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Kowalski v Repatriation Commission

COURT Full Federal Court, Adelaide
JUDGES Dowsett, Cowdroy & Logan JJ
DATE OF DECISION 28 March 2011
DECISION Appeal dismissed and appellant to pay costs
ISSUES Whether the applicant should be granted leave to amend his notice of appeal - whether the Court should allow the introduction of new evidence on appeal - whether the primary Judge had erred in making his decision


Mr Kowalski served in the Australian Army between April 1972 and October 1973 and rendered “defence service”.  

The matter before the Full Federal Court concerned his claim for disability pension for gastro-oesophageal reflux disease (GORD).  His claim was initially rejected by the Repatriation Commission (the Commission), but that decision was set aside by the Veterans’ Review Board (the Board) and GORD was accepted as defence-caused.  The Commission appealed to the Administrative Appeals Tribunal (the Tribunal), which set aside the Board’s decision and affirmed the Commission’s initial decision.  Mr Kowalski appealed to the Federal Court on a question of law.  His appeal was dismissed by the primary Judge, and Mr Kowalski then appealed to the Full Federal Court.

Grounds of appeal

At the hearing Mr Kowalski sought to amend his notice of appeal, to include a ground that the primary Judge should have disqualified himself.  The Court refused his application for leave to amend the notice of appeal, as the issue had not been raised before the primary Judge.

Mr Kowalski also sought to introduce further evidence in the form of documentary exhibits to an affidavit which he had sworn.  The Court refused leave to read the affidavit, as none of the material sought to be introduced was relevant to an issue before the primary Judge.  The evidence was directed to the establishment on the factual merits of whether his GORD was defence-caused.  The Court indicated that if Mr Kowalski’s grounds of appeal have any substance, a re-hearing on those factual merits would be a matter for the Tribunal on remission.

From Mr Kowalski’s notice of appeal, the Court identified the following alleged errors of law in respect of the primary Judge’s decision:

(a) A failure to conclude that the “reasonable hypothesis” test was applicable.
(b) Alternatively, a failure to conclude that the tribunal had incorrectly applied ss 120(4) and 120B of the VEA and the statement of principles (SoP) applicable to GORD.
(c) A failure to conclude that the tribunal had either ignored or failed to act on undisputed evidence in respect of Mr Kowalski’s meeting the criteria in the applicable SoP.
(d) A failure to hold that, having not appeared in the proceeding before the VRB to defend its decision, the Commission was estopped from raising any ground of challenge to that board’s decision in favour of Mr Kowalski before the tribunal, what Mr Kowalski termed “Anshun Estoppel”.

The Court’s consideration

Reasonable hypothesis test

As Mr Kowalski did not have operational service, the “reasonable hypothesis” test was not applicable.

Sections 120(4) and 120B of the VEA

The Court found that the Tribunal and primary Judge had each correctly concluded that s 120(4) of the VEA was applicable to the circumstances of Mr Kowalski’s claim.  The Tribunal was required to decide his claim to its reasonable satisfaction.  Section 120B(3) of the VEA required the Tribunal to be reasonably satisfied that Mr Kowalski’s GORD was defence-caused only if:

(a) the material before the tribunal raised a connection between that disease and some particular service rendered by him; and
(b) there is in force an SoP;

that upholds the contention that his disease is, on the balance of probabilities, connected with that service.

The Tribunal found that no such connection was raised, based on specialist evidence from two gastroenterologists.  The Court indicated that the primary Judge correctly concluded that the Tribunal was entitled to make such a finding of fact, and no error of law had been shown on the part of the Tribunal in reaching that finding of fact.

SoP criteria

The Tribunal proceeded to make a finding that the relevant factors in the GORD SoP were not, in any event, satisfied on the evidence.  The Court noted the Tribunal did not ignore undisputed evidence (as alleged by Mr Kowalski), and found the primary Judge did not err in concluding the Tribunal had correctly rejected the “reasonable hypothesis” test and had correctly construed and applied ss 120(4) and 120B(3) of the VEA and the GORD SoP.

Estoppel issue

Mr Kowalski argued at the Tribunal that as the Commission had not appeared before the Board, it was not entitled at the Tribunal to put in issue findings of fact which the Board had made in his favour, referring to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.  He also argued (to the same effect) that the nature of the proceeding before the Tribunal was an appeal in the strict sense.  The Tribunal rejected both of these arguments and the primary Judge dealt expressly only with the latter of these two arguments.  The Court noted both the Tribunal and primary Judge relied on Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409, which set out the nature of the Tribunal’s review:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

The Court concluded that Mr Kowalski’s argument was completely at odds with the Tribunal’s review function as described in Drake, and the right to seek tribunal review under section 176 of the VEA is unaffected by anything the Commission has said or not said before the Board.

Formal decision

Mr Kowalski’s appeal was dismissed with costs.

Editorial Note

In this case the Court dealt with two preliminary issues concerning amendment of the notice of appeal and introduction of new evidence, before examining the specific grounds of appeal.  The Court’s discussion of the Tribunal’s review function is applicable to all reviews before the Tribunal.

All Practice Notes