Walker v Military Rehabilitation and Compensation Commission
[2017] FCA 386
•10 April 2017
FEDERAL COURT OF AUSTRALIA
Walker v Military Rehabilitation and Compensation Commission [2017] FCA 386
File number: QUD 48 of 2017 Judge: LOGAN J Date of judgment: 10 April 2017 Catchwords: DEFENCE AND WAR – veterans – entitlements
ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal – whether grounds of appeal state of question of law – allegedly forged documents – whether the Tribunal failed to take into account a relevant consideration – refusal to issue summons in interlocutory proceeding – no denial of procedural fairness – appeal dismissed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25, 29, 33, 43, 44
Judiciary Act 1903 (Cth) s 39B
Cases cited: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
Minister for Immigration and Citizenship v SZIAI [2009] 83 ALJR 1123
Rana v Repatriation Commission (2011) 196 FCR 137
Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220
Date of hearing: 10 April 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr C Clark Solicitor for the Respondent: Sparke Helmore ORDERS
QUD 48 of 2017 BETWEEN: KELL WALKER
Applicant
AND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
10 APRIL 2017
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)LOGAN J:
Captain Kell Walker (Captain Walker) served in the Royal Australian Navy (RAN) between 5 April 1964 and 28 August 1964. His entitlement to the rank and title “Captain”, as perhaps his length of naval service might suggest, is not the result of his service in that arm of the Defence Force. Rather, he attained that rank during later service in the Merchant Navy. Captain Walker was born on 5 June 1948. He enlisted in the RAN as a Junior Recruit on 5 April 1964. Almost half a century after his enlistment, he came to make application for compensation in respect of injuries or diseases said to arise out of his naval service.
As claimed, those injuries or diseases were “PTSD [post-traumatic stress disorder] Spinal Head”. Captain Walker attributed the cause of these injuries or diseases to his having been “assulted for 3 days in a row” [sic] in the course of his naval service. More particularly, these conditions were said to have arisen from beatings inflicted upon him whilst he was incarcerated at HMAS Cerberus in 1964. The claim for compensation was not accepted by the Military Rehabilitation and Compensation Commission.
Captain Walker then sought the review of the Commission’s decision by the Administrative Appeals Tribunal (Tribunal). On 9 January 2017, the Tribunal (Senior Member J. Sosso) affirmed the Commission’s decision.
Captain Walker has sought to challenge the Tribunal’s decision by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Such an appeal lies only a question of law. The questions of law said to arise are specified in the notice of appeal in this way:
(1)The Tribunal failed to take into consideration the summonses that were requested by the Applicant.
(2)The Tribunal failed to take notice of Exhibit 5 that was before the tribunal.
(3)The Tribunal gave no weight to the salient issues set out in Exhibit 5.
In amplification of these questions Captain Walker has specified the following grounds:
(1) The Applicant was denied “Natural Justice”.
(2)The Respondent gave misleading and deceptive conduct that came before the Tribunal.
(3) And, gave witnesses prejudicial material before they made their findings.
Captain Walker also invited the court to find as a fact either that Exhibit 5 was a forgery, or, if not, that it had no weight.
Captain Walker appeared on his own behalf on the hearing of the appeal. He is not without legal training, at least in the academic sense, but it is fair to say that he had all of the difficulties that can attend the presentation of an appeal confined, as it is, to a question of law that a lay person can encounter. The Commission was represented by Mr Clark of counsel.
It is, with respect, a very moot point indeed as to whether any of the nominated questions of law in the notice of appeal are indeed questions of law. In form, they are not stated as questions at all. Even so, it is convenient, particularly in light of the oral submissions made by Captain Walker, to treat them in the following way.
It is convenient first to focus upon so much of the specified questions as relate to Exhibit 5.
Exhibit 5 was a copy of, apparently, a naval “Disciplinary Charge Sheet and Punishment Record” (charge sheet). The Tribunal found the charge sheet to be a genuine one.
On its face, the charge sheet records naval disciplinary proceedings in respect of two charges, each alleging a service offence committed by the then Junior Recruit 2 (J.R.2) Kelvin Noel Walker (his then full name) on 26 June 1964:
The first - “Was guilty of an act to the prejudice of good order and Naval Discipline in not carrying out of the order or J.R.2 Murray Ian HAMMOND R.63242 of H.M.A.S CERBERUS given by the said Junior Recruit in his capacity as Class Leader of BOURKE Division when ordered ‘do not switch the lights out’”.
The second - “Was guilty of act to the prejudice of good order and Naval Discipline in striking J.R.2 Murray Ian HAMMOND R.63242 of H.M.A.S CERBERUS”.
The charge sheet records that three witnesses were heard in respect of these charges: J.R.2 W.A. McDougall; J.R.2 M.I. Hammond; and, J.R.2 D.T. Davies. It further records that Captain Walker was represented by an “Accused’s Friend” - inferentially, a defending officer – Lieutenant D.G. Debus. Section III of the charge sheet records punishment - and, thus, inferentially, a finding that the charges were proved - imposed on 15 July 1964 by an officer apparently holding the naval rank of Commodore. The punishment is recorded as “14x9”. The charge sheet further records that the reason for delay - inferentially, delay as between date of offence and date of punishment - was “Commodore on leave”.
It was controversial before the Tribunal as to whether the charge sheet was a forgery. The Tribunal expressly refers to that controversy, at [47]. The Tribunal had the benefit of evidence not only from Captain Walker, but also from a Mr Taylor McKenna of the Department of Defence. Mr McKenna’s evidence took the form of an email in which he provided advice as to the then prevailing system of naval discipline, as well as interpreting the meaning of “14x9” on the charge sheet. As to that, his statement, which was accepted by the Tribunal, was:
The annotation ‘14x9’ means that the member was awarded 14 days of No. 9 punishment. Pursuant to Queens Regulations and Admiralty Instructions for the Governance of Her Majesty’s Naval Service (Q.R & A.I for short) as they applied in 1964, Punishment Number 9 was extra work and drill for a period not exceeding 14 days. Paragraphs 1983-1984 of Q.R & A.I Chapter 19 - Discipline (Part II) - Section VIII - Regulations for Individual Punishments state:
Extra work and Drill (No.9)
1983. Routine to be followed. Ratings may be awarded this punishment for up to 14 days when they are to be subject to the following regime:
Grog and leave to be stopped.
To turn out half an hour before the hands.
For his part, Captain Walker tendered an email exchange which he had had with a Mr Tony Tulczyn (Mr Tulczyn) who had served in the RAN in the late 1960s and had some understanding of service police procedures. Mr Tulczyn’s evidence, which is quoted by the Tribunal, included:
I heard numerous stories of past brutality towards sailors in cells from the “old hands”, but, never personally witnessed any such thing.
The Tribunal found, and it was entitled to find, in respect of Mr Tulczyn that he had no personal knowledge of junior recruits being beaten and, in particular, had no knowledge of such activities at HMAS Cerberus.
Captain Walker also tendered before the Tribunal a printout from an Australian Broadcasting Corporation news site of all references to HMAS Leeuwin. The Tribunal noted that this printout disclosed numerous news reports of junior naval recruits who were the victims of sexual and physical assault between the 1960s to 1964. The Tribunal further observed at [60]:
However, there is no link to these reports and the specific alleged incident involving the Applicant at a different naval base, in a different State and at an earlier time.
Captain Walker’s own evidence was that he had been kept in a cell and beaten on numerous occasions on his back and head. The Tribunal looked not only to the charge sheet but also to Captain Walker’s service medical records, to the extent they were before the Tribunal. These disclosed, and the Tribunal found, that he was a young boy in apparently good health at the time of enlistment, and in the like condition at the time of discharge. The naval service record material also included reference to a view formed within the RAN after the charges that Captain Walker’s service was no longer required.
The Tribunal weighed up not only these naval service documents and related evidence but also a number of medical reports concerning the claimed conditions, and having so done, concluded (Reasons, [113]) that the:
… alleged bashing claimed by the Applicant whilst enlisted in the RAN in 1964 is either a fabrication or an exaggeration.
In Minister for Immigration and Citizenship v SZIAI [2009] 83 ALJR 1123 at 1127, [18], the High Court, in a unanimous joint judgment, made the following observations in respect of the Refugee Review Tribunal:
It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
[References removed]
These observations have application by analogy to the Tribunal. The Tribunal’s function is to review the particular decision in respect of which a review jurisdiction is conferred upon the Tribunal: see ss 25, 29 and 43 of the AAT Act. Like the Refugee Review Tribunal, the Tribunal may exercise all of the powers and discretions that are conferred by any relevant enactment on the person who made the decision under review: s 43(1) AAT Act.
The Tribunal’s role is to reach the correct or preferable decision on the material before it: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J). Its “core function”, like the Refugee Review Tribunal, is that of review, not inquisition. That the Commission is entitled to and does appear before the Tribunal on a review hearing, is a distinction without a difference in relation to the Refugee Review Tribunal, so far as that core function of review on the Tribunal’s part is concerned. That was, in my view, always the case, but it has been emphasised by the presence of s 33(1AA) in the AAT Act, imposing an obligation on a person who made a decision to assist the Tribunal and, further, by the obligation found in s 33(1AB) of the AAT Act, cast on representatives of parties to proceedings before the Tribunal, to assist the Tribunal in making its decision. Each, in turn, has an obligation to assist the Tribunal in achieving the objective found in s 2A of the AAT Act in relation to the Tribunal’s review.
There is no formal onus of proof in a proceeding before the Tribunal. Indeed, with the notable exception of a taxation review proceeding, even to use that terminology, is to borrow language from a different field of discourse, namely, that, in relation to judicial proceedings: see as to this, Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220.
As to Exhibit 5, it only comes to this. It was in the interests of each of the parties before the Tribunal to adduce such evidence, in the most general sense of that word, as either may have been able to secure a particular outcome. For the Commission’s part it was not, in light of the statutory provisions mentioned, strictly a contradictor. That is not to say it was estopped from seeking to uphold its decision, but it had a positive duty beyond that to assist the Tribunal in making its own decision on the review.
With events over half a century ago there were undoubtedly difficulties for Captain Walker in seeking to adduce material to support his case. In the course of submissions he made reference to what he submitted was the unusual feature of a service disciplinary charge concerning a junior recruit having apparently been heard and determined by a naval officer holding a rank of Commodore. Strictly, that was a submission which was one for the Tribunal to weigh up. It was put to the Tribunal and the Tribunal did so, with the result mentioned. I can well understand Captain Walker’s curiosity in respect of a document (the charge sheet) so long ago generated that records a determination by a Commodore of such charges. The rank is a senior one and it does perhaps sound an interrogative note, at least in the mind of those familiar with the Services. Even so, I remind myself that that particular interrogative note is one to be answered not by this Court but by the Tribunal, which is the tribunal of fact. The conclusion reached by the Tribunal as to the charge sheet was one reasonably open. The reasons for that are elaborately and carefully expressed. They are in no way illogical. To the contrary, they are compelling in respect of the conclusion reached. That is not to deny the incongruity to which Captain Walker referred, only to accept, as one must on an appeal of this nature, that this factual conclusion was one for the Tribunal. It is not to be disturbed on overzealous judicial review unless some well-established ground of jurisdictional error is posed by way of a question of law on a s 44 appeal. No such ground was posed. Further, the most benign reading of the notice of appeal does not disclose any such maintainable ground.
That is an apt note upon which to turn to the second aspect of the appeal, which concerns an alleged failure on the part of the Tribunal to issue summonses. As to this, Senior Member Sosso, the member constituting the Tribunal for the purpose of the hearing, was not asked to issue any summons. There was, in the written submissions made after the close of evidence, a reference by Captain Walker to earlier requests for the issuing of summonses. That reference was not taken any further in those submissions. By that I mean that the Tribunal member who heard the proceeding and who had reserved his decision, pending receipt of submissions, was not asked to reopen proceedings for the purpose of issuing summonses. That in itself, in my view, is decisive as to an absence of merit in any contention that there was a denial of procedural fairness.
I can well understand an interest on the part of Captain Walker (and he voiced this) in a summons being issued to the Department of Defence or, perhaps, the National Archives, for the production of so much of a service medical record of then Junior Recruit Hammond as related to a period between June and August 1964. There would have been something of a fishing quality, though, in relation to such a summons. As it was, the record of proceedings before the Tribunal, to which I was helpfully referred by Mr Clark on behalf of the Commission, included an application in 2015 and to a different member of the Tribunal by Captain Walker for the issuing of summonses, including one in respect of then Junior Recruit Hammond’s medical record. That was not granted by that Tribunal member. Instead, the record discloses that the Tribunal member directed the undertaking of very particular inquiries within the Department of Defence by the Commission. These apparently were undertaken with the fruits of them being evident in the material before the Tribunal. In theory, it would have been open to Captain Walker in 2015 to seek the judicial review, under s 39B of the Judiciary Act 1903 (Cth), of that earlier decision to refuse the issuing of summonses. It is necessary to say “in theory”, because any such intervention in the interlocutory proceedings of the Tribunal is truly exceptional: see Rana v Repatriation Commission (2011) 196 FCR 137. As it happens, no such application was ever made.
Thus, while it may be accepted, and indeed it is axiomatic, that the Tribunal is obliged to comply with the rules of natural justice or, as they are also termed, rules of procedural fairness, there is no denial of procedural fairness relating to a refusal to issue a summons arising from the review hearing conducted by Senior Member Sosso. He was just not asked to issue any summons.
The end result is an outcome on the facts, which was one for the Tribunal to determine. As I observed to Captain Walker in the course of the hearing, it is not inconceivable, as a matter of current general understanding, that, over half a century ago and in respect of the handling of junior recruits, procedures unacceptable even then, but perhaps prevalent, were adopted. But there was nothing in the evidence before the Tribunal which disclosed that in respect of Captain Walker there was any particular violence meted out to him. The punishment itself was not a custodial one. The Tribunal approached the case on the evidence before it and made a conclusion that was reasonably open.
Exhibit 5 was admittedly a crucial document. It was “prejudicial”. Had it been shown to be a forgery, it may well have cast a different complexion completely on the review proceeding. It is just, though, a case where Captain Walker failed to demonstrate that it had that quality.
What necessarily follows from the foregoing is that, even approaching the so-called questions of law in a benign way, there is no error of law which the Tribunal has committed, either in relation to Exhibit 5 or by way of denying Captain Walker a summons in respect of the hearing proceeding. It follows that the appeal must be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 13 April 2017
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