Kowalski v Repatriation Commission

LEGISLATION 26 Under s 70 of the VE Actthe Commonwealth is liable to pay a pension by way of compensation to a "member of the Forces" where the member is incapacitated from a "defence-caused injury or defence-caused disease". 27 It was accepted by the Tribunal that the appellant was a member of the Forces as he satisfied s 69(1)(f) of the VE Act. It was not in dispute that the appellant's GORD met the definition of disease in s 5D(1). What was in dispute was whether the appellant's GORD was a defence-caused disease. 28 The definition of a defence-caused disease is provided in s 70(5) in these terms: (5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if: (a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member; (b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or (c) the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or (d) the injury or disease from which the member died, or is incapacitated: (i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or (e) … but not otherwise. 29 Section 70 (7) further provides that: (7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service: (a) if the incapacity of the member was due to an accident - that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or (b) if the incapacity was due to a disease - the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act. 30 In addition s 5D(2) of the VE Act provides the clarification that: In this Act, unless contrary intention appears: (a) a reference to the incapacity of a person who is a member of the Forces… from a defence‑caused injury or a defence‑caused disease … is a reference to the effects of that injury or disease and not a reference to the injury or disease itself. 31 Pursuant to s 120(4) of the VE Act factual issues in the proceedings before the Tribunal were to be decided to the standard of "reasonable satisfaction". It is clear that this is the civil standard of proof or the balance of probabilities. 32 Section 120B(3) sets out how Statements of Principles (SoP) relate to the application of the "reasonable satisfaction" standard when determining whether a disease is defence-caused: (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B (3) or (12); or (ii) a determination of the Commission under subsection 180A (3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. 33 The Repatriation Medical Authority, pursuant to s 196B of the VE Act, may be required to determine an SoP relevant to defence service. Section 196B(3) provides that: (3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: … (b) defence service (other than hazardous service) rendered by members of the Forces; … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service. 34 Section 196B(14) of the VE Act then goes on to provide the various circumstances that can be used to identify how factors, required by an SoP to be related to service, can be shown to be related. That sub-section provides that: (14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or … (d) it was contributed to in a material degree by, or was aggravated by, that service; or … (f) in the case of a factor causing, or contributing to, a disease - it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or 35 The Repatriation Medical Authority determined an SoP, Instrument No. 12 of 2005, which applies to GORD in the context of defence service (the GORD SoP). The GORD SoP defines GORD in clause 2(b) as "a chronic clinical condition involving the regurgitation of gastro-duodenal contents into the oesophagus together with resultant chronic symptomatic or histological evidence of oesophageal inflammation". 36 Clause 5 of the GORD SoP sets out the factors that must exist before it can be said, on the balance of probabilities, that GORD is connected with the circumstances of relevant service which includes defence service. The factors which the Tribunal noted as having relevance to the present proceedings are as follows: … (b) being obese at the time of the clinical onset of gastro-oesophageal reflux disease; or … (d) consuming an average of at least 500 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; or … (g) being treated with a smooth muscle relaxant drug, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of gastro-oesophageal reflux disease; … (l) being obese at the time of the clinical worsening of gastro-oesophageal reflux disease; or … (n) consuming an average of at least 500 grams of alcohol per week for at least the twelve months before the clinical worsening of gastro-oesophageal reflux disease; or … (q) being treated with a smooth muscle relaxant drug, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical worsening of gastro-oesophageal reflux disease… 37 For the purposes of the GORD SoP, clause 8 sets out the definitions of 'smooth muscle relaxant,' 'alcohol,' and 'being obese' as follows: 'a smooth muscle relaxant drug' means: (a) an anti-cholinergic drug; (b) a beta-adrenergic drug; (c) a nitrate drug; (d) a calcium channel blocker drug; (e) theophylline; or (f) aminophylline; 'alcohol' is measured bythe alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink; 'being obese' means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater. The BMI = W/H2 and where: W is the person's weight in kilograms and H is the person's height in metres;

THE TRIBUNAL'S DECISION 38 The Commission argued before the Tribunal that Board's decision should be set aside on the ground that the appellant's GORD was not defence-caused. 39 The appellant submitted to the Tribunal that the his GORD was defence-caused on a number of alternative bases, namely: · the clinical onset of GORD occurred on or about 19 September 1973; and/or · that taking Librax and, or Merbentyl as part of a treatment regime for duodenal ulcer, which he claims contributed to the cause or worsening of his GORD; and/or · that being advised by doctors during his defence service to go on a high fat diet to relieve the symptoms of his duodenal ulcer, which (he claims) led to obesity, contributed to the cause or worsening of his GORD; and/or · that drinking alcohol during his defence service contributed to the cause or worsening of his GORD. 40 The appellant also argued that the Commission should be estopped from raising issues that ought to have been raised in previous proceedings, because the Commission did not appear before the Board when it made the decision referred to in [2] and [23] above. Alternatively he argued that the nature of the review of the Tribunal was incorrect. 41 In addition, the appellant made an application that the Tribunal as then constituted should disqualify itself on the ground of actual bias. This application was also considered in the Tribunal's reasons. 42 The Tribunal set out the background of the matter under "Introduction" and of the relevant legislative provisions under "Legislative Background." It also detailed the background of relevant facts under the heading "Factual Background." The Tribunal's reasons were set out under the headings "The Preliminary Arguments," "Medical Opinions," "Mr Kowalski's Arguments," and "Conclusion." 43 Under the heading "The Preliminary Arguments" the Tribunal addressed the appellant's argument relating to Anshun estoppel. The appellant argued that as the Commission did not make written or oral submissions to the Board, in response to the appellant's claim, it should be estopped from raising matters before the Tribunal that could have and should have been raised before the Board. 44 The Tribunal, after detailing the context of the Anshun estoppel case, and its operation within the Tribunal, held that such an estoppel can have no application between differing levels in a hierarchy of administrative decision-makers on the one issue. It found that the Commission's entitlement to make an application for review of the Board's decision to the Tribunal is conferred by statute. Section 148 of the VE Act provides that the parties to the review are not bound to appear before the Board but may elect to do so. The Commission therefore was not bound to appear. Section 27 of the AAT Act and s 176(2) of the VE Act gave the Commission standing to make an application to the Tribunal to review the decision of the Board. The Tribunal found that there was nothing in the legislation that would modify or detract from the Commission's unfettered right to make an application for review to the Board. 45 The Tribunal considered the observations of the Tribunal in Re Repatriation Commission and Hadfield (1990) 19 ALD 425 (Hadfield) at 426, which the appellant relied upon in submissions. In that case the Tribunal said: …where the facts have been found by the Veterans' Review Board, then the right of the Repatriation Commission to apply for further review should be restricted to questions of law, particularly when, as in this case, the Commission has no deigned to take any part in the proceedings before the Veterans' Review Board. 46 The Tribunal did not consider that case assisted the appellant. The Tribunal in that case had in fact considered factual propositions advanced by the Commission, demonstrating that it was merely voicing the concern on the part of the Tribunal as then constituted that the Commission could seek review of a decision of the Board and contest factual matters when it had chosen not to appear before the Board. The Tribunal accepted that the Commission, under the VE Act, was entitled to adopt that course. 47 The appellant's Anshun estoppel argument was therefore found to have no merit. 48 The Tribunal addressed the appellant's argument that the review of the Tribunal should have been confined to an appeal in the strict sense, and not a hearing of the merits of the decision. The Tribunal found that the legislation clearly provided that the review was a full rehearing on the merits. 49 Under the heading "Medical Opinions" the Tribunal considered the appellant's submissions that there was a connection between his GORD and his defence service because he developed GORD during his war service. 50 The appellant submitted that the clinical onset of his GORD occurred on or about 19 September 1973 based upon symptoms at that time. The Commission submitted that, for there to be evidence of clinical onset, there would need to be evidence of two essential diagnostic elements, namely, regurgitation of gastro-duodenal contents, and either chronic symptoms of oesophageal inflammation or histological evidence of oesophageal inflammation. 51 It submitted that there was insufficient evidence to support the appellant's contention that the diagnostic elements existed in 1973. 52 The Tribunal noted that the expression "clinical onset" was considered by the Full Court of this Court in Lees v Repatriation Commission (2002) 125 FCR 331 at 336, where the Court adopted an earlier description by the Tribunal in Robertson v Repatriation Commission (1998) 50 ALD 668 at 670 that: ... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present … 53 The Tribunal decided on the evidence that the symptoms recorded in 1973 of heartburn and regurgitation would not have enabled a doctor to say that GORD was present at that time because the other clinical tests and signs attributed those symptoms to a different condition, namely the duodenal ulcer. 54 The Tribunal accepted the evidence of the expert gastroenterologists, Dr Reid and Dr David Hetzel. Both were of the opinion that there was no evidence of the appellant having GORD until the mid 1980s at the earliest and possibly later, and that the likelihood is that the symptoms complained of in 1973 were symptoms of the duodenal ulcer that was diagnosed at the time rather than GORD. Based on this evidence the Tribunal concluded, on the balance of probabilities, that the appellant's war service did not lead to him suffering GORD during that service. 55 The appellant further contended that, during his war service, he was place on a high-fat, high cholesterol diet. He argued this led to his obesity which was a contributing factor to the cause and/or worsening of his GORD when it did occur. He claimed that his weight increased from 72 to 79 kg during his service in the Army, and further increased on leaving the Army, but dramatically reduced in 1990-1991 such that by 1991 he weighed only 70 kg. It then increased again, and now he is over 100 kg. 56 The Tribunal found that there was no evidence that the appellant was placed on a "high-fat, high-cholesterol" diet during his Army service, beyond the Commission's acceptance that he had been told to "consume a bland diet, including milk products" during the latter part of 1973. It further found that, even if it was to assume the appellant was placed on a "high-fat, high-cholesterol" diet, there was no evidence of any causal connection between this and his obesity. The Tribunal accepted the evidence from Dr David Hetzel that the appellant's obesity did not emerge until some 25 years after he completed his service, and therefore found it impossible to see how any connection could be shown between the appellant's obesity and his service. 57 Next, the Tribunal considered whether the taking of smooth muscle relaxants for the ulcer condition contributed to the cause or worsening of the appellant's GORD. The appellant contended that he was prescribed smooth muscles relaxants, namely Librax and Merbentyl, as part of a treatment regime for duodenal ulcer, which contributed to the cause or worsening of his GORD. 58 The Tribunal did not accept the appellant's contentions in respect of the smooth muscle relaxant drugs. It noted that factor 5(g) of the GORD SoP refers to treatment with that type of drug "for a condition for which the drug cannot be ceased or substituted, at the time of clinical onset of" GORD. It held that there was no evidence that the drugs being prescribed for the appellant could not be ceased or substituted at that time, so that factor was not satisfied. 59 Finally, the Tribunal addressed the contention that alcohol consumption during service contributed to the cause or worsening of the appellant's GORD. He claimed to have drunk 1 jug of full strength beer every night during his basic training and thereafter during his service, and that this was sufficient to meet the requirement in factor 5(d) of the GORD SoP of at least 500 grams of alcohol per week for at least 12 months before the clinical onset of GORD. 60 The Tribunal did not accept that the appellant consumed at least 500 grams of alcohol a week for at least 12 months before the clinical onset of his GORD (a much later date than the period of service), so it was not satisfied that his GORD was related to his period of service. 61 It is also necessary to note that, after the hearing, the appellant filed an "application", dated 10 October 2009, submitting that the Tribunal as then constituted should be disqualified on the ground of actual bias. He asserted in that document, and in oral submissions during a hearing of the issue on 28 October 2009, that there was actual bias on a number of bases, namely that the Tribunal: · jumped into the arena with the respondent's lawyers in order to assist them in running their case; · refused to allow the appellant to tender crucial documentary evidence in support of his case; · had an inadequate understanding of the legal principle of Anshun Estoppel; · should have questioned Dr David Hetzel in order to show that he was not a credible witness; and · had an inadequate grasp of the facts and pre-judged matters in dispute. 62 The Tribunal rejected the claim of actual bias, as the Tribunal said it did not approach the hearing with mind so committed to a conclusion already formed as to be incapable of alteration, and the claim of apprehended bias, as a fair minded lay observer would not reasonably apprehend that the Tribunal might not bring an impartial mind to the decision.

THE GROUNDS OF APPEAL 63 The Amended Notice of Appeal is unhelpful. It identifies 44 asserted errors of law which are to a degree repetitious. It is not necessary to address each of them in turn, partly because they are repetitions or overlapping to a significant extent. A refined list of them is set out below, so as far as they might assert error on a matter of law on the part of the Tribunal: see s 44, AAT Act. 64 To the extent that the Amended Notice of Appeal refers to errors of law to the effect that the Tribunal "deliberately and consciously" "perverted the course of justice," or made a "perverted decision" or "fabricated" certain findings, or "deliberately and consciously" failed to conduct the review according to law, those claims are rejected. There is no material from which those assertions can be made out. They are not made out by the appellant's dissatisfaction with the outcome of the review, or because the appellant disagrees with aspects of the Tribunal's reasons, or because the appellant considered that the Tribunal did not follow procedures required by the law or erred in its factual findings or its understanding of, or application of, the law. No other material has been identified which could support those allegations. They are simply gratuitous and unfounded epithets. It is not necessary to say more about them. 65 As I have indicated, it is possible to distil from the Amended Notice of Appeal, and having regard to the appellant's written and oral submissions, a number of apparent errors on matters of law asserted by the appellant. They are that the Tribunal: (1) failed to conduct the hearing of its review in accordance with s 29 of the AAT Act and s 175(1)(c) of the VE Act, including by conducting a rehearing of the claim; (2) failed to accept uncontested evidence, and acted on submissions of the respondent unsupported by evidence; (3) failed to correctly apply the "legal doctrine of the Anshun Estoppel" to preclude the respondent from disputing the findings of the Board; (4) misunderstood the GORD SoP, including: (a) by accepting the medical evidence of Dr David Hetzel and Dr Reid which was inconsistent with the SoP; (b) by regarding the appellant as having abandoned reliance on the "being obese" factor of the SoP; (5) erred by failing to take into account the matters set out in ss 119(1)(g) and 119(1)(h) of the VE Act in determining the date of clinical onset of GORD; and (6) did not afford the appellant a fair opportunity to present his case, including specifically that the Tribunal exhibited actual or apprehended bias, and failed to receive into evidence documents that the appellant sought to tender in support of his case. 66 There are also a number of asserted errors which appear to raise arguments only about the correctness of certain findings of fact by the Tribunal, and so be outside the power of the Court to reconsider having regard to s 44 of the AAT Act. They are that the Tribunal: (1) did not find the applicant's GORD had its clinical onset on 19 September 1973; (2) accepted Dr David Hetzel's evidence as to the time of the clinical onset of the appellant's GORD (the case relied on by the appellant Stevenson v Repatriation Commission [2004] AATA 93 at [53]-[54] really confirms the characterisation of this ground, as it illustrates the Tribunal simply preferring the evidence of one medical witness over that of another); and more generally did not find that his GORD had occurred, and was clinically diagnosed, by 19 September 1973 during his Army service; (3) found that the smooth muscle relaxant drugs which he was prescribed could have been ceased or substituted, and so did not come within factor 5(g) of the SoP. 67 Those asserted errors do not amount to errors on questions of law on the part of the Tribunal. There is no error of law in simply making a wrong finding of fact: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J. Nor is there any error of law in making a finding of fact which the appellant considers to have been wrong. It is not necessary to deal with those matters further. See the observations of Branson J in Brown v Repatriation Commission [2006] FCA 914 at [7]. 68 I shall deal with the identifiable errors of law in the sequence set out above.

Issue 1 69 In essence, the appellant contended that those provisions referred to required the Tribunal to treat his application for review as an appeal in the strict sense and not as an appeal de novo. That is plainly wrong. In the first place, review by the Tribunal is not an appeal but an administrative review: see s 25 of the AAT Act. 70 Section 175(1) of the VE Act provides: Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review: (a) of the decision of the Commission that was so affirmed; (b) of the decision of the Commission as so varied; or (c) of the decision made by the Board in substitution for the decision so set aside; as the case may be. 71 Section 43(1) of the AAT Act makes it clear that the Tribunal's review is a review on the merits of the decision under review. The Tribunal is empowered to exercise all the powers and discretions of the relevant decision-maker, and then to affirm that person's decision or to vary it or to set it aside and to substitute a different decision. That has been explained in numerous cases, as far back as Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325; Commonwealth v Twyman (1985) 8 ALD 554; and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111. 72 These provisions do not support the appellant's contention.

Issue 2 73 It is not at all clear how the appellant converts findings of fact on available evidence into errors on matters of law. It appears to be a catch-all for matters not covered under his other contentions. 74 Insofar as it concerns the time of the clinical onset of his GORD, apart from the matters discussed under Issue 4, the finding of the Tribunal is clearly a finding of fact based upon its assessment of the evidence. 75 Both Dr Reid and Dr David Hetzel were of the opinion that there was no evidence of the appellant having GORD until the mid 1980s at the earliest, and that the likelihood is that the symptoms complained of in 1973 were symptoms of the duodenal ulcer that was diagnosed at the time rather than GORD. The appellant relied heavily in his oral and written submissions on the fact that the records from 1973 show, and the expert doctors acknowledged that, he suffered from "heartburn," which he claims is the same as GORD. The expert evidence shows that the symptom of heartburn, although it can be a symptom of GORD, can also be a symptom of a duodenal ulcer. 76 Dr David Hetzel said: Yes he had some heartburn. There was one line at one point in the notes [from 1973]. I think it was somewhere else that he had some regurgitation but these things can occur in individuals with duodenal ulcer or gallstone disease. We know [the appellant] had duodenal ulcer at that time on X-ray and had symptoms of duodenal ulcer… 77 The evidence of Dr Reid was to a similar effect. He acknowledged the use of the word "heartburn" in records from 1972 and 1973 and said that there were three possibilities of the cause of that symptom. The possibilities are that he had a duodenal ulcer alone, that he had a duodenal ulcer and GORD or that he never had a duodenal ulcer at all and all the time it was GORD. Of the three possibilities Dr Reid said that it was "by far the most likely" that he had a duodenal ulcer alone. He also said that "there was a small possibility that he did have GORD then but it is unlikely." 78 The Tribunal's finding on that topic was clearly available on the evidence. 79 At a more general level, the appellant has not established that there are any findings made by the Tribunal which do not have any acceptable evidentiary foundation. Its reasons are thorough and careful. They identify the foundations for its findings. Nor has the appellant established that the Tribunal made any findings which not only are unsupported by evidence which it has identified, but also are contradicted by other uncontroverted evidence. Apart from the volume of material presented to the Tribunal in documentary form (including the various documents prepared by the applicant), the oral evidence was confined to that of Dr David Hetzel and Dr Reid. The Tribunal had the opportunity of seeing how they responded to questions. It clearly regarded their evidence as reliable, having had the benefit of seeing them give evidence. It was entitled to, and did, accept their evidence. No error of law is shown in doing so. That applies to the Tribunal's findings about the time of the clinical onset of GORD, and about the other matters one or more of which the applicant claimed were factors (referred to in clause 5 of the GORD SoP) which must be related to the appellant's defence service. It is not necessary to refer to its detailed findings on those matters; in my view, its findings on them do not involve any error of law on the part of the Tribunal in the catch-all context of this ground of appeal.

Issue 3 80 The appellant argued that the doctrine of Anshun estoppel should have been applied by the Tribunal as the Commission did not make written or oral submissions to the Board, in response to the appellant's claim, so as to estop in the review before the Tribunal the respondent from disputing findings made by the Board. 81 In my view, the Tribunal was correct in rejecting this argument. It correctly found that Anshun estoppel, although it might operate within the Tribunal in certain circumstances that may avoid an abuse of process, can have no application between differing levels in a hierarchy of administrative decision-makers in the one process of adjudication, as prescribed by legislation or as permitted by the law. It was the decision of the Board which the Tribunal was required to review, in the manner discussed when considering Issue 1. 82 The Commission was entitled to make an application for review of the Board's decision to the Tribunal despite the fact it did not appear and make submissions before the Board. This entitlement is conferred by statute: s 27 of the AAT Act and s 176(2) of the VE Act gives the Commission standing to make an application to the Tribunal to review the decision of the Board. Moreover, s 148 of the VE Act provides that the parties to the review by the Board are not bound to appear before the Board but may elect to do so. That is the course the Commission chose. It was entitled to do so. The observations of the Tribunal in Hadfield referred to in [45] above and referred to by the appellant are exhortatory. It was certainly the view of the Tribunal as then constituted that the Commission should, as a matter of course, appear before the Board when the Board is reviewing one of its decisions. Those observations do not suggest, however, that the failure of the Commission to do so would, or could, result in the Commission being bound by the factual findings made by the Board. The reasons for decision of the Tribunal in that case shows that it permitted the Commission to contest findings made by the Board, even though it had not appeared before the Board.

Issue 4 83 The appellant contended that as he could identify factors in the GORD SoP which raise a connection to his defence service. He claims that the Tribunal "failed to comply with his statutory and legal obligation to accept all of the medical facts that are found in the SoP for GORD instead of preferring the erroneous opinions of Dr Reid and Dr Hetzel…" 84 The appellant referred to decision of Dowsett J in Repatriation Commission v Money [2009] FCAFC 11 where his Honour states at [87]: The logical starting point is identification of the connection. It is to be found in the material before the tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. 85 This passage does not support the contention by the appellant that the SoP can or must be used as medical evidence to raise a connection between his GORD and his defence service. It is clear that the connection must be found in part upon the evidence before the Tribunal. And, before the GORD SoP comes into play, the date of clinical onset of his GORD had to be decided. 86 There is, in my view, no basis for concluding that the Tribunal misunderstood or misapplied the GORD SoP. 87 The Tribunal had to determine the appellant's GORD was defence-caused. Section 70(5) of the VE Act defined when that causal relationship would exist. Relevantly, the appellant's GORD would have to have arisen out of or be attributable to his defence service, or to have been contracted during his defence service (although not arising out of it) and to have been contributed to or aggravated by it. That causal relationship was to be met on the balance of probabilities. The relationship or otherwise between the GORD and the appellant's defence service was also to be addressed having regard to ss 120(4), 120B(3) and consequently the GORD SoP. As noted, the appellant asserted that he contracted GORD during, and because of, his defence service or that he contracted or aggravated it after his defence service but by reason of it. 88 However, the date of onset or clinical onset of his GORD was a matter in issue. The GORD SoP does not deal with that matter. It addresses the question of connection with defence service once a disease such as GORD is found to exist or to have existed. 89 The Tribunal found, based upon the medical evidence referred to that the appellant did not develop GORD until many years after his defence service. It did so, in the light of the extensive medical records concerning the appellant both during and subsequent to his defence service, and the expert medical evidence. It was entitled to do so. Its finding in that respect is a finding of fact. No error of law has been shown on the part of the Tribunal in reaching that finding of fact. The GORD SoP does not dictate or require that such evidence as the Tribunal had regard to must be disregarded on that issue (as the appellant submitted). It is correct to say that medical evidence cannot contradict the terms of an SoP, because the SoP regime under the VE Act (where applicable) provides the means to determine the relationship between death, injury or disease and defence service or war service (see eg Repatriation Commission v Gosewinkel [1999] FCA 1273). But the SoP regime does not direct or require particular diagnoses of injury or disease or cause of death: Collins v Repatriation Commission (2009) 177 FCR 280. 90 It is clear that the appellant developed a duodenal ulcer during his defence service. He sought to ascribe to symptoms reported at that time the clinical onset of GORD. A different finding was made. That asserted onset time was not accepted. There is nothing in the GORD SoP which comes into play at the point of considering that contention. In reaching that finding, I do not consider that the Tribunal erred in law. It then had to address the causation question. 91 The GORD SoP defines GORD for its purposes in a certain way. The Tribunal found that GORD as so defined was not suffered by the appellant until many years after his defence service and probably not until the 1990s. That is consistent with what was said by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331 at 336-337. Having made that finding, the Tribunal then had to apply the GORD SoP on the question of its relationship with the appellant's defence service. 92 Section 120(4) and s 120B(3) indicate that the decision that a disease is defence-caused is to be made only if the material, to the reasonable satisfaction of the decision-maker, rouses a connection between the disease (as found to exist) and some particular service rendered and if there is a relevant SoP which upholds the contention that the disease is, on the balance of probabilities, connected with that service. 93 The Tribunal then, correctly in my view, considered whether any one (or more) of the factors set out in clause 5 of the GORD SoP related to the relevant service rendered by the appellant. 94 Contrary to his assertion, it considered whether factor 5(b) - being obese at the time of clinical onset of GORD - was connected with his defence service. It recognised that as one of the factors relied upon by the appellant: see its reasons at [11], [47] and [51]. Although it noted that, at one point the appellant seemed to "abandon reliance upon the 'being obese factor'", it nevertheless considered the evidence on the topic. It was not reasonably satisfied, in terms of s 120B(3), that the material on that topic raised a connection between his GORD and his weight during or immediately subsequent to his defence service: see its reasons at [56]. Consequently, the first of the two conjunctive requirements for connection between his GORD and his defence service by reason of his obesity was not made out. The second of those requirements in s 120B(3)(b) is the existence and application of the GORD SoP. The Tribunal described any such connection as "impossible". 95 I do not, therefore, consider that any error on the part of the Tribunal is shown in its understanding of, or application of, the GORD SoP as asserted by the appellant.

Issue 5 96 Section 119(1)(g) of the VE Act provides, that in making a decision in relation to a claim, the decision-maker "shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities." Section 119(1)(h) provides that "without limiting the generality of the forgoing" the decision-maker shall: take into account any difficulties that, for any reasons, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to: (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and (ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence happened during the service of a veteran, or a member of the Defence Force… was not reported to the appropriate authorities. 97 The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where Northrop, Sunberg, Marshall and Merkel JJ,with Nicholson J agreeing, said at 373-4: Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. The respondent's contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law…Paragraph (h) of s119(1) is a provision of the same character as par(g): see the words which introduce it - "without limiting the generality of the foregoing". Thus, like par(g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase "difficulties that ... lie in the way of ascertaining the existence of any ... cause" as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress. 98 I do not consider that the failure to take into account subsections 119(1)(g) or (h) demonstrate legal error on the part of the Tribunal. In its view, the appellant's evidence did not point to a connection between his GORD and defence service, as required by the SoP. Section 119 does not to create evidence to establish that connection. Section 119(1)(h) ensures that any problems of remembering details of events are matters which are taken into account. In this matter, the Tribunal had the relevant service records of the appellant as well as the clinical records and reports of his treating doctors from time to time. It was not only entitled to have regard to those records, but appropriate that it should do so, in the light of the whole of the evidence. That is what it did.

Issue 6 99 In support of this ground, the appellant filed an affidavit sworn on 21 December 2009 annexing a number of documents which he asserted he was not permitted to tender as evidence before the Tribunal. 100 It may be accepted that the Tribunal was obliged to accord the appellant procedural fairness when dealing the review: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at 38-9. A denial of procedural fairness is an error of law which may give rise to a question of law for the purposes of an appeal under s 44 of the AAT Act: Clements at 32. What is in dispute in the present appeal is whether the appellant's allegations relating to the Tribunal's conduct of his appeal in this regard are made out. 101 I have reviewed the documents annexed to the appellant's affidavit sworn on 21 December 2009. I have also reviewed the transcript, in particular the sections the appellant identified where (he claimed) the Tribunal refused to accept relevant evidence adduced by him. 102 In my view, the documents annexed to the affidavit were either received into evidence, or are not relevant to the proceeding before the Tribunal, or the appellant did not at any stage seek to tender the documents: · Exhibit KK-1, Dr Chung's progress notes, dated 26 April 2005 - tendered as a part of Exhibit 8 (vol 2) and in the bundle of documents labelled "Exhibit R7 - Folder of documents for consideration by Dr D Hetzel" at bundle 34, so it was before the Tribunal; · Exhibit KK-2, the appellant's Statement of Facts Issues and Contentions dated 1 October 2008 - apparently faxed to the Tribunal's Adelaide Registry on 1 October 2008, but it is not itself evidence, and the appellant did not at any stage seek to tender it; the material in it is similar to his written submissions dated 27 September 2009, 3 October 2009 and 7 October 2009; the appellant also had the opportunity to make oral submissions which covered the issues raised. · Exhibit KK-3, the appellant's Further Statement of Facts Issues and Contentions dated 2 October 2008 with the full text of the judgment Stevenson and Repatriation Commission [2004] AATA 93 attached - again, this material is not evidence, and the appellant did not seek to tender this document; again, it is similar to his other written and oral submissions. · Exhibit KK-4, the appellant's Further Amended Reply to the respondent's Statement of Facts, Issues and Contentions, dated 1 November 2008, with a copy of a Section 31 Non-Intervention - File Minute dated 18 April 2008 attached - the file minute was received into evidence as T-Document 13, and otherwise it is not evidence, and the appellant did not at any stage seek to tender this document; again it is similar to his other written and oral submissions. · Exhibit KK-5, the appellant's Statement of Facts Issues and Contentions dated 20 November 2008, with copies of the appellant's Australian Army Discharge Questionnaire and the full text of the judgment Ashenden and Repatriation Commission [2006] AATA 1102 attached - similar observations apply, and the only evidentiary material, namely the questionnaire was received into evidence as T-Document 3. · Exhibit KK-6, the full text of my judgment Kowalski v Repatriation Commission [2009] FCA 153 - this is not evidence (as explained to the appellant by the Tribunal on 8 October 2009). · Exhibit K-7, a letter from the appellant to Deputy Registrar Gade of the AAT dated 10 June 2009 with copies of an endoscopy report dated 27 August 2008 including two photographs, a histopathology report dated 27 August 2008 and Dr D Hetzel's medical report dated 27 August 2008 attached - the letter itself is not relevant evidence, and the other documents were part of the evidence: the endoscopy report was received into evidence as a part of Exhibit 8 (vol 1) at page 29 of part 2; the photographs were received into evidence as Exhibit 14 as a colour (and clearer) copy; the histopathology report was part of Exhibit 8 (vol 1) at page 30 of part 2; and Dr Hetzel's report in the same exhibit at pages 26-28. · Exhibit KK-8, a letter from the appellant to Deputy President Hack and Deputy Registrar Gade dated 20 September 2009 with copies of the discharge questionnaire referred to above, a certificate of sickness dated 18 December 1978, excerpts from the transcript of the hearing on 28 November 2008 and emails sent between the appellant and Deputy Registrar Gade dated 18 September 2009 - as already noted, the discharge questionnaire was received into evidence as T-Document 3; the certificate of sickness was received into evidence as a part of Exhibit 8 (vol 2) in the bundle of documents labelled "Exhibit R7 - Folder of documents for consideration by Dr D Hetzel" at bundle 18; the excerpts from the transcript are already before the Tribunal as part of its hearing; the emails attached are not evidence relevant to the proceedings. · Exhibit KK-9, the appellant's Reply to the Respondent's Outline of Submissions dated 3 October 2009 - this document was tendered as Exhibit 5, even though strictly speaking it is a submission and not evidence; and the documents attached to Exhibit KK-9 are either copies of documents that were received into evidence, or are irrelevant correspondence, or excerpts from judgments (which are not evidence), or copies of the transcript of the hearing before the Tribunal. · Exhibit KK-10, is an Application by the appellant dated 10 October 2009, requesting the Deputy President to disqualify himself - this document was before the Tribunal and was considered by the Tribunal; the request was accompanied by a number of attachments, which are copies of documents received into evidence, or irrelevant correspondence, or excerpts from judgments (which are not evidence). 103 There is therefore no basis to support the contention that the Tribunal refused to receive into evidence admissible material to support the appellant's case. 104 On the question of actual or apprehended bias, there were no matters raised by the appellant beyond those raised at the hearing, when the Tribunal, correctly in my view, found that there was no basis for the Tribunal as then constituted to be disqualified from hearing the matter. There is nothing which indicates that the Tribunal as then constituted approached the hearing with a state of mind committed to a conclusion, or that a fair minded lay observer would reasonably apprehend that it might not bring an impartial mind to the making of its decision. The transcript does not reveal that the Tribunal, during the hearing, was other than open-minded in its approach to witnesses or other evidence or that it in any way acted so as to indicate that it was not bringing an impartial mind to the resolution of the issues.

CONCLUSION 105 For the reasons given, this appeal must be dismissed. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.