Kowalski v Repatriation Commission

Federal Court of Australia|2009-07-30|Before: Besanko J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Administrative Appeals Tribunal ("the Tribunal"). The appeal to this Court is limited to an appeal on a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 2 The applicant, Mr Kazimir Kowalski, enlisted for National Service on 20 April 1972 and was discharged from the Army on 19 October 1973. On 6 March 2007, he lodged a claim for a disability pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"). The respondent, the Repatriation Commission, considered that the conditions the applicant was asserting were defence-caused were major depression with co-morbid anxiety, hypertension and ischaemic heart disease. The respondent rejected the applicant's claim. The applicant applied to the Veterans' Review Board for review of the respondent's decision. The Board decided to vary the decision under review by substituting diagnoses of depressive disorder and anxiety disorder for the previously diagnosed condition of major depression with co-morbid anxiety. The Board otherwise affirmed the decision under review. The applicant applied to the Tribunal for a review of the Board's decision. On 9 October 2008, Deputy President D G Jarvis affirmed the decision under review as varied by the Board.

The Tribunal's reasons 3 The Deputy President described the issues before him as being whether the conditions of depressive disorder, anxiety disorder, hypertension and ischaemic heart disease were defence-caused for the purposes of the Act. He noted that the applicant's service from 7 December 1972 until his discharge on 19 October 1973 was eligible defence service for the purposes of his claim. He noted that the parties were agreed that the diagnoses of depressive disorder and anxiety disorder were correct. 4 The Deputy President then set out a summary of the background facts. That summary is as follows: "The following background facts are derived partly from Mr Kowalski's evidence, and partly from the documentary material before me, including Army records, and were not disputed. Mr Kowalski was called up for National Service in or about 1967. He delayed the commencement of his National Service until he enlisted on 20 April 1972, by undertaking various courses of study. He undertook training at the Puckapunyal Army Camp, and remained in the Army until his discharge on 19 October 1973. He had worked as a draughtsman for Chrysler Australia before commencing his National Service. He and his wife were married in April 1970. He was depressed and anxious when he enlisted in the Army, as he was then separated from his wife; he missed her, and was concerned that she might have been left as a widow if he had been sent to Vietnam and killed in action. He said that he was not a violent person and was also troubled by constant thoughts of being sent to Vietnam either to kill people or to be killed himself. In addition, he was older than the majority of the other National Servicemen at Puckapunyal and had difficulty in doing some of the physical exercises, and was the only married person in his group. He said he hated his time in the Army. After completing three months at Puckapunyal he was posted to the Bonegilla Army Camp. He found this concerning, because he had come to Australia with his parents as a refugee from Nazi Germany when he was two years old, and they had lived at Bonegilla, and had told him about going there. He said that when he went there it was winter and freezing cold. He continued to miss his wife. After about six weeks at Bonegilla, he was told that he would be a draughtsman, and he was posted to the Amberley Air Force Base in Queensland. The nature of his work at Amberley changed after the change of government on 7 December 1972. The newly elected government had given a commitment during the election campaign to abolish National Service and to withdraw Australian troops from Vietnam. Mr Kowalski said that a number of National Servicemen at Amberley resigned from the Army immediately after the election. He had been working as one of three draughtsmen, and the other two resigned. Although he had also wanted to leave the Army then, he was persuaded by a superior officer to stay on, because he would then become entitled to the benefit of a war-service loan. He did stay on, but there was then a very substantial increase in his work load; he found that he was doing the work of three people. He was given unrealistic deadlines, and had to work during his lunch breaks. He was frequently rostered to do weekend pickets, but when he reported for duty, he would be told to go to the drawing office to catch up on work that he was behind with from the previous week. He resented this, because ordinarily soldiers who had been confined to barracks for disciplinary reasons would have done weekend pickets. He was also faced with a number of superior personnel all asking him to give priority to their work, and also had to interrupt his regular work with requests from officers to prepare invitation cards which were unrelated to his Army work. In addition, his working conditions were difficult, because his drawing board was too small and the drawing office was not air-conditioned. He was also criticised for not being a good draughtsman by officers who, he said, had no idea of the work he was doing. Mr Kowalski said that as a result of the pressures of his work, he became stressed, and he consulted a doctor at the base. According to an attendance and treatment card included in Mr Kowalski's service records, this occurred on 17 July 1973, and he complained of epigastric pain after food, and (apparently) that he had been experiencing this for the preceding four to five weeks. The card also indicates that his pain had been relieved by ant-acids, and that he was given Kolantyl Gel and Merbentyl…. The card records further relevant consultations on 30 July 1973, and on 1, 10, 20 and 24 August 1973. He had a barium meal, and this revealed that he was suffering from a duodenal ulcer. The notes of the consultation on 20 August 1973 indicate that he complained of night pain, and that he was under strain (or, according to an alternative interpretation of the doctor's handwriting, stress) at work. They also indicate that Kolantyl Gel was increased to 20 mls, and that he was prescribed Librax tablets three times daily and two at night. Mr Kowalski said that at the time of his discharge, he was given supplies of Librax which lasted until 1975. The doctor at the Base also put Mr Kowalski on a high fat diet which entailed his having milk and cheeses but not spicy or acidic foods. He could not remember whether he had been advised to increase his overall food intake. Mr Kowalski subsequently made claims for compensation against the Army which were accepted. A report dated 7 August 1973 by his superior officer includes a statement that in that officer's opinion, the injury arose out of employment, because Mr Kowalski had been placed under 'great stress & over-employed since December 1972 when with the cessation of National Service he was performing mechanical drafting duties where previously three personnel were employed', and the officer in charge, a Major Fenton, reported in August 1973 that the work program had been 'intense' since December 1972… In evidence, Mr Kowalski said that he could remember having night pain from his ulcer and having to regularly get up and have milk and cookies, but he could not be more precise as to when his night pain first started other than that it was in 1973. After Mr Kowalski was discharged from the Army he resumed employment with Chrysler Australia, which was later acquired by Mitsubishi Motors Australia. He was diagnosed with hypertension by his then GP, Dr Hughes, on 24 August 1984. He continued working at Chrysler/Mitsubishi until August 1991, when he had a nervous breakdown, and he has not worked since then. He suffered a heart attack in December 1997, and had open-heart surgery in January 1998. He was diagnosed with Type 2 diabetes on 30 June 2004. Dr Karl Jagermann, a psychiatrist, treated Mr Kowalski from 1991 until Dr Jagermann's death in 1998. According to the history contained in a report from Dr Jagermann dated 23 August 1991, Mr Kowalski had an accident at work in May 1989 when he sustained a back injury and ongoing low back pain, and was absent from work for two and a half months. He claimed worker's compensation from his employer. His claim was disputed, and later he was accused by his employer of committing fraud by absenting himself from work when in fact he had been attending a WorkCover conference. Dr Jagermann also referred to Mr Kowalski's 'more distant past' as follows: 'The examination of the more distant past revealed that Mr Kowalski had been with Mitsubishi Motors for 26 years where he was employed as a tooling analyst. Whereas he had 'had an anxiety problem years ago, it was brought under control' upsetting events of the immediate past proved it otherwise with Mr Kowalski falling victim to injury, antagonism, vicissitude and rejection, promoting tension and concern and 'distrust of everything'.'" 5 The Deputy President then identified and discussed the relevant sections in the Act, namely, s 70(1), (5) and (7), s 120(4) and (6), s 120B(1), (3) and (4), 196A, s 196B(3) and (14) and s 180A. He identified the relevant Statement of Principles ("SoP") for the purposes of s 120B(3). 6 The Deputy President identified the applicant's contentions in the following passage: "As I understand it from the material before me and the matters referred to at the hearing, Mr Kowalski contends, amongst other things, that he was infected with Helicobacter pylori bacteria at the Puckapunyal Army Camp due to sharing communal showers and using eating utensils that were not properly cleaned; that this infection, or the stress and anxiety from being overloaded with work in the Army in the period after two of his colleagues resigned following 7 December 1972, in association with the infection, caused a duodenal ulcer, with resulting pain and sleeping disorders; that the stress of his Army work caused him to develop high blood pressure, depression and anxiety; that the clinical onset of his anxiety (having been evidenced by being prescribed Librax tablets by an Army doctor at the Amberley Base) occurred at or about the time when these tablets were prescribed; that he was advised by the doctor at the Amberley Base to go on a high fat diet after he developed the ulcer; that as a result he became obese and suffers from high cholesterol; and that he developed ischaemic heart disease as a result of one or more of the following matters: his high fat diet and resulting obesity and/or high cholesterol; his hypertension; his depression; and the anxiety he experienced after being called up and the stress and anxiety he experienced in his work with the Army, which continued in his work with Chrysler and Mitsubishi after his discharge." 7 The Deputy President identified three particular submissions made by the applicant: 1. the respondent should have produced evidence to support his claim; 2. the Tribunal should conduct its own inquiries; and 3. the change in the applicant's classification in his Defence Department Medical file from "FE" (fit for service everywhere) to "HO" (home duties only) was evidence in support of his case. 8 As to the first point, the Deputy President rejected the contention that the respondent had failed to carry out its obligations under the Act. As to the second point, the Deputy President outlined the extent to which the Tribunal initiated its own inquiries. It is not necessary for me to set out the details. As to the third point, the Deputy President dealt with the point later in his reasons. The Deputy President then set out certain propositions of law which were to guide his consideration of the matter. 9 The Deputy President then turned to consider whether the applicant's duodenal ulcer arose out of or was attributable to his eligible defence service, or would not have occurred but for that service.

Was the duodenal ulcer connected with the defence service? 10 The Deputy President said that he was minded to accept the medical evidence to the effect that stress did not cause the applicant's duodenal ulcer, but said that he did not have to reach a final view because of his analysis of the SoP concerning the duodenal ulcer, and his conclusion on other aspects of the applicant's claim. The Deputy President said that he was not satisfied that the applicant had been infected with the bacteria, helicobacter pylori, during his Army service. He said that in any event, on the applicant's own case he was infected during his training at Puckapunyal and this preceded his eligible defence service. 11 The Deputy President considered whether the applicant's duodenal ulcer was upheld by the SoP in respect of that condition. He referred to factor 6(a), namely, having the helicobacter pylori infection of the stomach or duodenum at the time of the clinical onset of the duodenal ulcer. He said that there was no doubt the clinical onset of the ulcer occurred during the applicant's eligible war service; but, he said for reasons previously given, he was not satisfied that the infection was relevantly connected with the circumstances of his service. 12 The applicant relied on factor 6(m), namely, inability to obtain appropriate clinical management for duodenal ulcer. The Deputy President found that factor 6(m) did not support the applicant's contention. He found that the clinical management, medication and dietary advice were appropriate having regard to the medical knowledge at the time and that there was no reason for the Army doctor to refer the applicant to a psychiatrist or psychologist. 13 The Deputy President concluded that the SoP did not uphold the contention that the ulcer was, on the balance of probabilities, connected with the applicant's service and he was not satisfied that the duodenal ulcer arose out of or was attributable to his eligible defence service, or that it would not have occurred but for that service.

Claim for hypertension 14 The Deputy President said that he was able to decide this issue by reference to the SoP concerning hypertension and did not need to consider the issue of connection (that is, s 120B(3)(a)). 15 Clause 4 of the SoP provided, relevantly, that at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person serving. Factor 5(a) referred to "being obese" at the time of the clinical onset of hypertension. 16 The Deputy President referred to the definition of "hypertension" in clause 2(b) and the definition of the expression "being obese" in clause 8. He also referred to the meaning of "clinical onset" as articulated in the cases (Lees v Repatriation Commission (2002) 125 FCR 331; Repatriation Commission v Cornelius [2002] FCA 750). 17 The Deputy President said that he was not satisfied on the material before him that the clinical onset of hypertension occurred during the applicant's defence service. He found that the date of the clinical onset of hypertension was 24 August 1984 and he said that under factor 5(a), he was required to consider whether the applicant was obese at that time. The Deputy President said that he was not satisfied that the applicant was obese at the time of the clinical onset of hypertension. Even if he was, the Deputy President said that it was not clear that his obesity was "related to" or "connected with the circumstances" of his service within the meaning of clause 4 of the SoP or the preamble to clause 5. 18 The applicant also relied on factors 5(b) and 5(k) but the Deputy President found that neither of these factors was engaged.

Depressive disorder 19 The Deputy President found that the fact that the words "Major Depression" were written on a document in the applicant's medical records was not of probative value. 20 The Deputy President referred to factors 6(a) and 6(b) in the SoP and the definition of the expression "depressive disorder" in clause 3(b). The Deputy President said that he was not satisfied that the applicant had symptoms prior to or during his service that would meet the relevant diagnostic criteria referred to in clause 3(b) of the SoP and he said that there was no evidence that the applicant was diagnosed with any depressive disorder prior to or during his defence service. 21 The Deputy President found that the clinical onset of the applicant's depression occurred in or about August 1991. The Deputy President rejected a contention that the applicant experienced "a category 1A stressor" and "a category 1B stressor" (defined in clause 9) while stationed at Amberley. 22 The applicant relied on factor 6(a)(v), but the Deputy President said that he was not satisfied that the applicant was suffering from an anxiety disorder prior to the clinical onset of his depressive disorder or, if he was, that either of the two relevant SoPs concerning anxiety disorder upheld his contention that that disorder was, on the balance of probabilities, connected with his eligible defence service. The Deputy President found that neither factor 6(a)(viii) or 6(a)(ix) or 6(t) was engaged on the facts. 23 The Deputy President concluded that the SoPs in respect of depressive disorder did not uphold the applicant's contention that his depression was, on the balance of probabilities, connected with his eligible defence service. He went on to say that it also seemed unlikely that the applicant's depression was relevantly connected with his service, but in view of his conclusions as to the SoPs, it was not necessary for him to determine that issue.

Anxiety disorder 24 The Deputy President referred to the relevant factors and definition of "anxiety disorder" in clause 3(b) of the SoP. 25 The Deputy President said that he was not satisfied on the evidence before him that the clinical onset of anxiety disorder occurred during the applicant's service as he contended. He found that the date of clinical onset of the applicant's anxiety disorder occurred at or about the time of his mental breakdown in August 1991. He concluded that the SoP concerning anxiety disorder did not uphold the applicant's contention that his anxiety was, on the balance of probabilities, connected with his eligible defence service. It was unnecessary for him to decide whether there was a relevant connection between the applicant's anxiety disorder and his service.

Ischaemic heart disease 26 The Deputy President referred to factor 6(a) and to clause 3(b) of the SoP which defines ischaemic heart disease. He found that the clinical onset of ischaemic heart disease in the case of the applicant occurred in December 1997 and that he was suffering from hypertension at that time. However, the SoP in respect of hypertension did not uphold the applicant's contention that hypertension was connected with his eligible defence service. As a result, the applicant's claim for ischaemic heart disease was not upheld by factor 6(a). The Deputy President referred to factor 6(c) and said that he was not satisfied that the applicant was obese for at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease. 27 The Deputy President referred to factor 6(f) and in that context he found that there was no evidence that the applicant was suffering from dyslipidaemia as defined in the SoP prior to the clinical onset of ischaemic heart disease. The Deputy President says that neither factor 6(m), nor factor 6(o) were engaged on the facts. 28 The Deputy President said that neither the current SoP, nor the revoked SoP concerning ischaemic heart disease upheld the contention that that disease was, on the balance of probabilities, connected with his eligible service. He said that in light of that finding it was unnecessary for him to consider whether the material before him raised a connection between the ischaemic heart disease and his eligible defence service within the meaning of s 120B(3)(a) of the Act. 29 The Deputy President expressed his conclusions (in the course of which he deals with the third point identified in [7] above) as follows: "I have carefully considered Mr Kowalski's many contentions. His general contention based on the changed classification from FE on enlistment to HO on discharge, to which I referred in paragraph 29 above, does not meet the evidentiary burden on him to adduce evidence sufficient to establish his claim. I have concluded that the conditions for which he is claiming a disability pension were not defence caused."

Grounds of appeal 30 As I have said, the right of appeal from the Tribunal is limited to an appeal on a question of law. 31 The respondent submitted that of the 44 grounds of appeal in the notice of appeal only nine arguably raised questions of law (that is, grounds 1, 6, 9, 10, 11, 15, 17, 33 and 37). That submission is correct. 32 The meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill (2002) 69 ALD 581; Comcare v Etheridge (2006) 149 FCR 522; HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291. 33 It will be seen that I reject the grounds of appeal which arguably raise questions of law. I also reject the grounds of appeal which raise questions of fact. In each case there was evidence from which the Deputy President could make the finding which he did. 34 In the course of his submissions, the applicant referred to a large number of cases. Three in particular were cited in relation to many of his grounds of appeal. It is convenient for me to say something now about those cases. 35 Oliver v Repatriation Commission [2002] AATA 408 ("Oliver") was a decision of a senior member of the Tribunal. The issue was whether the death of a veteran was due to war service and, in particular, whether the veteran satisfied factor (d) of the relevant principles concerning ischaemic heart disease. The senior member had particular evidence before him and he made certain findings of fact. The circumstances and evidence before the Deputy President in this case were different and Oliver is therefore of no assistance to the resolution of the present matter. 36 Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") was a decision of the Full Court of this Court. The case concerned the proper approach to the application of s 120(1) and (3) of the Act. By contrast, this case involved the application of s 120(4) and s 120B(3) of the Act. Deledio is therefore of no direct assistance to the resolution of the issues in this case. 37 Repatriation Commission v O'Brien (1985) 155 CLR 422 ("O'Brien") was a decision of the High Court and it involved the interpretation of s 47(2) of the Repatriation Act 1920 (Cth) which subsection provided for a test of whether the determining body was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. An observation by Gibbs CJ, Wilson and Dawson JJ (at 430) on the facts of that case (upon which the applicant relied) is of no assistance to the resolution of the issues in this case.

Ground 1 38 The contention in this ground of appeal is that the Tribunal had no jurisdiction or power to make a determination with respect to the applicant's "previously accepted compensable defence-caused duodenal ulcer" where neither the respondent nor the Board had made a determination with respect to that matter. 39 The Deputy President's finding was as follows: "In summary, the SoP does not uphold the contention that the ulcer was, on the balance of probabilities, connected with Mr Kowalski's service, and I am not satisfied that his duodenal ulcer arose out of or was attributable to his eligible defence service, or that it would not have occurred but for that service." 40 The respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument (Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514).

Ground 2 41 The contention in this ground of appeal is that the Tribunal erred in law in deciding that it was not necessary to express a concluded view about the possible connection between the applicant's obesity and his compulsory National Service in the Army. This ground does not raise a question of law. 42 The Deputy President had said that as he was not satisfied that the applicant was obese at the relevant time (that is, 24 August 1984, being the date of the clinical onset of hypertension) it was not necessary to express a concluded view about the possible connection of obesity with service. 43 I do not think the Deputy President erred. To link the applicant's hypertension with service through a service-related obesity there was a need to show that the applicant was obese at the time of the clinical onset of hypertension and the applicant had plainly not shown that. As I have said, the reference to Oliver does not assist the applicant.

Ground 3 44 The contention in this ground of appeal is that the Tribunal erred in law in determining that the date of clinical onset of the applicant's hypertension was 24 August 1984 and that there was no evidence that the applicant had a pre-existing condition of hypertension that worsened. This ground does not raise a question of law. 45 It is clear from the Deputy President's reasons that he was aware of the blood pressure reading in March 1973 and that he took it into account (at [67]-[68]). I also agree with the respondent's submission that the Deputy President's analysis of the authorities (Lees v Repatriation Commission (2002) 125 FCR 331; Repatriation Commission v Cornelius [2002] FCA 750) was correct and it was open to him to find that the clinical onset of the applicant's hypertension was 24 August 1984.

Ground 4 46 The contention in this ground of appeal is that the Tribunal erred in law in determining that the clinical onset of the applicant's depressive disorder occurred in or about August 1991 and that it is likely that it was caused by issues at Mitsubishi Motors, and not the stresses of his Army work many years earlier and that it also seems unlikely that the applicant's depression was relevantly connected with his service, but in view of the Tribunal's conclusions as to the SoPs it is not necessary for the Tribunal to determine that issue. Neither of the matters identified in this ground of appeal are questions of law. The first matter (that is, down to the word "earlier") is a finding of fact which was open to the Deputy President on the evidence before him and the second matter is not a conclusive finding in any event. 47 In this ground of appeal the applicant refers to a finding made by a review officer in a workers' compensation claim he made against Mitsubishi Motors and to a decision of the Workers' Compensation Appeal Tribunal. Neither of those decisions bound the Tribunal which was required to make a finding on the evidence before it.

Ground 5 48 The contention in this ground of appeal is that the Tribunal erred in law, first, in determining that the clinical onset of the applicant's anxiety disorder did not occur during his compulsory National Service in the Army and, second, in determining that the date of clinical onset of the applicant's anxiety disorder occurred at or about the time of his mental breakdown in August 1991. This ground of appeal does not raise a question of law. 49 The Deputy President made a finding of fact and it was open to him to do so. The decisions made in relation to his workers' compensation claim do not assist the applicant for the reason given in relation to the previous ground of appeal.

Ground 6 50 The contention in this ground of appeal is that the Tribunal erred in law in determining that, although when the respondent had made its determination on the applicant's claim for anxiety disorder it had failed to take into account or refer to the SoP for anxiety disorder (No 2 of 2000), the respondent's determination in respect of the applicant's anxiety disorder was not wrong or deficient. 51 The passage in the Tribunal's reasons which the applicant criticises is in the following terms: "Mr Kowalski also submitted that the decision of the Repatriation Commission was deficient in that it did not refer to the SoP in respect of anxiety disorder. However, the diagnosis on which the delegate proceeded was that of major depression with co-morbid anxiety, and it was only later when the Commission's decision was reviewed by the VRB that the diagnosis was changed to depressive disorder and anxiety disorder. In any event, hearings in this tribunal are a hearing de novo; the tribunal's function is to arrive at the correct or preferable decision, and not to consider the correctness or otherwise of the decision under review. This means that an applicant is entitled to seek to have the decision under review set aside on grounds that might be quite different from the grounds relied upon unsuccessfully before the original decision-maker, and the respondent is entitled to support the decision under review on a basis that is different from the grounds on which the primary decision was made." 52 This statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission.

Ground 7 53 The contention in this ground of appeal is that, in view of the Tribunal's decision in Oliver, the Tribunal erred in law in determining that there was no evidence that the applicant was suffering from dyslipidaemia as defined in the SoP prior to the clinical onset of the ischaemic heart disease and that the applicant's claim was not supported by factor 6(f). This ground of appeal does not raise a question of law. 54 The Deputy President's findings were open to him on the evidence before him. Oliver does not support the applicant's submission for reasons previously given.

Ground 8 55 The contention in this ground of appeal is that the Tribunal erred in law in determining that it was unnecessary for the Tribunal to consider whether the material before it raised a connection between the ischaemic heart disease and his compulsory National Service in the Army within the meaning of s 120B(3)(a) of the Act. This ground of appeal does not raise a question of law. 56 The Deputy President was not required to consider the matter in s 120B(3)(a) in circumstances where he was satisfied that s 120B(3)(b) had not been met. Oliver and Deledio do not support the applicant's submission for reasons previously given.

Ground 9 57 The contention in this ground of appeal is that the Tribunal erred in law in determining that it was not necessary for it to determine whether it had jurisdiction to hear and determine the applicant's original application and that, on reflection, the Tribunal thought that the original application was sufficient. 58 In order to explain this ground, it is necessary to set out the following passages from the Deputy President's reasons. "As mentioned in paragraph 6 above, during the hearing I raised a concern as to jurisdiction, because the application for review refers to the decision of the VRB instead of the decision of the Commission. To overcome my concern I suggested that Mr Kowalski should lodge a fresh application to review the decision of the Commission. He did this, and I made an order, with the consent of the Commission, to extend the time for making the new application. I then gave directions to the effect that the existing proceedings and the new proceedings should be heard together, with the evidence in each case being treated as evidence in the other. … As there is no issue of jurisdiction in relation to the new application, and in view of the conclusion I have reached, it is not necessary for me to determine whether I had jurisdiction by virtue of the original application. However, on reflection, I think that the original application was sufficient." That reasoning is correct and nothing was said by the Full Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 which suggests that the Deputy President's approach was erroneous.

Ground 10 59 The contention in this ground of appeal is that the Tribunal erred in law in determining that the error that the applicant had made by referring to the Board's decision in his application for review instead of referring to the respondent's decision was an obvious error that should not have rendered his application for review ineffective, or deprived the Tribunal of its jurisdiction or power to make a determination on his application for review. The passage of which the applicant complains is as follows: "In the present case Mr Kowalski clearly intended to invoke the jurisdiction of this tribunal because he was dissatisfied with the decision of the VRB. The error he made in referring to the wrong decision was an obvious error, and should not render his application for review ineffective." 60 That approach favours the applicant and it is not at all clear why he is attacking it. In any event, the approach does not involve error.

Ground 11 61 The contention in this ground of appeal is that the Tribunal failed to consider the applicant's many contentions and his contention based on the changed "ability to work classification" from FE on enlistment to HO on discharge to which the Tribunal referred in paragraph 29 of its reasons "because the facts found in those par's [sic] clearly meet the evidentiary burden on the applicant to adduce sufficient evidence to establish his claims, therefore, Jarvis DP erred in law in finding that the conditions for which the applicant was claiming a disability pension were not caused by his compulsory National Service in the Army". 62 I have set out above the Deputy President's conclusions in the penultimate paragraph in his reasons (see [29]). 63 Section 120(6) of the Act provides as follows: "(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." 64 In my opinion, the respondent's submission, that where the decision-maker cannot be satisfied on the evidence before it of the existence of a necessary fact for the claim to succeed, then it cannot decide the claim in the claimant's favour, is correct (McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358-359 per Woodward, Northrop and Jenkinson JJ). 65 Deledio and O'Brien do not support the applicant's submission.

Ground 12 66 The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver, Deledio and O'Brien do not support the applicant's submissions.

Ground 13 67 The contention raised in this ground of appeal is that the Tribunal erred in law in applying the wrong test, in failing to correctly apply the SoPs and in coming to decisions, which it is said were simply based on statements from the bar table by the respondent's advocate, although those statements from the bar table were not supported by way of the evidence that was before the Tribunal. 68 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver, Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission.

Ground 14 69 The contention in this ground of appeal is that the Tribunal erred in law in failing to call Dr D Reid and Dr P Hetzel to give evidence and to be cross-examined on their medical reports. 70 The Deputy President said: "However, neither Dr Reid nor Dr Hetzel gave evidence, and so their views as to the relevance of stress to the causation of the ulcer were not explored or tested in cross-examination. In those circumstances, it is difficult to arrive at any finding on that issue, but I think it unnecessary to do so in view of my analysis of the SoP concerning duodenal ulcer, and my conclusion on other aspects of Mr Kowalski's claim, to which I will refer below." 71 I agree with the respondent's submission that this ground of appeal does not raise a question of law. I also agree with its submission that the applicant could have called these witnesses himself if he considered that that would have assisted his case, or he could have requested that the summonses be issued to them to give evidence and be cross-examined.

Ground 15 72 The contention in this ground of appeal is that the Tribunal erred in law, in refusing to take or failing to take judicial notice "in respect to the amount of alcohol that the applicant had consumed during his compulsory National Service in the Army". 73 This ground of appeal fails because the applicant's alcohol consumption was not a matter for judicial notice.

Ground 16 74 The contention in this ground of appeal is that the Tribunal erred in law "by jumping into the arena with the respondent's advocate in order to assist the respondent's advocate to run his case". Nothing was put which would make out this ground of appeal and it must be rejected.

Ground 17 75 The contention in this ground of appeal is that the Tribunal erred in law by failing to follow and rely upon the decision of this Court in Deledio. Deledio is not relevant for reasons previously given.

Ground 18 76 The contention in this ground of appeal is that the Tribunal erred in law "on the grounds of duplicity". There is no question of duplicity in the present proceeding and the case to which the applicant referred, Ettridge v TransAdelaide [1997] SASC 6753, is not relevant to any issue before me. No doubt there were a number of issues before the Deputy President, but there is no reason to think that the proceeding miscarried because of the number of issues the parties were required to address.

Ground 19 77 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant "to run his case in the way that he wished". 78 The applicant referred to various passages in the transcript of the hearing before the Tribunal (pages 194, 195, 197, 201, 202, 204, 205, 208, 209, 210, 214, 216, 217, 218, 219, 220 and 233-345). He also referred to the decision in Giannarelli v Wraith (1988) 165 CLR 543. 79 I have considered the transcript and I am satisfied that the Deputy President did no more than control the proceeding before him in an appropriate manner.

Ground 20 80 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant to ask witnesses relevant questions and to cross-examine witnesses in the witness box. This ground seems to be formulated on the assumption that an applicant is entitled to ask whatever question he or she thinks is appropriate. That is not the case. The Deputy President has the power to disallow irrelevant, scandalous or oppressive questions. In my opinion, the Deputy President did no more than exercise appropriate control in respect of the conduct of the application for review.

Ground 21 81 The contention in this ground of appeal is that the Tribunal erred in law in allowing the proceedings to be conducted "in an adversarial way instead of an inquisitorial way". Nothing was put which supports this ground of appeal and it must be rejected.

Ground 22 82 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that the clinical onset of the applicant's anxiety disorder was 20 August 1973. The applicant points to the fact that on 20 August 1973, a doctor had prescribed the anti-anxiety medication called Librax for the applicant and that therefore this was the date of the clinical onset of his anxiety disorder. 83 This ground of appeal does not raise a question of law. There was evidence upon which the Deputy President could find as he did that the date of clinical onset of the applicant's anxiety disorder was at or about the time of his nervous breakdown in August 1991.

Ground 23 84 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that factor 6(a)(viii) of SoP No 102 of 2007 was applicable to or supported the applicant's claim for his anxiety disorder. The applicant claims that there was uncontested evidence before the Tribunal that in 1973, and as a result of his accepted compensable duodenal ulcer, he was suffering from chronic pain for at least six months duration at the time of the clinical onset of his anxiety disorder. The applicant claims that the time of the clinical onset of the applicant's anxiety disorder was 20 August 1973, being the date on which a doctor prescribed the anti-anxiety medication called Librax. 85 Again, this ground of appeal does not raise a question of law, and I agree with the respondent's submission that the Deputy President did not find clinical onset of anxiety disorder in 1973 and therefore there is no proper basis for this contention. Again, Deledio does not support the applicant's submission for the reasons previously given.

Ground 24 86 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that the clinical onset of the applicant's anxiety disorder was 20 August 1973. Again, the applicant makes reference to the fact that the applicant was prescribed Librax on 20 August 1973. 87 This ground of appeal does not raise a question of law. I have previously dealt with the merits of the ground in relation to ground 22.

Ground 25 88 The contention in this ground of appeal is that the Tribunal erred in law in failing to find factor 6(a)(h) of SoP No 18 of 2007 was applicable to or supported the applicant's claim for his depressive disorder. The applicant claims that there was uncontested evidence before the Tribunal that as a result of the applicant's accepted compensable duodenal ulcer, the applicant was suffering from chronic pain for at least six months duration at the time of the clinical onset of his depressive disorder. 89 This ground appears to refer to factor 6(a)(viii), which is having chronic pain of at least six months' duration at the time of the clinical onset of depressive disorder. The Deputy President noted the definition of "chronic pain" in clause 9 as follows: "… continuous or almost continuous pain, which may or not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living." 90 The Deputy President said: "Mr Kowalski gave evidence of his duodenal ulcer having caused pain during his defence service, but I am not satisfied for the reasons referred to above that his duodenal ulcer was connected with his defence service in the relevant sense. In any event, there is no evidence that Mr Kowalski had chronic pain of at least six months duration prior to August 1991, being on my above finding the approximate date of the clinical onset of his major depression, or if he did, that any such chronic pain was connected with his defence service. Factor 6(h) does not support the contended connection with service." There is no error in the Deputy President's reasoning and this ground of appeal must be rejected.

Ground 26 91 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that factor 6(a)(ix) of SoP No 18 of 2007 was applicable to or supported his claim for his depressive disorder. The applicant claims that there was uncontested evidence before the Tribunal that, as a result of the applicant's accepted compensable duodenal ulcer, the applicant was suffering from a sleep disorder at the time of the clinical onset of his depressive disorder. 92 The Deputy President noted that the expression "a sleep disorder" was defined in clause 9 as follows: "… a dyssomnia, a sleep disorder related to another mental disorder other than depressive disorder, a sleep disorder due to a general medical condition or substance-induced sleep disorder, as defined in DSM-IV-TR."

93 The Deputy President said: "Mr Kowalski refers to having difficulty sleeping during his eligible defence service, but there is no evidence before me that he had a sleep disorder within the meaning of that definition prior to the clinical onset of his major depression in or about August 1991. If he did, it appears from his evidence that it was related to his duodenal ulcer, but I have found above that his ulcer was not connected with his defence service in the relevant sense." There is no error in the Deputy President's reasoning and this ground of appeal must be rejected.

Ground 27 94 The contention in this ground of appeal is that the Tribunal erred in law in failing to diligently and precisely interpret all the evidence that was before it so that the Tribunal could make the correct and proper decision in respect to the four claims, not five claims, for a disability pension that were before the Tribunal. It is said that four exhibits before the Tribunal all confirmed that as a result of a barium meal on 1 August 1973, the applicant was diagnosed with a duodenal ulcer on that day. The applicant refers to the following statement in the Tribunal's reasons: "It is clear that there was a diagnosis of a duodenal ulcer, and this was confirmed by a barium meal on 31 August 1973…and by the reports of Dr Gilmore of 26 February 1974 and 20 October 1976, to which I have referred above." 95 I assume that the point being made here is that the Tribunal has referred to the incorrect date. It has referred to 31 August 1973, whereas the correct date is 1 August 1973. If that is the point, it is not a point which raises a question of law. It is a matter that had no effect on the Deputy President's findings and conclusions.

Ground 28 96 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant to make his final submissions to the Tribunal first. In his written submissions the applicant adds the allegation that the Deputy President was "biased at law". No particulars are given of this additional allegation. 97 I agree with the respondent that the ground of appeal does not raise a question of law and, in any event, the procedure to be adopted was a matter for the Tribunal. There was no breach of natural justice or procedural fairness. I also agree with the respondent's submission that in fact it was to the applicant's advantage that he was able to make his final submissions after he had heard the respondent's final submissions.

Ground 29 98 The contention in this ground of appeal is that the Tribunal erred in law in failing to comply with the legal principle that if statements made in affidavits are not replied to or contradicted with other evidence and affidavits are not cross-examined on, then those statements will be accepted by the Court in the same way that uncontradicted oral evidence is accepted. The applicant referred to two New South Wales decisions. 99 This ground of appeal does not raise a question of law. Nothing was put which supports the ground.

Ground 30 100 The contention in this ground of appeal is that the Tribunal erred in law in failing to take into account that under s 119(1)(g) of the Act it "shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities". 101 This ground of appeal does not raise a question of law. Nothing was put which supports the ground.

Ground 31 102 The contention in this ground of appeal is that the Tribunal erred in law in failing to take into account that under s 119(1)(h)(i) it must "take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including the effect of the passage of time on the availability of witnesses". 103 This ground of appeal must fail for the same reasons given in relation to ground 30.

Ground 32 104 The contention in this ground of appeal is that the Tribunal erred in law in that it failed to take into account that under s 119(1)(h)(ii) it must "take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the absence of or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the defence force or of a peace-keeping force as defined by subsection 68(1) was not reported to the appropriate authorities". 105 This ground of appeal must fail for the same reasons given in relation to ground 30.

Ground 33 106 The contention in this ground of appeal is that the Tribunal erred in law in failing to determine that, prior to the clinical onset of the applicant's ischaemic heart disease, the applicant was suffering from coronary artery disease (CAD) or dyslipidaemia, as was required by s 120(3) of the Act, therefore his claim for ischaemic heart disease was supported by factor 6(f) of SoP No 90 of 2007. 107 The respondent submitted, correctly in my view, that s 120(3) of the Act had no application to the applicant's case as he had not rendered operational service.

Ground 34 108 The contention in this ground of appeal is that the Tribunal erred in law in determining that it was unnecessary for the Tribunal to consider whether material before it raised a connection between the applicant's ischaemic heart disease and his compulsory National Service in the Army within the meaning of s 120B(3)(a) of the Act on the grounds that, prior to the clinical onset of the applicant's ischaemic heart disease, the applicant was suffering from coronary artery disease (CAD) or dyslipidaemia, therefore his claim for ischaemic heart disease was supported by factor 6(f) of SoP No 90 of 2007. 109 This ground of appeal does not raise a question of law. In any event, there is no reason to doubt the conclusion of the Deputy President that there was no evidence that the applicant was suffering from dyslipidaemia as defined in the SoP prior to the clinical onset of ischaemic heart disease and that therefore his claim was not supported by factor 6(f).

Ground 35 110 The contention in this ground of appeal is that the Tribunal erred in law in failing to inform itself of the name of the person who wrote the words "major depression" in black biro on the notification of medical assessment dated 25 September 1973. This ground of appeal does not raise a question of law. Furthermore, I agree with the respondent's submission that there was no evidence on which the Tribunal could have made any such finding and no material before it to suggest a course of investigation to determine who wrote those words.

Ground 36 111 The contention in this ground of appeal is that the Tribunal erred in law in failing to inform itself when the words "major depression" were written in black biro on the notification of medical assessment dated 25 September 1973. This ground of appeal does not raise a question of law. In any event, the Deputy President made the following finding: "In his evidence, Dr Thompkins said that that expression was not used by the medical profession until the late 1980's, so that the words would have been written in 'in the late 1980's/early 1990's or even later' … It follows that the relevant words would not have been written on the A4 copy, whether by a doctor or any other person, during Mr Kowalski's service with the Army, and are not of probative value. I think it unnecessary for this tribunal to make any further inquiries as to when the relevant words were written on the form, or by whom, or to direct the Commission to make any such further inquiries."

Ground 37 112 The contention raised in this ground of appeal is that the Tribunal erred in law in placing the onus of proof on the applicant. I have read the paragraphs in the Tribunal's reasons to which the applicant referred ([123], [125], [127] and [128]). I do not think that the Tribunal placed the onus of proof on the applicant. The Deputy President said: "However, except to this extent, it remained necessary for Mr Kowalski to adduce evidence or documents in support of his claim. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell (supra) at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 358." 113 There is no error in the Deputy President's reasoning and this ground of appeal must be rejected.

Ground 38 114 The contention in this ground of appeal is that the Tribunal erred in law in failing to determine, as a preliminary matter, whether the applicant suffered from the claimed psychiatric conditions in accordance with s 120(4) of the Act. This ground of appeal does not raise a question of law. In any event, nothing was put to support the ground of appeal.

Ground 39 115 The contention in this ground of appeal is that the Tribunal erred in law in deciding that the applicant did not develop anxiety disorder in the course of forming an opinion as to whether the hypothesis raised by the material (and connecting the disease to the veteran's eligible defence service) was a reasonable one. 116 This ground of appeal does not raise a question of law. The respondent submitted, correctly, in my view, that s 120(3) of the Act had no application in the applicant's case and the concept of "reasonable hypothesis" was irrelevant and did not apply to the determination by the Tribunal of the applicant's case.

Ground 40 117 The contention in this ground of appeal is that the Tribunal erred in law in failing to make an inquiry as to whether the raised hypotheses were reasonable ones "in accordance with subsections 12(1) and (3) and s 120A(3)" of the Act. 118 This ground of appeal must fail for the same reasons given in relation to ground 39.

Ground 41 119 The contention in this ground of appeal is that the Tribunal erred in law in preferring Dr Hetzel's and Dr Reid's medical reports to Dr R Thompkins' uncontested sworn oral evidence. 120 This ground of appeal does not raise a question of law and must be rejected.

Ground 42 121 The contention in this ground of appeal is that on 29 August 2008, the Tribunal erred in law, perverted the course of justice and denied the applicant natural justice and procedural fairness when the Deputy President refused to allow the applicant to tender his letter to the Deputy President and Mr Greg Grade, dated 23 August 2008, as his evidence to support his case and then found in paragraph 32 of his decision that there was no basis for the applicant's contentions that the respondent did not comply with its obligations under s 33(1)AA of the Act or as a model litigant, or for the frequent and abusive comments he made during the hearing about the conduct of the Commission and its representatives. 122 This ground of appeal does not raise a question of law. The respondent submitted, correctly in my view, that the documents which the applicant sought to tender were irrelevant to the proceeding before the Tribunal and could not have affected the result of the case.

Ground 43 123 The contention in this ground of appeal is that the Tribunal erred in law when the Deputy President allowed the respondent to tender a copy of a calendar for the year 1972, which he marked as exhibit R4, although the respondent made no reference to its relevance. 124 This ground of appeal does not raise a question of law. Furthermore, the document was not relied on either by the respondent or by the Tribunal.

Ground 44 125 The contention in this ground of appeal is that the Tribunal erred in law in finding that it was not satisfied that the applicant's duodenal ulcer arose out of or was attributable to his compulsory National Service in the Army or that it would not have occurred but for that service on the grounds that the applicant satisfies factor 6(a) of SoP No 58 of 2006 "which only expressly required that at the time of clinical onset of the applicant's duodenal ulcer, which was in 1973, the applicant had to have been infected with the helicobacter pylorivirus infection of the duodenum". 126 This ground of appeal does not raise a question of law. Furthermore, the respondent submitted, correctly in my view, that the relevant factors set out in the applicable statement of principles do not merely require that the person has suffered from helicobacter pylori infection at the time of clinical onset, but require that the infection be related to the person's defence service, and that the Deputy President had explained clearly the reasons why he did not consider that the infection was related to the applicant's defence service.

Conclusion 127 I have considered the applicant's written and oral submissions including his written submissions in reply. In my opinion, the appeal must be dismissed. I will hear the parties as to costs and any other orders. 128 Before concluding these reasons, I record the fact that the applicant asked me to disqualify myself from hearing this appeal. I declined to do so: Kowalski v Repatriation Commission [2008] FCA 1970. Leave to appeal from my decision was refused: Kowalski v Repatriation Commission [2009] FCA 47. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 30 July 2009 The Applicant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor

Government Employees) Act 1971(Cth)

Repatriation Act 1920(Cth)s 47

Veterans' Entitlements Act 1986(Cth)ss 70, 120, 120B, 180A, 196A, 196B

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