Crane v Commonwealth of Australia [2006] NSWDDT 1

Dust Diseases Tribunal of New South Wales

CITATION : Crane v Commonwealth of Australia [2006] NSWDDT 1

PARTIES : John William Crane (Plaintiff) Commonwealth of Australia (Defendant)

MATTER NUMBER(S) : 269/02

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- issue estopple - earlier proceedings in the Administrative Appeals Tribunal - issues in Administrative Appeals Tribunal not identical with issues in the Dust Diseases Tribunal - no issue estopple- asbestos and ARPD - psychiatric disorders - damages assessed

LEGISLATION CITED: Dust Diseases Tribunal Act 1989 Veterans Entitlements Act 1986

Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453; CASES CITED: Ramsay v Pigram (1968) 118 CLR 271 at 276; Tame v New South Wales heard with Annetts and ANOR v Australian Stations Pty Ltd (2002) 211 CLR 317; Kuligowski v Metrobus (2004) 220 CLR 363

DATES OF HEARING: 22 and 23 November 2005; 31 January 2006; 1 and 2 February 2006; 16 February 2006

DATE OF JUDGMENT: 02/16/2006

Mr G F Little SC instructed bt Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr H J Marshall SC with Ms L P McFee instructed by Australian Government Solicitors

JUDGMENT:

1. This is a claim for provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act. 2. The plaintiff, John Campbell Crane, sues the Commonwealth of Australia alleging that as a result of exposure to asbestos dust and fibre in the course of his service in the Royal Australian Navy between 9 October 1966 and 31 December 1973 he has contracted asbestosis and has pleural plaques. That he suffers mild asbestosis and has pleural plaques are not in issue in the case. What is in issue is whether, as a result of exposure to asbestos, the plaintiff has the psychiatric disorders of depression and an anxiety state and, if so, to what extent and with what consequence. 3. The parties have invited me first to determine whether as a result of proceedings between the plaintiff and the Repatriation Commission the defendant is estopped from denying that the plaintiff suffers the recited psychiatric disorders and as a consequence is totally and permanently incapacitated. 4. The plaintiff brought proceedings before the Repatriation Commission seeking payments under the Veterans Entitlements Act 1986 (The Veterans Act). He failed in those proceedings and appealed to the Veterans Review Board. In those proceedings he also failed. He then appealed to the Administrative Appeals Tribunal (the AAT) which relevantly found that the plaintiff's psychiatric condition was attributable to all exposure to asbestos during his service in the navy, which included operational service, war service and ineligible service. The various forms of service are irrelevant to the determination of any issue committed to me, but were relevant to entitlement to payments under the Veterans Act. 5. Following the decision in his favour in the AAT, the Repatriation Commission appealed to the Full Court of the Federal Court of Australia. The appeal was dismissed. The reasons for the decisions of the AAT and the Federal Court of Australia are before me. 6. In order to raise an issue estoppel in subsequent proceedings, three requirements must be fulfilled. They are: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies. (Per Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935). It is relevant also to note: The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc. (Per Gibbs J in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453). 7. In the manner in which argument has been advanced there will be an issue estoppel if the AAT determined an issue which is identical to the issue relevantly committed to me. In Ramsay v Pigram (1968) 118 CLR 271 Barwick CJ said at 276: The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. 8. In order to determine whether the issue determined in the AAT is identical with the issue committed to me it is necessary to have regard to the Veterans Act. S 9 (1) relevantly provides: …an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) … (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; 9. S 7(1)(a) of the same Act provides: A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; ... 10. As remarked earlier, it is irrelevant to the issues committed to me whether the plaintiff contracted his disease on war service or operational service, but the process giving rise to an entitlement to payments under the Veterans Act is, it seems to me, rather different from the process which must be followed by the plaintiff in connection with what must be established in these proceedings. 11. S 120 of the Veterans Act relevantly provides: (1) Where a claim under Pt 2 for a pension in respect of the incapacity from injury or disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury [or] that the disease was a war-caused disease ... as the case may be, unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. (2) … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease ...