Rana v Military Rehabilitation and Compensation Commission
[2010] AATA 937
•23 November 2010
CATCHWORDS – COMPENSATION – diabetes and paranoid schizophrenia – whether contributed to in a material degree by employment in Army – decisions affirmed.
PRACTICE AND PROCEDURE – law under which decisions reviewed – law in effect at the earlier of the times when applicant sought treatment or was first incapacitated or impaired as a result of the diseases for which compensation claimed – law before 2007 amendments applicable.
PRACTICE AND PROCEDURE – Statements of Principle under the Veterans’ Entitlements Act 1986 not relevant.
PRACTICE AND PROCEDURE – application to dismiss on basis frivolous and vexatious – whether application regarding claim for paranoid schizophrenia should be dismissed on the basis that effectively determined by findings made in previous Tribunal proceedings.
Administrative Appeals Tribunal Act 1975, ss 2A, 25, 33, 37, 39, 42B, 43
Administrative Decisions (Judicial Review) Act 1977
Compensation (Commonwealth Government Employees) Act 1971, s 29
Judiciary Act 1903, s 39B
Migration Act 1958, s 420
Military Rehabilitation and Compensation Act 2004, ss 361
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004
Privacy Act 1988
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5B, 7, 14, 16, 19, 21
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 ss 2, 3
Veterans’ Entitlements Act 1986, ss 5C, 5Q,6-6F, 14, 68, 120, 196B
Court Procedure Rules (ACT), r 21
Amaca Pty Ltd & Ors v Ellis as Executor of the Estate of Paul Steve Cotton (dec) & Ors [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576; 84 ALJR 226
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481
Australian Postal Corporation v Oudyn [2003] FCAFC 318; (2003) 73 ALD 659
Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Bakovic v Rosebridge Nominees Pty Ltd [1999] WASCA 78
Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Briginshaw v Briginshaw (1938) 60 CLR 336
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Christine Lodowski v Comcare [1998] FCA 158
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134; 102 ALR 487; 65 ALJR 674
Director General Security v Sultan (1998) 90 FCR 334
Drake v Minister for Immigration [1979] AATA 179; (1979) 46 FLR 409;
24 ALR 577; 2 ALD 60
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626;
38 ALJR 64
General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; 67 ALJR 841
Hunter v Chief Constable of West Midlands [1982] AC 529
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Jebb v Repatriation Commission (1988) 80 ALR 329
JF Keir Pty Limited v Sparks [2008] FCA 611
Jones v Dunkel [1959] HCA 8; (1985) 101 CLR 298; 32 ALJR 395
Kioa v West (1985) 159 CLR 550
Kowalski and Military Rehabilitation and Compensation Commission
[2007] AATA 1988
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1;
78 ALJR 1031
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84; 29 AAR 350
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506;
99 ALR 423; 65 ALJR 334
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;
(1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66;
(1992) 110 ALR 449; 67 ALJR 170
Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146;
141 ALR 353; 71 ALJR 294
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456;
1 All ER 81
Ramsay v Australian Postal Corporation [2005] FCA 640; (2005) 147 FCR 39
Rana and Chief of Army [2005] FCA 1283
Rana and Chief of Army [2006] FCAFC 63; (2006) 90 ALD 474
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Rana v University of Adelaide [2008] FCA 365
Re Fuad and Telstra Corporation Limited [2004] AATA 1182; (2004) 39 AAR 496
Re Mr R and Commonwealth [1988] AATA 133; (1988) 15 ALD 167
Re O’Neill and Child Support Register [2010] AATA 545
Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069; (2005) 89 ALD 180
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595
Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149
Re Slater and Telstra Corporation Limited [2005] AATA 527
Re Vincent and Military Rehabilitation and Compensation Commission [2010] AATA 180; (2010) 51 AAR 422
Re Williams and Australian Electoral Commission and The Greens (party joined) [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467
Robert Bosch (Australia) Pty Ltd v Mr Egon Fice, member of the Administrative Appeals Tribunal [2009] FCA 247; (2009) 175 FCR 258
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795
DECISION AND REASONS FOR DECISION [2010] AATA 937
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2006/0223 & 2007/1885
VETERANS’ APPEALS DIVISION )
Re:RANJIT RANA
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Professor PL Reilly AO
Place: Melbourne (heard in Adelaide)
Date: 23 November 2010
Decision:The Tribunal:
(1)affirms the reviewable decision of the respondent dated 9 May 2007 in proceedings No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses; and
(2)affirms the reviewable decision of the respondent dated 14 February 2005 in proceedings No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during the applicant’s service in the Australian Army.
S A Forgie
Deputy President
REASONS FOR DECISION
Mr Rana has applied for compensation for paranoid schizophrenia and for stress induced diabetes. Both claims have been made under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) but the decision in relation to the first was made by a delegate of Comcare and the second by a delegate of the Military Rehabilitation and Compensation Commission (MRCC) after it was established on 27 April 2004 under the Military Rehabilitation and Compensation Act 2004 (MRC Act).[1] Both Comcare and the MRCC refused Mr Rana’s claims and the Tribunal heard his applications for review of their determinations together.
[1] MRCC Act, ss 361 and 2, item 3.
Two matters were decided as preliminary issues. The first was that
Mr Rana’s application would be reviewed by reference to the SRC Act rather than by to the MRC Act. The provisions of those two enactments and the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Transitional Act) were relied on in coming to that decision.[2] The second was that a report dated by Professor Goldney was not prepared in circumstances that amounted to a breach of confidence owed by Professor Goldney or another to
Mr Rana and that Professor Goldney had not breached the Privacy Act 1988 in its preparation.[3][2] After the MRC Act came into operation, the MRCC was given responsibility for decisions under the SRC Act as well as the MRC Act.
[3] Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
We have considered a number of preliminary matters and have reviewed the MRCC’s reviewable decision. We have decided to affirm the reviewable decision of the MRCC dated 9 May 2007 in proceeding No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses. We have also decided to affirm the reviewable decision of the MRCC dated 14 February 2005 in proceeding No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during his service in the Australian Army.
THE HISTORY OF THE TWO APPLICATIONS
The history of the two applications is different and we will set out the steps that have been taken in relation to each separately:
Comcare’s paranoid schizophrenia decision
| Application | Date | Claim/Step | Decision/Judgment |
| 31 January 2005 | Paranoid schizophrenia | ||
| 1 February 2005 | Comcare[4] refused to issue determination on basis same as previously considered.[5] | ||
| 9 February 2005 | Mr Rana requests reconsideration[6] | ||
| 14 February 2005 | Comcare affirms decision[7] | ||
| S2005/58 | 7 March 2005 | Mr Rana applies to Tribunal for review[8] | |
| 24 October 2005 | Tribunal dismissed application as frivolous or vexatious under s 42B of Administrative Appeals Tribunal Act 1975 (AAT Act)[9] | ||
| 25 October 2005 | Mr Rana appeals to Federal Court | ||
| 28 July 2006 | Lander J of Federal Court remits application by consent – no judgment | ||
| S2006/223 (allocated new file) | Remitted application | ||
| 26 October 2007 | Application by MRCC to dismiss application under s 42B of AAT Act | ||
| 1 July 2008 | Tribunal refuses application but makes directions regarding course of hearing[10] |
[4] Officers of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs acted as delegates of Comcare in claims made under the 1988 Act.
[5] T documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) in S2005/58 (TS2005/58 documents) at 131-132 and refusal on 14 February 2005 to review decision at 136-137
[6] TS2005/58 at 133-134
[7] TS2005/58 at 136-137
[8] TS2005/58 at 1-4
[9] [2005] AATA 1069; (2005) 89 ALD 180; Deputy President Walker
[10] See [76] below
MRCC diabetes decision
Mr Rana stated that he first became aware of his diabetes on 29 August 2005, which was the day on which he first received treatment for it.
| Application | Date | Claim/Step | Decision/Judgment |
| 30 August 2005 | Stress-induced Paranoid Schizophrenia and Diabetes[11] | ||
| 27 July 2006 | MRCC makes determination disallowing claim[12] | ||
| 28 September 2006 | Mr Rana requests reconsideration[13] | ||
| 9 May 2007 | MRCC affirms determination[14] | ||
| S2007/1885 | 15 May 2007 | Mr Rana applies to Tribunal for review | |
| 26 October 2007 | Application by MRCC to dismiss application under s 42B of AAT Act | ||
| 1 July 2008 | Tribunal refuses application but makes directions regarding course of hearing[15] |
[11] Documents lodged under s 37 of the AAT Act in S2007/1885 (T2007/1885 documents) at 51
[12] TS2007/1885 at 63-64
[13] TS2007/1885 at 65-66
[14] TS2007/1885 at 78-80
[15] See [76] below
PREVIOUS RELEVANT CLAIMS AND DECISIONS IN RELATION TO ARMY SERVICE
In addition to the two matters with which we are concerned,
Mr Rana has made other claims for compensation for conditions that he attributes to certain events during his service in the Army and another in relation to the basis on which his Army service came to an end. They have been set out in detail in earlier reasons given after Deputy President Forgie considered an application by the MRCC to dismiss Mr Rana’s application for review under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the basis that it was frivolous or vexatious[16] (dismissal proceedings). We adopt that history. For present purposes, we will summarise only the two that relate directly to this matter and refer to the legislation under which they were determined:
[16] Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595 at [3]-[22]; 390-395; 597-603
| Date | Claim | Tribunal/Court Decision/Judg-ment | Decision |
| 4 September 1984 | psychiatric condition (personality disorder and/or adjustment disorder or reactive depression) Mr Rana attributed condition to his having been subjected during his Army service to physical, emotional and sexual harassment because of his race, creed and colour (Claim made under Compensation (Commonwealth Government Employees) Act 1971 (1971 Act)) | Re Mr R and Commonwealth[17] | Personality order and/or adjustment disorder not caused by Army service as pre-existing. Army service aggravated pre-existing conditions until April 1985.[18] |
| 29 August 2001 | psychotic paranoid reaction post traumatic stress disorder (or, alternatively, post traumatic disorder with features of paranoid schizophrenia) Mr Rana attributed condition to his having been subjected to emotional and physical harassment by other members of the Defence Force (Safety, Rehabilitation and Compensation Act 1988 (1988 Act)) | Re SAN and Comcare[19] | Neither condition arose out of or was contributed to by Mr Rana’s Army service and neither was aggravated by that service. |
[17] [1988] AATA 133; (1988) 15 ALD 167; Deputy President Layton, Senior Member Kiosoglous and Dr Williams, Member
[18] [1988] AATA 133; (1988) 15 ALD 167 at [102]-[104]
[19] [2004] AATA 445; (2004) 81 ALD 149; Deputy President Jarvis and Dr Eriksen, Member. Appeal dismissed in Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 per Finn J and appeal from that judgment dismissed in Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85 per Marshall, Mansfield and Stone JJ. Mr Rana’s application to the High Court for orders nisi for prerogative writs dismissed: Rana v Marshall J [2007] HCA Trans 189 per Crennan J.
MRCC’S APPLICATION TO DISMISS PART OF CLAIM ON BASIS PREVIOUSLY DECIDED
In Re Rana and Military Rehabilitation and Compensation Commission,[20] Deputy President Forgie refused the MRCC’s application to dismiss Mr Rana’s application under s 42B of the AAT Act on the basis that it was frivolous or vexatious. She did so on the basis that Mr Rana’s claim for compensation for paranoid schizophrenia is not a claim that the Tribunal had previously considered. She noted that Deputy President Jarvis and Dr Eriksen had touched on that condition but that it was not a condition in issue in that case. In Rana v University of Adelaide,[21] Lander J heard evidence from Dr Bal Jha to the effect that Mr Rana suffered from a paranoid personality disorder and that stress (and he did not link that stress to any particular circumstances) could lead to a “flare up” of that disorder and so to paranoid schizophrenia. His Honour heard that evidence in the context of civil proceedings taken by Mr Rana in the Federal Court that had nothing to do with his claim for compensation under the SRC Act.
[20] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385
[21] [2008] FCA 365
At the hearing, Mr Snell made a further application that we dismiss
Mr Rana’s application on the basis that it is frivolous and vexatious. Our power to do that is found in s 42B(1)(a) of the AAT Act, which provides that:
“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; …
(b)…”.
We will set out Mr Snell’s submission before returning to our power under s 42B and whether or not we should exercise it in this case.
The submission
On behalf of the MRCC, Mr Snell asked us to dismiss Mr Rana’s application relating to Comcare’s paranoid schizophrenia decision on the basis that it had been effectively determined in earlier proceedings. He submitted that the condition of paranoid psychosis considered by the Tribunal in Re SAN and Comcare is, for all relevant purposes, identical with paranoid schizophrenia. That Tribunal had conclusively discounted any relationship between paranoid psychosis and Mr Rana’s military service. Mr Snell referred us to the following exchange between
Professor Goldney and the MRCC’s then counsel, Ms Bean:
“Professor, just beginning with the question of diagnosis you’ve indicated in your report that you did consider that Mr Rana was currently suffering from paranoid schizophrenia. Is that so?‑‑‑Yes.
Could you briefly outline to the tribunal the reasons for reaching that conclusion?‑‑‑Yes. He had a history of deteriorating social function. He had delusional thoughts. He had a history of hallucinations, which had lasted for longer than a month. His conversation was somewhat disorganised and he had paranoid flavour about a number of issues in his life and so his diagnosis falls within the broad category of a paranoid psychosis and then one has to work out, you know, what’s the cause of the paranoid psychosis. It didn’t seem to be related to drug abuse. It didn’t seem to be related to a depressive disorder. It didn’t seem to be related to any other, you know physical illnesses and so the most likely sub-category of a paranoid psychosis is that of paranoid schizophrenia.”[22]
[22] Transcript, 10 December 2008 at 144
In so far as Mr Rana’s claim extends beyond the cause of paranoid schizophrenia and encompasses its aggravation, acceleration and recurrence, Mr Snell submitted that we should dismiss it on the basis that it too has been determined by the Tribunal in Re SAN and Comcare. He relied on a decision of Downes J as President of the Tribunal in Re Fuad and Telstra[23] when he said:
[23] [2004] AATA 1182; (2004) 39 AAR 496
“ The application for review before the Tribunal in this matter differs from the application in Kelleher [Kelleher v Telstra Corporation Ltd[24]] because Mr Fuad does wish to pursue claims which were before the decision-maker and which relate to incapacity not upheld in the decision under review. These matters are not dealt with in the determination because of the decision that liability had ceased but, in my opinion, the effect of the decision in Oudyn [Australian Postal Corporation v Oudyn[25]] is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under
s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.[24] [2004] AATA 1156; (2004) 40 AAR 45; Downes J, President
[25] [2003] FCA 318; (2003) 73 ALD 659; Cooper J
It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.”[26]
[26] [2004] AATA 1182; (2004) 39 AAR 496 at [4]-[5]; 498
Mr Snell submitted that resolution of the “practical problem”, to which Downes J referred, begins with an enquiry as to the subject of the claim considered by the earlier Tribunal. That enquiry may be informed, but not confined, by the terms in which the claim for compensation was made or as amended or amplified. Regard must be had to the medical evidence and to the diagnosis or diagnoses that medical practitioners ascribe to the claimed condition. That diagnosis or those diagnoses may be quite different from that for which compensation has been claimed. Regard must be had to the material and evidence before the earlier Tribunal but that too cannot be determinative of the boundaries of what was decided. The terms of the Tribunal’s decision may also be relevant in deciding what was before the decision-maker. Finally, Mr Snell submitted:
“Finally, as Downes J in Fuad observes, the terms of a decision and the reasons for it are indicative of, but not conclusive as to, the question of what was before a decision-maker. It may be accepted that where the Tribunal makes a finding, specifically or by necessary inference, about
2.11.1matters arising from the evidence before it, and
2.11.2those matters concern factual and/or legal considerations which were properly ‘part of the claim’ (either as it was framed or as necessarily arises from the evidence),
then such material will have been relevantly ‘before the decision maker’ for the purposes of determining the scope of what has already been decided. It does not follow however that because of an absence of a specific finding alone (such as upon a question rendered nugatory by other findings) that a matter was not relevantly before it.”[27]
[27] MRCC’s submissions at [2.11]
Mr Snell referred to [1], [3] and [11] of the Tribunal’s reasons for decision in Re SAN and Comcare regarding the proper characterisation of the claimed condition and [58]-[100] of those reasons relating to events during that service and then to Mr Rana’s evidence and submissions in the current proceedings. The effect of his submission was that they are closely aligned to, if not the same as, those for which Mr Rana now claims compensation. He then referred to the earlier Tribunal’s findings regarding stressful events at [142], [143] and [144] and regarding material contribution at [144], [145], [148] and [163].
To the extent that any part of the evidence in the present proceedings arises from any of the stressful events and those said to have made a material contribution to a condition that is now properly identified as paranoid schizophrenia, the Tribunal should not entertain the application. The respective rights of the parties have finally been determined “even if (by reason of there having been a purported reconsideration on the matter by the delegate and a valid application for review under s. 62) the Tribunal would have jurisdiction, would be futile.”[28]
[28] MRCC’s submissions at [2.18]
Mr Snell relied on a passage:
“On the other hand I do not think the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
He submitted that this passage is to be found in the judgment of Dixon J in Dey v Victorian Railways Commissioners[29] but it is in fact found in the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW).[30]
[29] [1949] HCA 1; (1949) 78 CLR 62; [1949] ALR 333; 23 ALJR 48
[30] [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253 at 130; 255
Consideration: the principles in Fuad
If we understand it correctly, Mr Snell’s submission starts from the proposition that, what was before the Tribunal in a previous decision can be taken to have been decided by it not only for the purposes of reviewing the decision before it but for all subsequent purposes. What was before it is decided by reference to the claim, the evidence, the findings of fact and the decision made although none is conclusive. The findings of fact made by the Tribunal in earlier proceedings between the same parties are conclusive of the respective rights of those parties in relation to those factual findings.
Mr Snell has relied on the case of Fuad. In that case, the President identified what it was that the Tribunal was being asked to review. He did go so far as to say that a decision adverse to an applicant on one claim is a decision adverse to the applicant on all claims made by that applicant. That is so even if the decision-maker does not address those other claims fully. On the face of the reasons, Mr Snell’s submission gains some support but the President’s reasons need to be considered a little more fully.
The President gave as examples claims for compensation made under ss 14 or 16 of the SRC Act as refusing all claims made under other sections, such as
ss 19 and 21, even if they are not fully considered. The sections are very different. Beginning with s 14(1) it is, in effect, the provision that establishes Comcare’s general liability. It provides:“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
A section such as s 16 is one of the provisions making provision for particular types of compensation payable to an employee who has suffered an injury. Section 16(1) provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Sections 19 and 21, to which the President refers in Fuad, are in the same category as s 16. In broad terms, s 19 provides that Comcare is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. Section 21 provides for the amount of that compensation when the employee, who is so incapacitated, retires from employment and receives a lump sum benefit under a superannuation scheme.
The structure of the SRC Act is such that an employee whose claim is refused under s 14 cannot succeed with claims made under the sections providing for particular types of compensation. An employee whose claim is refused under one of the sections providing for particular types of compensation may, however, succeed with a claim made under another section. Using the President’s example of s 16, an employee whose claim for medical expenses, or a particular medical expense, has been refused under s 16 may still be incapacitated for work as a result of an injury and be entitled to compensation under s 19.
Once the structure is recognised, the passage in Fuad relied upon by Mr Snell appears to be too broadly stated. Had it referred only to a refusal of a claim for compensation under s 14 as amounting to a refusal of claims made under other provisions of the SRC Act, it would have been unexceptional. The reference to claims under both ss 14 and 16 as having that effect appears to bring it into conflict with the passage from Australian Postal Corporation v Oudyn,[31] in which Cooper J had said:
[31] [2003] FCA 318; (2003) 73 ALD 659
“Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.”[32]
[32] [2003] FCAFC 318; (2003) 73 ALD 659 at [33]; 667
The principle said to have been established in Fuad was more narrowly drawn by the Full Court of the Federal Court when it decided the later case of Irwin v Military Rehabilitation and Compensation Commission.[33] In doing that, consistency has now been maintained with the passage from the judgment of Cooper J in Australian Postal Corporation v Oudyn. The Full Court said, when speaking of claims made under the Military Rehabilitation and Compensation Act 2004:
[33] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253; Downes, Greenwood and Tracey JJ
“… Where the matter before the Commission for reconsideration is a claim seeking determination of both liability and compensation the Commission, on reconsideration, will have both matters before it and may determine compensation if it decides to accept liability. The refusal of a joint claim is as much a refusal to assess compensation as it is a refusal to accept liability (see Fuad v Telstra Corporation Limited; (2004) 39 AAR 496 at [4]).
The sequential determination of liability and damages or compensation is a well known process in the law. The general rule is that both aspects are heard together even though no entitlement to damages will arise if liability is not established. In appropriate cases the two are separated. Nevertheless the tribunal remains seized of jurisdiction to determine both matters. In our opinion that is the case under the Military Compensation Act ”[34]
[34] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 at [22]-[23]; 579; 258
In light of the earlier judgment of the Full Court of the Federal Court in Lees v Comcare[35] and of Cooper J in Australian Postal Corporation v Oudyn[36] as well as the later narrowing of the statement in Fuad by the Full Court of the Federal Court in Irwin v Military Rehabilitation and Compensation Commission, our understanding of Fuad is that set out in Re Vincent and Military Rehabilitation and Compensation Commission,[37] which we adopt:
[35] [1999] FCA 753; (1999) 56 ALD 84; 29 AAR 350; Wilcox, Branson and Tamberlin JJ
[36] [2003] FCAFC 318; (2003) 73 ALD 659
[37] [2010] AATA 180; (2010) 51 AAR 422 generally and particularly at [71]-[75]; Deputy President Forgie
“… Fuad is not intended to lay down a rule that states that a decision adverse to the claimant on one claim for compensation must necessarily be understood as a decision adverse to all other claims for other types of compensation even though the decision-maker has not addressed those other claims. Reading Fuad and the analysis of Lees in Irwin together, it follows that there must first be an examination of what was actually before the decision-maker. If, for example, information essential to support the claim for a particular type of compensation was not available to the decision-maker and the decision-maker does not address the claim, the conclusion will be that there is no such determination. It will not be that a rejection of another claim under, for example, s 14 will necessarily be a rejection of the other claim under any other section or sections of Part II of the SRC Act.”[38]
[38] [2010] AATA 180; (2010) 51 AAR 422 at [75]; 441
This interpretation of Fuad is also consistent with the approach adopted by Spender J in Ramsay v Australian Postal Corporation[39] when he also had regard to the judgment of Cooper J in Australian Postal Corporation v Oudyn. A delegate of the Australian Postal Corporation (APC), Mr Hoffman, had made an initial determination denying liability in respect of injuries to Mr Ramsay’s right knee and back under s 14(1) of the SRC Act.[40] His determination did not deny liability under s 14 in respect of an injury to his right shoulder. Instead, he made a determination under s 19,[41] as he also did in respect of Mr Ramsay’s right knee and back, that “recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment.” On reconsideration, the reviewing officer in APC had affirmed the “determination to deny liability for injury to right knee, right shoulder and back.’[42] The Tribunal had then affirmed the reviewable decision made by the reviewing officer and had interpreted that as leading to a conclusion that the respondent was no longer liable to pay compensation to Mr Ramsay in respect of his neck, back and knee conditions as well as his right shoulder. In setting aside the Tribunal’s decision, Spender J explained:
[39] [2005] FCA 640; (2005) 147 FCR 39; 41 AAR 1
[40] [2005] FCA 640; (2005) 147 FCR 39; 41 AAR 1 at [8]; 42; 5
[41] “This section applies to an employee who is incapacitated for work as a result of an injury …”: SRC Act, s 19(1).
[42] [2005] FCA 640; (2005) 147 FCR 39 at [39]; 49
“In the reasons for his decision, Mr Hoffman explicitly addressed compensation for the applicant’s back and right knee in respect of s 14(1) of the SRC Act in the last sentence of the relevant paragraph of his determination … His reasons concluded with the general determination for all injuries in respect of s 19. However, there was no corresponding determination that the applicant was no longer entitled to compensation under s 14 for injuries to his right shoulder. In respect of the right shoulder, Mr Hoffman determined only that ‘recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment.’
In my judgment, the Tribunal purported to affirm the reconsideration decision, which in turn purported to affirm a decision of Mr Hoffman that he had not made. For this reason also, its decision must be set aside.”[43]
[43] [2005] FCA 640; (2005) 147 FCR 39 at [48]; 50
In Fuad, the President did not touch upon the subject of whether findings of fact and a review of a decision by one Tribunal could limit consideration by a subsequent Tribunal. We do not see anything in his reasons that suggests that he contemplated taking such a step. It was not relevant to do so in that case. What the President did in that case was to say that all matters put before the decision-maker “as part of a claim under the Act” were also before the Tribunal when reviewing the decision made by the decision-maker on that claim. Identifying what was before the decision-maker was what the President described as “a practical problem”.
The President did not go further to suggest that once the Tribunal had reviewed what was before the decision-maker, its decision and findings of fact could be binding on subsequent Tribunals. To do so would run counter to the authorities that support the conclusion that principles of res judicata or of issue estoppel cannot stand in the way of statutory provisions giving the Tribunal the power to review a decision. The same is true of the Anshun principles of estoppel. We adopt the reasoning that leads to this conclusion in Re Rana and Military Rehabilitation and Compensation Commission.[44]
[44] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385; at [24]-[111]; 603-632; 395-426; Deputy President Forgie
Under the SRC Act, Parliament has conferred a right upon a person to seek review of a reviewable decision made in review of a determination made in respect of a claim made by the person. Each claim that is made leads to a different determination and a different reviewable decision. The Tribunal is given power to review each reviewable decision made under the SRC Act. Parliament has not circumscribed a person’s right to seek review by reference to what the Tribunal has previously decided in earlier cases on earlier reviewable decisions. It has circumscribed a person’s right to seek review of a reviewable decision of which review has previously been sought, undertaken and completed by the Tribunal. If the person were to seek that, the Tribunal’s powers would have been exhausted by the earlier review and it would be said to be functus officio.
Consideration: the limits of the power to dismiss an application where a proceeding is frivolous or vexatious
We adopt the passage from Re Rana and Military Rehabilitation and Compensation Commission in which the principles underlying the power and the basis on which it should be exercised were considered. They are set out at [112] to [118] of the reasons.[45] We would, however, add a little to that passage.
[45] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385 at [112]-[118]; 632-635; 426-429
28. We want to emphasise that the words “frivolous” and “vexatious” do not carry their ordinary everyday meanings under s 42B. In its everyday use, the word “frivolous” suggests “silly” and “trifling or unimportant”[46] but an applicant may well regard the matter as anything but silly or trifling or unimportant. The same is true of “vexatious”. An applicant may see the application as anything but “annoying or troublesome”[47] and yet that is the way in which that word is used everyday.
[46] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[47] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
29. As Gray J explained in Pitt v OneSteel Reinforcing Pty Limited,[48] the words have come to have other meanings when used in the law. He explained that, when a court hears a civil proceeding, “… the word ‘frivolous’, especially when coupled with ‘vexatious’, is a technical legal term, in substance meaning the absence of a cause of action.”[49] In JF Keir Pty Limited v Sparks,[50] Graham J put it a little differently saying that “An action can be stayed as vexatious ‘if it can really lead to no possible good’.”[51]
30. In the context of an application in the Tribunal, we think that Gray J’s statement must be slightly modified. It seems to us that use of the power in s 42B should only come into consideration if the application has been properly made. In other words, the Tribunal should only consider its use if the Tribunal has the power or jurisdiction to review the decision of which the applicant seeks review. To use the words of the courts, there is a “cause of action”. If the Tribunal does not have power or jurisdiction to review the decision, it simply dismisses the application on that basis. There is no need to take the matter further and no basis on which to exercise the power under s 42B.
31. The reason for the difference lies in the fact that the Tribunal does not assess whether there is a cause of action between two parties based on their claims, counterclaims and defences as is the case in a court. Instead, the Tribunal assesses at the outset in every case whether it has power or jurisdiction to review the decision. It makes that assessment against constant and objective criteria that are found in s 25 of the AAT Act and the particular provisions in the enactment conferring that power or jurisdiction; in this case, s 64 of the SRC Act. Those criteria apply to all parties and, unlike a civil proceeding in a court, are not dependent upon the manner in which an applicant frames the application.
32. The distinction that we draw in the use of the powers of dismissal and of that under s 42B is illustrated in the judgment of Sundberg J in Director General Security v Sultan[52] (Sultan). Mr Sultan had applied for a protection visa but had been refused on the basis that, although he had a well-founded fear of persecution, he was a risk to Australia’s national security. He applied to the Tribunal for review of the decision. Sundberg J decided that the Tribunal could review the decision in so far as it relied on one of the Articles of the Refugees Convention but could not review the decision in so far as it was based on Mr Sultan’s failure to satisfy a public interest criterion. That public interest criterion was criterion 4002 to the effect that he had been assessed by competent Australian authorities to be, either directly or indirectly, a risk to Australian national security. His Honour remitted the application to the Tribunal with a direction that the application be dismissed under s 42B of the AAT Act as frivolous or vexatious.
33. What work does this leave s 42B to do? The answer to that lies partly in the explanation given above by Graham J. It will be stayed if it can really lead to no possible good. This was illustrated by the decision of Sultan and by the earlier decision of the Tribunal in Re Williams and Australian Electoral Commission and The Greens (party joined)[53] (Williams). The basis for the Tribunal’s exercising the power was that Mr Williams would not be able to achieve the result he sought whether he were successful or not. Neither Mr Sultan nor Mr Williams could benefit from the review even if the Tribunal were to make findings and to exercise all of its powers in their favour. They were, however, applications made in good faith but without understanding the restrictions that the law imposed on the Tribunal’s power to achieve the outcomes which Mr Sulan and Mr Williams sought.
[48] [2008] FCA 923
[49] [2008] FCA 923 at [9]
[50] [2008] FCA 611
[51] [2008] FCA 611 at [62]
[52] [1998] FCA 1548; (1998) 90 FCR 334
[53] [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467; Mathews, President, Hill and Beaumont JJ. Presidential Members
The way in which the courts have used similar powers to dismiss applications also suggest that the power given to the Tribunal by s 42B of the AAT Act can be used in other situations. Those other ways were considered in Attorney-General (Vic) v Wentworth[54] (Wentworth) for example, when Roden J considered
[54] (1988) 14 NSWLR 481
s 84(1) of the Supreme Court Act 1970. That section gives the Supreme Court of New South Wales power to make certain orders when a person “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings …” whether in that Court or an inferior court and whether against the same person or different persons. This is a different basis from that underlying the power given in s 42B and yet there is one common element; that of “vexatious” proceedings. When viewing authorities regarding such proceedings, Roden J noted that “… the courts have tended to make ad hoc decisions, rather than produce definitive statements ….”.[55] The reason for that lies in the fact that:
[55] (1988) 14 NSWLR 481 at 488
“… Precision in description or definition is hardly required, within the context of the Court acting in the exercise of its inherent jurisdiction to protect its own process from any form of abuse. It is more important that the conduct be recognised, than that it be defined.”[56]
[56] (1988) 14 NSWLR 481 at 488
35. Recognition of the conduct comes not from “… the manner in which they are conducted … but whether, having regard to their nature and the substance of them, they properly bear that description. …”.[57] Whether they have that description is an objective test. To this point, the principles set out by Roden J would seem to be directly applicable to the power given to the Tribunal under s 42B.
[57] Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 485 per Yeldham J
Roden J then concluded that litigation may properly be regarded as vexatious for present purposes on either subjective or objective grounds if:
“1. … they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. … they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. … irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”[58]
[58] (1988) 14 NSWLR 481 at 491
37. It is doubtful whether any of these grounds is relevant in considering the discretionary matters that are relevant to the exercise of the power under s 42B of the AAT Act. That doubt arises from the fact that Parliament prescribes the circumstances and the decisions in respect of which an application for review may be made to the Tribunal. In that way, Parliament has already provided the filter for those applications that may be made to the Tribunal. There is no such filter in the courts for a person may institute a proceeding against another as he, she or it sees fit. In the Tribunal, there is no room to add a requirement to that filter that an applicant must have one motive or another or one purpose or another. To suggest that the Tribunal could dismiss an application under s 42B on either of the first two grounds would be to add such a requirement. That would cut across what Parliament has prescribed and so the first two grounds cannot be relevant in considering the exercise of the power under s 42B.
38. We have a cautious approach in relation to the third ground identified by Roden J in Wentworth. On the one hand, Parliament has given a person the right to make an application to the Tribunal. It has given that right regardless of whether or not that application has reasonable prospects of success. Dismissal of the application on the basis of an assessment of the prospects of the success of the application does not sit easily with a right to bring an application in the first place. Nevertheless, the power exists but we note that it is often the case that attempts to use the power under
s 42B can well lead to more prolonged proceedings and to greater dissatisfaction on the part of an applicant than if the matter were set down to be heard on its merits.39. A hearing on the merits gives an applicant an opportunity to present a case. Even if the Tribunal affirms the decision under review, that opportunity and the Tribunal’s reasons for doing so are more likely to leave an applicant feeling that he or she has done all that he or she could and, perhaps, with an understanding why the decision is as it is. Summary dismissal does not give an applicant an opportunity to present a case to the same extent. He or she is more likely to feel dissatisfied if the application is dismissed. That dissatisfaction can spill over and affect the ongoing relationship between the applicant and the decision-maker or agency. It may lead to complaints to the Ombudsman. It may lead to feelings that a person’s point of view is not worthy enough to be listened to properly. From a decision-maker’s or agency’s point of view, what might appear to be a speedy resolution of a matter for the Tribunal may not be an efficient outcome in the long term. That will be even more disappointing if the application and evidence is such that a full merits review of the decision would have taken very little, if any, longer to hear and resolve than an application under s 42B.
40. Considerations of those sorts are not relevant when a court exercises a dismissal power of the sort given by s 42B for it is concerned only with the parties and the merits of the matter between them. It is not concerned with ongoing relationships. At one level, the Tribunal’s concerns are the same but at another they are broader. Unlike the courts, the Tribunal falls squarely within the Executive arm of government. Its functions are one set of functions among those making up the continuum of administrative decision-making. A “good” experience at the Tribunal involving both an applicant and a decision-maker on the one hand and the Tribunal on the other can affect all aspects of that continuum even if the particular decision that results does not favour the applicant.
In Wentworth, Roden J referred to a judgment of Yeldham J in Hunters Hill Municipal Council v Pedler[59] when he considered a number of English authorities and concluded:
[59] [1976] 1 NSWLR 478
“… While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form.”[60]
[60] [1976] 1 NSWLR 478 at 488
In deciding whether this is a ground that could be equally applicable to the exercise of the power under s 42B, we are mindful of what we have already emphasised: Parliament has given a person a right to apply to the Tribunal. That right to apply follows upon an agency’s having made a decision and that decision will have followed from the person’s making a claim or application of some sort. On occasion, Parliament has limited multiple claims or applications or established minimum amounts of time that must separate one claim or application submitted by a person from the next. The Veterans’ Entitlements Act 1986 (VE Act) provides an example of the latter. Section 14(5) of the VE Act provides:
“Where:
(a) a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and
(b) the claim has not been finally determined;
the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease.”
43. Generally, there are no such limitations upon claims and so upon the decisions that may be made. For the reasons given in Re Rana and Military Rehabilitation and Compensation Commission,[61] which we adopt, the principles of estoppel have no place in the Tribunal. That means that, provided the Tribunal is being asked to review a decision that it has not previously reviewed, it can review that decision even though it has reviewed a decision in precisely the same terms before and that decision has been made on a claim made in precisely the same terms as an earlier claim.
44. Estoppel does not have a place but it may be that s 42B of the AAT Act has a place for the reasons given by Yeldham J in Hunters Hill Municipal Council v Pedler. That is to say, it may be that the form of what is sought to be reviewed is a new decision but the substance of what is sought to be reviewed is the same outcome from a claim for the same benefit or entitlement in the same circumstances. If, in substance, what is sought to be reviewed is an attempt to re-litigate what has already been decided, there may be room for the exercise of the power conferred by s 42B of the AAT Act.
45. This basis for the exercise of a power to dismiss an application on the basis of its being frivolous or vexatious is different from that described by Gray J in Pitt v OneSteel Reinforcing Pty Limited in that an applicant has a “cause of action”, so to speak, in the guise of a valid application to review a decision that the Tribunal can review. It is more closely aligned with the basis put forward by Graham J in JF Keir Pty Limited v Sparks. His Honour’s basis was that the application “… can really lead to no possible good”. True it is that a second or third Tribunal might come to a decision different from the first or the second. In that sense, it is possible that there will be a “good” outcome for an applicant but it seems to us that what possible “good” may come from an application must be assessed against considerations far broader than those pertaining merely to the applicant seeking review. They must be assessed against considerations relating to the scheme of merits review and the place that it occupies in the system of public administration operating in the Commonwealth.
46. When those wider considerations are taken into account, regard must be had to s 44(1) of the AAT Act, which provides for an appeal to the Federal Court from a decision of the Tribunal but only on a question of law. Section 39B of the Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977 permit a party to seek judicial review of the Tribunal’s decision. All three of those avenues are means by which judicial scrutiny of the decision can be sought by either the applicant or the decision-maker. They are avenues that may be travelled by the parties themselves, and only the parties, just as they may in a civil proceeding in a court.
47. The Tribunal, however, is part of the Executive arm of government and must have in mind matters relevant not only to the parties themselves but to the wider interests of public administration. Those wider interests require the orderly resolution of matters and their finalisation. Re-agitation of the same issues arising from the same outcome from a claim for the same benefit or entitlement in the same circumstances diverts resources from the consideration of claims brought by others. It may lead to distortions in the consistency of decision-making in the sense that the second or third claims and ultimate review by the Tribunal would bring a result that would not have occurred at the time the first claim was made and cannot be replicated for others who have not persisted after the first.
48. Given these wider considerations, it seems to us that the power given by s 42B of the AAT Act may be exercised if we find that, in substance, the substance of what is sought to be reviewed is the same outcome from a claim for the same benefit or entitlement in the same circumstances. We emphasise that it may be exercised for the power under s 42B is discretionary. If it is to be exercised on this basis, it is imperative that the substance of the decision under review and the factual basis on which it was made are the same. New evidence would mean that they are not the same.
[61] [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 385; at [24]-[111]; 603-632; 395-426
Finally, we pay heed to the note of caution sounded by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.):[62]
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. …”[63]
[62] [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253
[63] [1964] HCA 69; (1964) 112 CLR 125; 38 ALJR 253 at 128-129; 254
Consideration: can, and if so should, the Tribunal exercise the power under s 42B?
This is a question that was addressed in Re Rana and Military Rehabilitation and Compensation Commission
when one of us concluded that the power under s 42B of the AAT Act should not be exercised. That really should be an end of the matter. The parties then proceeded to a full hearing of Mr Rana’s application on the basis that the Tribunal would not dismiss his application under
s 42B of the AAT Act. To make a further application after the evidence has been presented seems to us to be too late in the proceedings. Whether in time, money or emotion, the parties have incurred all the expenses that they are going to incur in relation to the full hearing. Even if it transpires that the decision of which Mr Rana seeks review is, in substance, the same outcome from a claim for the same entitlement in the same circumstances, that will only become apparent from the evidence that has been led in the substantive hearing. It was not apparent from the evidence that was available preceding the hearing.
Considerations relating to public administration do not hold the same sway when the application comes so late in the proceedings. If they required diversion, the agency’s resources have already been diverted from the resolution of claims made by others. The costs have already been incurred. As for consistency of outcome, considerations of resolution of the individual matter become more weighty at this late stage than a potential blip in consistency of outcome when regard is had to the overall pattern of the MRCC’s decisions.
For these reasons, we decline to exercise the power to dismiss
Mr Rana’s application and do so regardless of whether we consider it to be frivolous or vexatious in the sense in which we understand those terms to be used.
For the sake of completeness, we will, however, consider whether the decision of which Mr Rana seeks review is, in substance, the same outcome from a claim for the same entitlement in the same circumstances as he has made previously.
Mr Snell asks us to characterise the claim that was before the primary decision-maker in Re SAN and Comcare by reference to [1] and [3] of the Tribunal’s reasons. In our view, only [1] describes the claim. Paragraph [3] refers to Mr Rana’s letter to Comcare when applying for review of the primary decision-maker’s decision. It does not reflect on the proper characterisation of the initial claim which was set out in [3] and confirmed in [5] when the Tribunal said:
“[1] … On 28 August 2001, the applicant made a claim against the respondent for rehabilitation and compensation for ‘psychotic paranoid reaction’ resulting in a ‘mental condition’ attributed to ‘emotional and physical harassment by the other defence force members at Adelaide, Kapooka and Bandiana’ during his service with the Australian Army: T4, p 42. He subsequently asserted that that ‘correct diagnosis’ should have been ‘post-traumatic stress disorder with features of paranoid pscizonphrenia (sic): T6.
…
[5] At a directions hearing on 2 July 2003, Deputy Presidents Forgie and Jarvis decided that this tribunal had jurisdiction to hear the application for review of the respondent’s decision to refuse the applicant’s claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder (PTSD) on the basis that the 1988 tribunal decision[[64]] did not determine the applicant’s entitlement to compensation for these two conditions. …”[65]
[64] Re R and Commonwealth [1988] AATA 133; (1988) 15 ALD 167
[65] [2004] AATA 445; (2004) 81 ALD 149 at [1] and [5]; 152-153
The claim was for psychotic paranoid reaction and for post traumatic stress disorder (PTSD) and the decision made by the Tribunal reflected the claim. It decided to set aside Comcare’s decision that Mr Rana was not entitled to make the claim and substituted a decision that Mr Rana was not entitled to compensation under the SRC Act in respect of paranoid psychosis or PTSD.[66] As is apparent from the extract I have set out from the Tribunal’s reasons, Mr Rana gave his condition other names. The Tribunal also reframed his claim for psychotic paranoid reaction into terms of paranoid psychosis. It did so on the basis of the evidence given by two psychiatrists that the reference to "paranoid psychotic reaction" described or embraced a condition identified as paranoid psychosis.[67]
[66] [2004] AATA 445; (2004) 81 ALD 149 at [170]; 193
[67] [2004] AATA 445; (2004) 81 ALD 149 at [5]; 153
Mr Rana’s claim in the earlier proceedings, Re Mr R and Commonwealth of Australia was summarised by the Tribunal as a claim for “… a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment with the Australian Army.”[68] The Tribunal’s decision was framed in terms of personality disorder, adjustment disorder and reactive depression and found that Mr Rana’s Army service had not caused his personality disorder but had aggravated his adjustment disorder and his reactive depression for a period.[69]
[68] [1988] AATA 133; (1988) 15 ALD 167 at [3]; 168
[69] [1988] AATA 133; (1988) 15 ALD 167 at [103]-[104]; 168
In both Re Mr R and Commonwealth of Australia and Re San and Comcare, Mr Rana relied on events he alleged had occurred during his service in the Australian Army. In the earlier of those cases, the Tribunal referred to his alleging that:
“… he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. …”[70]
In the later of those cases, the Tribunal also noted that Mr Rana had relied on events related to alleged sexual and physical assaults, racial taunts, harassment and bullying, stressful working conditions and humiliation and frustration. They are detailed in the summary of Mr Rana’s evidence at [91] to [100] of the Tribunal’s decision.[71]
[70] [1988] AATA 133; (1988) 15 ALD 167 at [3]; 168
[71] [2004] AATA 445; (2004) 81 ALD 149 at [91]-[100]; 169-173
Mr Snell submitted that it is clear from the claims and the Tribunal’s subsequent decisions on review that:
“It is now clear that in the previous proceedings the Applicant has already sought compensation for psychiatric conditions included amongst which was a condition answering the description of the term ‘paranoid schizophrenia’ as that term is now employed under DSMIV, (though not always then so described by either the claimant, the medical practitioners who gave evidence about it or by the Tribunal itself). …”[72]
[72] Respondent’s submissions at [2.12]
We were not given a copy of the passage from DSM-IV – the Diagnostic and Statistical Manual of Mental Disorders[73] – to which Mr Snell referred. Without wishing to reproduce extensive passages from DSM-IV, we note that a chapter is entitled “Schizophrenia and Other Psychotic Disorders”. The disorders referred to in the chapter are all characterised by having psychotic symptoms as the defining feature. Those symptoms may be among those that lead to a diagnosis of schizophrenia but they could also be among those leading to a diagnosis of a Delusional Disorder. Other disorders that may present with features that are psychotic but not defining are dealt with elsewhere in DSM-IV.[74] Psychotic features may, for example, be a specifier in a major depressive disorder but such a disorder is the subject of the chapter entitled “Mood Disorders” and considered quite separately from schizophrenia. Adjustment disorders are the subject of a separate chapter by that name and, again, are considered quite separately from schizophrenia. A subtype is an adjustment disorder with depressed mood. Personality disorders are the subject of a separate chapter in DSM-IV and paranoid personality disorders come under that chapter.
[73] 4th edition, 2005
[74] DSM-IV at 273
The diagnosis of mental disorders is clearly a complex task. It is a matter on which the Tribunal must frequently make findings and come to decisions but it is an area in which it relies on expert evidence. In the absence of evidence specifically directed to the subject, we are not prepared to find that the conditions of adjustment disorder and reactive depression and paranoid psychosis and PTSD, for which Mr Rana has previously claimed compensation, are encompassed or the same as the condition of schizophrenia or one of the subtypes of schizophrenia described in DSM-IV.
It follows that, even though the claim may arise from the same circumstances, we do not consider that we are being asked to review a decision where the Tribunal has previously reviewed a decision having the same outcome and made on a claim for the same benefit or entitlement. Therefore, we do not consider that there is any basis on which we would consider it appropriate to exercise the power under s 42B. Mr Rana’s application in this matter is not frivolous or vexatious.
THE SRC ACT AS AMENDED BUT AT WHAT DATE?
In Re Rana and Military Rehabilitation and Compensation Commission,[75] Deputy President Forgie decided that the SRC Act applied rather than the Military Rehabilitation and Compensation Act 2004. Subject to exceptions that are not relevant in this case, s 14(1) of the SRC Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
[75] [2009] AATA 361
Until its amendment with effect from 13 April 2007, s 4(1) defined an “injury” to mean:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employees’ employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
A “disease” was defined to mean:
“(a) any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”[76]
[76] SRC Act, s 4(1)
Over the years, the SRC Act has been amended. Mr Rana drew our attention to the addition of s 5B, defining the word “disease” and the consequential amendment of s 4(1) of the SRC Act to include a provision that the word “disease has the meaning given by section 5B.” Section 5B and the consequential amendments were added with effect from 13 April 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Amendment Act).[77]
[77] 2007 Amendment Act, Act No. 54 of 2007, s 3, Schedule 1, Part 1, items 5 and 11 and s 2(1), item 2.
Mr Snell submitted that the amendments were not relevant as the conditions for which Mr Rana seeks compensation predated them. Mr Rana’s position was that the relevant date to which I must have regard is the date of diagnosis. He acknowledged, though, that those diagnoses had been made in 2005.
We think that the answer lies in the 2007 Amendment Act itself. The transitional provisions are found in item 41 of Part 2 of Schedule 1 to the 2007 Amendment Act. Item 41(1) provides that the definition of “disease” in the SRC Act as amended:
“applies in relation to:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that the employee suffers on or after the day after this Act receives the Royal Assent.”
For the purposes of that subitem, “an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988,”[78] Section 7(4) of the SRC Act provides:
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
[78] 2007 Amendment Act, s 3, Schedule 1, Part 2, item 41(2)
The effect of s 7(4) is that the crucial dates in determining whether the SRC Act in its amended or unamended form applies depends not on the date of diagnosis but on the earlier of the dates on which Mr Rana either sought treatment for them or on which he was first incapacitated or impaired as a result of them. Given that the conditions were diagnosed during or before 2005, Mr Rana clearly sought treatment for them or was incapacitated or impaired as a result of them before the 2007 Amendment Act came into operation. Therefore, we have had regard to the law as it existed before the amendments came into operation.
STATEMENTS OF PRINCIPLE UNDER VETERANS’ ENTITLEMENTS ACT 1986 NOT RELEVANT
Mr Rana submitted that the Statements of Principle (SoPs) made by the Repatriation Medical Authority (RMA) under the VE Act are a useful guide. We have decided that we cannot have any regard to the SoPs in these proceedings.
The RMA was established to determine SoPs for the purposes of the VE Act and the MRC Act.[79] If the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to one or more of four types of service rendered by a veteran or by members of the Forces, the Authority must determine a SoP in respect of that kind of injury, disease or death. The four types of service are operational service, peacekeeping service rendered as a member of a Peacekeeping Force, hazardous service rendered by members of the Forces and warlike or non-warlike service.[80] Each of those types of service is defined in the VE Act. The SoP sets out the factors that must, as a minimum exist and which of those factors must be related to service rendered by a person before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of their service.[81]
[79] VE Act, s 196B(1)
[80] The types of service are defined at ss 5C(1) and 6 to 6F, 5Q(1A) and 68(1), 5Q(1A), 68(1) and 120(7) and 5C(1) of the VE Act respectively.
[81] VE Act, s 196B(2)
It is immediately apparent from the description that, quite apart from whether Mr Rana has rendered one or other of the specified types of service, there are three reasons why SoPs cannot apply. First, they may only be used for purposes under the VE Act and the MRC Act. Second, even if they were not so limited, they address a question that is different from the one that we must answer. Taking the VE Act as an example, SoPs are one element in the standard of proof prescribed by s 120 of that enactment. Where a claim for a pension in respect of incapacity from an injury or a disease relating to operational service rendered by a veteran is made, the Commission, and so the Tribunal, is required to decide that the injury or disease was a war-caused injury or disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”[82] The Commission must be satisfied on that basis if, after consideration of the whole of the material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[83] Reasonableness of the hypothesis must be assessed by reference to SoPs in accordance with s 120A.
[82] VE Act, s 120(1)
[83] VE Act, s 120(3)
The third reason lies in the very different standards of proof that apply when making decisions under the SRC Act and those under the VE Act when regard must be had to the SoPs. Under the VE Act, the standard of proof, and so the questions that must be asked as a consequence, is very different from the question we must address under the SRC Act. Like the VE Act, the SRC Act provides for determinations and decisions to be made under it in response to claims made for benefits or entitlements provided under it. Unlike the VE Act, the SRC Act does not expressly provide for the standard by which Comcare and the MRCC must decide whether or not the person making the claim meets all of the criteria that must be met in order to receive those benefits or entitlements. The SRC Act does not tell the Tribunal what standard it must use although the AAT Act does tell it that it is not bound by the rules of evidence and may inform itself on any matter as it thinks fit.[84] Giving the Tribunal that liberty does not provide any guidance as to the standard it must apply.
[84] AAT Act, s 33(1)(c)
Guidance for both the Tribunal and the primary decision-makers comes from the general law. Goldberg J has said that it is appropriate in such cases for the decision-maker “… to apply language akin to the civil standard of proof to determine its level of satisfaction.”[85] Language of that sort is the language of “balance of probabilities”.[86] When certain allegations are made, that language must be understood in light of the principles considered in cases such as Briginshaw v Briginshaw[87] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[88] but this is not such a case.
[85] Christine Lodowski v Comcare [1998] FCA 158; Goldberg J
[86] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; 67 ALJR 170 at [2]; 449-450; 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ
[87] (1938) 60 CLR 336 at 362 per Dixon J
[88] [1992] HCA 66; (1992) 110 ALR 449; 67 ALJR 170 (1992) at [2]-[4]; 450; 170-171
We will return to the civil standard of proof but, for the moment, it is enough to note that it is a different standard from that adopted in relation to specified circumstances under the VE Act. The standard of proof under the VE Act limits the matters to which the Tribunal can have regard in reaching a decision on a certain aspect. That under the SRC Act does not. Instead, the Tribunal may inform itself as it thinks fit but its liberty to do so is necessarily qualified by the requirement that it rely only on material that is probative of a matter in issue. The SoPs have been drafted in order to comply with the VE Act but, if presented as evidence in the Tribunal, they would not be regarded as probative in proceedings under the SRC Act. That would follow from the fact that the factors they set out are, in reality, no more than bare assertions resting on the authority of the RMA. No doubt the RMA has made the SoPs after careful consideration of medical and scientific evidence but the basis on which they are made cannot be tested by cross-examination by the parties or questioning by the Tribunal. They do not provide material on which the Tribunal can be satisfied of the fundamental soundness of the criteria they establish. The principles referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles[89] in the context of a trial in a court apply equally to the Tribunal.[90]
[89] [2001] NSWCA 305; (2001) 52 NSWLR 705; Priestley, Powell and Heydon JJA
[90] “There is no doubt about Professor Morton’s authority, experience, qualifications and skill. It is also the case that Professor Morton’s report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton’s report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved?
For these three reasons, SoPs can have no place in proceedings under the SRC Act as it is presently drafted and we declined to have regard to them at the hearing.
EXCLUSION OF THE REPORT OF THE MILITARY POLICE
The principles
On the first day of the hearing, Mr Rana wanted to tender a report by the Military Police regarding its investigation of certain allegations he had made regarding incidents that had occurred during his service in the Army. He submitted that it was relevant to the issues we have to decide. Ms Bean, who was then the MRCC’s counsel, opposed its being admitted into evidence in light of the directions that had been made on an earlier occasion.
Those directions had been made in Re Rana and Military Rehabilitation and Compensation Commission when Deputy President Forgie decided that the Tribunal should have regard to the findings of fact set out by earlier Tribunals presided over by Deputy Presidents Layton and Jarvis respectively. She would not permit Mr Rana to challenge the findings that those Tribunals had made regarding the circumstances of his service in the Army. She would not permit him to challenge the findings they had made regarding the compensability of the conditions for which he had previously been denied compensation and on the basis of which they had affirmed the reviewable decisions before them. Any evidence that was to be given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions now claimed by Mr Rana. On those issues, she directed that:
“1. …
(1)…
(2)under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a)inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re “SAN” and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b)not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
2. direct that:
(1)by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2)by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
3. give the parties liberty to apply.”
Deputy President Jarvis subsequently made a direction varying this direction. It appears on the file and is dated 22 August 2008. In so far as it relates to these proceedings, reads:
“THE TRIBUNAL DIRECTS that:
1.…
2.in the event that the applicant
(a)requires the hearing of these proceedings to proceed other than on the basis of the decision of this Tribunal in paragraph 1(2)(a) of the decision of Deputy President Forgie made on 1 July 2008; or
(b)…
the applicant must, within 14 days of the receipt of a further medical report proposed to be obtained from Dr Jha, apply for further directions;
3.…
4. …”
Although the discussion at the hearing proceeded on the basis that Mr Rana had 14 days from the date of Deputy President Jarvis’s direction, it is clear from his direction that he had 14 days from the date on which Dr Bal Jha’s further report was obtained. Dr Jha’s further report is dated 8 September 2008 and was received in the Tribunal on 9 September 2008. Although there is no note on the file, it appears that copies of the report, addressed to the Tribunal, were sent to Mr Rana and the MRCC’s solicitors at or about that time. On 15 September 2008, the Deputy District Registrar was dealing with summonsed documents and the scheduling of witnesses whom it is noted the Tribunal had agreed to fund. He wrote an email to the MRCC’s solicitors to the effect that he had, on that day, spoken with Mr Rana “… who has agreed that he now only intends to call Dr Jha and Dr Miller and he will not pursue his other witnesses as previously requested. …”.
Clearly, Mr Rana was thinking of his matter at this time but there is no mention of any matter relating to the circumstances and events occurring during his employment with the Army. There is no mention in the file of his raising those circumstances or of his wishing to take up Deputy President Jarvis’s invitation.
Despite that, we considered whether we should permit Mr Rana to rely on the report of the Military Police. We have done so for two reasons. First, directions made under s 33(1) of the AAT Act can clearly be varied or revoked at any time by virtue of s 33(3). Second, the invitation that Deputy President Jarvis extended to Mr Rana to apply to the Tribunal for further directions might have unwittingly misled him. Although setting a time frame within which to do so, the invitation was framed in terms of if Mr Rana “requires the hearing of these proceedings to proceed other than on the basis of the decision of this Tribunal in paragraph 1(2)(a) of the decision of Deputy President Forgie made on 1 July 2008”. The word “requires” might suggest to a reader that Mr Rana is the arbiter of the way in which the Tribunal may proceed because it will have regard to what he “requires”. We are sure that Deputy President Jarvis did not intend to convey that suggestion but it is unfortunate for it is clear to us that Mr Rana feels that we are denying his right to lead all material that he considers relevant.
We are certainly denying him an opportunity to present all material that he considers relevant but we are not denying his “right” to do so. He has no right of the sort he describes. That he does not do so is clear from that fact we do not have a duty to receive all of the material that he considers relevant. Our duty lies in the AAT Act and the SRC Act and in the nature of the task that those enactments require us to perform. His right, correlative to our duty, is that we perform the task that we are required to do under the AAT Act and the SRC Act.
In considering what our task is, we have had regard to Mr Rana’s reference to the observations of Lord Diplock in Hunter v Chief Constable of West Midlands.[91] Lord Diplock’s speech was based on the proposition that there is a “… general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiff by criminal courts of competent jurisdiction should be treated as an abuse of the process of the court.”[92] His Lordship said that the test for permitting the admission of fresh evidence to challenge that general rule had to be either that the fresh evidence would entirely change the aspect of the case or that it would probably have an important influence on the result of the case even though it need not be decisive.[93]
[91] [1982] AC 529
[92] [1982] AC 529 at 545 per Lord Diplock, with whom Lords Russell of Killowen, Keith of Kinkel, Roskill and Brandon of Oakbrook agreed
[93] [1982] AC 529 at 545
From his submissions, especially at 12 and 35-37, we understand
Mr Rana to say that the standard prescribed by Lord Diplock was too high and that we should have regard instead to the standard established by the High Court in Commonwealth Bank of Australia v Quade.[94] The High Court was concerned not with a case of civil proceedings attempting to attack a verdict previously reached in a criminal trial but with an appeal from a judgment reached in a civil proceeding. Following the trial, it came to light that the respondent Bank had not complied with a pre-trial discovery order in that it had not disclosed a considerable number of documents which were in its possession and which were relevant to the trial. The High Court said that:
“… In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, … reconciliation of ‘the demands of justice’ and the ‘policy’ that there should be an end to litigation at least prima facie … dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.
The position is, however, different in a case such as the present where the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his possession or under his control. The application to that category of case of the general rule that a new trial should only be ordered on the ground of fresh evidence if it is ‘almost certain’ …or ‘reasonably clear’ … that the opposite result would have been produced if the evidence had been available at the first trial would, particularly where the failure was deliberate or remains unexplained, serve neither the demands of justice in the individual case nor the public interest in the administration of justice generally. In so far as the demands of justice in the individual case are concerned, it would cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party's misconduct. In so far as the public interest in the administration of justice generally is concerned, it would be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalize, failure to comply with pre-trial orders and procedural requirements.
It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court’s assessment of what will best serve the interests of justice, ‘either particularly in relation to the parties or generally in relation to the administration of justice’ …. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party …, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is ‘almost certain’ or ‘reasonably clear’ that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.”[95]
[94] (1991) 102 ALR 487, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ
[95] (1991) 102 ALR 487 at 490-491
Severe trauma or critical care illnesses may lead to a condition known as diabetes of stress. Such factors may temporarily unmask the latent disposition to diabetes in a genetically-predisposed person. The patient becomes overtly diabetic for the period of the psychological stress and then usually reverts to a non-diabetic or latent diabetic state when the extreme stress is removed. As for psychosocial stress, Dr Stevenson said:
“Psychosocial stress and its effect on diabetes are subtler and more speculative. It may be that diabetic control temporarily worsens during unusual severe external stressors. The physiological stress is obviously less than in major medical disease. Compliance and monitoring of diabetes may be affected. However, even considerable social stress in the 1980s is not a plausible risk factor for the development of chronic long-term diabetes in the next century. …”[340]
[340] Exhibit 6 at 7
As for the contribution of drugs to Mr Rana’s diabetes mellitus,
Dr Stevenson said:“There have been claims that the newer generation of antipsychotic agents, the so-called atypical antipsychotics, have the potential of unmasking or inducing diabetes in susceptible persons. The evidence is complex and to some degree contradictory, but there does appear to be an effect relevant particularly to some of the agents. It has to be interpreted cautiously because, as I have stated above, diabetes is 2-4 times more common in schizophrenics anyhow.
At least one report from Buffalo, suggested that treating schizophrenics effectively with modern agents reduced and not increased the incidence of diabetes. However, most studies would suggest a minor increase.
A recent review by Smith et. al. ‘First versus second generation antipsychotics and risk of diabetes in schizophrenia’: systematic review and meta-analysis, Journal of Psychiatry (2008) 192: 406, concluded that the increased prevalence of diabetes and schizophrenia is partly attributable to antipsychotic treatment, in particular second generation antipsychotics. They found the overall relative risk of diabetes in patients prescribed one of the second generation antipsychotics was 1.32. [This number indicates in fact a modest elevation and means medication may be relevant in about a third of new cases. From a causative point of view this means that a person taking an antipsychotic agent who develops diabetes is about twice as likely to develop the diabetes because of constitutional factors, as because of any effect of the agent.]
Because of the very strong underlying genetic basis of type 2 diabetes, the effect of a pharmacological agent seems at worst to bring forward or unmask genetically-inevitable diabetes rather than to cause diabetes de novo in a person who otherwise would not have suffered it.
Professor Joseph Proietta in a review on Diabetes and antipsychotic drugs in the Australian Prescriber in 2004 noted considerable variations in the risk of elevating diabetes. In Risperidone the relative risk was minimally raised 1.02. The risk with Olanzapine was significantly raised 4-fold. This however has not been the conclusion of all studies. A recent review by Lambert et. al. in the American Journal of Epidemiology, Vol. 164, ‘Diabetes risk associated with the use of Olanzapine, Quatiapine and Risperidone in veterans’ health administration patients with schizophrenia’, concluded diabetes risks were higher in patients under the age of 50 years. For all three second generation antipsychotic agents the hazard ratio was 1.6-1.7. There were no significant differences amongst the three second generation antipsychotics. …
It is of interest that in those studies most cases of either Quetiapine-associated or Risperidone-associated hypoglycaemia appeared within 3-6 months. Also, the major postulated factor seems to be the precipitation of weight gain – not relevant here.
Anecdotal evidence suggests Olanzapine is the agent with the highest risk of unmasking diabetes. Olanzapine does not actually seem to have been ingested by Mr Rana. So far as I could tell, it was offered once but declined.
So in summary and specific, the evidence is that some of the second generation antipsychotic agents have relatively weak but significant effects in the potential unmasking of diabetes in susceptible patients. This seems to be often associated with weight gain – not relevant here. It seems generally to occur in the first 3-6 months of prescription of the agent (this does not seem to be the case here). It probably does not precipitate diabetes in someone who would not otherwise have got it, but it may well unmask or bring forward diabetes mellitus by perhaps 3-6 months.
I understand there is a 7-year interval between the initial prescription of antipsychotic agents and the subsequent diabetes in this case, so medication is probably not a factor here.’[341]
[341] Exhibit 6 at 7-9
The footnote that I have omitted from this extract of Dr Stevenson’s report referred to the study by Messrs Lambert and others entitled “Diabetes Risk Associated with Use of Olanzapine, Quetiapine, and Risperidone in Veterans Health Administration Patients with Schizophrenia – Lambert et al. 164 (7): 672 – American Journal of Epidemiolgy” (Lambert report)[342] and reads:
“Assuming that the observed associations are causal, approximately one third of new cases of diabetes may be attributed to use of olanzapine, risperidone and quetiapine in patients taking these medications. Average length of follow-up was also similar (just over 1 year). …”[343]
[342] Exhibit E
[343] Exhibit 6 at 8
In his oral evidence, Dr Stevenson expanded upon the report by Messrs Smith and others entitled “First versus second generation antipsychotics and risk for diabetes in schizophrenia” (Smith report):
“… The Smith review is a meta analysis in the journal of psychiatry and that’s the one I quote at the top of page 8 because it’s, I suppose, the newest, the biggest and it ties things together mostly. That showed – that concluded that there was an association but it was weak and the relative risk was 1.32 so this is an increase by a factor of about one-third. This means that, you know, if you compare that with, say, a risk of about two, that means it is a toss up in the individual case where the factor you’re looking at, the drug has had a causal influence or whether it’s something else. If it’s 1.3 then it’s even weaker than that. So the suggestion is that of new cases of diabetes in schizophrenics, a minority may well be associated, accelerated, aggravated in some degree by the medication. Other studies have tended – some have said that the risk is higher with some drugs like olanzapine and lower with risperidone and others have found not too much difference between it. I suppose of interest is looking at when it happens and it seems to be the strongest mechanism postulated is weight gain and most of the case reports seem to suggest that onset of diabetes in the first three to six months, or in one case report up to bit over a year, it is probably the time course and the association with weight gain. So that’s, I suppose, the markers which would make one think that in an individual case there is likely to be or is more arguably an association.”[344]
[344] Transcript at 201 and see also 207-208
In Dr Stevenson’s opinion, Mr Rana was not obese and obesity did not seem to be a major issue.[345] The circumstances of Mr Rana’s Army service were not plausibly a risk factor in the development of his diabetes over 20 years after his discharge. Mr Rana’s change of diet on his arriving in Australia and his adoption of an “Australian diet” would not be a major or substantive issue.[346] The onset of his diabetes was adequately explained by his family history and his nationality. There did not seem to be any pattern that particularly suggested an association with, or an aggravation by, prescription of antipsychotic drugs. The reason for that was that they had been commenced some seven years previously. On the balance of probabilities, he did not consider that antipsychotic drugs had contributed to the development of
Mr Rana’s diabetes.[347][345] Transcript at 202
[346] Exhibit 6 at 7
[347] Transcript at 203
As to the role of psychological stress in the development of diabetes, Dr Stevenson said that he was aware of a study suggesting psychosocial stress in the first year of life as a risk factor for the development of diabetes – usually type 1 – later in life. The studies can only be described as tentative. People under stress may not control their diabetes as effectively but he knew of no link that would put social stress of any sort as a causal factor for the development of diabetes a quarter of a century later.[348]
[348] Transcript at 203
Consideration: diabetes
We are satisfied that Mr Rana suffers from diabetes mellitus type 2. The precise time from which he has suffered that condition is difficult to pinpoint. We are satisfied that his blood glucose levels recorded in 1991 and 1992 would not have supported a diagnosis at that time. Although it is not clear whether the readings were taken after Mr Rana had fasted or not, Dr Miller and Dr Stevenson were clear in their evidence that, even if taken after fasting, they were not at a level that would have supported a diagnosis. The earlier reading taken in 1989 would have been sufficient to support a diagnosis had it been taken after Mr Rana had fasted. The lack of any evidence that the RAH followed up the readings to carry out further tests suggests that it was taken after fasting. That suggestion is supported by the later readings in 1991 and 1992 that would not have led to a diagnosis.
It was not until much later that the diagnosis was made. It was not made until some time in the 2000s. The precise date is not clear but we are satisfied that it had certainly been made by July 2008 when Dr Miller referred to it. It was clearly established when Dr Fellner referred Mr Rana to Dr Bartold in 2009.
Dr Miller referred to its having been made in 2005. We have no other evidence on which we are satisfied that a diagnosis was made or that Mr Rana was suffering from diabetes between the commencement of his Army service and its diagnosis in 2005.
There are essentially three propositions on which Mr Rana based his claim that his diabetes was contributed to in a material degree by his Army service. We will consider each in turn.
The first is that his Army service contributed in a material degree to his diabetes on the basis of the food that he ate. There is no evidence to support our finding, on the balance of probabilities, that Mr Rana’s change of diet from a vegetarian diet in an agrarian Nepalese society to that he adopted in Australia contributed to the onset of his diabetes. We have no evidence of Mr Rana’s diet during his Army service. Even if we were able to assume that it was the unhealthiest of diets, Dr Miller specifically rejected the proposition that a change of diet from vegetarian food to meat and fatty foods would have that outcome. He also rejected the proposition that an increased intake of alcohol and smoking are factors in the increased risk of contracting diabetes. They would only have become factors if
Mr Rana had put on weight and become obese. We have no evidence that Mr Rana has ever been overweight let alone obese before the onset of his diabetes.
That brings us to the second basis on which Mr Rana has made his claim. It is that of stress experienced during his Army service. On the basis of his own evidence, we accept that Mr Rana found his experiences in the Army very stressful. On the basis of the medical evidence, we are not satisfied that any stress from which he suffered, however severe, would have contributed in a material degree to the onset of his diabetes. The highest that Dr Miller put any causal link was that it was possible that Mr Rana was suffering from sub-clinical diabetes in the Army. Any stress could have accelerated its onset but Dr Miller rejected the proposition that the causal link was probable when there was a 25 year gap between Army service and diagnosis. Dr Stevenson too referred to environmental factors, which would include stress, as accelerating the onset by a few months or a few years but rejected the proposition that it would be a cause of diabetes. Severe trauma or critical care illnesses may lead to a condition of diabetes of stress but we are not satisfied that
Mr Rana has suffered from a trauma or illness of this type. Paranoid Schizophrenia is not an illness of the type to which Dr Stevenson was referring.
Given the expert evidence of Dr Miller and Dr Stevenson when read against a background of there being no evidence that Mr Rana suffered from diabetes between 1989 and 2005, we are not satisfied that any stresses he suffered during his Army service contributed in a material degree to his diabetes mellitus type 2.
That brings us to the medication Mr Rana took as a result of his Paranoid Schizophrenia. Medication and its effects is the third basis on which Mr Rana sought to base his claim. As we said earlier, once we found that Mr Rana’s Paranoid Schizophrenia was not contributed to by his Army service, we could not be satisfied that it contributed to his diabetes mellitus type 2 as a consequence of his taking all or any of the medication he was prescribed for Paranoid Schizophrenia. Should we be found to be incorrect in our finding regarding the causal connection between his Army service and his Paranoid Schizophrenia, we have considered his claim for diabetes on the basis of his medication.
On the basis of the evidence of Dr Jha, Dr Stevenson and Dr Miller and assuming that Mr Rana took the medication, we are satisfied that his taking Haloperidol would not have contributed to his developing diabetes. It is possible that Risperidone, Olanzapine and Quetiapine (also known as Seroquel) can unmask or induce diabetes in susceptible persons. This is the evidence of Dr Stevenson and Dr Miller as well as of Dr Jha. Possibility is not enough and, in looking further, we have given greater weight to the evidence of Dr Miller and Dr Stevenson than to that of
Dr Jha. Dr Jha is a Psychiatrist, whose specialty does not relate to diabetes, whereas Dr Miller specialises in diseases of the kidney and Dr Miller is a Consultant Physician in General Medicine and Critical Care Medicine.
On the basis of the evidence of Dr Miller and Dr Stevenson, we find that the earliest time from which Mr Rana had taken Risperidone was 1998 and Seroquel 2002. Mr Rana was offered Olanzapine in the RAH in 2007 but we are satisfied from the hospital’s records that he did not take it at that time. Mr Rana’s evidence was that the medication prescribed by Dr De Pasquale included “Olanzapine and that sort of drug” and reference to his taking it was made by Dr Fellner. We accept that he has been prescribed Olanzapine at some time while he was being treated by Dr De Pasquale. The earliest reference we can find to Dr De Pasquale’s treating Mr Rana is in 1986. He did so for some time but there was then a break of some years before Mr Rana was again referred to him in 1998. Given that Olanzapine belongs to the newer generation of anti-psychotic agents, we consider it more likely that Dr De Pasquale prescribed Olanzapine during 1998 rather than during the earlier period of treatment. As we can find no reference to Dr De Pasquale’s treating
Mr Rana after 1998, we find that their professional relationship ended either in that year or shortly thereafter.
On the basis of the evidence of Dr Miller and Dr Stevenson, we find that it is possible that Olanzapine, Risperidone and Seroquel may unmask or accelerate the onset of diabetes by two or three months. That unmasking will generally occur in the first two or three months of prescription or perhaps six months. In one instance in the literature, it was reported at twelve months but not longer. Given that Mr Rana was diagnosed with diabetes in 2005 and he was prescribed Risperidone from 1998, we are not satisfied that it contributed in a material degree to the onset or acceleration of his diabetes. We reach the same conclusion in relation to Olanzapine which was prescribed in 1998. The time between taking the drug and the diagnosis of diabetes is too great to satisfy us that the drug made a material contribution to Mr Rana’s diabetes. We also note that, even if we accept Mr Rana’s evidence, he took only in a very small quantity of the drug as he was given a sample of it and not a prescription. That further diminishes any causal connection.
Seroquel was prescribed in 2002 and so somewhat closer to the date of diagnosis of his diabetes in 2005 but, even then, a couple of years after the prescription. Dr Miller assessed any contribution it might have made as probably less than 5% given the risk factors attributable to Mr Rana’s cultural heritage and family history. Dr Stevenson also assessed any contribution as low. His review of the literature led him to conclude that a person who is taking an anti-psychotic agent and who develops diabetes is about twice as likely to develop that diabetes from constitutional factors than from the agents.
On the basis of the evidence given by Dr Miller and Dr Stevenson, we find that Mr Rana is a person who is constitutionally susceptible to developing diabetes. That is as a result of his Nepalese heritage and his family history. We also find that his diabetes was diagnosed at least two years after he was prescribed Seroquel. The time delay and the other constitutional factors lead us to conclude that the likelihood of Seroquel’s accelerating or unmasking Mr Rana’s diabetes is very low. The likelihood of its causing diabetes is even lower and, on the evidence of
Dr Miller and Dr Stevenson, we find that there is no acknowledgement that there is any likelihood at all. In light of this, we are not satisfied that Mr Rana’s taking Seroquel contributed to the onset or acceleration of his diabetes in a material degree.
DECISION
For the reasons we have given, we:
(1)affirm the reviewable decision of the respondent dated 9 May 2007 in proceedings No. 2007/1885 refusing to accept liability for stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses; and
(2)affirm the reviewable decision of the respondent dated 14 February 2005 in proceedings No. S2006/223 refusing to accept liability for various psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during the applicant’s service in the Australian Army.
I certify that the preceding two hundred and sixty seven paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and Professor PL Reilly
Signed: .......................................................................
Leah Berardi, Associate
Date of Hearing 8, 9 & 10 December 2008
22 March 2010
Date of Decision 23 November 2010
Advocate for the Applicant Self represented
Solicitor for the Respondent Ms Nerida Ware
Australian Government Solicitor
Counsel for the Respondent Ms Bean (8, 9 & 10 December 2008)
Mr Snell (22 March 2010)
Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?”: [2001] NSWCA 305; (2001) 52 NSWLR 705 at [87]; 745
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