Re Jebb and Repatriation Commission
[2005] AATA 470
•24 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/518
VETERANS’ APPEALS DIVISION ) Re JOHN WILLIAM JEBB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date24 May 2005
PlaceAdelaide
Decision The Tribunal directs that:
(a) the Commission is not estopped from contending that the applicant’s condition of diabetes mellitus is not war-caused, and accordingly the parties are at liberty on the hearing of the within proceedings to adduce such evidence as they may be advised in relation to that issue; and
(b) the parties are nevertheless at liberty on the hearing of the within proceedings to adduce such evidence as they may be advised in relation to the applicant’s contention that the Commission is estopped from contending that the applicant’s condition of diabetes mellitus is not war-caused.
D G Jarvis
(Signed)
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2003/518
VETERANS’ APPEALS DIVISION )Re: JOHN WILLIAM JEBB
Applicant
And:REPATRIATION COMMISSION
Respondent
DIRECTION [2005] AATA 470
TribunalDeputy President Jarvis
Date26 September 2005
Date of Decision 24 May 2005
PlaceAdelaide
Pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 the TRIBUNAL DIRECTS the Registrar to alter the text of the reasons for decision in this matter by:
1.amending the figure “127” in paragraph 52 of the decision to “[127]”; and
2.by deleting the word “application”, where that word appears as the second word in the second sentence of paragraph 57 of the decision, and as the last word in that paragraph, and replacing it with the word “action”.
……………………………………
D G Jarvis
(Deputy President)
CATCHWORDS
VETERANS' AFFAIRS - disability pension - whether ischaemic heart disease was war-caused - Statement of Principles in respect of ischaemic heart disease includes factor that veteran suffering from diabetes mellitus before clinical onset of ischaemic heart disease - respondent had earlier accepted that diabetes mellitus was war-caused - meaning of “any matter that affects the payment of a pension” - earlier acceptance by respondent of diabetes mellitus does not give rise to equitable estoppel - whether equitable estoppel, Anshun estoppel or issue estoppel apply to decisions of Repatriation Commission - whether equitable estoppel, Anshun estoppel or issue estoppel apply to decisions of Administrative Appeals Tribunal.
Veterans’ Entitlement Act 1986, s 9, 13, 14, 31, 120, 120A, and 196B
Administrative Appeals Tribunal Act (1975), s 2A, 33, 42B and 44(7)
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v O’Brien (1995) 155 CLR 422
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Gorton (2001) 110 FCR 321
Re Lees and Repatriation Commission [2004] AATA 583
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Commonwealth v Verwayen (1990) 170 CLR 394
Dal Pont and Chalmers : Equity and Trust in Australia (3rd Ed)
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Bramwell v Repatriation Commission (1998) 51 ALD 56
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 83 FCR 82
Davis v Repatriation Commission (1997) 74 FCR 577
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Stuart v Sanderson (2000) 100 FCR 150
BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Benjamin v Repatriation Commission (2001) 70 ALD 622
Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Miller v University of New South Wales (2003) 132 FCR 147
WJ & F Barnes Pty Ltd v FCT (1957) 96 CLR 294
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
REASONS FOR DECISION
24 May 2005 Deputy President D G Jarvis 1. John William Jebb was engaged in operational service in Vietnam from 2 July 1968 until 2 July 1969. By letter dated 27 October 1999 the Repatriation Commission accepted Mr Jebb’s claim for diabetes mellitus, but rejected his claim for ischaemic heart disease (“IHD”). No application was made to the Veterans’ Review Board (“VRB”) or to this Tribunal to review either the acceptance of the claim for diabetes mellitus or the rejection of the claim for IHD.
2. On 17 April 2002, Mr Jebb lodged a claim for pension in respect of IHD. On 1 May 2002 the Commission again rejected the claim for IHD. Mr Jebb then sought review from the VRB, which confirmed the Commission’s rejection of the claim. Mr Jebb applied to this Tribunal for review of the Commission’s decision.
Issues before the Tribunal
3. Mr Jebb’s claim for IHD is based on a contention that he was suffering from diabetes mellitus before the clinical onset of IHD. This is one of the factors in the Statement of Principles (“SoP”) for IHD. In its Statement of Facts, Issues and Contentions dated 30 April 2004, the Commission raised for the first time a contention that Mr Jebb does not satisfy any of the factors in the SoP for diabetes mellitus, and that as a result, neither his diabetes mellitus nor his IHD are war-caused. Mr Jebb contends that the Commission is estopped from raising this contention, because of its acceptance in 1999 that his diabetes mellitus was war-caused. The Commission disputes that the Commission is so estopped in the circumstances of this matter. That issue was set down for argument as a preliminary issue. I cannot, of course, make any declaration as to the parties’ rights in relation to that issue, as this would involve the exercise of judicial power. However, I must determine the issue in order to give appropriate directions as to how the hearing of this matter should proceed.
4. Counsel for Mr Jebb, Mr Ower, accepted that if I decide that estoppel does not apply, then in determining the claim for IHD, I would be bound by the authority of McKenna v Repatriation Commission (1999) 86 FCR 144 to determine whether or not Mr Jebb’s diabetes mellitus was war-caused, and to do so by determining whether any of the factors in the relevant SoP in respect of diabetes mellitus applied. However, Mr Ower formally reserved the right to contend on any appeal from the Tribunal’s decision in this matter that McKenna was wrongly decided.
5. The advocate for the Commission, Mr Crowe, informed me that the Commission proposes, separately from the present proceedings, to determine pursuant to s 31(6)(a) of the Veterans’ Entitlements Act 1986 (“VE Act”), whether it is satisfied that, having regard to matters not before the Commission when the 1999 decision was made, the pension being paid to Mr Jebb in respect of his diabetes mellitus should be cancelled, suspended or decreased, and if so, whether to exercise its discretion to cancel, suspend or decrease Mr Jebb’s pension. He further informed me that the Commission will, however, await the outcome of Mr Jebb’s current application to this Tribunal; and if this Tribunal decides that estoppel does not arise, and that Mr Jebb’s diabetes mellitus is war-caused, then the Commission is unlikely to proceed further with the proposed review under s 31(6)(a).
6. For the reasons set out below I have decided that the Tribunal is not estopped in the present proceedings from deciding, for the purpose of determining Mr Jebb’s claim in respect of IHD, whether Mr Jebb’s diabetes mellitus is war-caused. However, the Tribunal has no jurisdiction in the present proceedings to determine whether the Commission’s 1999 decision to accept that condition as war-caused should be set aside; that issue has not been the subject of any decision by the Commission or of any review by the VRB, and is not before this Tribunal in the present proceedings (see Repatriation Commission v O’Brien (1995) 155 CLR 422 and Langley v Repatriation Commission (1993) 43 FCR 194).
Legislation
7. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. It is common ground that Mr Jebb has performed operational service, as defined in s 6 of the VE Act. The determination of whether his asserted condition of IHD is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, 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 or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
9. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)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.”
10. Section 196B of the VE Act deals with the making of SoPs. It provides in effect that 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 operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting 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 the veteran’s service.
11. The RMA has made SoPs in respect of IHD and diabetes mellitus. I shall refer later in these reasons to the SoPs in respect of these conditions.
12. In view of the Commission’s intimation that it proposes to consider the possible review of Mr Jebb’s pension in respect of his diabetes mellitus, I also refer to s 31(6)(a) of the VE Act. This relevantly provides as follows:
“(6) Where the Commission is satisfied that:
(a)having regard to any matter that affects the payment of a pension … being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension … was made;
…
a pension … should be cancelled or suspended or is being paid at a higher rate than it should be … the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension … .”
Relevant provisions of SoPs
13. The SoP currently in force in respect of IHD is Instrument No. 53 of 2003 (the “IHD SoP”). It has not been suggested that the SoP which was in force at the time of the original decision by the Commission is more beneficial to Mr Jebb than the current SoP in any relevant respect. In these circumstances, and for the purposes of the current aspect of the proceedings, I think it appropriate to regard the current SoP as the applicable SoP (see Repatriation Commission v Gorton (2001) 110 FCR 321).
14. Under clause 4 of the IHD SoP, at least one of the factors set out in clause 5 must be related to the veteran’s operational service. The only factor in clause 5 which is relied upon by Mr Jebb is the factor referred to in paragraph 5(b), namely that he was suffering from diabetes mellitus before the clinical onset of IHD.
15. Clause 7 of the IHD SoP is important to the resolution of the issue before me. It provides as follows:
“7.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.”
16. The SoP in force in respect of diabetes mellitus when the Commission determined Mr Jebb’s claim for that condition was Instrument No. 46 of 1999. This was revoked the day after the Commission’s decision by Instrument No. 82 of 1999, which was later amended by Instrument No. 9 of 2001 and Instrument No. 91 of 2001. Instrument No. 82 has itself since been revoked and replaced by Instrument No. 11 of 2004 (the “Diabetes SoP”). Once again, it has not been suggested that the revoked SoPs are more beneficial to Mr Jebb, and indeed the factors relevant to his claim in the latest SoP appear to be virtually identical to the corresponding factors in the revoked SoPs. For the purpose of the present proceedings, I will regard the current SoP as applicable to his claim.
17. Mr Jebb’s claim for diabetes mellitus was accepted by the Commission in 1999 on the basis that Mr Jebb had been handling herbicides for a period greater than six months whilst in Vietnam prior to the development of that condition (T19, page 122). This satisfied one of the factors in the then extant SoP in respect of diabetes mellitus.
18. However, it appears that the Commission now wishes to reconsider the applicability of the relevant factor. In pre-hearing documents lodged with this Tribunal in the present matter, the Commission has indicated that if Mr Jebb’s application proceeds to a hearing, the Commission intends to call an historian to give evidence, and also to rely on information provided by Mr Jebb himself, to the effect that he did not satisfy the factors in the Diabetes SoP which require him to have been involved in hand decanting or spraying of the relevant herbicides, or in work involving filling, cleaning and maintaining of spray equipment used to apply those herbicides. The historian’s report is dated 21 September 2004. I assume that it is the above evidence and information that was not before the Commission when Mr Jebb’s claim for diabetes mellitus was accepted in 1999, and that the Commission wishes to review Mr Jebb’s pension under s 31(6) of the VE Act for that reason.
Submissions of Counsel for the Applicant
19. As I have already mentioned, counsel for Mr Jebb reserved the right to contend on any appeal from the Tribunal’s decision in this matter that McKenna (supra) was wrongly decided. I also note that Mr Jebb’s Statement of Facts, Issues and Contentions on the preliminary issues includes a contention (in paragraph 17) that McKenna can be distinguished on the grounds that there was no SoP in force at the time of the claim in McKenna, and that Mr McKenna’s claim was determined pursuant to s 120, not s 120A of the VE Act. I do not think that this is a relevant ground of distinction. McKenna requires that the sub-hypothesis entail a connection with the veteran’s war service. Clause 7 of the IHD SoP (to which I referred in paragraph 15 above) expressly requires the issue of whether diabetes mellitus was war-caused to be determined by the SoP in respect of that condition. This is consistent with the regime introduced when s 120A was enacted. However, the basic issue remains the same as the issue in McKenna – that is, whether the condition on which the sub-hypothesis is based (in the present matter, diabetes mellitus) is war-caused.
20. Counsel acknowledged that the doctrine of estoppel turns on the facts of each case. In the present matter it was contended that the “facts” giving rise to estoppel are as follows.
“a.The decision to accept the Applicant’s diabetes mellitus in October 1999; coupled with the fact that the Respondent did not challenge the decision on subsequent review before the VRB; coupled with the lapsing of all review/appeal time limits, is a decision that determined all relevant issues of fact and law. Furthermore, this decision disposed of the issue as a matter of finality between the Applicant and the Respondent, based on the Respondent’s conduct as described.
b.Based on the above, it is irrelevant whether the decision can be interpreted as a ‘judicial determination’ per se. However, the Applicant contends that the decision is consistent with the case law on what types of “determinations” issue estoppel can arise.
c.The decision to accept the Applicant’s diabetes mellitus in October 1999; coupled with the fact that the Respondent did not challenge the decision on subsequent review before the VRB; coupled with the lapsing of all review/appeal time limits:
i.Induced an assumption by the Applicant that the condition was accepted and unchallenged;
ii.The Applicant has relied on the Respondent’s decision;
iii.It was reasonable for the Applicant to rely on the Respondent’s decision; and
iv.The effluxion of time (nearly 5 years) and the failure to agitate the issue of the acceptance of the diabetes mellitus grounds persistence by the Respondent in the Applicant’s assumption that the condition was accepted by the Respondent.
v.Accordingly, it would be unjust and oppressive conduct if the Respondent was allowed to re-agitate the issue with a view to depart from the decision (sic).”
21. The above contentions are not confined to questions of fact, but include asserted propositions of law which are challenged by the Commission. To the extent that the above contentions entail questions of fact, they were not challenged by the advocate for the Commission during the argument before me on the preliminary issue, but Mr Jebb was not called to give evidence, and has not provided any affidavit, to substantiate any of the above factual assertions. I also record that the diagnosis of IHD and diabetes mellitus are not in issue, and that the Commission accepts that the applicant’s assertion that diabetes mellitus is a permanent medical condition.
22. Counsel for Mr Jebb based his argument on equitable estoppel. Counsel accepted that following Langley (supra), issue estoppel did not arise. However, he sought to distinguish the present matter from other decisions to the effect that estoppel did not apply (such as my recent decision in Re Lees and Repatriation Commission [2004] AATA 583) on the grounds, as I understood it, that there were circumstances in those matters which indicated that its decisions should not be regarded as final or conclusive, whereas in the present matter, the Commission had made an unqualified decision that diabetes mellitus, being a permanent medical condition, was war-caused, that question was the subject of or central to Mr Jebb’s claim, that the Commission’s decision was binding on both parties, and it finally disposed of his claim for that condition.
Consideration
23. The circumstances in which equitable estoppel arises were set out by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. His Honour said (at 428.9 to 429.2):
“In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affair.”
24. In Waltons Stores, the representor was guilty of unconscionable conduct. The representee was induced to believe that the representor would enter into a lease of a new building to be erected on the representee’s land. Acting on that assumption, the representee with the knowledge of the representor demolished the improvements on the land and proceeded to erect a new building in the form contemplated by the lease. However, in the meantime, the representor had changed its retailing policy and had no intention of entering into the lease, and it did not advise the representee of this until the new building was approximately 40% complete. Brennan J referred at pages 427 to 428 to the unconscionable conduct on the part of the representor, and immediately before the passage quoted in the preceding paragraph of these reasons, said (at 428.8):
“It is unconscionable to refrain from making the denial and then to leave the other to bear whatever detriment is occasioned by non-fulfilment of the assumption or expectation.”
Mason CJ and Wilson J also emphasised that the doctrine of equitable estoppel “has its basis in unconscionable conduct, rather than the making good of representations” (at page 405.2), and on the facts found that it was unconscionable for the representor, knowing that the other party was exposing itself to detriment by acting on the basis of a false assumption, to adopt a course of inaction which encouraged him in the course he had adopted (see pages 406.7 to 408.1).
25. In Commonwealth v Verwayen (1990) 170 CLR 394 at 440, Deane J emphasised that the doctrine of estoppel by conduct involves considering whether conduct is or is not unconscionable in the circumstances of a particular case. His Honour said (at page 440.8):
“The doctrine of estoppel by conduct is founded upon good conscience. Its rationale is not that it is right and expedient to save persons from the consequences of their own mistake. It is that it is right and expedient to save them from being victimized by other people”.
I refer also to the discussion of unconscionability in Dal Pont and Chalmers : Equity and Trust in Australia (3rd Ed) at pages 312 etc.
26. I conclude from the authorities that actual or constructive knowledge that the representee would act or abstain from acting in reliance on the assumption or expectation induced by the representor is an essential element in the concept of equitable estoppel, and is a necessary element to establish unconscionable conduct on the part of the representor.
Equitable estoppel and public officials
27. Arguments raising estoppel against public officials entail further considerations. It appears well settled that estoppel does not operate so as to sanction the appropriation of public moneys without the authority of the Parliament, and accordingly, estoppel cannot permit action by a public official that is inconsistent with his or her statutory obligations: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125.7; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 107; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17.2.
28. In Formosa, the claimant did not satisfy the statutory requirements for lodging a claim for the aged pension. It was held by a majority of the Federal Court (Davies and Gummow JJ) that the respondent could not be estopped from denying that a claim had been lodged in the requisite form, because this would extend the authority of the decision-maker beyond that given by the statute, and would sanction the appropriation of public moneys without the authority of the Parliament. Similarly, in Bramwell v Repatriation Commission (1998) 51 ALD 56, Weinberg J decided that a tacit concession by the Repatriation Commission that the applicant’s deceased husband had rendered operational service did not estop the Commission from later withdrawing that concession in review proceedings in this Tribunal. Weinberg J pointed out, after referring to Formosa, that the authority of a decision-maker cannot be extended beyond that given by the relevant statute through the mechanism of an estoppel. He continued (at 69.2):
“The question whether the deceased rendered operational service so as to bring into play the provisions of ss 8, and 120(1) and (3) (of the VE Act) seems to me to involve the determination of rights and obligations rather than the exercise of any administrative discretions. The principles laid down in Formosa are, therefore, strongly against this particular contention by the applicant.”
29. The present matter involves determining Mr Jebb’s right to a pension in respect of IHD. It involves determining his right and the Commission’s obligation, and it is not a case involving the exercise of a statutory discretion. Accordingly, estoppel cannot operate to permit the decision-maker to determine the matter other than in accordance with the applicable statutory regime. I now turn to an examination of that regime.
30. Mr Jebb has claimed pension for IHD. Because a SoP has been determined in respect of IHD under s 196B(2) of the VE Act, a hypothesis connecting Mr Jebb’s IHD with his operational service would only be reasonable if the SoP upholds the hypothesis. If it does not, the disentitling provisions of s 120(3) apply; that is, the Tribunal will be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Jebb’s IHD was war-caused. This would mean that Mr Jebb’s claim would fail by virtue of s 120(1).
31. In order to determine Mr Jebb’s claim for IHD, it will therefore be essential for me to consider the material before me by reference to the relevant IHD SoP. That is the process which must be undertaken in order to determine Mr Jebb’s rights and the Commission’s obligation. In Repatriation Commission v Keeley (2000) 98 FCR 108 Lee and Cooper JJ rejected the argument of counsel for the Commission that determinations made by the RMA under s 196B of the VE Act were procedural in character and not substantive. Their Honours said at [40]:
“An analysis of the provisions of ss 120A and 196B, however, shows that those provisions involve more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim a claimant may present.”
Similarly, in the same case Kiefel J said at [76]:
“In my view, the Statements of Principles operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case … .”
32. The Full Court’s decision in Keeley as to the application of current and revoked SoPs was affirmed in Gorton (supra). In Gorton Heerey J said at [39] – [40]:
“An SoP is sui generis as a form of legislative instrument. Counsel were not able to point to anything similar, either in Australia or overseas. But on first principles an SoP seems to be substantive, something which determines rights rather than a procedural measure relating to the enforcement of those rights. The SoP is a ‘statute backed declaration of what is proved or known scientific fact’ … The SoP regime has the effect that the existence or otherwise of stipulated facts will have legal consequences for VE Act pension claimants.”
Allsop J (with whose judgment Emmett J agreed) did not agree with this characterisation by Heerey J of the nature of the SoPs and their context in the VE Act. However, his Honour accepted at [59] that the making of a new SoP would be recognition that the relevant causal connection with the veteran’s service is to be answered on a scientifically up-to-date hypothesis and not on a scientifically obsolete hypothesis. He said that it was “an inadequate description to say that the SoPs are evidential and procedural”. Further, he said in effect (at [62]) that s 120A(3) made it compulsory for the current SoP to be examined, and that the claimant also had an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission’s decision, by force of the Court’s decision in Keeley.
33. Mr Jebb’s claim must accordingly be considered by reference to the IHD SoP. And because the factor relied upon is that he was suffering from diabetes mellitus before the clinical onset of IHD, and this condition is the subject of a SoP, it will be necessary for the Tribunal, when deciding Mr Jebb’s application for review, to determine whether the factors in the relevant SoP in respect of diabetes mellitus apply in accordance with the terms of that SoP (see clause 7 of the IHD SoP). This process will involve identifying the current SoP in respect of diabetes mellitus and determining whether the hypothesis raised in the material before the Tribunal fits the template of any of the factors in that SoP: Repatriation Commission v Deledio (1998) 83 FCR 82. It will also involve considering whether either of the revoked SoPs in respect of diabetes mellitus is more beneficial to Mr Jebb, and if so, examining whether the relevant hypothesis fits any of the factors in that revoked SoP: Gorton (supra). In my view, estoppel cannot be raised against the Tribunal determining Mr Jebb’s claim in the above manner, as that is what is required by the VE Act.
34. The proposition that estoppel should not apply in the circumstances of the present matter is reinforced by the provision in the VE Act for the RMA to review and update SoPs (see s 196B(7)). An earlier acceptance of a particular condition might be inappropriate if new medical-scientific evidence has become available and has resulted in the making of a new SoP. Such a SoP might have the effect that an hypothesis linking a particular claimed condition with war service would not be consistent with any of the factors in the later SoP, and the veteran might not be able to rely on the earlier SoP under Gorton, if the earlier SoP has been repealed before the relevant Commission decision.
35. There may, of course, be cases where the relevant factor in the SoP extant at the time of the earlier decision is not materially different from the corresponding factor in a later SoP. The present matter appears to be such a case. In these circumstances, no doubt the decision-maker would generally accept the earlier determination that the claimed condition was war-caused. However, in my view the decision-maker would still be obliged to consider this issue, and to do otherwise would be inconsistent with his or her obligations under the Act. If the decision-maker has become aware of relevant new information he or she should not be estopped from considering it, and in appropriate circumstances, making a different determination from the earlier determination.
36. It is also relevant that under s 31(6)(a), the Commission has a discretion to cancel, suspend or decrease a pension after having appropriate regard to any matter that affects the payment of a pension which was not before the decision-maker when the decision to grant the pension was made. Mr Ower formally reserved the applicant’s position in relation to the extent of the Commission’s powers under s 31(6)(a). However, a “matter” relied upon by the Commission can be new material not in existence at the time of the original decision: Davis v Repatriation Commission (1997) 74 FCR 577. In that case Sundberg J decided that a medical report was a “matter that was not before” the decision-maker when the relevant decision was made notwithstanding that it was not in existence at the time when the decision was made.
37. The relevant matter must also be one that “affects the payment of a pension” under s 31(6)(a). These are words of wide import, and on their face would, I think, extend to new material relevant to the issue of whether the veteran’s condition was war-caused. As to this issue, I note that a later section, s 31(6B), provides that the cancellation of a pension under s 31(6A) (on the grounds that the degree of the veteran’s incapacity is less than 10%) does not affect a decision to the effect that the veteran is suffering from a war-caused injury or disease. This suggests that in other circumstances, the power of review under s 31(6)(a) might affect such a decision. I therefore consider that the VE Act contemplates that a determination that a condition is war-caused may be affected by the process of review under s 31(6)(a). The existence of this power reinforces my conclusion that the decision-maker cannot be estopped by an earlier decision from deciding all issues that the VE Act requires to be decided, including whether a condition is war-caused, in order to determine a later claim, by reason of an earlier acceptance of that condition.
38. The fact that the assertion that Mr Jebb’s diabetes mellitus is said to be war-caused is a sub-hypothesis of his claim for a different condition, namely IHD, is also relevant in my view. The Commission’s previous acceptance that diabetes mellitus was war-caused should not preclude the Commission from examining again the facts relevant to that earlier acceptance of the condition if further claims are brought based upon an hypothesis that diabetes mellitus was war-caused. It is one thing for the Commission to accept the initial claim for that condition, but that acceptance should not of itself prevent the Commission from examining the matter afresh where further claims are made based on that condition which would increase the Commonwealth’s liability for pension.
39. Finally, I observe that it will be necessary for the Tribunal, when deciding Mr Jebb’s application for review, to determine under the IHD SoP whether Mr Jebb was suffering from diabetes mellitus before the clinical onset of IHD. The Tribunal will therefore need to explore the facts surrounding his diabetes mellitus at least to that extent. If in the course of doing so it appeared that that condition was not war-caused, it would be unsatisfactory for the Tribunal to be estopped from making a finding that as a result, that condition, and so his IHD, was not war-caused.
40. My above conclusions are, I think, supported by Langley (supra). In that case, the Commission had accepted in 1984 that the veteran’s condition of pancreatis was war-caused. He later claimed pension for diabetes, alleging that his pancreatis contributed to his diabetes. The Full Court of the Federal Court held that on considering the claim for diabetes, this Tribunal could not review the earlier determination that pancreatis was war-caused (because that issue had not been referred to the Tribunal for determination), but decided that the Tribunal could consider afresh the facts which underpinned that earlier determination, when it was necessary to do so, in order to discharge its statutory function of determining the later claim for diabetes. The Court further held that the statutory scheme meant that the circumstances did not give rise to cause of action estoppel. The Court said (at 201):
“There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the commission cannot review the earlier determination; but it may consider afresh the facts which underpinned the earlier determination where it is necessary to do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination.”
41. I also consider that the facts asserted by Mr Jebb, as set out in paragraph 20 above, would not in any event be adequate to raise estoppel against the Commission. In particular, those facts do not demonstrate how Mr Jebb has acted to his detriment, bearing in mind that if I am correct in my interpretation of s 31(6)(a) of the VE Act, the Commission had a right to review Mr Jebb’s pension, and this right was not dependent on Mr Jebb making a further claim for some other condition. Additionally, it is not asserted that the Commission had actual or constructive knowledge that Mr Jebb had acted or would act to his detriment, or that it intended him to do so. If that is the position, it could not be said that the Commission had been guilty of unconscionable conduct, and equitable estoppel would not arise.
Anshun estoppel
42. In the course of his argument, Mr Ower also referred to Anshun estoppel, a doctrine which takes its name from the Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This form of estoppel applies where a party has behaved unreasonably in not raising a matter in earlier proceedings, and so is not permitted to litigate that matter in later proceedings except in special circumstances.
43. In Stuart v Sanderson (2000) 100 FCR 150, Madgwick J rejected (at [24]) an argument that Anshun estoppel does not apply to administrative decisions. In that case there had been hearing before a summary authority of a charge under the Defence Force Discipline Act 1982 (Cth) and this resulted in an unsuccessful application to the Federal Court for judicial review. Later the applicant filed a second application for judicial review based on a ground that was raised in a general way in the first application. His Honour’s remarks were accordingly made in circumstances where there had been successive hearings in the Federal Court, and his Honour’s rejection of the general proposition that Anshun estoppel does not apply to administrative decisions should be understood in that context.
44. Anshun estoppel was also applied in BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60, where following a remittal from the High Court, the Federal Court refused to allow an argument which had not been put on an earlier Federal Court appeal from a decision of this Tribunal. Again, although the proceedings arose from an administrative decision, the doctrine was applied where there was a second hearing in the Federal Court, and related to the question of what issues could be raised in later court proceedings; the case did not relate to a situation where Anshun estoppel was asserted in proceedings in this Tribunal.
45. Anshun estoppel entails considerations of abuse of process and the propositions that persons should not be subjected to multiple proceedings for the same cause, litigation should come to an end, inconsistency should be avoided and judgments should be regarded as final. It seems to me that it would generally be inappropriate to apply this doctrine in a way which would prevent parties from raising issues before this Tribunal which could have been raised before an original decision-maker. An application for review to this Tribunal involves a re-hearing of the relevant application, and the Tribunal determines the application on the material before it, and not on the material before the original decision-maker. Further, applications to the Tribunal generally involve the reception of evidence, the ability of both parties to cross-examine witnesses, and frequently parties are represented. There is an opportunity for the hearing before this Tribunal to investigate issues more thoroughly than can generally occur when the primary decision is made. These considerations would, in my view, make Anshun estoppel inappropriate to hearings in this Tribunal, because it would impede the Tribunal in carrying out its function of arriving at the correct or preferable decision (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 - 69).
46. Some of the above considerations may not apply if Anshun estoppel were sought to be raised not in relation to a decision of an original decision-maker, but in a later Tribunal hearing in respect of issues which could have been raised at an earlier Tribunal hearing. Under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) this Tribunal has flexible powers to conduct its procedure. These powers would in my view enable the Tribunal to apply the doctrine of Anshun estoppel. In considering whether it was appropriate in a particular matter to do so, the Tribunal would, I think, need to consider ss 2A and 39 of the AAT Act. Section 2A provides in effect that in carrying out its functions, the Tribunal must “pursue the objective of providing a mechanism for review that is fair, just, economical and quick”. Section 39 requires the Tribunal to ensure that every party is given a reasonable opportunity to present his or her case. There is a potential for tension between some of the foregoing functions and requirements. The provisions of s 39 of the AAT Act, and the requirement for the Tribunal to arrive at the correct or preferable decision, suggest that the Tribunal should be reluctant to apply Anshun estoppel to prevent a party from raising a relevant issue. However, this will no doubt depend on the facts of each case. The present matter does not entail successive hearings in this Tribunal, and it is unnecessary to resolve whether the doctrine should apply in such circumstances, and if so, how the doctrine should be used to achieve an appropriate balance in the Tribunal’s decision-making process.
47. In the present matter, it appears that new evidence has emerged in relation to the question of whether Mr Jebb’s diabetes mellitus is war-caused. There is power for the Commission to review its earlier decision under s 31(6)(a) of the VE Act. The question of estoppel has arisen not in connection with a review of the Commission’s earlier decision to accept diabetes mellitus as war-caused, but in connection with a claim for a separate medical condition. The acceptance that that condition was war-caused was not an earlier Tribunal decision, but a decision of the Commission.
48. For the reasons referred to in the preceding paragraph, I consider that it is inappropriate to apply the doctrine of Anshun estoppel against the Commission in the present matter.
Issue estoppel
49. As mentioned in paragraph 22 above, counsel for Mr Jebb accepted that following Langley (supra) issue estoppel did not arise. I do not think that this position necessarily follows from Langley. In my view, the remarks of Lockhart and Beazley JJ in relation to this issue were obiter dicta, in view of their Honours’ decision that the Tribunal had no jurisdiction to consider the issue in question. Having regard to the inquisitorial role of this Tribunal, I am not bound by the case articulated by the applicant: Benjamin v Repatriation Commission (2001) 70 ALD 622.
50. The concept of issue estoppel was explained by Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 531.9 – 532.3 as follows:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or restrained or that rights be declared. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.”
51. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526, the then President of this Tribunal, O’Connor J, and Member Barbour suggested without deciding the point that issue estoppel could apply to control the re-litigation of issues decided by an earlier Tribunal decision. However, these comments were made before the enactment of s 42B of the AAT Act, which would empower the Tribunal to dismiss a subsequent application which sought to re-litigate issues which had been the subject of an earlier Tribunal decision. A number of the cases which discussed the availability of issue estoppel in relation to decisions of this Tribunal were decided prior to the enactment of s 42B, and comments supporting the availability of estoppel in later Tribunal hearings might no longer be apposite. I also note that in Quinn, O’Connor J and Member Barbour also said (at 526.4):
“The Tribunal is of the view that estoppel does not apply where there is a different decision, a clear legislative intent, the reconsideration decision is not “final” and there has been prima facie a change in circumstances.”
52. A large number of authorities dealing with whether issue estoppel can arise from decisions of tribunals are referred to by Ryan and Gyles JJ in Miller v University of New South Wales (2003) 132 FCR 147 at [48] – [76]. Their Honours deal with the application of issue estoppel to decisions of this Tribunal at [61]. It is apparent from their review of the cases that there are two conflicting lines of authority, and that the application of the doctrine to this Tribunal has not been authoritatively determined. However, at [64] their Honours refer in particular to two authorities, which they said might be “decisive” of “(c)ases which concern a tribunal which is truly administrative in the sense that it stands in the shoes of the original administrative decision-maker, and has power to substitute its own decision for the original decision” (although they proceeded to say that the appeal with which they were then concerned was not such a case). The first of these authorities was what they described as the “bald” statement by Kitto J in WJ and F Barnes Pty Ltd v FCT (1957) 96 CLR 294, where his Honour said (at 314 – 15) in relation to a decision of a Taxation Board of Review:
“We know that the board of review, when considering the company’s assessment to ordinary income tax, considered that the payments were not allowable deductions on any ground. The board’s decision was not, of course, an adjudication; it was administrative in character, and could not create an issue-estoppel.”
The other case to which their Honours referred was Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123. In that matter Davies J dealt with a case where a judge of the Supreme Court of Queensland refused to grant a declaration relating to the status of the occupation of “conveyancer” in that State. It was argued that the refusal of the declaration gave rise to an issue estoppel in subsequent proceedings in this Tribunal. Davies J (with Spender J agreeing) rejected this contention, and said at 127:
“The decision-making powers were conferred by the MR Act upon the registration authorities and the Tribunal, not the courts. The Supreme Court may well have had a review function in relation to decisions of its Registrar. But, even so, it was concerned only with decision-making at the first level. The function of the Tribunal was to form its own view and to come to the ‘correct or preferable’ decision … . The Tribunal was therefore bound to arrive at its own finding of fact.” [citation omitted]
53. Whilst the position has not been decided by Miller, the “truly administrative” character of this Tribunal, which must arrive at the correct or preferable decision after ascertaining the relevant facts and issues and applying the relevant law in a de novo hearing, and which stands in the shoes of the original decision-maker but with power to arrive at its own determination of what is the correct or preferable decision, leads me to conclude that as a general rule, issue estoppel will not arise from decisions of this Tribunal, and will only arise where the legislation conferring jurisdiction on the Tribunal provides expressly or by implication that its decision in relation to particular issues will be final and binding. When considering whether issue estoppel arises from a particular decision it will therefore be necessary to consider the legislation under which the decision was made.
54. In the present matter, the relevant legislation is the VE Act. In my opinion, that Act recognises that the later claim for IHD must be determined on the basis of all of the information and evidence currently available to the Tribunal, and by reference to the current state of medical and scientific knowledge, as formulated in the relevant SoP for the claimed condition of IHD, and in the SoP in respect of diabetes mellitus. The earlier Commission decision to accept that diabetes mellitus was war-caused was made in response to a claim for that condition, and was subject to review under s 31(6)(a) of the Act. In my view, that decision should not give use to estoppel when that issue arises in a collateral way in connection with a claim for a different condition which would potentially increase the Commonwealth’s liability for pension under the VE Act.
55. When considering the application of issue estoppel in this matter, it is also necessary to take into account that the decision which is said to give rise to the estoppel was a decision of the original decision-maker, and not an earlier decision of this Tribunal. The manner in which this Tribunal carries out a merits review, as expounded in paragraph 45 above, is relevant to the question of issue estoppel, as well as to the possible application Anshun estoppel, and would suggest that issue estoppel cannot be raised against the Commission by Mr Jebb.
56. I accordingly conclude that for all of the above reasons that issue estoppel cannot be raised against the Commission in the present proceedings.
Estoppel and exercise of discretionary powers
57. Certain of the cases to which I have referred (and a number of other authorities) draw a distinction between cases involving rights and obligations on the one hand, and cases involving the exercise of administrative discretions on the other hand. The application which the Commission has foreshadowed in the present matter to consider cancelling, suspending or reducing Mr Jebb’s pension in respect of diabetes mellitus under s 31(6)(a) of the VE Act will involve the exercise of a discretion by the Commission. If Mr Jebb seeks to raise estoppel when that matter is considered, other considerations will potentially arise. Generally, estoppel cannot be raised to prevent a decision-maker from exercising a discretion, particularly where the discretion is one which affects the public interest. In Attorney-General (NSW) v Quin (supra) at 18, Mason CJ referred to a possible exception to the exclusion of the doctrine of estoppel when he said:
“… and, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion … .”
As Gummow J pointed out in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, this approach would involve a court in assessing the merits of the exercise of a discretionary power, and would potentially involve policy and political issues which are not the province of courts by virtue of the separation of powers in Australia. However, this consideration would not apply to the Tribunal, in that in reviewing administrative decisions, it is acting as an arm of the executive Government. However, it is not appropriate in the present proceedings for me to make any comment about issues which may potentially arise if the Commission proceeds with its foreshadowed application.
Summary and Conclusion
58. For the above reasons I do not think that the Commission is estopped in the present proceedings, under any of the doctrines of estoppel, from raising the question of whether Mr Jebb’s diabetes mellitus is war-caused.
59. However, in case there is any appeal from the Tribunal’s ultimate decision in this matter, I think that it would be appropriate to permit the parties, at the hearing, to adduce such evidence as they may be advised in relation to Mr Jebb’s argument that the Commission is estopped from disputing that his diabetes mellitus is war-caused. The Tribunal will then be in a position to make findings of fact in the light of such evidence, and this should enable the Federal Court on any appeal from the Tribunal’s decision to decide whether or not estoppel applies. Alternatively, the Tribunal member conducting the hearing may decide, in view of my present decision, not to make any findings of fact relevant to the question of estoppel. This would then also leave the Federal Court, on any appeal, in a position where, if it took a different view of the availability of estoppel, it could make relevant findings of fact pursuant to the powers recently conferred on it by s 44(7) of the AAT Act.
Decision
60. I direct that:
(a)the Commission is not estopped from contending that the applicant’s condition of diabetes mellitus is not war-caused, and accordingly, the parties are at liberty on the hearing of the within proceedings to adduce such evidence as they may be advised in relation to that issue; and
(b)the parties are nevertheless at liberty on the hearing of the within proceedings to adduce such evidence as they may be advised in relation to the applicant’s contention that the Commission is estopped from contending that the applicant’s condition of diabetes mellitus is not war-caused.
I certify that the 60 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
B Bills AssistantDate/s of Hearing 11 February 2005
Date of Decision 24 May 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe and Mr S Campbell
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