Kowalski and Repatriation Commission
[2014] AATA 141
•14 March 2014
[2014] AATA 141
Division VETERANS’ APPEALS DIVISION
File Number 2013/3647
Re Kazimir Kowalski
APPLICANT
And Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 14 March 2014
Place Melbourne
Having been satisfied that the applicant’s application lodged on 25 July 2013 for review of a decision of the Repatriation Commission dated 30 March 2012 and affirmed by a decision of the Veterans’ Review Board dated 11 July 2013 is frivolous or vexatious, the Tribunal has decided under s 42B of the Administrative Appeals Tribunal Act 1975 to:
1.dismiss the applicant’s application; and
2.to direct that the applicant must not, without leave of the Tribunal, make an
application for review of a decision made under either the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004.
[sgd] S A Forgie
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – estoppel – whether Tribunal estopped from making a determination inconsistent with an earlier decision of the Veterans’ Review Board – not estopped.
PRACTICE AND PROCEDURE – frivolous or vexatious application – whether application frivolous or vexatious – meaning of those terms – identification of principles relevant to determining whether frivolous or vexatious and whether application should be dismissed on that basis and whether a direction should be made that the applicant not make a subsequent application without leave – application dismissed and direction made in relation to certain applications.
PRACTICE AND PROCEDURE – frivolous or vexatious application – application of a party to the proceedings for a direction that an applicant must not make a further application without leave – whether application must be made in writing – no requirement that it be made in writing – no prescribed form if made in writing – oral application made.
LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 2A, 21A, 25(1), 27, 29, 33, 37, 39, 42B, 43 and 44
Military Rehabilitation and Compensation Act 2004
Migration Act 1958; sections 47, 65 and 425(1)
Civil Procedure Act 2010; sections s 63 and 64
Veterans’ Entitlements Act 1986; sections 5AB(1)-(2), 13, 13AG, 14, 57B, 68(1), 68(4)-(6), 69(1)(f), 69A, 69B, 70, 71, 79U, 79T, 93Z, 93ZB, 115, 116D, 118ZU, 118ZT, 119, 120(1)-(4), 120A, 120B, 135, 136, 139, 175(1), 175(2AAA), 175(3)-(5), 176, 189, 196B and 196ECASES
Administration of the Territory of Papua and New Guinea v Daera Guba (1973)
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14
Attorney-General v Kowalski [2014] SASC 1
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Brew v Repatriation Commission (1999) FCA 1246
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21; (1979) 24 ALR 307
Cross v Repatriation Commission [2013] FCA 229
Deledio v Repatriation Commission (1997) 25 AAR 396
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Director General Security v Sultan and Another (1998) 90 FCR 334
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; 176 ALR 644; 63 ALD 577
Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13
Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd [1946] HCA 29; (1946) 75 CLR 487
Fenner v Repatriation Commission [2005] FCA 27; (2005) 218 ALR 122
General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1965] ALR 636; (1964) 112 CLR 125
Grundman v Repatriation Commission (2001) 66 ALD 125; [2001] FCA 892
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324
Heffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438; 193 ALR 90
Jarrett v Fleur De Lys Pty Ltd [2005] FMCA 800
JF Keir Pty Limited v Sparks [2008] FCA 611
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 174 ALR 655
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500
Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51
Kowalski v Mistubishi Motors Australia Limited [2008] FCA 1873
Kowalski v Repatriation Commission [2008] AATA 903
Kowalski v Repatriation Commission [2008] FCA 1970
Kowalski v Repatriation Commission [2009] AATA 6
Kowalski v Repatriation Commission [2009] AATA 807
Kowalski v Repatriation Commission [2009] AATA 853
Kowalski v Repatriation Commission [2009] FCA 153
Kowalski v Repatriation Commission [2009] FCA 47
Kowalski v Repatriation Commission [2009] FCA 794
Kowalski v Repatriation Commission [2009] FCAFC 107
Kowalski v Repatriation Commission [2010] FCA 217
Kowalski v Repatriation Commission [2010] FCA 409
Kowalski v Repatriation Commission [2010] FCAFC 19
Kowalski v Repatriation Commission [2010] HCASL 20
Kowalski v Repatriation Commission [2011] AATA 197
Kowalski v Repatriation Commission [2011] AATA 212
Kowalski v Repatriation Commission [2011] AATA 214
Kowalski v Repatriation Commission [2011] AATA 634
Kowalski v Repatriation Commission [2011] FCAFC 43
Kowalski v Repatriation Commission [2011] HCASL 101
Kumar v Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427; 282 ALR 685
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649; 61 FLR 354; 5 ALD 135
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577
Minister for Immigration and Multicultural Affairs v Li 103 FCR 486
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154
Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153
Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923
Potter v Minahan (1908) 7 CLR 277
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re Hopkins and Repatriation Commission [2013] AATA 270
Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595 130 CLR 353
Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358
Re Repatriation Commission and Falkner (1987) 12 ALD 87
Re Robertson & Repatriation Commission (1998) 50 ALD 668
Re Sleep and Repatriation Commission [2011] AATA 349; (2011) 55 AAR 75; 123 ALD 633
Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Flentjar (1997) 47 ALD 67
Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
Repatriation Commission v Wedekind [2000] FCA 649
Robertson v Repatriation Commission (AAT 12666, 2 March 1998)
Roncevich v Repatriation Commission (2003) 75 ALD 345; [2003] FCAFC 146; [2002] FCA 1458
Roncevich v Repatriation Commission [2004] HCATrans 379
SGME v Minister for Immigration and Citizenship and Refugee Review Tribunal [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31
Soden v Kowalski [2011] FCA 318
Somerset v Repatriation Commission [2005] FCA 1399
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Thanh Phat Ma v Billings (1997) 142 ALR 158
Vakauta v Kelly (1989) 167 CLR 568
Varawa v Howard Smith Co. Ltd (1911) 13 CLR 35
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; 122 ALR 41
Wentworth v Rogers (No 5) [1986] 6 NSWLR 534
Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472; 86 ALR 464
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15REASONS FOR DECISION
Mr Kowalski was conscripted in the Australian Army as a National Serviceman on 20 April 1972. After completing his three month basic training, he served as a regimental and mechanical draftsman at the Royal Australian Air Force’s Base Amberley in south eastern Queensland. He remained in that position until the completion of his national service on
19 October 1973.
Since 2007, Mr Kowalski has lodged three claims with the Repatriation Commission for compensation, which would take the form of a pension, in respect of various conditions. His claims were made under s 70 of the Veterans’ Entitlements Act 1986 (VE Act). Reading three separate claims lodged on 20, 21 and 23 June 2011 together,[1] Mr Kowalski claimed compensation for the conditions of that gastro-oesophageal reflux disease (GORD), depressive disorder, anxiety disorder, hypertension and ischaemic heart disease. On 30 March 2012, the Repatriation Commission (Commission) refused his claims on the basis that his conditions are not defence-caused as claimed by Mr Kowalski. The Veterans’ Review Board (VRB) affirmed the Commission’s decision on 11 July 2013. In an application lodged on 25 July 2013, Mr Kowalski applied to the Tribunal for review of the decision.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T43, 44 and 45 at 402-455
The matter was listed for a preliminary hearing to address a number of issues that had been raised by one party or the other. Initially, the issues raised by the parties could be grouped into five categories and were:
(1)Is the Tribunal restricted to considering only his condition of GORD on the basis that the VRB proceeded to consider all conditions at its hearing when Mr Kowalski had understood that it would consider only GORD?
(2)Should the proceeding be adjourned to enable Mr Kowalski to obtain an advocate?
(3)Should the proceeding be adjourned to wait for the decision of Blue J in Attorney-General v Kowalski, which has since been handed down on 20 January 2014?[2]
(4)Is the Tribunal estopped from determining the matter or taking any action that is inconsistent with the decision of the VRB dated 7 July 2008 and accepting GORD as a defence-caused condition?
(5)Should Mr Kowalski’s application be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the basis that it is frivolous or vexatious?
[2] [2014] SASC 1
After the hearing had concluded and in a document dated 17 January 2014, Mr Kowalski concluded written submissions addressing the Commission’s application made under s 42B by raising a sixth issue. He asked that I disqualify myself because he had “…a perception that … [I had] jumped into the arena with the respondent and … is biased against him …”.[3] I have decided that I should not disqualify myself and have set out my reasons for reaching that decision.
[3] Document dated 17 January 2014 and entitled “Kazimir Kowalski’s written submissions in respect to the Repatriation Commission’s s 42B application” at [13]
Mr Kowalski also indicated at the hearing that he would represent himself at the hearing. That resolved the second issue. He also took the view that he would not wait for the judgment of Blue J in Attorney-General v Kowalski. I note that it has since been given but have not had regard to it. When I turned to the first of the other issues raised between the parties, I was aware that Mr Kowalski had indicated that he accepted that all five conditions were now the subject of the review in the Tribunal. Mindful “… that parties, by consent, cannot confer jurisdiction upon the court”,[4] or the Tribunal, I have considered that issue and concluded that I do have power to review the decision. My reasons are set out below.
[4] McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462 at [9]; 467 per Sweeney, Evatt and Northrop
In relation to the other issues, I have decided that I should not disqualify myself, that I am not estopped from determining the matter or taking any action that is inconsistent with the decision of the VRB dated 7 July 2008 and accepting GORD as a defence-caused condition and that I should make an order under s 42B of the AAT Act declaring that Mr Kowalski must not, without leave of the Tribunal, make a subsequent application to the Tribunal for review of any decision made under either the VE Act or the Military Rehabilitation and Compensation Act 2004 (MRC Act). I have set out my reasons below.
ENTITLEMENT TO COMPENSATION UNDER VE ACT
Section 70(1) of the VE Act provides, in part, that, where:
“(b) a member of the Forces … is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member – a pension by way of compensation to the member;
in accordance with this Act.”
A “member of the Forces” means a person to whom Part IV of the VE Act applies by ss 69, 69A or 69B. Mr Kowalski is a member of the Forces by virtue of his having served with the Australian Army as a National Serviceman from 20 April 1972 to 19 October 1973.[5]
[5] VE Act; s 69(1)(f)
Whether an injury or disease is a “defence-caused” injury or disease depends upon whether it meets the criterion set out in ss 70(4)-(8) of Part IV of the VE Act. The only provisions that may be relevant in this case are found in ss 70(5) and (7):
“(5) For the purposes of this Act, … 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 … 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)…
(c)…
(d)the injury or disease from which the member … is incapacitated:
(i)was suffered or contracted during any defence 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 … 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 … rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) …
(5A-5B)…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces … was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member.
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.”
The term “defence service” is defined in s 68(1) with reference to ss 68(4), (5) and (6). Only paragraph (a) of the definition applies to Mr Kowalski’s service. The continuous fill-time service that he rendered on or after 7 December 1972 until his discharge on 19 October 1973 is defence service.
When a claim is made in respect of service that is neither operational service, peacekeeping service, hazardous service or British nuclear defence service, it must be determined according to the standard of proof set out in s 120(4) of the VE Act. That section provides that the Commission, and so this Tribunal:
“… shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
What is meant by the expression “reasonable satisfaction” in this context has been explained by Beaumont J, with whom Northrop and Spender JJ agreed, in Repatriation Commission v Smith,[6] that the Tribunal:
“... should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[7]
[6] Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
[7] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17 at 335; 547; 26
Section 120(4) must be read with s 120B, which applies to Mr Kowalski’s claims as they are claims made under Part IV relating to defence-service other than , peacekeeping service, hazardous service or British nuclear defence service. As it applies in this case, s 120B(3)
provides:
“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 … 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.”
The Authority to which reference is made in s 120B(4) is the Repatriation Medical Authority (RMA). The RMA must determine a SoP in relation to claims to be assessed according to ss 120(1) and (3), and so by reference to a reasonable hypothesis, on the one hand and s 120(4), and so by reference to reasonable satisfaction, on the other (s 196B). We are concerned only with those relating to assessment by reference to reasonable satisfaction:
“If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)…
(b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or
(ba)…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death 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.”[8]
[8] VE Act; s 196B(3)
The opening words of the provision refer to a particular injury or disease’s “being related to” the veteran’s service. Section 196B(14) defines the concept of “related to service” in terms consistent with those used in s 70(5)(a) and (d) in relation to “defence-caused injury” and “defence‑caused disease”. In so far as it is relevant, s 196B(14) provides that:
“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
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)…
(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
(g)…”
“Sound medical scientific evidence” has the meaning given in s 5AB(2):[9]
[9] VE Act; s 5AB(1)
“Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”[10]
[10] VE Act; s. 5AB(2)
How does the RMA decide whether it should come to a view about a particular kind of injury, disease or death and determine a SoP? This question may be answered by reference to ss 196E and 196B(4). If the RMA receives a request from a person or body specified in s 196E(1) to carry out an investigation in respect of a particular kind of injury, disease or death, it must do so.[11] Its investigation is conducted in order to obtain information that would enable the Authority to establish how the injury may be suffered, the disease may be contracted or the death may occur and the extent, if any, to which the injury, disease or death may, in the circumstances of this case, be defence-caused.[12]
[11] VE Act; ss 196B(4)(a) and 196E(1)(d)
[12] VE Act; s 196B(4)(c) and (d)
If, after the investigation, the RMA is of the view that there is a new body of sound medical-scientific evidence that, together with that body of evidence it had previously considered, justifies the making of a SoP, or an amendment of a SoP, the Authority must determine a SoP, amend a SoP or revoke the SoP and determine a new SoP in respect of the particular kind of injury, disease or death under consideration.[13] Should the RMA be of the view after the investigation, that there is no such new body of sound medical-scientific evidence, or that the new evidence available is insufficient to justify the making of a SoP or amending a SoP, it must make a written declaration, supported by reasons, that it does not propose to make a SoP or amend an existing SoP.[14]
[13] VE Act; s 196B(8)
[14] VE Act; s 196B(9)
How does the legislative scheme work?
It is important to note that s 70(5) describes the various connections between a person’s injury or disease and that person’s defence service that will lead to a conclusion that a particular injury or disease can be said to be defence-caused. They are the only circumstances that will lead to that conclusion. Stating the connection is one thing and setting out the standard by which the evidentiary material is analysed to decide whether or not the necessary connection has been made out. The standard of proof, found in ss 120(4)
and 120B(3), has two distinct steps, both of which must be taken. The first is that:
“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”.[15]
[15] VE Act; s 120B(3)(a)
The second, found in s 120B(3)(b), is that, if a relevant SoP is in force, it “… upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.” As both steps must be taken, an injury or disease will not be found to be defence-caused simply because a circumstance set out in the relevant SoP has been established on the balance of probabilities. There must also be a connection between the injury or disease and some particular service rendered by the person. Taking the last circumstance set out in SoP No. 66 of 2013 entitled “Gastro-oesophageal reflux disease” (2013 GORD SoP), this would mean that the SoP would uphold a contention that an injury or disease is, on the balance of probabilities, connected with that service but GORD would not be a defence-caused disease unless the material raises a connection between the person’s inability to obtain appropriate clinical management for GORD and the person’s particular service.
The way in which the provisions of ss 120(4) and 120B(3) work together was explained by Greenwood J in Somerset v Repatriation Commission.[16] Mr Somerset, who had non-operational service, had claimed compensation for Meniere’s disease:
“The Statement of Principles is designed to set out known or proved medical-scientific facts against which the veteran’s claim must be measured. These principles derive not only from a construction of the provisions of the V E Act but from previous consideration of the relevant provisions by the Court. See, for example, Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96; Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412 and Repatriation Commission v Wedekind [2000] FCA 649.
…
In simple terms, where a veteran makes a claim for an incapacity pension for non-operational war service, the applicable Statement of Principles prescribes the connection that must be established between the disease … (in this case Meniere’s disease) relied upon and the eligible war service of Mr Somerset, to the reasonable satisfaction of decision-maker. Mr Somerset’s claim for an incapacity pension in respect of the effects attributable to Meniere’s disease would necessarily fail if the Statement of Principles does not uphold, by reference to the factors, the applicant’s contention that Meniere’s disease was, on the balance of probabilities, connected with his eligible war service. (See, for example, Brew v Repatriation Commission (1999) FCA 1246).
The Repatriation Medical Authority considered the relationship factors and determined a Statement of Principles by Instrument No. 78 of 2001 concerning Meniere’s disease. …
The AAT in reaching its decision considered the statutory provisions relating to the claim and the standard of proof to be applied. The AAT concluded that it must determine to its reasonable satisfaction the question whether Mr Somerset suffers from war-caused Meniere’s disease on the balance of probabilities. The AAT considered the provisions I have discussed and determined that where there is a Statement of Principles made under s.196B(3) of the V E Act, the AAT must first determine whether to its reasonable satisfaction the material put before it raises a connection between Mr Somerset’s disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service.
In approaching the legal test to be applied, the construction of the provisions of the V E Act and the role of the Statement of Principles, the Tribunal did not make any error of law.”[17]
CONSIDERATION: application for disqualification
[16] [2005] FCA 1399
[17] [2005] FCA 1399 at [23]-[29]
The application
In a document signed on 17 January 2014 and lodged with the Tribunal on 28 January 2014, Mr Kowalski stated:
“In the final alternative, the applicant submits that he has a perception that Forgie DP has jumped into the arena with the respondent and she is biased against him, therefore, the applicant formally applies to her to disqualify herself from any further involvement in AAT action No. 3647 of 2013 before she makes her perverted and fabricated decision, in respect to the Repatriation Commission’s/Mr A Crowe’s
s 42B application and abuse of process application, to dismiss the applicant’s application for review of the respondent’s decision dated 30-3-2012. The applicant relies upon the High Court of Australia decision in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 to support his application.”[18][18] Document signed by Mr Kowalski, dated 17 January 2014 and entitled “Kazimir Kowalski’s written submissions in respect to the Repatriation Commission’s s 42B application” at [13]
Although Mr Kowalski does not explain why he has gained his perception, I think that he may have explained the reason in his letter to me dated 9 January 2014. He wrote:
“I also remind you and I put on record that the Repatriation Commission/Mr Crowe has deliberately and consciously failed to file a formal written application and a supporting affidavit, pursuant to s 42B of the AAT Act 1975, in the AAT, although, they had a legal obligation to do so.
Deputy President Forgie, I also remind you and I put on record that on 7 January 2014 you made an order that I had to file written submissions, in respect to the Repatriation Commission’s/Mr A Crowe’s oral application to you, pursuant to s 42B of the AAT Act 1975, to dismiss my application for review of the Veterans [sic] Review Board’s decision and or of the Repatriation Commissions decision, in AAT action No. 3647 of 2103, by 21-1-2014, although, it is the Repatriation Commission’s/Mr A Crowe’s s 42B application, therefore, you had a legal obligation to make an order that the Repatriation Commission/Mr A Crowe had to file written submissions first.
Deputy President Forgie, in view of the above, if you are not biased against me, you must now make an order that the Repatriation Commission must file written submissions, in support of its s 42B oral application, by 21-1-2014 and I must file my reply to the Repatriation Commission’s written submissions by 28-1-2014 or else I shall formally apply to you to disqualify yourself from any further involvement in AAT action No. 3647 of 2013 immediately, based on Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.”[19]
[19] Letter addressed to me and dated 9 January 2014
The Deputy District Registrar responded to Mr Kowalski’s letter in some detail. In essence, he advised Mr Kowalski that Mr Crowe had raised the Tribunal’s powers under s 42B(1)(a) of the AAT Act in Issue 4 of a document dated 1 October 2013 and headed “Respondent’s submissions on various issues to be before a directions hearing”. He reminded Mr Kowalski that he had already responded to, among others, Issue 4 in Exhibit KK-1 to his affidavit sworn on 11 October 2013. The orders I had made gave both him and Mr Crowe an opportunity to make further submissions.
The law
Mr Kowalski seems to have based his application for my disqualification on the basis of both actual and apprehended bias. Therefore, I will touch briefly on the law that applies to each.
A. Bias
For the purposes of this matter, the following propositions can be drawn from the authorities:
(1)“ Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. …
The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness …. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making. …
These differences, however, must not obscure the fundamental principle. That principle is obviously infringed in a case of actual bias on the part of a judicial officer or juror. …”[20]
(2)“… ‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’ …. It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘any thing which turns a man to a particular course, or gives the direction to his measures’ ….”[21]
(3)“An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. …”[22]
(4)“ Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that …:
‘preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’. (emphasis added)
…”[23]
[20] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; 176 ALR 644; 63 ALD 577; Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting at [3]-[5]; 343-344; 646-647; 579-580 (citations omitted) per Gleeson CJ, McHugh, Gummow and Hayne JJ
[21] Minister for Immigration and Multicultural Affairsv Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1 at [183]; 563; 44 (citations omitted) per Hayne J
[22] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427; 282 ALR 685; Gummow ACJ, Hayne, Heydon, Crennan and Bell JJ at [33]; 437-438; 692 per Gummow ACJ, Hayne, Crennan and Bell JJ
[23]
B. Apprehended bias
Again for the purposes of this matter, the following propositions can be drawn from the authorities:
(1)“… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide ….”[24]
[24] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 174 ALR 655; Gleeson CJ, Gaudron, McHugh, Gummow; Kirby, Hayne and Callinan JJ at [11]; 492; 658 (citation omitted) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
(2)The test is stated in similar terms in relation to administrative decision-makers:
“ The rules of natural justice require that any decision of a Minister that affects a person’s rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision …. In deciding the issue, the court determines the issue objectively.”[25]
[25] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438; 193 ALR 90; Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting at [68]; 459; 104 per McHugh J
(3)Regard must be had to the function being performed and the circumstances in which it is being performed in deciding whether there is a reasonable apprehension of bias:
(a)“ Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge …, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly[10] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.’ …[(1989) 167 CLR 568 at 571] Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
There was argument in this Court … about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases …. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”[26]
[26] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 174 ALR 655 at [13]-[14]; 493-494; 658-659 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (citations omitted)
(b)“ While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision …”[27]
[27] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438; 193 ALR 90 at [7]; 460; 92 per McHugh J (citation omitted)
(c)“ While the test of reasonable apprehension on the part of a fair-minded informed lay observer is to be applied in this country in cases involving a judge, a juror or a statutory office holder required to observe procedural fairness, the standard which such an observer would require of each will vary according to the function being discharged and the particular circumstances. …”[28]
[28] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; 122 ALR 41; Mason CJ, Brennan, Deane, Toohey and McHugh JJ at 76; 66 per Deane J. See also SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; Allsop CJ, Flick and Robertson at [9]-[11] per Allsop CJ
(4)At the root of any consideration of whether a decision-maker is disqualified on the basis of apprehended bias are notions of fairness.
(a)“ The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of the law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness … Even in relation the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness …
Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power …
The requirement of to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power …”[29]
Consideration
The context in which I must exercise my powers and make decisions is that of the Tribunal. The decisions I may make may be on the substantive matter that is the review of the decision or they may be on preliminary issues of the sort I am concerned with now. There are times that I must make rulings on procedural issues such as the order in which evidence is given, whether or not I will receive it or the order in which submissions are made. In doing so, I must act with procedural fairness[30] and I must, under s 39 of the AAT Act, ensure that every party to a proceeding has a reasonable opportunity to present the case that party wishes to present. The Tribunal is sometimes said to be based on the “judicial model”.[31] When that model is followed in practice, it means that it is required to act judicially. That is to say:
“… In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner in which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner which a particular party wishes to present his case. …”[32]
[30] See, for example, Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 402-3; 342-343 per Deane J
[31] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
[32] Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383; Smithers, Deane and Fisher JJ at 342-343, 402-403 per Deane J, with whom Fisher J agreed.
In this case, Mr Kowalski takes the view that I made a ruling that was contrary to the ruling he wanted. He wanted me to direct that the Commission lodge written submissions before he was required to make them. At Attachment B, I have set out the history relating to the lodgement of submissions on this matter. It can be seen that Mr Crowe had made full submissions on the issue in October 2013. Mr Kowalski had them from that time but, so far as I could see, had not addressed them prior to the hearing. Even though I thought that he had had the opportunity to do so since October 2013, I directed that he have that opportunity after the hearing had concluded but no later than by close of business on 21 January 2014. I saw no point in asking Mr Crowe to lodge further submissions when he had already stated the Commission’s position. It was for Mr Kowalski to answer the submissions made on behalf of the Commission and to raise further issues that he thought relevant. If he did raise further issues, fairness required that I gave the Commission an opportunity to respond. That I did by giving it until 28 October 2013 to respond. Finally, to ensure that Mr Kowalski could make sure he had finally addressed every issue that he wanted to address, I directed that he lodge any response he wished to make by 31 January 2014.
I made those orders with purely issues of procedural fairness in mind. It was not an occasion on which I had the substantive issues arising under s 42B of the AAT Act in mind let alone how I thought they should be resolved. Resolution of any of the substantive issues could only come after reading the submissions and when I had read the relevant authorities and legislation and come to a view about the law, analysed the evidence and made findings of fact. Those steps must necessarily precede my coming to a decision. As I had not taken them at the hearing, I had not pre-judged the issues at the hearing when I made the direction or in relation to any other matter.
As to the apprehension of bias, I do not consider that I have a given any grounds on which a fair-minded informed lay observer would apprehend that I had made up my mind whether Mr Kowalski’s application should be dismissed under s 42B of the AAT Act. All that I had been done, consistently with my obligation to accord procedural fairness, was to give the parties an opportunity to make submissions on whether I should do so or not. Mr Kowalski and the Commission each had two opportunities. The Commission made the first set of submissions and Mr Kowalski had the last word. There is no basis on which a procedural direction of that sort could be regarded by a fair-minded and informed observer of any sort to be an indication that I had made up my mind on the substantive issues arising under s 42B in any way at all. That observer would not apprehend that I was biased.
Therefore, I decline to disqualify myself.
CONSIDERATION: whether depressive disorder, anxiety disorder, hypertension and ischaemic heart disease as well as GORD raised by application for review
Although Mr Kowalski indicated at the hearing that he now accepted that all five conditions were raised by his application to the Tribunal, I will briefly set out why I agree with him. I will do so in view of his previous position that the application should be regarded as relating only to GORD because the VRB appeared to have reviewed the other conditions when he had prepared for a hearing on GORD alone. The Commission agreed with Mr Kowalski that the VRB appeared to have erred as he said. Whether it did or not, is not a matter which I have pursued or a matter on which I have come to a view about because it is not relevant to do so. In my view, the Tribunal has power to review the decision in relation to all five conditions and I will explain why that is so.
The principles
Subject to certain qualifications that I will come to, it makes no difference that there may be invalidly made decisions that lead to the decision that meets the description of a “… decision in respect of which application is made to it under any enactment” i.e. an objection decision in this case. This is clear from Kim v Minister for Immigration[33] (Kim), in which
Tamberlin J, with whom Besanko J agreed, expressed the principle this way:“ The power of the Tribunal to review a ‘decision’ extends not only to the review of a decision which is in fact made lawfully, but also to the review of a decision which is only purported to be made but which is not authorised by law: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495. The expression ‘decision’ is to be given its ordinary meaning, namely, ‘the action of deciding’, which covers a situation where the decision is merely purported to be made but is in fact made without authorisation by law. …”[34]
[33] [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51; Tamberlin, Gyles and Besanko JJ
[34] [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51 at [21]; 583; 56 Gyles J expressed a similar view: “… The sole function of the Tribunal is to provide a review on the merits of the relevant decision, not to decide collateral questions of the lawfulness or validity of the decision being reviewed. …”: [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51 at [39]; 586; 59. These passages were approved by the Full Court of the Federal Court in Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500 at [22]; 573; 94; 245; 8; 478; 282-283; 507 per French, Tamberlin and Mansfield JJ. The Full Court said: “… The Tribunal has jurisdiction to hear and determine the present review under Part IVC of the TAA because each assessment purports to have been made in the exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. …”.
The rationale for this approach was explained in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Brian Lawlor),[35] to which Tamberlin J referred. It is a practical one, as Bowen CJ explained:
“… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [AAT] Act is designed to give a simple remedy in all such cases. …”[36]
[35] [1979] FCA 21; (1979) 24 ALR 307; Bowen CJ, Smithers and Deane JJ
[36] [1979] FCA 21; (1979) 24 ALR 307 at 314
Another rationale is apparent from the judgment of Deane J in the same case. It is based on the legal principle that applies in the Commonwealth, unlike the Australian States, that there is a separation between judicial and administrative power. Courts exercise the former and bodies such as the Tribunal the latter:
“ An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution.’[37]
[37] [1979] FCA 21; (1979) 24 ALR 307 at 343-344
Care must be taken in applying the principle in Brian Lawlor, though. A conclusion that the Tribunal has power to review a decision that has been invalidly made on internal review does not necessarily lead to the conclusion that it can review the operative decision that is in fact under review.[38] The operative decision must be identified and examined in order to determine whether there are any prerequisites before the Tribunal can, as permitted by s 43 of the AAT Act, exercise the powers of the person who made the decision. If its power to make a decision exercising the powers and discretions conferred by the relevant enactment on the person who made the decision, as permitted by s 43 of the AAT Act, were dependent upon there having been a valid application for whatever benefit or entitlement was in issue, then the Tribunal would arguably not be able to overcome that deficiency; it would not be able to grant the benefit or entitlement.
[38]
This is the approach favoured by Gyles J, with whom Spender J agreed, in Yilmaz v Minister for Immigration and Multicultural Affairs[39] (Yilmaz) and it is the approach adopted in the majority judgment of Black CJ and Allsop J in the Full Court of the Federal Court in SGME v Minister for Immigration and Citizenship and Refugee Review Tribunal[40] (SGME) when they said:
“.. [T]he well-known line of cases beginning with Collector of Customs (NSW)
v Brian Lawlor Automotive Pty Ltd … supported the proposition that the review process which imported merits review by an administrative body operated (subject to statute to the contrary) on valid and invalid decisions alike. It is the decision that has in fact been made that is reviewed. … The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the persons who made the decision: …”[41][39] (2000) 100 FCR 495 at [93]; 532
[40] [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31; Black CJ, Moore and Allsop JJ
[41] [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31 at [25]; 495; 474-475; 38 per Black CJ and Allsop J
Black CJ and Allsop J then turned to the operative decision that was under review. While deficiencies invalidated the primary decision, they did not affect the authority of the review tribunal to make a fresh decision. What affected that authority were the prerequisites for the valid exercise of the power leading to that operative decision. Those differences explained the differences in the outcomes reached in a number of previous cases. Their Honours explained the differences among several cases concerned with the review of decisions under the Migration Act 1958 (Migration Act):
“30…. The Tribunal has no authority other than under the Migration Act to grant or to refuse a visa. It accedes to the powers and discretions of the delegate, which include ss 47 and 65 of the Migration Act. … The ratio decidendi of Li [Minister for Immigration and Multicultural Affairs v Li] 103 FCR 486 at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal. …
…
36. The essential difference between Yilmaz 100 FCR 495; Zubair 139 FCR 34; Ahmed 143 FCR 314 and Uddin 149 FCR 1, on the one hand, and Li …, on the other, is that as a matter of statutory construction, the defects in the primary decision in the former cases did not affect the power exercised by the relevant review tribunal. This was so in Yilmaz … because the defect had been cured; it was so in Zubair …; Ahmed … and Uddin …because, as a matter of construction, the defect in the authority of the delegate did not affect the authority of the tribunal on review. In Li …, on the other hand, the Full Court was of the view that the persisting lack of validity of the application directly qualified the power of the Tribunal, through ss 47 and 415. In Brian Lawlor … there was no power, at the level of the decision-maker or of the AAT. In Li the same applied. The Tribunal could only set the decision aside and make no grant or refusal itself. It could not, by affirming the decision of the delegate, refuse a visa.”[42]
[42] [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31 at [30] and [36]; 497 and 498; 476 and 478; 40 and 42 per Black CJ and Allsop J
Applying the principles
A. Following the chain of provisions to the source of the right to apply for review
In the context of the VE Act and the Tribunal’s power to review, the principles require me to consider whether any defect that might have occurred in the VRB’s decision can be, to use the word of Black CJ and Allsop J in SGME, “cured” on review. If it occurred, a failure to provide procedural fairness at the VRB could be cured in the Tribunal by ensuring that it was accorded to both parties. A defect in the sense that the VRB did not have power to review the decision at all is not a defect of the sort that can be cured by the Tribunal or the processes it follows. That follows from the fact that the right to apply to the Tribunal under s 175(1) arises when a decision of the Commission has been reviewed by the VRB “upon a request made under section 135” and affirmed, varied or set aside that decision. A request can only be made in the circumstances provided for in s 135. If those circumstances do not exist, the person seeking review has no right to make a request. As the VRB’s power to review is dependent upon that request’s being made, it has no power to review the decision if there is no right to make the request. The existence or non-existence of that right to make a request under s 135 is pivotal to the subsequent rights that lie at the heart of the heart of the system of review that is provided for review of decisions made under Parts II and IV of the VE Act.
With that in mind, I have looked first at the way in which the VRB’s decision has come to the Tribunal for review. Section 175 provides for applications for review to be made to the Tribunal. Apart from s 175(1), none of the provisions of s 175 applies to a decision made under s 70 as the Commission made on Mr Kowalski’s claim.[43] Section 175(1) provides:
“Where a decision made by the Commission has been reviewed by the Board upon 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.”
[43] The other provisions are: s 13AG relates to: (1) verification determinations in relation to reinstatement of pensions (s 175(1A)); s 57B to the Commission’s decisions on requests to review certain decisions relating to qualifying service (s 175(2)); s 79U to requests made under s 79T in relation to an advance payment of pension (s 175(2AAA)); s 93ZB to requests made under s 93Z for review of the Commission’s decisions in relation to pharmaceutical cards (s 175(2AAA)); s 118ZU to requests made under s 118ZT for review of decisions in relation to Seniors Health Cards (s 175(2AA)); s 115 for review of certain allowances, bereavement payments and funeral benefits (s 175(4)); and s 116D for review of person is an eligible child of a veteran (s 175(5)).
Section 175(3) provides for the situation in which an application has been made to the Tribunal for review of a decision but, using its powers under s 31(2), the Commission reviews the decision before the Tribunal comes to a decision. If the Commission varies the decision, the application is treated as if it were an application for review of the decision as varied. This is not relevant in this context as it is predicated on a person’s having already made an application. It does not confer further power to make an application to the Tribunal for review.
Section 175(1) takes me back to s 135, which provides for the review of certain decisions by the VRB. Among others, s 135(1)(a) provides for review of a decision made by the Commission “where a person has made a claim in accordance with section 14”. A claim for compensation that is payable in the form of a pension under s 70 is made “in accordance with section 14” just as a veteran’s claim for a pension under s 13 is made “in accordance with section 14”.
The requirement that it be so in the case of a pension provided for by s 13 is obvious for the requirement follows on immediately from s 13, which sets out the criteria for eligibility for that pension. In the case of compensation provided for by s 70, regard must be had to s 71 when it provides that:
“Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.”
Section 14 comes within Division 3 of Part II. Therefore, Mr Kowalski had to make his claims under s 14 and he did so. As a consequence, he had a right to apply to the VRB for review of the Commission’s decisions on his claims, which were properly made.
Any procedural failing does not alter the chain of review between the Commission’s decisions and the Tribunal’s power on review. There is no pre-requisite or condition to the Tribunal’s exercising the powers and discretions conferred on the Commission that has not been fulfilled. Applying the principles in Brian Lawlor, it follows that all of the conditions that were the subject of the decision that the VRB in fact made are the subject of review.
CONSIDERATION: whether the Tribunal is estopped from determining the matter or taking any action that is inconsistent with the decision of the VRB dated 7 July 2008
Mr Kowalski’s submissions
At page 3 of his affidavit sworn in October 2013, Mr Kowalski stated that his contention was that the members constituting the VRB in 2013:
“… abused the process in the VRB on the ground that they totally ignored and they illegally made a decision which was different to … [a differently constituted] 7 July 2008 VRB’s decision, in Kowalski v Repatriation Commission VRB No S08/0053 (see pages 539-546 of T Docs).”
Consideration
As the issue has been framed in terms of both estoppel and abuse of process, I will consider it in relation to both.
A. The principles: estoppel
I have considered estoppel in earlier cases and adopt the analysis I have given in those cases in this.[44] It is a common law notion which was described by Dixon J in Blair v Curran[45] and distinguished from res judicata in the following passage:
“ A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a sum of money be recovered or that the doing of an act be commanded or restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that hat in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it has merged and has no longer an independent existence, while in the second, for the purpose or some other claim or cause of action, a state of fact or law is alleged or denied by the existence of which is a matter necessarily decided by the prior judgment, decree or order.”[46]
[44] See particularly Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595 at [24]-[92]; 395-420; 603-627, Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 58 AAR 452; 131 ALD 564 at [450]-[464]; 580-585; 689-694 and[45] [1939] HCA 23; (1939) 62 CLR 464; Latham CJ, Rich, Starke, Dixon and McTiernan JJ
[46] [1939] HCA 23; (1939) 62 CLR 464 at 531-532
An administrative decision made under an enactment must be made within the boundaries set by that enactment. Parliament may attempt to shield an administrative decision from scrutiny by the courts by provisions restricting or even attempting to remove altogether the power of the courts to do so. The extent to which Parliament may do that was explained by Gummow J in Wiest v Director of Public Prosecutions[47] when he said:
“… Legislation may validly commit to a decision-maker exercising administrative powers the authority to decide disputed issues of fact, and to do so finally in the sense that the decision is not subject to collateral attack. Such decision-making authority is not exclusively judicial in character. What cannot be done is to insulate from judicial review under s 75 of the Constitution findings by administrative decision-makers as to what are, in respect of the particular laws in question, constitutional or jurisdictional facts. Such findings may be tested, for example, in mandamus, prohibition or injunction proceedings under s 75(v) of the Constitution. …
The observations of Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 16-17 and of Gibbs J in Administration of the Territory of Papua and New Guinea v Daera Guba (1973)
130 CLR 353 at 453, that the doctrine of res judicata extends to decisions of tribunals with statutory jurisdiction to decide finally a question arising between the parties, are to be understood against this Australian federal constitutional background.”[48][47] [1988] FCA 450; (1988) 23 FCR 472; 86 ALR 464; Sheppard, Burchett and Gummow JJ
[48] [1988] FCA 450; (1988) 23 FCR 472; 86 ALR 464 at 522; 505-506 (citations omitted) per Gummow J
Later in his judgment, Gummow J added:
“ Whatever view is taken of the general applicability of the principles of issue estoppel in administrative law, there will always be the threshold question of the width and effect of the decision-making power entrusted by the legislature to the body in question. …”[49]
[49] [1988] FCA 450; (1988) 23 FCR 472; 86 ALR 464 at 525; 509 per Gummow J
Finally, I will refer to a passage from the judgment of Fisher and Lockhart JJ in the case of Minister for Immigration and Ethnic Affairs v Daniele[50] (Daniele) to which Mr Crowe referred:
“ Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) directing that proceedings should be conducted as far as possible with as little formality and technicality and
sub-s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence. …”[51][50] [1981] FCA 212; (1981) 39 ALR 649; 61 FLR 354; 5 ALD 135; Fisher, Davies, Lockhart JJ
[51] [1981] FCA 212; (1981) 39 ALR 649; 61 FLR 354; 5 ALD 135 at 654; 359; 139
B. Abuse of process
More recent authorities are reluctant to define or to constrain the notion of “abuse of process”. An early statement of it was made by Isaacs J in Varawa v Howard Smith Co. Ltd:[52]
“… [T]he term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose. …”[53]
[52] (1911) 13 CLR 35
[53] (1911) 13 CLR 35 at 91
In more recent times, the issue was addressed by the majority in Heffery & Katauskas v SST Consulting Pty Ltd.[54]The majority set out four categories of conduct that had previously attracted the intervention of the courts. They were:
“(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.”[55]
[54] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; French CJ, Gummow, Hayne and Crennan JJ; Heydon J dissenting
[55] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [27]; 93; 41 per French CJ, Gummow, Hayne and Crennan JJ
The majority went on to say:
“ The term ‘abuse of process’, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed …. In Walton v Gardiner … the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police … that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be ‘manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people’. This does not mean that abuse of process is a term at large or without meaning …. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’ ….[56]
[56] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [28]; 93-94; 41-42 (citations omitted)
Consideration
The decision dated 7 July 2008, to which Mr Kowalski refers, was in the following terms after the VRB reviewed the Commission’s decision dated 20 February 2008 finding that his GORD was not service related:
“SET ASIDE the decision under review in relation to [sic] and substitute its decision:
(i)that that condition is defence-caused as defined in section 70 of the Veterans’ Entitlements Act 1986 (the Act);
(ii)that the Commonwealth of Australia is liable pursuant to section 70 of the Act to pay pension for any incapacity arising from that condition from and including 15 November 2007; and
(iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid.”[57]
[57] T documents; T27 at 160
This was the decision that was then reviewed by Deputy President Hack. In a decision dated 6 November 2009, he set aside the VRB’s decision and substituted a decision affirming the Commission’s decision of 20 February 2008.[58] That meant that GORD was not accepted as a defence-caused disease and Mr Kowalski was not entitled to compensation under s 70 of the VE Act in relation to it. Mr Kowalski’s appeal to the Federal Court from Deputy President Hack’s decision was dismissed by Mansfield J in a judgment delivered on
30 April 2010.[59] Mr Kowalski’s subsequent appeal to the Full Court of the Federal Court was dismissed on 28 March 2011.[60][58] [2009] AATA 853
[59] [2010] FCA 409
[60] [2011] FCAFC 43
Each of these steps was provided for in either the VE Act or the AAT Act. I have already set out the right found in s 135 permitting Mr Kowalski to apply to the VRB. He exercised his right when he lodged an application in accordance with s 136. Section 139 set out powers that the VRB had and the duties it was under. In relation to duties:
“It is the duty of the Board, in reviewing a decision of the Commission, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review.”[61]
[61] VE Act; s 139(1)
Section 139(3) then sets out the VRB’s powers:
“For the purpose of reviewing a decision of the Commission, the Board may exercise all of the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and making a decision in substitution for the decision so set aside.”
Section 139(4) is concerned with the situation in which the VRB sets aside a decision of the Commission refusing to grant a pension and, in its place, substitutes a decision granting that pension. In the case, the VRB must either assess the relevant rate or rates at which the pension is to be paid or remit the matter to the Commission with a request to assess that rate or those rates.
The VRB’s decision stands in place of that of the Commission unless and until it is set aside or varied by the Tribunal on review. An application to the Tribunal may be made by either the applicant for the pension or, in certain instances, by the Commission.[62] That application is made under s 175 of the VE Act. The Commission decided to exercise its right to apply for review of the VRB’s decision as it was entitled to do as the VRB had set aside its decision and substituted another.
[62] In the case of the Commission, it is taken to be a person whose interests are affected by the decision for the purposes of s 27 of the AAT Act if the VRB has either varied or set aside its decision and substituted another: VE Act; s 176.
On review, this Tribunal engages in what is sometimes referred to as “de novo” review in that it reviews all of the matters afresh. It reviews all of the evidentiary material that is brought to it either by the decision-maker under s 37 of the AAT Act or as part of the proceedings in the Tribunal, it makes findings of fact on that material and applies those findings of fact to the legislative criteria in order to come to a decision. In the absence of any legislative provision to the contrary, there is no presumption that the particular administrative decision under review is correct or that the findings of fact made by the initial decision-maker carry any weight.
The decisions that the Tribunal may make have been prescribed by the Parliament. Its powers in this regard are generally set out in s 43(1), which provides:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and;
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
The provisions of s 43 may be modified by an enactment providing that applications may be made to the Tribunal. The VE Act is such an enactment and ss 176(7) to (9) modify s 43(1). None of the modifications is relevant in this case.
The effect of s 43 is such that, when Deputy President Hack set aside the VRB’s decision dated 7 July 2008 and substituted for it a decision that the Commission’s decision dated 20 February 2008 be affirmed, the VRB’s decision ceased to have any effect. It was a decision that had been made and had its place in the sequence of events and decisions that were made between Mr Kowalski’s having lodged a claim for compensation payable under s 70 and the dismissal of his last appeal. Having been set aside, though, it no longer had any effect or was of any consequence or had any influence on subsequent decisions that were made.
That VRB decision cannot have any effect on subsequent decision-making whether by the Commission, the VRB or this Tribunal. It cannot have any effect on my decision-making, for example. It is a decision in a sequence of decisions that gave rise to certain rights of review and those rights of review were exercised and exhausted. In this case, Mr Kowalski’s three claims lodged on 20, 21 and 23 June 2011 gave rise to a sequence of decisions and certain rights of review. The VRB’s decision is not part of that sequence. In reviewing the Commission’s decision made on the three claims, the VRB had to review all of the evidentiary material again, consider the law and come to decisions regarding those claims. That is what is required by the VE Act and the AAT Act. Previous administrative decisions are irrelevant for there is nothing in either of those enactments that provides that they are. The law as I have set it out at [47]-[53] above makes it clear that administrative decisions do not give rise to any form of estoppel unless Parliament has provided that is so. In the case of decisions of the VRB set aside by the Tribunal it has, in fact, provided to the contrary. As the VRB’s decision of 7 July 2008 is such a decision, it has no ongoing effect.
Mr Kowalski submitted that the members of the VRB in coming to its decision dated 11 July 2013 had abused the processes they had to follow because they had totally ignored the earlier VRB decision. For the reasons that I have given, that earlier decision had no place in the sequence of decisions and processes it had to follow. The findings of fact it made were neither binding nor relevant to a body required to review the evidentiary material and come to a decision afresh. They are not binding on me. As Fisher and Lockhart JJ said in Daniele, issue estoppel is generally regarded as a rule of evidence. Rules of evidence of that sort cannot be applied to tie the hands of a body, be it the VRB or the Tribunal that is not bound by the rules of evidence in any event and that is required to review a decision from the beginning with an open mind not constrained by what earlier administrative decision-makers might have done.
CONSIDERATION: whether Tribunal decision [2009] AATA 853 was obtained by fraud leaving it without effect
In raising this issue, Mr Kowalski relied on the cases of Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd[63] (Farley), SZFDE v Minister for Immigration and Citizenship[64] (SZFDE) and Jarrett v Fleur De Lys Pty Ltd[65] (Jarrett) to support his proposition that Tribunal [2009] AATA 853 made by Deputy President Hack had been obtained by fraud and so had no effect.
[63] [1946] HCA 29; (1946) 75 CLR 487; Williams J
[64] [2007] HCA 35; (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ
[65] [2005] FMCA 800; Raphael FM
As I understand his submissions, Mr Kowalski’s complaint about the two Tribunal decisions is, in essence, that they did not make findings of fact in accordance with his understanding of the medical evidence. Had they done so, he would now be receiving the pension to which he is entitled. He has referred particularly to paragraphs [39]; [47]; [56]; [57]; [71] and [72]. I will reproduce his submissions in relation to [39] for it is indicative of the submissions that he has made in relation to the other paragraphs and generally about Deputy President Hack’s reasons for decision:
“In view of the facts that are found above, on 6-11-2009, in par 47 of Hack DP’s decision, Hack DP has fraudulently stated that ‘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. These two tasks are mandated by paragraphs (a) and (b) of s 120B(3) of the Veterans’ Entitlements Act.’ (See p 503 of T Docs) on the grounds that the applicant did not simply identify the GORD SoP to Hack DP. The applicant provided Hack DP with ample documentary evidence that should have satisfied Hack DP that the applicant’s Heartburn or GORD was caused by his National Service in the Army and complied with the SoP for GORD.”[66]
[66] Applicant’s Statement of Facts, Issues and Contentions lodged on 6 January 2014 at [58] and repeated in subsequent submissions and documents lodged in the Tribunal.
Even though a written application is not required, what is required is that the person who may be the subject of a direction under s 42B(1)(b) is given a reasonable opportunity to respond to it. I referred to this in considering the application to disqualify myself and consider that Mr Kowalski has been given that reasonable opportunity.
Consideration
At Attachment A, I have summarised the claims that Mr Kowalski has previously made to the Commission and traced their progress through the Tribunal, the Federal Court and, where appropriate, the High Court. It can be seen that Mr Kowalski has lodged claims with the Commission for compensation under s 70 of the VE Act. Those claims have led to Mr Kowalski’s lodging five applications to the Tribunal and the Commission one. They can be grouped in three sets of proceedings as some were heard together. The groups are Nos. 2007/4985 and 2008/4243; Nos. 2008/3352 (lodged by the Commission) and 2009/1554; and Nos. 2009/4000 and 2010/2439. These three sets of applications have led to 19 separate decisions and written reasons or judgments on various matters in either the Tribunal, the Federal Court or the High Court. I have summarised those proceedings and the outcomes of those decisions and judgments at Attachment A. The final result is that each set of applications has been concluded and Mr Kowalski has been found not to be entitled to compensation under the VE Act in respect of any of the conditions that was the subject of those applications.
At [113] above, I set out the conditions for which Mr Kowalski sought compensation and which were the subject of each set of applications that have been heard and concluded. I also set out in italics the conditions that are the subject of his current application, No. 2013/3647, to the Tribunal.
These three claims have led to the 19 reasons for decision and judgment from the Tribunal, the Federal Court and the High Court. This is the twentieth. In each, Mr Kowalski has pursued his claims on similar bases. He has pressed his own view of the law in the face of Federal Court authority to the contrary. That has meant that he has not been open to gaining an understanding of the evidentiary material that he must produce if he is to have reasonable prospects of success in pursuing his claims. He seems to be of the view that the Tribunal’s obligation to reach the correct or preferable decision in reviewing a decision places an obligation on the Commission to produce the relevant evidentiary material. There are many occasions on which the Commission has referred an applicant for further medical opinions at its own expense but, understandably, it has not done so in relation to this latest application. There is medical evidence already before the Tribunal and Mr Kowalski has not led further material that, on an objective basis, suggests that there might be some benefit to be gained by seeking further medical evidence.
Although I have not set them out, I also note that Mr Kowalski’s applications under the MRC Act have led to proceedings in the Tribunal,[123] the Federal Court[124] and one Special Leave Application in the High Court.[125] Decisions leading to the judgments of the Federal Court Nos [2010] FCA 408, [2010] FCAFC 144 and [2011] FCAFC 44 arose out of the Tribunal’s decision No. [2009] AATA 382 relating to Mr Kowalski’s claim for compensation under the MRC Act. The earlier group of judgments in the Federal Court being [2009] FCA 1044; [2010] FCA 5; [2010] FCAFC 10 arose out of the Tribunal’s decisions Nos. [2007] AATA 1988 and [2009] AATA 38 made on his application for review of decisions relating to his claims for obesity, Type 2 diabetes, a duodenal ulcer, major depression and generalised anxiety which culminated in a heart attack and open heart surgery.
[123] Decision Nos. [2007] AATA 1988; [2009] AATA 38 and [2009] AATA 382
[124] [2009] FCA 1044; [2010] FCA 5; [2010] FCAFC 10; [2010] FCA 408; [2010] FCAFC 144 (procedural matter) and [2011] FCAFC 44
[125] [2011] HCASL 100
It must always be recognised that, when Parliament has given a person a right to have a decision reviewed, that person should be permitted to make that application and to present a case in support of that application as permitted by law. Unless modified by Parliament, the person is accorded a reasonable opportunity to do so. Within the bounds of the law, a person has latitude in a review body such as the Tribunal as to the form in which to present material. That latitude is necessarily curtailed by the need for it to be relevant to and probative of the matters in issue. What is relevant and probative is not determined by the party but by the Tribunal subject, as always, to the supervisory jurisdiction of the Federal Court. Again, unless modified by Parliament, it is always open to a party to a proceeding to make certain procedural applications. A person may, for example, ask a Tribunal member or a judge to disqualify him or herself on the grounds of bias or apprehended bias if there are proper grounds for doing so. Again, there are boundaries. It is not, for example, a proper ground to make that request simply because the member of judge engages in debate with one party or another, makes a procedural ruling that does not accord with the person’s wishes, makes findings of fact with which the person disagrees and so on.
In pursuing his applications, Mr Kowalski has demonstrated that he is not prepared to accept a view that is contrary to his own. There can be no question that he is entitled to lodge appeals but there is a difference between pursuing rights such as that and making applications to disqualify Tribunal members and Judges because they have not made procedural rulings as he thinks they should be made or pursuing matters already resolved is another. Taking his applications for members and Judges to disqualify themselves, each has been rejected. In so far as Deputy President Hack’s decision to do so was concerned, it has been found to have been rightly rejected by the Federal Court.
The Tribunal’s system of review must be a system for the resolution of applications that is available to all and that will resolve each as efficiently as possible. That system is intended to ensure that each application is the subject of proper consideration at all levels. It is a system that is designed to permit the parties to bring all relevant evidentiary material and to put their arguments. Once decided, it is not a system that permits applicants to go over the same ground with the Tribunal. It is not a system that permits it to review its own work. Its work is supervised not by itself but by the Federal Court.
The history of Mr Kowalski’s applications shows that he does not accept the system as it is. Therefore, I have decided that it is in the interests of both him and potential respondents, all other applicants and the system as a whole that he not be permitted to make any application to the Tribunal under either the VE Act or the MRC Act without its leave.
HISTORY OF APPLICATIONS MADE TO THE REPATRIATION COMMISSION
127.
| Tribunal/Court No. | Claim/proceeding/application | Outcome: Tribunal/Federal Court/Full Federal Court/High Court | Cross reference line number(s) | |
| 1. | 2007/4985 and 2008/4243 Re Kowalski and Repatriation Commission Decision dated: 9 October 2008 | Claim lodged 6 March 2007 for disability pension for conditions claimed to be defence-caused i.e. major depression, anxiety disorder, hypertension and ischaemic heart disease. Claim refused by Repatriation Commission and affirmed by VRB. | TRIBUNAL Deputy President Jarvis decided that he was not satisfied that, on balance of probabilities, conditions connected with eligible service and so defence-caused; decision affirmed: [2008] AATA 903. | Claim for major depression etc: 2, 4, 7, 11 and 12 |
| 2. | SAD 168 of 2008 Kowalski v Repatriation Commission Judgment dated: 22 December 2008 | Application that Besanko J disqualify himself from further sitting in appeal from Tribunal’s decision [2008] AATA 903. His Honour had order that Mr Kowalski file written submissions first and then the respondent before the matter was heard on 22 January 2009. Mr Kowalski claimed that requiring him to lodge before respondent was evidence of bias as were the orders he had made in an unrelated matter: Kowalski v Mistubishi Motors Australia Limited: [2008] FCA 1873. | FEDERAL COURT On 22 December 2008, Besanko J decided there was no basis on which he should disqualify himself: [2008] FCA 1970. Substantive matter heard on 22 January 2009. | Claim for major depression etc: 1, 4, 7, 11 and 12 |
| 3. | 2008/3352 Re Repatriation Commission and Kowalski Decision dated 7 January 2009 | Repatriation Commission decided Mr Kowalski’s gastro-oespohageal reflux disease (GORD) not defence-caused. Its decision was set aside by VRB on 7 July 2008 when it accepted that GORD was defence-caused and assessed his disability pension at 10% of the General Rate. Mr Kowalski applied for an order dismissing Repatriation Commission’s application for review on two bases: it was not entitled to make the application and, if it was, it should be dismissed as frivolous or vexatious. | TRIBUNAL Member Short decided that the Repatriation Commission had right to apply for review. The Tribunal had not previously considered and determined the issue of whether Mr Kowalski’s condition was defence-caused. Application by Mr Kowalski to dismiss Repatriation Commission’s application dismissed: [2009] AATA 6. | GORD jurisdictional issue: 5, 8, 15 and 18 |
| 4. | SAD 216 of 2008 Kowalski v Repatriation Commission Judgment dated: 30 January 2009 | Mr Kowalski lodged a motion for leave to appeal from judgment of Besanko J refusing to disqualify himself. | FEDERAL COURT Mansfield J refused motion. At the time of its being heard, Besanko J had heard the appeal and reserved judgment. If judgment against Mr Kowalski, he may appeal on basis refusal to disqualify wrong in law: [2009] FCA 47. | Claim for DSP for various conditions: 1, 2, 7, 11 and 12 |
| 5. | SAD 3 of 2009 Kowalski v Repatriation Commission Judgment dated: 27 February 2009 | Mr Kowalski appealed against Member Short’s decision refusing his application to dismiss the Repatriation Commission’s application for review. | FEDERAL COURT Mansfield J dismissed application on the basis that Mr Kowalski had no right to appeal under s 44 of the AAT Act. The substantive matters relating to GORD remained open on application still to be heard by Tribunal: [2009] FCA 153. | GORD jurisdictional issue: 3, 8, 15 and 18 |
| 6. | 2009/1544 Kowalski v Repatriation Commission | On 20 April 2009, Mr Kowalski applied for review of the decision of the VRB’s decision to assess his disability pension attributable to GORD at the rate of 10% of the General Rate. | GORD substantive issue: 3, 9, 10, 13, 17 and 18 | |
| 7. | SAD 168 of 2008 Kowalski v Repatriation Commission Judgment dated: 30 July 2009 | FEDERAL COURT Appeal from Deputy President Jarvis dismissed by Besanko J: [2009] FCA 794. | Claim for DSP for major depression etc: 1, 2, 4, 11 and 12 | |
| 8. | SAD 26 of 2009 Judgment dated 14 August 2009 | Repatriation Commission applied for summary dismissal of Mr Kowalski’s appeal from judgment of Mansfield J dismissing his appeal from Member Short’s decision. | FULL COURT OF THE FEDERAL COURT Mr Kowalski refused leave to appeal by Spender, Graham and Gilmour JJ: [2009] FCAFC 107. | GORD jurisdictional issue: 3, 5, 15 and 18 |
| 9. | 2008/3352 Re Repatriation Commission and Kowalski 2009/1544 Kowalski v Repatriation Commission Decision dated 19 October 2009 | Mr Kowalski lodged and application that the Tribunal, then constituted by Deputy President Hack, be constituted by another member on the basis that Deputy President Hack has demonstrated bias and lacks legal knowledge as well as the ability to make the correct or preferable decision. | TRIBUNAL Downes J, President, dismissed the application on the basis that there was no basis to do so under s 21A of the AAT Act, he had no reason to believe that there might be a reasonable apprehension that Deputy President Hack was biased and he had no doubt he was competent to hear the case. Any application for Deputy President Hack to recuse himself should be made to him: [2009] AATA 807. | GORD substantive issue: 3, 6, 10, 13, 17 and 18 |
| 10. | 2008/3352 Re Repatriation Commission and Kowalski 2009/1544 Kowalski v Repatriation Commission Decision dated 6 November 2009 | Mr Kowalski’s contended at the hearing on 8 and 9 October 2009 that the Repatriation Commission’s application should be dismissed on either of two bases. First, it was precluded from asserting that his GORD was not defence-caused when it had not raised all of its defences before the VRB. Second, even if it was not precluded, it could only succeed if the VRB had made an error of law and it had not. The matter was adjourned to 28 October 2009. In the meantime, Mr Kowalski had applied to the President to reconstitute the hearing (see line 9 above) and to Deputy President Hack to disqualify himself. | TRIBUNAL 2008/3352 Deputy President Hack accepted neither basis and decided that the Repatriation Commission was entitled to seek review of the VRB’s decision and the Tribunal was not restricted in its powers of review to a search for an error of law. Deputy President Hack set aside the VRB’s decision and substituted a decision that the GORD, from which Mr Kowalski suffers, is not defence-caused: [2009] AATA 853. 2009/1544 He adjourned consideration of the assessment of the pension rate for consideration if, on appeal, his decision regarding GORD was set aside: [2009] AATA 853. 2008/3352 and 2009/1544 After canvassing each of the grounds on which Deputy President Hack declined to disqualify himself: [2009] AATA 853. | GORD substantive issue: 3, 6, 9, 13, 17 and 18 |
| 11. | SAD 112 of 2009 Kowalski v Repatriation Commission Judgment dated 16 February 2010 | Mr Kowalski lodged a Notice of Motion that Spender J recuse himself from the appeal from judgment of Besanko J dismissing appeal from Deputy President Jarvis. | FEDERAL COURT Noting that four of the grounds set out in Mr Kowalski’s submissions are grounds on which he might have based an appeal, Spender J dismissed the motion. The fact that a Judge has made an error of law does not, in the absence of something more, show bias: [2010] FCA 217. | Claim for major depression etc: 1, 2, 4, 7 and 12 |
| 12. | SAD 112 of 2009 Kowalski v Repatriation Commission Judgment dated 5 March 2010 | Appeal from judgment of Besanko J dismissing appeal from decision of Deputy President Jarvis. | FULL COURT OF FEDERAL COURT Appeal dismissed by Spender, Emmett and Jacobson JJ: [2010] FCAFC 19 | Claim for major depression etc: 1, 2, 4, 7 and 11 |
| 13. | SAD 176 of 2009 Kowalski v Repatriation Commission Judgment dated 30 April 2010 | Appeal from decision of Deputy President Hack in 2008/3352 and 2009/1544 and expressed in [2009] AATA 853 that Mr Kowalski’s GORD not defence-caused. | FEDERAL COURT Appeal dismissed by Mansfield J on basis that no error of law in finding that GORD not defence-caused and no basis for Deputy President Hack’s disqualifying himself on basis of actual or apprehended bias: [2010] FCA 409 | GORD substantive issue: 3, 6, 9, 10, 17 and 18 |
| 14. | 2009/4000 and 2010/2439 Kowalski v Repatriation Commission Decisions dated 8 March 2011 | 2009/4000 Mr Kowalski lodged an application for review of the VRB’s decision affirming the Repatriation Commission’s decision that his gout, diabetes mellitus, chronic gastritis, acute stress disorder, sleep apnoea, erectile dysfunction and carotid arterial disease were not defence-caused. 2010/2439 Mr Kowalski lodged an application for review of the VRB’s decision affirming the Repatriation Commission’s decision that his cholelithiasis (or gall stones) were not defence-caused. During the hearing of the applications, Mr Kowalski made an application that the Tribunal be reconstituted. | TRIBUNAL Senior Member Bean, as she then was, and Professor Ben-Tovim treated Mr Kowalski’s application as having been made under s 21A of the AAT Act and declined to forward it to the President under s 21A(2). It treated the application as an application that Professor Ben-Tovim disqualify himself on the grounds of apprehended bias and refused that application: [2011] AATA 212. Treating the application as also being made to disqualify himself Professor Ben-Tovim declined to disqualify himself on the grounds of actual bias: [2011] AATA 214. | Claim for gout etc: 16 and 19 |
| 15. | A13/2009 Kowalski v Repatriation Commission Judgment dated 11 March 2011 | Mr Kowalski lodged an application for special leave to apply to the High Court from the judgment of Spender, Graham and Gilmour JJ refusing leave to appeal from the judgment of Mansfield J. This relates to Mansfield J’s dismissing an appeal from Member Short’s decision refusing to dismiss the Repatriation Commission’s application to review the VRB’s decision relating to GORD. | HIGH COURT Application for special leave dismissed: [2010] HCASL 20 | GORD jurisdictional issue: 3, 5, 8 and 18 |
| 16. | 2009/4000 and 2010/2439 Decision dated 24 March 2011 | Mr Kowalski applied to Downes J, President of the Tribunal. for the Tribunal to be reconstituted under s 21A of the AAT Act. | TRIBUNAL The President decided that the application had not been made under s 21A because it was not based on grounds of public importance and, in any event, did not raise such grounds: [2011] AATA 197 | Claim for gout etc: 14 and 19 |
| 17. | SAD 55 of 2010 Kowalski v Repatriation Commission Judgment dated 28 March 2011 | Appeal from judgment of Mansfield J dismissing appeal against Deputy President Hack’s decision that Mr Kowalski’s GORD not defence-caused and refusing to disqualify himself on basis of actual or apprehended bias. | FULL COURT OF FEDERAL COURT Dowsett, Cowdroy and Logan JJ dismissed appeal: [2011] FCAFC 43. | GORD substantive issue: 3, 6, 9, 10, 13 and 18 |
| 18. | A9/2011 Kowalski v Repatriation Commission Judgment dated 8 June 2011 | Mr Kowalski applied to the High Court for special leave to appeal against the judgment of the Full Court of the Federal Court numbered [2011] FCAFC 43. | HIGH COURT Application for special leave dismissed on basis that no issue on which an appeal would enjoy any prosects of success were special leave to be granted: [2011] HCASL 101. | GORD jurisdictional issue: 3, 5, 8 and 15 |
| 19. | 2009/4000 and 2010/2439 Kowalski v Repatriation Commission Decision dated 9 September 2011 | 2009/4000 Application described at line 14 above. 2010/2439 Application described at line 14 above. | TRIBUNAL 2009/4000 Senior Member Bean, as she then was, and Professor Ben-Tovim varied the decision to state that Mr Kowalski does not suffer, and has not, suffered, from erectile dysfunction or carotid arterial disease and otherwise affirmed it: [2011] AATA 634. 2010/2439 Senior Member Bean and Professor Ben-Tovim affirmed the decision: [2011] AATA 634. | Claim for gout etc: 14 and 16 |
| 20. | 2013/3647 Kowalski v Repatriation Commission | On 25 July 2012 Mr Kowalski applied for review of a decision of the VRB dated 11 July 2013 and affirming a decision of the Repatriation Commission dated 30 March 2012 that gastro-oesophageal reflux disease, depressive disorder, anxiety disorder, hypertension and ischaemic heart disease are not defence-caused. | TRIBUNAL Current application. | Claim for GORD etc |
A BRIEF HISTORY OF SUBMISSIONS RELATING TO S 42B APPLICATION
An examination of the file relating to Mr Kowalski’s application reveals that, on 1 October 2013 and on behalf of the Commission, Mr Crowe lodged a document entitled “Respondent’s submissions on various issues before a directions hearing”. He raised and addressed six issues.
At Issue 4, Mr Crowe asked the question:
“Whether the most appropriate course for the AAT to take would be to dismiss the present application for review.”
He noted that Mr Kowalski had previously brought each of the conditions that is the subject of his current application to the Tribunal. Decision No. [2009] AATA 853 had dealt with GORD and [2008] AATA 903 with major depression with co-morbid anxiety, hypertension and ischaemic heart disease. Mr Crowe noted that Mr Kowalski refused to provide anything further in support of his application other than repeating that the VRB’s decision was fraudulent and the like. He relied on Re Sleep and Repatriation Commission[126] and
in support of his proposition that the application should be dismissed.
Re Hopkins and Repatriation Commission[127]
[126] [2011] AATA 349
[127] [2013] AATA 270
Issue 6 posed the following question:
“Should the AAT make an order under subsection 42B(1)(b) of the AAT Act that Mr Kowalski may not institute any application to the AAT without the leave of the AAT? I leave it to the discretion of the AAT, should it choose to make such an order, to decide whether that order should be limited to application for review of decisions by the Repatriation Commission, the Military Rehabilitation and Compensation Commission and the Veterans’ Review Board, or whether it should apply to any application to the AAT.”
Mr Crowe then set out the background to the issue he had raised:
“The applicant has previously been subject to orders under corresponding provisions of:
The Supreme Court of South Australia (Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; subsection 39(1) of the Supreme Court Act 1935 (SA))
The Federal Court of Australia (Soden v Kowalski [2011] FCA 318; (Soden) sections 21 &23 of the Federal Court of Australia Act 1976, O21 r 1 & O35 r 1 Federal Court Rules.
In addition I note that SM Toohey of the AAT appeared to foreshadow that she would have considered using s42B(1) of the AAT Act to dismiss as frivolous or vexatious an application lodged by Mr Kowalski case [sic], if she were not dismissing it on other grounds (refusing an extension of time). Kowalski and Chief Executive of Medicare Australia [2009] AATA 980 (16 December 2009) at paragraph 32.”
Following the background, Mr Crowe set out what he described as a “Submission in respect of issue 6”:
“A review of the records of decisions in cases Mr Kowalski has brought to the AAT, the Federal Court (single Judge and Full Court) and South Australian courts (District Court, Supreme Court {single judge and full court}) (I count a total of 87) plus 12 applications for special leave to apply to the High Court (all unsuccessful) shows that the applicant is a persistent litigant. A persistent litigant may not necessarily be vexatious or frivolous. Stone J said as much in Soden:
Vexatious proceedings
192. Since 16 October 1998 there have been 45 judgments delivered in this Court in proceedings instituted by Mr Kowalski. The numbers alone indicate that significant resources of the Court have been devoted to those proceedings. Mere numbers, however, are not sufficient to meet the criteria in O 21 rr 1 and 2.
193. As mentioned above at [60] I have confined my detailed analysis to the proceedings which gave rise to the 34 judgments on which both applicants have relied to support their applications. The proceedings are grouped under the relevant Federal Court file numbers, however as can be seen a number of proceedings, for example, an application and an interlocutory application, may share the same file number: see, for instance, SAD 234 of 2002 at [68] and [69] above.
However, Stone J went on to add:
194. … The applicants submit that all except four of those proceedings were vexatious. There is one proceeding that, contrary to the applicants’ submissions, I have found not to be vexatious; see [147] above. I have accepted that the remaining 25 proceedings were vexatious.
Habitually, persistently and without reasonable grounds
195. Insofar as I need to be satisfied that Mr Kowalski, without having reasonable grounds for doing so, habitually and persistently institutes vexatious proceedings, the facts speak for themselves. My analysis of the individual proceedings amply demonstrates that Mr Kowalski, almost as a matter of course, persists in pressing his claims even when those claims have been determined by his entering into a contract, such as under the Heads of Agreement, or by judicial decision. He is not deterred by findings that his claims are unsustainable and that his applications are groundless. He has not been deterred by a succession of costs order made against him, many of which have been for the payment of indemnity costs.
196. Mr Kowalski’s response to an adverse decision whether procedural or substantive almost invariably appears to be, not merely that the decision-maker is in error but is biased or corrupt. The number of applications to disqualify themselves made to judges who have presided over the various proceedings bears witness to this approach. The description of Mr Kowalski’s persistence given by Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 equally applies to his approach to litigation in this Court. His Honour said, at [278]:
There has been a large number of cases instituted by the defendant against the plaintiff vexatiously. I have identified 30 such proceedings, 27 of which have been instituted in the period beginning about 12 months after the settlement agreement, and most of which have sought, in one way or another, to undo it. However, the defendant has also continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many occasions, being grounds on which he has also resisted the making of an order in these proceedings. The defendant has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him.
I submit to this Tribunal that Mr Kowalski’s practice of lodging applications which cannot succeed, and his methods of pursuing them, in this jurisdiction, amount to habitual vexatious behaviour. I therefore submit that it would be appropriate for the Tribunal to make an order under s 42B(1)(b) that Mr Kowalski may not institute any application to the AAT without the leave of the AAT.”
At the hearing on 7 January 2014, Mr Kowalski said that he had not made any submissions regarding the issue under s 42B. Although I considered that there had been an opportunity for him to make submissions on the issue between October 2013 and the date of the hearing, I gave Mr Kowalski an opportunity to make submissions. Therefore, I ordered that he lodge any submissions he wished to make by close of business on 21 January 2014. If the Commission wished to respond, it could do so by 28 January 2014 and Mr Kowalski could respond to the response by 31 January 2014. When Mr Kowalski protested at the hearing that the Commission should make its submissions first, I pointed out that it had already done so. The timetable I had set gave him two opportunities to make submissions.
I certify that the one hundred and thirty three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………......[sgd].............................................
Shivanthi Herath Associate
Date of Hearing 7 January 2014
Date of Last Submission 28 January 2014
Date of Decision 14 March 2014
Self-represented Applicant Mr K Kowalski
Advocate for the Respondent Mr A Crowe
Advocacy Branch
Department of Veterans’ Affairs
Minister for Immigration and Multicultural Affairsv Jia Legeng [2001] HCA 17; (2001) 205 CLR 507;
178 ALR 421; 65 ALD 1 at [185]-[186]; 564; 44-45 per Hayne J (citation omitted)
How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is … to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing … It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?” [2013] FCAFC 142 at [9]-[10] (citations omitted)
The distinction between the two was discussed in Re Gee and Director-General of Social Services
(1981) 3 ALD 132; 58 FLR 347 (Davies J, President, and Messrs Cusack and Prowse, Members) at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8;
19 AAR 15; Davies, Burchett and O’Connor JJ at 248-249; 10; 17-18
Re Mann and Secretary, Department of Social Services [2014] AATA 61 at [15]-[17]
The BMI = W/H2 and where:
W is the person’s weight in kilograms; and
H is the person’s height in metres.”: 2013 GORD SoP; cl 9
8
50
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