Repatriation Commission v Maloney

[1992] FCA 1093

JUDGMENT No. . ~~~~ .z . , , . , , l&~ .%, ,

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH W m E S DISTRICT REGISTRY)	No G 666 of 1991
GENERAL DIVISION	1

BETWEEN	REPATRIATION COMMISSION
Applicant
AND	LAURENCE VINCENT ~ O N E Y
Respondent

2~ JAN 2003

EX TEWORE JUDGMENT

EINFELD J SYDNEY 29 JULY 1992

An appeal from the Administrative Appeals Tribunal is presently being heard in the Court. In the course of the proceedings, the applicant Repatriation Commission has asked for permission to file and rely on a further amended notice of appeal. The question was first raised early in the proceedings, not now a couple of hours after it has commenced, but in order that I could understand the nature of the proposed amendment, I invited counsel for the applicant to open the matter and argue the majority of the case before the question of whether to allow the amendment was considered. Hence, nothing adverse to the applicant flows from the fact that the hearing is now well advanced.

decision of the Tribunal made by consent on 8 July 1991 in

The amended notice of appeal in essence seeks to raise what it describes as an estoppel. The effect of the estoppel if upheld would be to constitute the decision of the Tribunal at

present before the Court as wholly barred by an earlier

l - 2 -

matter number P89/866. That order reflected the parties' agreement that the condition of carcinoma of the rectum was war-caused as claimed by the veteran since 1985. Until the consent decision, the condition stood, by determinations of the Commission, as not war-caused. The consequence of the inclusion of this carcinoma as being one of the veteran's war- caused conditions was that the pension payable to him was increased to what is known as the special rate on and from 28 February 1989.

By the time the consent decision was made, there was already filed the appeal to the Tribunal presently before this Court. Because of the consent decision, the only thing left for determination in that appeal was whether this special rate of pension should have been backdated to 5 November 1985.

The consent decision contains this clause at its conclusion:

The Tribunal makes this decision without prejudice to the applicant's rights in matter number P91/222, an application for review of a decision of the

Repatriation Commission currently before the Tribunal.

The practical meaning and intent of those words are unclear but the Court is now informed that what the parties had in mind at the time was to permit the present appeal to go forward on the question of the backdating. The rights of the parties in that regard were argued before the Tribunal in the matter now under appeal and the Tribunal agreed to the backdating. Without the proposed amendment, the only matter to be argued in this Court would be whether the Tribunal was legally entitled to backdate the increase. Thus even without evidence, it seems that the agreement embodied in the Tribunal's decision of 8 July 1991 was not intended to represent an absolute bar by way of estoppel to the Tribunal considering the backdating issue.

The Commission argues here that the consent decision of 8 July 1991 on its proper construction represents an estoppel to the consideration of the matter presently before the Court. In reply the veteran argues that if this amendment is granted, he would wish to call evidence, or investigate and probably call evidence, as to the circumstances under which that agreement was reached, including particularly as to the intention of the parties at that time not to raise or not to litigate this estoppel argument in the current proceedings.

The estoppel was not raised before the Tribunal. Hence no facts were led about the circumstances of the decision of 8

July 1991, and the Tribunal did not rule on it. The	consequence therefore of my allowing the amendment would be to
open up an issue which was not argued below and as to which facts are desired to be brought forward on its determination
The fact that the matter was not argued below is important for two reasons: one is the traditional argument that matters not argued below, especially when parties are fully represented

and fully apprised of the facts, should not be permitted to be raised on appeal in the absence of very special circumstances and a major element of injustice. I see no such circumstances here, and no element of justice requiring that the amendment be granted and the matter re-opened. A second reason is that there would be a difficulty about which body could and should hear and make a determination on the additional evidence sought to be adduced. This Court only deals with appeals from the Administrative Appeal Tribunal on questions of law and counsel have not been able to refer to me any power or any authority to support my embarking upon a hearing of any facts at all.

At the same time it is also agreed at the bar table that there is no power for me to stop this hearing and send the matter back to the Tribunal for the hearing of the proposed new evidence. Neither party was even prepared to argue that there is an inherent or implied power in the Court to undertake either of these options. Thus there may be no place where such facts can be heard. This would be another reason for

this to argue on appeal matters not argued below, especially	substantially limiting the right of parties in matters such as
in cases where facts have to be determined to allow the issue now sought to be raised to be decided.
A third reason is that the Commission was fully represented before the Tribunal. As the matter of prejudice to the applicant's remaining rights was before the Tribunal on 8 July 1991 when it was mentioned in the determination, the question of a possible estoppel must certainly have then been in the minds of the parties and would have been well open to be raised at that time. The fact that it was not raised indicates that it was the parties' understanding or agreement that the determination of the Tribunal of 8 July 1991 would not operate as a bar to the continuation and full argumentation of the present matter of backdating the special rate.
For all those reasons the amendment will be refused.
RECORDED NOT TRANSCRIBED
HIS HONOUR:  I will reserve the question of costs