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.

.....[Sgd]...................................................................

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…