Re Rana and Military Rehabilitation and Compensation Commission
[2008] AATA 558
•1 July 2008
CATCHWORDS – PRACTICE AND PROCEDURE – COMPENSATION –estoppel – claims previously made for compensation arising from employment – whether raising same substantive issues – relevance of principles of res judicata, estoppel, issue estoppel and Ashun estoppel in proceedings of Tribunal – whether application frivolous or vexatious – power of Tribunal to limit evidence on matters canvassed in review of previous decisions and subject of extensive findings of fact – application not dismissed but evidence restricted.
Administrative Appeals Tribunal Act 1975 ss 2A, 25, 33(1)(c), 37, 42B, 43, 44 and 64(1)
Administrative Decisions (Judicial Review) Act 1977
Compensation (Commonwealth Government Employees) Act 1971
Defence Force Retirement and Death Benefits Act 1973
Judiciary Act 1901 s 39B
Safety, Rehabilitation and Compensation Act 1988 ss 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 38(4), 60(1), 62 and 64
Veterans’ Entitlements Act 1986 ss 14(5), (6) and (7)
Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11
Blair v Curran (1939) 62 CLR 464
Bogaards v McMahon (1988) 80 ALR 342
Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1998) 164 CLR 502
Coalcliff Collieries Pty Ltd v Campbell (1965) 112 CLR 349
Comcare v Grimes (1994) 50 FCR 60; 121 ALR 485; 33 ALD 548; 19 AAR 422
Commonwealth v Muratore (1978) 141 CLR 296
Commonwealth v Sciacca (1988) 17 FCR 476; 78 ALR 279
Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321
Director General Security v Sultan and Another (1998) 90 FCR 334
Esber v Comcare (1992) 174 CLR 430; 106 ALR 577
Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13
Formosa v Secretary, Department of Social Security (1988) 81 ALR 687; 15 ALD 657
General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155
Jackson v Goldsmith (1950) 81 CLR 446
JF Keir Pty Limited v Sparks [2008] FCA 611
Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18
Lees v Comcare [1999] FCA 753
Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424
Miller v University of New South Wales (2003) 132 FCR 147; 200 ALR 565 [2003] FCA 180
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Morales v Minister for Immigration and Multicultural Affairs (1998) 151 ALR 51
Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923
Plumb v Comcare (1992) 17 AAR 1; 39 FCR 236
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317
Rana v Chief of Army [2005] FCA 1283
Rana v Chief of Army Staff [2006] FCAFC 63; (2006) 90 ALD 474
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445
Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1) (1992) 28 ALD 25; 16 AAR 158
Re Jebb and Repatriation Commission (2005) 86 ALD 182; [2005] AATA 470
Re Lowth and Comcare [1999] AATA 645
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9; [1995] AATA 14
Re McWilliam and Civil Aviation Safety Authority (2005) 89 ALD 391; [2005] AATA 1148
Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133
Re Proctor and Commissioner of Taxation (2005) 87 ALD 247; 59 ATR 1064; [2005] AATA 389
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Street Nation and Australian Communications Authority (2004) 86 ALD 413; 40 AAR 68; [2004] AATA 1251
Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578; 102 ALR 19
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1
Smith v Caltex Australia Petroleum Pty Ltd (2004) 80 ALD 106; [2004] FCA 480
Stuart v Sanderson (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870
Tankey v Adams (1999) 56 ALD 501; [1999] FCA 683
WE Bassett and Partners Pty Ltd v John Francis Doherty [1997] FCA 715
WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294
DECISION AND REASONS FOR DECISION [2008] AATA 558
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/1885 and
VETERANS’ APPEALS DIVISION ) S 200600223Re:RANJIT RANA
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 1 July 2008
Place: Melbourne
Decision: 1. The Tribunal decides that:
(1)the respondent’s application that the applicant’s application be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 be refused; and
(2)under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a)inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re “SAN” and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b)not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
2. The Tribunal directs that:
(1)by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2)by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
3. gives the parties liberty to apply.
S A Forgie
Deputy President
REASONS FOR DECISION
Mr Rana has applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (1988 Act) and has done so on two earlier occasions that have led to review in the Tribunal. On both occasions, he has been unsuccessful. On all occasions, he has relied on events that can generally be described as physical, mental and other abuses that he alleged occurred during his employment with the Army. The conditions for which he claimed compensation have varied on each occasion. A delegate of the Military Rehabilitation and Compensation Commission (MRCC) refused Mr Rana’s latest claim for compensation on the basis that, in summary, the issues had been the subject of earlier determinations and decisions. When Mr Rana applied to the Tribunal for review of the decision, the MRCC applied for an order dismissing them on two bases. One was that the doctrines of res judicata or issue estoppel meant that the Tribunal had already considered the matter and could not do so again. Alternatively, the MRCC sought an order under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) dismissing the application on the basis that they are frivolous and vexatious. I have decided that they should not be dismissed and that the doctrines of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel have no place in proceedings of the Tribunal.[1] Instead, I have decided to rely on s 33(1)(c) of the AAT Act to limit the evidence that can be led regarding the events in Mr Rana’s employment to the findings of fact made by the Tribunal in the two previous proceedings.
BACKGROUND
[1] I have given no consideration to the doctrine of equitable estoppel as it was not raised in this case but note that I have earlier concluded that it cannot fetter a statutory duty: Re Lowth and Comcare [1999] AATA 645 and see also Deputy President Jarvis’s decision in Re Jebb and Repatriation Commission (2005) 86 ALD 182; [2005] AATA 470
In this section of my reasons, I will summarise the claims and decisions in chronological order together with a further proceeding that Mr Rana instituted against the University of Adelaide.
4 September 1984: claim for compensation for psychiatric condition
The only record that I have of Mr Rana’s claim and of its outcome is in the reasons for decision of the Tribunal given on 22 April 1988.[2] That decision concerned reviewable decisions made by the then Commissioner for Employees’ Compensation (CEC) under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) then in force. It appears from the reasons that Mr Rana’s claim for compensation made on 4 September 1984 was to the effect:
“… that he suffered from a psychiatric condition (personality disorder and/or adjustment disorder or reactive depression) as a result of his employment with the Australian Army. In particular, he alleges that during his employment in the Army which began on 14 October 1980 and ended with his discharge on 13 July 1982, he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. …’[3]
[2] Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133, Deputy President Layton, Mr Kiosoglous, Senior Member and Dr Williams, Member
[3] (1988) 15 ALD 167; [1988] AATA 133 at 168; [3]
Mr Rana’s also made a second claim for compensation that was dealt with by the Tribunal but it was for a condition not relevant in this case.[4]
[4] (1988) 15 ALD 167; [1988] AATA 133 at 168; [4]
On review, the Tribunal decided that Mr Rana had a personality disorder, although not of a high order, before he migrated to Australia. On his arrival in Australia, Mr Rana faced a number of stresses both in his personal life and during his Army service. The Tribunal found that:
“… All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which Army service was but one component.
The Tribunal does not consider that the Army service caused the applicant’s personality disorder or adjustment disorder, or reactive depression but finds that such adjustment disorder and reactive depression were aggravated by the conditions of his employment.
However, the Tribunal is not persuaded that since April 1985, the applicant has continued to suffer from an aggravation of an adjustment disorder or reactive depression due to his Army service. Certainly the applicant’s employment with the Army was a contributing factor to the aggravation of this disorder within the meaning of s 29 of the Act. But in accepting the medical evidence …, the Tribunal finds any continuance symptomatic of a disorder to be probably the result of other life stress factors currently operating and not those relating to the applicant’s period of Army service.”[5]
29 August 2001: claim for compensation and rehabilitation in respect of psychotic paranoid reaction resulting in a mental condition
[5] (1988) 15 ALD 167; [1988] AATA 133 at 168; [102]-[104]
I do have a record of Mr Rana’s claim dated 28 August 2001 and lodged on the following day as it led to his making an application to the Tribunal. It appears in the documents lodged under s 37 of the AAT Act (T2005/58 documents). He claimed compensation for “psychotic paranoid reaction”, which he described as a “mental condition”.[6] Mr Rana answered the questions set out in the claim form. His answers were to the effect that he had sustained the injury when performing military duties by reason of “emotional and physical harassment by the other Defence Force members.”[7] All of his interactions as a storeman with others contributed to his illness. In its decision in reviewing the reviewable decision that was ultimately made, the Tribunal noted that Mr Rana had:
“… subsequently asserted that the ‘correct diagnosis’ should have been ‘post-traumatic disorder with features of paranoid pscizonphrenia (sic)’….”[8]
[6] T2005/58 documents at 43
[7] T2005/58 documents at 44
[8] Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445 at 149; [1],
The delegate refused Mr Rana’s claim for a psychiatric condition, however described arising out of his Army service between 1980 and 1982. The delegate referred to Mr Rana’s previous claim for “acute depression” that he had lodged on 4 September 1984 and stated that the two claims dealt with the same issues. The Tribunal had reviewed the decision at the time and Mr Rana had not produced any further evidence. Therefore, the findings of that Tribunal remained persuasive.
Comcare, which then had responsibility under the 1988 Act, submitted that the Tribunal did not have jurisdiction to review the decision because, in order to do so, it would have to revisit issues that had been the subject of the Tribunal’s decision in 1988. At a directions hearing, Deputy President Jarvis and I heard submissions from both parties on that matter. We decided that the Tribunal:
“… had jurisdiction to hear the application for review of the respondent’s decision to refuse the applicant’s claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder (‘PTSD’) on the basis that the 1988 Tribunal decision did not determine the applicant’s entitlement to compensation for those two conditions. The Tribunal further directed that the application for review was to be limited to the conditions of paranoid reaction and PTSD. …”[9]
[9]
The hearing was conducted by Deputy President Jarvis and Dr Eriksen, Member, on the basis that it was limited to the two conditions and the Tribunal decided that Comcare’s decision to refuse Mr Rana’s claim was correct and that he was not entitled to compensation in respect of them.[10] In doing so, they were not reasonably satisfied that Mr Rana’s army service contributed to the development of paranoid psychosis.[11] With regard to PTSD, they did not accept that he had suffered the symptoms necessary to support its diagnosis in his case.[12] Neither his paranoid psychosis nor his PTSD had been aggravated by Mr Rana’s army service.[13] They were not satisfied that Mr Rana’s army service caused or contributed to his condition of paranoid psychosis. That was a condition that they found he developed either during or soon after his army service. It developed further over the years until its diagnosis in 1998.[14]
[10] (2004) 81 ALD 149; [2004] AATA 445 at 192; [169], T2005/58 documents at 87
[11] (2004) 81 ALD 149; [2004] AATA 445 at 184; [144], T2005/58 documents at 121
[12] (2004) 81 ALD 149; [2004] AATA 445 at 184-185; [145-146], T2005/58 documents at 121-122
[13] (2004) 81 ALD 149; [2004] AATA 445 at 185-186; [149], T2005/58 documents at 123
[14] (2004) 81 ALD 149; [2004] AATA 445 at 185; [148], T2005/58 documents at 122-123
In the course of its consideration, the Tribunal concluded:
| “We referred in paragraph 98(e) above to the Tribunal’s findings in its 1988 decision to the effect that the applicant was subjected to physical assaults or racial vilification or verbal abuse during his army service. The proceedings before us did not focus on the question of whether these events occurred, and this issue clearly would not have affected the opinion of Dr Davis, which we have accepted in preference to that of Dr DePasquale, because he took into account the applicant’s history that he had been subjected to the sexual assaults as well as non-sexual physical abuse and verbal abuse. We refer in particular to his evidence at pages 7.7 to 8.2 and 10.1 to 10.4 of the transcript of 04.09.03. We are inclined to accept that the applicant was subjected to certain non-sexual assaults and abuse as found in the 1988 decision, but we find on all of the evidence before us that these events did not have the effect that the applicant’s employment contributed to the conditions asserted by the applicant in the present proceedings.”[15] |
[15] (2004) 81 ALD 149; [2004] AATA 445 at 190-191; [163], T2005/58 documents at 130
Mr Rana lodged an appeal to the Federal Court from the decision of Deputy President Jarvis and Dr Eriksen. It was heard by Finn J, who dismissed it on 12 January 2005.[16] His Honour said that he could not discern any error of law that should be decided in Mr Rana’s favour and added:
“… His claims, in the main, do not rise above what are in substance challenges to the merits of individual findings and conclusions notwithstanding that the language in which those challenges are cast often reflects well-known grounds of judicial review. I need only reiterate that any court reviewing a decision of the Tribunal cannot turn ‘a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision’: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at 272.”[17]
[16] Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
[17] [2005] FCA 6 at [3]
A Full Court of the Federal Court constituted by Marshall, Mansfield and Stone JJ dismissed Mr Rana’s appeal from the judgement of Finn J on the basis that there was no error of law disclosed in his judgment.[18]
[18] Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Mr Rana made an application to the High Court. At a hearing on 4 May 2007, it was treated by Crennan J as an application for orders nisi for prerogative writs. Among the grounds on which Mr Rana claimed for relief on bias, surprise, undue intervention, irrelevant considerations, denial of natural justice, jurisdictional error, factual errors, unreasonableness, collusion and factual reasons. Crennan J found that neither Mr Rana’s submissions nor the material that he had filed supported any arguable ground for relief and dismissed his application.[19]
[19] Rana v Marshall, Mansfield and Stone JJ & Ors [2007] HCATrans 189
November and December 2004: hearing of evidence in Rana v University of Adelaide
Mr Rana brought proceedings against the University of Adelaide and it would appear from the later judgment of Lander J in Rana v University of Adelaide[20] that the earlier proceedings were settled between them. Whatever the outcome, a transcript of part of the evidence appears in the material I was given. That is a transcript of the evidence given by Dr Bal Krishna Jha, who is a senior consultant psychiatrist at the Royal Adelaide Hospital.
[20] [2008] FCA 365
Dr Jha answered various questions and, in doing so, made a number of points. DSM-IV, which is the American Diagnostic and Statistical Manual of Mental Disorders, recognises paranoid schizophrenia. People who suffer from paranoid schizophrenia may have a personality disorder but the two are different. A personality disorder is not a psychosis. Despite that, it is most likely that a person with paranoid schizophrenia will have a paranoid personality disorder and that, under stress, the paranoid personality disorder will bloom into full paranoid schizophrenia. In Dr Jha’s opinion, Mr Rana suffers from paranoid schizophrenia and also has a paranoid personality disorder.[21] In answer to Mr Rana, Dr Jha said that his:
“You actually – from primary school go to secondary and they you go to the college. So similarly your illness started with adjustment problems, personality disorder, delusional disorder and then went into paranoid schizophrenia.”[22]
[21] Transcript SAD67/2004 at 187-188; Documents lodged in S2005/58 (T2005/58 documents) at 107-108
[22] Transcript SAD67/2004 at 189; T2005/58 documents at 109-110
As to the cause of Mr Rana’s condition, Dr Jha said that it first became apparent when he was in the Army. He had read the reports of proceedings in the Tribunal and he thought that Mr Rana “… probably … had a very horrible time in the Army.”[23] In response to Lander J, Dr Jha said:
“It is possible that he might have the predisposition to mental illness, but that become [sic] quite evident when he was subjected to various types of physical, emotional and sexual abuses in the army.”[24]
In response to Mr Rana, Dr Jha explained that:
“… it is likelihood that whenever you’ll be subjected to any stress – any type of distress in your personal life, in your academic life, in your work situations, wherever it is – you know, it is likely that the illness can flare up.”[25]
[23] Transcript SAD67/2004 at 177; T2005/58 documents at 97
[24] Transcript SAD67/2004 at 177; T2005/58 documents at 97
[25] Transcript SAD67/2004 at 177; T2005/58 documents at 97
30 August 2005: claim for stress induced diabetes
Mr Rana made a claim dated 30 August 2005 in respect of “stress induced diabetes”.[26] He stated in that claim that he first noticed the disease on
29 August 2005, which was the day on which he first received treatment for it. When asked what aspects of his employment contributed to his disease or illness, Mr Rana wrote:
“Stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses.”[27]
In a letter dated 6 October 2005 to the MRCC, Mr Rana expanded on his understanding of the cause of his diabetes. He provided an:
“… additional report of Dr Henry Fellner to link the causation with the effect. The doctor indicates that the depression is related to Paranoid state and thus aggravating the pancreas and thus troubling me via the diabetes.”[28]
[26] Documents lodged in S2007/1885 (T2007/1885 documents) at 51
[27] T20071885 documents at 54
[28] T2007/1885 documents at 62
On 27 July 2006, Mr Ontong, the Director, Appeals, MRCC, refused Mr Rana’s claim saying:
“Your claims for psychiatric conditions (however described) arising out of your Army service have been considered previously by the Administrative Appeals Tribunal (‘AAT’) in matters No. S86/207 and S2001/378. You have also appealed the decision of the AAT in matter no. S2001/378 to the Federal Court and the Full Court of the Federal Court, both of which appeals were dismissed. I note that I have already refused to deal with your additional claim for Paranoid Schizophrenia in my letter to you dated 19 September 2005.
I therefore also find that in so far as your claim for diabetes is reliant on your claim that you have a psychiatric condition arising from your military service, the claim is denied on the basis there is no liability for a psychiatric condition arising from your military service.”[29]
[29] T2007/1885 documents at 64
On 16 August 2006, Mr Rana lodged an application in the Tribunal for review of the decision[30] but then, as he should have, asked the MRCC to reconsider its decision when he sent it an email on 28 September 2006.[31] The MRCC gave Mr Rana an opportunity to provide evidence in support of his claim and, in particular, any opinion by his treating medical practitioner with regard to how his diabetes is related to his military service.[32] It extended the time within which Mr Rana could provide that medical evidence both voluntarily and at his request. Mr Rana provided some medical evidence including a document described as a “Medical note” from Dr Miller, who is a consultant physician. In his Medical note, Dr Miller stated that Mr Rana had questioned whether there was a possible link between the medication he had been receiving for his psychiatric condition and his diabetes. He addressed that question.[33]
[30] T2007/1885 documents at 65-66
[31] Referred to in letter from MRCC to Mr Rana dated 3 October 2006: T2007/1885 at 67
[32] T2007/1885 documents at 67
[33] T2007/1885 documents at 71
In a letter dated 9 May 2007, a delegate of the MRCC advised Mr Rana that it had affirmed the determination dated 27 July 2006. After reciting the medical evidence, the letter continued:
“Having taken the above medical documentation into consideration, neither Drs Fellner or Miller refer to the cause of your diabetes condition, and more importantly, any link between your diabetes condition and your military service. I note that in the determination dated 27 July 2006 reference was made to two letters from Dr Fellner dated 29 August 2005 and 01 September 2005 respectively, which also did not provide any link of your military service making a material contribution to your diabetes condition.
While you assert that the your diabetes condition was caused by your stress induced paranoid schizophrenia condition, which you contend was caused by your military service, this Department does not accept liability for the schizophrenia condition. Accordingly, as no liability exists for the schizophrenia condition, I cannot accept liability for your diabetes condition.
I further note that your psychiatric conditions which you contend arose out of your military service have previously been considered (and liability disallowed) by the Administrative Appeals Tribunal (AAT) in matters S1986/207 and S2001/378. I note that your appealed the AAT decision of the matter S2001/378 to the Federal Court and the Full Court of the Federal Court, and more recently the High Court of Australia, all of which have been dismissed.
I also note that in his letter dated 19 September 2005, Mr Paul Ontong, Director of Appeals, Military Rehabilitation and Compensation Commission (MRCC), advised that your claim for szhizophrenia is essentially the same as that considered by the AAT in S1986/207 and S2001/378, and therefore would not be further considered by the MRCC.
…
In conclusion, while I find that your claim for diabetes is dependent on your assertion that you developed a psychiatric condition during the course of your military employment, the claim must be denied on the basis that no liability exists for a psychiatric condition arising from your military service.”[34]
[34] T2007/1885 documents at 79
On 14 May 2007, Mr Rana lodged an application in the Tribunal seeking review of the MRCC’s reviewable decision.[35]
[35] T2007/1885 documents at 2-3
14 September 2005: applications under ADJR Act regarding entitlements under the DFDRB Act
On 14 September 2005, Mansfield J gave judgment on two applications that Mr Rana had made under the Administrative Decisions (Judicial Review) Act 1977 regarding his claim for benefits under the Defence Force Retirement and Death Benefits Act 1973. A delegate of the Chief of Army decided that, at the time of Mr Rana’s discharge from the Army, grounds did not exist whereby he could be discharged because of physical or mental incapacity. Mr Rana relied on various grounds but Mansfield J dismissed the applications.[36] The Full Court dismissed an appeal from that decision.[37]
[36] Rana v Chief of Army [2005] FCA 1283
[37] Rana v Chief of Army Staff [2006] FCAFC 63; (2006) 90 ALD 474, Kiefel, Kenny and Graham JJ
CONSIDERATION
On behalf of the MRCC, Ms Bean submitted that I should have regard to the principles of estoppel and dismiss Mr Rana’s latest application on the basis either that his claim for paranoid schizophrenia was considered by the Tribunal in 2004 or that the issue of causation is, in substance, the same as that considered by the Tribunal in its earlier decisions dated 1988 and 2004. She referred to the authorities of Re Quinn and Australian Postal Corporation,[38] Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1)[39] and Re Matusko and Australian Postal Corporation.[40] Before I look at these authorities, I need to consider for a moment what is meant by the notion of estoppel and then the context of merits review in which I am considering its application.
[38] (1992) 15 AAR 519
[39] (1992) 28 ALD 25; 16 AAR 158
[40] (1995) 21 AAR 9; [1995] AATA 14
What is estoppel or issue estoppel?
The notion of estoppel, or issue estoppel as it is sometimes described, has been explained by Dixon J in Blair v Curran[41]:
“ 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 be restrained or that rights be declared.”
[41] (1939) 62 CLR 464 at 531-532 and approved in cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 at 597-599; 7-8
More recently, the Privy Council succinctly specified the three essential elements that must exist if the doctrine is to apply:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”[42]
In Blair v Curran, Dixon J explained its limits:
“Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends on a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter[43] the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw ‘a fact fundamental to the decision arrived at’ in the former proceedings and the ‘legal quality of the fact’ must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation (2))[44]. But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tend to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.”[45]
[42] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest
[43] (1855) 4 E & B 780 at 794 [119 ER 288 at 293]
[44] (1925) 37 CLR 290; (1926) AC 155
[45] (1939) 62 CLR 464 at 532-533
In Hoysted v Federal Commissioner of Taxation[46], the Privy Council explained the same principle in a different way by setting out what has been settled:
“ … first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”[47]
[46] (1925) 37 CLR 290; [1926] AC 155
[47] (1925) 37 CLR 290; [1926] AC 155 at 299; 165-166
It may be relatively easy to state the principle but, as Dixon J said:
“The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. …”[48]
[48] Blair v Curran (1939) 62 CLR 464 at 533
The Privy Council in Hoysted v Federal Commissioner of Taxation gave an illustration of the application of issue estoppel:
“In Outram v Morewood[49], an action of trespass over a certain vein of coals lying under the close of the plaintiff, it was held that if a verdict be found on any fact or title, distinctly put in issue in an action of trespass, such verdict may be pleaded by way of estoppel in another action between the same parties or their privies, in respect of the same fact or title.
In a previous action an issue was found for the plaintiff and against the wife, one of the two subsequent defendants, her husband being the other defendant with her in the action under decision. Lord Ellenborough C.J. said(2)[50]: ‘The operation and effect of this finding, if it operate at all as a conclusive bar, must be by way of estoppel. If the wife were bound by this finding, as an estoppel and precluded from averring the contrary of what was then so found, the husband, in respect of his privity, either in estate, or in law, would be equally bound.’ And in subsequent portions of his judgement (3)[51] he spoke as follows: ‘A finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. . . . . . And it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury: but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.”[52]
[49] 3 East 346
[50] 3 East 346 at 353
[51] 3 East 346 at 355
[52] [1926] AC 155 at 166-167
What is res judicata?
In Port of Melbourne Authority v Anshun Pty Ltd,[53] Gibbs CJ, Mason and Aickin JJ said:
“ The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”[54]
[53] (1981) 147 CLR 589; 36 ALR 3
[54] (1981) 147 CLR 589; 36 ALR 3 at 597; 8
Their Honours referred with approval to a passage from the dissenting judgment of Fullagar J in Jackson v Goldsmith[55] in which he explained the rule as to res judicata, which may also be referred to as “cause of action estoppel”[56] in the following terms:
“… where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims ‘interest republicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’.”[57]
[55] (1950) 81 CLR 446
[56] (1981) 147 CLR 589; 36 ALR 3 at 611; 18 per Brennan J and see also Miller v University of New South Wales (2003) 132 FCR 147; 200 ALR 565 at 163; 579 per Ryan and Gyles JJ
[57] (1950) 81 CLR 446 at 466 referred to at (1981) 147 CLR 589 at 597
What is Anshun estoppel?
In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason and Aickin JJ also referred to the principle explained by Sir James Wigram VC in the much earlier case of Henderson v Henderson.[58] Sir James Wigram had taken the notion of res judicata a step further when he said:
“... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”[59]
[58] (1843) 3 Hare 100; 67 ER 313
[59] (1843) 3 Hare 100; 67 ER 313 at 115; 319 referred to at (1981) 147 CLR 589; 36 ALR 3 at 598; 8-9
Gibbs CJ, Mason and Aickin JJ adopted these principles but recast them slightly to emphasise that notion of reasonableness to which Sir James Wigram had also referred. They said:
“ In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings …”.[60]
[60] (1981) 147 CLR 589; 36 ALR 3 at 602-603; 12
Anshun estoppel and res judicata; a variation on a theme
It is apparent from the statements of principle themselves that the principles referred to in Henderson v Henderson and adopted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd are different facets of the same crystal. The explanation of the underlying principles in the judgment of Brennan J in the same case makes the point even more clearly. His Honour said:
“… Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule … is the merging of the cause of action in the judgment. …
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment …
If a cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars and action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment.…
When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right … He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. …
The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.
Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts. …”[61]
[61] (1981) 147 CLR 589; 36 ALR 3 at 611-612; 18-19, authorities omitted
The rationale for Anshun estoppel was explained by Madgwick J in Stuart v Sanderson:[62]
“ The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (Bryant [v Commonwealth Bank (1995) 57 FCR 287] at 298, and Trawl Industries v Effem Foods (1992) 36 FCR 406 at 423 per Gummow J). It is also founded upon the need to avoid ‘conflicting judgments (Anshun at 603-604), to ensure finality of litigation (Anshun at 609, per Brennan J, and Bryant at 299), to prevent parties from gaining an advantage in the use of the court's time … and, in the more global expression of Murphy J ‘to preserve the orderly administration of justice’ (Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes.”[63]
[62] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870 at 156; 686; [20]
[63] [2000] FCA 870 at [20]
Difference between estoppel and res judicata
In Blair v Curran, Dixon J distinguished between res judicata and issue estoppel by saying:
“… in the first the very right or cause of action claimed or put in suit has in former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact of law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order.”[64]
[64] (1939) 62 CLR 464 at 532
As Graham J said in JF Keir Pty Ltd v Sparks:[65]
“ Unlike res judicata, issue estoppel may arise when the cause of action in each proceeding is entirely different (per Merkel J in Somander v Minister for Immigration and Multicultural Affairs … 92000) 178 ALR 677 at [69]).”[66]
[65] [2008] FCA 611
[66] [2008] FCA 611 at [59]
Application of principles
In Miller v University of New South Wales,[67] Ryan and Gyles JJ reviewed a large number of authorities. I will return to their judgment but observed “… that it is difficult, if not impossible, to reconcile all that has been said in this array of authority.”[68] That may well be the case but, in an attempt to achieve some reconciliation, I have examined the previous authority under separate headings. Those headings relate to some of the various situations in which reference is made to estoppel, issue estoppel, cause of action estoppel, res judicata or Anshun estoppel. There are variations among those situations that can, in most instances if not all, be reconciled with the final decision reached in the particular case. The difficulties in reconciliation come in attempting to reconcile the authorities to which some of the authorities refer for they do not distinguish among the different situations. Perhaps the difficulties are mine alone but, if only to sort out my own thinking in order to decide this case, I have categorised the authorities and attempted an analysis by reference to those categories.
Relevance and status in subsequent court proceedings of a decision made by a body other than a court
[67] (2003) 132 FCR 147; 200 ALR 565
[68] (2003) 132 FCR 147; 200 ALR 565 at 169; 584; [63]
This was the situation that faced the High Court in Administration of Papua New Guinea v Daera Guba.[69] In 1886, officers of the Crown purported to purchase 95 acres of land at Port Moresby from the then owners. Most of that land subsequently became Crown land by virtue of an Order in Council. In 1954, a Land Board was established under s 9 of the Land Ordinance 1911 to decide disputes regarding the ownership of the land. The Land Board made a determination in 1954 but, in 1966, claimed to be entitled to part of the land. Barwick CJ, with whom McTiernan J agreed, described the task given to the Land Board and the way it was required to undertake that task:
“… Power was given to the Board to decide ownership in the case of all disputes on that question. ‘All’ in this context means ‘any’ dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board’s power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board’s decision was an entry on a register with the intention of giving absolute finality to the matter. … In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person hav…[ing] had the opportunity of claiming or of being heard.”[70]
[69] (1973) 130 CLR 353; [1973] HCA 59
[70] (1973) 130 CLR 353; [1973] HCA 59 at 402-403; [99]
Barwick CJ “… suppose[d] there could not be a better justification for resort to the principle of estoppel than the present case.”[71] In a separate judgment, Menzies J also agreed with Barwick CJ and, except with respect to an issue relating to the extent of the initial purchase of land, also with Gibbs J. Gibbs J approached the issue of estoppel from a slightly different angle although the outcome was the same. He began with a discussion of res judicata and then considered the breadth of its application:
“… In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) …[[72]], Lord Guest said:
‘The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3).’
The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative … The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc …”[73]
[71] (1973) 130 CLR 353; [1973] HCA 59 at 403; [102]
[72] [1967] 1 AC 853 at 933
[73] (1973) 130 CLR 353; [1973] HCA 59 at 453; [73]
Gibbs J considered whether estoppel arose in the case before him having regard to the principle expressed:
“ In Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) … [[74]], Lord Reid said that it ‘is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject-matter in the former and in the present litigation’.”[75]
[74] [1967] 1 AC 853 at 909-910
[75] (1973) 130 CLR 353; [1973] HCA 59 at 454; [74]
More recently, the Full Court considered issue estoppel in Miller v University of New South Wales.[76] Dr Miller alleged in the Australian Industrial Relations Commission (AIRC) that the termination of his employment had been harsh, unjust or unreasonable and in contravention of s 170CK of the Workplace Relations Act 1996 (WR Act). The AIRC dismissed his application and the Full Bench dismissed his appeal. Before his application for leave to appeal to the Full Bench, Dr Miller had applied to the Federal Court under s 413 of the WR Act for an interpretation of the certified agreement and a declaration that the University of New South Wales (University) had breached it when it terminated his employment. The University sought an order staying the Federal Court proceedings on the basis that Dr Miller’s application raised the same issues as were raised before the AIRC so that the causes of action on which he relied were merged in the decision of the Full Bench of the AIRC. The University also submitted that the proceedings amounted to an abuse of process as they constituted an attempt to re-litigate a case already decided by the AIRC in a manner adverse to Dr Miller.
[76] (2003) 132 FCR 147; 200 ALR 565, Gray, Ryan and Gyles JJ
In their joint judgment, Ryan and Gyles JJ alluded to res judicata and then canvassed the authorities extensively under the heading of issue estoppel. Those authorities included many of those to which I refer in these reasons including Minister for Immigration and Multicultural Affairs v Daniele,[77] Blair v Curran, Administration of Papua New Guinea v Daera Guba, WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation,[78] Bogaards v McMahon[79] and Commonwealth v Sciacca[80]. They referred also to a number of other cases.
[77] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
[78] (1957) 96 CLR 294
[79] (1988) 80 ALR 342
[80] (1988) 17 FCR 476; 78 ALR 279
Among them was Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd,[81] in which the Full Court of the Federal Court considered whether the effect of a finding by the Full Commission of the AIRC was that Mr Kowalski was estopped from pursuing relief in the Federal Court. The AIRC’s findings concerned his claim that he be reinstated and compensated on the grounds that the termination of his employment had been harsh, unjust or unreasonable or discriminatory and had been effected without written notice to him. Mr Kowalski regarded himself as bound by the AIRC’s determination but pursued other claims under the relevant award and Superannuation Deed. The AIRC had proceeded on the basis that his date of termination was one date but Mr Kowalski claimed in the Federal Court that it was a much later date. The Full Court said:
“12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently ‘final’ and ‘determinative’ to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]-[77].
13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a ‘jurisdictional fact’ is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a ‘jurisdictional fact’ i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel.”
[81] [2003] FCAFC 18, Ryan, Dowsett and Selway JJ
This passage has caused me some concern if it is intended to mean that there is a conflict between the two chains of authority. On reading them, it seems to me that there is not for they are dealing with different matters. Taking first the judgment of Branson J in Miller v University of New South Wales, it was the judgment that was the subject of the appeal being considered by Ryan and Gyles JJ with Gray J. Its subject matter was that of the relevance and status of a determination by the AIRC and a finding made in the course of reaching that determination in subsequent and separate proceedings in the Federal Court. In Bramwell v Repatriation Commission,[82] Weinberg J had been concerned with a very different question. That question was whether the Tribunal was estopped from considering an issue that had been decided by the Veterans’ Review Board (VRB). The Tribunal had received an application to review the VRB’s decision and was reviewing that decision as it was required to do under the Veterans’ Entitlements Act 1986.[83]
[82] (1998) 158 ALR 623; 51 ALD 56
[83] See [75-78] below
I also note that the issue with which their Honours were concerned was different from that being considered in either line of authority. They were concerned with whether the decision of an administrative tribunal in relation to a jurisdictional fact could be conclusive or binding. That brings into consideration different issues. They are issues that were considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[84] Although they were issues relevant in my decision in Re McWilliam and Civil Aviation Safety Authority[85] and I adopt my reasoning in that case, jurisdictional facts are not in issue in this case. Therefore, I will not address them further.
[84] (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11
[85] (2005) 89 ALD 391; [2005] AATA 1148 at [26]-[37]
In Miller v University of New South Wales, Ryan and Gyles JJ also referred to the judgment of the Full Court of the Federal Court in Sande v Registrar, Supreme Court of Queensland.[86] On my analysis of the authorities, this is a case that more readily fits under the heading of “Previous proceedings in a court between parties to proceedings in the Tribunal”, where I have placed the case of Smith v Caltex Australia Petroleum Pty Ltd,[87] which relies on Sande v Registrar, Supreme Court of Queensland.[88] Alternatively, it could come under the heading of “Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal.”[89] I return to Sande v Registrar, Supreme Court of Queensland below.[90]
[86] (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1
[87] (2004) 80 ALD 106; [2004] FCA 480
[88] See [68-74] below
[89] See [57-61] below
[90] See [73-74] below
In drawing their consideration together, Gyles and Ryan JJ returned to the question that they had to consider: the nature and effect of the determination by the AIRC on the proceedings in the Federal Court. They expressly put to one side cases which they described as “… 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 …”.[91] Of bodies other than those that are truly administrative, their Honours said:
“ While estoppels may arise from decisions of bodies other than superior courts of record, and the language of res judicata, including cause of action estoppel and issue estoppel, is used in this connection, the starting point is to decide precisely what jurisdiction the body is exercising …”[92]
[91] (2003) 200 ALR 565; [2003] FCA 180 at 585; [64]
[92] (2003) 200 ALR 565; [2003] FCA 180 at 585; [65]
They adopted what Jordan CJ, with whom Halse Rogers and Maxwell JJ agreed, had said in Ex parte Amalgamated Engineering Union (Australian Section);
Re Jackson:[93]
“ But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that “nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so”. But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal. Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.”[94]
[93] (1937) 38 SR (NSW) 13
[94] (1937) 38 SR (NSW) 13 at 19-20, citations omitted, referred to at (2003) 200 ALR 565; [2003] FCA 180 at 585; [65]
Applying that reasoning to the issue before them, Ryan and Gyles JJ concluded that:
“ In our opinion, the only matter which is committed to the decision of the AIRC in the sense explained by Jordan CJ is whether the termination was harsh, unjust or unreasonable. It may be accepted, for the purposes of argument, that the AIRC decision conclusively decided that the termination was not harsh, unjust or unreasonable. It is that which is given finality by s 170CI, subject to s 170JD [of the WR Act]. Any findings made by the AIRC in the course of reasoning towards the ultimate decision do not give rise to any issue estoppel.”[95]
The consequence of this conclusion was that steps such as the following “… were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel …”:[96]
“… that the direction given to the appellant to assume the disputed duties both reasonable and lawful, that there was conduct on the part of the appellant amounting to serious misconduct, namely, conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract, and that there existed a valid reason under the certified agreement for the termination of the appellant’s employment by the respondent. …”[97]
Relevance and status in subsequent court proceedings of finding of fact or determination of an issue made by body other than court in reaching its decision
[95] (2003) 200 ALR 565; [2003] FCA 180 at 588; [73]
[96] (2003) 200 ALR 565; [2003] FCA 180 at 589; [75]
[97] (2003) 200 ALR 565; [2003] FCA 180 at 589; [75]
In Midland Metals Overseas Limited v Comptroller-General of Customs,[98] Hill J considered whether a decision of the Tribunal would give rise to an issue estoppel. His Honour was considering an application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to consider a decision by a delegate of the Comptroller-General of Customs (Comptroller-General) to accept an application under s 269TB of the Customs Act 1901. The application had been made for the publication of a dumping notice in respect of certain goods being exported to Australia by Midland Metals Overseas Limited (Midland Metals). The goods were shipped either directly from Korea to Australia or indirectly via Singapore. Earlier, the Comptroller-General had determined that the customs value of identical goods was to be calculated on the basis that they were exported from Singapore. The Tribunal reviewed that determination and substituted a decision that the calculation was to be made on the basis that the place of export was Korea and not Singapore. During the hearing of the application for review under the ADJR Act, Midland Metals submitted that the Comptroller-General was bound by the determination made by the Tribunal that the goods were imported from Korea and not from Singapore.
[98] (1991) 30 FCR 87; 24 ALD 424
Hill J said that:
“ First, it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue, even if the parties to the Tribunal proceedings are regarded as the same parties as are presently before the court. The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s 33 of the AAT Act. In reviewing decisions referred to it, the tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-maker: s 43(1) of the AAT Act. If the tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s 43(1).
Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: “only another executive body in an administrative hierarchy”.
The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be.
In relation to the taxation boards of review, Kitto J in W J & F Barnes Pty Ltd v FCT (1957) 96 CLR 294 at 315, said: ‘The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel.’
The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279; 17 FCR 476 at 480 had no hesitation in saying: ‘A finding by an administrative tribunal will not give rise to an issue estoppel.’”[99][99] (1991) 30 FCR 87; 24 ALD 424 at 96-97; 429
His Honour made the point that:
“… the question arises whether the process by which an administrative tribunal, or for that matter, an administrator determining a matter before him, may ever involve an adjudication in the strict sense of the word. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, Kitto J expressed the view that no exercise of powers by the Trade Practices Commissioner involved an adjudication (in the proper sense of the word). No doubt, if the exercise by an administrative tribunal did involve an impermissible exercise of Commonwealth judicial power: cf Huddart Parker & Co Pty Ltd v Moorhead (1909) 8 CLR 330 at 357, per Griffith CJ; R v Davison (1954) 90 CLR 353 at 368.”[100]
[100] (1991) 30 FCR 87; 24 ALD 424 at 97; 429-430
Hill J also addressed the issues raised in Administration of Papua New Guinea v Daera Guba.[101] He observed that “Gibbs J, with whose reasons Stephen J agreed, expressed the view that the case was one involving cause of action estoppel, not issue estoppel.”[102]
[101] (1973) 130 CLR 353; [1973] HCA 59
[102] (1991) 30 FCR 87; 24 ALD 424 at 98; 430
As for the particular case before him, Hill J said:
“… No doubt if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal expires without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision created an issue estoppel.”[103]
[103] (1991) 30 FCR 87; 24 ALD 424 at 98; 430
In the circumstances of the case before him, Hill J decided that, even if the Tribunal’s decision could create an issue estoppel such that it would bind the Comptroller-General, it would not do so in respect of the import of goods that were not the subject of the Tribunal’s review. In any event, the question decided by the Tribunal had been a different question from that which he faced in deciding the ADJR application. The Tribunal had been required to consider the “place of export” of the goods whereas Hill J had to consider whether the goods were “exported” from Korea or Singapore.
Previous judicial review of decision
In Stuart v Sanderson,[104] Madgwick J rejected a submission that Anshun estoppel did not apply to administrative decisions. The submission had been based on issues relating to equitable estoppel or estoppel by representation, to which I am not referring.[105] His Honour rejected that basis as the principles underlying the two doctrines are built upon different foundations. He also rejected any submission that Anshun estoppel should not apply to a right that is derived from statute rather than the common law. Therefore, in considering an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), in light of earlier proceedings for judicial review under s 39B of the Judiciary Act 1901 in relation to the same decisions and arising out of the same circumstances, Madgwick J said:
“Thus, where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances. …”[106]
Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal
[104] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870
[105] See Footnote 1 above
[106] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870 at 159; 689; [31]
This is a scenario that I have considered previously in both Re Street Nation and Australian Communications Authority[107] and in Re Proctor and Commissioner of Taxation.[108]I rely on my reasoning in those cases and will refer in this only to aspects of it.
[107] (2004) 86 ALD 413; 40 AAR 68; [2004] AATA 1251
[108] (2005) 87 ALD 247; 59 ATR 1064; [2005] AATA 389
In Minister for Immigration and Multicultural Affairs v Ali,[109] Branson J recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act 1958 is such a section for it permits the Minister to deport a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded, “… the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman[[110]]), Daniele, Gungor and SRT[[111]])”.[112]
[109] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385
[110] [1943] AC 627
[111] Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649;[112] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385 at 325; 684; [41]
By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):[113]
“ A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.
… where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.”[114]
[113] (1991) 30 FCR 578; 102 ALR 19
[114] (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22
His Honour distinguished between those cases in which the Tribunal’s power is founded on a conviction and those where it is not:
“ The rationale for the distinction between the two categories is, or course, that in the first of the categories the exercise of the power arises out of, and is founded on, the conviction. The power conferred is not a power to reconsider that matter or the essential facts on which the conviction was based but a power to consider matters of discretion and like consequential matters which flow from the established fact of conviction. When the power is not so founded, then all relevant matters, including the facts on which the conviction was based, are open.”[115]
[115] (1991) 30 FCR 578; ; 102 ALR 19 at 582; 22
Even when a conviction is regarded as part of the evidence and is not determinative of the grounds on which that conviction was based, caution should be exercised in considering whether an administrative tribunal should reach a conclusion that runs counter to those grounds. Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:
“… although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b)limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).”[116]
[116] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385 at 325; 684; [43]
Previous proceedings in a court between parties to proceedings in the Tribunal
In Commonwealth of Australia v Sciacca,[117] the Full Court of the Federal Court was concerned with a case in which Ms Sciacca had previously taken action against the Commonwealth of Australia (Commonwealth) for damages for injuries she claimed she had suffered while in its employ and through its negligence. Gallop J of the Supreme Court of the Australian Capital Territory found that the Commonwealth had not breached any duty of care it had to Ms Sciacca and entered judgment for the Commonwealth. Even though that was enough to decide the case, Gallop J proceeded to assess damages lest an appellate court come to a different conclusion regarding liability. In the course of doing that, Gallop J found that there was no causal relationship between Ms Sciacca’s back injuries and the accident that she had occurred during her employment. Furthermore, he found that she had been fit to return to her former duties since 13 December 1978.
[117] (1988) 17 FCR 476; 78 ALR 279, Bowen CJ, Sheppard and Morling JJ
Ms Sciacca claimed compensation under the 1971 Act in respect of her back injury. A delegate of the CEC determined that the back condition from which she suffered was not the result of personal injury arising out of or in the course of her employment on 31 December 1976 and that, since 13 December 1978, she had been fit to resume her duties as a tea attendant. Contrary to the submission made on behalf of the Commonwealth, the Tribunal decided that Ms Sciacca’s application was not barred by issue estoppel or res judicata. The Full Court of the Federal Court agreed that this was so saying:
“ The mere circumstance that a finding of fact has been made in earlier proceedings between parties does not lead to the result that there is an issue estoppel as to that fact in later proceedings between the same parties. An issue estoppel will only arise in relation to what Dixon J … described in Blair v Curran …as ‘those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established’. …
…
… [I]ssue estoppel applies only as to issues. It is true that in the proceedings before Gallop J there was an issue as to damages only in the sense that such an issue would have arisen for decision if his Honour had found for the respondent (the plaintiff in the proceedings before him) on the question of liability. But having reached the conclusion that there should be judgment for the Commonwealth in those proceedings because no breach of duty was shown, it was unnecessary for Gallop J to decide the issue of damages. What he said in his judgment on the question of damages was no more than the expression of opinions for the benefit of an appellate court, should an appeal against his finding on liability succeed. His Honour’s particular findings, if they be described as such, on questions of damage were not relevant, let alone fundamental, to the only issue which he decided. …”[118]
[118] (1988) 17 FCR 476; 78 ALR 279; at 478; 281-282
To this point in their judgment, the issues considered by the Court related to the situation in which the parties to the proceeding in the Tribunal have been engaged in previous proceedings in a court. Their Honours then considered a submission that there is no room for issue estoppel because the Tribunal is not bound by the rules of evidence.[119] In doing so, the Court referred to the judgment of Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele,[120] in which
they had said:
“ Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act 1975. Section 33(1)(b) directing that proceedings should be conducted as far as possible with as little formality and technicality and s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to the exclusion of the doctrine.”[121]
[119] AAT Act, s. 33(1)(c)
[120] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
[121] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135 at 359; 654; 139
Bowen CJ and Sheppard and Morling JJ in Commonwealth of Australia v Sciacca thought that the more acceptable view is that issue estoppel is a rule of law[122] but, even if it is, said that:
“… would not conclude the matter, as is apparent from what was said by their Honours [in Minister for Immigration and Ethnic Affairs v Daniele], because of the administrative nature of the Tribunal and the provisions of s 33(1)(b) of the Administrative Appeals Tribunal Act 1975 which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel. In WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294, Kitto J said (at 315) that a taxation board of review’s decision was not an adjudication; it was administrative in character and could not create an issue estoppel.”[123]
[122] In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135 at 359; 654; 139, Fisher and Lockhart JJ had thought that it was “… generally but not universally seen as a rule of evidence …”. In relation to the doctrine of res judicata Deane, Toohey and Gaudron JJ, with whom Brennan J agreed on this point, said that it existed by operation of law: Chamberlain v Deputy Commissioner of Taxation (1998) 164 CLR 502; [1988] HCA 21 at 510; [21]
[123] (1988) 17 FCR 476; 78 ALR 279 at 480; 283-284
This approach does not depend on s 33(1)(a) of the AAT Act and, indeed, I have difficulty in understanding how the Tribunal’s powers regarding the conduct of its proceedings can influence the extent of its jurisdiction. Its jurisdiction is a matter that is determined by s 25 of the AAT Act when read with the relevant provision of the enactment conferring jurisdiction. It is to the AAT Act and to the relevant enactment that regard must be had in determining the Tribunal’s jurisdiction in relation to a particular decision.
I have a reservation about the analysis that the Tribunal set out in Re Matusko because, by its reference to the Tribunal’s “flexible procedures” it seems to be built upon a foundation of s 33(1)(a) of the AAT Act. That is the section that, for the most part, allows the Tribunal to regulates its own procedures and requires it to conduct its proceedings with as little formality and technicality and with as much expedition as possible. I say “for the most part” because s 33(1)(a) is subject to any modifications found in other provisions of the AAT Act, by the regulations made under it and by any other enactment. Whether modified or not, s 33(1) specifically relates to the Tribunal’s “procedure” when it has power to review a decision and not to determining whether it has power to review decisions, and so jurisdiction, at all.
For similar reasons, I have difficulty with notions of policy having any relevance in determining whether the Tribunal has jurisdiction to review a decision. Jurisdiction depends upon the proper interpretation of the statutory provisions conferring jurisdiction on the Tribunal and the application of that interpretation to the facts of the case. It may be that policy issues become relevant when considering whether an application should be dismissed under s 42B on the basis that it is frivolous or vexatious but that is a question that I will come to later in these reasons.[172] An application dismissed under that section will be an application that the Tribunal has jurisdiction to consider but decides that it will not do so because the application is frivolous or vexatious. If it were the case that the Tribunal had no jurisdiction to review the decision in relation to which the application is made, it would dismiss the application on that basis. The power given by s 42B would not be called upon.
[172] See [112]-[118]
In this case, the decision of which Mr Rana seeks review is the reviewable decision that a delegate of the MRCC made on 9 May 2007. Under s 64 of the 1988 Act, the Tribunal has power to review that decision. Part VI of the 1988 Act modifies the provisions of the AAT Act but not in so far as s 43 is concerned. Section 43(1) provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
As the Tribunal is reviewing the reviewable decision, it has all the powers and discretions conferred on the determining authority under s 62 of the 1988 Act. The determining authority’s powers are to make a decision affirming or revoking the determination or varying it in such manner as the person thinks fit.[173]
The upshot is that:
“… The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”[174]
[173] 1988 Act, s 62(5)
[174] Lees v Comcare [1999] FCA 753 at [39], Wilcox, Branson and Tamberlin JJ
The limitations on the Tribunal’s powers were the subject of the Full Court of the Federal Court’s judgment in Lees v Comcare. It considered the structure of the 1988 Act. In addition to ss 62 and 64 of the 1988 Act and s 43 of the AAT Act, the Federal Court considered sections of the 1988 Act such as s 14(1) in Part II. It provides that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
In separate sections, Part II sets out the various types of compensation for which Comcare, and so the MRCC, is liable to pay as well as the qualifications to the entitlement. Compensation may be paid in respect of, for example, loss of or damage to property, medical expenses and incapacity for work. A “determining authority” makes a determination.[175] A “determination” means a determination, decision or requirement under, among others, ss 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30 and 31. These are all sections specifying different entitlements to compensation. A separate claim is required for each.[176]
[175] 1988 Act, s 60(1)
[176] Lees v Comcare [1999] FCA 753
The Full Court described the decision-making processes set out in the 1988 Act as “structured”. In that case, that process;
“… and the plain language of s 64 of the [1988] Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O’Donoghue’s entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which was determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.”[177]
[177] [1999] FCA 753 at [56]
In Lees v Comcare, the Full Court did not turn its mind to whether the determining authority was obliged to make a determination. It seems clear from the requirement that there be a claim and from the three tiered decision-making process that the determining authority is obliged to make a decision regarding each claim that is made. Once that determination is made, it triggers the claimant’s right to have it reviewed and so the determining authority’s, and then the Tribunal’s obligation to review it. It matters not whether there has been a separate claim for compensation regarding the same injury or whether or not the same type of compensation was claimed for. Nothing in the 1988 Act provides that a person may not make more than one claim. There is no provision even of the sort found in ss 14(5), (6) and (7) of the Veterans’ Entitlements Act 1986 disentitling a person from making a claim while a claim respect of incapacity or death from a particular injury or disease has not been finally determined.
In this case, once Mr Rana made his claim to the MRCC on 30 August 2005, that enlivened the obligation to make a determination. Once the determination had been made on 27 July 2006, Mr Rana had the right to request the MRCC under
s 62(2)(a) to reconsider that determination. Once the reviewable decision was made, Mr Rana was entitled under s 64(1) of the AAT Act to ask the Tribunal to review the reviewable decision. As he could do so, the effect of s 25(4) of the AAT Act is that the Tribunal has power to review it. Section 25(4) provides that:“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
In light of these provisions, I feel obliged to find that the Tribunal has power to review the reviewable decision in this case. Principles of res judicata or issue estoppel cannot stand in the way of the statutory provisions giving the Tribunal the power to review it.
I also reach that conclusion in relation to the application of the Anshun principles of estoppel. Certainly, in Stuart v Sanderson,[178] Madgwick J said that the doctrine applies to administrative decisions. What was in issue in that case was judicial review, in one form or another, of an administrative decision or set of decisions, arising out of one set of circumstances. Ms Stuart sought to have a second bite at the cherry, as it were, by bringing separate proceedings for judicial review. In doing so, she sought to raise matters that Madwick J could reasonably have raised in the first set of proceedings. This is a situation quite unlike that which prevails when the Tribunal is called upon to review a reviewable decision that has its origins in a claim properly made under the 1988 Act. It may well be that the claim is made in relation to a set of circumstances in relation to which a previous claim has been made. It may be that the earlier claim could have been made to extend to matters dealt with in the later claim. For all that, though, the Tribunal is not being called upon to review the same decision arising out of the same set of circumstances as Madgwick J was being asked to do in Stuart v Sanderson. What the Tribunal is being asked to do is to review a different decision made as a result of a different claim made in respect of the same set of circumstances. Had Parliament wanted to ensure that each claim raised all matters that could reasonably be expected to be raised in the circumstances, it would presumably have said so. As it has not, it seems to me that the Tribunal is obliged to review the decision as required by a reading of the AAT Act and the 1988 Act.
[178] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870
Frivolous or vexatious
I have also considered whether Mr Rana’s application should be dismissed under s 42B of the AAT Act. That section provides that:
“(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3)The Tribunal may discharge or vary such a direction.”
Implicit in s 42B is an assumption that the Tribunal has power to review the decision. If it did not, it could dismiss the application for want of jurisdiction and no reference would need to be made to s 42B dismiss an application.
As Gray J explained in Pitt v OneSteel Reinforcing Pty Limited,[179] “the word ‘frivolous’, especially when coupled with ‘vexatious’, is a technical legal term, in substance meaning the absence of a cause of action.”[180] As Graham J said in JF Keir Pty Limited v Sparks,[181] “An action can be stayed as vexatious ‘if it can really lead to no possible good’.”[182] The power to dismiss an application summarily is a power known to, and exercised by, the courts under various names. It is a power whose limits were considered by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.):[183]
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. … [the] cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
…
… Dixon J. (as he then was) sums …a number of authorities in Dey v Victorian Railways Commissioners [(1949) 78 CLR 62] where he says: ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”[184]
[179] [2008] FCA 923
[180] [2008] FCA 923 at [9]
[181] [2008] FCA 611
[182] [2008] FCA 611 at [62]
[183] (1964) 112 CLR 125
[184] (1964) 112 CLR 125 at 128-129, footnotes omitted
Principles of this sort underpin the Tribunal’s exercise of the power given to it by s 42B(1) of the AAT Act. The Tribunal’s reasons for decision in Re Williams and Australian Electoral Commission and The Greens (party joined)[185] set out the following general principles governing the exercise of the power:
“(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. …”[186]
[185] (1995) 38 ALD 366
[186] (1995) 38 ALD 366 at 372
The Tribunal went on to consider the relevance of futility in the context of s 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. The decision under review was a decision that a certain name be entered in the register kept under the Commonwealth Electoral Act 1918 as the registered officer of the Greens. At the time of the hearing, that person was no longer the registered officer of the Greens. Had Mr Williams been successful in having that name removed from the register, the effect would have been that the position of registered officer of the Greens was vacant for a period of time. As no election had been called during that period and the registered officer had not been called upon to perform his sole function under the Commonwealth Electoral Act, the vacancy was of no consequence at all. The Tribunal concluded that Mr Williams’ application would be futile.
Despite its conclusion on that point, the Tribunal also accepted that Mr Williams genuinely believed that the contrary was the case and his application for review was not futile. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:
“(37) The genuineness of the applicant’s belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to ‘a day in court’. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. …”[187]
[187] (1995) 38 ALD 366 at 374
In adopting this approach, the Tribunal took the same path as that later taken by Sundberg J in Director General Security v Sultan and Another[188] (1998) 90 FCR 334. In the Sultan case, review by the Tribunal would not lead to Mr Sultan’s being able to obtain the visa he sought even if he were successful in every respect on that matter that was within the Tribunal’s jurisdiction to review. Both Sundberg J and the Tribunal looked to the practical outcome of the review.
[188] (1998) 90 FCR 334
These principles are equally applicable in this case. Mr Rana submitted two handwritten notes both dated 30 March 2007 in support of his application. Both were written by Dr Fellner. The first was addressed to the Southern Cross University and said:
“ Mr Rana has been treated by me for a number of years and I am aware of his medical psychotic conditions.
He has been unwell with diabetes and the complications/side effects of his medications over the last few months. (9.)
I support a withdrawal from the two subjects he has nominated on his application to help reduce his study load & stress levels.”[189]
[189] T2007/1885 documents at 74-75
The second note is a little harder to read but appears to be addressed to Dr Leonello. It reads:
“ I have suggested to Ranjit to cease his Lipidil because of his myalgia & raised CK which you kindly organised. (Trigs still 3+ on Rx.) He will see you soon.”[190]
[190] T2007/1885 documents at 76
In my view, the medical evidence is insufficient to establish the necessary causal connection between the circumstances of Mr Rana’s employment as found in the Tribunal’s previous decisions and the conditions of paranoid schizophrenia and diabetes. If his condition is to be taken as an “injury” for the purposes of the 1988 Act, it must be:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”[191]
A “disease” means:
“(a) an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, or a significant degree, by the employee’s employment by the Commonwealth or a licensee.”[192]
[191] 1988 Act, s 5A(1)
[192] 1988 Act, s 5B(1)
That conclusion might be thought to justify my concluding that Mr Rana’s application is futile and so dismissing it as frivolous or vexatious. In this case, I do not think that I should at this stage. His claim that he is suffering from paranoid schizophrenia is not a claim that the Tribunal has previously considered. Certainly, the Tribunal presided over by Deputy President Jarvis touched upon it but it was not a condition that was in issue in that case. In the proceedings before Lander J, evidence was given by Dr Jha to the effect that Mr Rana suffered from a paranoid personality disorder and that stress could lead to a “flare up” of that disorder and so to paranoid schizophrenia. His opinion does not appear to have been linked to a finding that any stress was linked to sexual abuse in the workplace. Equally, Dr Jha did not limit it to stress in the workplace.
When viewed in light of the principles in Rodriguez v Telstra Corporation Limited, [193] it becomes clear that, in order to be an injury for the purposes of the 1988 Act, there need be no finding that a condition have been caused by or resulted from some sort of event or action to which there is attached some sort of fault or misfeasance. This was addressed by Spender J in that case when he reviewed the relevant authorities.[194] I will not set the passage out but will refer to only a segment:
[193] [1999] FCA 1400
[194] [1999] FCA 1400 at [44]-[49]
“44 The principles to be applied in relation to Mr Rodriguez’s case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 642, where his Honour said:
‘The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.’
[my emphasis]
45 In Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 …
… Davies J referred, at 239, to the observations of Windeyer J in Federal Broom Co Pty Ltd, to which I have referred, and then said at 240:
‘A like problem was examined in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In that case, Pincus J went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation , acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself.’
…”
Davies J held at 242:
‘Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.’
…”[195]
[195] [1999] FCA 1400 at [44]-[46]
Dr Jha’s evidence may be thought to support a causal connection between Mr Rana’s army service and the condition of paranoid schizophrenia for which he now claims compensation. The evidence suggesting a possible link between Mr Rana’s diabetes and the treatment for his psychiatric conditions depends on a finding the necessary causal link between the treatment and the conditions. I do not propose to deal with that further.
It seems to me that Mr Rana’s application is not manifestly without cause or groundless. He is entitled to pursue his application and to have the opportunity to gather evidence to support his claim on the basis that I have set out. If he is unable to gather that evidence, it may be that the Tribunal would entertain an application under s 42B but that remains to be seen. If he does gather the evidence, he is entitled to have the Tribunal consider his claim for compensation for paranoid schizophrenia and diabetes.
Can the Tribunal have regard to the previous decision?
I do not consider that Mr Rana is entitled to regard his application in the Tribunal as opening up for consideration all of the issues that have been considered and decided by previous Tribunals. He cannot again produce all of the evidence regarding his employment in the Army or all of the medical evidence about the other conditions from which he suffers or claims to suffer. Instead, he will be restricted in the evidence that he can call. I will come to those restrictions shortly but, for the moment, will set out my reasons for imposing them.
In Morales v Minister for Immigration and Multicultural Affairs,[196] it was the view of the Full Court that:
“… the essentially administrative nature of the tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.”[197]
[196] (1998) 154 ALR 51, Black CJ, Burchett and Tamberlin JJ
[197] (1998) 154 ALR 51 at 66
This is a different approach from that taken by the Tribunal in Re Matusko, which relied on the “flexible procedures” permitted by s 33 of the AAT Act. Rather, it seems to be an approach based not so much on procedures but on the evidence to which the Tribunal may have regard. It seems to be an approach that is based more on s 33(1)(c), which provides that:
“the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
Since Morales v Minister for Immigration and Multicultural Affairs was decided, the AAT Act has been amended by the enactment of s 2A. It provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Its inclusion in the AAT Act reinforces the Full Court’s reference to what may be the dictates of fairness.
The Full Court was speaking in terms of a “decision”. Do the principles apply equally to findings of fact that are made as part of the processes leading to the making of a decision? Findings of fact are not decisions in the sense that the word is understood by the High Court in Australian Broadcasting Tribunal v Bond[198] when analysing the meaning of the word “decision” in s 3(2) of the ADJR Act. That provision defines the word, in part and in so far as they are relevant in this case, in terms of “… a decision of an administrative character made … under an enactment …”.
[198] (1990) 170 CLR 321; 94 ALR 11
Mason CJ, with whom Brennan J and Deane J agreed, considered the competing policy considerations to be taken into account in determining the compass of the word “decision” in the context of the ADJR Act. These were:
“On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen CJ and Lockhart J appeared to emphasise the first of these considerations in Australian National University v Burns (1982) 64 FLR 166 at 172; 43 ALR 25 at 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.”[199]
[199] (1990) 170 CLR 321; 94 ALR 11 at 23; 336-337
Mason CJ distinguished between a “decision” that is, for the purposes of s 3(2) of the ADJR Act “... one that generally is substantive, final and operative ...”,[200] conduct that “…looks to the way in which the proceedings have been conducted …” and “… decisions made along the way with a view to the making of a final determination. …”,[201] which are “… unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.”[202]
[200] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342
[201] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342
[202] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342
I do not think that the Full Court in Morales v Minister for Immigration and Multicultural Affairs was speaking in terms of a decision in the sense of a substantive, final and operative decision. Rather, it was speaking in terms of decisions that are themselves no more than steps in the deliberative or reasoning process. The Court considered whether the Tribunal was bound to rehear every aspect of an application that had been remitted by the Federal Court following an appeal from an earlier decision of the Tribunal. The appeal had been allowed on the basis that a finding that G had incited discord was affected by an error of law but its finding that the evidence was not sufficient to establish that G was not of good character was not disturbed. On the remittal, the Tribunal permitted further evidence in relation to both matters and decided that G was not of good character. The Tribunal affirmed the Minister’s decision to refuse G’s visa application as had the earlier Tribunal although on the ground that G had incited discord. The Tribunal’s decisions regarding the incitement of discord and of not being of good character may both be characterised as decisions that are no more than steps along the way to the final decision i.e. refusal of G’s visa application.
Is this a case in which the previous decision of the Tribunal should be treated in this way? It is a case in which Mr Rana has applied for compensation in relation to the same set of events as he has in the previous two cases. He has described them in various ways but they may be summarised as physical, mental or other abuses, including sexual abuses. They are events that have been comprehensively considered in each of the previous matters and findings of fact have been made that, when applied to the law, have led the Tribunal concerned to reach a particular decision. In relation to the decision of Deputy President Jarvis and Dr Eriksen, the Federal Court and the Full Court of the Federal Court found no error of law in their findings of fact. Mr Rana did not challenge the Tribunal’s much earlier 1988 decision and it too addressed a similar factual background which Mr Rana claims has caused him to suffer from various conditions.
There is a difference between Mr Rana’s current claim and his earlier claims that have made their way to the Tribunal. It is an important difference. It concerns different conditions: stress induced paranoid schizophrenia and diabetes arising as a result of the medication for his condition. The condition of paranoid schizophrenia was touched upon in the second Tribunal’s hearing but it was not a condition that was the subject of the decision they were reviewing. Diabetes was not claimed but is said to arise out of the medication to treat conditions, in relation to some of which have been found not to be compensable under the 1988 Act.
Where the similarities lie are in the circumstances which Mr Rana claims has caused them. They are circumstances that have been canvassed at length and have been examined on appeal by the Federal Court. They have been canvassed whether they have been put on the basis of sexual abuses or abuses or simply as events that occurred during Mr Rana’s service.
These are considerations that must inform any exercise of the Tribunal’s power in s 33(1)(c) of the AAT Act. That power must also be exercised with the exhortation found in s 2A to pursue, among others, the objectives of fairness, justice, economy, informality and speed firmly in mind. When I do that, it seems to me to lead to a conclusion that Mr Rana should not be permitted to rehearse the circumstances of his employment a further time, to challenge the findings that have been made about the circumstances of that employment or to challenge the findings that have been made about the compensability of the conditions for which he has previously been denied compensation and in respect of which the Tribunal has affirmed the decisions. Instead, the Tribunal should have regard to the findings of fact made by the earlier Tribunals presided over by Deputy Presidents Layton and Jarvis respectively in reviewing the decision in the current matter. Any evidence that is given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions as now claimed by Rana.
For the reasons I have given, I have:
1. decided that:
(1)the respondent’s application that the applicant’s application be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 be refused; and
(2)under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a)inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re “SAN” and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b)not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
2. direct that:
(1)by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2)by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
3. give the parties liberty to apply.
I certify that the one hundred and thirty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Date of Hearing 26 October 2007
Date of Decision 1 July 2008
Representative for the Applicant unrespresented
Counsel for the Respondent Ms K. Bean
Solicitor for the Respondent Australian Government Solicitor
T2005/58 documents at 24
Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445 at 152; [5],
T2005/58 documents at 25
5 ALD 135; Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441; and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
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