Kowalski; Repatriation Commission and [2009] AATA 6; (2009) 108 ALD 464; (2009) 49 AAR 326 (7 January 2009)

Last Updated: 4 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3352

VETERANS’ APPEALS DIVISION		)
	Re		REPATRIATION COMMISSION

Applicant

And

KAZIMIR KOWALSKI

Respondent

DECISION

Tribunal

Mr J G Short (Member)

Date 7 January 2009

Place Adelaide

Decision

The Tribunal dismisses the application lodged on 2 November 2008 by Mr Kowalski to declare the Repatriation Commission’s application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth).

JG Short
(Signed)
(Member)

CATCHWORDS

PRACTICE AND PROCEDURE – ss 42B and 33 of Administrative Appeals Tribunal Act 1975 (Cth) - frivolous or vexatious considered – Anshun estoppel considered – Repatriation Commission’s appeal not previously considered by Tribunal – application dismissed
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B

Veterans’ Entitlements Act 1986 (Cth) ss 27, 175(1), 176(2)
Attorney-General v Wentworth (1988) 14 NSWLR 481
Burton v Bairnsdale Shire (1908) HCA 57
Re Eylward v Comcare [2008] AATA 63
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Re Jebb and Repatriation Commission ( 2005] AATA 470
Re Repatriation Commission and Hadfield [1990] AATA 67

REASONS FOR DECISION

7 January 2009

Mr J G Short (Member)

1. On 20 February 2008 the Repatriation Commission (the Commission) determined that Mr Kowalski’s gastro-oesophageal reflux disease (GORD) was not defence-caused. On 7 July 2008 the Veterans’ Review Board (the VRB) determined that GORD was defence-caused. On 23 July 2008, the Commission lodged an appeal to this Tribunal.
2. On 18 July 2008, Deputy President Jarvis considered an application lodged by the Commission to stay the effect of the decision of the VRB. Deputy President Jarvis adjourned further consideration of the stay application as it appeared that the substantive issue could be determined expeditiously.
3. On 2 November 2008, Mr Kowalski applied to the Tribunal for an order dismissing or permanently staying the Commission’s application for review by this Tribunal.

BASIS OF MR KOWALSKI’S APPLICATION

4. In support of his application, Mr Kowalski first argued that Deputy President Jarvis had, during his consideration of the Commission’s application for a stay order heard on 18 July 2008, considered the Commission’s appeal and consequently the Tribunal was now prevented from any further consideration of the Commission’s appeal.
5. On 14 November 2008, the Commission filed an outline of argument regarding Mr Kowalski’s application for dismissal. In that document, the Commission argued that the substantive matter raised by the Commission’s appeal had not previously been considered by this Tribunal and that, as a hearing before this Tribunal is a de novo hearing, all issues are at large for the Tribunal to consider. The Commission argued that the Anshun principle had no application to hearings before this Tribunal in circumstances where the substantive issue had not been previously considered by the Tribunal. It further argued that its appeal to this Tribunal could not be considered frivolous or vexatious and consequently should not be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and that this Tribunal does not have power under s 33 of the AAT Act to dismiss an appeal, but rather, its powers under this section were confined to limiting the scope of the appeal where a matter had previously been considered by the same Tribunal.
6. On 14 November 2008, Mr Kowalski replied to the Commission’s outline of argument. Mr Kowalski suggested that the Commission had a statutory or legal obligation to make submissions, either in writing or by representation, before the VRB and that in this case it had chosen not to do so and consequently it could not now, through its appeal, contest findings of fact made by the VRB.
7. On 16 November 2008, Mr Kowalski provided what he called an “Alternative Reply to the Applicant’s Outline of Argument”. In that document, Mr Kowalski referred to the decision of Re Repatriation Commission and Hadfield [1990] AATA 67 and again suggested that as the Commission made the decision not to be represented or make submissions before the VRB, it was now either confined to questions of law in its appeal to this Tribunal, or had no right at all to appeal the decision of the VRB.
8. On 17 November 2008, Mr Kowalski filed what he termed a “Further Reply to the Applicant‘s Outline of Argument”. In this document he suggested that the Commission’s list of cases which were determined before this Tribunal and which had been considered, notwithstanding that the Commission had not been represented or made submission before the VRB, were dated.

LEGISLATION

9. Sub-section 175(1) of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) provides:

“175 Applications for review
(1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a) of the decision of the Commission that was so affirmed;
(b) of the decision of the Commission as so varied; or
(c) of the decision made by the Board in substitution for the decision so set aside;
as the case may be.”

10. Section 27 of the AAT Act relevantly provides:

“27 Persons who may apply to Tribunal
(1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.
...”

11. Section 176(2) of the VE Act identifies the Commission as a “person whose interests are affected by a reviewable decision”.
12. On 7 July 2008, the VRB set aside a decision of the Commission and substituted a new decision that Mr Kowalski’s GORD is defence-caused as defined in s 70 of the VE Act.
13. Section 175(1) of the VE Act provides in these circumstances that application may be made to this Tribunal for review of the VRB’s decision. Section 27 of the VE Act provides that such an application for review may be made by or on behalf of any person, including the Commonwealth or an authority of the Commonwealth whose interests are affected by the decision.
14. In the light of the above mentioned legislation, I find that the Commission has a statutory right to seek review of the decision made by the VRB on 7 July 2008.

FRIVOLOUS OR VEXATIOUS?

15. Section 42B(1) of the AAT Act provides:

“42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
...”

16. Further, s 33(1) of the AAT Act provides:

“33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

17. In commenting on the nature of an appeal before this Tribunal, the Commission suggested that in contrast with judicial review, the scope of an appeal under the VE Act is a merits review. The Commission referred to a comment by Robin Cryke “Administrative Tribunals” in Mathew Groves and HP Lee, Australian Administrative Law, Cambridge University Press, 2007 at page 86 that “unless the statute specifically restricts the grounds which can be raised or considered on review, the Tribunal may consider the whole of the evidence and every aspect of the case for the purposes of the review”. I am of the view that an application before this Tribunal is, unless otherwise directed, a de novo hearing and that all issues are at large.
18. The Tribunal may dismiss an application under s 42B of the AAT Act if it considers the application to be frivolous or vexatious. These concepts were considered by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481. At 491, Justice Roden said:

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

19. Mr Kowalski argued that Anshun estoppel should apply in this case. The principle of Anshun estoppel can, in my view, apply to applications before this Tribunal, if an application amounts to or requires a reconsideration of matters previously determined by the Tribunal.
20. Mr Kowalski suggested that in considering the Commission’s application for a stay of proceedings, Deputy President Jarvis effectively considered the Commission’s appeal and consequently this Tribunal could not, or now should not, again consider the merits of that appeal. I am of the view that the stay application considered by Deputy President Jarvis was an interlocutory application and not finally determinative of the issues raised in the Commission’s appeal. As such, I do not consider that the appeal attempts to, or necessarily involves, a re-agitation of issues previously determined by the Tribunal.
21. Mr Kowalski referred to Re Repatriation Commission and Hadfield [1990] AATA 67. In that matter, the Commission was criticised and a suggestion was made that in the light of the Commission’s actions in that case, or inactions, that Tribunal should perhaps be confined to considering questions of law. I note, however, that at paragraph 13 of its reasons for decision, the Tribunal in Re Hadfield commented:

“13. It is clear therefore that in considering the facts of this matter the Tribunal has the task of weighing all the evidence and where a conflict exists the duty to reject evidence which is unsatisfactory and to prefer evidence which is the more cogent and probative.” (emphasis mine)

It appears therefore that the Tribunal did go on to consider questions of fact.

22. Mr Kowalski also referred to a handwritten file note made by the Commission in rejecting a s 31 internal review, that the Commission would now leave the matter to be determined by the VRB. I do not consider that this comment does or could, bind the Commission to accepting any decision made by the VRB, that is forfeiting a right to lodge an appeal in respect of any decision the VRB may make.
23. In Re Eylward and Comcare [2008] AATA 63, Senior Member Hastwell dismissed an application pursuant to s 33 of the AAT Act. In that case however, a decision had previously been made by this Tribunal and consequently it could be argued that by a subsequent appeal, the applicant was attempting to re-litigate matters previously considered by the Tribunal. As mentioned, in the application before me, I am not satisfied that the issues, the subject of the appeal, have been previously considered by this Tribunal.
24. Deputy President Jarvis considered the principle of Anshun estoppel in Re Jebb and Repatriation Commission [2005] AATA 470. He made the following comments:

“...An application for review to this Tribunal involves a re-hearing of the relevant application, and the Tribunal determines the application on the material before it, and not on the material before the original decision-maker. Further, applications to the Tribunal generally involve the reception of evidence, the ability of both parties to cross-examine witnesses, and frequently parties are represented. There is an opportunity for the hearing before this Tribunal to investigate issues more thoroughly than can generally occur when the primary decision is made. These considerations would, in my view, make Anshun estoppel inappropriate to hearings in this Tribunal, because it would impede the Tribunal in carrying out its function of arriving at the correct or preferable decision ...”

Deputy President Jarvis did however, comment on the appropriateness of the Anshun estoppel principle at a later hearing in respect of issues which could have been raised at an earlier Tribunal hearing. As mentioned, this does not have application in this case as there has not been a previous Tribunal hearing at which the substantive merits of the appeal were determined.

25. As mentioned, in considering the tests expressed in Wentworth, I have not been satisfied that the Commission instituted an appeal with the intention of annoying or embarrassing Mr Kowalski. It may have had this effect. However, I accept the Commission’s submission to the effect that it genuinely considers the VRB decision wrong. Similarly, I am not satisfied that the Commission has brought the application for co-lateral purposes rather than for the purpose of having a determination made on the issues to which they give rise.
26. The third test suggested in Wentworth, is that an application may be considered objectively vexatious if it is so obviously untenable or manifestly groundless as to be utterly hopeless. It may be that if I found that the application should be struck out on the basis that the issues had been previously considered before this Tribunal, such a view would then clearly render the application utterly hopeless. I do not hold such a view. I am not satisfied that the application is obviously untenable or manifestly groundless.
27. Similarly, I do not consider it appropriate to exercise any discretion under s 33 of the AAT Act to either dismiss the application or to confine it to issues of law or in any other manner, as I do not consider that the application necessarily involves reconsideration of any issue previously determined by the Tribunal. This Tribunal has power, and an obligation, to conduct a de novo hearing in relation to the decision, the subject of the appeal.
28. It appears to be a practice of the Commission to be unrepresented and to not make submissions at VRB hearings and that similarly, Commonwealth Government departments which make decisions through Centrelink, in general make a decision not to be represented before the Social Security Appeals Tribunal. These decisions, in my view, do not deprive the Commission or Centrelink of the statutory right to seek review of any such decisions before the AAT. The decision-making scheme embodied in the governing legislation provides both veterans and the Commission with a prima facie right to seek merits review of decisions, at both the VRB and AAT level.

DECISION

29. The application for dismissal or a permanent stay of the Commission’s appeal pursuant to s 42B and/or s 33 of the AAT Act, is dismissed.
    

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed: .....................................................................................

B Bills Admin Assistant

Date/s of Hearing 20 November 2008

Date of Decision 7 January 2009

Counsel for the Applicant Mr B Topperwien

Solicitor for the Applicant Mr A Crowe, Department of Veterans' Affairs

Respondent In person