Kowalski v Repatriation Commission

Case [2010] FCA 409

FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2010] FCA 409

Citation: Kowalski v Repatriation Commission [2010] FCA 409
Appeal from: Kowalski v Repatriation Commission [2009] AATA 853
Parties: KAZIMIR KOWALSKI v REPATRIATION COMMISSION
File number: SAD 176 of 2009
Judge: MANSFIELD J
Date of judgment: 30 April 2010
Catchwords:

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – where AAT set aside the Veterans’ Review Board’s decision and affirmed the Repatriation Commission’s decision rejecting a claim to a pension under Part IV of the Veterans Entitlements Act 1986 (Cth) – application of Statement of Principles in determining whether gastro oesophageal reflux disease was “defence-caused” – consideration of matters in ss 119(1)(g) and 119(1)(h) of Veterans Entitlements Act 1986 (Cth)

PRACTICE AND PROCEDURE – whether Tribunal conducted hearing in accordance with s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 175(1)(c) of the Veterans Entitlements Act 1986 (Cth) – appellant asserted there was actual or apprehended bias – no reasonable apprehension of bias – appellant asserted procedural fairness was not afforded to him – no denial of procedural fairness – appeal dismissed

Legislation:

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth) ss 50(2), 70(5), 70(7), 119(1)(h), 119(1)(g), 120(4), 120B(3), 196B(3), 196B(14), 175(1), 176(2)

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 27, 43(1), 44

Workers Rehabilitation and Compensation Act 1986 (SA)
Cases cited:

Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382 cited
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 cited
Re Repatriation Commission and Hadfield (1990) 19 ALD 425 discussed
Lees v Repatriation Commission (2002) 125 FCR 331 cited
Robertson v Repatriation Commission (1998) 50 ALD 668 referred to
Stevenson v Repatriation Commission [2004] AATA 93 cited
Waterford v Commonwealth of Australia (1987) 163 CLR 54 cited
Brown v Repatriation Commission [2006] FCA 914 cited
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 cited
Commonwealth v Twyman (1985) 8 ALD 554 cited
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 cited
Repatriation Commission v Money [2009] FCAFC 11 cited
Repatriation Commission v Gosewinkel [1999] FCA 1273 cited
Collins v Repatriation Commission (2009) 177 FCR 280 cited
Repatriation Commission v Bey (1997) 79 FCR 364 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
Ashenden and Repatriation Commission [2006] AATA 1102 cited

Kowalski v Repatriation Commission [2009] FCA 153 cited

Date of hearing: 19 February 2010
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 105
Counsel for the Applicant: The appellant appeared in person
Counsel for the Respondent: JR Wallace
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 176 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

KAZIMIR KOWALSKI
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

30 APRIL 2010

WHERE MADE:

ADELAIDE

THE…

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AGLC
Kowalski v Repatriation Commission [2010] FCA 409
Case
[2010] FCA 409
Decision Date

CaseChat Overview and Summary

The appeal to the Federal Court was made by the appellant, who sought to challenge a decision of the Administrative Appeals Tribunal (AAT) that had affirmed a decision of the Repatriation Commission rejecting his claim for a pension under Part IV of the Veterans Entitlements Act 1986 (Cth). The appellant contended that the Tribunal had erred in determining whether his gastro oesophageal reflux disease (GORD) was "defence-caused" and whether the Tribunal had conducted the hearing in accordance with relevant statutory provisions regarding bias and procedural fairness. The appellant argued that the Tribunal had failed to properly apply the Statement of Principles and had not afforded him procedural fairness.

The court was required to decide whether the Tribunal had correctly interpreted and applied the relevant provisions of the Veterans Entitlements Act 1986 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). Specifically, the court needed to determine if the Tribunal had correctly assessed whether the appellant's GORD was "defence-caused" and if there had been any actual or apprehended bias or denial of procedural fairness. The court had to review the application of sections 119(1)(g) and 119(1)(h) of the Veterans Entitlements Act and sections 29 of the Administrative Appeals Tribunal Act and 175(1)(c) of the Veterans Entitlements Act.

The court found that the Tribunal had not erred in its interpretation or application of the statutory provisions. The Tribunal correctly determined that the appellant's GORD was not "defence-caused" as there was no evidence of GORD until the mid-1980s, and the symptoms noted in 1973 were likely those of a duodenal ulcer. The court also found that there was no actual or apprehended bias and that the appellant had been afforded procedural fairness. The findings of the Tribunal were based on the assessment of the evidence, and the court upheld these findings as correct. The appeal was dismissed, and the decision of the AAT was affirmed.

1. The appeal from a decision of the Administrative Appeals Tribunal made on 6 November 2009 in Kowalski v Repatriation Commission [2009] AATA 853 be dismissed.

Orders

Orders of the court

1. The appeal from a decision of the Administrative Appeals Tribunal made on 6 November 2009 in Kowalski v Repatriation Commission [2009] AATA 853 be dismissed.

Note:

Background

Background to the litigation

The appeal to this Court is limited to an appeal on a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).BACKGROUND The background to this appeal is, in substance, the same as the background to the appellant’s appeal from the Tribunal of 27 May 2009 affirming a decision of the Military Rehabilitation and Compensation Commission rejecting his claim for compensation in respect of the same medical condition made under the Safety, Rehabilitation and Compensation Act 1988 (Cth): Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382. I have given judgment on that appeal at the same time as this judgment: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408. The appellant served with the Australian Army between 20 April 1972 and 19 October 1973. He commenced service as a soldier on 20 April 1972. After undergoing his basic training for three months, he then served as a regimental and mechanical draftsman. The majority of his service was undertaken at the Amberley base of the Royal Australian Air Force. He did not serve outside Australia. On 19 October 1973 he was discharged, having completed the prescribed period of service. During his employment in the Army the appellant was required to undertake a heavy workload that resulted in considerable stress. The appellant also claims to have consumed “at least a jug of full strength beer” daily during the period of training and thereafter whilst serving. The appellant’s medical treatment during his service was documented in the material before the Tribunal. A Medical Examination Record at the time of his entry into the Army, dated 6 March 1972, does not indicate that the appellant was suffering from any gastric problems at that time. The first reference to any complaint of relevance is on 17 July 1973 when the appellant complained of epigastric pain occurring 1 ½ hours after meals, which was reported as being relieved by antacids. The appellant was prescribed Kolantyl gel, Merbentyl and subsequently Librax. In late July or early August 1973 the appellant was prescribed a barium meal. The report of the barium meal was “[n]o hiatus hernia or oesophageal reflux could be detected” however a small duodenal ulcer was detected. In early August 1973 the appellant complained of regurgitation and a diagnosis of duodenal ulcer was made. The appellant underwent a discharge medial examination on 19 September 1973. On the appellant’s Medical Discharge Questionnaire it was noted that the appellant complained of heartburn and epigastric pain, and that he was taking antacids which relieved this pain. It was also recorded that the appellant suffered from “recurrent indigestion” and a duodenal ulcer. Prior to discharge the appellant made a claim for compensation for his duodenal ulcer. For the purposes of that claim, a report was obtained from Dr Gilmore, a specialist gastroenterologist, who saw the appellant in February 1974. He reported that the appellant “first had symptoms in May, 1973 whilst doing National Service, which are typical of those produced by duodenal ulcers.” He reported that the effects of the ulcer were of a temporary nature and would have effectively ceased with treatment in mid 1973, but that the healing of the ulcer would have taken some months. He noted that the appellant was free of symptoms by the time of his discharge in 1973 and that healing “can reasonably be assumed” at that time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On the question of actual or apprehended bias, there were no matters raised by the appellant beyond those raised at the hearing, when the Tribunal, correctly in my view, found that there was no basis for the Tribunal as then constituted to be disqualified from hearing the matter. There is nothing which indicates that the Tribunal as then constituted approached the hearing with a state of mind committed to a conclusion, or that a fair minded lay observer would reasonably apprehend that it might not bring an impartial mind to the making of its decision. The transcript does not reveal that the Tribunal, during the hearing, was other than open-minded in its approach to witnesses or other evidence or that it in any way acted so as to indicate that it was not bringing an impartial mind to the resolution of the issues.CONCLUSION For the reasons given, this appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

I shall deal with the identifiable errors of law in the sequence set out above.CONSIDERATIONIssue 1 In essence, the appellant contended that those provisions referred to required the Tribunal to treat his application for review as an appeal in the strict sense and not as an appeal de novo. That is plainly wrong. In the first place, review by the Tribunal is not an appeal but an administrative review: see s 25 of the AAT Act. Section 175(1) of the VE Act provides:Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review: (a) of the decision of the Commission that was so affirmed;(b) of the decision of the Commission as so varied; or(c)of the decision made by the Board in substitution for the decision so set aside;as the case may be. Section 43(1) of the AAT Act makes it clear that the Tribunal’s review is a review on the merits of the decision under review. The Tribunal is empowered to exercise all the powers and discretions of the relevant decision-maker, and then to affirm that person’s decision or to vary it or to set it aside and to substitute a different decision. That has been explained in numerous cases, as far back as Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325; Commonwealth v Twyman (1985) 8 ALD 554; and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111. These provisions do not support the appellant’s contention. Issue 2 It is not at all clear how the appellant converts findings of fact on available evidence into errors on matters of law. It appears to be a catch-all for matters not covered under his other contentions. Insofar as it concerns the time of the clinical onset of his GORD, apart from the matters discussed under Issue 4, the finding of the Tribunal is clearly a finding of fact based upon its assessment of the evidence. Both Dr Reid and Dr David Hetzel were of the opinion that there was no evidence of the appellant having GORD until the mid 1980s at the earliest, and that the likelihood is that the symptoms complained of in 1973 were symptoms of the duodenal ulcer that was diagnosed at the time rather than GORD. The appellant relied heavily in his oral and written submissions on the fact that the records from 1973 show, and the expert doctors acknowledged that, he suffered from “heartburn,” which he claims is the same as GORD. The expert evidence shows that the symptom of heartburn, although it can be a symptom of GORD, can also be a symptom of a duodenal ulcer. Dr David Hetzel said:Yes he had some heartburn. There was one line at one point in the notes [from 1973]. I think it was somewhere else that he had some regurgitation but these things can occur in individuals with duodenal ulcer or gallstone disease. We know [the appellant] had duodenal ulcer at that time on X-ray and had symptoms of duodenal ulcer…