Rayson and Repatriation Commission - [2009] AATA 231

CATCHWORDS – VETERANS’ AFFAIRS - whether Tribunal has power to direct applicant to obtain Medicare and PBS histories from Medicare Australia – power limited to decision under review relating to whether injury or disease war-caused and cannot be exercised in relation to assessment of rate of pension if accepted as war-caused - whether it should exercise that power –role of the Tribunal relevant factor - direction made.

Administrative Appeals Tribunal Act 1975 ss 3(1), 3(3), 5, 10A, 20, 20B, 20B(1), 21A, 25(1), 25(3), 25(4), 29(7), 33, 33(1)(a), 34(1), 34(2), 33(1A), 33(2), 33(2)(b), 33(2A), 33(3), 33(4), 34A(1), 34A(5), 34C, 34C(2)(b), 34C(5), 34H, 35, 35A(1), 39(1), 40, 40(7), 40(1A), 41, 41(2), 69A, 69A(1)(a),
Health Insurance Act 1973
National Health Act 1953
Privacy Act 1988
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 s 9
Veterans’ Entitlements Act 1986 ss 5D(1), 5D(2), 13(1), 13(1)(b), 13(1)(d), 13A, 14, 14(1), 16, 14(1), 14(3), 14(5), 14(6), 14(7), 15(1), 15(2), 17(1), 17(2), 17(3), 18(1), 19, 19(1), 19(3), 19(5B), 19(5C), 19(5D), 19(5F), 19(6), 20, 21A, 21A(2), 21A(3), 22, 22(1), 22(2), 22(4), 22(4)(c), 23, 24, 25, 27, 30, 31, 34(1), 34(2), 120(1), 120(3),120A(2), 120A(3), 135, 135(1), 175(1), 196B(2)

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Benjamin v Repatriation Commission (2001) 34 AAR 270
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kioa v West (1985) 159 CLR 550
Ladic v Capital Territory Health Commission (1982) 5 ALN No 45
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 66 ALJR 171; 104 ALR 317
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; 1 All ER 81
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Re Rayson and Repatriation Commission [2008] AATA 1063
Re Woodhouse and Comcare [2007] AATA 1920
Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Ltd and Others (1989) 88 ALR 90
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578
Washer v Western Australia (2007) 234 CLR 492
WE Bassett and Partners Pty Ltd v John Francis Doherty [1997] FCA 715
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

DECISION AND REASONS FOR DECISION [2009] AATA 231

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2007/0783
VETERANS’ APPEALS DIVISION )
Re:STANLEY KEITH RAYSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  7 April 2009
Place:  Melbourne

Decision:The Tribunal directs:
the applicant to obtain and lodge in the Tribunal and serve on the respondent by close of business on 2 June 2009:
(1)a copy of his PBS history maintained by Medicare Australia under the National Health Act 1953; and
(2)a copy of his Medicare history maintained by Medicare Australia under the Health Insurance Act 1973.

S A Forgie
Deputy President

REASONS FOR DECISION

Mr Rayson lodged a claim for a pension under the Veterans’ Entitlements Act 1986 (VE Act) in respect of conditions resulting from his service with the Royal Australian Navy (RAN). The Repatriation Commission (Commission) refused to accept his claim on the basis that they were not war-caused and the Veterans’ Review Board (VRB) affirmed its decision. He has applied to this Tribunal for review of the decision. His claim is based on his contention that he is suffering from depressive disorder and post traumatic stress disorder (PTSD) and that he does so as a result of his service with the RAN.

The Commission asked that I exercise power conferred under s 19A(1) of the VE Act to delay consideration of the application for review lodged by Mr Rayson. The reason for its application was that, through his solicitors, Mr Rayson had declined to sign forms asking Medicare Australia to release his Medicare and Pharmaceutical Benefits Scheme histories (Medicare & PBS histories) to the Tribunal, the Department of Veterans’ Affairs and to both his solicitors and those acting for the Commission. The PBS histories are maintained by Medicare Australia under the National Health Act 1953 (NH Act) and the Medicare histories under the Health Insurance Act 1973 (HIA). In my earlier decision,[1] I decided that the powers and discretions conferred on the Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) are conferred for the purpose of reviewing a decision. Powers of investigation and consideration of a claim given under s 19A of the Veterans’ Entitlements Act 1986 (VE Act) are given not for that purpose but for the purpose of investigation and consideration of a claim made under the VE Act. Therefore, the Tribunal did not have power under s 19A of the VE Act.
[1] [2008] AATA 1063

On behalf of Mr Rayson, Mr De Marchi had submitted that the Commission could obtain the information using its powers under s 128 of the VE Act. I have decided that the Commission could not use those powers in view of secrecy provisions in the NH Act and the HIA. For reasons I have previously given, I decided that the Tribunal could summons the PBS histories relying on its power under
s 40(1A) of the AAT Act but could not obtain the Medicare histories by that means. Mr Rayson himself could obtain the Medicare & PBS histories and there appear to be no limits on the use that he may make of them. I left open for further consideration the question whether the Tribunal should exercise its power to direct Mr Rayson to obtain those histories until the parties had an opportunity to consider the matter further.

They have now had that opportunity and have addressed the issues in both written and oral submissions. I have decided to direct Mr Rayson to obtain and lodge in the Tribunal and serve on the respondent a copy of his Medicare & PBS histories for the purpose of reviewing the decision under review.

BACKGROUND

The Tribunal’s power to give directions

The Tribunal’s powers regarding its procedure are found in s 33 of the AAT Act. It begins with the general statement that:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal”.[2]
[2] AAT Act, s 33(1)(a)

The President or an authorised member[3] may hold a directions hearing “in relation to a proceeding”.[4] Section 33(2) specifies those who may give “… directions as to the procedure to be followed at or in connection with the hearing of a proceeding”. Those who may do so are dependent upon whether “the hearing of the proceeding” has or has not commenced. Section 33(2A) elaborates upon the type of directions that may be given:
“Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.”
[3] An “authorised member” is a member who has been authorised by the President under s 59A for the purposes of, in this instance, s 33(2). The President has authorised me for that purpose.
[4] AAT Act, s 33(1A)

The Tribunal’s power to give directions: what is a proceeding?

The power to give directions is linked to the “hearing of a proceeding” for the AAT Act refers to “directions as to the procedure to be followed at or in connection with” that hearing. This reference is made in ss 33(2) and (2A) in relation to those who may make directions and to examples of directions that may be given. It is also made in s 33(3) in relation to the variation or revocation of directions. What is the “proceeding” to which reference is made in s 33?

In its ordinary meaning, the word “proceeding” can be used in the sense of “legal action”[5] or in the sense of “… a step taken by a party in a case”.[6] It is given a very wide definition in s 3(1) of the AAT Act:
[5] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[6] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
“In this Act, unless the contrary intention appears:
…
proceeding, in relation to the Tribunal, includes:
(a)an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e)an application to the Tribunal under s 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act; and
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”

The expression of the definition in inclusive terms suggests that it is not exhaustive. This, together with the way in which the AAT Act intends the Tribunal to function, would lead me to conclude that the word “proceeding”, taken alone,[7] should be read more broadly to encompass its ordinary meanings. I have first had regard to the fact that seven of the eight paragraphs focus on an application’s having been made to the Tribunal and the eighth to a referral to it. That fact alone suggests it is not intended to be exhaustive.
[7] It is not alone, however, and I return to this at [12] and [20] below.

Certainly, the AAT Act requires an application to be made to the Tribunal before it can exercise any jurisdiction that it has. The application will be a proceeding coming within paragraphs (a) to (f) of the AAT Act. Once the Tribunal has jurisdiction to act, the parties may make incidental requests to it asking it to, for example, hold an alternative dispute resolution process (ADR process), make a confidentiality order under s 35 or stay the operation or implementation of a decision, or even hold a directions hearing. A person may also make an application to it before it has jurisdiction to act. That will occur if the person makes an application under
s 29(7) asking the Tribunal to extend the time within which to lodge an application. Section 29(7) expressly provides for an application to be made and clearly comes within the meaning of paragraph (h) of the definition of “proceeding” but what of the others? They could be said to be “made in the course of, or in connection with, an application” of the type referred to in one or other of paragraphs (a) to (f) but are they “applications” let alone “incidental applications”?

Section 41, which gives the Tribunal power to stay or affect the operation or implementation of a decision, does not provide for an application to be made to the Tribunal but for a “request … by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding)”. Section 41(2) describes the decision that may be stayed or affected as “the decision to which the relevant proceeding relates”. The order that the Tribunal makes must be appropriate for the purpose of securing the effectiveness of the “hearing and determination of the application for review”. The reference to the “decision” is a reference to the decision of which review was sought in the application for review. All proceedings ultimately “relate” to that decision. They do so even if they are incidental applications rather than applications initiating the Tribunal’s jurisdiction. That is because they “are about … or concerned with …”[8] the decision of which review is sought.
[8] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

The “request” made by a party to a proceeding under s 41 could be regarded as an application. This would come about because the ordinary meanings of “application” include “a formal written or verbal request, proposal or submission …”.[9] As the request can only be made by a party to a proceeding before the Tribunal, that party must necessarily have already made an application of the sort that enlivens the Tribunal’s jurisdiction. In other words, the party must first make an application that is a proceeding of the sort referred to in paragraphs (a) to (g) of the definition of “proceeding, in relation to the Tribunal” in s 3(1) of the AAT Act before making a request under s 41. The request is made in connection with the application and so arguably is an incidental application within the meaning of paragraph (h) of the definition of “proceeding”.
[9] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Section 35 does not lend itself to the same analysis. It gives the Tribunal power to make orders that certain hearings or parts of them will be held in private or to limit disclosure of certain evidence or material from access by the public. No provision is made for any person to make either a request or an application. The Tribunal is not limited to exercising its power under s 35 to circumstances in which it is asked to do so by one or both of the parties. It is just one of the processes provided for in the AAT Act in which the Tribunal can take the initiative. Those areas include questioning its own jurisdiction, raising issues relating to confidentiality or arranging an ADR process to explore possible ways of resolving the application for review. They can all be regarded as steps in the process towards determining an application for review but no provision is made in the AAT Act for a party to ask it to exercise its power to take those steps. Asking is, of course, one of the recognised ways in which the Tribunal does decide to do so.

Although not providing for an application, each of the processes is “… a step taken by a party in a case” in the ordinary meaning of the word “proceeding”. An ADR process, for example, is a step in the process towards determining an application in that its whole purpose is to explore a possible resolution of the application for review. In that sense, it might be thought to be a “proceeding” as that word is used in its wider sense and so may be the others to which I have referred.

If that is so, it would be expected that other provisions of the AAT Act would be drafted in a way that was consistent with that fact. I have tested that proposition by reference to the provisions relating to the ADR processes. When I look at the particular provisions that relate to ADR processes and then to the provisions relating to a “proceeding”, I start to have doubts whether they are intended to relate to those processes. If I look to the particular provisions of s 33, for example, it could be thought that the person conducting an ADR process would want to give directions in relation to it. It might be thought that it clearly came within s 33(1A) so that the person who is to conduct it may hold a directions hearing but it does not. There are three categories of persons who may conduct an ADR process: a member, an officer of the Tribunal and a person engaged under s 34H.[10] If an ADR process were a proceeding in relation to which a directions hearing could be held, only the President or an authorised member could hold that directions hearing. Two of the categories would be excluded in their entirety and potentially some of the member category if they were not authorised members.
[10] AAT Act, s 34C(5)

The fact that s 34C(5) of the AAT Act specifically prescribes those who are entitled to conduct an ADR process means that the process is outside the constitution provisions of Division 3 of Part III. Division 3 of Part III of the AAT Act sets out the various powers that the President has to constitute the Tribunal “for the purposes of a particular proceeding”.[11] Under those provisions, the President may “give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding”.[12] Each limits the President’s power to constituting a member for the purposes of a proceeding. That is so even though one meaning ascribed to the word “Tribunal” is that it “includes a member, or an officer of the Tribunal, exercising powers of the Tribunal”[13] as well as:
“(a) … the Administrative Appeals Tribunal established by this Act; and
(b)in relation to a proceeding, … the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding;…
(c)…”

The Administrative Appeals Tribunal consists of a President, other presidential members, senior members and members appointed in accordance with the AAT Act.[14] That suggests that an ADR process is not intended to be a proceeding.

[11] AAT Act, s 20B(1)

[12] AAT Act, s 20B

[13] paragraph (c), AAT Act, s 3(1)

[14] AAT Act, s 5

So too do the provisions of s 33 itself. If directions were to be given without holding a directions hearing, directions could only be given by the President, an authorised member or an authorised Conference Registrar before the ADR process were held. That is the effect of s 33(2)(a) and again it would exclude from giving directions some of those who may potentially conduct it. Once an ADR process had commenced, directions could only be given by the member presiding and so exclude some of those who are likely to or who may conduct it.[15]
[15] AAT Act, s 33(2)(b)

Section 34C specifically provides for directions about ADR processes. It provides that the President may give directions about ADR processes. Those directions may relate to the procedure to be followed in the conduct of an ADR process.[16] No provision is made for a member, officer of the Tribunal or a person engaged under s 34H conducting a particular ADR process to give directions. Although s 10A gives the President power to delegate his powers under the AAT Act, his power of delegation is limited to delegating powers to members. It does not extend to the other two categories of persons who may conduct ADR processes.
[16] AAT Act, s 34C(2)(b)

Although I would have thought that those conducting an ADR process would need the flexibility to give directions in order to ensure that the parties are prepared for, and achieve the most they can from, the process, it seems to me that many of those charged with their conduct cannot give them. That causes me some confusion. Is an ADR process not a “proceeding” or is it a proceeding but Parliament has overlooked some practical issues that require resolution?

I think that part of the answer may lie in the recognising that the word “proceeding” is defined in s 3(1) of the AAT Act “in relation to the Tribunal”. Section 3(1) does not define the word “proceeding” in isolation. It can be argued that an ADR process is not a proceeding “in relation to the Tribunal” even though it can be said to be a proceeding in its broader sense in relation to an application for review of a decision made to the Tribunal and a step taken by a party in a case. The fact that s 34C gives the President power to direct a person who comes from one or other of three particular categories of persons to conduct ADR process makes it arguable that an ADR process is not a function performed by the Tribunal as such. That is so even though members of the Tribunal comprise one of the three categories of persons. That they are members simply identifies them but does not lead to their constituting the Tribunal when they conduct an ADR process. I will return shortly to this thought that the word “proceeding” may bear a meaning differently when it is used other than “in relation to the Tribunal”.

Sections 35 and 41 require further and separate consideration for they fit neatly into the pattern of provisions if steps taken under them are regarded as proceedings. The power each confers can only be exercised by the Tribunal in the sense of a member or members. Although s 3(1) gives an expanded meaning to “Tribunal” to include an officer of the Tribunal exercising powers of the Tribunal, no provision is made in either section for an officer to do so. This means that the constitution provisions of Division 3 of Part III of the AAT Act can apply neatly to steps taken under ss 35 and 41.

An interpretation that steps under either ss 35 and 41 are proceedings, is also consistent with s 40 of the AAT Act. Section 40(1) provides that the Tribunal may take evidence on oath or affirmation, proceed in the absence of a party who has had reasonable notice of the proceeding and adjourn the proceeding from time to time for “the purpose of reviewing a decision”.

No reference is made to the hearing of a proceeding. That is left to

s 40(2) which provides:
“The member who presides at the hearing of a proceeding before the

Tribunal:
(a)may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation; and
(b)may administer an oath or affirmation to a person so appearing before the Tribunal; and
(c)if a person participates by a means allowed under section 35A, may make such arrangements as appear to the member to be appropriate in the circumstances in relation to administering an oath or affirmation to the person.”

Section 35A(1) provides that “A person holding a directions hearing and the Tribunal in the hearing of a proceeding …” may allow a person to appear by certain means other than personally.

The separate treatment of the Tribunal’s powers in reviewing a decision and those of the member who presides at the hearing of a proceeding before the Tribunal, adds weight to the conclusion that a fairly broad interpretation should be given to the word “proceeding” in s 3(1) of the AAT Act. Powers exercised under
s 40(1) for the purposes of reviewing a decision will be powers exercised for the purposes of the hearing of a proceeding as that word is understood in paragraphs
(a) to (f) of the definition. By separating the review of a decision from the hearing of a proceeding, Parliament has, I think, shown an intention to adopt a broad view of “proceeding” and even a broad view of an “incidental application”.

Its intention can be illustrated by reference to ss 35 and 41. A request of the sort made under s 41 of the AAT Act is either an “incidental application” or at least under the more general meanings of “proceeding”. A step under s 35 comes within the latter and particularly so if the Tribunal is not asked to consider whether to exercise its powers. My reason for reaching this conclusion is that the Tribunal will often require evidence to be given before the Tribunal can decide whether to exercise its powers under either ss 35 or 41. Under s 41, it will often require evidence in order to decide whether it is appropriate to make an order, and if so, of what sort, to secure the effectiveness of the hearing and the determination of the application for review. The same is true of s 35 when the Tribunal is deciding whether to make an order restricting publication or disclosure of certain information or allowing the hearing to take place in private.

Not every step along the way towards or consequent upon the resolution of an application for review of a decision is an incidental proceeding described in paragraph (h) of the definition in s 3(1). A taxation of costs, for example, would arguably not be a proceeding of that sort. It may be said that it is not made in connection with an application but in connection with a decision. If that is so, it falls outside paragraph (h) of the definition although it may not fall outside the more general meaning of “proceeding”.

That it is so gains some support from the provisions relating to the appointment or selection of a person to tax bills of costs. That occurs when the Tribunal has ordered “a party to a proceeding to pay another party to the proceeding”[17] to pay the costs of another. The choice of the person who is to tax the bill of costs if the parties cannot agree of the amount to be paid is not the subject of Division 3 of Part III of the AAT Act. It is the subject of s 69A of the AAT Act and is worded in terms of the President’s giving such directions as he or she thinks appropriate for the costs to be taxed or settled by the Tribunal or by the Registrar, a District Registrar or a Deputy Registrar. It could be said to be “a proceeding in relation to the Tribunal” in so far as the costs are taxed or settled by the Tribunal. When they are taxed by the Registrar, a District Registrar or a Deputy Registrar, it is more problematic. It is difficult to say that they are exercising the powers of the Tribunal to bring them under the definition of “Tribunal” in s 3(1) of the AAT Act when the provisions and structure of s 69A is compared with those in s 33. Under
s 33, it can be said that a Conference Registrar authorised under s 33(4) is exercising the powers of the Tribunal. The powers he or she exercises are those given to the Tribunal under s 33(1).

[17] AAT Act, s 69A(1)(a)

These are but examples of different actions or steps that can occur in what I will generally refer to as the Tribunal. As I have already mentioned, the definition of the word “proceeding” in s 3(1) is not a definition of that word alone. It is a definition of “proceeding, in relation to the Tribunal”. It is not a definition of a proceeding that is not “in relation to the Tribunal”. Once this is realised, the seeming incongruities in relation to the various provisions start to make a little more sense even though it is arguable that the direction-making power may not be cast widely enough cater for the situations in which directions may need to be given.

Provisions such as ss 29(7), 35 and 41 confer power on the Tribunal in the sense of its being the body constituted by its various members. This is clear from s 35(1), which sets the scene in so far as it provides that “Subject to this section, the hearing of a proceeding before the Tribunal shall be in public”. The word “proceeding” is used “in relation to the Tribunal” and this draws attention immediately to the eight paragraphs of the definition of “proceeding” in s 3(1) and to any wider meaning that it may have provided it falls within the province of the Tribunal as constituted by its members to decide. Section 41 is similar as is s 29(7). Unlike s 33(2), none of these sections makes provision for an officer of the Tribunal to exercise the powers given to the Tribunal. Sections 29(7), 35 and 41 would all seem to provide for a “proceeding, in relation to the Tribunal”.

Division 3 of Part IV of the AAT Act does not entrust the handling of ADR processes to the Tribunal but to the person directed by the President provided that person comes within one of the three categories specified in s 34C(5).[18] It immediately becomes apparent that, even though an ADR process is a step along the way towards resolving an application for review, it is not a step that is provided for “in relation to the Tribunal”. The definition of “proceeding” relates only to steps that are “in relation to the Tribunal”. ADR processes are in relation to processes conducted at the direction of the President by persons, some of whom may happen to be members of the Tribunal but who may not be.
[18] See [15] above

Section 34A(5) makes the same point and clearly distinguishes between ADR processes and proceedings. It refers to a direction given by the President under s 34A(1) to direct a conference or an ADR process if an application has been made to the Tribunal for review of a decision. The President may do so in relation to the proceeding, or any part of the proceeding or matter arising out of the proceeding. Section 34A(5) provides:
“If a direction under this section is applicable to:
(a)a proceeding; or
(b)a part of a proceeding; or
(c)a matter arising out of a proceeding;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.”

The ADR process itself is not seen as a proceeding but as a process.

That this is so is confirmed by s 40(7) which confers powers such as the powers to issue summonses, take evidence on oath or affirmation and to administer that oath or affirmation. Parliament felt the need to include s 40(7) providing:
“The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an incidental proceeding) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.”

There is no similar provision in relation to the power to give directions under s 33 and there is no similar provision in relation to the taxation of costs under either ss 33 or 40. The fact that there is not and that circumstances are conceivable in which those powers might be thought necessary for those carrying out the tasks, are not enough to persuade me that I should reach a view of “proceeding, in relation to the Tribunal” that is wide enough to incorporate them. To do so would be to contort the language used in the AAT Act beyond what seems to be its intended meaning.

What is the proceeding in relation to which a direction is sought as to the procedure to be followed at or in connection with the hearing?

Mr Rayson lodged an application for review of the Commission’s decision to refuse Mr Rayson’s claim for a pension in respect of incapacity for depressive disorder. It is a decision affirmed by the Veterans’ Review Board. That application is an application heard by the Tribunal and it is a proceeding before the Tribunal. It comes within paragraph (a) of the definition.

What issues does the hearing of the application for review (the proceeding) raise?

The questions that the Commission asked and answered in reaching that decision were:
what, on the balance of probabilities, was the condition (be it injury or disease) from which Mr Rayson suffers;
what were the periods of Mr Rayson’s operational service;
is there a reasonable hypothesis connecting that condition with a period of Mr Rayson’s operational service having regard to ss 120(1) and (3) of the VE Act;
if so and within the meaning of s 120(3) of the VE Act, is the Commission satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was a war-caused injury or war-caused disease.
These questions are equally applicable in the Tribunal which must review the decision and decide for itself whether the Commission reached the correct or preferable decision.[19]
[19] Drake v Minister for Immigration (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J

Does the application raise issues beyond those raised before the Commission: some potential issues

In Re Rayson and Repatriation Commission, I set out the pension scheme provided for in the VE Act. In particular, I referred to the provisions made for the payment of a pension when “a veteran is incapacitated from a war-caused injury or a war-caused disease”.[20] The pension is paid by the Commonwealth by way of compensation.[21] I then set out the legislative provisions that expand upon each criterion that must be satisfied in order to obtain payment. In the interests of brevity, I will not repeat the analysis but I adopt it. All that I will do is to note the issues that must be determined if Mr Rayson is entitled to the payment of a pension from the Commonwealth by way of compensation. I will refer only to the main issues that ultimately require resolution in relation to a claim by a veteran of Mr Rayson’s age
[20] VE Act, s 13(1)(b)
[21] VE Act, s 13(1)(d)

and in his circumstances. They are:

1.Does Mr Rayson have an injury or a disease?[22]
[22] VE Act, s 5D(1)
(1)if an injury, is it a mental or physical injury that is not:
(a)a disease; or
(b)the aggravation of a physical or mental injury; and

(2)if a disease, is it:
(a)a physical or mental ailment, disorder, defect or morbid condition or the recurrence of such;
(b)but not:
(i)the aggravation of a physical or mental ailment, disorder, defect or morbid condition; or
(ii)a temporary departure from the normal physiological state or the accepted ranges of physiological or biochemical measures that results from normal physiological stress.

2.If so, is that injury or disease a war-caused injury or a war-caused disease?
(1)various issues are raised by s 9 of the VE Act but they are not relevant to the point I must decide.

3.If so, is Mr Rayson incapacitated from that war-caused injury or

war-caused disease:[23]
[23] VE Act, s 5D(2)
(1)what are the effects of that injury or disease?

4.If so, what is the degree of that incapacity?
(1)what is the degree based on the Guide to the Assessment of Rates of Veterans’ Pensions (Guide)?[24]
[24] VE Act, s 21A(2)
(2)is it more than 10%?[25]
[25] VE Act, s 21A(3)

5.If so, what rate of pension is payable?
(1)what is the degree of Mr Rayson’s incapacity?
(2)the rate at which pension is payable equates with rate of incapacity provided:
(a)the rate of incapacity is 10% or more;[26]
(b)Mr Rayson is not paid or eligible to be paid a pension under ss 23, 24 or 25 of the VE Act;[27]

6.If rate at which pension payable is 100% and as Mr Rayson is over 65 years of age, determine if entitled to extreme disablement adjustment.[28]
(1)has Mr Rayson an impairment rating of at least 70 points and a lifestyle rating of at least 6 points determined in accordance with the Guide?[29]

Does the application raise issues beyond those raised before the Commission: the limit of the Tribunal’s powers

[26] VE Act, s 22(2)

[27] VE Act, s 22(1)

[28] VE Act, s 22(4)

[29] VE Act, s 22(4)(c)

If I am to give “directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal”, I must first identify what is raised by that hearing. In this case, the proceeding is the application for review. Therefore, I must decide whether I am limited to the three issues decided by the Commission and reviewed by the VRB or whether I may go from what are effectively steps 1 and 2 set out in [37] above and move on to steps 3 to 6.

A. General principles

In determining the Tribunal’s jurisdiction, the starting point is s 25 of the AAT Act. The Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.[30]

[30] AAT Act, s 25(3)

It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s 25(4) which is the necessary corollary to s 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”[31]
[31] AAT Act, s 3(3)

The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision and three in order to determine whether the Tribunal has any power left to review the decision. The first step is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision. If there is such an enactment, it is necessary to determine the limits of the power that it gives to the Tribunal to review the decision. The third step is applicable to the determination of whether the Tribunal has any power left to review the particular decision under consideration. It requires a comparison of the decision under review with the limits of the power that the Tribunal is given to review that decision on one side against what the Tribunal has actually reviewed, if anything, on the other.

B. The decision

In this case, I have already taken the first step of identifying the decision. It is the decision of the Commission dated 3 May 2005, as affirmed by the VRB’s decision dated 14 November 2006, in so far as it related to depressive disorder and PTSD.

C. The legislative provisions

In general terms, s 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who has an incapacity from an injury or disease that is war-caused or, if the veteran’s death was war-caused, to that veteran’s dependants. The amount of that pension and the terms under which it is payable are determined by the VE Act. The dependants of some deceased veterans are paid a pension automatically[32] but those provisions are not applicable in this case. In most cases, a veteran or a deceased veteran’s dependants makes a claim under s 14(1) and in accordance with s 14(3).[33] That latter section requires the claim to be in writing, to be accompanied by relevant evidence available to the claimant and to be lodged at an office of the Department of Veterans’ Affairs (DVA). Having made a claim in respect of incapacity from a particular injury or disease, the veteran may not lodge another in respect of incapacity from that injury or disease until the claim has been finally determined.[34] A similar provision prevents a deceased veteran’s dependants making a further claim before the first is finally determined.[35]
[32] VE Act, s 13A
[33] see also VE Act, s 16
[34] VE Act, s 14(5); a claim is not finally determined until every appeal or review has been finalised or, if none is lodged, until the time for appealing or applying for review has passed: s 14(7).
[35] VE Act, ss 14(6) and (7)

A veteran who is in receipt of a pension in respect of incapacity may apply for an increase in the rate of pension payable on the basis that the incapacity has increased.[36] Some veterans may be refused a pension on the basis that the incapacity is insufficient to justify the grant of a pension even though they are found to have suffered a war-caused injury or disease. They may apply for a pension on the ground that the incapacity has increased since the grant of a pension in respect of the incapacity was refused or last refused.[37]
[36] VE Act, s 15(1)
[37] VE Act, s 15(2)

Where a claim is made for a pension under s 14(1) or an application is made for an increase under ss 15(1) or (2) of the VE Act, the Secretary of DVA is obliged to investigate the matters to which it relates.[38] Once investigated, the Secretary refers the claim or application to the Commission together with all relevant evidence and documents. That is the effect of ss 17(2) and 17(3). The Commission has a duty to consider the claim or application.[39] Its duty is explained further in s 19. In so far as it relates to a claim for a pension, which is the subject of this case, 19(1) provides:
“Where a claim … is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a)consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and
(b)subject to this section, determine the claim as provided by subsection (3); …
(c)…
(d)…”
[38] VE Act, s 17(1)
[39] VE Act, s 18(1)

The way in which the Commission determines the claim is set out in s 19(3):
“The Commission shall determine a claim for a pension as follows:
(a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii)the death of a veteran that was war-caused;
(b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).”

The procedure set out in ss 19(5A), (5B) and (5D) requires the Commission to assess the matters set out in s 19(5C) in accordance with whichever of ss 22, 23, 24, 25, 27 and 30 are applicable in the particular case.[40] Those sections relate to particular rates of pension such as the general rate of pension and extreme disablement adjustment, intermediate rate of pension and special rate of pension. Assessment in their terms is dependant on the Commission’s first determining the veteran’s degree of incapacity from a war-caused injury or disease according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions (GARP).[41] It does that under s 21A. Taking all of these sections into consideration, the Commission must assess the rate or rates at which the pension would have been payable from time to time during the assessment period and the rate at which the pension is payable.[42] After making an assessment, the Commission must determine that pension is payable at the rate assessed.[43] It must also determine the date of effect of the determination.[44] Having made a decision, the Commission may review and vary its decision under s 31.

[40] VE Act, s 19(5B)

[41] VE Act, s 21A

[42] VE Act, s 19(5C)

[43] VE Act, s 19(5D)

[44] VE Act, ss 19(5F) and (6) and 20

The Commission must make a written record of its decision and its reasons when it makes a decision:
“(a) with respect to a claim for a pension in accordance with section 14, or an application for a pension or increased pension in accordance with section 15;
(b)by way of assessing the rate of pension …, or determining the date of commencement or cessation of a pension …;
(c)to vary a decision upon a review carried out under section 31;
(d)to cancel or suspend a pension … under subsection 31(6); or
(e)to decrease the rate of a pension … under subsection 31(6) or to increase the rate of pension … under subsection 31(8);
…”[45]

As soon as practicable after the Commission makes one of these decisions, it must serve a copy of the decision and the reasons on the claimant.[46] It must also give the claimant “… particulars of the right of the person on whom it is served to have the decision reviewed by the [Veterans’ Review] Board.”[47]

[45] VE Act, s 34(1)

[46] VE Act, s 34(2)

[47] VE Act, s 34(2)

These provisions show that the VE Act distinguishes between the various stages in reaching a final determination regarding whether a veteran is entitled to a pension at a particular rate. It does so by isolating the decision made at each stage beginning with a decision in respect of the claim and, in the case of an initial claim, ending with the assessment of the rate.

The isolation of each decision is continued in s 135. That section permits a person, who has made a claim for a pension in accordance with s 14, to apply to the VRB if:
“… dissatisfied with any decision of the Commission in respect of the claim … (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made …) …”.[48]

The application is made to the VRB to review the decision.

[48] VE Act, s 135(1)

The theme is continued in s 175(1). It provides:
“Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied, or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a)of the decision of the Commission that was so affirmed;
(b)of the decision of the Commission as so varied; or
(c)of the decision made by the Board in substitution for the decision so set aside;
as the case may be.”

D.Does the Tribunal have jurisdiction to consider the assessment of any pension to which Mr Rayson may be entitled?

As I said, the question that I have posed requires a comparison of two matters. On the one side is the decision under review and the limits of the power that the Tribunal is given to review that decision. On the other is what the Tribunal has already reviewed, if anything.

In this case, the decision under review is that of the Commission affirmed by the VRB. It is a decision to refuse to accept as war-caused the conditions of depressive disorder and PTSD. That was a decision affirmed by the VRB. Certainly, there were other decisions that the Commission made in respect of the claims that Mr Rayson made in respect of other conditions. That does not alter the fact that the Commission made a decision in respect of the incapacity that he claimed to suffer as a result of PTSD and that he said was a war-caused injury or disease. The decision that the Commission made in respect of depressive disorder and PTSD was to refuse to accept the claim. It did not go on to make any assessment of a pension in respect of depressive disorder and PTSD. Its assessment was limited to assessing the pension payable in respect of the conditions that it did accept as war-caused injuries or diseases.

The VE Act specifically recognises the division of the Commission’s task into decisions on particular aspects. It specifically permits an application for review to be made to the VRB in respect of each of those decisions. That means that the Tribunal’s jurisdiction must be limited by the particular scope of the decision made by the Commission and reviewed by the VRB.

Given that the Commission’s decision did not go beyond the bounds of refusing to accept Mr Rayson’s claim in respect of incapacity from depressive disorder or PTSD and nor did the VRB’s decision, the Tribunal’s jurisdiction is equally circumscribed. As I have already reviewed the Commission’s decision, I have fulfilled the task that is given to me under the VE Act. I do not have any power to assess the pension that might have been payable to Mr Rayson as the Commission had not made a decision on that matter and, consequently, the VRB had not reviewed it. That was a matter that remained solely within the jurisdiction of the Commission to decide.

What are the parameters within which the Tribunal must decide the issues raised by the hearing of the application for review of the decision?

A.General principles

This is a question that is raised by the limitations on the power conferred by s 33(2). It can only be used to give “… directions as to the procedure to be followed at or in connection with the hearing of …” the application for review of the decision. The procedure that is followed must ensure that, subject to certain exceptions that are not relevant in this case:
“… every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[49]
[49] AAT Act, s 39(1)

This accords with the notion of procedural fairness in the general law. The Tribunal must also accord natural justice. This is a notion that has tended to be subsumed in the concept of procedural fairness[50] but it remains a separate entity. In Minister for Immigration and Ethnic Affairs v Pochi,[51] Deane J accepted the principles made clear by Willmer LJ and Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore[52] that the Deputy Industrial Injuries Commissioner:
“… was not, on the hearing of the appeal, bound by the rules of evidence or procedure applicable in a court. He was free to obtain information from any source available to him. He was however bound to observe the principles of natural justice. Each of Willmer LJ and Diplock LJ made clear, in the course of his judgment, that he was of the view that the principles of natural justice operated not only in respect of the procedure adopted by the tribunal but also in respect of the material upon which a decision was based. …”[53]
[50] See, for example, Kioa v West (1985) 159 CLR 550 at 583-585 per Mason J
[51] (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 66; 688; 159 per Deane J, with whom Evatt J agreed
[52] [1965] 1 QB 456; 1 All ER 81 at 476; 87
[53] (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 67-68; 689-690; 160 per Deane J, with whom Evatt J agreed

Deane J developed this view saying:
“… There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness. I respectfully agree with the conclusion of Diplock LJ that it is an ordinary requirement of natural justice that a person bound to act judicially ‘ base his decision’ upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements of natural justice may vary according to the nature of the inquiry … and that conclusion may not be of universal validity in that it may not, for example, apply in respect of some domestic forums. It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it … Implicit both in Diplock LJ’s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it …
Examination of the provisions of the Administrative Appeals Tribunal Act 1975 discloses nothing which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that it was the legislative intent that the Tribunal should, in a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material. To the contrary, s 43(2) of the Act which requires the Tribunal to give its reasons in writing expressly provides that ‘those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based’. …”[54]
[54] (1980) 4 ALD 139 at 160

Procedural fairness is directed at procedure but the principles of natural justice are directed at the substance of the decision-making process. It is directed in part to the aspect of the decision-making process in which the decision-maker must decide first whether evidence or material is probative before deciding the weight that should be accorded to that evidence which is probative.[55] It is directed also to that aspect of the decision-making process that compares the findings with the requirements of the relevant enactment and reaches a decision if only one is possible or the preferable decision if more than one is possible on the evidence and the law.
[55] [1965] 1 QB 456; 1 All ER 81 at 476; 87

B.The standard of proof used to determine a claim for an incapacity pension

Each issue must be decided on the basis of facts. Those facts are determined or found on the basis of the evidence or material that the Tribunal has before it when it is deciding the matter. They must be established by the evidence or material. They must be established according to a measure or to a standard prescribed by the VE Act. That is the standard of proof. The VE Act provides for different standards of proof to be used for establishing the facts in relation to different issues.

The standard of proof to be used when assessing the evidence to decide matters such as whether person claiming a pension is a veteran, has an injury or disease or has an incapacity from an injury or disease is found in s 120(4) of the VE Act.[56] It provides:
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
[56] See Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599.

What does “reasonable satisfaction” mean? In Repatriation Commission v Smith,[57] the Full Court of the Federal Court considered the meaning of the related term “reasonably satisfied”. After considering the authorities, Beaumont J, with whom Northrop and Spender JJ agreed, concluded that the Tribunal:

“… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987)6 AAR 558; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[58]

In light of what the Federal Court has said, I must assess the evidence in according to the civil standard of proof when deciding issues whether Mr Rayson was a veteran, had an injury or disease and had an incapacity from an injury or disease. That is to say, I must decide what is probable. I may not find a fact established if I decide only that it was possible but not probable.

[57] (1987) 15 FCR 327; 74 ALR 537

[58] (1987) 15 FCR 327; 74 ALR 537 at 334-335; 547

In order to work out the standard of proof relevant in determining whether the person’s injury or disease is a war-caused injury or a war-caused disease, regard must first be had to s 120(1). Its effect is that, in the circumstances it sets out, the Tribunal must determine that an injury or disease is a war-caused injury or a

war-caused disease unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. The words of s 120(3) are directed to the Commission but they apply equally to the Tribunal when it reviews a decision of the Commission. Section 120(3) tells the Tribunal when it will be satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It tells the Tribunal that it will not be satisfied in that way if it:
“… after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease … with the circumstances of the particular service rendered by the person.”

The expression “reasonable hypothesis” must be interpreted in light of s 120A. That is a section that applies to certain claims made on or after 1 June 1994.[59] The claims to which it relates include those made under Part II and relating to operational service rendered by a veteran.[60] Mr Rayson’s claim was a claim of that sort.
[59] The date of 1 June 1994 was chosen because that is the date on which s 120A was inserted in the VE Act by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994; s 9.
[60] VE Act, s 120A(1)(a)

Section 120A(3) relates to circumstances in which the Repatriation Medical Authority (Authority) has determined a Statement of Principles (SoP) under

s 196B(2).[61] It provides that:
“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
[61] Section 120A(3) does not apply in a case where a claim relates to a war-caused injury or a war-caused disease if the Authority has neither determined a SoP nor declared that it proposes to in relation to the kind of injury or kind of disease suffered by the person as the case may be: VE Act, s 120A(4). If the Authority has given notice under s 196G that it intends to carry out an investigation of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of incapacity from an injury or disease of that kind or in respect of a death of that kind unless and until the Authority has determined a SoP or declared that it does not propose to do so: VE Act, s 120A(2).

C. The role of the Tribunal

It is sometimes said that the Tribunal is an adversarial body and, at others, that it is inquisitorial.[62] Reference is made to its being based on the judicial model[63] but it is a body that does not exercise judicial power.[64] The similarities between the task it must perform and that which a court must perform are quite marked. Both require identification of the law, identification and assessment of probative evidence and material, fact finding with reference to that evidence and material and, ultimately, a decision based on the law and the facts found.
[62] I have referred to this in greater detail in Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124 at [93]-[99]
[63] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
[64] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584 per Bowen CJ and Deane J

The second report is by Mr Michael Burge, who is a psychologist. Mr Burge interviewed and assessed Mr Rayson on two occasions, 15 April and 13 May 2008, and had a copy of the documents lodged under s 37 of the AAT Act (T documents) and Dr D’Ortenzio’s report. Mr Burge noted that Mr Rayson reported that he has poor concentration and memory. He formed the opinion that Mr Rayson suffers from PTSD and concluded his report dated 27 July 2008 with the statement that he had rated Mr Rayson’s condition according to the tables contained in GARP V and consider him to have a final rating of: 3+3+6+6+3=21”.

The SoP made by the Authority relating to PTSD refers to PTSD that meets the diagnostic criteria in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision[91] (DSM-IV-TR). That SoP has been amended from time to time but the amendments are irrelevant at this stage. Just as DSM-IV before it did, DSM-IV-TR sets out diagnostic criteria that a condition must meet for it to be PTSD to which the SoP applies. If the person meets those criteria, the SoP also sets out the factors that must, as a minimum, exist before it can be said that there is a reasonable hypothesis raised connecting PTSD with the circumstances of the person’s relevant service. Those factors refer to the time at which the person, in this case Mr Rayson, experienced stressors identified in the SoP in relation to the clinical onset or clinical worsening of PTSD.
[91] Washington, DC, American Psychiatric Association, 2000

The SoP in relation to Depressive Disorder is drafted in the same format. The condition identified by reference to certain criteria and the factors that must exist before there can be said to be a reasonable hypothesis connecting Depressive Disorder with the circumstances of a person’s relevant service are identified in relation to the clinical onset or clinical worsening of Depressive Disorder.

Apart from the reports of Dr D’Otenzio and Mr Burge, the only other material that is available comprises extracts from Mr Rayson’s service records relating to his service from 14 May 1951 to 13 May 1957 and 10 June 1959 to 8 June 1965. They are included in the T documents. The general practitioner who signed Mr Rayson’s claim, Dr Hadkins, did not offer a diagnosis in relation to the anxiety, depression and nightmares he described.

Dr Campagnaro’s clinical records have been summonsed. Dr Campagnaro is a respiratory and general physician and it appears from those notes that Mr Rayson first consulted him in 1998 regarding chest pain. He has also investigated and treated Mr Rayson for other physical conditions over the years and continues to do so. Dr Campagnaro does not appear to have investigated or treated him for depression although there is a note to Mr Rayson’s general practitioner dated 31 March 2008 stating that Mr Rayson:
“… seems a little depressed. It is not unreasonable to feel like this after these last 2-3 months where he has been unwell and required heart surgery. I have a fairly low threshold to give him an anti-depressant. He is going to come to see you in about three weeks for review. If you feel it is warranted at that stage it might be worth starting him on something for a couple of months.”[92]
[92] T documents at 84

On the material that has been filed, there is a gap in the medical records between 1965 and 1998. It may be that Mr Rayson did not attend a medical practitioner in that time or it may be that he did and he has forgotten whom he saw. Medicare was not established until 1984 but it would record the names of any medical practitioners whom Mr Rayson consulted and who claimed Medicare benefits. The PBS Scheme was established in 1948 and might record medications that he was prescribed if they came under it. If there are names of medical practitioners recorded, summonses could be issued to obtain their clinical notes. Those notes might contain material that is relevant to deciding the date of the clinical onset of the condition from which Mr Rayson suffers and in ascertaining whether it is connected with his relevant service. In that sense, they could possibly throw light on the issues that have to be decided in order to review the Commission’s decision in this case. They could possibly:
“… rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.”[93]

The material could have adjectival relevance in that sense.

[93] Washer v Western Australia (2007) 234 CLR 492 at 498 [5] per Gleeson CJ and Heydon and Crennan JJ

If they have adjectival relevance in that sense, should I direct Mr Rayson to take steps to produce the Medicare & PBS histories in relation to them? A similar question was asked in Re Woodhouse and Comcare,[94] in which Deputy President Hack SC declined to direct Ms Woodhouse give Comcare a signed authority to enable it to obtain them. Ms Woodhouse had lodged a claim in 2004 for rehabilitation and compensation for depressive illness with periods of anxiety. In 2006, Comcare accepted liability for aggravation of major depressive disorder and aggravation of anxiety state but rejected her further claim that she was entitled to be paid compensation for permanent impairment and non-economic loss.
Ms Woodhouse’s further claim was made in relation to aggravation of major depressive disorder, recurrent episode and aggravation of anxiety state.

[94] [2007] AATA 1920

Deputy President Hack said:
“11.     There can be no doubt that the power to make the direction sought is discretionary. Relevant to the exercise of that discretion, at least, are two matters – the extent to which the direction would involve an intrusion into Ms Woodhouse’s medical history, and the benefit that might be expected to be gained from authorising that intrusion.
12.      As far as the first aspect is concerned, it is apparent that provision of the information sought could potentially involve disclosure of matters entirely unrelated to the matters in issue in these proceedings. As it seems to me, a medical history is quintessentially an intimate and personal record. The provision of it for the present purpose would be a gross intrusion into Ms Woodhouse’s personal affairs and would amount to a disclosure of matters that she, quite reasonably, does not wish to disclose.
13.      I accept that it is relevant to have regard to Ms Woodhouses’ medical history so far as it touches upon the issue of what I shall loosely describe as her mental state. I accept as well that there is material that suggests that Ms Woodhouse has what Dr Chalk, a psychiatrist, describes as ‘a long history of mixed anxiety and depressive illness predating her orchestral employment …’   However, Comcare has available to it a report from Mr [sic] Woodhouse’s general practitioner, Dr Bryan, who was first consulted by Ms Woodhouse for a stress condition in July 1993. There seems to be no reason why Comcare could not obtain copies of Dr Bryan’s clinical notes and patient records by summons.
14.      The direction sought is justified by Comcare on the basis that the records sought ‘dating from around the applicant’s first reported stress or anxiety attack on 12 July 1993 may indicate further avenues for the Respondent to investigate the veracity of the current application.’ In argument the suggestion was put that it might be the case that Ms Woodhouse had consulted another general practitioner and that only the provision of her medical history would enable that matter to be determined. The argument brought to mind the frequently quoted passage of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd^[[95]]:
‘A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.’
15.      In the absence of evidence that Ms Woodhouse had consulted another general practitioner, it seems to me that Comcare is engaged in a ‘fishing expedition’. It might even be thought that it wants the Tribunal to provide it with the net. … I am not satisfied that the material sought by the direction has apparent relevance.”
[95] (1952) 72 WN (NSW) 250 at 254

Mr De Marchi would have me reach the same conclusion regarding the Commission’s request that I make a direction either that Mr Rayson sign an authority to enable it to obtain his Medicare & PBS histories or that he obtain those histories himself and lodge them in the Tribunal. He has submitted that it is a fishing exercise but I think that he has misconceived the sort of fishing that is prohibited in relation to subpoenas and discovery orders in the courts. Parties to a case in a court may not embark on a fishing trip hoping to catch enough to work up a case they have not yet formulated. They may only embark on that trip if the object of the trip is to assist them to prove a case that they already have. That this is so is not immediately apparent from the passage from the judgment of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd, to which Deputy President Hack referred. It is, however, clear from the explanation given by the Full Court of the Federal Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp.[96] That was a case to which Spender J referred in Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor, to which Deputy President Hack also referred but Mr De Marchi did not.
[96] See [82] above

A case in the Tribunal is different from a case in the courts. As I have explained above, it must reach the correct or preferable decision. Unlike a court, it is not limited to deciding whether the case of one party or the other is to be preferred. Its obligation to give each party a reasonable opportunity to present his or her case, to inspect documents to which the Tribunal proposes to have regard and to make submissions in relation to them,[97] does not limit it to those cases. In view of that, I would venture to suggest that the fishing metaphor used by Owen J and explained by the Full Court of the Federal Court should be adapted. The Tribunal should not use its powers under s 33 to require the production of information that can have no relevance in deciding the issues that are raised by the application for review of the decision. It is the decision and the enactment under which it is made that proscribes the “case” that has to be established; not the parties as is the case in a civil case in the courts.
[97] AAT Act, s 39

That material is relevant to the issues that must be decided does not necessarily mean that the Tribunal will necessarily require its production. That is illustrated by the case of Re Woodhouse and Comcare itself. Deputy President Hack found that Ms Woodhouse had already consulted a general practitioner in relation to her condition and at the relevant time. He clearly considered that it was inappropriate to use the Tribunal’s powers to attempt to locate further relevant material when the Tribunal already had access to relevant material and there was no suggestion that Ms Woodhouse had consulted another medical practitioner. This is not the case I must consider. I am faced with a complete absence of any medical evidence for a lengthy period during which it is conceivable that Mr Rayson might have consulted a medical practitioner. Mr Burge noted that Mr Rayson had reported to him that he has poor concentration and memory. He might have forgotten matters of this sort. The circumstances are quite different from those in Re Woodhouse and Comcare.

I have already decided that the information sought by the Commission has adjectival relevance to the issues to be decided in this case. Therefore, I do not regard Comcare’s request as a fishing expedition. It may be that a request for the Medicare & PBS histories relating to Mr Rayson will not identify any medical practitioners he consulted beyond those already known or any medications dispensed under the PBS. That it may do so does not mean that it was a fishing exercise in the first place. The type of fish that the direction would hope to catch would be relevant to deciding the issues raised by the decision for review. If there are fish of that type to be caught, they will be caught. If there are none, it does not make the fish less relevant. It just means that there were none for any number of reasons.

I have considered whether an order of the sort sought by the Commission would be oppressive on its face. That is as far as I can go at this stage for it would be for Medicare Australia to raise any problems with Mr Rayson. He would then bring their problems to the Tribunal and ask it to vary its direction. It is difficult to see that this would happen in this case in an age in which information is most likely to be kept in computerised form and in which the legislation governing the Medicare & PBS histories contemplates that they may be obtained by the individuals to whom they relate.

Mr De Marchi submitted that I should have regard to my previous reasons in which I explored the circumstances in which Medicare Australia could reveal the information that it holds. He submitted that:
“… it would be trespassing on the legislatures [sic] recognition that this information is personal and inherently private. It would render the protection the law affords in these circumstances useless, and respectfully, would undermine the legislative intent that a person have the power to control who can and cannot access such information, information which is personal and inherently private.”[98]
[98] Submission dated 2 March 2009 at [3.6]

I do not accept this submission. The legislation to which Mr De Marchi refers certainly limits those persons who may have access to the information held by Medicare Australia. The individual to whom the information relates is not among those persons. The use that the individual may make of the information is not restricted. If Mr Rayson chose to do so, he could produce that information voluntarily. That would not be in contravention of either the National Health Act 1953 (NH Act) relating to the disclosure of Mr Rayson’s PBS histories or of the Health Insurance Act 1973 (HIA) relating to the disclosure of his Medicare histories. It would not be a contravention of either the provisions or the spirit of the NH Act or the HIA.

Contrary to Mr De Marchi’s submission, it seems to me that Mr Rayson does control who can and cannot have access to his Medicare & PBS histories. As I have said, they are potentially part of the material that is relevant to the review of the decision. Once he decided to apply for review of the Commission’s decision, he necessarily, even if not consciously, recognised that the Tribunal would want to decide it on all relevant information. If he does not want it to do so, the solution does not lie in the Tribunal’s limiting its attempts to find it but in his deciding what is more important to him. Is it more important to seek review of the Commission’s decision or is it more important to protect Medicare & PBS histories that relate to him and that he may regard as personal and inherently private information? The choice lies in his hands.

If the Tribunal were to limit its attempts, it would be in danger of playing the role of a court engaged in an adversarial process and in reviewing the decision only on the basis of the evidence that the parties choose to give it rather than on the material that is relevant. For reasons I have already given, that would be contrary to the task it has been given under the AAT Act.

I do not know how long Medicare Australia will take to respond to any request that Mr Rayson may make for his Medicare & PBS histories. I need to allow him time to consider his position and to make any request of Medicare Australia that he wishes to make. At the same time, I cannot let the matter linger. Therefore, I have decided to allow Mr Rayson the 28 days that is allowed for an application for judicial review of this decision should he wish to pursue that course together with a further period to obtain the histories. I will set a further directions hearing after the expiration of that period. Should the time prove to be inadequate for Medicare Australia to respond, an adjustment can be made. For these reasons, I have decided to

direct:

the applicant to obtain and lodge in the Tribunal and serve on the respondent by close of business on 2 June 2009:
(1)a copy of his PBS history maintained by Medicare Australia under the National Health Act 1953; and
(2)a copy of his Medicare history maintained by Medicare Australia under the Health Insurance Act 1973.

I certify that the one hundred and three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .......................................................................
Kate Conners Associate

Date of Hearing  11 March 2009
Date of Decision  7 April 2009
Solicitor for the Applicant            Mr D De Marchi
De Marchi & Associates
Barristers and Solicitors

Solicitor for the Respondent Ms Katie Miller
Australian Government Solicitor

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