FEDERAL COURT OF AUSTRALIA

Kowalski v Military Rehabilitation and Compensation Commission

[2010] FCAFC 144

REASONS FOR JUDGMENT

THE COURT:

1    We have considered the extent to which we should receive the further evidence contained in the affidavit of Mr Kowalski filed on 26 August 2010. We identify two categories of documents. The first contains documents identified in the affidavit as 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, 10, 11 and 12. All of those documents, with the exception of 10 and 11, were created in 1987, at which time the appellant consulted Dr Cheung and was referred for an endoscopy which was performed by Dr Williams. Documents 10 and 11 go to the process by which the other documents were discovered. The second category contains documents which were before the Tribunal but, according to the appellant, were not before the primary Judge. With respect to that second category, we consider that had the appellant wished to supplement the record before his Honour, he ought to have applied to do so at that time. He says that he did so. Even so there is no ground of appeal alleging that his Honour erred in his decision on that point. In those circumstances, we do not think that we would be justified in receiving those documents.

2    As to the documents in the first category, that is documents 9.2-12, it is common ground that those documents were not available to either party until quite recently, and after the hearing before Mansfield J. In general, this Court would not receive further evidence in an appeal of this kind. However the appellant argues that the existence of these documents was to be inferred from material which was before both the respondent and the Tribunal at the time of their decisions. In her clinical notes, Dr Cheung recorded that the appellant had consulted her concerning a burning sensation. Such symptoms may well have been consistent with the appellant’s present complaint. Dr Cheung recorded that: “10 years ago – endoscopy? for same problem”. It seems to us to be arguable that the Commission and the Tribunal ought to have made further inquiries to discover whether or not records of the earlier treatment and, in particular, of the endoscopy were available. Had such inquiries been made, it seems likely that the documents with which we are presently concerned would have been discovered and acted upon. We do not express any concluded view as to whether the Tribunal ought to have made such inquiries. We merely accept that it is arguable that it ought to have done so.

3    In those circumstances, we will receive the documents so that they are available in the event that we determine that the Tribunal’s duty required that it make such inquiries.

Associate:

Dated:    25 March 2011