McDonell and Repatriation Commission

[2013] AATA 74

[2013] AATA  74

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/1027-1028
Re	Tino McDonell
APPLICANT
And	Repatriation Commission
RESPONDENT

DIRECTION

Tribunal	Ms N Bell, Senior Member
Date	15 February 2013
Place	Sydney

The previous Tribunal’s conclusions in respect of post-traumatic stress disorder, generalised anxiety disorder, alcohol dependence and irritable bowel syndrome will be adopted in the present application for review.

This application for review will be listed for a directions hearing to determine the future progress of the matter.

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Ms N Bell, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – scope of review – whether to limit claims and scope for review – review of previous Tribunal decision – whether appropriate to adopt findings of previous decision – previous Tribunal decision adopted – direction for review to be determined for future progress

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 25, 25(4), 33, 33(1)

CASES

Border v Repatriation Commission (No. 2) (2010) 191 FCR 163

Comcare v Grimes (1994) 50 FCR 60
Lees v Repatriation Commission (2002) 125 FCR 331
Re McDonell and Repatriation Commission (2008) 103 ALD 642
Morales v Minister for Immigration (1998) 82 FCR 374
Repatriation Commission v Cornelius [2002] FCA 750
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DIRECTION ON SCOPE OF REVIEW

Ms N Bell, Senior Member

1. In Re McDonell and Repatriation Commission (2008) 103 ALD 642 this Tribunal concluded that Mr McDonell did not suffer from Post-Traumatic Stress Disorder and that his alcohol dependence, irritable bowel syndrome and generalised anxiety disorder were not war caused. Mr McDonell did not appeal this decision to the Federal Court.

2. On 18 March 2011, following further claims, Mr McDonell lodged an application for review by this Tribunal of decisions by the Repatriation Commission that his contended gastro-oesophageal reflux disease, alcohol dependence, post-traumatic stress disorder and generalised anxiety disorder are not related to his service.

3. The Commission applied to have the scope of this review of its decisions limited so as to exclude Mr McDonell’s claims for post-traumatic stress disorder, alcohol dependence and generalised anxiety disorder. The Commission submitted that these claims have been previously determined by the Tribunal and should not be re-litigated.

4. Mr McDonell submitted, among other things, that the Tribunal stands in the shoes of the original decision maker and has the same duty as does the Repatriation Commission to satisfy itself and determine all matters relevant to the claim. Mr McDonell submitted that the Tribunal had made erroneous findings and sought to have me examine the Tribunal’s earlier decision with a view to concluding that the matter should effectively be reviewed by the Tribunal again.

5. The parties agreed, and I concur, that the preponderance of authority is that issue estoppel does not apply in the Administrative Appeals Tribunal. There remain to be considered the Tribunal’s procedural powers under section 33 of the Administrative Appeals Tribunal Act 1975 and the Tribunal’s power to limit the scope of a review under section 25 of the Act. These provide:

   33(1)

   (1) In a proceeding before the Tribunal:

   (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

   (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

   (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

   25(4A)

   (4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.

6. The Federal Court has recognised the discretion vested in the Tribunal under section 33 to determine its own procedures.

7. In Morales v Minister for Immigration (1998) 82 FCR 374 the Full Federal Court, after considering the judgment of the Court in Comcare v Grimes (1994) 50 FCR 60 and the Tribunal’s decision in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, said:

   In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time.

8. In Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, after concluding that it may be appropriate for the Tribunal to adopt the findings made by it in subsequent proceedings and noting that “There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made”, the Full Federal Court said:

   But the obligation to “ensure that every party … is given a reasonable opportunity to present his or her case…”, may require that a party be given an opportunity to again re‑agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the “correct or preferable” finding is one different from that previously made.

9. Mr McDonell was represented by Counsel before the previous Tribunal and there is no previously unavailable evidence of significance to be adduced. It remains for me to consider whether “the ‘correct or preferable’ finding is one different from that previously made.”

10. In deciding whether I should to adopt the findings of the previous Tribunal, it is not appropriate for me to attempt to reconstruct the four day hearing, and all of the evidence it entailed. Rather, I have read the previous Tribunal’s decision and heard and considered the extensive written and oral submissions of the parties in this application to limit the scope of the present review.

11. A number of contended errors by the previous Tribunal were raised by Mr McDonell as justification for rehearing claims for post-traumatic stress disorder, generalised anxiety disorder, alcohol dependence and irritable bowel syndrome.

12. The main contention of error was that the Tribunal had failed to ask itself the correct question when it found there was no objective material pointing to Mr McDonell having been exposed to a life threatening event during operational service in May 1969 or November 1972. It was submitted that the Tribunal should have enquired as to whether Mr McDonell had a perception of a threat of death, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of the veteran, that was capable of, and did convey the threat of death. This approach is drawn from the Federal Court’s judgment in Border v Repatriation Commission (No. 2) (2010) 191 FCR 163.

13. However, the Tribunal’s decision shows that it was mindful of Mr McDonell’s evidence that he had been aware that scare charge explosions were to occur as part of the ship’s measures to prevent enemy aggression. The Tribunal concluded on the issue by reference to material pointing to Mr McDonell’s perception of the situation and an absence of material pointing to a life threatening event at any time – the subjective/objective test stated in Border. I note also the Tribunal’s references to the Federal Court’s judgment in Woodward v Repatriation Commission (2003) 131 FCR 473, to which judgment the judgment in Border gave wider effect. It is apparent on the face of the decision that the Tribunal considered Mr McDonell’s “experiencing of the event”.

14. It was also submitted that the Tribunal ignored the report of a Dr Knox in relation to the date of clinical onset of generalised anxiety disorder. The Tribunal examined this report extensively in its decision and devoted a number of pages to doing so. The Tribunal described Dr Knox’s report as “generalised with the material nominated by him not pointing particularly to any point in time”. In view of the Federal Court’s judgments in Lees v Repatriation Commission (2002) 125 FCR 331 and Repatriation Commission vCornelius [2002] FCA 750, and the requirement on the Tribunal to find date of clinical onset by reference to the specific diagnostic criteria set out in the Statement of Principles, it appears to have been open to the Tribunal to conclude that Dr Knox’s report did not establish clinical onset at or within the required timeframe.

15. The submission was also made that the Tribunal ignored a suggestion made in a report by Dr Dinnen that Mr McDonell suffered from a worsening of war caused anxiety disorder due to the discovery of pleural plaques considerably later and that this satisfied the Statement of Principles for anxiety state due to a general medical condition. The Tribunal’s lengthy and detailed description of Dr Dinnen’s evidence makes no mention of this opinion. It is not unusual for medical experts to expand on or to abandon opinions given in reports when giving oral evidence to the Tribunal. I am particularly struck by the detail in which the Tribunal described the oral evidence Dr Dinnen gave. The absence of reference to this diagnosis suggests that he did not refer to it and that it was not pursued by Mr McDonell’s legal representatives. In any event, it is unclear what effect it would have had on the outcome.

16. It was also submitted that the Tribunal did not consider an alternative diagnosis of anxiety disorder not otherwise specified. I am informed by the Repatriation Commission that a review of the psychiatric reports shows not one diagnosis of this condition. On this basis there was no evidence on which the Tribunal could have found this diagnosis.

17. The matters raised by Mr McDonell do not satisfy me that “the ‘correct or preferable’ finding is one different from that previously made.” I will adopt the previous Tribunal’s conclusions in respect of post-traumatic stress disorder, generalised anxiety disorder, alcohol dependence and irritable bowel syndrome.

18. At my request, the parties provided an outline of the issues that would remain to be considered in the present application were I to adopt this course. I agree with their outline of issues as follows:

    (i)Was Mr McDonell consuming at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro oesophageal reflux disease, due to a war caused drinking habit? and;

    (ii)What is the correct assessment of Mr McDonell’s rate of pension from 25 September 2009?

19. This application for review will be listed for a directions hearing to determine its future progress.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell.

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Associate

Dated  15 February 2013

Date of hearing	11 October 2012
Date final submissions received	23 January 2013
Counsel for the Applicant	Mr C Colborne
Solicitors for the Applicant	KCI Lawyers
Advocate for the Respondent	Mr R Douglass, DVS Advocacy Section