Kowalski v Repatriation Commission [2009] FCA 153

FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2009] FCA 153

KAZIMIR KOWALSKI v REPATRIATION COMMISSION

SAD 3 of 2009

MANSFIELD J

27 FEBRUARY 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 3 of 2009

BETWEEN: KAZIMIR KOWALSKI

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 27 FEBRUARY 2009

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay to the respondent its costs of this application on the usual party and party basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 3 of 2009

BETWEEN: KAZIMIR KOWALSKI

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MANSFIELD J

DATE: 27 FEBRUARY 2009

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The Repatriation Commission seeks summary dismissal of Mr Kowalski's appeal from a decision of the Administrative Appeals Tribunal given on 7 January 2009. The Commission first objected to the competency of the appeal by notice of 19 January 2009, and subsequently by motion of 5 February 2009 applied to have the notice of appeal dismissed as incompetent, together with an order for costs on an indemnity basis. The motion means that it is in practical terms unnecessary to consider any issue as to whether the notice of objection to competency was given within the time permitted by O 19 r 3 of the Federal Court Rules and, if not, any further issue as to whether the time to have done so should be extended. 2 The short issue which the respondent seeks to ventilate is that the decision from which the appeal is brought is not a decision from which an appeal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 44 permits a party to a proceeding before the AAT to appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. Mr Kowalski says that the word "decision" should be given its "ordinary grammatical meaning", a meaning which encompasses the decision of the AAT of 7 January 2009: see Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487 at 492 per Williams J. 3 To understand the respective contentions, it is necessary to describe the AAT decision of 7 January 2009. 4 Mr Kowalski's notice of appeal describes it as a decision to dismiss his application of 2 November 2008 "to declare the Repatriation Commission's application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33" of the AAT Act. 5 Obviously, it is necessary to understand the nature of the proceeding before the AAT. 6 Mr Kowalski had applied for a pension under the Veterans' Entitlements Act 1986 (Cth) (VE Act) in respect of a condition known as gastro-oesophageal reflux disease (GORD). On 20 February 2008, the Commission decided that his GORD was not defence‑caused, and so rejected the claim. Mr Kowalski applied to the Veterans' Review Board (VRB) to review that decision. On 7 July 2008, the VRB determined that the applicant's GORD was defence-caused. So it ordered that the Commonwealth is liable pursuant to s 70 of the VE Act to pay a pension for any incapacity arising from that condition from and including 15 November 2007. It remitted the matter to the Commission to assess the rate (if any) at which the pension was to be paid. 7 On 23 July 2008, the Commission applied to the AAT to review the decision of the VRB. It had also applied to the AAT to stay the decision of the VRB, pending the hearing and determination of its application. The stay application was adjourned, as it appeared that the substantive issue could be determined expeditiously. The matter then proceeded towards a hearing. It is now common ground, if it were not always the case, that the way the AAT dealt with the stay application did not involve any determination of fact or law by the AAT in relation to the application. 8 On 2 November 2008, Mr Kowalski applied to the AAT for an order dismissing or permanently staying the Commission's application for the review of the VRB decision. It was on that application that the AAT decision was made which is the subject of the appeal. 9 It appears from the decisions of the Commission and subsequently of the VRB that there is no real issue that the applicant suffers from GORD. The significant issue was whether his condition related to a period of operational or eligible service. It also appears to have been common ground that the Repatriation Medical Authority had issued a relevant Statement of Principles (SoP) for the condition of GORD (Instrument No 12 of 2005) which sets out the factors known to contribute to that condition. The relevant factor was treatment with a "smooth muscle relaxant drug". The delegate of the Commission decided not to accept the claim because he was reasonably satisfied that the GORD was not related to Mr Kowalski's eligible service because that factor did not apply to him. 10 The VRB, as its reasons indicate, identified that during the period of his eligible service, Mr Kowalski had been prescribed Merbentyl and Librax in July and August 1973 respectively, and that those drugs were "smooth muscle relaxants" in terms of the relevant SoP. Consequently, the VRB was reasonably satisfied that the applicant suffered from GORD and accepted that its clinical onset occurred on or about 19 September 1993 during his eligible service. It noted that there was no contradictory evidence, medical or otherwise, which would lead to a different conclusion than that, being treated with the smooth muscle relaxant drugs referred to at the time of the onset of the GORD, the applicant came within paragraph 5(g) of the relevant SoP. In particular, it found that Librax was prescribed to deal with the applicant's stress arising from short-staffing in the workshop where he was working. It found that the factor set out in paragraph 5(g) of the SoP was raised by the evidence and it was reasonably satisfied, therefore, that the material before it raised a connection between the applicant's GORD and the relevant service as required by the VE Act. 11 The Commission did not attend before the VRB or participate in its decision-making process. Hence, as appears from certain of the applicant's submissions to the AAT, he contended the Commission was estopped from disputing that he had been prescribed and taken Librax at the time of onset of his GORD and that Librax was a smooth muscle relaxant so as to come within paragraph 5(g) of the SoP. He relied upon the decision Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun) to support that proposition so that the Commission's application was frivolous or vexatious under s 42B of the AAT Act or should otherwise be dismissed in the exercise of the AAT's discretion under s 33 of the AAT Act. That was one of the reasons for his application to summarily dismiss the Commission's application to the AAT, and for present purposes the only reason it is necessary to refer to. 12 The AAT refused Mr Kowalski's application pursuant to s 42B or s 33 of the AAT Act for dismissal or a permanent stay of the Commission's appeal. 13 Part of the AAT's reasons address the contention (which it understood Mr Kowalski to have made) that the way the AAT had dealt with the stay application gave rise to an estoppel to prevent the Commission from further disputing the facts on which the VRB decision was based. It rejected that contention. Mr Kowalski says that the AAT misunderstood his contentions, and that he did not make that submission. It is not necessary to resolve that question. It is clear that the AAT made no factual or legal determinations on the stay application which could give rise to an estoppel, assuming that an estoppel could arise in such circumstances in a claim before the AAT. Mr Kowalski does not now contend to the contrary. 14 The contention which, Mr Kowalski says, the AAT failed to address or failed to address adequately is only briefly adverted to by the AAT. It observed that the recorded decision of the Commission that it would leave the review of its decision to the VRB, without taking part in the VRB hearing, does not or could not "bind the Commission to accepting any decision made by the VRB, that is forfeiting a right to lodge an appeal in respect of any decision the VRB may make". It referred to the decision of Deputy President Jarvis in Re Jebb and Repatriation Commission [2005] AATA 470 (Jebb) to the effect that the Anshun estoppel principle would not be appropriately applied to a review application by the Commission from a decision of the VRB in which it had not participated. 15 It later added: It appears to be a practice of the Commission to be unrepresented and to not make submissions at VRB hearings and that similarly, Commonwealth Government departments which make decisions through Centrelink, in general make a decision not to be represented before the Social Security Appeals Tribunal. These decisions, in my view, do not deprive the Commission or Centrelink of the statutory right to seek review of any such decisions before the AAT. The decision-making scheme embodied in the governing legislation provides both veterans and the Commission with a prima facie right to seek merits review of decisions, at both the VRB and AAT level. 16 In my view, the AAT in that part of its reasons did address the contention which Mr Kowalski presented, although its reasoning did not go so far as to amount to a decision that the AAT, when hearing the review of the VRB decision, could not then consider whether the Commission is estopped by its conduct – that is, its non-participation in the VRB hearing – from asserting facts different from those found by the VRB. It did not go that far because it was not required to. It was required to consider whether to summarily dismiss the Commission's application under s 42B of the AAT Act as being frivolous or vexatious, or whether to summarily dismiss or permanently stay the application under s 33. It declined to so order. 17 When the Commission's review application comes on for hearing, Mr Kowalski will be free to contend that the Commission – by failing to participate in the VRB hearing – is estopped from asserting that he had been prescribed a smooth muscle relaxant (Librax) and that he was taking that drug at the time of the onset of his GORD so that he did not come within paragraph 5(g) of the relevant SoP. The applicant acknowledged in oral submissions on this hearing that the Commission would in any event be entitled to argue matters of law. The AAT decision noted that the review rights granted under s 27 of the AAT Act and ss 175 and 176(2) of the VE Act extend to the Commission and involve a de novo hearing of the issue the subject of the decision under review. But the passage quoted makes it clear, by the use of the words "prima facie", that on the particular review a full merits review may arguably be qualified. That qualification might flow from the conduct of one or other of the parties. 18 It is not for the Court at this point to indicate whether Mr Kowalski's proposed reliance on an Anshun estoppel in the way he contends should succeed. There are some decisions that the conventional estoppels, namely issue estoppel or cause of action estoppel, are not available in proceedings before the AAT: see eg Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Comcare Australia v Grimes (1994) 50 FCR 60, but see the remarks of the full Court in Miller v University of New South Wales (2003) 200 ALR 565 at 583-4. As noted above, there is some indication in Jebb that Anshun estoppel (although having a different foundation) might also not be available on review proceedings before the AAT. See also the decision of Deputy President Forgie in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 at 632. 19 The present issue is whether, in the circumstances, the AAT decision is one from which there is a right of appeal on a question of law under s 44 of the AAT Act. As noted, Mr Kowalski says that the word "decision" should be given its ordinary grammatical meaning. 20 There is, however, a significant body of authority to the contrary. 21 In Director-General of Social Services v Chaney (1980) 47 FLR 80 (Chaney), the Full Court (Deane and Fisher JJ, Northrop J dissenting) held that s 44 gives a right of appeal only from a decision of the AAT which constitutes the effective decision or determination of the application for review. Deane J (with whom Fisher J at 103 agreed) at 100 said: subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given. 22 Neither of those qualifications apply to this matter. That decision was followed by the Full Court in Geographical Indications Committee v O'Connor (2000) 64 ALD 325. 23 The decision in Chaney has been applied in a number of cases in which the Court's jurisdiction under s 44 of the AAT Act has been invoked following the refusal to summarily dismiss a review application to the AAT under s 42B: Australian Postal Corporation v Matusko (Unreported, 14 May 1996, Olney J); Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255; Duncan v Fayle (2004) 138 FCR 510. It has also been held that a decision under s 33 not to exercise the discretion under s 33 of the AAT Act to dismiss or confine a review application to issues of law is also not a decision to which s 44 applies: see Lawrance v President, Administrative Appeals Tribunal [2005] FCA 541; and Pham v Secretary, Department of Employment and Workplace Relations (2007) 99 ALD 694. I am bound to follow those decisions of the Full Court, and with respect I agree with the reasoning of the learned judges in both the Full Court decisions and in the single judge decisions. 24 It follows that I consider that this application is incompetent and should be dismissed. 25 The Commission has sought indemnity costs against Mr Kowalski because it notified him of its contention, and the reasons for it, by letter of 19 January 2009. That was shortly after this application was made, and before or about the time of the objection to competency was filed and served. However, in my view, it is appropriate to make only the normal order for costs. I do not think, overall, that the circumstances warrant departure from that course. The Commission acted properly, and its notification to Mr Kowalski was a proper one. But the issues of law he wishes to ventilate are somewhat complex. The AAT appears not to have identified them as a primary focus of his objection to the review application of the Commission, and it requires a careful reading of the AAT reasons to understand that it left those issues open for Mr Kowalski to raise at the hearing of the review application. I am not to be taken as being critical of the AAT reasons in that regard. It recognised and addressed the contention. But, from Mr Kowalski's point of view, I can understand that he found it difficult to understand that it had done so in a way which left it open for him to maintain his contentions at the hearing of the review application. As I have indicated, it is by no means clear that his contentions will succeed. 26 Consequently, I order that Mr Kowalski pay to the commission its costs of this application on the usual party and party basis. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.