House, David Richard v Department of Defence [1996] FCA 187

CATCHWORDS ADMINISTRATIVE LAW - Appeal from AAT - whether "reviewable decision" within s60(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) - earlier AAT decision - issue estoppel - no issues necessarily established as legal foundation or justification for earlier AAT decision. WORDS AND PHRASES - "reviewable decision". Administrative Appeals Tribunal Act 1975 (Cth) s44(5) Safety Rehabilitation and Compensation Act 1988 (Cth) ss60(1), 62, 64(1) Compensation (Commonwealth Government Employees) Act 1971 (Cth) Plumb v Comcare (1993) 39 FCR 236 - Foll Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Bogaards v McMahon (1988) 80 ALR 342 Re Hospital Benefit Fund of Western Australia Inc v Department of Health Housing and Community Service (1992) 28 ALD 25 Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 Commonwealth v Sciacca (1988) 17 FCR 476 Blair v Curran (1939) 62 CLR 464 - Appl David Richard House v Department of Defence No. QG2 of 1995 Cooper J, Brisbane, 22 March 1996

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No QG2 of 1995 On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member BETWEEN: DAVID RICHARD HOUSE Appellant AND: DEPARTMENT OF DEFENCE Respondent JUDGE MAKING ORDER: Cooper J WHERE MADE: Brisbane DATE OF ORDER: 22 March 1996 MINUTES OF ORDER THE COURT ORDERS THAT: Pursuant to s44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the case be remitted to the Administrative Appeals Tribunal to be heard and decided again by the Administrative Appeals Tribunal in accordance with law and these reasons. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No QG2 of 1995 On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member BETWEEN: DAVID RICHARD HOUSE Appellant AND: DEPARTMENT OF DEFENCE Respondent CORAM: Cooper J PLACE: Brisbane DATE: 22 March 1996 REASONS FOR JUDGMENT By notice of appeal filed 14 January 1995 David Richard House appeals from a decision of the Administrative Appeals Tribunal ("the AAT") constituted by Deputy President Breen given on 7 December 1994. In order to understand the matter before the court, it is necessary to have regard to the factual background to that decision. Background On 1 October 1968 Mr House enlisted in the Australian Army. Between 28 May 1970 and 1 June 1971 Mr House served in the conflict in Vietnam and was posted to Townsville, Queensland on his return to Australia where he remained until his discharge on medical grounds on 27 May 1975. In 1977 Mr House applied to the Commissioner for Employees Compensation ("the Commissioner") for compensation for the medical condition of cirrhosis of the liver due to alcoholism. Mr House had alleged that this condition was caused by his posting to Townsville and the treatment he received at the hands of his fellow soldiers and his commanding officer in the course of his employment there. According to Mr House that treatment consisted of racist remarks concerning his Aboriginal wife, the attitude of other soldiers to his relationship with his wife and other Aborigines and the racist attitude of his commanding officer to his association with Aboriginal persons. On 18 August 1977 a determination was made by the Commissioner that the Department of Defence was not liable to pay compensation in this regard. Mr House applied on 17 January 1978 to the Commonwealth Employees Compensation Tribunal for a review of the Commissioner's decision. That application was struck out without a decision being given. It subsequently became clear that the Tribunal had acted in the mistaken belief that the Repatriation Commissioner had accepted Mr House's claim. On 2 November 1990 the application was reconsidered by a delegate of the Department of Defence and was again refused. Mr House then applied to the AAT for a review of that decision (AAT Application No. Q90/520). The AAT (Mr K J Lynch, Senior Member and Dr G S Urquhart and Captain E T Keane, Members) affirmed the decision under review in a decision given on 30 March 1992. Mr House made a new claim for compensation which was lodged with Comcare on 13 January 1993. The grounds of that application appear in a letter from Mr House dated 5 December 1992 :- "This letter is asking you to consider my disability of organic personality disorder not of alcoholism or cirrhosis of the liver as in my last claim that was disallowed by your Dept and consequently by the AAT. I have lost the last AAT decision and cannot remember it so if you could send me a copy through FOI I would greatly appreciate it. I thought there were errors of law in that determination but my solicitor went on to better and brighter things and was not interested in going further. My personality disorder is not war caused. It had its rise in the racially expressed bigotry concerning my wife and the termination of an Army career which I regard as unfair and unwarranted. It is service related in that I had to tolerate bigotry in my normal working hours. I had to tolerate in my normal working hours comments from superior officers telling me to keep away from `black scum'. I had to tolerate racist comments from fellow soldiers in normal working hours. Its manifestation did become alcoholism outside of normal working hours. There can be no getting away from the fact that superior officers in the Army created my personality disorder by racist comments ... Alcoholism might have started in Vietnam but it was prolonged and made worse by racist comments and actions both inside and outside of normal working hours. I don't need you to comment saying as I lost the last case I would lose this case. The last was for cirrhosis of the liver not personality disorder so make a decision about personality disorder not cirrhosis and then we can go to the AAT. What came first the chicken or the egg or in my case alcoholism or personality disorder. Was my personality disorder prolonged and worsened by racist comments and the termination of an Army career. You have plenty of evidence in medical files to support my view. Dr Steinberg claimed that even alcoholism started in Vietnam (and I realise I am not covered by your Dept for Vietnam) and continued in Townsville because of the pressure of taking out my ex-wife. No-one has denied or rebutted that evidence. And extreme racist comments were made in normal working hours and have now created a monster". On 22 January 1994 a determination was issued by a Mr J Wade, a delegate of Comcare stating that the Department of Defence was not liable to pay Mr House compensation in respect of his personality disorder. The reasons for determination noted that a diagnosis of "organic personality disorder" was entered after appropriate specialist investigation by a Departmental Medical Officer. The Medical Officer's report, after diagnosing the organic personality disorder as defined, contained the following :- "Aetiology: The cause of the organic personality disorder in this veteran is alcoholism. Alcoholism is a dependence on alcohol to such an extent that it interferes with interpersonal relationship, psychological function or physical health. In this veteran it has also caused his accepted disability `liver cirrhosis'. From reading the service documents I am of the opinion that the disability was first manifest in Vietnam and was aggravated by his defence service in Darwin [sic]." The reference to "defence service in Darwin" is clearly intended to refer to Mr House's service in Townsville. Mr Wade, in reaching his determination, also had regard to the determination made by the Repatriation Board - Queensland in relation to a claim by Mr House for benefits under the Repatriation Act and the Veterans Entitlement Act and the decision and findings of the AAT in relation to Mr House's claim for compensation for cirrhosis of the liver. Mr Wade concluded :- "On the basis of this evidence, I cannot find that your Army employment contributed to the personality disorder for which your claim is made. I am therefore satisfied that liability does not exist for this condition." On 26 January 1994 Mr House wrote requesting reconsideration of the decision. The letter provided a general outline of the evidence that Mr House considered relevant to the reconsideration and any possible determination by the AAT. Mr House noted that a Dr Slaughter had said that his primary problem was a personality disorder and that his alcoholism was secondary to that. The letter outlined various instances and circumstances of racist behaviour directed towards Mr House by fellow soldiers, Townsville police and his commanding officer. It also outlined the attempts made by Mr House to obtain a transfer out of Townsville and explained the circumstances in which Mr House re-enlisted in 1974. The letter concluded in part :- "A condition of me being in the Army is to obey my C.O. and superiors. I did not have a personality disorder on enlistment ... He told me to keep away from Black Scum during working hours ... The Army also encourage you to drink and you have to attend or are expected to attend social gatherings but don't bring Black Scum, Boongs and Coons." On 2 June 1994, in response to Mr House's letter, L Ryan, a delegate of Comcare, wrote to Mr House a letter headed "SAFETY, REHABILITATION AND COMPENSATION ACT 1988 RECONSIDERATION NO. ADF 94Q/9". The letter was in the following terms :- "I refer to your letter dated 26 January 1994 in which you requested reconsideration of the determination dated 22 January 1994 in respect of your personality disorder. DECISION I have decided to affirm the decision dated 22 January 1994 which disallowed your claim for this condition. REASONS I have considered all of the documentation on your compensation files including (a) the various reports referred to in the determination dated 22 January 1994 and (b) your explanatory letters. I note that you advised in your letter dated 26 January 1994 that `Dr Slaughter said the primary problem was personality disorder and my alcoholism was secondary to that'. However, it has been shown that your alcoholism was well established at least as early as your Vietnam service from 1970 to 1971 which preceded the service in Townsville and the events which occurred then, and which you claim as the reason for your personality disorder (racially expressed comments etc). If your alcoholism was secondary to the personality disorder, that is, resulting from the personality disorder, the personality disorder must have been present prior to the stated service in Townsville and, therefore, could not have had its origins there. I note your advice concerning Dr Slaughter's opinion, a Department of Veterans' Affairs Department Medical Officer has commented that the cause of your organic personality disorder is alcoholism. As the Administrative Appeals Tribunal has previously dismissed your claim for alcoholic diseases as not being contributed to by your Army employment, compensation for the personality disorder is not payable if the disorder has originated from the alcoholism. As stated in the determination dated 22 January 1994, liability to pay compensation for your personality disorder would only exist if your Army employment contributed in a material way to the contraction, aggravation or acceleration of the disease. Further, it must be shown that the contributing factor is either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. I am unable to find, from the evidence available, that your personality disorder was contributed to in a material way by your Army employment and I have therefore affirmed the determination dated 22 January 1994." Mr House then wrote to the District Registrar of the AAT in Brisbane seeking review of the decision of 2 June 1994. The matter went before DeputyPresident Breen on Friday 2 December 1994. Mr House appeared in person and Mr M Belcher of the Australian Government Solicitor represented the Department of Defence. It is clear from the reasons for decision of Deputy President Breen that Mr Belcher contended that this application involved the same facts as were the subject of the AAT decision of 30 March 1992 referred to earlier and that as a result the AAT had no jurisdiction to hear what would constitute no more than an appeal against an earlier AAT decision. Deputy President Breen accepted this submission and said :- "... There is no doubt that though Mr House's present claim features different diagnostic labels, in fact the factual issues remain substantially the same. Those issues have been the subject of a hearing by the Tribunal. ... The Tribunal made its findings of fact and gave a decision. It is clear from the terms of Mr House's correspondence re-presented above, that indeed he seeks, so far as factual issues are concerned, a further hearing of the same issues as those determined earlier. In those circumstances, and notwithstanding the fact that Document T10 in the `T' Documents filed in respect of this present application refer to the determination of 2 June 1994 as a `reviewable decision', I find in fact that there is no reviewable decision and that the Tribunal has no jurisdiction to hear again a claim for compensation based on factual issues already resolved at the Tribunal level." There are two questions of law which follow from the reasons of Deputy President Breen :- (a) Was the determination of 2 June 1994 a "reviewable decision" within the meaning of s60(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act") and (b) Did the earlier AAT decision create an issue estoppel which precluded Mr House arguing the question of whether his personality disorder was caused or contributed to by his Army employment? Reviewable Decision Section 60(1) of the Comcare Act defines "reviewable decision" to mean a decision made under s38(4) or s62 of the Comcare Act. Section 38(4) relates to rehabilitation and is not relevant here. Section 62 of the Comcare Act provides, as far as is relevant :- "62(1) A determining authority may, on its own motion: (a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. (2) A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant ..... (3) A request for reconsideration of a determination shall: (a) set out the reasons for the request; and (b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows. (4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination. (5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit."