Gibson v Repatriation Commission

THE COURT 1 The judgment from which this appeal comes was handed down in a proceeding by way of review of - a so-called appeal from - a decision of the Administrative Appeals Tribunal. That decision had been given in relation to a claim for a disability pension and medical treatment under the Veterans' Entitlements Act 1986 (Cwth). The foundation of the appellant's claim is a congenital condition known as multiple osteochondromatosis, which causes a proliferation of bony growths on the bones and may, it was accepted, be involved also with osteoarthritis. The appellant's case was that his condition was relevantly aggravated by his military service. That case, presented on his behalf by his mother, Mrs Gatell-Gamir, both in the Tribunal, before the learned judge and on the appeal, with great pertinacity, was substantially, but not wholly, successful in the Tribunal. Problems with the appellant's hip, related both to his osteochondromatosis and to his osteoarthritis, were held to be compensable; but problems with his knees were not. 2 In seeking to set aside the Tribunal's rejection of his claims for his knees, the appellant relied on a denial of natural justice which was said to have occurred at the Tribunal hearing. The circumstances, as well as the learned trial judge's reason for rejecting the point, are conveniently stated in his Honour's words, as follows: "After hearing from the advocate for the Commission, the Tribunal adjourned to consider what had been put to it. After thirty four minutes the Tribunal resumed. The Presiding Member said: '…We have been discussing the position in relation to the statement of principles regarding the condition multiple osteochondromatosis, and on the view that we have come to on that, we are going to find for the applicant, so we don't really need to hear from you, Mrs Gatell-Gamir.' Mrs Gatell-Gamir is Mr Gibson's mother and was his advocate before the Tribunal. When she asked the Presiding Member whether he accepted the claim he said: 'I do, yes, we do…the position is that on the statement of principles number two of 1999 in relation to multiple osteochondromatosis, we are reasonably satisfied on the evidence that the factor referred to in paragraph 5(a) of that statement of principles, namely, the inability to obtain appropriate clinical management for the condition multiple osteochondromatosis does exist in this case, or was satisfied in this case.' Mr Gibson contends that he was wrongly deprived of the opportunity to make closing submissions to the Tribunal on the wider issue than multiple osteochondromatosis in relation to his hips. He was unable however, in my opinion, to point to any evidence or cogent argument which would have led the Tribunal to a different outcome in relation to the condition of his knees. The relevant evidentiary material has been fully canvassed before the Court. Mr Gibson could not generally complain of the want of a hearing given that for two days he had been represented before the Tribunal putting to it evidence in support of his claim. It would appear that the Tribunal's closing remarks understandably led Mr Gibson's mother to the view that there was no further opportunity to make oral submissions on the issue of the knees. Notwithstanding that, I am satisfied that taken as a whole the process did not involve a breach of the rules of natural justice in the sense of any real procedural injustice. The content of the requirements of natural justice will vary from time to time and case to case. In the present case, having regard to the hearing that had preceded the Tribunal's determination, the involvement of Mr Gibson and his representative in that hearing and the factual material that was before the Tribunal it could not be said, in my opinion, that he was unfairly denied the opportunity to put his case. This ground of appeal must also fail." 3 Having had the benefit of the frank submissions of counsel for the Commission, and considered the relevant portion of the transcript, we are unable to accede to this way of disposing of the matter. It seems that the question of the appellant's knees slipped out of attention, at the hearing in the Tribunal. The issues as formulated by counsel for the Commission for the Tribunal's consideration did not include any reference to the appellant's knees, although his mother had called expert evidence in respect of them, as well as the hip. For example, a Dr Owen, a specialist physician asked about the exercise runs undertaken by the appellant during his service, testified: "It is highly probable from his story, there's no doubt he damaged his knees as he had swollen knees for 2 or 3 days and they've kept on getting swollen and in the presence of any abnormal joint which he has because the right hip joint is malformed and he is extremely likely to have irritated that with excessive weight-bearing activities." It may be (but there is reason to doubt this - see Repatriation Commission v Keeley [2000] FCA 532; Ogston v Repatriation Commission (1999) 86 FCR 578) that the appellant would have to satisfy, in respect of osteochondromatosis, a requirement expressed in a Statement of Principles with respect to that condition in the following terms: "The fact that must exist … is … inability to obtain appropriate clinical management for multiple osteochondromatosis." This was assumed to be necessary, and the Tribunal held the requirement satisfied as regards the hip on the ground that it had not been x-rayed when it should have been, with resultant failure of appropriate clinical management. But, if so, why is not the continuance of a degree of exercise sufficient to produce symptoms in the knees also such a failure? In any case, once the hip was accepted, it was open to Mrs Gatell-Gamir to argue that the natural favouring of a painful and mal-aligned hip might have thrown a special strain on the knees, and damaged them. In our opinion, it could not be said that there was no argument to be put in respect of the knees with any prospect of success. 4 The plain fact is that Mrs Gatell-Gamir was effectively prevented from making her submissions in favour of a finding of liability for the knees, in addition to the liability for the hip. If the argument appeared weak in that respect (and we have reached no view about that), it was all the more important that she be heard, in case she could show that the appearance was false. It has repeatedly been said that a hearing is never more necessary than when a Tribunal is in danger of feeling it would be useless: Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71. Accordingly, the appellant was denied natural justice. 5 But the real ground on which he was nevertheless denied a remedy was because it was held he had not shown an adequate hearing would have made a difference. This is to reverse the normal rule for situations where an error of law has been shown in an administrative proceeding, or at least to impose a burden an applicant does not have to bear. The true rule is that the decision will be set aside "if an error of law is shown that could have affected the outcome of the case": Commonwealth v Human Rights and Equal Opportunity Commission (X's Case) (1998) 76 FCR 513 (citations omitted); and, on appeal, X v Commonwealth of Australia (1999) 167 ALR 529 at 531, 554-555. 6 In relation to a Court proceeding, the High Court laid down the rule, for cases where a party has been denied the opportunity to put his case fully, in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145: "[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made … at the first trial. … Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference." Their Honours went on (at 146) to characterize a case where the appeal would fail as one where "a reasonable opportunity to present submissions on the issue … could have made no possible difference to the result". 7 The present matter involved very complex medical evidence, much of it given by a range of Australian and Spanish specialists. We do not think it is possible to be satisfied that a reasonable opportunity to present the appellant's full case could have made no possible difference, and we think the Tribunal, when it hears a matter such as this, comes under the same rule as a court. Furthermore, the denial of natural justice was an error of law that, at the least, could have affected the outcome of the case. 8 For these reasons, the appeal must be allowed with costs; the order below dismissing the application to the Court must be set aside; and in lieu thereof it should be ordered that, in so far as the decision of the Administrative Appeals Tribunal fails to decide that the conditions claimed by the appellant in respect of his knees, in particular osteochondromatosis and osteoarthritis of the knees, are suffered by the appellant and are defence-caused within the meaning of s 70 of the Veterans' Entitlements Act 1986, those matters be remitted to the Tribunal for decision according to law, and that the respondent pay the appellant's costs of the application to the Court. 9 Mrs Gatell-Gamir sought to raise, by notice of motion, a question whether the Court could order payment of particular medical expenses. The decision of the Tribunal awards proper medical expenses, that is, in respect of the hip, but refers the quantification of them to the Commission. The Court was assured by counsel for the Commission that it has decided to review the decision of which complaint is made. The Court unhesitatingly accepts that assurance. In any case, the proper remedy, if a dispute persists, cannot be by notice of motion, and certainly not in the Full Court. The motion will be dismissed but, in the circumstances, with no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.