FEDERAL COURT OF AUSTRALIA
Godwin v Repatriation Commission [2008] FCA 576
Administrative Appeals Tribunal Act 1975 (Cth) s 43(6)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 10(2)(b)
Veterans’ Entitlements Act 1986 (Cth) ss 31, 178(1)
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 cited
Browne v Dunn (1893) 6 R 67 cited
Davis v Repatriation Commission (1997) 74 FCR 577 followed
Hanna v Australian Postal Corporation (1990) 12 AAR 511 considered
Lilienthal v Migration Agents Registration Authority [2001] FCA 2 cited
Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 followed
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 considered
Murphy v Farmer (1988) 165 CLR 19 followed
Musgrave v Martin [2003] FCA 920 followed
Repatriation Commission v Richardson [2001] FCA 1626 followed
W J & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294 followed
JOHN ROBERT GODWIN v REPATRIATION COMMISSION
NSD 1886 OF 2007
FLICK J
30 APRIL 2008
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1886 of 2007 |
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BETWEEN: |
JOHN ROBERT GODWIN Applicant
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AND: |
REPATRIATION COMMISSION Respondent |
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FLICK J |
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DATE OF ORDER: |
30 APRIL 2008 |
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WHERE MADE: |
SYDNEY |
THE ORDERS OF THE COURT ARE:
1. Application dismissed.
2. The Applicant to pay the costs of the Respondent of and incidental to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1886 of 2007 |
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BETWEEN: |
JOHN ROBERT GODWIN Applicant
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AND: |
REPATRIATION COMMISSION Respondent |
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JUDGE: |
FLICK J |
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DATE: |
30 APRIL 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The Application for an Order of Review in these proceedings seeks to challenge a decision of the Repatriation Commission made on 10 September 2007. The jurisdiction of the Court is invoked pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
2 The decision of the Commission was the product of a review undertaken pursuant to s 31(4), (6) and (7) of the Veterans’ Entitlements Act 1986 (Cth). The result of the review undertaken by the Commission’s delegate was that the delegate was “satisfied beyond reasonable doubt that Mr Godwin did not experience a severe service-related stressor nor did he suffer a service related psychiatric illness”. The delegate went on to conclude that he was “therefore satisfied beyond reasonable doubt that his PTSD is not war-caused”.
3 A number of grounds are set forth in the Application as filed. One matter which the Applicant contends assumes particular importance is the fact that the review by the Commission was undertaken whilst proceedings were pending in the Administrative Appeals Tribunal and the result of that review was announced immediately subsequent to the decision of the Tribunal, published on 28 August 2007. The claims made by Mr Godwin for a pension, he contends, had been resolved such that there was no power thereafter to review his entitlement. Section 31, he contends, confers no such power. Even if s 31 confers a power of review, he further submits that the conduct of the Commission in undertaking that review is wrong in law.
4 The Commission rejects each of the grounds relied upon and contends that the review was authorised and lawfully undertaken.
The Claims Made by Mr Godwin
5 Mr Godwin enlisted in the Royal Australian Navy in January 1964 and was discharged in April 1972. During this period he served onboard the HMAS Parramatta in Malaysia.
6 He also rendered operational service in Vietnamese waters onboard the HMAS Sydney from 8 to 22 April 1967 and from 28 April to 12 May 1967.
7 In 2002 he claimed a disability pension relevantly in respect of a PTSD, a post traumatic stress disorder. His claim was determined by the Commission and review was sought from the Veterans’ Review Board. He thereafter appealed to the Administrative Appeals Tribunal.
8 The Administrative Appeals Tribunal concluded on 8 April 2005 that Mr Godwin did suffer from a war-caused post traumatic stress disorder and remitted the claim to the Commission to assess the rate of pension payable. It was this decision of the Tribunal that accepted that Mr Godwin had witnessed in Vung Tau harbour the destruction of a civilian sampan by a United States patrol boat: Re Godwin and Repatriation Commission [2005] AATA 309.
9 The Commission then determined the rate of pension and Mr Godwin again applied to the Veterans’ Review Board. The Board affirmed the Commission’s decision and on 22 May 2006 Mr Godwin applied to the Administrative Appeals Tribunal for review of the decision which had been affirmed. It was that decision of the Tribunal which was published on 28 August 2007. That decision was that the Applicant was “entitled to pension at the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 as and from 5 May 2005”.
The Tribunal’s 2005 Decision and the Section 31 Review
10 The significance of the review undertaken pursuant to s 31 of the 1986 Act is that the delegate reached a very different conclusion as to the events relied upon by Mr Godwin.
11 The Administrative Appeals Tribunal in 2005 in determining the eligibility of Mr Godwin for a pension concluded that it could not be satisfied that he had not witnessed the sampan incident. That Tribunal relevantly concluded:
[71] … the question is whether the Tribunal is satisfied beyond reasonable doubt that Mr Godwin’s incapacity due to PTSD does not arise from a war-caused disease. If it is not so satisfied, beyond reasonable doubt, the claim must succeed.
[72] There was no challenge to Mr Godwin’s credit, and the Tribunal was satisfied that he was a witness of credit who had given a consistent account of his experiences to the doctors who assessed him, and to the Tribunal.
[73] The Tribunal accepted that no formal record of either the Gurkha incident or the sampan incident, or indeed the New Guinea incident was put before it, but was also satisfied that Mr Josephs’ research did not extend to all possible sources. Further, in relation to the sampan incident, an American Swift Boat may have been involved, which was likely to mean that Australian records would not be made. The Tribunal was mindful Mr Josephs did not check any American records, or ship’s logs from the archives, and concluded that there may have been no record of the sampan incident, or that it may have been recorded where Mr Josephs research did not extend.
…
[80] The Tribunal accepted that the template in Instrument No.3 of 1999 had been satisfied, and that Mr Godwin had been subjected to a severe stressor as defined there, in that he witnessed the sampan incident during his operational service. The Tribunal was satisfied that this was the cause of the development of his PTSD.
[81] On the evidence of the Applicant, and the medical evidence therefore, the Tribunal could not be satisfied beyond reasonable doubt that Mr Godwin did not witness the sampan incident. Witnessing that event satisfied the definition of "experiencing a severe stressor" in the SoP, and led to the development of Mr Godwin’s PTSD. Accordingly Mr Godwin’s PTSD can be held to be war-caused pursuant to section 9 of the Act.
Before the Tribunal in 2005 were two reports prepared by Writeway Research Service Pty Ltd, one dated 2 March 2002 and the other dated 16 July 2004.
12 The delegate when making his decision recited that, unlike the Tribunal, there was now available a further report of the incident said to have been witnessed by Mr Godwin. This was the report from Writeway Research Service Pty Ltd dated 24 February 2007. The delegate sated:
The claim for PTSD may be refused only if it can be shown beyond reasonable doubt, that Mr Godwin did not experience, witness or confront an event that involved actual or threat of death or serious injury or a threat to his or other people’s physical integrity.
On 24 February 2007, a report was received from Writeway Research Services [Writeway], in relation to the incident in Vung Tau harbour which Mr Godwin had described in his evidence to the Tribunal and to the Board and in histories he provided to various psychiatrists. The report’s findings (in summary) were that:
● There was no reference in the HMAS Sydney’s records of such an incident;
● A number of personnel were posted on (and in boats around) the Sydney as sentries and observers;
● These personnel were required to report significant incidents;
● A civilian vessel being destroyed by machine-gun fire in sufficiently close proximity to the Sydney to allow for the observation from the Sydney of body parts of the victims would have almost certainly been reported by these personnel;
● The Sydney’s escort, the HMAS Vampire, was berthed in the vicinity of the Sydney;
● There was no reference in the Vampire’s records of such an incident;
● There was no reference in the Commander US Naval Forces Monthly Historical Supplement April 1967 to such an event; the only incidents recorded are an attack on an LST in the Long Tau River, the inspection and detention of a civilian vessel by an US patrol boat near the mouth of the Long Tau River and an inspection and detention of three civilian vessels by a US unit at Cat Lo. These events occurred at a significant distance from the anchorage of the Sydney and do not, in any event, correspond to the description of the event provided by Mr. Godwin.
A copy of the Writeway report is attached.
OPERATION OF S 31(4), (6) & (7) OF THE ACT
Subsection 31(4) of the Act provides that the Commission, if it is satisfied that evidence before it when it made a decision was false in a material particular, may review the decision and vary it. The subsection further provides that the Commission may set a date, which it considers to be appropriate in all the circumstances, from which the variation shall operate. Similarly, subsection 31(6), provides that where the Commission is satisfied that having regard to a matter which affects the payment of pension (being a matter that was not before the Commission when the decision to grant pension was made) that pension should be cancelled or suspended or is being paid at a higher rate than it should be, the Commission may by a determination in writing cancel, suspend or decrease the rate of pension. Subsection 31(7) provides that the date of effect of such a determination may be earlier than the date on which the determination is made.
Having considered the report submitted by Writeway on 24 February 2007, together with the official records on which it was based, I am satisfied beyond reasonable doubt that the event described by Mr. Godwin in his evidence to the Tribunal and the Board and in the histories he provided to various psychiatrists did not occur or did not occur in the manner described. I am therefore satisfied beyond a reasonable doubt that the evidence provided by Mr. Godwin and the reports provided by Dr Hayes, Dr. Allnutt and Professor Quadrio contained material which was false and misleading within the terms of subsection 31(4).
I am also satisfied that matters which affect the payment of pension, and which have been detailed in the Writeway report received on 27 February 2007 were not before the Commission when it made its decision and that pension should now be varied.
For the reasons given above, I am satisfied beyond reasonable doubt that Mr Godwin did not experience a severe service-related stressor nor did he suffer a service related psychiatric illness. I am therefore satisfied beyond reasonable doubt that his PTSD is not war-caused.
Section 31 of the Veterans’ Entitlements Act 1986 (Cth)
13 The statutory provisions relied upon by the delegate when making his decision were s 31(4), (6) and (7) of the Veterans’ Entitlements Act 1986 (Cth). Those provisions are as follows:
Review by Commission
…
(4) Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision and, if it varies the decision, it may approve as the date as from which the variation shall operate a date, which may be a date before or after the commencement of the review, considered by the Commission to be appropriate in all the circumstances.
…
(6) Where the Commission is satisfied that:
(a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b) by reason of a refusal or failure of any person to comply with a provision of this Act;
(c) by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d) by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.
…
(7) Where a determination is made under subsection (6):
(aa) by reason of the Commission having regard to a matter that affects the payment of a pension or attendant allowance in the circumstances specified in paragraph (6)(a); or
(a) by reason of the refusal or failure of a person to comply with a provision of this Act, other than:
(i) subsection 127(4) in relation to a notice under paragraph 127(1)(f); or
(ii) subsection 128(4); or
(b) by reason that an amount has been paid by way of pension or attendant allowance that, but for the false statement or misrepresentation of any person, would not have been paid;
a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.
Section 31(4): Only the “Commission” and “False”?
14 On behalf of the Applicant it was contended that:
(i) s 31(4) did not confer any power to review a decision after the decision had been reviewed by the Administrative Appeals Tribunal;
or, in the alternative, and if s 31(4) did confer such a power, that:
(ii) the power which was conferred was confined to those circumstances in which there had been before the Commission evidence which was “false” — and there was no such evidence in the present proceedings.
Neither contention prevails.
15 In support of the former contention, reliance was placed upon s 31(4) being expressed in terms of “Where the Commission is satisfied”. That provision, it was contended, necessarily excluded decisions which had been subsequently reviewed by the Tribunal. That provision, it was said, stood in contrast to s 31(6) which employed the statutory phraseology of “a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal”. Where a power of review was intended to be conferred even after Tribunal review, the contention was that the Parliamentary draftsman employed the language of s 31(6).
16 The argument, however, ignores the effect given to a decision of the Tribunal. Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
In the present context, a decision of the Tribunal is deemed to be a decision of the Commission “for all purposes”. Where there has been a decision of the Commission which has been reviewed by the Tribunal, as in the present proceedings, the subsequent decision of the Tribunal is nevertheless “deemed” to be a decision of the Commission. Section 31(4), it is considered, thus includes both a decision of the Commission and a decision of the Commission as altered, varied or affirmed. The effect of s 43(6) of the 1975 Act cannot be confined to simply identifying the date from which a decision of the Tribunal is to take effect. To so construe s 43(6) is to give effect only to the latter part of the provision and is to ignore the “deeming” effect given to a Tribunal decision. To conclude that the power of review vested in “the Commission” by s 31(4) could not be exercised after review by the Tribunal would be to construe s 31(4) as excluding a power of review where there has been a decision which is deemed to be a decision of the Commission itself and deemed to be a decision of the Commission “for all purposes”. A construction of a statutory provision which permits further administrative reconsideration subsequent to a Tribunal decision is not surprising: see, eg, Hanna v Australian Postal Corporation (1990) 12 AAR 511.
17 Irrespective of s 43(6) of the 1975 Act, however, it is further considered that the contrast in language relied upon by Mr Godwin as between s 31(4) and s 31(6) is misplaced. All that the language employed in s 31(6) prescribes are those circumstances in which the Commission may exercise the power there conferred. It may exercise those powers where it is “satisfied” that there is a “matter” that was not before any of the decision-making stages, be the decision one made by the Commission, the Board or the Tribunal. Such a provision provides little if any basis for confining the ambit of the power conferred by s 31(4). The difference in language as between s 34(4) and s 34(6) is not considered to be a sufficient basis to construe s 31(4) as imposing any constraint other than the one prescribed by the legislature, namely that the Commission be satisfied that evidence was “false in a material particular”.
18 The construction of s 31(4) urged by Mr Godwin was also said to be implicitly supported by the administrative decision-making hierarchy proceeding from the Commission, thereafter to the Board, and finally to the Tribunal. It was understood that the submission advanced was that s 31(4) was to be confined to the initial repository of decision-making authority and not to be extended to decisions which had been exposed to further administrative review. Albeit in the context of s 31(6), the same argument has been rejected: Davis v Repatriation Commission (1997) 74 FCR 577. Sundberg J there observed:
The applicant's alternative argument took as its starting point the hierarchy of decision-making established by the Act. The hierarchy consists of the Commission as primary decision-maker, the Board as the second tier decision-maker, and the AAT as the third tier decision-maker and ultimate forum of merits review. It was said that the review mechanisms provided by s135 and s175 were intended to result in the final disposition of claims. It was submitted that while the word "matter" standing alone would receive a wide construction, in the context of the review provisions as a whole it must be limited to a degree which is necessary to achieve finality in the disposition of claims. If s31(6) is not limited in this manner, the Commission could review decisions of the Board or the Tribunal again and again on any pretext in defiance of the review hierarchy. The limitation contended for was not more precisely formulated than this, but was said to lead to the conclusion that a medical report which merely repeats and endorses the conclusions in other reports based on documented observations, and which contains no new observation, fact, cause, circumstance, information, opinion or contention, is not capable of being a matter which was not before the Board when the decision to grant the pension was made. It was accepted that a medical report which was brought into existence to take into account some change in the facts and circumstances, or facts or circumstances not previously disclosed, might be in a different position.
I see no reason to limit the ordinary meaning of the words "any matter that affects the payment of a pension ..., being a matter that was not before the ... Board ... when the decision to grant the pension ... was made" in the manner contended for. The "hierarchy" argument, which purports to be based on the structure of the review provisions of the Act, ignores the fact that s31 itself contains no less than seven exceptions to the simple three tier structure on which the submission is based. Far from supporting the contention that s31(6) would, unless narrowed, permit the Commission to review decisions of the Board or Tribunal in defiance of the review hierarchy, a reading of the relevant parts of the Act as a whole shows that the three tier review structure contended for is simplistic. Not only does s31 provide a number of additional grounds of review, but decisions made pursuant to the section are themselves subject to review under s135(3).
…
The fact that s31(6) may be open to abuse (repeated reviews on any pretext), does not in my view require it to be read down. A capricious or unreasonable exercise of the power will be susceptible to review under s5 of the Administrative Decisions (Judicial Review) Act.
For present purposes there is not considered to be any relevant distinction as between s 31(4) and s 31(6).
19 The alternative submission advanced on behalf of s 31(4) should also be rejected. This alternative argument assumed that s 31(4) did confer a power upon the Commission to undertake a review — even after a Tribunal decision — but contended that there was no power to do so in the present proceedings because there was no evidence which was “false in a material particular”. “False”, it was contended, should be interpreted as meaning “deliberately untruthful”.
20 There are at least two difficulties in acceding to this alternative submission.
21 First, the task of determining whether there was evidence which was “false in a material particular” is not a task entrusted to this Court; it is a task entrusted by the Commonwealth legislature to the Commission. Section 31(4) thus confers the power of review where “the Commission is satisfied that evidence before [it] when it made a decision was false in a material particular”. Where a discretionary power is vested in the Commission in such terms, it matters not that others may have reached a different decision and may have done so reasonably, provided that there was some probative material available to support the decision in fact taken by the Commission: cf Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 at [45] per Gleeson CJ and McHugh J, [147] per Gummow J, 197 CLR 611.
22 Second, there was indeed material available to the Commission upon which it could reach the state of satisfaction that evidence previously before it was “false in a material particular”. The meaning of the term “false” depends upon the statutory context in which it is used. In some statutory contexts the term may mean “purposely or deliberately or intentionally untrue”: see, eg, Murphy v Farmer (1988) 165 CLR 19. The term “false” in the present statutory context, however, is considered to mean “objectively incorrect”: cf Musgrave v Martin [2003] FCA 920 at [105], 130 FCR 546 at 565 per Weinberg J. Where the 1986 Act seeks to impose a requirement that a “false” statement be made “intentionally”, it so provides: see, eg, s 208.
23 Limited room for argument emerged as to whether the delegate had erred in the construction of the word “false” and whether he had erroneously construed the term as meaning “misleading”. The letter enclosing the s 31 decision to Mr Godwin’s solicitors thus referred to an earlier decision as having been made on the basis of “misleading information” and the s 31 decision itself refers to “material which was false and misleading within the terms of s.31(4)”. Any ambiguity, however, as to the basis upon which the delegate proceeded is removed by his statement that he was:
… satisfied beyond reasonable doubt that the event described by Mr. Godwin in his evidence to the Tribunal and the Board and in the histories he provided to various psychiatrists did not occur or did not occur in the manner described. …
This conclusion cannot be construed as anything other than a conclusion that the account given by the Applicant was “objectively incorrect”.
24 This conclusion of the delegate, and his requisite state of “satisfaction”, was able to be supported by the contents of the 2007 Writeway Research material. That material cannot be characterised as being merely equivocal as to whether the sampan incident occurred. To so characterise the material may have supported a submission that there was not now available to the Commission evidence upon which it could be satisfied that the earlier evidence was “false”. Perhaps equivocation is exposed by the final paragraph of the 2007 report which stated:
… my research has not disclosed any evidence of a fishing boat being blown up as described by the Veteran in the extracts at paragraph 1 of this report. …
Whatever equivocation may be exposed by this statement, there is no such equivocation in earlier material set forth in the 2007 report which found (inter alia) that had such an incident occurred “it would almost certainly have been observed by a large number of people”. The report thus stated:
… In addition to the personnel mentioned above, there were numerous other personnel who would have been in a position to witness a sampan being blown up by a patrol boat within sight of SYDNEY, particularly if their attention was drawn to it by the sound of machine gun fire. They included communications personnel on the bridge, the ship’s Aviation Officer and his staff in Flyco (Flying Control) overlooking the Flight Deck who controlled aircraft movements in the vicinity of the ship, the Cargo Officer and members of the cargo handling party on the Flight Deck and ship’s divers based on the quarterdeck. Had a sampan been blown up near SYDNEY by a patrol boat, with bodies and body parts being thrown into the air, it would almost certainly have been observed by a large number of people, and it would have been reported to the PCO on the bridge. As such an incident would have been indicative of a possible threat to SYDNEY it would have been reported to the Commanding Officer, and the PCO would probably have asked the Harbour Control Post for information about the incident, particularly whether it appeared to be related to the presence of the two RAN ships.
The report also extracted a report from a former Lieutenant Commander which in part stated:
… Had a sampan been sunk by gunfire in the vicinity a comment would most certainly have been recorded in VAMPIRE’s Report of Proceeding, which I drafted each month, and probably SYDNEY’s as well. However, I did witness an incident that may be relevant; this involved a sampan (or fishing boat) and an armed patrol boat, which I think was South Vietnamese but may have been US Navy[.]
The records of the United States Navy were also addressed and the report concluded that:
… Given the nature of the incidents recorded in the monthly summary, as indicated in the extracts attached, it could be expected that the interception and sinking of a suspect junk in the anchorage at Vung Tau, would have been included in the summary.
This was all material which was not previously available and material upon which the Commission or its delegate could form the requisite state of “satisfaction”.
25 It is thus considered that s 31(4) confers a power to review a decision after a decision of the Administrative Appeals Tribunal. That power was open to be exercised by the Commission by reason of the fact that there was material upon which the Commission by its delegate could be “satisfied” that the evidence previously before the Commission was “false in a material particular”.
Section 31(6): The “Matter”
26 Section 31(6)(a) confers a power of review where the “Commission is satisfied” that there is a “matter that affects the payment of a pension” which was not before “the Administrative Appeals Tribunal”.
27 The Applicant concedes that the power conferred by s 31(6) may be exercised after there has been a review by the Tribunal. Given both the terms of s 31(6) and the decision of Sundberg J in Davis, that concession was quite properly made.
28 The Applicant, however, contends that there is in the present proceedings no “matter” which was not before the Tribunal. Reliance is placed upon the following observations of Sundberg J in Davis:
… The power in s31(6)(a) is available to the Commission only if it is satisfied of the existence of a matter that affects the payment of a pension and which was not before the decision-maker. If the "new material" is no more than a repetition of material that was before the decision-maker, it would not be reasonably open to the Commission to be relevantly satisfied that the material “affects the payment of a pension”.
29 The Applicant has variously identified the “matter”. It is understood that the “matter”, as defined by the Applicant, was whether or not the sampan incident occurred. The contention sought to be advanced is that the material relied upon by the delegate was, presumably, “a repetition of material that was before the decision-maker”.
30 It is considered that this submission should also be rejected for at least two reasons.
31 First, the term “matter” can include new evidence relevant to the manner in which the prior decision was made. Section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the power of review where new evidence or other material becomes available which has not previously been considered. And it may not matter that that new material was available even at the time when the Tribunal made its decision. Thus, Sundberg J went on to conclude in Davis as follows:
It was also submitted for Mrs Davis that because Professor Cade's report had been received in time for it to be used by the Commission in support of an application for review of the Board's decision by the AAT, it could not found an exercise of the Commission's power to review the Board's decision under s31(6)(a). A variation of this argument was that the Commission, having had a reasonable opportunity to put Professor Cade's report before the AAT, had not done so, and so was not able to use the report to found an exercise of power under s31(6). These assertions were not developed in argument, and in my view they have no substance. If material becomes available after the relevant decision is made, and it affects the payment of a pension, the power in s31(6)(a) is available to the Commission. It is simply irrelevant that it becomes available at a time when the Commission might seek a review by the AAT. The Commission may engage in conduct which disables it from taking a particular course, but in the absence of any such conduct, it can pursue whichever avenue it chooses. The second argument advanced has overtones of estoppel without any factual basis to support the estoppel.
Further, in Repatriation Commission v Richardson [2001] FCA 1626 at [15]–[18], 115 FCR 220 Dowsett J concluded that it was open to the Commission pursuant to s 31(6) to have regard to material of which it was ignorant at the time the original decision was made to grant a pension.
32 Section 31(6) should not be construed as excluding from the term “matter” new evidence, albeit evidence in relation to an area of factual dispute previously resolved. In Davis, it may be noted, the new evidencewhich satisfied the requirements of s 31(6)(a) was a medical report which “contained an expression of opinion from a highly qualified medical specialist, based on contemporary clinical and laboratory evidence, that persuasively identified the cause of death to the exclusion of other possible causes”.
33 Second, there is the same difficulty as confronted the Applicant with respect to s 31(4), namely that the power conferred by s 31(6) is a power vested in the Commission if it is “satisfied” of the matters there set forth. The contents of the 2007 report provided a basis for reaching that state of “satisfaction”.
34 Section 31(6) was thus also a basis for review open to the delegate.
Res Judicata and Estoppel?
35 On behalf of Mr Godwin it was further contended that “the issue being determined by the delegate has already been finally determined by the Tribunal. It is submitted that in all the circumstances, the principle of res judicata apply”. In addition, Mr Godwin sought “leave to amend the Order of Review to include reliance upon the doctrine of estoppel. It is submitted that the Respondent is precluded from contending to the contrary a fact which has been distinctly put in issue by them and found against them in the Tribunal”.
36 There are at least two difficulties in accepting either contention.
37 First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel: W J & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97:
Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: “only another executive body in an administrative hierarchy”.
The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be.
In relation to the taxation boards of review, Kitto J in W J & F Barnes Pty Ltd v FCT (1957) 96 CLR 294 at 315, said: “The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel.”
The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279; 17 FCR 476 at 480 had no hesitation in saying: “A finding by an administrative tribunal will not give rise to an issue estoppel.”
Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20], 65 ALD 437 at 442 per Katz J.
38 Second, the conclusiveness of any administrative determination, it is considered, must necessarily be dictated by reference to the statutory regime pursuant to which decisions are made. The present statutory regime expressly reserves unto the Commission the power to conduct a review, even after a decision has been made by the Tribunal. The power conferred by s 31 to undertake a review is an answer to any submission as to res judicata or estoppel.
The Manner of Exercise of the Power: Conduct?
39 On behalf of Mr Godwin further submissions were advanced, namely that the “conduct” of the Commission in undertaking the s 31 review breached s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in that the manner of the exercise of that power was:
(i) an improper exercise of the power;
(ii) a misuse of the discretion conferred;
(iii) contrary to the public interest; and
(iv) unreasonable.
Departing from the language employed by s 6, the Applicant has also sought to characterise the Commission’s conduct as “vexatious and perfidious and was grossly improper in all the circumstances”.
40 None of these grounds have been made out. All that has happened is that the proceedings before the Tribunal in 2005 and 2007 were conducted on one basis and the s 31 review proceeded upon the basis of further factual material then being available to the delegate but not the Tribunal, in particular the Tribunal that carried out the “eligibility” review in 2005. There has been no “misuse” of the discretionary power conferred by s 31. Nor is it considered “contrary to the public interest” to exercise that statutory power in the present case.
41 Left to one side has been any consideration as to whether the “conduct” relied upon was conduct engaged in “for the purpose of making a decision to which” the 1977 Act applies.
42 There has been no challenge by the Applicant to the manner in which the Repatriation Commission conducted its case before the Tribunal. The Commission frankly informed the Tribunal members conducting the 2007 hearing of the s 31 review being undertaken. And it is common ground, for the purposes of the present proceedings, that it was no part of the tasks entrusted to the Tribunal in 2007 to revisit the finding as to eligibility previously made by the Tribunal in 2005. So much is, indeed, supported by the following observations made by the Tribunal in its 2007 decision:
… During the course of these proceedings the Tribunal was made aware that the Respondent is taking steps to revoke the Applicant’s entitlement to have PTSD accepted as a war-caused disease. That action may or may not ultimately be successful but this Tribunal proceeded upon the basis that the Applicant has a war-caused PTSD. We note that the Applicant’s treating Psychiatrist Dr Hayes has adverted to a false history but has proceeded to make his diagnosis on the basis of accepting the history given him by the Applicant, while stating any diagnosis may need to be reconsidered.
43 The challenge which is made on behalf of the Applicant to the manner in which the Commission exercised is discretionary power springs from essentially two sources: one is the historical review undertaken by the advocate within the Commission who had been entrusted with the task of reviewing Mr Godwin’s file; the other is an account given of conversations as between that advocate and a solicitor who had carriage of Mr Godwin’s case.
44 As to the former, the account given by the advocate was that in January 2007 she had been asked by the Assistant-Director of Review “to review the files in relation to the AAT proceedings N2006/0592”. That file was the file maintained in respect of the assessment of Mr Godwin’s pension. Rather than confining her attention to matters immediately relevant to the assessment, the advocate went on to “seek a further historical research report into the ‘sampan incident’”. She understood that “American records not readily accessible at the time of AAT proceedings N2003/1270 had since become readily available”. It was that review which undermined the Applicant’s eligibility to a pension.
45 As to the latter source of challenge, the solicitor acting for Mr Godwin deposed to a number of conversations with the advocate. On the solicitor’s account, the advocate is reported as having said:
… I am considering whether to conduct a s.31 review of Mr Godwin’s accepted condition of post traumatic stress disorder …
The advocate is also reported to have said:
… you better give your client the ‘tip’, we are going after his post traumatic stress disorder ...
Neither deponent kept any contemporaneous file note of any of the conversations. Both witnesses were cross-examined. The solicitor, for example, maintained that she remembered parts of the conversations “distinctly” and her account should, so it was submitted, for that and other reasons, be accepted. The advocate had no delegation to conduct a s 31 review and, so it was submitted on behalf of the Commission, was unlikely to have said the words attributed to her.
46 It is not considered necessary, however, to resolve any such discrepancies as may have emerged from the differing accounts; nor is it necessary to resolve whether the submissions advanced on behalf of Mr Godwin went beyond the Application filed in this Court, as supplemented by his Outline of Submissions. It is also unnecessary to resolve whether or not submissions which were sought to be advanced were not available to the Applicant by reason of questions not being put to the advocate which should have been put in accordance with the principles of Browne v Dunn (1893) 6 R 67 at 70–1 per Lord Herschell LC. For example, the advocate was never asked in cross-examination whether she had deliberately set out to obtain evidence to defeat the eligibility of the Applicant.
47 In the present case there is no basis for concluding — as submitted on behalf of Mr Godwin — that the delegate was “off on a frolic to disprove the Applicant’s entitlement”. Such reliance as is sought to be placed, on behalf of Mr Godwin, upon the limited instructions given to the advocate in January 2007 does not support any conclusion that the advocate was conducting any review of historical records which was not within the ambit of her instructions. And, even if the solicitor’s account of the conversations with the advocate prevail, those conversations do not support any conclusion that there had been an unreasonable exercise of power or an exercise of power in bad faith.
A Breach of Section 178?
48 On behalf of Mr Godwin it is further contended that the Commission:
… has, by its decision dated 10 September 2007, decreased the rate of the applicant’s pension, relying on section 31(6). In doing so, the Respondent has failed to comply with the provisions of section 31(12) and section 178(1) which prohibits the Respondent from such action within six months of a decision by the Tribunal in respect of the rate of pension. The Tribunal decided the rate of pension for the Applicant on 28 August 2007, less than two weeks before the Respondent’s decision.
49 Section 31(12) of the 1986 Act provides as follows:
This section applies to and in relation to a decision made before or after the commencement of this section but does not apply to or in relation to a decision of the Board referred to in subsection 154(1), or a decision of the Administrative Appeals Tribunal referred to in subsection 178(1), that is binding on the Commission by reason that the period specified in that subsection has not expired.
And s 178(1) provides as follows:
Period of operation of certain decisions of Administrative Appeals Tribunal
(1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or in effect:
(a) assesses a rate of pension or increased rate of pension;
(b) refuses to grant a pension, on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of such a pension;
(c) refuses to increase the rate of a pension; or
(d) reduces the rate of a pension;
that decision of the Administrative Appeals Tribunal shall, subject to subsection (2), be binding on the parties to the proceedings before that Tribunal for a period of 6 months commencing on the day on which that Tribunal makes the decision.
50 The Tribunal on 28 August 2007 concluded that Mr Godwin was entitled to receive a pension at the special rate with effect from 5 May 2005. Pursuant to s 178(1), that decision was “binding … for a period of 6 months” as from 28 August 2007.
51 The delegate when conducting his s 31 review concluded that:
… Pension is … assessed at 10% of the general rate with effect from 2 August 2000.
The Tribunal’s decision said nothing as to the period prior to 5 May 2005 and s 178(1) has no application to that prior period.
52 Nor did the delegate’s decision purport to diminish the effect otherwise given to the decision of the Tribunal pursuant to s 178(1). In any event, the six month period referred to in s 178(1) has expired. The decision of the delegate, it should further be noted, has previously been stayed by an order of this Court.
53 Accordingly, no breach of s 178 has been established.
An Alternative Means of Review: Section 10(2)(b)?
54 A final submission advanced on behalf of the Commission need not be finally resolved.
55 This final submission was that any relief to which the Applicant was otherwise entitled should be refused in the exercise of the Court’s discretion. Section 10(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) relevantly provides as follows:
the Federal Court ... may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
(i) …
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
56 Adequate provision is made for review, it is said on behalf of the Commission, by such means of administrative review as are conferred by provisions such as s 135 of the Veterans’ Entitlements Act 1986 (Cth).
57 Had it been necessary to resolve this submission, it would most probably have been resolved against the Commission. The questions of statutory construction agitated by the parties before this Court have not been without difficulty and a decision to invoke this Court’s jurisdiction is not considered to have been an inappropriate way in which to have proceeded.
Orders
58 The orders of the Court are:
1. Application dismissed.
2. The Applicant to pay the costs of the Respondent of and incidental to the application.
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I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
Associate:
Dated: 30 April 2008
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Counsel for the Applicant: |
C Ronalds with E Wood |
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Solicitor for the Applicant |
S Lloydd (Legal Aid Commission) |
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Counsel for the Respondent: |
R Beech-Jones with R Henderson |
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Solicitor for the Respondent |
L Buchanan (Australian Government Solicitor) |
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Date of Hearing: |
8 April 2008 |
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Date of Judgment: |
30April 2008 |
