr Christina Cheung, a general practitioner, on 3 January 1995 when Mr Kowalski complained of “a burning sensation in his throat for a period of 2½ years relieved by Quickeeze [sic].” Dr Cheung referred Mr Kowalski for a barium meal which was normal.
Dr David Hetzel, a specialist gastroenterologist, first saw Mr Kowalski in November 1998 when Mr Kowalski was complaining of “heartburn and regurgitation”. Dr Hetzel performed an endoscopy in May the following year. That revealed a small hiatus hernia but the duodenum was normal. The medical evidence is uniformly of the view that by this stage Mr Kowalski was suffering from GORD. He continues to suffer from the condition which is evident on photographs taken during an endoscopic examination by Dr Hetzel in August 2008.
I would add that there is a vast array of other reports and medical commentary on Mr Kowalski’s various conditions in the material before me. The foregoing recites those parts of the evidence that appear to be relevant to the issue of the development of Mr Kowalski’s GORD.
Medical opinions
Contrary to the submissions of Mr Kowalski it is not sufficient for him to identify an SoP that raises an apparent connection to defence service. What must first be ascertained is whether, on the material before me, I am reasonably satisfied that the material upholds a connection between Mr Kowalski’s condition of GORD and his service. Then, that connection must be considered by reference to the applicable SoP. These two tasks are mandated by paragraphs (a) and (b) of s 120B(3) of the Veterans’ Entitlements Act.
In relation to that first task I have the benefit of the evidence of two gastroenterologists, each with vast experience, Dr Donald Reid and Dr Hetzel. Both reject the existence of any connection between Mr Kowalski’s service and his GORD. The opinions of each of are essentially the same – that there is no evidence of Mr Kowalski having GORD until the mid 1980’s at the earliest and that the likelihood is that the symptoms complained off by Mr Kowalski in 1973 are those of the ulcer that was diagnosed at that time rather than GORD.
The opinion of Dr Hetzel on the likely onset of GORD is expressed in his report of 13 November 2008. In answer to the question when Mr Kowalski first began to suffer from GORD he said:
“The exact timing is not certain but as my 1998 notes comment on heartburn for some years and he had undergone barium meal in 1995 because as Dr Cheung’s notes record … in ? January 1995 ‘he was living on Quickeze – burning sensation in throat – helped by Quickeze = two and a half years. No medical treatment.’ She also records ‘10 years ago – endoscopy? for same problem’. Thus it seems likely that Mr Kowalski’s GORD symptoms had arisen by 1992 at the latest and possibly in the mid 1980’s.”
In the same report Dr Hetzel discussed the likelihood of a connection between Mr Kowalski’s service and his GORD in these terms:
“The first record I can identify in the documents is that in Dr Cheung’s record in 1995 with the reference that is barely legible but suggests a two and a half year history at that stage. I do not believe that the Medical Officer’s comment on Mr Kowalski’s complaint of ‘heartburn’ and epigastric pain in September 1973 should be interpreted as indicating GORD at that time. Substernal radiation of pain is common in patients with duodenal ulcer and Mr Kowalski’s statement of claims on 7th of August 1973 … clearly describes how he ‘developed a pain under the ribcage’. To support this the barium meal of 1973 did show a duodenal ulcer and did not identify hiatus hernia or oesophageal reflux…
In summary it appears that Mr Kowalski’s first recorded symptoms suggestive of GORD, around 1993, occurred 20 years after his discharge from National Service, and 13 years after his last claims for antacid expenses. This makes it highly improbable that his army service in 1973 or the treatment with Librax at the time is a contributor to symptoms arising more than a decade later.”
Later in the same report Dr Hetzel was asked to comment on the weakness of the lower oesophageal sphincter which commonly causes GORD and said:
“…I suspect it first developed in the early 1990’s following weight gain after his development of severe lumbar back pain …”
In his evidence before me Dr Hetzel was asked about the connection between Mr Kowalski’s service and his GORD. It will be helpful to set out a lengthy extract from his answer to that, and the following, question. He said[16]:
“I mean, it is clear that when I saw [Mr Kowalski] in 1998 he had got GORD. The evidence that I have prior to that relies on other people’s records so when you look at Dr Christina Cheung’s records which suggest that in 1995 that [Mr Kowalski] was ‘living on antacids’ and had done so, she thought for about two and a half years. So it sounds as though he had symptoms that would be typical for gastro oesophageal disease, from her letter, from the early 1990s. There was also a question whether he had undergone some other endoscopy some time before and we didn’t have any documentation of that and I would have to say it was possible that he had been examined a few years earlier, in the last 1980s, and that might conceivably have been because of reflux symptoms but that is really speculation. So I am trying to push it back as early as the other individuals document can let me. There is a kind of blank period from the mid 1970s when Mr Kowalski’s army service finished until the end of 1980s that we really do not have a lot of symptomatology evidence to tell us whether he might have suffered GORD. He did suffer duodenal ulcer as far as we can ascertain from the number of different lines of evidence back in 1973, that seems quite clear of radiological evidence, symptoms which primarily were those of epigastric pain with some burning associated with it occurring an hour and a half or so after meals. A very typical symptom for ulcer that was treated at the time and which subsided with treatment. Barium meal, in the 1970s, around that time, which showed the duodenal ulcer also said that examination of the oesophagus did not identify any gastro oesophageal reflux or hiatus hernia and that X-ray is there in that great file. I can find it fairly quickly, if you wish. So I thought that was quite important supportive evidence that objectively there was not evidence that would support the idea that [Mr Kowalski] had chronic gastro oesophageal reflux disease back in the 1970s. Yes, he had had some heartburn. There was one line at one point in the notes. I think it was somewhere else it said he had some regurgitation but these things can occur in individuals with duodenal ulcer or gallstone disease. We know [Mr Kowalski] had duodenal ulcer at that time on X-ray and had the symptoms of duodenal ulcer and has had subsequently gallstones identified. So trying to put all of this together, I thought it was clear he had duodenal ulcer, for which he received a pension at the time of army service. I thought that was mainly related to the presence of helicobacter pylori which I had subsequently documented many years later but which he would almost certainly have carried since his very early childhood and that reflux disease only appeared, for sure as far as we could judge, in terms of Dr Cheung’s symptomatology in the early 1990s. It was definitely there when I examined him in 1998. So there has been a switch over time from duodenal ulcer disease. He went on getting prescriptions, that appears also in some of these transcripts, from the his army discharge for at least a couple of years, maybe I think until around the 1979 or 1980 period and that, I think, we would accept would have been probable duodenal ulcer related therapy.
And by reference to the late eighties and the symptoms, can you express an opinion about when the clinical onset of gastro oesophageal reflux disease arose with Mr Kowalski?‑‑‑Well, I think it is very hard because we don’t have perfect documentation of exactly when severe persistent chronic reflux and regurgitation developed. We just don’t have that solid information but we do know that by the time that I had seen him around the time of his heart attack, he had gained quite dramatic amounts of weight, you know, having, he says, being 73 kilograms until 1994 was what he quoted to me and what I wrote down in my first examination back in 1998 and I guess that for me made it most likely as that was, I thought, an important risk factor for reflux that he, with reasonably reliable information, probably developed chronic gastro oesophageal reflux disease sometime in the early 1990s or conceivably towards the very end of the 1980s.”
[16] Transcript page 135, line 17 and following.
As I have said, the opinions of Dr Reid were to a similar effect. Importantly, Dr Reid expressed the opinion[17] that the combination of heartburn and epigastric pain might be caused by a duodenal ulcer, gallbladder disease with gallstones, or reflux oesophagitis. Given that Mr Kowalski was diagnosed with a duodenal ulcer he concluded that the symptoms were “most likely” to be attributable to that cause and while there was a “small possibility” that Mr Kowalski had GORD that was “unlikely”. When asked by Mr Kowalski whether he agreed that, on the balance of probability, Mr Kowalski was suffering from GORD in 1973 he said this[18]:
“No. A duodenal ulcer had been proven. Duodenal ulcer can give – commonly gives pain in the high mid abdomen and also in the lower chest and I thought, on the balance of probabilities, with the proven duodenal ulcer disease, and the otherwise negative barium meal, what the writer had written as heartburn in inverted commas, was more likely to be due to the duodenal ulcer.”
[17] Transcript page 111, line 27 and following.
[18] Transcript page 72, line 5 and following.
I have no reason to doubt the opinions of Dr Hetzel and Dr Reid and every reason to accept them as accurate and reliable witnesses. They impressed me as careful and thoughtful witnesses. Each of them had impressive qualifications and experience in the area in which they expressed their opinions. I deal below in paragraphs [63] to [69] with Mr Kowalski’s criticisms of them and why I reject those criticisms.
There is, then, no evidence that establishes on the balance of probabilities a connection between Mr Kowalski’s service and his current condition of GORD. The evidence of Dr Hetzel and Dr Reid, which I accept, is uniformly to the contrary. That conclusion is, in itself, sufficient to dispose of the matter however I should deal with the particular arguments raised by Mr Kowalski.
Mr Kowalski’s arguments
The major argument that Mr Kowalski advances that goes to the merits of the claim relies upon the SoP regarding GORD. Mr Kowalski identifies the references to obesity, the consumption of at least 500 grams of alcohol per week and treatment with smooth muscle relaxant drugs in paragraphs 5(b), (d) and (g) and contends that because those matters were true of him in 1973 then the necessary connection between his service and GORD is made out. The SoP, he says, is binding upon the Tribunal and it is not permissible to seek to contradict an SoP with medical evidence.
The argument is flawed. Additionally, even if was to be accepted, the evidence does not make it out.
First, an SoP does not constitute evidence of a causal connection in a particular case; it does no more than provide a template against which the evidence of causal connection put forward in a particular case is to be tested. The effect of s 120B(3) of the Veterans’ Entitlements Act is that the Commission, and the Tribunal, cannot be reasonably satisfied that a disease was defence-caused unless the relevant SoP upholds the contention that the disease is, on the balance of probabilities, connected with defence service. But there must be evidence of that connection.
Mr Kowalski’s argument ignores the requirement of s 120B(3)(a) of the Veterans’ Entitlements Act that there be material that raises a connection between the disease and service. In the present case there is no evidence of any connection. As I have observed, the evidence of Dr Hetzel and Dr Reid is to the contrary.
But beyond that the argument is not made good on the evidence. On the evidence before me none of the matters that Mr Kowalski puts forward (and ultimately he seemed to confine himself to alcohol consumption and the prescription of smooth muscle relaxant drugs[19]) are established. Whatever factor Mr Kowalski relies upon, the factual element must be present either at, or within a specified time before, clinical onset of GORD. Thus, where clause 5(b) is relied on, obesity must exist at the time of clinical onset of GORD. With clause 5(d) there must be at least 12 months consumption of alcohol at the specified level before clinical onset of GORD. With clause 5(g) clinical onset must occur whilst being treated with smooth muscle relaxant drugs. Thus, in all cases, it is crucial to determine when there was clinical onset of GORD.
[19] Transcript page 266, line 18.
What is meant by clinical onset, in this context, was considered by the Full Court in Lees v Repatriation Commission[20] where the Court appeared to accept the earlier conclusion of the Tribunal in Robertson v Repatriation Commission[21] that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present ...”
[20] [2002] FCAFC 398; 125 FCR 331, 336 [13]
[21] (1998) 50 ALD 668, 670 [23]
In 1973 Mr Kowalski became aware of symptoms, heartburn and regurgitation, that can be symptoms of GORD as well as of other conditions. But on the material before me those symptoms would not have enabled a doctor to say that GORD was present at that time because the other clinical tests and signs attributed those symptoms to a different condition, the duodenal ulcer. The evidence of Dr Reid and Dr Hetzel is to the effect that at that time a doctor would not have said that Mr Kowalski had GORD. A doctor would have said, as was said, that Mr Kowalski had a duodenal ulcer. The first “finding … on investigation” appears not to have been made until 1995.
The evidence is that there was no evidence of clinical onset until decades after Mr Kowalski completed his service. If he was then obese, or consuming on average of at least 500 grams of alcohol per week in the 12 months before that time, that can have had no relationship with his service. His treatment with smooth muscle relaxant drugs had ceased years before the clinical onset of GORD.
Mr Kowalski argued that his complaints of heartburn in 1973 demonstrated clinical onset of GORD. Both Dr Hetzel and Dr Reid rejected that proposition. It overlooks both the requirement of GORD that there be a chronic clinical condition and, as both doctors said, that the symptoms were readily explicable on the basis of the duodenal ulcer. Dr Hetzel explained Mr Kowalski’s early complaints of heartburn in this way[22]:
“Because, when you have a combination of heartburn with epigastric pain, experience in many hundreds of patients says that that symptom is common in individuals with duodenal ulcer and isolated episodes of heartburn can occur in normal individuals who have eaten a huge meal or drunk a lot of wine. It is not synonymous with the concept of chronic gastro oesophageal disease. So when I look back at the evidence that says heartburn and epigastric pain and duodenal ulcer, I don’t instantly say, that means you had GORD. What it says to me is that you had duodenal ulcer and that you did happen to have heartburn as one of the symptoms of that.”
[22] Transcript page 161, line 35 and following.
It seemed to be important to Mr Kowalski to demonstrate that during his Army service he was placed on a high-fat, high-cholesterol diet. There was no evidence of this beyond the Commission’s acceptance that Mr Kowalski had been told to “consume a bland diet, including milk products” during the latter part of 1973. Even were I to assume that Mr Kowalski’s diet was “high-fat, high-cholesterol” as he contends I cannot see how that can help him, all the more so when ultimately he seemed to abandon reliance upon the “being obese” factor of the SoP. Not only is there an absence of evidence of any causal connection (the evidence being to the contrary) the evidence, in the form of Dr Hetzel’s notes of his initial consultation with Mr Kowalski in November 1998 and his report prepared thereafter, is that Mr Kowalski’s “weight was 73 kg or so until around 1994 when he went through a
phase of progressive weight gain and physical inactivity getting up to some 97 kgs or so …” Given that any obesity did not emerge until some 25 years after the completion of Mr Kowalski’s service I find it impossible, as did the doctors, to see how any connection could be shown between Mr Kowalski’s obesity and his service.
There is the further difficulty in Mr Kowalski’s reliance on having been prescribed smooth muscle relaxant drugs. Factor 5(g) speaks of treatment with that type of drug “for a condition for which the drug cannot be ceased or substituted”. There is no evidence that the drugs being prescribed for Mr Kowalski could not be ceased or substituted. Again, it is to the contrary. Dr Reid said, on this point[23]:
“…in circumstances in 1972 my opinion would be that if they thought at that time, there was a significant adverse effect, then there would have been no strong medical reason that the drugs could not have been ceased or substituted .”
[23] Transcript page 88, line 47 and following.
During the course of his submissions at the conclusion of the proceedings Mr Kowalski produced his Australian Defence Medal, the award of which, he contended, demonstrated that he had a disability because “the only grounds I could get it awarded was if I left the Army with a compensable condition”[24]. Mr Kowalski said that he had sought the medal, and it had been awarded, on that basis.
[24] Transcript page 238, lines 26-27
There was, at that time, no evidence before me of the basis on which Mr Kowalski sought the medal or the basis on which it was awarded. In the circumstances explained in paragraphs [90] and [91] below I have admitted the material submitted by Mr Kowalski upon which this argument is based.
Despite the correspondence relied upon by Mr Kowalski, the award of the Australian Defence Medal is governed by the Australian Defence Medal Regulations 2006[25]. Whatever the responsible Minister and others may have said about the intended grounds for the award it is the regulations as gazetted that determine the matter. So far as is presently material the award of the Australian Defence Medal is governed by reg. 4 which is in these terms:
[25] Gazette No. S 48, 30 March 2006
“(1)the Medal may be awarded to a member, or a former member, of the Defence Force who after 3 September 1945 has given qualifying service that is efficient service:
(a)by completing an initial enlistment period; or
(b)for a period of not less than 4 years service; or
(c)for periods that total not less than 4 years; or
(d)for a period or periods that total less than 4 years, being service that the member was unable to continue for one or more of the following reasons:
(i)the death of the member during service;
(ii)the discharge of the member as medically unfit due to a compensable impairment;
(iii)the discharge of the member due to a prevailing discriminatory Defence policy, as determined by the Chief of the Defence Force or his or her delegate.”
The application for the award, apparently completed by Mr Kowalski on 11 July 2009, acknowledged that Mr Kowalski had less than four years service and that his discharge was on the basis that his initial period of enlistment in National Service had been completed. The application did not suggest that Mr Kowalski had been discharged because of a compensable condition. In these circumstances I would infer that the basis of the award of the Australian Defence Medal to Mr Kowalski was that in Reg. 4(1)(a), that is his completion of an initial enlistment period, and not on the basis of an early discharge as medically unfit due to a compensable condition. The fact is that Mr Kowalski was not discharged as medically unfit, he was discharged because he “had completed the prescribed period of service in the ARAS(NS)”[26]
[26] See the Certificate of Discharge, Exhibit 1, page 48.
But whatever may have been the basis on which the award was made it does not assist Mr Kowalski. I am unaware of the evidence before the person who determined that Mr Kowalski was eligible for the award but on the evidence before me there is no link between Mr Kowalski’s Army service and his GORD.
I should deal with Mr Kowalski’s criticisms of Dr Hetzel and Dr Reid. Apart from his somewhat extravagant and unparticularised attacks on the credibility of both doctors he relied, in particular, upon the fact that both of them did not agree with some of the conclusions of the Repatriation Medical Authority evidenced by the factors in the GORD SoP that the Authority regarded could be related to GORD. Mr Kowalski referred to the following passage from the judgment of Weinberg J in Repatriation Commission v Gosewinckel[27] where his Honour said:
"The tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of `purely medical ... issues' out of the hands of bodies such as the tribunal; Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts a SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable …”
[27] (1999) 59 ALD 690, 704-5
His Honour was not determining that an expert witness was bound by the conclusions of the Authority or that a medical witness might not be in disagreement with the apparent conclusions of the Authority. All that his Honour decided, in the passage cited, was that medical evidence could not be used to demonstrate a hypothesis or contention outside the matters contained in the Statements of Principles. I do not regard the fact of Dr Hetzel and Dr Reid being in apparent disagreement with the views of the Authority as detracting from the weight that I ought give their evidence.
Mr Kowalski placed some reliance on publications that he had located that deal with the subjects of heartburn and dyspepsia. It is enough for me to say that I regard those publications as perfectly adequate for the level at which they are written however where there any conflict between the contents of the brochures and the evidence of Dr Hetzel and Dr Reid I prefer the latter.
Next, I note that Mr Kowalski sought to make much of the fact that at an earlier time Dr Reid expressed an opinion regarding the correlation between heartburn and GORD that he came to modify. I do not regard the fact that Dr Reid came to revise an opinion after more reflection detracts from his reliability; it is, in my view, the role of an expert to consider, and if necessary revise, the opinions expressed.
Mr Kowalski criticized Dr Hetzel on the basis that Dr Hetzel had expressed the view in his oral evidence that GORD and heartburn were not interchangeable. This, contended Mr Kowalski, was inconsistent with the contents of his report where, in answer to the question, “Does the Applicant suffer from GORD and the symptoms of GORD?” Dr Hetzel referred to Mr Kowalski suffering “heartburn and substernal regurgitation”. I see nothing inconsistent in the evidence given by Dr Hetzel. Heartburn is one of the symptoms of GORD but, as Dr Hetzel observed, all of us are likely to suffer from an occasional bout of heartburn. A diagnosis of GORD requires that there be a chronic condition with chronic evidence of oesophageal inflammation. Mr Kowalski’s proposition involves a misreading of what Dr Hetzel said in his report.
Additionally, Mr Kowalski was critical of Dr Hetzel because his evidence was that he had been told by Mr Kowalski in November 1988 that Mr Kowalski’s weight had been 73 kg or so up until around 1984. Mr Kowalski relied upon the fact that his weight on discharge was 79 kg as demonstrating that he had not told Dr Hetzel what Dr Hetzel had recorded in his clinical notes. Given that Mr Kowalski did not give evidence of what he says he told Dr Hetzel I have no reason to doubt Dr Hetzel’s evidence on this account. In any event, given that Mr Kowalski does not rely on a “being obese” factor, it seems not to matter except as going to the reliability of Dr Hetzel’s evidence generally.
As should be clear, I accept the evidence of Dr Reid and Dr Hetzel and reject Mr Kowalski’s intemperate and unfounded criticisms of them.
Conclusion
It follows that I would set aside the Board’s decision and would substitute a decision affirming the Commission’s decision of 20 February 2008, that is, that Mr Kowalski’s GORD was not defence-caused. While it is not necessary to do so, it may assist Mr Kowalski if I explain where I would respectfully suggest that the Board fell into error.
First, and most critically, it appears to me that the Board treated the matters in the SoP as evidence in themselves. Thus, it regarded as sufficient to establish causation the mere fact that Mr Kowalski suffered from GORD and had been prescribed muscle relaxant drugs. But it failed to appreciate that there was no evidence that Mr Kowalski had GORD in 1973. It appears, for reasons that are not clear to me, that the Board had only the first four pages of the report of Dr Reid dated 20 March 2006. Within that extract was the opinion of Dr Reid that Mr Kowalski’s then current symptoms were due to GORD. Unfortunately the Board did not have before it the balance of Dr Reid’s report which, on page 5, expressed the opinion that Mr Kowalski’s condition of GORD “was not materially contributed to by his employment with the Army”. I imagine that if the Board had had the entirety of Dr Reid’s report the conclusion would likely have been quite different.
As the medical evidence available to me makes clear, Mr Kowalski’s symptoms were not evidence of the presence of GORD, they were more likely explained by his ulcer. There was then no evidence of the onset of GORD, merely evidence that Mr Kowalski suffered from it at the time of the hearing before the Board. Moreover, there was no material from which the Board could conclude, on the balance of probabilities, that Mr Kowalski’s GORD was connected with his service. It is only after there is such material that it becomes necessary for the Commission or the Board or the Tribunal to have regard to the SoP to determine whether the SoP upholds the contention that has otherwise been made out on the evidence.
Mr Kowalski’s application
At the conclusion of the evidence in the proceedings Mr Kowalski realised that he had overlooked asking questions of the doctors to establish the degree of his disability, that is, questions designed to demonstrate that his assessment of impairment ought to have been greater than the figure of 10% determined by the Commission and affirmed by the Board. With the concurrence of the Board I agreed that it would be best if that proceeding be adjourned to be heard separately at some time in the future if that became necessary. In light of the conclusion that I have reached on the Commission’s application there is now no utility in that application however it would be premature to dispose of that application before the expiry of any appeal period or the determination of any appeal if instituted.
Thus, in Application 2009/1544 I shall adjourn the hearing of that application to a date to be fixed. Either party may apply to have it listed for a determination of some description in due course.
An application for disqualification
Following the completion of the hearing Mr Kowalski lodged an “application” in the Tribunal dated both 10 and 11 October 2009 by which he submitted that I should disqualify myself on the grounds, as I understand the document, of actual bias. The material in support of the application suggests that I should disqualify myself because I,
“deliberately and consciously perverted the course of justice in the AAT, … jumped into the arena with the applicant’s lawyers in order to assist the applicant’s lawyers run the applicant’s case, … refused to allow the respondent to tender crucial documentary evidence to support his case and on Friday afternoon on 9 October 2009, Deputy President Hack was bias [sic] at law against the respondent.”
Additionally, Mr Kowalski asserted a belief that I “did not fully understand the legal principle of an Anshun Estoppel”. Complaint was made as well that I had refused to refer the “Anshun estoppel” point to the Full Court pursuant to s 45 of the Administrative Appeals Tribunal Act 1975 (Cth).
Next, Mr Kowalski said that he had sent a letter, dated 31 August 2009 with further evidence to support his case, to me and to the Deputy District Registrar of the Tribunal’s Adelaide Registry but that I had refused to allow him to tender this letter and the “crucial evidence attached”. I had done this, it was said, “in order to pervert the course of justice in the AAT and to deny [Mr Kowalski] his statutory and his legal rights to a proper hearing on the merits”. In the same context it is said that counsel for the Commission had made “false and misleading” statements to the Tribunal and that I had “turned a blind eye” to this conduct.
Finally, Mr Kowalski complains that I had said that a particular affidavit of his was not before me when it had been included in the s 37 documents which were in evidence in the proceedings.
Mr Kowalski’s application for disqualification was the subject of a further short hearing on 28 October 2009 when Mr Kowalski identified the bases on which he alleged that I was biased.
He first identified a period during the evidence of Dr Hetzel between pages 154 and 164 of the transcript where, as he put it, he had “trapped”[28] Dr Hetzel in order to show that he was not a credible witness. His complaint was that during that period I should have myself questioned Dr Hetzel in order to make the forensic point that Mr Kowalski was seeking to make with Dr Hetzel. Mr Kowalski complained that I was not interested in his claimed demonstration that Dr Hetzel was “a liar” who was “in contempt of the Tribunal”[29]. The first difficulty that I have with Mr Kowalski’s proposition was that I was not then, nor am I now, satisfied that there was anything in the point that Mr Kowalski was seeking to make about the evidence of Dr Hetzel. I have dealt with the argument in paragraph [67] above. His criticism of Dr Hetzel is devoid of substance and I need not discuss it further.
[28] Transcript page 252, line 1.
[29] Transcript page 156, lines 35-37
Mr Kowalski next relied upon this interchange during Dr Hetzel’s evidence[30]:
[30] Transcript page 163, line 42 and following.
“MR KOWALSKI: Yes?‑‑‑So I think he is merely documenting, you know, that yes, they accept you had heartburn, epigastric pain and a duodenal ulcer. It is kind of really just testifying that this was accepted as part of your army service. That is the way I would interpret it.
Member complains of –
on 19 September 1973 –
Member complains of ‑ ‑ ‑
?‑‑‑It says you were continuing to get symptoms, you are quite right.
Hang on:
Member complains of ‑ ‑ ‑
The complaints for the ulcer were made from July through to August and then there is a fresh complaint and heartburn and yet you use the term, in paragraph 3.6:
I note Kaz suffered from heartburn.
That is why I referred you to your notes. You used the term “heartburn”. You don’t use the word GORD. The doctor used heartburn. It is a standard term to us. That is all I have to say on that point anyway.
THE WITNESS: Do you want me to answer at all?
THE D.PRESIDENT: No.” [Emphasis added]
It was obvious that Dr Hetzel had understandable difficulty in identifying any coherent question in the passage highlighted. Part of the statement was directed towards me and I was not able to discern any question capable of being answered thus I responded to Dr Hetzel’s question, which, as I recall, was directed to me, in the way that I did.
During his cross-examination of Dr Hetzel Mr Kowalski asked questions about the prescription by a Dr Jaggerman (now apparently deceased) to him of a drug called Pepsidine. He put to Dr Hetzel that in earlier proceedings Dr Hetzel had suggested that Dr Jaggerman had acted improperly in so doing. Dr Hetzel rejected that suggestion and advanced what he had said on the earlier occasion. When pressed by Mr Kowalski as to the reasons for the prescription of Pepsidine Dr Hetzel pointed out that “we are getting into the realms of speculation” and was then criticized by Mr Kowalski for speculating. I pointed out to Mr Kowalski that it was not open to him to ask a witness a question that invites speculation and then criticize the witness for doing so. I regard that as no more than part of the proper function of the Tribunal to protect witnesses from unfair criticism, all the more so when the questioning was quite remote from anything with apparent relevance to the issues in the proceedings. Mr Kowalski continued asking questions that required Dr Hetzel to speculate, apparently for the purpose of having him say that he did not know why another practitioner had prescribed a particular drug. Since Dr Hetzel had already said that I stopped further cross-examination along those lines. Mr Kowalski continued cross-examining Dr Hetzel on other topics.
Mr Kowalski then moved to the topic of Dr Hetzel’s reference to his reported weight and his weight on discharge from the Army. Mr Kowalski’s complaint was that I had pre-judged the matter because I did not intervene to point out to Dr Hetzel the contradiction that Mr Kowalski said existed between a report of him having been “73 kgs or so up until around 1994” and his discharge weight of 79 kgs. If there is a contradiction between those two facts it was not, and is not, apparent to me.
During Mr Kowalski’s cross-examination of Dr Hetzel he taxed the doctor about not having taken a history of his army service from him. In re-examination, Mr Wallace took Dr Hetzel to his clinical notes, no doubt with a view to drawing Dr Hetzel’s attention to a reference in those notes to “discharged from national service”. I pointed out to Dr Hetzel where that reference was. In so doing, Mr Kowalski complained, I appeared to accept that Dr Hetzel had taken a detailed history. I do not accept that that is a conclusion that could be said rationally to flow from the question I asked.
Mr Kowalski’s next complaint evidencing bias on my part is that immediately prior to adjourning for lunch on the second day I pointed out to him that it was not apparent to me that there was evidence of some of the factual matters that he had been putting to witnesses[31]. I gave as an example his reference to having drunk a
jug of beer a day. It transpired that Mr Kowalski was relying upon the fact that the Commission’s Statement of Facts and Contentions (which subsequently became an exhibit) extracted evidence that Mr Kowalski had given on an earlier occasion about his consumption of alcohol during his service. Mr Kowalski suggested that this interchange demonstrated that I did not have a detailed grasp of all the factual material. There is a similar complaint that I asked him[32] whether the Board had a copy of Dr Reid’s report of 20 March 2006.
[31] Transcript page 197, line 38
[32] Transcript page 257, line 10
These were said to be examples of my inadequate grasp of the facts of the case. That may well be correct but I am unaware of any requirement that members of tribunals should have complete familiarity with all of the factual material at that point in the proceedings, all the more so when the Statement had not been admitted into evidence at that stage. As is apparent from the transcript, I was concerned to ensure that Mr Kowalski did not end up in the position of relying upon matters of fact of which there was no in evidence before me. I hardly think that doing so evidences bias.
Next, Mr Kowalski refers to a discussion[33] that took place about an affidavit of his from another proceeding in the Tribunal that was part of the s 37 documents. That affidavit exhibited a letter sent by Mr Kowalski in which he said that his alcohol consumption was of a particular level. The passage that Mr Kowalski raises is one where I sought to explain to him that nowhere in his affidavit had he sworn to the correctness of the matters of fact contained in his letter, again against the possibility of Mr Kowalski not having evidence of matters of fact on which he relied.
[33] Transcript page 203, line 12 and following
Mr Kowalski’s next complaint concerns the debate that I had with counsel for the Commission whilst Mr Wallace was making his final submissions. Mr Kowalski complained that my questioning of the way in which the Commission put its case gave him the impression of bias. A fair reading of the transcript demonstrates that the debate was part and parcel of the ordinary debate between bench and bar table to clarify and test the propositions being advanced.
In the course of those discussions I made reference to an example of issue estoppel[34]. This, says Mr Kowalski, demonstrates that I “did not fully understand the principle of an Anshun Estoppel”. Whether I have an adequate understanding of the legal issues involved in a hearing is to be tested by reference to my reasons for decision, not remarks made in the course of argument and taken out of their context.
[34] Transcript page 231, line 45
The allegation that I refused to allow him to tender crucial evidence relates to a letter sent by Mr Kowalski to the Tribunal on 31 August 2009. That letter enclosed a copy of an extract from correspondence from the then Minister for Veterans’ Affairs, the Hon Bruce Billson MP, to the national president of the Injured Service Persons Association dated 3 October 2006, a copy of part of that Association’s submission to an enquiry into eligibility criteria for the award of the Australian Defence Medal, a copy of Mr Kowalski’s application dated 11 July 2009 for the award of the Australian Defence Medal, a copy of Mr Kowalski’s enlistment medical examination, a copy of part of his discharge medical examination, a copy of compensation determination made on 4 April 1974 accepting liability to pay compensation in relation to Mr Kowalski’s duodenal ulcer, a copy of Mr Kowalski’s certificate of discharge, copies of correspondence to Mr Kowalski from the Directorate of Honours and Awards and a photocopy of the box in which Mr Kowalski’s medal was sent.
I am not aware of Mr Kowalski ever seeking to tender this material nor was he able to identify such an occasion by reference to the transcript. Nonetheless I shall make the material an exhibit in the proceedings. But, as I have said, the material does not demonstrate the proposition that Mr Kowalski advances, namely that the award proves that he left the Army with a disability. It demonstrates, if demonstration be necessary, that Mr Kowalski’s duodenal ulcer was accepted as a compensable condition and that Mr Kowalski has been awarded the Australian Defence Medal.
The complaint that I “turned a blind eye” to counsel for the Commission “making false and misleading statements” to the Tribunal is without substance. There were certainly occasions when Mr Kowalski made such accusations but in my view his accusations were without any foundation whatsoever.
Mr Kowalski originally put his application for disqualification on the basis of actual bias. He latter enlarged his application to include apprehended bias but I deal first with the complaint of actual bias. In Minister for Immigration and Multicultural Affairs v Jia Legeng[35] Gleeson CJ and Gummow J described bias in this way:
“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”
[35] [2001] HCA 17; (2001) 205 CLR 507, 532, [72].
I reject the notion that I approached the hearing with such a state of mind. I was certainly sceptical of the “Anshun estoppel” argument because, prima facie, it appeared to be an astonishing conclusion that the Commission could be prevented from agitating the correctness of facts found by the Board because the Commission chose not to appear before the Board. Detailed argument and further consideration merely confirms my scepticism. Nonetheless I was perfectly prepared to listen to Mr Kowalski’s arguments and to ensure, as best I could, that I understood them.
It needs also to be said that Mr Kowalski is a difficult litigant. The notion of respectful disagreement appears to be entirely foreign to him. Thus, frequently during the hearing Mr Kowalski made insulting and irrelevant comments about other members of the Tribunal. He made insulting and irrelevant comments about the Commission’s representatives. I sought to control that conduct where possible. But I did so because I regarded Mr Kowalski’s criticisms as being irrelevant to the matters in issue before me.
Having considered the matters raised by Mr Kowalski I reject his allegations that I am biased or that I have perverted the course of justice.
I turn then to the allegation of apprehended bias. As I understand the position the relevant enquiry is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide[36]. I do not regard the matters identified by Mr Kowalski or my conduct of the hearing generally as satisfying that test. Having considered and discussed each of Mr Kowalski’s complaints above I do not need to rehearse them again.
[36] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]
It follows that I reject the application that I disqualify myself from the hearing.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....................Signed..............................
AssociateDate of Hearing 8 & 9 October 2009, 28 October 2009
Date of Decision 6 November 2009
Applicant In person
Counsel for the respondent Mr J Wallace
Solicitor for the respondent Australian Government Solicitor
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