FEDERAL COURT OF AUSTRALIA

Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80

THE COURT ORDERS THAT:

1.     The Appellant’s motions, notice of which was given on 4 March 2011, each be refused.

2.    The appeal be dismissed with costs.

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.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be substituted as the First Respondent.

2.    The Applicant’s motions, notice of which was given on 4 March 2011, each be refused.

3.    The application be dismissed.

4.    The Applicant pay the Second Respondent’s costs of the application.

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.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

THE COURT

1    The Applicant/Appellant (“Mr Rana”) served in the Australian Army between October 1980 and his discharge in July 1982. In 2005 Mr Rana made two claims for compensation for medical conditions which he said had been caused by incidents which, he claimed, had occurred in the course of his military service. Both claims were made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

2    Mr Rana first applied for compensation for paranoid schizophrenia. That claim was refused by Comcare. Comcare refused to accept liability on the basis that it was not satisfied that Mr Rana’s condition was caused by physical assaults, racial vilification and sexual harassment in the course of his Army service.

3    Later in 2005 Mr Rana made a claim for compensation for stress induced paranoid schizophrenia and diabetes. This application was rejected by the Military Rehabilitation and Compensation Commission (“the MRCC”) in 2007.

4    Mr Rana appealed to the Administrative Appeals Tribunal (“the Tribunal”) from the two decisions. The appeals were heard together. On 23 November 2010 the Tribunal affirmed each of the decisions: see Rana v Military Rehabilitation and Compensation Commission [2010] AATA 937.

5    On 9 December 2010 Mr Rana lodged an appeal against the Tribunal’s decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). This is proceeding SAD 202 of 2010.

6    The notice of appeal identified four purported questions of law. Each commenced with the words “The Tribunal was contrary to” and then followed references to various grounds of review contained in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). No questions were asked.

7    Mr Rana sought to rectify this deficiency. By notice of motion dated 4 March 2011 he sought leave to amend his notice of appeal. His supporting affidavit exhibited a notice of appeal in which five purported questions of law appeared. Each question commenced with the words “Whether the Tribunal”. Thereafter, in each case, followed grounds of judicial review.

8    It is now well established that an appeal, under s 44 of the AAT Act, must be founded on “pure” questions of law: see, for example Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60; Comcare v Etheridge (2006) 149 FCR 522 at 527; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 254-5; Australian Telecommunications Corporations v Lambroglou (1990) 12 AAR 515 at 527. This is because questions of law form the subject matter of the appeal: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 (per Gummow J). In the absence of a question of law no appeal lies from a decision of the Tribunal.

9    The questions contained in Mr Rana’s revised notice of appeal are not questions of law. As Ryan J observed in Lambroglou (at 527):

“[I]t simply begs the question of law to commence it with the words ‘Whether the Tribunal erred in law.’ If the question, properly analysed, is not a question of law, no amount of formulary like ‘erred in law’ … can make it into a question of law.”

10    No question of law was identified in either version of Mr Rana’s notice of appeal.

11    Mr Rana also filed an application for judicial review of the Tribunal’s decisions under the ADJR Act. This is proceeding SAD 203 of 2010.

12    On 9 December 2010 Mr Rana filed an affidavit in proceeding SAD 203 of 2010 to which was exhibited what appears to be an application under s 39B of the Judiciary Act 1903 (Cth) and a draft notice of motion in which he sought leave to tender fresh and/or further evidence.

13    In his notice of motion dated 4 March 2011 Mr Rana also applied, as we understand the document, for leave to amend his application for review under the ADJR Act. The notice of motion also sought leave to amend what was said to be Mr Rana’s application under s 39B of the Judiciary Act. No such application had been filed.

14    On 21 March 2011 Mr Rana filed an affidavit which appears to be intended to support the notice of motion which he had filed on 4 March 2011. The affidavit suggests that Mr Rana is, in addition to seeking leave to amend his purported judicial review applications, applying for leave to adduce further evidence in support of these applications. That evidence is identified as being:

    A letter from Dr Marco Giardini to Dr Henry Fellner dated 20 December 2010.

    A letter from Mr Rana to Dr Bal Jha dated 18 March 2011.

    A bundle of service police statements bearing dates in 1985.

    An affidavit of Dr Carmine De Pasquale dated 28 July 2004 sworn in proceeding S67 of 2004 in this Court.

15    The imprecision which has attended Mr Rana’s prosecution of these proceedings has occasioned great difficulty for both the MRCC and the Court. The MRCC has not, as it may well have been entitled to, moved the Court for orders of summary dismissal of both proceedings. Rather, it has acknowledged that Mr Rana is an experienced but unrepresented litigant without legal qualifications who should be accorded some latitude. It has conceded that some, at least, of his complaints about the Tribunal’s decision could, perhaps, be formulated as questions of law for the purposes of s 44 of the AAT Act. It has done the best that it can to understand the grounds formulated by Mr Rana and then sought to deal with them in argument.

16    We are prepared to entertain Mr Rana’s applications for judicial review although, for reasons which will shortly appear, we do not consider that any of the grounds raised have any substance. Mr Rana is an unrepresented litigant and, when examined, some, at least, of his claims, had they properly been formulated, could have constituted questions of law for the purposes of s 44 of the AAT Act. In such circumstances the Court has been prepared to frame appropriate questions and answer them: see, for example, Birdseye at 60-1. In any event, decisions made by the Tribunal are subject to judicial review by this Court, albeit normally not pursuant to the ADJR Act: see Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484.

17    The grounds contained in Mr Rana’s judicial review application are difficult to understand. Many are unintelligible. Some are accompanied by rambling discourses. Some serious allegations, such as fraud, are made, but the necessary particularity is not provided. The applications bear a similar characteristic to those advanced by him in an earlier proceeding: see Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6. Of this earlier application Finn J observed (at [3]) that:

“His claims, in the main, do not rise above what are in substance challenges to the merits of individual findings and conclusions notwithstanding that the language in which those challenges are cast often reflects well-known grounds of judicial review. I need only reiterate that any court reviewing a decision of the Tribunal cannot turn ‘a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.”

18    We do not propose to embark on a textual analysis of all of the grounds on which Mr Rana seeks to rely. Nor do we propose to deal with those which are unintelligible or which do no more, overtly or covertly, than attempt to reargue the merits of Mr Rana’s claims. We will confine our attention to those grounds which may, arguably, raise issues proper for consideration on appeals under s 44 of the AAT Act or on judicial review.

19    Before turning to the grounds in more detail it is necessary to say something about certain evidence on which Mr Rana sought to rely before the Tribunal but which the Tribunal refused to admit into evidence. He claimed that, during his Army service, he had, on a number of occasions, been sexually assaulted. The trauma resulting from these assaults was said to have led to him suffering from the medical conditions on which his compensation claims were based. He sought to support his claim by reference to a series of statements, taken by military police investigators, into allegations which he had made following his period of service.

20    Mr Rana had made the same claims relating to sexual assault in earlier proceedings before the Tribunal. The military police statements had been tendered and relied on by him in those earlier proceedings. The statements were made by persons whom Mr Rana had alleged had assaulted him or had witnessed him being abused. Each deponent denied the substance of Mr Rana’s allegations in their statements to the military police. They were called to give evidence before the Tribunal. They gave evidence consistent with their statements. Having considered the evidence of Mr Rana and the deponents, the Tribunal had concluded that Mr Rana had not been subject to sexual assaults in the course of his Army service: see SAN v Comcare (2004) 81 ALD 149 at 190 [161]. A purported appeal to this Court from the Tribunal’s decision was dismissed: see [2005] FCA 6.

21    Before hearing the present appeals the Tribunal directed that it would have regard to the findings of fact made by it on earlier appeals by Mr Rana. It made plain that it would not permit Mr Rana to mount a collateral attack on those earlier findings. To that end it directed that it would “inform itself as to the circumstances of and events arising [during Mr Rana’s] employment and of the conditions that he ha[d] suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia … and Re “SAN” and Comcare and … not permit the parties to lead further evidence regarding [these] matters.” In Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 the Tribunal gave careful reasons for imposing these limitations on Mr Rana: see, especially, at [134]-[137]. In particular, the Tribunal had regard to the provisions of ss 2A and 33(1)(c) of the AAT Act.

22    The Tribunal subsequently varied this direction by providing that, in the event that Mr Rana required the hearing of his appeals to proceed on any other basis, he was to apply for further directions within 14 days of his receipt of any further medical report from Dr Jha. Mr Rana made no such application.

23    Despite this, Mr Rana sought, at the hearing of his appeals by the Tribunal, to tender and rely on the military police documents. The Tribunal did not reject this application out of hand. It was conscious that Mr Rana may have misunderstood the terms of the revised direction. As a result it gave full and detailed consideration to whether or not it should allow Mr Rana to tender and rely on the report and statements. It concluded that it should not. It said ((2010) 53 AAR 387 at [113]) that:

“Applying these principles to the question of whether we should allow Mr Rana to rely on the Military Police Report; we do not think that we should. The Military Police Report was admitted in evidence and considered extensively in Re SAN and Comcare. The Tribunal took it into consideration together with the evidence of Mr Rana and a number of witnesses in making its findings of fact regarding Mr Rana’s allegations that he had been sexually assaulted during his service in the Army. Given that we are not revisiting the findings of fact made on such matters by the Tribunal in Re SAN and Comcare, as well as those in Re Mr R and Commonwealth of Australia, to admit the Military Police Report in evidence would serve no worthwhile purpose. We are not revisiting the circumstances of Mr Rana’s employment in the Army …”

24    Mr Rana has alleged that, in refusing to admit and consider the statements, the Tribunal denied him natural justice. Such an allegation can give rise to a properly formulated question of law: see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at 32. Such a denial would, of course, provide a ground for judicial review. Mr Rana also relied on the Tribunal’s refusal to admit the military police statements in alleging that the Tribunal had erred by:

    Having regard to an irrelevant consideration, namely, that the statements had been the subject of consideration in previous appeals and

    Inferring that the statements had been ‘properly considered’ in Re SAN.

25    Each of these grounds must be rejected. Mr Rana had the opportunity (of which he availed himself) of placing the military police statements before the Tribunal on earlier occasions. They were considered in conjunction with his own evidence and that of other witnesses. Having considered all of this evidence the Tribunal had concluded that Mr Rana had not been sexually assaulted during his military service. Mr Rana did not suggest that he wished to tender the statements in his present appeals to the Tribunal for any purpose other than inviting the Tribunal to come to a contrary conclusion.

26    The task of the Tribunal under the AAT Act is, albeit very generally expressed, to reach the correct or preferable decision on the merits (s 43) and in doing so to “ensure that every party … is given a reasonable opportunity to present his or her case…” (s 39).

27    In discharging those tasks, in an appropriate case, the Tribunal may have regard to findings of fact made between the same parties in earlier proceedings before the same or a differently constituted Tribunal. Although a Tribunal may not be bound to make the same findings of fact, findings previously made – especially after a contested hearing – may appropriately be adopted in subsequent proceedings. Its freedom to do so may well depend upon the facts and circumstances of each individual case. There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made.

28    But the obligation to “ensure that every party … is given a reasonable opportunity to present his or her case…”, may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the “correct or preferable” finding is one different from that previously made.

29    The circumstances of the present case do not bring any of these considerations into play. No denial of natural justice occurred; nor was there any denial of the opportunity referred to in s 39 of the AAT Act.

30    The documentary evidence which Mr Rana has invited the Court to receive has been identified above at [14].

31    It is permissible, in some circumstances, in appeals under s 44 of the AAT Act and in judicial review proceedings, for the Court to receive and act on evidence that was not before the Tribunal whose decision is impugned: see Clements at 33. It may be, for example, that such evidence can be relied on to establish that a denial of natural justice has occurred or that a grant of relief is warranted. Such circumstances do not exist in the present proceedings.

32    Both of the letters post-dated the Tribunal’s decision. The first, identified above at [14], was written by Dr Giardini, a consultant psychiatrist, to Dr Fellner, Mr Rana’s treating doctor. As the letter states, Dr Giardini saw Mr Rana for the first time on the date on which he wrote the report, namely, 20 December 2010. Dr Giardini expresses no opinions about matters which were relevant to the Tribunal’s decision or the resolution of the proceedings before us.

33    The second letter was written by Mr Rana to Dr Jha on 18 March 2011. It asks the doctor two questions and proffers some advice and thanks to Dr Jha. Again, the letter contains nothing of relevance to the issues which were considered by the Tribunal.

34    As already noted, the military police statements were made by those whom Mr Rana had accused of abusing him and those whom he had claimed had witnessed such abuse. The deponents had each denied the substance of his allegations. When asked, during oral argument, to identify any passage in any of the statements which would have assisted him in making good his claims on his appeals to the Tribunal in the present proceedings, he was unable to do so.

35    Mr Rana said that he wished to tender the affidavit of Dr De Pasquale because it illustrated that illegal and false assumptions had been made about the state of his health. Dr De Pasquale is a psychiatrist who had seen Mr Rana “on and off” between 1986 and 2004. His reports were considered by the Tribunal. The affidavit was available and could have been relied on by Mr Rana at the hearing. It deals with Dr De Pasquale’s treatment of Mr Rana and his diagnoses.

36    None of the material referred to in the four preceding paragraphs would have assisted Mr Rana in prosecuting his appeals before the Tribunal. Even had we been persuaded that the refusal or failure of the Tribunal to have regard to this material had led to a denial of natural justice, we would not have been disposed to grant relief: cf Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at 558 [96]. In these circumstances Mr Rana has not suffered any “practical injustice”: see Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (per Gleeson CJ).

37    For the sake of completeness we would add that a reading of the Tribunal’s decision in SAN makes plain that there is no substance in Mr Rana’s complaint that the military police statements had not properly been considered by the Tribunal in coming to its decision in that appeal. Not only had their contents been taken into account, the deponents had given evidence and been cross-examined.

38    At the hearing Mr Rana said that, had he not felt constrained by the Tribunal’s directions, he would have applied for summonses to have been issued, requiring the attendance of the deponents of the statements to give evidence. He also said that he had applied to the Tribunal for leave to issue such summonses and that his application had been refused. We asked Mr Rana to provide copies of the summonses which he had prepared and details of when and where his application to issue them had been made and when he was advised of the rejection of that application. Mr Rana has not supplied copies of any summonses to the Court despite being given the opportunity to do so.

39    Mr Rana’s appeal and his application must be dismissed with costs. His various motions should be refused.

40    Following the hearing Mr Rana made further written submissions in support of his appeal and his application. He did so without seeking or obtaining the leave of the Court. The Court has not had regard to those submissions.

Associate:

Dated:    17 June 2011