Kowalski v Repatriation Commission [2011] FCAFC 43 | Case summary

REASONS FOR JUDGMENT LOGAN J: 4 Upon a claim being made, s 70 of the Veterans Entitlements Act 1986 (Cth) (VEA) renders the Commonwealth liable to pay a compensatory pension to a "member of the Forces" if, materially, that member is incapacitated from a "defence-caused disease". 5 The Appellant, Mr Kazimir Kowalski, was a member of the Australian Army between April 1972 and October 1973. He was enlisted pursuant to the then prevailing National Service Scheme and discharged by the reason of expiry of his National Service obligation. 6 The corps to which Mr Kowalski was allotted after his enlistment was the Royal Australian Electrical and Mechanical Engineers. He held the rank of Craftsman (which is the equivalent in that corps of Private). While serving in that corps he was posted to 5 Base Workshop Battalion, which was then based at the RAAF Base Amberley. He there performed mechanical drafting duties. The seeming incongruity of that posting is removed by the knowledge that, in those days, the Australian's Army Aviation Regiment was also based at Amberley and supported by that base workshop battalion. Mr Kowalski did not render operational service overseas. 7 In the course of his military service, Mr Kowalski came to be diagnosed as suffering from a duodenal ulcer. An army medical officer also noted on Mr Kowalski's pre-discharge history a complaint by him of "heart burn" and epigastric pain for which he obtained relief by taking ant-acids. His enlistment medical record disclosed no evidence of any previous duodenal ulcer. His medical classification was downgraded from "FE" (Forward Everywhere) at the time of enlistment to "HO" (Home Only) at the time of his discharge. A separate note directed to the Commonwealth Department of Health by the Defence Department's Regional Secretary (Army), Keswick Barracks, Adelaide, South Australia on 7 December 1973 contains the following statement: Craftsman Kowalski's officer in charge states: 'The member has been placed under great stress and over employed since December 1972 when, with the cessation of national service, he was performing mechanical drafting duties where previously three personnel were employed. The work programme has been intense since December 1972'. 8 Over three decades later, Mr Kowalski made a claim to the Repatriation Commission (Commission) that Gastro-Oesophageal Reflux Disease (GORD) be accepted as "defence-caused" for the purposes of the VEA. Mr Kowalski's period of service in the Army under the National Service Scheme brought him within one category of the class of persons who qualify as a "member of the Forces" for the purposes of the VEA. It has never been controversial that Mr Kowalski suffers from GORD. What has proved controversial is whether his claim under the VEA in respect of that condition should be accepted. 9 We have commenced our reasons for judgment by referring to the diagnosis and symptoms recorded in the course of Mr Kowalski's military service and to the contemporaneous account by his officer in charge of the circumstances under which he served for a number of reasons. Obviously enough, it is desirable to set out the factual context in which the appeal arises. In this case, and perhaps even more desirably, even though Mr Kowalski did not render overseas operational service and whatever the outcome of this appeal may be, we consider that it is important to highlight the contemporary record of his rendering service beyond the call of duty at a time of upheaval for the Army on the cessation of the National Service Scheme. Further, it is by no means impossible to see how, at least at the time when he made his claim and having regard to the medical history annotated in contemporaneous Army records concerning him, Mr Kowalski, as a layman, might perceive that his GORD condition was related to his military service. 10 For all that, it is axiomatic that Mr Kowalski's claim that his GORD was "defence caused" in terms of the VEA could only succeed if the requirements of that Act were met. 11 On 20 February 2008, the respondent Commission rejected Mr Kowalski's claim because it was not satisfied that his GORD was defence- caused. As was his right, Mr Kowalski sought the review of the Commission's decision by the Veterans Review Board (VRB). In that application he was successful. On 7 July 2008, for reasons which were published that day, the VRB decided to set aside the Commission's decision and substitute its decision that: (i) Mr Kowalski's GORD condition is defence caused as defined by s 70 of the VEA; (ii) That the Commonwealth of Australia is liable pursuant to s 70 of the VEA to pay pension for any incapacity arising from that condition from and including 15 November 2007. 12 The VRB further decided to remit to the matter to the Commission for the assessment of the rate, if any, at which pension was to be paid to Mr Kowalski. 13 Subsection 175(1) of the VEA permits an application to be made to the Administrative Appeals Tribunal (AAT) for the review of a decision made by the VRB in substitution for a decision of the Commission which the VRB has set aside. The effect of s 176(2)(b) of the VEA is that the Commission is taken to be a person whose interests are affected by such a decision of the VRB. In other words, the Commission is specifically authorised to seek the review by the AAT of a decision of the kind made by the VRB in the present case. The Commission availed itself of this right in this case. 14 The Commission's review application was heard and determined by a tribunal constituted by a presidential member of the AAT. On 5 November 2009, for reasons which were then published, the learned deputy president decided to set aside the decision of the VRB of 7 July 2008 and, in lieu thereof, to substitute a decision that the Commission's initial decision of 20 February 2008 be affirmed: Re Kowalski and Repatriation Commission (2009) 50 AAR 543. 15 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) permits an appeal to this Court on a question of law from a decision of the Tribunal. Mr Kowalski sought to invoke that jurisdiction. On 30 April 2010, his appeal was dismissed: Kowalski v Repatriation Commission (2010) 51 AAR 505. It is against that decision that Mr Kowalski has appealed to the Full Court. 16 Though termed an "appeal" by the AAT Act, an appeal to this Court under s 44 of that Act invokes, in point of law, this Court's original jurisdiction. That jurisdiction is only invoked if the appeal is, indeed, on a question of law. That is because the question of law is the very subject matter of such an appeal: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. The importance therefore of formulating what is truly a question of law in a notice by which it is sought to institute an appeal under s 44 was rightly highlighted some two decades ago by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524. The requirement for that formulation is jurisdictional, not pedantry in relation to pleading. This requirement has been emphasised in a number of more recent judgments of the Full Court, notably Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. Even more notably for the purposes of the present litigation, the Full Court noted this same requirement in another case involving Mr Kowalski, Kowalski v Military Rehabilitation and Compensation Commission (2010) 114 ALD 8 at [37]-[39], in which judgment was delivered shortly after the hearing but prior to the determination of his appeal from the AAT in this matter. 17 Viewed against this body of authority, it was, with respect, something of an understatement for the learned primary judge to describe [at 63] the notice of appeal by which Mr Kowalski sought to challenge the AAT's decision as "unhelpful". Regard to that document and then to his Honour's reasons for judgment discloses that, notwithstanding its deficiencies, he made a particular endeavour to distil from it, and from the written and oral submissions Mr Kowalski came to make, whether there was raised anything which was truly a question of law. 18 There could be no adverse criticism of his Honour in the circumstances of this case for considering that it was in the interests of justice to adopt this approach, nor, for that matter, of the Commission in co-operating in that endeavour, rather than just objecting to the competency of the appeal. That is not to say that such an approach is appropriate in all cases in which such a deficient notice is filed. In particular, care needs to be taken in any such endeavour to distil a question of law to ensure that a respondent is accorded procedural fairness by having an opportunity to make a considered response to a question so distilled. Further, if a respondent is disposed to object to the competency of an appeal on the basis that it does not state a question of law, that objection must be heard and determined, with the applicant, rather than the Court, then having the responsibility of seeking such amendment as he or she may be advised so as, if possible, to meet the alleged deficiency. 19 Similar sentiments are applicable in relation to the notice of appeal from the judgment below. 20 Mr Kowalski's notice of appeal to the Full Court is in Form 55A, which is the form prescribed for an appeal to the Court from the AAT. The form which is apt for an appeal in which the Court's appellate jurisdiction is sought to be invoked is Form 55. In this case, nothing of substance turns on that error of form, as the form used by Mr Kowalski does make provision for the setting out of grounds of appeal. He has sought to state them in the notice. In so doing, Mr Kowalski has adopted the approach of quoting from or, in some instances, just identifying by number a particular paragraph of the reasons for judgment of the learned primary judge and then alleging that there is an error of law in the quoted passage or identified paragraph. 21 A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be: Kadkhudayan v W D and H O Wills (Aust) Ltd [2002] FCAFC 110 at [16]; Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 at [36]-[37]. In those cases, as in the present, the appellant was a litigant in person and the notice of appeal concerned had a similar failing. While the conferral of an appeal as of right from a final judgment given in the exercise of original jurisdiction is a feature of our justice system, Federal and State, and a desirable one at that, a litigant in person enjoys no different right or privilege in this regard. The right of appeal is only invoked by the filing, within the time permitted in the rules of court, of a notice which states what are truly grounds of appeal. 22 At the hearing of this appeal Mr Kowalski sought to amend the notice of appeal so as to raise as a ground that the learned trial judge should have disqualified himself. The basis for that proposed amendment seemed to lie in the involvement by the learned trial judge in other litigation in this Court to which Mr Kowalski was a party, principally Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408, which was heard prior to the present case but in which judgment was delivered on the same day as that in the present case. 23 Mr Kowalski was unable to inform the Court that he had raised the question of disqualification with the learned trial judge [The absence of any such request is confirmed by reference to the transcript of the proceeding before his Honour]. 24 We refused this application for leave to amend the notice of appeal. The issue was not one raised before the learned primary judge. That apart, the mere fact that his Honour had heard the other case is no basis upon which it could be concluded that, even though the disqualification point had not been raised, his Honour nonetheless should have appreciated that he ought to disqualify himself. Especially that is so because Kowalski v Military Rehabilitation and Compensation Commission was also an appeal under s 44 of the Administrative Appeals Tribunal Act and thus, like the present, not a case which called for any assessment of Mr Kowalski's credit as a witness. Further, his Honour's reasons for judgment in that case and the present are, with respect, expressed in measured and temperate terms. We mention that because there is nothing on the face of either which might in any way offer any basis for an apprehension as to his lack of impartiality. Further, there was no suggestion that the hearing of the appeal from the tribunal in this case had been conducted other than in the same measured and temperate way. The case is not one where, even in the absence of the point being taken below, it is patent that the learned trial judge should have disqualified himself. If there were some basis upon which Mr Kowalski contended that the learned trial judge should have disqualified himself, that basis should therefore have been distinctly alleged, supported by evidence and proved in the court below. It was not. 25 Mr Kowalski also sought leave at the hearing of the appeal to introduce further evidence in the form of documentary exhibits to an affidavit which he had sworn. The introduction of this further evidence was opposed by the Commission. 26 We refused leave to read the affidavit on the hearing of the appeal. Brief reasons for that were given at the time. Our more detailed reasons for so doing are as follows. 27 None of the material sought to be introduced by this affidavit was relevant to an issue before the primary judge. At the risk of repetition, the issues there, insofar as any were raised at all, were only questions of law. It was no part of his Honour's role to make a general evaluation of the factual merits of Mr Kowalski's claim under the VEA. 28 In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J, after a detailed examination of then pertinent authority, expressed the opinion that s 44 of the Administrative Appeals Tribunal Act did not permit the reception of evidence which was not before the tribunal. Since then s 44 of the Administrative Appeals Tribunal Act has been amended so as to insert ss 44(7) and 44(8). With the exception of those findings tainted by error of law, s 44(7) permits the Court to make findings of fact not inconsistent with those found by the Tribunal in certain limited circumstances. For that purpose, s 44(8)(a) of that Act permits the Court to receive further evidence. While that ability to make a finding of fact and to receive further evidence can have a convenience about it if there is an obvious, readily addressed omission in the facts found by the tribunal, in any case calling for further investigation by a party or extensive evidence the better course is just to remit the matter to the tribunal for rehearing: Repatriation Commission v Butcher (2007) 94 ALD 364 at [18]-[19]. 29 It is to be remembered that, even after the amendments which permitted the Court to make findings of fact, an appeal under s 44 is not to be assimilated with the ability, formerly conferred by the former s 196 of the Income Tax Assessment Act 1936 (Cth), to appeal against a decision of a board of review, initially to the High Court and more latterly a State or Territory Supreme Court, in respect of a matter involving a question of law. Providing that such an appeal did involve a question of law, it was possible to have a full trial on the factual merits on the hearing of the so-called appeal. The focus of a s 44 appeal from the tribunal is much narrower than an appeal under the former s 196. 30 We make these observations because, while s 27 of the Federal Court of Australia Act 1976 (Cth) permits the reception of further evidence on an appeal and accepting, further, that provisions such as it conferring a power on a court are not to be read as subject to limitations not required by their terms: Eastman v The Queen (2000) 203 CLR 1 at [81], it remains the case that the scope for the reception of further evidence on an appeal from an exercise of original jurisdiction under s 44 of the Administrative Appeals Tribunal Act must necessarily be influenced by the limited scope for the reception of further evidence in the exercise of that original jurisdiction. 31 The evidence sought to be introduced on the appeal by Mr Kowalski was directed to the establishment on the factual merits of whether his GORD was defence caused. If Mr Kowalski's grounds of appeal have any substance a re-hearing on those factual merits would be a matter for the tribunal on remission, not for the Court in the exercise of appellate jurisdiction. 32 The Commission made a commendable effort in its written and oral submissions to identify from the notice of appeal, read in light of his written submissions, the bases upon which Mr Kowalski was seeking to overturn the judgment of the learned primary judge. Having ourselves read these documents and also heard Mr Kowalski's oral submissions, we see no injustice to the parties in adopting the course of determining the appeal by reference to these identified alleged errors. The alleged errors of law in respect of the judgment below which emerge are as follows: (a) A failure to conclude that the "reasonable hypothesis" test was applicable. (b) Alternatively, a failure to conclude that the tribunal had incorrectly applied ss 120(4) and 120B of the VEA and the statement of principles (SoP) applicable to GORD. (c) A failure to conclude that the tribunal had either ignored or failed to act on undisputed evidence in respect of Mr Kowalski's meeting the criteria in the applicable SoP. (d) A failure to hold that, having not appeared in the proceeding before the VRB to defend its decision, the Commission was estopped from raising any ground of challenge to that board's decision in favour of Mr Kowalski before the tribunal, what Mr Kowalski termed "Anshun Estoppel". 33 Mr Kowalski submitted that the VEA was beneficial legislation and should be construed accordingly in his favour. He further submitted that proceedings in the tribunal were inquisitorial, not adversarial, referring in this regard to the following observation of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425: Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Particularly having regard to entries in his service medical records, Mr Kowalski submitted that there was a reasonable hypothesis connecting the circumstances of his military service with his GORD. There was a question of law, he submitted, as to whether, in affirming the Commission's rejection of his claim, the tribunal had erred in failing to determine his claim in accordance with these propositions including, for that purpose, to cause further investigation to be made of his claim. In turn, so the argument went, the learned primary judge had erred in failing to answer that the tribunal's decision was unlawful for these reasons. 34 What was said of the tribunal by Brennan J in Bushell v Repatriation Commission remains an accurate, general statement of the nature of the tribunal's function but it must now also be read in light of the more recent observations by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [1] in the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act. … And also at [25]: The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [Footnote references omitted] These observations were made with particular reference to the review function given to the Refugee Review Tribunal under its governing legislation but the position with respect to the jurisdiction conferred on the Administrative Appeals Tribunal by s 175 of the VEA is no different. Upon the making of an application, that tribunal's duty under the VEA was to review the Commission's decision as it had been affirmed, varied or set aside by the VRB. 35 There was nothing in the circumstances of the case as revealed on the material before it which obliged the tribunal to initiate its own inquiries in respect of Mr Kowalski's claim. In the tribunal proceeding Mr Kowalski was not under any formal onus of proof but it was obviously in his interest to highlight such material as was already before the tribunal in the documents transmitted pursuant to s 37 of the Administrative Appeals Tribunal Act or to introduce such further material, be it in the form of his own evidence, opinions from medical practitioners or otherwise, as was capable of providing, if accepted, a reasonable foundation upon which the tribunal might be satisfied that his GORD was "defence caused". 36 That the VEA is beneficial legislation may be accepted. The task though in relation to statutory construction remains one of construing the language used by Parliament in the context in which they appear and having regard to the scope, subject matter and purpose of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. In a case of ambiguity in the language of a statute, that a beneficial purpose can be seen in the statutory scheme may lead to the preferment of a construction that would promote rather than restrict eligibility for the benefit concerned: Bird v Commonwealth (1988) 165 CLR 1 at 6. If, though, the language of a statute is unambiguous, that a beneficial purpose can be discerned in it does not provide a warrant for the extending of a benefit to an individual whose case falls outside its terms, whatever sympathy one might have for that individual's plight (see Bird). Any extension of a benefit to that individual would be a matter for amendment of the statute by parliament, not for the tribunal or a court. 37 There was no relevant ambiguity of meaning in the VEA in relation to Mr Kowalski's case. Mr Kowalski's claim under that Act did not relate to operational service performed by him. Because of that, the "reasonable hypothesis" test for which s 120(3) of the VEA provides, had no application to the determination of his claim. It would have been an error of law for either the tribunal or the learned primary judge otherwise to have held. Instead, as the Commission submitted, each correctly concluded that s 120(4) of the VEA applied to the circumstances of Mr Kowalski's claim. The tribunal was obliged to decide Mr Kowalski's claim to its reasonable satisfaction. In so doing, because the Repatriation Medical Authority had determined a statement of principles in respect of GORD, s 120B(3) of the VEA obliged the tribunal to be reasonably satisfied that Mr Kowalski's GORD was defence-caused only if: (a) the material before the tribunal raised a connection between that disease and some particular service rendered by him; and (b) there is in force an SoP; that upholds the contention that his disease is, on the balance of probabilities, connected with that service. 38 The SoP in force in respect of GORD was Instrument No 12 of 2005 (the GORD SoP). Clause 5 of the SoP sets out the factors that must exist before it can be said, on the balance of probabilities, GORD (as defined for the purposes of that SoP) is connected with the circumstances of, materially, defence service. 39 The SoP had no role to play in relation to a finding as to whether Mr Kowalski was in fact suffering from GORD as he claimed. As earlier noted though, that he was suffering from this condition was not controversial. The tribunal's finding that he was suffering from GORD was well supported in the material before it. 40 Having concluded that Mr Kowalski suffered from GORD, it then fell to the tribunal to decide whether it was satisfied that this was defence-caused. Here, because of s 120B(3)(b) of the VEA, the GORD SoP did have a role to play but only if, as s 120B(3)(a) of the VEA first required, the material before the Tribunal raised a connection between Mr Kowalski's GORD and some particular service rendered by him. 41 As to whether a connection was raised, the tribunal had the benefit of opinion evidence from two gastroenterologists, Dr Reid and Dr Hetzel, each of whom rejected the existence of any connection between his GORD and the circumstances of his Army service. The tribunal based its finding that no connection was raised upon an acceptance of their opinions. As the learned primary judge correctly concluded (at para 89): 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. 42 We would add, in light of the way that argument developed in the course of the appeal, that it is patent from the passages from the evidence of Dr Reid and Dr Hetzel that the tribunal quoted in its reasons that the duodenal ulcer diagnosed in the course of Mr Kowalski's Army service and his complaints of heartburn and epigastric pain as noted in his service medical record were taken into account by these specialists in expressing their opinions. It is also evident from the excerpt of Dr Hetzel's evidence that he was aware of and took into account the possibility, raised by an entry in 1995 in a clinical note of Mr Kowalski's then treating general practitioner, Dr Cheung, that he had undergone an endoscopy in the late 1980's for what might conceivably have been reflux symptoms. Dr Hetzel's further evidence as excerpted, which the tribunal obviously accepted, was "[t]here is a kind of blank period from the mid-1970's when Mr Kowalski's Army service finished until the end of the 1989's that we really do not have a lot of symptomatology evidence to tell us whether he might have suffered GORD". It was not the tribunal's function in the circumstances of this case to initiate inquiries in an endeavour to find material which might fill in this "blank period". 43 In short, given the finding of fact which the tribunal made, Mr Kowalski's claim never even rose to the level of raising a connection between his GORD and his Army service as s 120B(3)(a) of the VEA required. However much, as a matter of lay impression, the symptomatological entries in Mr Kowalski's service medical record make it understandable that Mr Kowalski might have thought a connection existed between his GORD and his Army service, two medical practitioners with relevant specialist training and experience have opined to the contrary and the tribunal has, quite reasonably, acted on those opinions. The GORD SoP had no role to play in the raising of a connection, only in the further step, additionally required by s 120B(3)(b) of the VEA, of deciding whether the contention that Mr Kowalski's GORD was, on the balance of probabilities, connected with his Army service should be upheld. 44 As it happened, the tribunal went on to find that the material factors in the GORD SoP were not, in any event, satisfied on the evidence. These factors were: (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; or ... 45 The tribunal addressed whether, in any event, these factors were satisfied on the material before it. In so doing, the tribunal did not ignore undisputed evidence. For example, and fundamentally, though the entries in the service medical records were an undisputed given, the time of the clinical onset of his GORD was not. The time of clinical onset of GORD was a common element in the various factors either because an element of the factor had to be present at that time or for a specified time beforehand. The tribunal was not satisfied that the clinical onset of GORD had occurred in 1973 while Mr Kowalski was in the Army. As the learned primary judge found, in concluding that none of the material factors in the GORD SoP were satisfied, the tribunal's findings of fact were reasonably open to it on the material before it. 46 The learned primary judge did not err in concluding that the tribunal had correctly rejected the applicability of the "reasonable hypothesis" test and had correctly construed and applied s 120(4) and s 120B(3) of the VEA and the GORD SoP. 47 Before the tribunal, Mr Kowalski argued, by reference to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, that, because the Commission had not appeared before the VRB, it was not entitled, in the tribunal proceeding, to put in issue findings of fact which that board had concluded in his favour. He also advanced a separate argument that the nature of the proceeding before the tribunal was an appeal in the strict sense. That was to the same end of foreclosing any re-agitation on the merits of conclusions of fact made in his favour by the VRB. The tribunal rejected each of these arguments, referring to the Commission's unfettered right, conferred by s 176 of the VEA to seek the review of a decision of the kind made by the VRB and to the nature of that review as definitively described in this way by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 (Drake): The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. 48 The learned trial judge dealt expressly only with the latter of these two arguments. That may well have been a reflection of the deficiencies in the formulation of questions of law in the notice of appeal from the tribunal and also to the way in which the case was argued before his Honour. He, too, also rejected the argument that the proceeding in the tribunal was in the nature of an appeal in the strict sense likewise referring to what was said in Drake. In this he was not mistaken. 49 The tribunal's task was to consider afresh and on the material before it the question of whether Mr Kowalski qualified for the benefit he claimed under the VEA. In so doing, neither the Commission nor Mr Kowalski was in any way constrained to rely on only the material initially before the Commission when it decided the claim or to that before the VRB on primary review. Each was free to adduce such further material as it or he may be advised and which the tribunal regarded as relevant. Likewise, and quite apart from such questions as the parties may have asked of any person who gave evidence, the learned deputy president was also at liberty, subject to doing so in a procedurally fair way, himself to ask such questions of such persons as he thought might assist him to reach the correct or preferable decision. 50 As the tribunal correctly apprehended, the passage quoted from Drake also supplies the answer in any event as to why the former of Mr Kowalski's arguments was misconceived. He relied on Anshun for the proposition that, because particular arguments of law and fact could have been raised before the VRB by the Commission and were not (because it did not appear) it was precluded by that board's decision from advancing any such argument before the tribunal. 51 Anshun is an authority concerned with the exercise of judicial power, not executive power. This aside, Mr Kowalski's argument is completely at odds with the tribunal's review function as described in Drake. As Bowen CJ and Deane J highlight in Drake (at 414), that review function is, in turn, but a replication of a form of administrative merits review the constitutional propriety of which was upheld 80 years ago in Shell Company of Australia Ltd v Commissioner of Taxation (1930) 44 CLR 530. It involves one officer or body of the Executive Government (here, the tribunal) being granted by statute all of the powers and discretions exercisable under statute by another officer or body of the Executive Government (here, the Commission, as its decision has been affirmed, set aside or, as the case may be, varied by the VRB) who or which has made a decision on a subject and then being given the task on review of deciding afresh and on the material before it what is the correct or preferable decision in respect of that subject, unconstrained by the decision which is under review. In that review, it is nothing to the point that a particular argument with respect to the subject was made but rejected or even not advanced before the officer or body whose decision is under review. Further, the right to seek tribunal review conferred by s 176 of the VEA on the Commission, is, as the tribunal correctly understood, unaffected by anything it has said or not said before the VRB. 52 The tribunal was under a duty to ensure that Mr Kowalski was afforded an opportunity to be heard in respect of arguments not advanced before the VRB. This was but part of a wider procedural fairness duty which attended the tribunal's review function. The tribunal discharged that duty in carrying out that review function. 53 It is unnecessary, for the purposes of determining this appeal, to consider the extent to which, in later tribunal proceedings, an argument which could have been advanced in an earlier tribunal proceeding but was not or one that was advanced and was rejected in the decision in the earlier proceeding may be advanced in that later tribunal proceeding. The relevant conduct here was not before the tribunal on an earlier occasion and the relevant earlier decision was not that of the tribunal. 54 Thus, insofar as they were intelligible at all, there is no merit in the grounds of challenge to the judgment below. The appeal should be dismissed. There is no reason why costs should not follow the event. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Kowalski v Repatriation Commission

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