Tuite v Administrative Appeals Tribunal

[1993] FCA 113

Re: NORMAN EDWIN TUITE
And: ADMINISTRATIVE APPEALS TRIBUNAL VETERANS' APPEALS DIVISION and
REPATRIATION COMMISSION
No. G 446 of 1992
FED No. 113
Number of pages - 16
Practice and Procedure
(1993) 17 AAR 165
(1993) 40 FCR 483
(1993) 29 ALD 647

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Practice and Procedure - application under Administrative Decisions (Judicial Review) Act 1977 for review of decision of Administrative Appeals Tribunal - injuries sustained during eligible service under Veterans' Entitlements Act 1986 - whether applicant denied procedural fairness in breach of requirements of natural justice - whether breach of legal duty by Tribunal amounts to a "question of law" under the Administrative Appeals Tribunal Act - procedure to be adopted where Tribunal rejects concession agreed to by parties before hearing - whether proceedings under the Administrative Decisions (Judicial Review) Act were appropriate.

Administrative Appeals Tribunal Act 1975 (Cth) s.5, s.44

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5

Veterans' Entitlements Act 1986 (Cth) s.120(4)

Repatriation Commission v. Hughes (1991) 23 ALD 270

Repatriation Commission v. Tuite (18 February 1993, unreported)

Kioa v. West (1985) 159 CLR 550

Cavell v. Repatriation Commission (1988) 9 AAR 534

HEARING

SYDNEY, 3 February 1993

#DATE 5:3:1993

Counsel for the Applicant: Mr C.A. Vindin

Solicitors for the Applicant: Veterans' Advocacy

Service

Counsel for the Second Respondent: Miss R.M. Henderson

Solicitor for the Second Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The application is allowed.

2. The decision of the Administrative Appeals Tribunal of 26 May 1992 be varied by omitting therefrom the ruling "That the decision under review so far as it relates to cervical spondylosis ... is affirmed."

3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law.

4. The second Respondent, the Repatriation Commission, pay the costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J. This application is brought under the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") in respect of a decision of the Administrative Appeals Tribunal given on 26 May 1992. The application seeks to have the decision of the Tribunal varied on the ground that the applicant, Norman Edward Tuite, did not receive natural justice in the hearing, that is to say that procedural fairness was denied to him to his disadvantage.

1. In my view, the application to this Court is misconceived insofar as the application is brought under s.5 of the ADJR Act. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The Tribunal having made a decision on Mr Tuite's application, by which he was aggrieved, his appropriate course was to institute an appeal under s.44 of the AAT Act. The words "question of law" in s.44 encompass matters concerning not only the interpretation of a Federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words "question of law" encompass grounds enunciated in s.5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision maker would have made, the exercise of a decision making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice.

2. As s.44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s.5 of the ADJR Act, when an appeal under s.44 of the AAT Act is available, should be dismissed as of course. See F.J. Bloemen Pty Ltd v. Commissioner of Taxation (Cth) 1981) 147 CLR 360; Wiest v. Director of Public Prosecutions (1988) 23 FCR 472 at 483-4, 488-9, 505. In David Jones Finance and Investment Pty Ltd v. Commissioner of Taxation (Cth) (1991) 28 FCR 484, it was thought by Morling and French JJ. that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1901 (Cth) may, nevertheless, be invoked in special circumstances. But no such circumstances are raised for consideration in the present case. Therefore, the limit imposed by s.44 of the AAT Act, namely that any challenge to a decision of the Tribunal be based on a question of law, must apply.

3. As the respondents took no objection to the fact that the application was brought under the ADJR Act, and as counsel for Mr Tuite and for the Repatriation Commission were ready and desirous of proceeding, I heard the application. This course of proceeding should not be taken as a precedent for other cases.

4. Furthermore, I did not realise at the time of hearing that another aspect of the Tribunal's decision, that dealing with Mr Tuite's medical conditions of emphysema and chronic gastric ulcer, apart from the condition of cervical spondylosis which with this present application is concerned, had been the subject of an application by the Repatriation Commission for leave to appeal under s.44 of the AAT Act. This further application had been listed for hearing by a Full Court only a few days later. The two matters should obviously have been dealt with by way of an appeal and cross-appeal in the one proceeding.

5. In 1940, Mr Tuite served for a short period time in Australia in the Citizen Military Forces. In respect of this eligible service, the standard of proof was that laid down by s.120(4) of the Veterans' Entitlements Act 1986 (Cth) namely to the reasonable satisfaction of the Tribunal; see Repatriation Commission v. Smith (1987) 74 ALR 537 at 546 and Repatriation Commission v. Tuite (Davies, Burchett and Einfeld JJ. unreported 18 February 1993). Mr Tuite had been a boxer even before his conscription. He had two formal bouts while in the Army, as well as a number of informal fights and some scraps, for he was ill-disciplined. In his claim for cervical spondylosis, he laid particular emphasis upon one occasion when he claimed to have been set upon in the showers by several senior NCOs who wished to beat some discipline into him. Mr Tuite claimed that, on that occasion, he was hit and kicked about the head as well as other parts of his body and that these blows contributed to the development of his cervical spondylosis.

6. At the time the matter came on for hearing before the three member Tribunal, Mr R. Sherlock, who represented Mr Tuite, and Mr M. Castle, who represented the Repatriation Commission, had reached agreement upon a number of matters. In respect of the claim for cervical spondylosis, it was conceded that the fight in the shower was a contributing factor to Mr Tuite's cervical spondylosis. The remaining issue was whether Mr Tuite had been assaulted as he alleged or whether, on the other hand, the fight was in fact a brawl in which Mr Tuite was an equal and willing participant. The presiding member of the Tribunal asked Mr Castle whether he relied on s.9(3) of the Veterans' Entitlements Act, which excludes any injury or disease incurred or resulting from a serious breach of discipline. Mr Castle said that that was the distinguishing factor.

7. Mr Sherlock then called Mr Tuite to the stand and he gave oral evidence relating to an occasion when he had been assaulted by senior NCOs, and as to conduct on his part that may have led the NCOs to take disciplinary action. Mr Tuite gave evidence that at that time, he and a Mr Connolly were taking a shower, and he described the occasion as follows:-
   

"And there was about seven or eight NCOs come in and give us a bashing there. More so me. And I finished up with a lot of bruises on my face and a sprained ankle. And I had to get carried to the station by Connolly on his back. And I couldn't walk, I had to go out of the car because I was feeling - get crutches and I went and seen the army and I got three weeks compensation off them after a lot of time. They gave me four pound a week. I got 12 pound for three weeks compensation on my ankle."

Mr Tuite gave no further evidence in chief about his injury and he was not cross-examined about his injuries but, in the course of cross-examination by Mr Castle, he gave the following mainly non-responsive evidence:-

"And they were all senior NCOs?---Yes, and there was only me and Connolly and Connolly was doing his best too and he was a lot bigger than me. They give me a kick and I've never been the same since. My neck has been terrible crook ever since."

1. Because of the agreement between Mr Sherlock and Mr Castle, no medical practitioner was called to give evidence with respect to the cervical spondylosis and, in their addresses, neither Mr Sherlock nor Mr Castle discussed the medical aspects of Mr Tuite's claim. The crux of Mr Castle's address on this point was as follows:-
   

"And I just ask the tribunal to look at that evidence in the light of Mr Connolly's evidence and see whether the tribunal is satisfied that he was beaten by a group of NCOs and if he hit back. If so, I have no problems with the fact that it arose out of service. If on the other hand, the tribunal were disposed to accept that he and Mr Connolly had picked a fight in the shower with other fellow soldiers, I would then seek to rely on 9(3). So that it was in fact a wilful act on his part, that it was a breach of discipline and that he doesn't come within the context of 9(1) or 9(2)."

The presiding member and another member of the Tribunal then drew Mr Castle's attention to the fact that Mr Tuite had claimed and received three weeks compensation after the incident, and that it seemed unlikely that he would have received the compensation had his injuries been suffered in a private brawl. There followed this passage between the presiding member and Mr Castle:-

"MR ALLEN: Mr Castle, where I have a problem there is this, that if one accepts the evidence, there was a court of inquiry held as a result of which he was awarded compensation.

MR CASTLE: Yes.

MR ALLEN: Now, it strikes me that if there was any colour of a breach of discipline about it, he would not have been awarded compensation. MR CASTLE: I agree."

1. Following the completion of the hearing on this and other issues, the Tribunal retired for a short time. On resumption, the Tribunal gave its decision on all issues and the presiding member stated orally the Tribunal's reasons for decision. With respect to the cervical spondylosis, the Tribunal accepted Mr Tuite's evidence as to the nature of the fight. In respect of this matter, there were several paragraphs of the Tribunal's reasons which were apposite, but the crux of the reasoning was as follows:-
   

"The applicant's case in relation to his cervical spondylosis was that as a result of an assault upon him in the showers at camp by a group of up to eight NCOs resulted in the injury to his neck. The tribunal has heard the applicant give evidence and considers him a witness of the truth and accepts his account that he was set upon by NCOs in the shower who were determined to mete out their own form of informal discipline."

1. In the light of the agreement which had been expressed to the Tribunal, that finding should have resulted in a decision in Mr Tuite's favour. However, the Tribunal rejected Mr Tuite's claim for the following reasons:-
   

"The other condition claimed, cervical spondylosis, the agreed facts are that the said cervical spondylosis was contributed to by incidents in a fight whilst on service in the Citizen Military Forces. Now, that may be put to the tribunal as a statement of agreed fact but of course the ultimate finding of fact is one for the tribunal, and the tribunal can, in no way, consider itself bound by what the parties themselves decide. ...

The difficulty the tribunal has with this matter is that there are no medical records and the applicant's evidence is that at the time he injured his ankle, and that the workers compensation was granted for the injured ankle, there is nothing in the material before the tribunal which allows the tribunal to be satisfied on the balance of probability that that assault in the showers led to a neck injury which was causative of cervical spondylosis.

Therefore the tribunal, as presently advised, is not satisfied that the applicant's cervical spondylosis is as a result of his war service."

1. No challenge is made to the finding that the material before the Tribunal, when it considered the issue of causation, was insufficient reasonably to satisfy the Tribunal that Mr Tuite's war service had contributed in a causative way to his condition of cervical spondylosis. One would not expect the Tribunal to have been able to reach a state of reasonable satisfaction, once it had rejected Mr Castle's concession that the fight in the shower and the condition of cervical spondylosis were causatively linked. The members of the Tribunal, none of whom was a medical practitioner, could not have been expected to decide that medical issue without the assistance of expert opinion from a medical practitioner.

2. This challenge is brought on the basis that, once the Tribunal had decided not to accept Mr Castle's concession, the principles of procedural fairness required that the Tribunal so inform the parties and adjourn the matter to allow Mr Sherlock to obtain the medical evidence necessary to address the issue with which he had not expected to deal.

3. It is not in doubt that the Tribunal was bound to accord procedural fairness to both Mr Tuite and the Repatriation Commission, in the course of its hearing and deliberations. The very nature of the proceedings before the Tribunal required compliance with the full substance of the principles of natural justice. This was not a case where, to use the words of Brennan J. in Kioa v. West (1985) 159 CLR 550 at 615:-
   

"the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred."

I need not discuss in great detail the content of the rules of natural justice. Many of the relevant authorities were referred to by Brennan J. in Kioa v. West at 612-5. For present purposes, it is sufficient to refer to the words of Lord Loreburn L.C. in Board of Education v. Rice (1911) AC 179, where his Lordship said at p 182:-

"... the Board of Education ... must ... fairly listen to both sides, for that is a duty lying upon every one who decides anything. ... They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

I refer also to the remarks of Mason J. in Kioa v. West, at 587 where his Honour said:-

"In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI (1982) 151 CLR 342 is one illustration. Cole v. Cunningham (1983) 49 ALR 123, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida

(1970) 2 QB 417, at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130."

1. It is clear that the Tribunal, no doubt because of the pressure of work and its desire to deal with matters speedily and economically, overlooked the point that, when it chose not to act upon Mr Castle's concession that the cervical spondylosis was causally related to injury which Mr Tuite had sustained in the fight in the shower, the Tribunal was bound to inform the parties of that fact and to give Mr Tuite and his representative, Mr Sherlock, a fair opportunity to adduce medical and other evidence on this point. By failing to do so, the Tribunal failed to give to Mr Tuite and his representative Mr Sherlock a fair opportunity to deal with the issue which the Tribunal decided it should consider for itself.

2. The application must therefore be allowed and the matter must be remitted to the Administrative Appeals Tribunal for rehearing.

3. I should, however, make some further observations to clear up what otherwise might appear to be loose ends in the case.

4. The first is that the Administrative Appeals Tribunal may act upon concessions made by parties or their representatives or may reject such concessions if, in the circumstances of each case, it chooses so to do. See, for example, the decisions of the Administrative Appeals Tribunal in Re Martin and Commonwealth of Australia (1982) 5 ALD 277 at 284-5 and Re Lombardo and Commonwealth of Australia (1985) 3 AAR 537. In the latter case, after discussing relevant authorities, the Tribunal made a decision by consent, and stated at 539:-
   

"The Tribunal is not bound by a compromise, save in the circumstances prescribed by s.34, but it may take it into account and give it such effect as it thinks proper".

More recently, in Repatriation Commission v. Hughes (1991) 23 ALD 270, Beaumont and Hill JJ. said at 275-6:-

"As has been seen at the commencement of the proceedings before the Tribunal, several potential issues were canvassed by the representatives of the parties. However, as the proceedings progressed, the parties' representatives came to appreciate that only one matter was seriously in contention between them. This issue was the time at which the deceased developed his smoking habit. In the course of their final addresses, the parties, by their representatives, agreed that this was the only matter for determination. The issue was, of course, a question of fact and it was perfectly proper and appropriate that the parties, with the benefit of professional advice, should inform the Tribunal that only that question remained for its determination. It is hardly necessary to say that parties should be encouraged to tender for determination by the Tribunal only those questions which are, in truth, contentious."

As Beaumont and Hill JJ. indicated, it is desirable that the representatives for the parties should pose for the decision of the Tribunal only those issues which seem to them to be contentious to encourage the parties in this course, it is the practice of the Administrative Appeals Tribunal to hold a preliminary conference or conferences before a hearing in which encouragement is given to the parties to resolve the matter and, if not to resolve it, at least to limit the issues.

1. That procedure was followed in the present case and the representatives of the parties signed a statement of agreed facts as follows:-
   

"At the preliminary conference of 5 February 1992, it was agreed between the parties that: * the Applicant would withdraw that part of his claim re dermatitis herpetiformis; * a joint report would be obtained from Dr R Pirola on the connection between the Applicant's smoking and his chronic gastric ulcer;

* the Repatriation Commission concede the link between smoking and emphysema but contest that between the Applicant's war service and his smoking history;

* no medical reports would be sought re cervical spondylosis and the Repatriation Commission will concede this part of the claim if the Applicant's account of the incident on service which he claims contributed to the development of the condition is corroborated; and * the date of effect in this matter is 13 September 1990 and the standard of proof reasonable satisfaction."

Following upon this agreement, Mr Sherlock signed a certificate of readiness which indicated that the only witness he would call would be the applicant, that the case would only occupy between one and one and a half hours and that the only two issues at the hearing were "whether service contributed to applicant's smoking habit" and "whether applicant assaulted by NCOs on service". Mr Sherlock indicated in the certificate that he did not intend to brief counsel.

1. At the hearing, the two issues set out in the certificate of readiness were those put forward by Mr Sherlock and Mr Castle as the contentious issues for the Tribunal's consideration. Mr Tuite was the only witness called to give oral evidence and the hearing was brief.

2. In such a circumstance, where the Tribunal's procedures encourage the representatives of the parties to agree upon limited issues and thereby maximise the efficiency and reduce the cost of review by the Administrative Appeals Tribunal, it is obviously desirable that a concession made by the representative of one of the parties, be accepted unless there exist good reasons to the contrary. To do otherwise would be disruptive of the procedures of the Administrative Appeals Tribunal, which seeks to achieve resolution or limitation of disputes through its process of pre-trial mediation. Moreover, if a concession agreed to before a hearing is not accepted by the Tribunal at the hearing, then the result will usually be, as in this case, that the hearing ought to be adjourned so that the parties may deal with the issue which they had understood to have been resolved.

3. The second observation I would make concerns some of the matters put forward by counsel who appeared for the Repatriation Commission in this appeal. The first point made by counsel was that the agreed statement of facts signed by Mr Castle and Mr Sherlock, which I have set out above, stated that the Repatriation Commission would concede the medical aspect of the cervical spondylosis claim "if the Applicant's account of the incident on service ... is corroborated". Counsel submitted that Mr Tuite's account was not corroborated and that therefore the Repatriation Commission never conceded the medical aspect of the claim.

4. The first answer to this submission is that the agreed statement of facts was not referred to by either Mr Sherlock or Mr Castle in the proceedings before the Tribunal and it does not appear to have become part of the evidence. There is no reason to conclude that the members of the Tribunal were aware of the written agreement or of the limitation expressed in it. In the proceedings before the Tribunal, Mr Castle appeared and he stated in clear terms the concession he made. In stating the concession, he placed upon it no condition as to the need for corroboration of Mr Tuite's evidence.

5. There was, moreover, corroboration of Mr Tuite's evidence. There was a letter from Mr Connolly, the soldier who was also in the showers when the fight occurred. That letter was tendered in evidence without objection and the Tribunal took it into account. The letter said, inter alia:-
   

"I remember before we broke camp at Greta, Norman and self had a fight in the shower with several other soldiers. Norman received a fair amount of punishment to face and body and received a sprained ankle out of it. He told me he received 3 weeks compensation from Army for injury. He could not walk too (sic) good and I had to assist him to the station for the trip back to Sydney".

Mr Castle accepted in his final address that this letter confirmed all aspects of the matter, other than that Mr Connolly and Mr Tuite had been set upon by NCOs. The Tribunal considered that the making and receipt of the claim for compensation confirmed that the fight had been instituted by NCOs as a disciplinary measure rather than occasioned by Mr Tuite and Mr Connolly in breach of discipline. Therefore, Mr Tuite's evidence was corroborated, if I may use that term in a non-technical sense.

1. Counsel placed reliance upon the decision of Burchett J. in Cavell v. Repatriation Commission (1988) 9 AAR 534 at 537, where his Honour dismissed an appeal from a decision of an Administrative Appeals Tribunal in which the Tribunal had said:-
   

"The evidence of Mr Cavell alone however could not be accepted without corroboration, particularly as it was given to me some nine years after the event, after numerous applications and hearings where the significance of the evidence must have been made clear to him and where the manner of eliciting the evidence before this Tribunal relied unnecessarily upon leading questions. I certainly accept Mr Cavell as a truthful man. However the obvious possibilities of evidence that may (however innocently) tend to be self serving requires that a proper assessment of the facts must involve that corroboration."

His Honour found no error of law in this approach and he rejected an appeal, stating that the word "corroboration" was used not in a technical sense but in the sense of "confirmation". His Honour said at 538:-

"As I understand the tribunal's reasons, it was doing no more than exposing the way in which it had arrived at a conclusion of fact; it had found a piece of evidence, standing alone, insufficiently persuasive, and had looked to see whether it could be accepted because confirmed elsewhere in the evidence."

His Honour did not suggest that corroboration or confirmation of an applicant's evidence was required in proceedings before the Administrative Appeals Tribunal. His Honour made it clear that such a matter was a question of fact to be determined by the fact finding tribunal and did not involve a question of law for the consideration of this Court.

1. A further point submitted by counsel was that the Tribunal had found as a matter of fact that, in the fight, Mr Tuite suffered an injury to his ankle but no injury to his neck. But that was not the Tribunal's finding. The Tribunal found merely that it was not satisfied on the balance of probability that the assault in the showers had led to a neck injury which was causative of cervical spondylosis. As a finding of fact, that finding could not be challenged, although the agreed fact was to the contrary. However, as I have said, the Tribunal ought not to have made the finding without disclosing to the parties that it did not propose to accept the agreement or without adjourning the proceedings so as to enable Mr Sherlock to adduce further evidence on the point.

2. Counsel finally submitted that, even if the decision of the Tribunal was void, having been reached in breach of the principles of natural justice, the Court in its discretion ought not so to declare, for no material that was before the Court disclosed that any further evidence could be discovered. Counsel submitted that there were no further medical records or other records which noted that, during his service in the Army, Mr Tuite had suffered a neck injury.

3. However, this Court should not repeat the error of the Tribunal. If Mr Tuite has not had a fair opportunity to put his case with respect to his cervical spondylosis, this Court should not rule against him before he has had the opportunity to put all he wishes to put on the merits of the matter. He has not had that opportunity, therefore the matter must go back for further consideration.

4. Furthermore, I would observe that, if any evidence needs to be called in addition to further evidence from Mr Tuite, it is evidence from a medical practitioner who, after examining Mr Tuite, taking a history from him and inspecting X-rays and the like, can express an opinion as to whether or not Mr Tuite's service in the Military Forces, including his two formal boxing bouts and his fight in the shower, contributed in a causal way to his present condition. Mr Tuite's representative must be given a fair opportunity to call that evidence if it is necessary to do so.

5. Accordingly, the application will be allowed and the decision of the Administrative Appeals Tribunal of 26 May 1992 will be varied by omitting therefrom the ruling "that the decision under review so far as it relates to cervical spondylosis ... is affirmed". The matter will be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law. It will be open to the President of the Tribunal to allocate the same or other members of the Tribunal to constitute the Tribunal in the rehearing. Any submissions which the parties wish to put with respect to that matter should be put to the President of the Administrative Appeals Tribunal. The second respondent, the Repatriation Commission, should pay the costs of the application.

6. Lest my reasons for decision be misunderstood, I expressly state that nothing in my reasons should be taken as an indication that on the rehearing, the representative for the Repatriation Commission should resile from the concession made at the first hearing. That concession was obviously made in the context that Mr Tuite had agreed to withdraw his claim insofar as it related to dermatitis herpetiformis. In addition, both parties had agreed to obtain a joint report from Dr R. Parola on the connection between Mr Tuite's smoking and chronic gastric ulcer. In the light of these agreements on Mr Tuite's part, or in the event that it considers that the concession made by Mr Castle was correct, the Repatriation Commission may wish to maintain its concession. The Administrative Appeals Tribunal will not be bound to accept the concession but, if it does not do so, it should give the parties adequate notice so that an appropriate medical report or reports can be obtained.