Kowalski v Military Rehabilitation and Compensation Commission

Kowalski v Military Rehabilitation and Compensation Commission - [2010] FCAFC 10 - FCAFC 2010 case summary — Zoe

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REASONS FOR JUDGMENT 1 Mr Kazimir Kowalski began his service with the Australian Army on 20 April 1972. He served until 19 October 1973. On 3 August 1973 he filed a claim with the Commissioner for Employees' Compensation for compensation for a duodenal ulcer which he said had been caused by stress experienced during his work in the Army. On 4 April 1974, a delegate of the Commissioner accepted liability for this condition pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth)("the 1971 Act"). Mr Kowalski was paid compensation during nine periods between 1974 and 1981. 2 In later years Mr Kowalski suffered a number of medical conditions. On 27 April 2004, he filed a claim for Rehabilitation and Compensation with the Military Compensation and Rehabilitation Service ("MCRS"). Mr Kowalski claimed that he suffered from obesity, Type 2 diabetes, a duodenal ulcer, major depression and generalised anxiety which culminated in a heart attack and open heart surgery and that all of these conditions were the result of his service in the Army. He also claimed medical expenses, incapacity payments, permanent impairment and non-economic loss as a result of psychological and/or psychiatric illness. 3 The Military Rehabilitation and Compensation Commission ("the Commission") disallowed each of Mr Kowalski's claims for compensation. The Commission also disallowed Mr Kowalski's claim for medical expenses and incapacity payments. A reviewing officer revoked this determination and decided that a decision on Mr Kowalski's claim for medical expenses and incapacity payments should be delayed until such time as liability for an illness suffered by Mr Kowalski was accepted by the Commission. Mr Kowalski applied to the Administrative Appeals Tribunal ("the Tribunal") for review of these decisions. The Tribunal affirmed the Commission's decisions disallowing Mr Kowalski's claims for compensation. It also revoked the reviewing officer's decision to delay making the determination on Mr Kowalski's claim for medical expenses and incapacity payments and affirmed the Commission's decision to deny this aspect of Mr Kowalski's claim. 4 By notice of appeal dated 27 January 2009, Mr Kowalski has purported to appeal to this Court. As presently framed, no question of law is disclosed in the notice of appeal. The vast majority of the questions contained in the notice of appeal are incomprehensible and vexatious. The Commission accepted that it may be possible to discern two questions of law arising from the Tribunal's decision. For the reasons which follow the appeal must be dismissed.

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Factual BACKGROUND 5 Mr Kowalski was called up for service in the Australian Army in 1967. He was concerned and stressed by the prospect of having to serve in Vietnam and undertook further study to avoid that consequence. On 18 August 1971 the then Prime Minister announced in Parliament that the Government had decided to withdraw all remaining combat forces from Vietnam and that most of the forces would be withdrawn by Christmas 1971. On 20 April 1972 Mr Kowalski joined the Australian Military Forces. He served until 19 October 1973. He did not serve outside Australia. For the first three months of his service, Mr Kowalski received basic training and trade training. He then served as a regimental and mechanical draftsman in the Electrical Mechanical Engineer Workshop. Mr Kowalski was required to work extremely hard, especially after the Commonwealth Government ended conscription in December 1972. On 14 June 1973 a medical officer recorded that Mr Kowalski was "pushed with job". 6 On 1 August 1973 Mr Kowalski was diagnosed with a duodenal ulcer. The symptoms had commenced in May 1973. On 7 August 1973 Major Fenton, Mr Kowalski's Commanding Officer, recorded that Mr Kowalski had "been placed under great stress & over employed since December 1972". On 20 August 1973, following the diagnosis of the duodenal ulcer, a medical officer, Flight Lieutenant Wilson, recorded that Mr Kowalski was "under stress at work". On that day Mr Kowalski was prescribed the drug "Librax", which he took for the remainder of his service in the Army and after his service had concluded. Librax was a drug which contained properties for the treatment of stress and thus, as it was then thought, for peptic or duodenal ulcer. Mr Kowalski suffered from the effects of his duodenal ulcer between 1974 and 1981. As noted earlier, on 4 April 1974, a delegate of the Commissioner for Employees' Compensation determined that there was a liability under the 1971 Act for Mr Kowalski's duodenal ulcer. Between 1974 and 1981 Mr Kowalski claimed, and was paid, benefits under the 1971 Act for periods he was unable to work, and for the medical expenses he incurred, as a result of his ulcer. 7 Following his discharge from the Army, Mr Kowalski worked with Chrysler Australia Pty Ltd and Mitsubishi Motors Australia Limited. On 24 August 1984, he was diagnosed as suffering from hypertension, for which he was prescribed medication. In 1989 Mr Kowalski ceased taking his medication on his own initiative. On 9 May 1989, whilst working at Mitsubishi, Mr Kowalski slipped in a pool of oil and suffered a back injury. He returned to work but shortly after claimed that he was unable to continue working. Mr Kowalski brought a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). 8 On 16 August 1991, there was an incident at Mitsubishi and Mr Kowalski was threatened with dismissal. He broke down in front of his accusers. The incident caused Mr Kowalski to have a significant psychiatric reaction. He did not work at Mitsubishi again. On 26 December 1997 Mr Kowalski suffered a heart attack. In January 1998 he underwent major open heart surgery. Subsequently, Mr Kowalski suffered from obesity and Type 2 diabetes. 9 Between 1989 and 2004 Mr Kowalski brought numerous claims against Mitsubishi at common law and pursuant to the relevant legislation. On 27 October 1998, he entered into a Heads of Agreement with Mitsubishi, pursuant to which he agreed not to institute any further legal proceedings against Mitsubishi and received $200,000 from the company in final settlement of any claims he may have had against it. Despite the settlement Mr Kowalski brought further claims against Mitsubishi. By June 2004 all of Mr Kowalski's claims against Mitsubishi had been dismissed. On 19 April 2005 Mr Kowalski was declared to be a vexatious litigant: see Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. 10 Between 1989 and 2004, Mr Kowalski consulted a number of medical practitioners. Following the incident on 16 August 1991 he consulted Dr Jagermann, a psychiatrist. He saw Dr Jagermann regularly until 1998. In 1991, at the request of Mitsubishi, he was assessed by Dr Scanlon, who was also a psychiatrist. Dr Cheung, his general practitioner, saw Mr Kowalski in 1995 and, again, from 1998 to 2005. In 1998 Mr Kowalski was seen by Dr Sangster and Dr Aylward, who are both cardiologists. In August 1998 Professor McFarlane interviewed Mr Kowalski for the purpose of providing a medico-legal report. On 7 May 1999 Dr Hetzel, a gastroenterologist, conducted an endoscopy on Mr Kowalski. From 2003 to 2005, Mr Kowalski consulted Dr Thompkins, a psychiatrist. Mr Kowalski saw Dr Thompkins on approximately 50 occasions. 11 On 27 April 2004, Mr Kowalski filed a claim for Rehabilitation and Compensation with the MCRS. The claim form asked a number of questions. In answer to the questions concerning his injury, disease or illness Mr Kowalski gave the following responses: "For what injury, disease or illness are you claiming? "MAJOR DEPRESSION, GENERALISED ANXIETY & HEART ATTACK & OPEN HEART SURGERY" What part of your body is affected? E.g., left arm, neck, lower back "MIND AND HEART" When did the injury happen or when did you first notice the disease or illness? "16/8/91" On what date did you first receive medical treatment for this injury, disease or illness? "16/8/91" … Have you ever suffered a similar injury, disease or illness in the past? No "ü" Have you ever claimed compensation before for a similar injury, disease or illness? Yes "ü" Where did the injury happen? "ü" At work - working in a normal workplace … "ü" Other - please specify "AT A PLACE TO SEEK OR TO RECEIVE COMPENSATION FOR AN ACCEPTED COMPENSABLE INJURY(IES) (SEE ALSO S 30(3)(e) OF THE WRCA 1986 (SA) WORKERS REHABILITATION AND COMPENSATION ACT" What task was being performed when you sustained the injury? e.g., jacking up a Land Rover to change a tyre, cleaning a rifle, playing sport. "PREPARING WRITTEN SUBMISSIONS IN RESPECT OF MY CLAIMS FOR COMPENSATION" How did the injury occur? e.g., the jack slipped on loose gravel causing the Land Rover to fall on my leg; the rifle discharged and injured my right big toe. "STRESS & GENERALISED ANXIETY & HIGH BLOOD PRESSURE OVER A LONG PERIOD OF TIME SINCE AT LEAST 1982." … What aspects of your employment do you think contributed to your disease or illness? (Please attach separate statement if necessary). "DEFENCE CAUSED - STAFF SHORTAGES, STRESS, PRESSURE OF WORK, UNREASONABLE TIMES ALLOCATED TO COMPLETE TASKS AT WORK, STRESS OF BEING CALLED UP FOR NATIONAL SERVICE, STRESS OF THINKING ABOUT BEING SENT TO VIETNAM, STRESS OF BEING CHARGED FOR GOING HOME TO SEE MY WIFE WHO WAS SICK, STRESS THAT CAUSE MY DUODENAL ULCER, STRESS OF BEING THREATENED WITH DISMISSAL FOR BEING ABSENT FROM WORK AT THE WORKCOVER REVIEW PANEL, HIGH BLOOD PRESSURE"…". 12 Mr Kowalski's claims for compensation were assessed by the Commission pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act"). Section 62 of the SRC Act provides that the Commission may cause a determination to be reconsidered. Where a determination is reconsidered it may be affirmed, revoked or varied. 13 Four reviewable decisions were made in relation to Mr Kowalski's claims for compensation: · On 10 December 2004, the Commission disallowed Mr Kowalski's claim for compensation for "major depression and generalised anxiety, heart attack and open heart surgery" and "obesity and Type 2 diabetes". This primary decision was affirmed by the Commission on 22 April 2005 ("the first decision"); · On 22 June 2005, the Commission determined that Mr Kowalski was not entitled to receive incapacity benefits in respect of the duodenal ulcer. This primary decision was affirmed by the Commission on 11 November 2005 ("the second decision"); · On 6 May 2005, the Commission determined that Mr Kowalski was not entitled to compensation for permanent impairment caused by his duodenal ulcer. This primary decision was affirmed by the Commission on 11 November 2005 ("the third decision"); and · On 22 May 2006, the Commission denied Mr Kowalski's claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or psychiatric illness. On 30 June 2006, a reviewing officer revoked the Commission's determination and determined that a decision on Mr Kowalski's claim should be delayed until such time as liability to pay compensation under s 14 of the SRC Act in respect of the claim, which was the subject of the first decision, was accepted, ("the fourth decision"). 14 Mr Kowalski applied to the Tribunal for a merits review of each of the four decisions.

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The TRIBUNAL's Decision 15 The Tribunal noted that its task was to determine whether the decision which was arrived at was the correct or preferable decision on the material before it: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. It was necessary for the Tribunal to determine whether any of Mr Kowalski's medical conditions were caused or contributed to by his service in the Army. 16 The Tribunal noted that Mr Kowalski was "a most difficult party" who had been declared to be a vexatious litigant as a result of his protracted litigation history seeking workers' compensation benefits from Mitsubishi. It continued: "None of that means his claims should be dismissed or even discounted. His psychiatric condition and his personality traits should not disadvantage him in a consideration of a review of the impugned decisions. However, his blinkered view of his own case and lack of objectivity affects the reliability of his evidence and means that his evidence insofar as it is relevant must be treated with extreme caution". 17 The Tribunal accepted Mr Kowalski's evidence only where it was corroborated by the evidence of another witness who it found to be reliable and credible or through documents which were themselves reliable or where Mr Kowalski's evidence appeared to the Tribunal to be self-evidently reliable. Where Mr Kowalski's evidence conflicted with that of another witness whom the Tribunal found to be credible and reliable, the Tribunal rejected Mr Kowalski's evidence. 18 At the request of the Commission, Mr Kowalski was, in 2005, seen by Professor Goldney, a psychiatrist, and, in 2006, by Dr Reid, a consultant physician. The Tribunal found Dr Thompkins to be an unreliable witness who lacked the objectivity and detachment expected of an expert witness. It found that Dr Thompkins' evidence was given in an attempt to support Mr Kowalski's claims. Where his evidence conflicted with the evidence of Professor Goldney and/or Dr Reid, the Tribunal preferred the evidence of Professor Goldney and Dr Reid. 19 The Tribunal accepted that, prior to the Prime Minister's announcement in August 1971, Mr Kowalski was concerned and stressed by the prospect of having to serve in Vietnam and sought to avoid that occurring. However, prior to 20 April 1972, Mr Kowalski was not in any form of employment for which the Commission could be liable and, therefore, any stress he suffered during this period was non-compensable. The Tribunal found it "inconceivable" that Mr Kowalski was not aware of the Prime Minister's announcement and found that, when Mr Kowalski entered the Army on 20 April 1972, he knew that he would not have to serve in Vietnam.

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Mr Kowalski's present psychiatric condition 23 The Tribunal accepted Professor Goldney's opinion on Mr Kowalski's present psychiatric condition. It found that Mr Kowalski had a depressive condition, being either chronic dysthymia or major depressive disorder. The Tribunal found that Mr Kowalski suffered from double depression and marked obsessive compulsive personality traits. 24 The Tribunal also found that, during Mr Kowalski's proceedings against Mitsubishi between 1989 and 2004, he had never claimed that his military service had contributed to his ill-health. At no time prior to his bringing the claim on 27 April 2004 had Mr Kowalski told any of the doctors whom he had consulted that he had been in military service or that, as a result of his military service, he had suffered stress, anxiety or duodenal ulcer. The Tribunal found that this was deliberate: "42. All of the doctors whom [Mr Kowalski] consulted were led to believe that his psychiatric state and his physical complications were as a result of his employment with Mitsubishi. It was not until he exhausted every avenue in relation to any claim that he could make against Mitsubishi that he asserted that he was entitled to compensation as a result of his military service". The Tribunal later stated: "249. … [Mr Kowalski] made a conscious and deliberate decision not to tell his medical practitioners of his history in the Army because his then claim was against Mitsubishi. He decided to not advise his medical practitioners and examining medical practitioners that he had suffered a duodenal ulcer whilst serving in the Army. He also deliberately decided not to inform those medical practitioners that he had suffered any stress whilst serving". 25 The first complaint that Mr Kowalski made of any stress in relation to his Army service, after seeing Dr Gilmore in the 1970s, was made to his general practitioner Dr Cheung, probably in October 2004. At that time, he complained of anxiety which he suffered whilst in the Army, a complaint which he had never made to any other medical practitioner at any time prior to making that complaint to Dr Cheung. 26 The Tribunal accepted the evidence of Dr Cheung and Dr Jagermann as to the cause of Mr Kowalski's stress and anxiety. Dr Cheung was of the opinion that all of his conditions "secondary to stress and the anxiety depression itself had been caused by his ongoing dispute with Mitsubishi relating to his WorkCover claim" and that, at the time he suffered his heart attack on 26 December 1997, "the only identifiable risk factor was his hypertension and anxiety depression relating to his WorkCover claim. No other risk factors were identified at the time". In 1991, Dr Jagermann had diagnosed Mr Kowalski as suffering from dysthymia and a "pathologically intense" state of anxiety. Dr Jagermann considered that these conditions were a result of an incident on 16 August 1991, and that Mr Kowalski's psychiatric condition began at that time. In Dr Jagermann's view those conditions had "a direct and convincing line of development and evolution" between 9 May 1989 (the date of Mr Kowalski's back injury) and 16 August 1991 (when he was threatened with dismissal from employment). 27 Mr Kowalski relied on a copy of a military medical assessment form, dated 25 September 1973, which had the words "MAJOR DEPRESSION" written on it. He submitted that this provided evidence that he had been diagnosed as suffering from depression, whilst in the Army. The Tribunal rejected that contention. The Tribunal did not accept that the words "MAJOR DEPRESSION" were written on the document at the time it was created or at any time near the time at which it was created. It did not accept that the words were written by a medical practitioner or that the words reflected any medical practitioner's opinion of Mr Kowalski's state of mental health at any time whilst he was in the Army. It gave three reasons for coming to this conclusion: "82. … First, there is a version of the document which does not have those words on it. That would mean that the words were written on the second version at a later time and after the original had been copied. Indeed, as we have said, the words are written outside the margin of the original document. The words must have been written on a copy. There would not have been any need for a copy of this document at the time it was created. Secondly, if it did represent a considered opinion of a medical practitioner the words would have been written on the original document. There would be no point in making a copy upon which to write the words and at the same time leave the original unendorsed. Thirdly, the term "major depression" was not in use in Australia when this document was created. The words, Professor Goldney said, and we accept, did not enter the psychiatric literature until the mid to late 1970s. The expression was not used in 1973 in the diagnostic systems". 28 The Tribunal found that there was no evidence that Mr Kowalski suffered from major depression or any form of depression whilst in the Army. The Tribunal accepted that Mr Kowalski was under stress at work but found that he did not suffer anxiety. It concluded that Mr Kowalski's National Service did not contribute to the cause of any psychiatric illness or personality disorder from which he now suffered. Importantly, it found that Mr Kowalski's psychiatric illnesses were the result of the events which occurred between 1989 and 2004.

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(a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first. 292. Mr Kowalski first sought medical treatment for major depression on or shortly after 16 August 1991; for a heart attack on 27 December 1997; for open heart surgery on 6 January 1998; and for Type 2 diabetes on or about June 2004. He probably sought medical treatment for his obesity at or about June 2004 but, in any event, years later than 1988. The [Commission's] contention must therefore be accepted. It follows that the date of the injury for the purpose of this claim ought to be assessed by reference to the SRC Act. None of the matters of which [Mr Kowalski] complains occurred prior to the enactment of the SRC Act. 293. Section 14 of the SRC Act controls a party's right to compensation. The right to compensation arises in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. "Injury" is defined in s 4 to mean: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. 294. "Disease" is defined also in s 4 to mean: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation. 295. If the claimant claims to have suffered an injury under the SRC Act the applicant must establish that the injury arose out of or in the course of the employee's employment. 296. If, on the other hand, a party is seeking to be compensated for a disease "the applicant must establish that the disease was contributed to in a material degree by the employee's employment by the Commonwealth ...". 297. [Mr Kowalski] is, in this claim, claiming that he suffered disease. He therefore must establish that the ailment was contributed to in a material degree by the employee's employment". 32 The Tribunal found that Mr Kowalski's employment with the Defence Force "did not contribute in any degree, let alone a material degree, to the diseases of which the applicant claims compensation". In those circumstances, the Tribunal found that it did not need to consider what aspects of Mr Kowalski's employment might have made a material contribution to the contraction of the disease: see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323; Comcare v Canute (2005) 148 FCR 232 at 248-9. The Tribunal accepted that Mr Kowalski had proved that he was under stress at work. It found, however, that there was not "a scintilla of evidence to establish that that stress at work in any way contributed to any of the diseases of which he complains, let alone that the stress contributed materially". The Tribunal thus affirmed the first decision. S2005/308 33 In S2005/308, Mr Kowalski sought a review of the second decision, which denied his claim for incapacity benefits in respect of a duodenal ulcer. The Tribunal found that the undisputed evidence was that Mr Kowalski's duodenal ulcer had been cured and he was free of that disease as at 1 July 1999. The Tribunal said that there "is no evidence at all that Mr Kowalski suffers from a duodenal ulcer. For that reason alone, it was appropriate to reject that claim". The Tribunal affirmed the second decision. S2005/309 34 In S2005/309, Mr Kowalski sought a review of the third decision, which denied his claim for permanent impairment compensation in respect of a duodenal ulcer. For the reasons outlined in relation to S2005/308, the Tribunal rejected Mr Kowalski's claim for compensation. The Tribunal found that there were two further reasons why Mr Kowalski was not entitled to compensation for a permanent impairment. First, even if Mr Kowalski did suffer from a duodenal ulcer, if the impairment became permanent prior to the commencement of the SRC Act (which commenced on 1 December 1988), ss 124(1A) and 124(2) of the SRC Act applied, with the result that the claim was governed by the 1971 Act. Section 39 of the 1971 Act provided that no lump sum was payable for a permanent impairment of the digestive system. Secondly, if Mr Kowalski did suffer from a duodenal ulcer, and the duodenal ulcer became a permanent impairment after the enactment of the SRC Act, Mr Kowalski was still not entitled to compensation under the SRC Act because it had been determined that the degree of permanent impairment was less than 10%: s 24(7). The Tribunal affirmed the third decision.

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Appeal to this Court 37 Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides for a right of appeal from the Tribunal "on a question of law". Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal to state "the question or questions of law to be raised on the appeal". 38 In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44, "but also the subject matter of the appeal itself …" (emphasis added). 39 It is, therefore, essential, in appeals brought under s 44 of the AAT Act, that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "…O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added). 40 The notice of appeal filed in this Court contains 57 purported questions of law. The vast majority of the "questions of law", which are said to be raised in the present appeal are prefaced by the words "Did the Tribunal err in law and was it bias (sic) at law" or "Did the Tribunal err in law and was it bias (sic) at law and did it pervert the course of justice". In each case the question was completed at the utmost level of generality. The questions did no more than invite an inquiry into whether the Tribunal had committed some error of law in reaching its decision. Mr Kowalski sought to impugn the decision of the Tribunal by pointing to particular factual findings and contrasting these with his view of the facts. There is no error of law simply in making a "wrong" finding of fact: see Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. As framed these are not questions of law and are not rendered such by resort to a formula of the kind adopted in the prefatory words of each question: see Lambroglou at 527. 41 Nevertheless, the Commission submitted that the notice of appeal could be construed as disclosing two questions of law: · Whether Part X of the SRC Act operates such as to have required the Tribunal to determine the Commission's liability to pay compensation to Mr Kowalski by reference only to the relevant provisions of the 1971 Act? · Whether a duty to accord Mr Kowalski procedural fairness is to be found within s 39 of the AAT Act or otherwise implied by the AAT Act, and, if so, was procedural fairness afforded to Mr Kowalski? 42 The second question was broken down into a number of subsidiary questions: · Did the Tribunal exhibit actual and/or apprehended bias in hearing and determining the applications before it? · Did the Tribunal, in making a number of rulings during the course of the hearing concerning the admissibility of evidence, and/or allowing questions to be asked of witnesses, the manner in which the hearing was conducted (inquisitorial versus adversarial), and in making findings of fact, deny Mr Kowalski an opportunity reasonably to present his case? · Did the Tribunal, in making findings of fact, do so against the weight of the evidence? · Whether the answer to any of these questions meant that the Tribunal had perverted the course of justice? 43 The Court heard submissions from the parties on these questions and, with some misgivings, has decided to deal with them. We accept that the first question arises and should be answered. We are prepared to deal with the second question because Mr Kowalski, in his notice of appeal and in oral and written submissions to the Court, made a series of outrageous and unsubstantiated allegations which reflected on the integrity of the Tribunal members who dealt with his appeal. We deal with these matters lest our silence be construed as acceptance of these allegations.

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Submissions 44 Mr Kowalski claimed that the Tribunal erred by making its decision based on the SRC Act instead of the 1971 Act. He maintained that all of his illnesses were the direct result of the stress he suffered in the Army. He claimed that, as part of the treatment for his duodenal ulcer, he was placed on a high fat and high cholesterol diet, and it was as a result of this diet that he became obese. His obesity contributed to his high blood pressure or hypertension in the early 1980s. His high fat and high cholesterol diet also caused or contributed to his dyslipidemia or high cholesterol, and his high fat and high cholesterol diet and his obesity caused or contributed to his diabetes. Mr Kowalski maintained that his dyslipidemia and high blood pressure or hypertension also caused or contributed to his coronary artery disease, which in turn caused or contributed to the heart attack in December 1997 which required him to have open heart surgery in 1998. 45 The Commission submitted that the Tribunal had not erred in law in determining that its liability to pay compensation to Mr Kowalski was governed by the SRC Act. It contended that the Tribunal fixed on the applicable legislation by reference to the time at which each injury, disease or illness occurred. The Tribunal had applied the relevant provisions of the SRC Act which governed the issues. The Tribunal had also correctly relied on binding judicial authority on the circumstances in which the 1971 Act is to be applied. 46 The Commission maintained that, in S2005/112, the relevant date of injury, where the injury was a disease or the aggravation of a disease, is deemed, by s 7(4) of the SRC Act, to be the date on which the employee first sought medical treatment, or the disease or the aggravation of the disease resulted in the incapacity for work of the employee, or the impairment of the employee, whichever happened first. On the facts as found by the Tribunal, any injury, disease or illness was sustained by Mr Kowalski after the commencement of the SRC Act, on 1 December 1988. The liability of the Commission to pay compensation in respect of the claim was, therefore, to be determined by reference to the SRC Act: see Comcare v Levett (1995) 131 ALR 645 at 649-50. The Tribunal correctly found that, as Mr Kowalski claimed that he suffered "disease", in order for compensation to be payable under the SRC Act the Tribunal had to be satisfied that an ailment, as defined by s 4 of the SRC Act, "was contributed to in a material degree by his employment by the Commonwealth". The Tribunal found that Mr Kowalski's employment with the Defence Force did not contribute "in any degree, let alone a material degree, to the disease of which Mr Kowalski claimed compensation". In those circumstances, the Tribunal relied on Treloar and held that it was not necessary for it to consider what aspects of Mr Kowalski's employment might have made a material contribution to the contraction of the disease. 47 The Commission submitted that, in S2005/308, the Tribunal had found that the duodenal ulcer suffered by Mr Kowalski was contracted during the currency of the 1971 Act. The Tribunal accepted the undisputed evidence of Dr Hetzel and Dr Reid that Mr Kowalski's ulcer had been cured and that Mr Kowalski had been free from that disease since July 1999. There was no evidence that Mr Kowalski continued to suffer from a duodenal ulcer. As a result of this finding, the Tribunal had correctly determined that it did not need to make an assessment as to whether compensation was payable under Part II Division 3 of the SRC Act. It did not err in law in determining that the Commission had no liability to pay Mr Kowalski compensation for a duodenal ulcer - subject to Part X, the SRC Act applies in relation to any injury suffered by an employee "whether before or after the commencing day": see s 124(1). 48 Further, the commission submitted that in relation to S2005/309, the Tribunal rejected Mr Kowalski's claim because the undisputed evidence of Dr Hetzel and Dr Reid that Mr Kowalski's ulcer had been cured and that Mr Kowalski had been free of that disease since July 1999. The Commission submitted there was clear evidence to support this finding. 49 Finally, in relation to S2006/185, the Tribunal had determined that the Commission was not liable to pay Mr Kowalski compensation in respect of "major depression and generalised anxiety". The Commission submitted that, as a result, the claim for medical expenses, incapacity payments, permanent impairment and non-economic loss related to these alleged conditions had to fail.

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Consideration 50 On 27 April 2004, when Mr Kowalski filed his claim in the Commission, the SRC Act was in force. The SRC Act commenced on 1 December 1988 and the 1971 Act was repealed on that same day: see s 139 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). Section 124(1) of the SRC Act provides: "(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after thecommencing day". 51 The commencing day is defined to mean the day on which Part X commences, which was 1 December 1988. Section 124 is found in "Part X - Transitional provisions, consequential amendments and repeals". Section 123A provides: "A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force". It is, therefore, necessary to determine whether Mr Kowalski suffered from any injuries and, if so, when the injuries were sustained, and which Act was in force at that time. The Tribunal made a number of findings of fact in relation to the various illnesses Mr Kowalski claimed to have suffered. It accepted that, as at the date of the Tribunal hearings (which occurred over a number of days between 2006 and 2008), Mr Kowalski suffered from major depression, heart problems, Type 2 diabetes and obesity. The Tribunal found that Mr Kowalski first sought medical treatment for major depression on, or shortly after, 16 August 1991; for a heart attack on 27 December 1997; for open heart surgery on 6 January 1998; for Type 2 diabetes in or about June 2004; and for his obesity probably at or around June 2004. Each of these dates fell after the SRC Act had commenced. The Tribunal found that "[i]t follows that the date of the injury for the purpose of this claim ought to be assessed by reference to the SRC Act. None of the matters of which [Mr Kowalski] complains occurred prior to the enactment of the SRC Act". 52 Mr Kowalski cannot impugn the factual findings in this Court purely on the basis that he disagrees with them. There is no doubt that the appropriate legislation to determine the dates on which Mr Kowalski sustained major depression, heart attack, open heart surgery, Type 2 diabetes and obesity was the SRC Act. Section 7(4) of that Act deems an employee to have sustained an injury, being a disease, or an aggravation of a disease to be the day on which the employee first sought medical treatment for the disease or aggravation or the day on which the disease or aggravation first resulted in the employee being incapacitated for work or he or she being impaired, whichever happened first. The Tribunal, therefore, correctly applied the SRC Act in dealing with Mr Kowalski's appeals. 53 In applying the SRC Act the Tribunal applied a definition of "disease" which appeared in the Act at the time at which Mr Kowalski's claims were made and assessed by the Commission, the time at which Mr Kowalski lodged his appeal with the Tribunal and during the early part of the hearings before the Tribunal. The relevant part of the Tribunal's reasons appears above at [31]. 54 The definition of "disease" was said by the Tribunal to appear in s 4 of the SRC Act. It did so until 13 April 2007. On that day the reference to "disease" in s 4 was changed to read: "disease has the meaning given by s 5B." Section 5B effected a number of important changes to the definition. One of those changes which is of present importance was the substitution of a requirement of "contribution to, to a significant degree, by the employee's employment" for the "material degree" requirement which had earlier applied. The term "significant degree" was defined in s 5B(3) to mean "a degree that is substantially more than material." These changes were effected by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), Schedule 1, items 5 and 11. 55 Although it appears that the Tribunal was not alerted to the amendments to the definition of "disease", it was not led into error. This was because the amending Act provided that the new definition of "disease" applied to ailments or aggravation of ailments suffered by employees on and after 12 April 2007. The date on which an employee could be said to suffer from an ailment was to be determined pursuant to s 7(4) of the SRC Act: see Schedule 1, item 41. Mr Kowalski alleged that the conditions from which he suffered had been contracted prior to 12 April 2007. The Tribunal was, therefore, as the Commission submitted, correct to apply the "material degree" test of disease. 56 In any event the Tribunal's finding that Mr Kowalski's employment in the Defence Force did not contribute in "any degree" to the onset of the diseases of which Mr Kowalski complained, led, inevitably, to an adverse finding regardless of which definition had been applied.

[20]

Did the Tribunal afford Mr Kowalski procedural fairness? 58 Mr Kowalski complained that he was denied procedural fairness because: · The presiding Deputy President was biased against him; · The proceedings were "adversarial" and not "inquisitorial"; · The Tribunal refused to allow Mr Kowalski to lead evidence he considered appropriate; · The Tribunal refused to allow Mr Kowalski to cross-examine Dr Reid, Professor Goldney and Dr Thompkins in the way that he wished; · The Tribunal constantly interrupted Mr Kowalski during his cross-examination of Dr Reid, Professor Goldney and Dr Thompkins; · The Tribunal refused to allow Mr Kowalski to tender a number of his affidavits as his evidence; and · The Tribunal relied on statements made by the Commission's legal advisors from the bar table, as opposed to unchallenged affidavits sworn by Mr Kowalski. As can be seen there is a good deal of overlap between many of these complaints. 59 The Court has carefully read the transcript of the hearing before the Tribunal. It has given particular attention to the passages to which Mr Kowalski referred in order to illustrate his complaints. Having done so we are satisfied that, far from depriving Mr Kowalski of a reasonable opportunity to present his case, the Tribunal went out of its way to ensure, insofar as it was able, that he was assisted to present his evidence and argument. 60 It is not necessary to refer to all of the matters on which Mr Kowalski sought to rely. Many of them were wholly lacking in substance. Some illustrations will suffice. 61 There were a number of occasions when the Tribunal disallowed certain questions which Mr Kowalski had put to witnesses in cross-examination. This occurred when questions asked were prolix, unintelligible or repetitive. In many of these instances, however, the Tribunal endeavoured to assist Mr Kowalski by reframing the questions so that they would be intelligible to the witness who then answered the rephrased questions. 62 At other points in the case Mr Kowalski was instructed by the Tribunal to cease pursuing lines of questioning which were either irrelevant or repetitive. These interventions were appropriate and were designed to ensure that time was not wasted by unnecessary questioning of witnesses. Mr Kowalski appeared to believe that he was at large in determining how to conduct his case. He was mistaken in this view and the Tribunal was entitled to confine him within the limits of relevance. The interruptions by the Tribunal were regular rather than constant. They were, nonetheless, justified. The moving party in these interventions was the presiding Deputy President. The suggestion that he thereby acted in such a way as to give rise to a reasonable apprehension of bias, much less actual bias, is unsustainable. At one point in his oral submissions Mr Kowalski was moved to submit that, when the Deputy President ruled that he was not entitled to ask particular questions, this amounted to a "perversion" of justice because the Deputy President "did not want to hear the answer". Mr Kowalski appeared oblivious to the fact that the question was framed in such a way that the answer could not have been helpful to the Tribunal. The attribution of unworthy motives to the Deputy President is objectionable and not supported by any evidence. At another point, Mr Kowalski made the outrageous allegation that the Deputy President was restricting the conduct of his case in order to "protect" a South Australian Supreme Court judge who had acted as counsel in one of the Mitsubishi cases in a South Australian court prior to his appointment to the bench. This allegation was unsubstantiated and had not been raised in the Tribunal in support of an application that the Deputy President should disqualify himself. 63 The affidavits which Mr Kowalski was not permitted to tender in evidence were argumentative in nature and were inadmissible. Despite this the Tribunal was prepared to, and did, permit him to rely on the affidavits as written submissions. He was not, therefore, prevented from relying on the material contained in them. 64 The Tribunal was entitled to receive and act on submissions made by the legal representative of the Commission in preference to the argumentative material in Mr Kowalski's affidavits if it was persuaded (as it was) that those submissions were correct. 65 Mr Kowalski complained that the Tribunal did not embark on a fact finding investigation into (i) why did Dr Wilson prescribed Librax if it was not in respect of "anxiety" and (ii) who wrote the words "MAJOR DEPRESSION" on the copy of the medical assessment form dated 25 September 1973. 66 Mr Kowalski had sought this information in an effort to support his argument that he had been diagnosed as suffering from psychiatric disorders at or shortly after the time of his military service. 67 The Tribunal was under no obligation to make Mr Kowalski's case for him. Nonetheless the Tribunal asked the Commission to make certain enquiries. As a result, the Commission tried, but failed to locate Dr Wilson so that he could explain why it was he prescribed Librax for Mr Kowalski. Enquiries were also made by the Commission in an effort to find out who had written "MAJOR DEPRESSION" on the medical assessment form. Those efforts proved fruitless. To this extent it may be said that the Tribunal acted in an inquisitorial manner. In other respects the hearings proceeded in a more or less conventional adversarial mode. This did not give rise to any denial of procedural fairness.

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Judgment (21 paragraphs)

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Legislation Cited (8)

Cases Cited (15)