Re Kowalski and Military Rehabilitation and Compensation Commission
[2007] AATA 1988
•28 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1988
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos S 2005/112, 2005/308,
VETERANS’ APPEALS DIVISION ) 2005/309 and 2006/185 Re KAZIMIR KOWALSKI Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President B T Lander
Dr E Eriksen, MemberDate28 November 2007
PlaceAdelaide
Decision The Tribunal:
(a) allows the applicant’s application to make the following further submissions:
1. Letter from the applicant to the AAT dated 6 February 2007
2. Letter from the applicant to the AAT dated 7 February 2007
3. Letter from the applicant to the AAT dated 7 February 2007
4. Letter from the applicant to the AAT dated 7 February 2007
5. Letter from the applicant to the AAT dated 8 February 2007
6. Letter from the applicant to the AAT dated 9 February 2007
7. Letter from the applicant to the AAT dated 10 February 2007
8. Letter from the applicant to the AAT dated 13 February 2007
9. Letter from the applicant to the AAT dated 15 February 2007
10. Letter from the applicant to the AAT dated 16 February 2007
11. Letter from the applicant to the AAT dated 16 February 2007
12. Letter from the applicant to the AAT dated 16 February 2007
13. Letter from the applicant to the AAT dated 17 February 2007
13.1 Letter from the applicant to the AAT dated 6 November 200614. Letter from the applicant to the AAT dated 18 February 2007
15. Email from the applicant to the Deputy Registrar dated 23 February 2007
16. Letter from the applicant to the Deputy Registrar dated 23 February 2007
17. Letter from the applicant to the AAT dated 24 February 2007
18. Letter from the applicant to the AAT and the Deputy Registrar dated 25 February 2007
19. Letter from the applicant to the AAT and the Deputy Registrar dated 1 March 2007
20. Email from the applicant to the AAT and the Deputy Registrar dated 2 March 2007
21. Letter from the applicant to the Deputy Registrar dated 16 March 2007
22. Letter from the applicant to the AAT dated 17 March 2007
23. Page 298 of Volume 66 of the Australian Law Journal “Practical Evidence”
24. Re Gessara and the Commonwealth of Australia and Comcare (1989) 19 ALD 559
(b) dismisses the applicant’s application to tender the following as further evidence:
1. Conference notes prepared by J Fountain and approved by Prof A C McFarlane (29 April 1993)
2. Dr J Sangster’s medical report dated 3 September 1998
3. Letter from Dr J Sangster of Mr K Kowalski dated 23 April 2001
4. Dr P Hetzel’s medical report dated 22 September 1998
5. Dr P Aylward’s medical report dated 19 October 1998
6. Dr K Jagermann’s medical report dated 3 July 1998
7. Letter from Prof Murray Esler to Mr Kowalski dated 18 May 1998 plus the attachment in the form of a Press Release titled “Stress and the Heart” dated October 1997
(c) allows the applicant’s application to tender the following as further evidence:
1. 1 page printed from the internet describing the anti-anxiety drug called “Librax”
2. E-mail from the applicant to Roche Australia dated 13 February 2007
3. E-mail from Roche Australia to the applicant dated 23 February 2007
4. 8 pages printed from the internet describing the class of “Benzodiazepine” drugs
5. The front page and pages 20, 21, 77, 319 and 320 of the book “A Nation at War”.
..............................................
B T Lander
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application by applicant to re-open case to make further submissions and to tender further evidence – whether AAT has discretion to grant leave – whether AAT should be guided by the rules of evidence and procedure as applied in courts of law – application allowed.
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(b) and (c) and 39(1),
Safety Rehabilitation and Compensation Act 1988 (Cth) s 64
Bushell v Repatriation Commission (1992) 175 CLR 408
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491
R v Theophanous (2003) 141 A Crim R 216
R v Zhong (2003) 139 A Crim R 220
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
REASONS FOR DECISION
28 November 2007
Deputy President B T Lander
Introduction
1. The applicant who is unrepresented has brought an application pursuant to s 64 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) seeking a review by the Administrative Appeals Tribunal (“AAT”) of four separate reviewable decisions made by the respondent, the Military Rehabilitation and Compensation Commission (“MRCC”).
Background
2. The applicant was born in Poland on 7 August 1947. He immigrated to Australia as a child. In 1967 he was conscripted to serve in the Australian Army. He delayed his entry into the Army for a period of time but eventually entered the Army on 20 April 1972 and served until his discharge on 19 October 1973. On 1 August 1972, after completing basic training, the applicant was stationed at the Amberley base, where he worked as a draughtsman. It is the period of the applicant’s employment in the Army that gives rise to the decision under review.
3. The applicant claims that after being conscripted in 1967 he suffered stress as a result of a number of factors associated with his service in the Army. The applicant submits that his stress was exacerbated by an incident on the base in 1973. The applicant claims that this stress caused a duodenal ulcer. A barium meal undertaken on 31 July 1973 showed that the applicant had a duodenal ulcer. He says that the stress later caused further medical problems including hypertension and cardiac problems which in turn gave rise to a bypass.
Decisions before the AAT
4. In matter number S2005/112, the applicant seeks review of a decision of the respondent of 22 April 2005 which affirmed a primary determination of the MRCC of 10 December 2004. The determination disallowed a claim for compensation for “major depression and generalised anxiety, heart attack and open heart surgery” and “obesity and Type 2 diabetes” arising out of the applicant’s service in the Army.
5. The applicant also seeks review of a second decision of the respondent dated 11 November 2005 (S2005/308), which affirmed a determination of 22 June 2005 that the applicant was not entitled to receive incapacity benefits in respect of a duodenal ulcer.
6. In S2005/309, the applicant seeks review of a third decision of a review officer of 11 November 2005 affirming a determination of the respondent of 6 May 2005. The review officer determined that the applicant was not entitled to compensation for permanent impairment from a duodenal ulcer.
7. Finally, in matter number S2006/185, the applicant seeks review of a decision of a review officer of 30 June 2006 which reviewed a determination of the respondent of 22 May 2006. The primary determination denied the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-ecomonic loss for psychological and/or a psychiatric illness. The reviewable decision, made pursuant to s 62 of the 1988 Act, revoked the primary determination and instead decided that a determination about the applicant’s claim would be delayed until such time as liability was accepted to pay compensation under s 14 of the 1988 Act in respect of the claimed psychological or psychiatric condition in S2005/112.
8. The hearing of the review commenced on Tuesday, 17 October 2006 when the applicant gave evidence in support of his application. He was cross-examined on that day and the following day when his evidence completed.
9. On the third day the respondent called Professor Goldney, a psychiatrist, who was cross-examined by the applicant. His evidence completed on that day.
10. The applicant desired to call a psychiatrist, Dr Thompkins but claimed that he was unable to meet Dr Thompkins’ fees. On 15 December 2006 the AAT agreed to call Dr Thompkins at the AAT’s expense.
11. Between that date and Wednesday, 31 January 2007, the applicant wrote a number of letters to the AAT and sought Lander J’s disqualification for bias. On 31 January 2007, after consideration of the applicant’s complaints, Lander J refused to disqualify himself.
12. On 5 February 2007 Dr Thompkins gave his evidence. He was examined by the applicant, cross-examined by the respondent’s counsel and re-examined by the applicant. On the same day, the respondent called Dr Donald Reid, a physician, who was cross-examined by the applicant.
13. The respondent’s counsel commenced his closing submissions and all submissions, including the applicant’s, were completed by Tuesday, 6 February 2007. The AAT advised that it would reserve its decision.
14. Shortly after the decision was reserved the applicant commenced to write to the AAT in relation to various matters.
15. Between 6 February 2007 and 17 March 2007 the applicant wrote 22 letters which contained further submissions in relation to his application.
16. We set out, for completeness, the further letters and submissions made by the applicant during the period mentioned. We have attempted to identify in summary form the salient points which were made in each of the letters:
1. Letter from the applicant to the AAT dated 6 February 2007
This letter includes a reference to the High Court decision in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J (“Bushell’s Case”):
Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
The applicant also refers to The Commonwealth v Muratore (1978) 141 CLR 296 at 303 per Murphy J:
Where a variation of a previous determination (by the Commissioner or on appeal) is made by the Commissioner and judicial review is sought, the onus is on the Commonwealth to prove the facts and circumstances which justify the variation. It is a simple application of the principle that he who asserts must prove.
The applicant relies on these cases to submit that if the respondent seeks to vary its previous determinations in respect of his stress related ulcer, it has the onus to establish the facts and circumstances which would justify the variation of its previous determinations.
The applicant also attached PT1 (pg 24) of the S2005/112 T-documents to this letter, which sets out the definition of injury under the Compensation (Australian Government Employees) Act 1971 (Cth) (“1971 Act”) and the other relevant provisions for determining liability. He states that it is this 1971 Act that applies to all of his claims.
2. Letter from the applicant to the AAT dated 7 February 2007
The applicant again cites the extracts from Bushell’s Case 175 CLR 408 and Muratore 141 CLR 296 as set out in paragraph 1. The applicant attached pages 72 and 73 of the T-documents in S2005/308, which was the primary determination in which his claim for incapacity payments for his duodenal ulcer was refused. He claims that Dr Reid’s evidence that in the mid 1980’s most doctors thought Helicobacter pylori was the cause of ulcers was untrue. The applicant alleges bias on the part of Lander J.
3. Letter from the applicant to the AAT dated 7 February 2007
This letter encloses items ‘1’-‘7’ of the list of further evidence to which we will refer. The applicant alleges both impropriety on the part of the respondent and bias against Lander J. The letter again repeats the extract from Bushell’s Case 175 CLR 408.
4. Letter from applicant to the AAT dated 7 February 2007
This letter again includes the same extract from Bushell’s Case 175 CLR 408. The applicant alleges impropriety against counsel for the respondent when, before the AAT on 6 February 2007, he stated that the applicant had been promoted in the Army. The applicant submits that if Lander J does not find such impropriety exists, that he is biased.
5. Letter from applicant to the AAT dated 8 February 2007
The applicant alleges that when counsel for the respondent cross-examined him on 18 October 2006 he misled the AAT by stating on 6 February 2007 that he had cross-examined the applicant on the contents of his affidavits, when he had not. The applicant states that as he was not cross-examined on his affidavits, the AAT has a legal obligation to accept all the facts as found in the affidavits that he has filed. He cites authority which he says supports this proposition. The applicant again repeats the accusations concerning counsel for the respondent in relation to the issue of the applicant being promoted (raised initially by the applicant in the previous submission above). This letter annexes ‘8’ from the list of further evidence below, a page from the Australian Law Journal, “Practical Evidence – Affidavits”.
6. Letter from applicant to the AAT dated 9 February 2007
The applicant relies on Dr Eriksen’s statement made on 18 October 2006 where Dr Eriksen said, “I think that you can only take medical evidence as it was at the time. We can’t use our present reason and make retrospective assessments” to state that as the respondent does not submit that the decision regarding the duodenal ulcer was wrong at the time it was made, it accepts that during the course of the applicant’s employment in the Army that he suffered an accepted compensable stress caused ulcer that caused him a 15% disability.
7. Letter from the applicant to the AAT dated 10 February 2007
Again after reviewing the transcript of proceedings, the applicant identifies several statements made by counsel for the respondent and alleges impropriety on the part of counsel in deliberately misleading the AAT. He gives an instance of the alleged impropriety by counsel stating to him “I think there might even be some of your handwriting on the copy we have got” when referring to Prof AC McFarlane’s draft report, whilst knowing it was in fact Prof McFarlane’s writing; stating “And some deed of release was signed by yourself and your wife” whilst knowing that the applicant and his wife only signed a Heads of Agreement; stating “I would suggest you did it consciously, Mr Kowalski, that you left out this issue because it was only a few days prior, on 16 August 1991, that you had the flashback and you took it upon yourself when you were examined by him a few days later not to tell him…I suggest to you that you didn’t tell Dr Jagermann anything about your Army service, having a duodenal ulcer, having been stressed, any of that material when you went and saw him initially in 1991” whilst knowing that Dr Jagermann referred in his report to Mr Kowalski’s anxiety problem years ago; and for cross-examining Mr Kowalski on a document that was not included in the T-documents.
8. Letter from the applicant to the AAT dated 13 February 2007
This letter alleges that when counsel for the respondent said the following he deliberately provided false information to the AAT:
-On 5 Feb 2007, “Those figures relate to the United States. What Mr Kowalski is quoting from is about American Marines, now Australian conscripts…”, even though he knew the figures related to Australian soldiers;
-On 5 Feb 2007, when he said “in 2005, on 11 April, after he had lodged…the claim for compensation…” when the claim was in fact lodged on 11 April 2004;
-On 5 Feb 2007 by stating “Regardless of what the degree or contribution may be…On balance, it’s not probably that he suffered from anxiety. It is no more than a possibility…These documents don’t support it being a probability” when in fact he knew that Mr Kowalski had been prescribed Librax for anxiety and that Dr Jagermann had referred to Mr Kowalski having suffered from anxiety.
-That on 5 Feb 2007 by asking Dr Thompkins to “accept that here, Librax was a medication that was…prescribed by gastroenterologists for people suffering from duodenal ulcer?” whilst fully aware that Mr Kowalski had been prescribed the anti-anxiety medication Librax and that Dr Jagermann had stated that he had had an anxiety problem years ago.
-On 5 Feb 2007 by stating to Dr Thompkins “Professor Goldney, I want you to assume, has given evidence that if Mr Kowalski had been suffering from anxiety prior to discharge that it would be more likely that he would have been diagnosed and prescribed Librium rather than Librax in 1973” whilst knowing the applicant was prescribed the anti-anxiety medication, Librax and that Dr Jagermann had stated that he had had an anxiety problem years ago.
-On 5 Feb 2007, by asking Dr Thompkins, “…would you conclude then that Mr Kowalski, from your examination of him, wasn’t suffering from anxiety prior to 1991?” knowing that Mr Kowalski had been prescribed Librax and that Dr Jagermann had stated that he had had an anxiety problem years ago.
-By stating that Mr Kowalski did not have anxiety in 1973 as he did not have any time off whilst in the Army, even though he knew that when Mr Kowalski had asked Dr Thompkins whether it was possible that he was disabled due to his psychological mental condition but still capable of working, Dr Thompkins replied “…It is highly probable…Most people with anxiety symptoms come to work five days a week.”
This letter also attached document ‘9’ from the evidence list below which gives descriptions of Librax and Librium.
9. Letter from the applicant to the AAT dated 15 February 2007
This letter claims that there are a number of deficiencies in Dr Reid’s testimony and accuses him of deliberately trying to mislead the AAT and prejudicing the applicant’s case.
10. Letter from the applicant to the AAT dated 16 February 2007
This letter includes an extract from the transcript of proceedings of a comment made by Lander J to counsel for the respondent on 6 February 2007, which the applicant submits supports his case:
“…I am not sure at the moment I am persuaded that if a person contracts a disease which lays dormant and is then made – it then arises by a supervening event, that the employer can escape liability because it is a supervening event, because it was the employer that has caused the condition, which had laid dormant…The susceptibility to the supervening event has been caused by the employment. And the employer had put in place the time bomb. It seems to me the employer can’t escape liability by someone else has pulled the pin.”
The applicant draws the AAT’s attention to Dr Thompkins’ evidence where he stated that he could have still worked in the Army whilst suffering from anxiety and also that Dr Jagermann informed him that when he suffered his breakdown in 1991, it was the final straw that broke the camel’s back. The applicant submits that his 16 August 1991 mental breakdown was a supervening event that was caused by or contributed to, by his employment in the Army.
11. Letter from the applicant to the AAT dated 16 February 2007
This letter contains a submission that the applicant’s anxiety should not fall to be determined under the 1988 Act, as the respondent contends, because it was first diagnosed by Dr Jagermann in 1991. Rather, he submits it should be determined under the 1971 Act as he had been prescribed the anti-anxiety medication Librax since 1973 and his anxiety was a result of his service in the Army. He repeats this submission that his claim falls to be determined under the 1971 Act at the end of the letter.
The applicant further submits that the evidence proves on the balance of probabilities that his employment in the Army contributed to the development of his diseases, rather than the employment having contributed on the balance of possibilities, as stated by counsel for the respondent. The applicant contends that in any event the correct test under the 1971 Act is not the balance of probabilities, as there is no reference to this phrase in the Act.
The applicant again alleges impropriety on the part of the respondent’s counsel by stating that “Mr Kowalski…had a fairly unexceptional period of enlistment until the Whitlam Government ceased conscription” and also by counsel having stated that Australia withdrew its troops from Vietnam by Christmas 1971. The applicant refers to a fax he sent to the AAT on 21 January 2007 which stated the withdrawal of the last Australian troops from Vietnam was in June 1973. The applicant contends that there was therefore not “absolutely no prospect” of him killing and being killed in Vietnam, rather it was a real threat. The applicant submits that his fear was not irrational, as claimed by counsel for the respondent. The applicant also contends that it was not just those stress factors that occurred after December 1972 when National Service finished, that could have given rise to any of his compensable diseases.
12. Letter from the applicant to the AAT dated 16 February 2007
Again, the applicant alleges extensive impropriety on the part of Dr Reid by reference to his oral testimony and expresses surprise at Lander J stating that he thought “Dr Reid was a very good witness” because, he contends, Dr Reid provided false and misleading testimony to the AAT.
13. Letter from the applicant to the AAT dated 17 February 2007
The applicant alleges impropriety again on the part of the respondent’s counsel by referring extensively to counsel’s closing submissions. The applicant also states that Lander J misled him in order to prejudice his case by stating that counsel did not say something that he in fact did and by not allowing the applicant to tender further evidence prior to the case being finalised. The applicant attached a letter dated 13 November 2006 to this letter which contained further submissions, but this letter was then independently submitted by the applicant as ’13.1’ (below).
The applicant also refers to all of his “uncontested affidavits” (mostly tendered as exhibits at the hearing) to state that as they were not contested by the respondent, they are therefore the facts before the AAT.
13.1Letter from the applicant to Lander J and the Deputy Registrar of the AAT dated 13 November 2006
The applicant submits that the respondent should have called Dr Thompkins to give oral evidence, rather than the Deputy Registrar of the AAT having done so. The applicant also submits in this letter that the Deputy Registrar’s advice to him that the case may be closed and that the applicant may need leave to reopen the case to enable the applicant to adduce further evidence was in contradiction to Bushell’s Case 175 CLR 408, from which he again quotes. The applicant also repeats the extract from Muratore 141 CLR 296 cited above.
14.Letter from the applicant to the AAT dated 18 February 2007
This letter repeats the applicant’s contention that the 1971 Act applies because it was in June 1973 that he first sought treatment for his psychiatric condition. Moreover, he claims that because he first sought treatment for hypertension in 1982 or 1984 and because that hypertension caused the ensuing heart conditions, the 1971 Act also applies for those reasons. He claims that although he suffered a breakdown in August 1991, this was caused by the stress and anxiety to which he was subject from 1973.
15.Email from the applicant to the Deputy Registrar dated 23 February 2007
This e-mail informed the Deputy Registar that the applicant would seek to tender all of the abovementioned letters as evidence to the AAT.
16.Letter from the applicant to the Deputy Registrar dated 23 February 2007
This letter restates the citation from Bushell’s Case 175 CLR 408 and formally notifies the AAT that the applicant sought to tender further documentary evidence, including this letter.
17.Letter from the applicant to the AAT dated 24 February 2007
This letter attaches the further evidence documents ‘10’, ‘11’ and ‘12’ being an e-mail from the applicant to Roche Australia dated 13 February 2007, an e-mail from Roche Australia to the applicant dated 23 February 2007 and 9 pages printed from the internet describing the drug ‘Benzodiazepine’ which was included in the anti-anxiety medication called ‘LIBRAX’. The applicant contends these documents support Dr Reid’s report where he states “My opinion is that [Librax] was probably given mainly to Mr Kowalski in 1973 for anxiety.”
18.Letter from applicant to the AAT and the Deputy Registrar dated 25 February 2007
This letter enclosed document ‘13’ from the list of further evidence, being pages from “A Nation at War”. This submission draws attention to page 320 of that book: “Some national servicemen had stayed in the Army and the Government wanted a firm legislative basis to pay benefits and pensions to them…” The applicant refers to this passage in support of his contention that he is entitled to compensation benefits. The applicant submits that instead of doing what the Labour Government (sic) had intended in 1973, the respondent perverted the course of justice in order to deny him his statutory and legally entitled compensation benefits.
The applicant again refers the AAT to Dr Reid’s statement that: “My opinion is that it was probably given mainly to Mr Kowalski in 1973 for anxiety.”
19.Letter from the applicant to the AAT and the Deputy Registrar dated 1 March 2007
This letter enclosed the AAT decision of Re Gessara and Commonwealth of Australia and Comcare (1989) 19 ALD 559.
20.E-mail from the applicant to the AAT and the Deputy Registrar dated 2 March 2007
This e-mail forwarded an e-mail the applicant received from Roche Australia explaining why Librax was no longer available in Australia. The applicant asserts that Professor Goldney misled the AAT in relation to Librax.
21.Letter from applicant to the Deputy Registrar dated 16 March 2007
The applicant states that he faxed 90 pages of material to the respondent’s solicitors on 27 February 2007, as requested by the Deputy Registrar.
22.Letter from the applicant to the AAT dated 17 March 2007
This letter identifies the above 21 documents as being further submissions the applicant wishes to make.
17. The AAT reconvened on Wednesday, 21 March 2007 when the applicant made an oral application that the AAT receive the letters and submissions as submissions and some further evidence.
18. Fourteen items of further evidence were sought to be tendered. Again, for completeness, we set out in summary form those items of evidence:
1.Conference notes prepared by J Fountain and approved by Prof AC McFarlane (29 April 1993) (S2005/112 ST13, pg 210)
2.Dr J Sangster’s medical report dated 3 September 1998 (S2005/112 ST15, pg 217)
3.Letter from Dr J Sangster to the applicant dated 23 April 2001 (S2005/112 ST18, pg 224)
4.Dr P Hetzel’s medical report dated 22 September 1998 (S2005/112 ST16, pg 219)
5.Dr P Aylward’s medical report dated 19 October 1998 (S2005/112 ST17, pg 223)
6.Dr K Jagermann’s medical report dated 3 July 1998 (S2005/112 ST14, pg 213)
7.Letter from Proff Murray Esler to Mr Kowalski dated 18 May 1998 plus the attachment in the form of a Press Release titled “Stress and the Heart” dated October 1997 (S2005/112 T68, pg 195)
19. It can be seen from the descriptions above, the first seven items are already before the AAT as evidence in various T-documents. It is therefore unnecessary to consider those documents any further. The applicant does not need to tender those documents.
8.Page 298 of Volume 66 of The Australian Law Journal:
Page 298 is part of an article edited by Young J and entitled ‘Practical Evidence’. This extract is part of Part II of that article and relates to “Affidavits”. The relevant section which the applicant wishes to tender is:
Uncontradicted evidence
If statements made in affidavits are not replied to, or contradicted with other evidence, and the affidavits are not cross-examined on, then those statements will be accepted by the court in the same was that uncontradicted oral evidence is accepted (see Anasson v Phillips (Unreported, Young J, 4 March 1988) and Leving v Director of Custodial Services NSW (Unreported, CA, 23 July 1987)
9.1 page printed from the internet describing the anti-anxiety drug ‘LIBRAX’:
Librax combines in a single capsule formulation the antianxiety action of Librium (chlordiazepoxide hydrochloride) and the anticholinergic/spasmolytic effects of Quarzan (clidinium bromide), both exclusive developments of Roche research.
Each Librax capsule contains 5 mg chlordiazepoxide hydrochloride and 2.5 mg clidinium bromide. Each capsule also contains corn starch, lactose and talc. Gelatin capsule shells may contain methyl and propyl parabens and potassium sorbate, with the following dye systems: FD&C Yellow No.10 and either FD&C Blue No.1 or FD&C Green No.3.
Librium (chlordiazepoxide hydrochloride) is a versatile, therapeutic agent of proven value for the relief of anxiety and tension. It is indicated when anxiety, tension or apprehension are significant components of the clinical profile. It is among the safer of the effective psychopharmacologic compounds.
Chlordiazepoxide hydrochloride is 7-chloro-2-methylamino-5-phenyl-3H-1,4-benzodiazepine 4-oxide hydrochloride. A colorless, crystalline substance, it is soluble in water. It is unstable in solution and the powder must be protected from light. The molecular weight is 336.22.
10.E-mail from the applicant to Roche Australia dated 13 February 2007
The applicant asks when Librax became unavailable in Australia and for what reason.
11.E-mail in response from Roche Australia to the applicant dated 23 February 2007:
Librax was discontinued because it was superseded by the more modern benzodiazepines available on the market.
It had come to the end of its life-cycle. It was cancelled from the Australian Register of Therapeutic Goods on 1 June 1994.
12.8 pages printed from the internet describing the class of ‘Benzodiazepine’ drugs.
“…benzodiazepines are useful in treating anxiety…”
“common Benzodiazepines: Chlordiazepoxide (Librium).”
13.The front page and pages 20, 21, 77, 319 and 320 of the book “A Nation at War”.
14.The AAT decision of Re Gessara (1989) 19 ALD 559.
20. These reasons address the applicant’s application to make the further submissions and to tender the further evidence referred to above. As we have said, there is no need to address the items of evidence 1-7 which are already in evidence before the AAT. Items 8 and 14, whilst called evidence, are in fact submissions. Items 9, 10, 11 and 12 are items of evidence. Item 13 would be an item of evidence if it is tendered to prove the truth of its conduct; we assume this is the purpose of the tender.
21. Whilst the respondent opposed the applicant’s application, it conceded that the AAT has a discretion to grant leave to a party to re-open the party’s case and to make further submissions and to tender further evidence.
22. Such a concession was rightly made. In particular, s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) requires the AAT to:
“… ensure that 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 which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”
Section 33(1)(c) of the AAT Act provides:
“(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
Section 33(1)(b) of the AAT Act provides:
“(b)proceedings should be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.”
23. Notwithstanding the concession, the respondent submitted that the AAT should be “guided by the rules of procedure and evidence as applied in Courts of law in determining the exercise of its discretion.”
24. The Courts have consistently held that there is a public interest in maintaining the finality of litigation: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256; Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491. In the latter case, Toohey J stated at 493-494:
“In situations where the hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence it believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late: Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88; Murray v Figge (1974) 4 ALR 612. Similar tests have been applied for the reception of evidence on the hearing of an appeal: Wollongong Corporation v Cowan (1955) 93 CLR 435.”
25. The respondent contended that the material the applicant wishes to adduce was with reasonable diligence available to him prior to the AAT commencing to hear the matter. More particularly, and probably more importantly, the respondent submitted that the material concerning peptic ulcer disease, Librium, Librax, and Benzodiazepines, which the applicant now wishes to rely on, was not put to the medical practitioners who were called to give evidence.
26. We cannot accept the submission that the Court’s rules of procedure and evidence should be applied in the AAT because we think the submission is contradicted by the provisions to which we have referred and, in particular, s 33(1)(c). If that were the criterion upon which the AAT was called upon to consider the exercise of discretion the AAT would be burden itself with the rules of evidence and procedure which apply in the Courts. Whilst there is no doubt the rules that apply in the courts may be useful in providing a guide to the procedure to be adopted, those rules cannot dictate the procedure in an administrative tribunal where “the notion of onus of proof … has no part to play …”: Bushell’s Case 175 CLR 408 at 425. The AAT stands in the place of the decision maker whose decision is under review. Its function is to decide whether the decision maker’s decision is the correct or preferable decision on the material before the AAT. It makes its decision on the material before it. If before it makes its decision the AAT becomes aware of material which might impact on what might be the correct or preferable decision, it should ordinarily have regard to that material unless it seems to me there is good reason demonstrated not to. The ultimate question before the AAT is whether the decision under review should be affirmed, varied or set aside. The AAT adopts a procedure which is inquisitorial not adversarial. It must determine whether the decision maker has discharged his or her duty by arriving at the correct or preferable decision. If not, it must substitute such a decision. In discharging its duty, the AAT may, as it did in this case albeit at the request of the applicant, call witnesses if those witnesses will assist it in its determinations. In those circumstances, it is difficult to see how the rules of evidence and procedure in the courts can apply to the AAT.
27. The respondent argued that the applicant should not have sent the submissions and the further evidence to which we have referred to the AAT without first obtaining the leave of the AAT. That is certainly an obligation in the Courts. In Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, the appellant, who was then unrepresented and after the Court had reserved judgment, forwarded to the Court a seven page document described as “Appellant’s Supplementary Submissions”. McHugh J said at [29]:
Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing – ordinarily 7 to 14 days. But a party has no legal right to continue to put submissions to the court after the hearing. Insofar as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
28. In support of his dicta, McHugh J referred to Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258 where Mason J said:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
29. The Court of Appeal in Victoria have made similar comments: R v Theophanous (2003) 141 A Crim R 216; R v Zhong (2003) 139 A Crim R 220.
30. The AAT, of course, is not sitting on appeal but is sitting on a review of a decision of an administrative decision maker. However, we think that for the orderly disposition of business in the AAT, no party should be able to make further submissions or attempt to adduce further evidence after the AAT has completed its hearing without first obtaining the leave of the AAT. This case is an illustration of the AAT receiving a barrage of submissions and references to evidence, both already tendered and sought to be tendered. The submissions and the references to the evidence should not have been made to the AAT without the AAT’s permission.
31. However, the applicant has now sought the AAT’s permission to make the submissions and to tender the evidence.
32. The respondent helpfully dealt with each of the submissions individually but it is unnecessary for us to consider them in the same length.
33. It is true, as the respondent has submitted, that the applicant has on numerous occasions referred the AAT to the remarks of Brennan J in Bushell’s Case 175 CLR 408 and those of Murphy J in Muratore 141 CLR 296. Indeed, most of the submissions which have been made by the applicant repeat Brennan J’s comments in Bushell’s Case 175 CLR 408. It is difficult to understand why the applicant continues to remind the AAT of that dicta. However, notwithstanding the submissions are sometimes repetitive, no injustice would be caused to the respondent by the AAT receiving those submissions. This is particularly so if we are also mindful, which we are for the reasons that follow, to allow the applicant to call further evidence.
34. As we have indicated above, the first seven items of evidence are already before the AAT. There is no need for the applicant to tender that evidence. The question for determination is whether the applicant should be entitled to tender “the evidence” contained in documents 8 to 14.
35. We think that we should proceed on the basis we have an unfettered discretion to allow the introduction of further evidence. We do not think that in exercising that discretion we should require the applicant to satisfy a court’s requirement for the introduction of fresh evidence.
36. We would not, however, allow the introduction of fresh evidence if we were of the opinion that the receipt of the fresh evidence would cause irremediable prejudice to the respondent. Nor would we allow the introduction of further evidence if we were of the opinion that the applicant had deliberately refrained from tendering the evidence at the hearing to obtain some forensic advantage.
37. The respondent did not claim that it would suffer irremediable prejudice by the applicant being allowed to tender the further evidence. It did say that it might need to introduce further evidence itself and perhaps call further witnesses. If that be the case then, of course, the respondent would have to be entitled to proceed in that way. That, however, will be a matter for the respondent to advise the AAT in due course.
38. We are satisfied that the applicant did not make a deliberate choice not to adduce this evidence at the hearing. We think it is more likely that he did not understand the significance of the evidence during the hearing and the significance has become apparent to him by reason of the submissions and the AAT’s responses to those submissions at the end of the hearing.
39. We think therefore, that the evidence contained in items 9, 10, 11, 12 and 13 ought to be received by the AAT. We will receive items 8 and 14, which whilst called evidence are in fact submissions, as submissions.
40. We will receive all of the submissions notwithstanding the repetitive content of those submissions.
41. In view of our ruling, the respondent will need time to consider whether it wishes to cross-examine any witnesses who have already given evidence or lead evidence from any witnesses already called or call any further evidence in relation to the further evidence adduced.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B T LanderSigned: .....................................................................................
S Palaniappan AssociateDate/s of Hearing 17, 18, 19 October 2006; 15 December 2006; 31 January 2007; 5, 6 February 2007; 21 March 2007; 12 April 2007; 16 May 2007
Date of Decision 28 November 2007
Counsel for the Applicant Mr K Kowalski
Counsel for the Respondent Mr J Wallace; Ms Evans; Mr M Dwyer
Solicitor for the Respondent Sparke Helmore
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