Kowalski v Military Rehabilitation and Compensation Commission

In the case of Kowalski v Military Rehabilitation and Compensation Commission, the appellant sought to appeal a decision of the Administrative Appeals Tribunal (AAT) that affirmed a decision of the Military Rehabilitation and Compensation Commission (the Commission) to reject his claim for compensation arising from gastro-oesophageal reflux disease (GORD) that he claimed was caused or contributed to by his service in the Australian Army. The appellant argued that he had been suffering from GORD since 1987, a fact that was not known to the AAT at the time of the hearing, and that his GORD was causally related to his Army service. The appellant contended that the AAT had a duty to inquire further concerning Dr Cheung's reference to an earlier endoscopy, and that had it done so, it would have discovered the new evidence which is now to hand. The appellant further argued that the AAT's failure to do so raises a legal question sufficient to engage s 44 of the Administrative Appeals Tribunal Act. The court was required to decide whether the primary Judge erred in law in relation to his findings, whether the AAT was under a duty to inquire, and whether the failure to inquire constituted a failure to undertake the statutory duty of review or was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

The court found that there was no error disclosed by the primary Judge in relation to his findings. The court observed that although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The court further found that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. The court also found that the response made by the appellant's solicitors to the Tribunal’s letter itself indicated the futility of further inquiry. There was nothing that the appellant or his solicitors were able to add, beyond the bare denial of what appeared in the National Ameer’s letter. The court concluded that there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.