FEDERAL COURT OF AUSTRALIA

Kowalski v Military Rehabilitation and Compensation Commission

[2011] FCAFC 44

THE COURT ORDERS THAT:

1.    The appeal be dismissed; and

2.    the appellant pay the respondent’s cost of the appeal.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

DOWSETT J:

BACKGROUND

1    This is an appeal from a decision of Mansfield J, upholding a decision of the Administrative Appeals Tribunal (the “AAT”). The proceedings before Mansfield J were brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The AAT’s decision involved review of a decision of the respondent pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act’). That decision concerned the appellant’s claim to compensation for a disease allegedly contracted or aggravated by his service in the Army in 1972-73. The facts appear sufficiently from the reasons prepared by Cowdroy J. I record that at the commencement of the hearing the appellant asked each member of the Court to disqualify himself from sitting. That application was subsequently withdrawn.

2    It is common ground that since the mid-1990s the appellant has been treated for gastro-oesophageal reflux disease (“GORD”). Before the AAT, the appellant argued that:

•    he developed GORD during his years in the Army and has suffered from it since;

•    (presumably alternatively) he developed GORD after leaving the Army as a result of taking anticholinergic drugs and in particular, Librax and Merbentyl;

•    alternatively, that his GORD came about because he was put on a high fat diet by an Army doctor and gained weight; and

•    that excessive consumption of alcohol during his Army service contributed in material degree to his GORD.

3    The AAT:

    found that the appellant had not suffered from GORD during his Army service;

    was not satisfied that use of the anticholinergic drugs could cause the appellant’s condition;

    was not satisfied that he was placed on a high fat, high cholesterol diet whilst serving in the Army; and

    rejected his evidence of heavy consumption of alcohol during such service.

4    Thus the AAT was not satisfied that the appellant’s Army service had contributed in a material degree to his GORD condition.

5    Notwithstanding the discursive nature of the notice of appeal, the appellant’s written and oral submissions focussed upon the assertion that he was treated for GORD during his military service in 1972-1973 and during the 1980s. He disputes the AAT’s finding that he developed GORD only in the 1990s. The appellant challenges that finding primarily upon the basis that he has new evidence which demonstrates that he was treated for GORD in 1987, and that such evidence should have been obtained by the AAT and taken into account in considering his case. He submits that this evidence assists his case in two ways. First, it assists him to show a connection between his Army service and his present condition. Secondly, pursuant to s 124 of the SRC Act, if he suffered from the disease prior to the commencement of that Act on 1 December 1988, any entitlement to compensation is to be determined upon the basis prescribed by the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the “1971 Act”) rather than pursuant to the SRC Act. Implicit in this latter submission is the assertion that the test under the 1971 Act is less rigorous than that prescribed by the SRC Act.

DID THE APPELLANT SUFFER FROM GORD IN 1972-73?

6    The AAT comprehensively rejected the appellant’s assertion that he suffered from GORD during his Army service in 1972-73. In so doing, it acted upon the medical evidence. Mansfield J, in upholding the Tribunal’s findings, dealt with the matter in some detail. Two specialist medical practitioners, Dr Hetzel, a gastro-enterologist and Dr Reid, a specialist physician gave evidence rejecting the appellant’s assertion. His Honour found that there was no basis for upsetting the AAT’s acceptance of their evidence. I agree.

DID THE APPELLANT SUFFER FROM GORD IN THE 1980s?

7    The appellant claims that there is, nonetheless, evidence that he suffered from GORD in the mid-1980s, the connection to his Army service being the bases identified in the second, third and fourth dot points at [2] above. He submits that notwithstanding the Tribunal’s findings set out at [3] above, the new evidence shows that he so suffered. That evidence emerged in an unusual way. Dr Cheung, a general practitioner, had treated him for GORD since 1995. In her clinical notes of a consultation in early 1995, she recorded:

10 years ago – Endoscopy? for same problem

8    Neither Dr Cheung nor the appellant provided further information to the AAT concerning this entry. In 1995 Dr Cheung eventually sent the appellant to Dr Williams for an endoscopy. In providing their reports, Dr Hetzel and Dr Reid were aware of Dr Cheung’s 1995 clinical notes, including the reference to an earlier endoscopy. Prior to the hearing, Dr Hetzel was asked:

When, in point of time, did the [appellant] first begin to suffer from GORD or the symptoms of GORD?

9    On 13 November 2008 he replied:

The exact timing is not certain but as my 1998 notes comment on heartburn for some years and he had undergone barium meal in 1995 because as Dr Cheung’s notes record (document 34) in ? January 1995 “he was living on Quickeze – burning sensation in throat – helped by Quickeze = two and a half years. No medical treatment” She also records 10 years ago – endoscopy? for same problem. Thus it seems likely that [the appellant’s] GORD symptoms had arisen by 1992 at the latest and possibly in the mid-1980’s.

10    Later in his report Dr Hetzel said:

In summary it appears that [the appellant’s] first recorded symptoms suggestive of GORD, around 1993, occurred 20 years after his discharge from National Service, and 13 years after his last claims for antacid expenses. This makes it highly improbable that his army service in 1973 or the treatment with Librax at the time is a contributor to symptoms arising more than a decade later.

11    The references to “first recorded symptoms” in 1993 and to symptoms arising “more than a decade later” are a little confusing. It seems likely that Dr Hetzel still had in mind the possibility that the appellant had experienced relevant symptoms in the mid-1980s (more than ten years after his Army service) as suggested in Dr Cheung’s note. The AAT observed at para 3 of its reasons that:

It was accepted by both parties that [the appellant] was not treated for or diagnosed with GORD until after the date of the enactment of the [SRC Act].

12    Nonetheless, it is clear that the appellant had asserted that he was suffering from GORD in 1973 [see para 45 of the AAT’s reasons] and for some considerable time prior to the early 1990s [see para 47].

13    At para 92 the AAT found:

The Tribunal is satisfied that Dr Cheung’s notes which indicate [the appellant] reporting the onset of symptoms some 2½ years earlier support the thesis that he developed GORD in the 1990s and very possibly as a result of the medication he had been taking for his back, for his heart problems and also as a result of the excessive amount of weight that he had gained in the 1990s.

14    It seems that the AAT did not accept the appellant’s evidence that he suffered symptoms of GORD prior to the early 1990s. It also did not deal with the possibility that the reference to an earlier endoscopy may have evidenced earlier complaints similar to those made in 1995. However neither Dr Hetzel nor Dr Reid seems to have treated that possibility as being relevant to the question of any link between the appellant’s Army service and his GORD.

NEW EVIDENCE

15    The new evidence indicates that Dr Cheung had also treated the appellant in 1987. The relevant documents are exhibited to the appellant’s affidavit filed on 26 August 2010. It seems that on 27 April 1987 Dr Cheung referred the appellant to Dr Williams for an endoscopy, observing that he “was not keen to have a Ba swallow or meal performed again”. Dr Cheung considered that the appellant was suffering from oesophagitis and that he had been so suffering for about nine months. Her clinical notes reveal that he had complained of “R/S burning” and a sore throat. Dr Williams saw him and wrote to Dr Cheung on 13 May 1987, concluding as follows:

I certainly agree that Kaz’ recent symptoms are suggestive of reflux disease. There does appear to be some spontaneous resolution and I have therefore suggested that Kaz enter into an intense program of regular antacids and sleeping with the head of the bed elevated. If his dyspeptic systems fail to respond then endoscopy will be the next step.

16    Subsequently, Dr Williams performed an endoscopy. In a report dated 4 July 1987 Dr Williams reported that:

The upper oesophagus was normal and the squamo-columnar junction was at about 40 cms. In the lower 4 cms of the oesophagus there were several areas of oesophagitis and immediately approximal to the squamo-columnar junction the mucosa was opaque suggestive of previous oesophageal ulceration. At the squamo-columnar junction there was a small polyp and biopsies were taken.

The stomach and duodenum were both normal.

Conclusion.

Features consistent with low grade chronic oesophagitis. Ranitidine has been commenced.

17    In a report to Dr Cheung dated 12 August 1997 Dr Williams said:

As you know, recent endoscopy revealed features suggestive of chronic low-grade oesophagitis. Biopsies were, rather surprisingly, normal but certainly the macroscopic appearances were fairly convincing and in support of the diagnosis of reflux, cancer symptoms have very significantly improved since commencing Ranitidine in 150 mgs b.d.

I have suggested to Kaz that he should complete a two month course of Ranitidine and then we can adopt a wait and see policy. Any recurrence of symptoms would probably warrant anti-reflux surgery although in view of the mild endoscopic features perhaps repeat endoscopy would be worthwhile before embarking on such an irreversible step.

18    This evidence certainly suggests that in 1987, the appellant was complaining of symptoms consistent with GORD, and that he was treated accordingly. It is fairly arguable that the evidence strengthens his assertion that he was so suffering at that time. He clearly believes that the evidence supports his assertion that his GORD was causally related to his Army service. He also asserts that as he suffered from GORD in 1987 and was treated for it at that time, his case should be considered pursuant to the test prescribed by the 1971 Act and not that prescribed by the SRC Act. The appellant submits that at the time of the hearing, the AAT ought to have inquired further concerning Dr Cheung’s reference to an earlier endoscopy and that, had it done so, it would have discovered the new evidence which is now to hand. He asserts that its failure to do so raises a legal question sufficient to engage s 44 of the AAT Act.

A DUTY TO INQUIRE

19    In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25] the High Court considered whether the Refugee Review Tribunal, in exercising its functions pursuant to the Migration Act 1958 (Cth) (the “Migration Act”) was under a duty to inquire. In previous cases it had been suggested that a review tribunal might have such a duty. In SZIAI, the High Court demonstrated that there was no established principle to that effect. Their Honours observed:

25    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

26    The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision … . The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond the bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

20    The High Court accepted that an administrative tribunal, in exercising a power of review, might be obliged to make “an obvious enquiry about a critical fact, the existence of which is easily ascertained”, and that any breach of that duty might amount to a failure to review or other jurisdictional error. However the decision does not establish a general obligation to inquire. Pursuant to the AAT Act, the AAT is obliged to review those decisions which are within its jurisdictional remit. Whether or not, in a particular case, such review requires further inquiry will be a matter of fact in each case. However care must be taken to avoid placing too heavy a burden on the AAT as it will inevitably be transferred to the parties, at least in part. Further, the AAT may appear to become inappropriately involved in the case. The AAT’s role is to provide independent review of administrative decisions.

21    In the present case we are concerned with a hearing which took place in September and November, 2008. The appellant asserts that the reference in Dr Cheung’s clinical notes, made in 1995, to an endoscopy, possibly performed ten years earlier, should have led the AAT to inquire further as to such endoscopy and its outcome. A number of factors militate against adoption of that proposition. First, although we now know that Dr Cheung sent the appellant to Dr Williams for an endoscopy in 1987, it seems that neither she nor the appellant had any particular recollection of it. As far as I am aware, the appellant made no suggestion at the hearing that further inquiries should be made or gave any information concerning the earlier procedure. Further, the question mark in Dr Cheung’s clinical notes suggests some doubt, either as to whether there had been an earlier endoscopy, or as to whether it was in connection with a problem which was similar to that with which the appellant presented in 1995. Neither Dr Hetzel nor Dr Reid suggested further inquiries about the matter, or that the outcome of such inquiries might have altered their opinions concerning any causal connection between the appellant’s Army service and his GORD. Indeed, Dr Hetzel expressly accepted that the GORD condition may have been present in the mid-1980s.

22    In summary, the earlier endoscopy had occurred more than 20 years earlier. Neither Dr Cheung nor the appellant offered any information concerning it. The specialist witnesses did not identify the matter as significant. There was no apparent line of inquiry open to the AAT. That the new evidence has come to light is surprising, but the AAT’s conduct should not be judged with the benefit of hindsight. I see no basis for holding that the AAT failed to perform its statutory function or committed any other jurisdictional error. It simply found that it had jurisdiction under the SRC Act, such finding being based on its view of the evidence before it. It disposed of the matter on the basis of the same evidence.

POSSIBLE EFFECT OF THE NEW EVIDENCE

23    In any event, the perceived benefit to the appellant of the new evidence is illusory. The appellant implicitly asserts that if his case had been treated as arising under the 1971 Act, the outcome would have been more favourable from his point of view. The SRC Act commenced on 1 December 1988. Pursuant to Div 2 of Pt X of that Act a person who was entitled to compensation under the 1971 Act continued to be so entitled. The SRC Act prescribed compensation for any ailment or aggravation thereof which was “attributed to in a material degree by the employee’s employment with the Commonwealth … ”. Pursuant to s 28 of the 1971 Act, such a person was to be compensated if his or her employment was a contributing factor to the contraction, aggravation, acceleration or recurrence of a disease. The word “material” is defined in the Shorter Oxford Dictionary (4th ed, Clarendon Press, 1993) at 1713) to mean, for the purposes of American law, “having a logical connection with the facts at issue” and, for the purposes of British law, “significant, influential, especially to the extent of determining a cause, affecting a judgment, etc”. In Comcare v Sahu-Khan (2007) 156 FCR 536 at [16], Finn J observed that use of the word “material” in the SRC Act created a requirement for a stronger causal relationship between the employment and the ailment suffered than that required by the 1971 Act. That may be so, but the difference is very much one of degree.

24    The case has proceeded upon the basis that the operation of s 7(4) of the SRC Act will determine the applicable legislation. That subsection provides:

For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)    the employee first sought medical treatment for the disease or aggravation; or

(b)    the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

25    In effect, the appellant asserts that he sought medical treatment for his GORD whilst in the Army and/or in the mid-1980s. He submits that as the SRC Act commenced on 1 December 1988, the 1971 Act applies. The respondent asserts that the appellant first sought treatment in the 1990s so that the SRC Act applies. This is a factual dispute. As Mansfield J observed, a dispute as to a finding of fact does not, itself, raise a question of law sufficient to engage the jurisdiction of this Court pursuant to s 44 of the AAT Act. In any event, the finding that the appellant did not suffer GORD whilst serving in the Army is beyond challenge. Dr Cheung’s note raised the possibility of earlier treatment for GORD, but it was for the AAT to decide the weight to be given to that possibility in deciding whether the 1971 Act or the SRC Act was engaged. On the evidence before the AAT, a finding that the appellant was first treated for GORD in the 1990s was open. As to the causal link between the appellant’s Army service and his GORD, the medical evidence was given with knowledge of the same possibility. That evidence was that there was no link between such service and his condition. Even if the AAT ought to have discovered the further evidence suggesting that he had been treated for GORD in 1987, the medical evidence nonetheless excluded any causal link between such contraction and his earlier service.

26    In the course of the hearing I observed that the appellant had not expressly raised, in his notice of appeal, any assertion concerning the failure of the AAT to make inquiries. I indicated that in the event that the Court found substance in the appellant’s complaint, we might draft appropriate grounds. In the event, it is not necessary that we do so.

OTHER MATTERS

27    It is also submitted that the AAT erroneously treated the test of material contribution as requiring that there be a “strong causal link” between the appellant’s Army service and his condition. (See para 93.) However the AAT had referred to the test of materiality at para 83. I am not sure that the adjective “strong” has a different meaning from the word “material”, if the latter word means “significant” or “influential”. In any event the absence of any demonstrated causal link between the appellant’s Army service and his condition makes a discussion of the strength of the link merely academic.

28    The notice of appeal purports to raise numerous other grounds of appeal, but the appellant’s written and oral submissions really only addressed the new evidence. I see no basis for doubting the correctness of any aspect of the decision under appeal.

ORDERS

29    The appeal must be dismissed with costs.

Associate:

Dated:    28 March 2011

REASONS FOR JUDGMENT

Cowdroy J

30    Mr Kowalski (‘the appellant’) appeals from the decision of this Court delivered on 30 April 2010: see Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408. By such decision the primary judge dismissed an appeal by the appellant from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 27 May 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382.

31    By its decision the Tribunal affirmed a decision of the Military Rehabilitation and Compensation Commission (‘the Commission’) which rejected the appellant’s claim for compensation arising from the condition of gastro-oesophageal reflux disease (‘GORD’) which the appellant claimed was caused or contributed to by his service in the Australian Army (‘the army’).

FACTS

32    The appellant had been a member of the army between 20 April 1972 and 19 October 1973 serving as a regimental and mechanical draftsman within Australia. Whilst engaged in the army the appellant developed a duodenal ulcer for which a claim for compensation was granted.

33    After his discharge from army service the appellant was employed by Mitsubishi Motors Australia Ltd and suffered recurrences of his ulcer in 1979 and 1981. The appellant received compensation from the Commission for his incapacity and medical expenses arising from the duodenal ulcer. The Tribunal noted that the appellant had suffered what he described as a mental breakdown in 1991 whilst he was employed by Mitsubishi Motors.

34    The appellant ceased work in 1991 and has not worked since that time. The Tribunal noted that his subsequent medical history included a heart attack in 1997 which required coronary bypass surgery.

35    Before the Tribunal the appellant claimed that he had developed GORD during his service in the army and has suffered thereafter from it or alternatively that he developed GORD after his service in the army but in consequence of his army service. As outlined by the primary judge, the appellant claimed that his GORD was caused by or contributed to by four factors attributable to his army service, namely:

1.    Stress experienced while working as a national serviceman;

2.    The prescription of smooth muscle relaxants for the treatment of his duodenal ulcer;

3.    The prescription of a high fat, high cholesterol diet by an army doctor treating his ulcer which resulted in significant weight increase; and

4.    Drinking alcohol to excess during army service.

36    The Tribunal found that the appellant’s claim for compensation was to be considered under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) due to its finding in respect of the date on which the appellant first suffered from GORD. It was agreed by both parties before the Tribunal that the 2007 amendments to the SRC Act instituted by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) did not apply.

37    Pursuant to s 14 of the SRC Act then extant, Comcare was liable to pay compensation in respect of an injury suffered by an employee if that injury results in death, incapacity for work or impairment. ‘Disease’ was defined in s 4(1) of the SRC Act as follows:

Disease means:

(a)    any ailment suffered by an employee; or

(b)    the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

38    Section 4(1) also provides that a disease is an injury for the purposes of the SRC Act.

THE TRIBUNAL’S REASONS

39    The Tribunal considered whether the appellant’s engagement with the army contributed in a ‘material degree’ to the onset or aggravation of his GORD and accordingly whether the appellant’s GORD was a ‘disease’ under the SRC Act such as to entitle him to compensation.

40    The Tribunal made several findings of fact which were adverse to the appellant, namely, that the appellant was not reliable in his evidence; that the appellant had not been recommended a high fat, high cholesterol diet by an army doctor treating his ulcer; that the appellant’s significant weight gain probably occurred during the 1990s and accordingly there was no link between his weight gain and his army service; and that the appellant did not excessively consume alcohol during his army service. The Tribunal accepted the evidence of two medical specialists namely, Dr Donald Reid and Dr David Hetzel, each of whom expressed an opinion that the appellant’s army service had not caused or contributed to his GORD.

41    Both Dr Reid and Dr Hetzel expressed the view that the appellant’s GORD was possibly due ‘to the combination of his obesity, his injection of anti-inflammatory medication for his back problem and his injection of Aspirin for his heart problem’. The Tribunal observed that both doctors had carefully reviewed the army medical records and the appellant’s subsequent medical records, and found that such records indicated that the appellant had a duodenal ulcer at the time of his service, but not GORD. The Tribunal accepted such evidence and concluded that the appellant did not suffer GORD during his army service and that his symptoms upon which he had relied to demonstrate his condition of GORD were in fact those caused by his duodenal ulcer.

42    The Tribunal also rejected the appellant’s claim that medication, being smooth muscle relaxants (principally Merbentyl, Kolantyl and Librax), which had been prescribed for the appellant to treat his duodenal ulcer were causative of GORD. In doing so the Tribunal referred to the evidence of Dr Reid and of Dr Hetzel that there was no established link between taking such drugs and GORD.

THE PRIMARY JUDGE’S FINDINGS

43    The appellant appealed the Tribunal’s decision. The primary judge distilled the 23 asserted errors of law and six grounds of appeal as contained in the Notice of Appeal into four discrete issues.

Issue One: The Applicable Legislation

44    The first issue addressed by the primary judge was whether the appellant’s claim for compensation should have been considered under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘the 1971 Act’) rather than under the SRC Act. The Tribunal had assessed the appellant’s claim with regard only to the SRC Act.

45    Section 5(11)(a) of the 1971 Act provides, inter alia, that incapacity or disablement of an employee shall be taken to have resulted from a disease if that disease contributed to the incapacity or disablement of the employee.

46    Section 29(1) of the 1971 Act provides that where an employee contracts a disease or suffers an aggravation, acceleration or recurrence thereof to which the employment by the Commonwealth was a contributing factor, s 29(2) of the 1971 Act applies. Such subsection relevantly provides:

(2) If-

…

(e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears-

(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and

(g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.

47    As found by the primary judge, the above provisions of the 1971 Act are less stringent than the corresponding provisions of the SRC Act. There is no requirement in the 1971 Act for the claimant to establish that the disease was suffered or aggravated ‘in a material degree’ by the employment. The 1971 Act merely requires that the employment was a ‘contributing factor’ to the contraction or aggravation of the disease.

48    The primary judge found that the Tribunal had made no error in finding that the appellant’s first onset of GORD occurred in the late 1990s, that is, after the commencement of the SRC Act. Accordingly his Honour found that the Tribunal was correct in its application of the SRC Act.

Issue Two: Review of Factual Findings

49    The second issue identified by his Honour related to a number of challenged findings of fact. His Honour concluded that such findings were supported by material before the Tribunal and as such the findings were reasonably available to be made by the Tribunal.

50    Such grounds were accordingly dismissed as an impermissible review of findings of fact.

Issue Three: Procedural Fairness and Bias

51    The third issue of the Notice of Appeal as identified by the primary judge concerned the appellant’s claim that the Tribunal had erred in its failure to accord procedural fairness by giving inappropriate assistance to the Commission during the hearing before the Tribunal and by failing to conduct the hearing in an inquisitorial way.

52    The primary judge found no failure by the Tribunal to afford procedural fairness to the appellant in the conduct of its review or in the making of its conclusions. The primary judge rejected the assertion made by the appellant that the Tribunal unfairly intervened in the course of the review to assist the respondent’s legal advisors or that it prevented the appellant from conducting his case in the manner in which the appellant wished.

53    Specifically the primary judge found that there was no basis for the assertion of unfair treatment of the appellant and that the appellant’s allegations were simply not borne out by an examination of the transcript of the hearing before the Tribunal. The primary judge found that the appellant was afforded the opportunity to call evidence and that he gave evidence. The primary judge noted that certain documents were not accepted by the Tribunal since it ruled them irrelevant, and his Honour found such rulings to be correct.

54    The primary judge rejected any basis for the assertion made by the appellant that to a reasonable observer, the Tribunal had a ‘closed mind to the consideration of the review’. The primary judge found that the appellant failed to establish that the Tribunal did not give him an appropriate opportunity to present evidence and to make submissions.

55    Accordingly the primary judge rejected the appellant’s claims that he had not been afforded procedural fairness and also rejected any question of bias on the part of the Tribunal.

Issue Four: The Wrong Question

56    The final issue of appeal as identified by the primary judge was the appellant’s claim that the Tribunal asked itself the wrong question when it determined whether a ‘strong causal link’ existed between the appellant’s army service and the onset of the condition of GORD. The appellant claimed that the correct question for determination by the Tribunal was whether the onset or aggravation of his GORD was materially contributed to by his army service.

57    The primary judge observed that the Tribunal correctly stated that in light of the definition of ‘disease’ in the SRC Act and its findings that the appellant first sought treatment for GORD in the 1990s, the Tribunal had to be satisfied on the balance of probabilities that his army employment contributed in a ‘material degree’ to the onset or aggravation of the appellant’s GORD to enable a finding in the appellant’s favour

58    The primary judge noted that the Tribunal referred to the test applied in Comcare v Sahu-Khan (2007) 156 FCR 536 in which Finn J at [16] considered that the SRC Act definition requires a stronger causal link or relationship between the employment and the ailment than under the 1971 Act; and that the words ‘in a material degree’ required an evaluation of all the relevant contributing factors to ascertain whether the contribution was material.

59    The primary judge found that the Tribunal’s reasons at [93] incorrectly expressed the correct statutory test when it said:

In the circumstances, the Tribunal cannot be satisfied, on the balance of probabilities, that there is the required strong causal link between Mr Kowalski’s Army service and the onset of the condition of GORD.

60    The primary judge observed that in view of the definition of ‘disease’ in s 4(1) of the SRC Act, it was incorrect to assert that the Tribunal needed to be satisfied that there was a ‘strong causal link’ between the appellant’s army service and the onset, acceleration or aggravation of GORD, and that if the Tribunal applied such a test it did so erroneously. The primary judge noted that such test was not employed by Finn J in Sahu-Khan, who merely observed that there needed to be a ‘stronger causal link’ when employing the ‘material degree’ standard of the SRC Act than was required under the 1971 Act. However the primary judge found that the apparent error by the Tribunal did not in fact demonstrate that the Tribunal erred in its application of the relevant legal test.

61    The primary judge considered that [93] of the Tribunal’s reasons reflected an inappropriate summation of the Tribunal’s series of previous conclusions, but that read as a whole, the Tribunal’s reasons demonstrated that the Tribunal had employed the correct test.

62    The primary judge found that the Tribunal was required to determine when the onset of the disease occurred. The primary judge noted that the appellant’s GORD was not medically diagnosed during the appellant’s army service. Significantly, the primary judge said at [60]:

In this matter, GORD was not medically diagnosed in 1976 or during the appellant’s army service. The symptom of heartburn could have indicated its presence at that time. The Tribunal found, however, it was not the cause of the symptom of heartburn. It did so on the basis of medical evidence. Whether it was mistaken in that finding (which the appellant asserts to be the case), its findings of fact does not demonstrate any error of law on its part in the way the appellant claimed.

APPEAL TO FULL COURT

63    The Notice of Appeal before the Full Court raises 23 issues, 12 of which ask questions whether the primary judge ‘erred in law’ with regard to his several findings and 11 of which question whether the primary judge ‘diverted the course of justice’ and thereby allegedly erred in his findings because he ‘deliberately and consciously’ made ‘false and misleading findings’ in various paragraphs of his reasons.

64    Some of the grounds of appeal assert that the primary judge erred in restating the facts as found by the Tribunal. Review of the factual findings of the Tribunal is impermissible before this Court (see Waterford v The Commonwealth of Australia (1987) 163 CLR 54 per Brennan J at 77) and as such the primary judge made no error in accepting the facts as stated by the Tribunal.

65    Other grounds contained in the Notice of Appeal to the Full Court merely assert errors of law in respect of certain findings while failing to raise questions of law capable of determination by the Full Court: see Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524.

66    A number of claims in the Notice of Appeal to the Full Court relate to the primary judge’s observations of the formulation of the appeal before him. The primary judge observed that the Notice of Appeal was ‘unhelpful’ and went on to refer to the fact that it raised 23 asserted errors of law which were to a degree repetitious, unfounded and inappropriately expressed. The primary judge also concluded that the allegations that the Tribunal ‘deliberately and consciously perverted the cause of justice’ or similar claims contained no material basis from which the assertions could be made out.

67    The primary judge was entitled to make such observations. No error of law is disclosed.

68    Other paragraphs in the Notice of Appeal to the Full Court simply raise the question of whether the primary judge erred in law in the making of his decision.

69    Subject to the issues considered hereunder, the claims contained in the Notice of Appeal to the Full Court seek to do no more than to challenge the primary judge’s findings, without identifying any appellable error.

Effect of fresh evidence

70    During the course of the hearing before the Full Court, Mr Kowalski sought to tender fresh evidence including medical reports of Dr Derwin Williams, a gastroenterologist, dated 13 May 1987 and 12 August 1987 together with a colonoscopy/endoscopy report prepared by Dr Williams dated 4 July 1987 (‘the new evidence’).

71    The new evidence was not before the Tribunal when it made its decision, nor was it available to the primary judge. Such records become apparent only as a consequence of the issuance of subpoenas by a respondent in another proceeding involving the appellant. Such records disclosed that the appellant had been referred to Dr Williams by Dr Christina Cheung on 27 April l987.

72    Dr Cheung gave evidence before the Tribunal that the appellant first consulted her in 1995 concerning a burning sensation in the appellant’s throat. Such evidence was clearly erroneous because it overlooked the fact that Dr Cheung apparently referred the appellant to Dr Williams in 1987.

73    The Court admitted the new evidence, as fresh evidence, on the ground that such evidence might have relevance to the appellant’s claims concerning the onset of his GORD, which might have significant consequence upon the legislation applicable to his claim.

74    The new evidence might also have been relevant to an issue raised by Mr Kowalski in his Notice of Appeal to the Full Court, namely that his claim for compensation should have been determined under the 1971 Act rather than under the SRC Act. If it were found that Dr Williams’ diagnosis of Mr Kowalski’s condition demonstrated that he had suffered GORD prior to 1988, and also that his army service was a contributing factor to the onset or aggravation of such disease, Mr Kowalski might be entitled to succeed in his claim for compensation under the 1971 Act. The less stringent burden of proof prevailing under the 1971 Act would be of distinct advantage to him compared to the SRC Act under which the Tribunal and primary judge considered his claim.

75    Dr Williams’ first report acknowledges that Mr Kowalski’s symptoms ‘are suggestive of reflux disease’. The endoscopy report dated 4 July 1987 stated, inter alia:

In the lower 4cms of the oesophagus there were several areas of oesophagitis and immediately proximal to the squamo-columnar junction the mucosa was opaque suggestive of previous oesophageal ulceration…

CONCLUSION

Features consistent with low grade chronic oesophagitis. Ranitidine has been commenced.

76    The second report of Dr Williams on 12 August 1987 confirmed such endoscopy findings, stating that the endoscopy report had revealed that the appellant had features ‘suggestive of chronic low-grade oesophagitis’. The report relevantly continued:

…[C]ertainly the macroscopic appearances were fairly convincing and in support of the diagnosis of reflux, cancer symptoms have very significantly improved since commencing Ranitidine 150mg. b.d.

… Any recurrence of symptoms would probably warrant anti-reflux surgery although in view of the mild endoscopic features perhaps repeat endoscopy would be worthwhile before embarking on such an irreversible step.

77    Both the Commission and the Tribunal had before them the medical records of Dr Cheung recording the consultation with Mr Kowalski on 31 January 1995. The notes contain the following entries:

10 years ago – endoscopy? For same problem.

Dr Williams for endoscopy and [treatment?] plan.

78    The recent discovery of Dr Williams’ reports raises the issue whether the Tribunal was under a duty to conduct inquiries concerning their existence. Mr Kowalski acknowledged that he had no recollection of his consultations with Dr Williams, nor of his endoscopy report. Despite this fact Mr Kowalski claims that it was incumbent upon the Tribunal to instigate and locate such evidence. Such ground of appeal was not raised in the Notice of Appeal to the Full Court, but the respondent stated that it had no objection to it being raised at the hearing.

79    The Tribunal has powers to require a person to appear at a hearing to produce records, and if necessary give evidence at a hearing as prescribed by s 40 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). Accordingly, the Tribunal has an inquisitorial role: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425.

80    In Minister for Immigration and Citizenship v SZIAI and Another (2009) 83 ALJR 1123, the High Court of Australia held that jurisdictional error may occur if the Refugee Review Tribunal, in exercising its powers under the Migration Act 1958 (Cth) failed to make an obvious inquiry concerning a critical fact, the existence of which was easily ascertainable. At [25] their Honours French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [Footnotes omitted]

81    I have read the observations of Dowsett J relating to this issue. I respectfully agree that to impose a duty to inquire upon the Tribunal to the extent as claimed by the appellant would place too heavy a burden on the Tribunal. Section 40 of the AAT Act does not require a tribunal, in the exercise of such power, to make investigations on behalf of a party, nor to find evidence to support an applicant’s case.

82    The recent decision of the High Court in Minister for Immigration & Citizenship v SZGUR & Anor (2011) 85 ALJR 327 is, by analogy, instructive. The High Court allowed an appeal from a decision of this Court which found that the Migration Review Tribunal, having been informed by the applicant’s agent that a psychiatric assessment was needed for the hearing, was obliged by s 427(1)(d) of the Migration Act 1958 (Cth) to investigate the applicant’s condition. French CJ and Kiefel J said at [22]:

The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) “[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power”. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).

83    Their Honours, French CJ and Kiefel J (Gummow J separately deciding, but arriving at the same conclusion) inter alia found that there was no basis to suggest that the Migration Review Tribunal overlooked the agents request (see [33]).

84    Whilst the facts before the Tribunal in the present appeal are different, the principle emerging in SZGUR applies by analogy. The Tribunal, it can be assumed, was aware that Dr Williams had made investigations and performed an endoscopy in approximately 1985. But there was no request made that any investigation be carried out, nor was that the function of the Tribunal.

85    In this instance, before the Tribunal the appellant made no reference to any prior consultation with Dr Williams, nor suggested that Dr Williams had investigated his condition. I agree with Dowsett J that, in these circumstances, there was nothing to alert the Tribunal to a possible source which might be investigated, and that there was no basis for holding that the Tribunal failed to fulfil its statutory obligation.

86    I also concur with the possible effect of the new evidence as discussed by Dowsett J.

87    For these reasons, I agree that the appeal must be dismissed.

Associate:

Dated:    28 March 2011

REASONS FOR JUDGMENT

Logan J:

88    I have had the advantage of reading in draft the reasons for judgment of Dowsett J. I am in general agreement with his Honour’s reasons and with the orders he proposes in respect of the disposition of the appeal. I wish to add the following.

89    The observations made in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 in relation to when a duty to inquire might arise in respect of a tribunal whose primary role was that of administrative review were recently reiterated by French CJ and Kiefel J, Heydon and Crennan JJ agreeing, in Minister for Immigration & Citizenship v SZGUR (2011) 85 ALJR 327 at [23] (SZGUR). Also left open (ibid) was whether any such failure might amount to jurisdictional error.

90    In this case, the original jurisdiction exercised by the Court was not that of deciding whether, pursuant to that conferred by s 39B(1) of the Judiciary Act 1903 (Cth) a constitutional writ should issue on the basis of jurisdictional error. Rather, the task of the Court was to answer the question(s) of law which formed the very basis of the so-called “appeal” from the tribunal.

91    In contrast to s 427(1)(d) of the Migration Act 1958 (Cth), considered in SZGUR, the tribunal was not directly assigned a power to require the respondent to arrange a medical examination. Instead, any such power the tribunal had in this case was derivative; derivative in the sense that, in exercising its review function, the tribunal was, for the purpose of conducting the review and by virtue of s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), invested with “all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. One such power possessed by the respondent was to undergo a medical examination by one nominated medical practitioner: s 57(1) Safety, Rehabilitation and Compensation Act 1988 (Cth). In this fashion, the tribunal possessed a power to require a medical examination.

92    To possess such a power is one thing, to be obliged to exercise it is another. It is not impossible to see how a question of law might be constructed posing a question as to whether, in particularised events which had transpired, the tribunal was under an obligation to exercise such a derivative power. In this case though, there was nothing in the circumstances which obliged the tribunal to exercise that power.

Associate:

Dated:    28 March 2011