VETERANS' ENTITLEMENTS - remittal of "matter" by Federal Court to Tribunal - interpretation of remitter - whether remitter limits scope of rehearing by Tribunal -disability pension - generalised anxiety disorder - fresh evidence received by respondent that applicant not suffering from generalised anxiety disorder - Tribunal may consider issue of diagnosis on rehearing - application in AAT of estoppel by conduct, waiver and Anshun estoppel - meaning of "matter"

Administrative Appeals Tribunal Act 1975, s 44(5)

Veterans' Entitlements Act 1986, s 19, 31

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385

Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449

Repatriation Commission v Nation (No.2) [1995] FCA 1277; (1995) 57 FCR 25

Nation v Repatriation Commission (No. 2) [1994] FCA 1536; 37 ALD 63

Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374

Repatriation Commission v Parr [2003] FCA 970

Repatriation Commissions and Others v Yates (1997) 46 ALD 487

Re Wagener & Comcare [2003] AATA 1083

Fogarty v Repatriation Commission [2002] FCA 1541; (2002) 36 AAR 307

Brickworks Ltd v The Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568

Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide and Attorney-General (1974) 11 SASR 504

Roberts v Repatriation Commission [1992] FCA 642; (1992) 29 ALD 442

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117

Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 21 FCR 193

On 6 December 2002, the Full Court of the Federal Court (Heerey, Moore and Kiefel JJ) allowed an appeal against a decision made on 15 February 2002 by this Tribunal, and ordered that "the decision of the Tribunal should be set aside, the matter remitted to the Tribunal differently constituted and the respondent ordered to pay the appellant's costs" (Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 at [27]). In its decision, the Tribunal had recorded that at the hearing before it, no question had been raised concerning the diagnosis that the applicant suffered from a generalised anxiety disorder, being one of the conditions he was relying on. The following issues have now arisen, having regard to the terms of the remitter by the Full Court:

•

can the respondent on the rehearing by the Tribunal dispute that the applicant is suffering from a generalised anxiety disorder; and

•

is the respondent estopped from doing so.

I was told that these issues have arisen because following the decision of the Full Court, the respondent requested an updated report from a consultant psychiatrist, and the psychiatrist reported that, in his opinion, the applicant was not, in fact, suffering from a generalised anxiety disorder.

At a directions hearing to consider the above issues, Mr S Ower of counsel appeared for the applicant, and Ms S Maharaj of counsel appeared for the respondent. Counsel for the respondent requested and was granted leave to lodge supplementary submissions as to whether the respondent would be estopped on the rehearing from disputing the diagnosis conceded at the first Tribunal hearing. Submissions on this issue were received from the respondent's counsel on 14 May 2004, and a reply from the applicant's counsel was received on 31 May 2004.

On the rehearing of this matter by the Tribunal, a further question will arise as to the manner in which the rehearing should be conducted. It will be necessary to consider such questions as whether it will be necessary to recall any and if so which of the witnesses previously called, whether the transcript of the previous proceedings can be received and used as evidence on the rehearing, whether the parties can agree questions of fact or otherwise narrow the matters in issue by agreement between them, and whether the exhibits tendered in the earlier Tribunal proceedings should also be received in evidence on the rehearing. However, I consider that it would be appropriate to address those issues after a determination has been made as to the extent of the remitter. I will accordingly reserve those issues for further consideration, to enable the parties to consider these reasons, and to make further submissions as to those issues at a subsequent directions hearing.

The proceedings arose from a decision by the respondent on 15 April 1999 to refuse the applicant's claim for pension in respect of, inter alia, generalised anxiety disorder. In a second decision on 13 December 1999 the respondent refused claims for pension in respect of gastro-oesophageal reflux disease and alcohol dependence or alcohol abuse.

On 15 February 2002, the Tribunal affirmed the decisions of the respondent of 15 April 1999 and 13 December 1999. The Tribunal found that there was no material pointing to the clinical onset of the applicant's generalised anxiety disorder within two years of his experiencing certain severe stressors and, accordingly, the hypothesis advanced by the applicant was not consistent with the relevant Statement of Principles ("SoP"), and was not therefore a reasonable hypothesis (see the Tribunal's decision at [94]).

The appeal against the Tribunal's decision was allowed because the Full Court concluded (at [25]) that the Tribunal had not considered the evidence of the applicant's psychiatrist, Dr Ewer, about the history he obtained from the applicant as evidence which might bear upon the question of whether the clinical onset of the applicant's generalised anxiety disorder occurred within two years of the stressors. However, the Court found that the Tribunal did not err in its approach to the meaning of "clinical onset" in the SoP. This meant that it was not necessary for the Court to deal with a further ground of appeal in relation to the SoP concerning alcohol dependence or alcohol abuse, and the Full Court did not in its reasons for judgment refer to a further ground of appeal in relation to this aspect.

I note that in a judgment of the High Court of Australia on 12 March 2003, which was subsequent to the delivery of judgment by the Full Court in the present matter, the majority of the Court found that it was not appropriate for the Federal Court to make orders as to the constitution of the former Refugee Tribunal when a decision of that tribunal was set aside and remitted the matter for reconsideration by it: Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385. However, no issue has been raised as to this aspect of the Full Court's order in the present matter.

In determining the scope of the remitter from the Full Court, it is relevant to refer to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). Section 44(1) provides a right of appeal to the Federal Court from the Tribunal on a question of law. Section 44(3) confers jurisdiction on the Federal Court to hear and determine such appeals. Under s 44(4), the Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. Section 44(5) provides:

"Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

In considering the alternative submissions in relation to estoppel, it is also relevant to consider the provision of the Veterans' Entitlements Act 1986 (Cth) (the "VE Act"). This provides relevantly as follows.

"19(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:

(a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and

(b) subject to this section, determine the claim as provided by subsection (3); and

(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:

(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);

(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and

(c) any evidence, documents or other material furnished to the Commission under section 32.

(3) The Commission shall determine a claim for a pension as follows:

(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:

(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both ; or

(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).

...

(5A) If:

(a) paragraph (3)(b) applies in respect of a claim; or

...

the Commission must assess the matters set out in subsection (5C).

(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.

(5C) The matters that the Commission must assess are:

(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b) subject to subsection (6), the rate at which the pension is payable.

(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.

..."

In interpreting the scope of the remitter in the present matter, I think it important that the Full Court did not (as it was empowered by s 44(5) to do) give any directions limiting the ambit of the issues to be dealt with by the Tribunal on the rehearing. However, the Court's order was that the "matter" be remitted to the Tribunal, whereas s 44(5) empowers the Court to remit the "case" to be heard and decided again by the Tribunal. The use of this word in the Full Court's order has given rise to the first issue referred to in paragraph 1 above, since the applicant contends that the scope of the remitter is confined to the issue on which the appeal succeeded, that is, the Court's decision that there was material before the Tribunal pointing to the clinical onset of the disease within the two year period, and so there was no issue on appeal as to whether the applicant's generalised anxiety disorder was war caused.

Counsel referred me to a number of cases relevant to the role of the Tribunal following a remittal by the Federal Court, and the specific issue which has arisen as to the interpretation of the remitter in this case. The first of these cases is Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449 where the Federal Court allowed an appeal against a decision by the Tribunal in a tax case, and made an order which included the following terms:

"The case be remitted to the Administrative Appeals Tribunal to be determined according to law.

It be within the discretion of the said Tribunal whether to receive further evidence." (see 43 FCR at 450.5)."

An issue arose on a further appeal to the Federal Court, following the rehearing by the Tribunal, as to whether the Tribunal was in error for not having had regard to the findings of fact made by the Tribunal in the first hearing. The Full Court of the Federal Court (Sweeney, Keely and Gray JJ) allowed the appeal and ordered (inter alia) that it was within the discretion of the Tribunal whether to receive further evidence. The Court decided that when a case is remitted to the Tribunal to be heard and decided again, the Tribunal stands in the place of the original decision maker to make the correct or preferable decision, and retains its responsibility to find the facts. Gray J (with whom Keely J agreed) said (at page 455.8 - 456.2):

"The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned senior member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon a case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts."

The Court rejected (at page 456.5) an argument by the applicant that the Tribunal upon the remitter was confined to dealing with issues which remained unresolved after the appeal. In the absence of agreement between the parties to treat other factual and legal issues as having been determined by the first Tribunal hearing, Gray J added (at page 456.9 - 457.2):

"There is authority that, when a case is remitted to a court for re-trial after a successful appeal, the court is not bound by findings of fact made at an earlier trial. See Roe v R A Naylor Ltd (1918) 87 LJKB 958 at 963 per Swinfen Eady MR_. There is no reason why the Tribunal should be in any different position. This is particularly so, given that in any event the findings of the Tribunal cannot create an issue estoppel. See_ Commonwealth v Sciacca (1988) 17 FCR 476 at 480 and Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96-98_."_

I note, however, that Keely J did not express any opinion on this aspect of Gray J's reasons (see page 453.5).

In a later case on which the applicant strongly relies, namely the Full Court of the Federal Court decision in Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25, the first Tribunal affirmed a decision refusing the applicant a disability pension for an obsessive compulsive neurosis which he claimed had developed after he had nasal surgery for an accepted condition of bilateral sinusitis. The Court, at first instance, allowed an appeal against the Tribunal's decision, set aside that decision and remitted the matter to the Tribunal to be heard and determined according to law after admitting such further evidence as it considered appropriate: [1993] FCA 474; (1993) 18 AAR 273. At the remitted hearing, the Tribunal decided that the nasal surgery was a substantial contributing factor to the applicant's neurosis, but also decided that the sinusitis was not war-caused, an issue which the Commission had originally conceded. On an appeal against the second Tribunal decision, the judge at first instance, Northrop J, said that the order of the Court remitted the "matter" to the Tribunal, and the word "matter" meant "all things in dispute between the parties. In the Federal Court, the things in dispute were limited to the issue of causation from the nasal operation to the existing disease of obsessive compulsory neurosis. That was the matter remitted to the tribunal to be heard and determined. Nothing else was remitted." (see Nation v Repatriation Commission (No. 2) [1994] FCA 1536; (1995) 37 ALD 63 at 69). Northrop J accordingly set aside the decision and declared that the applicant's neurosis was a war-caused disease.

On appeal the Full Court agreed with this conclusion. It held that the second Tribunal went beyond its jurisdiction by embarking on the issue of whether the sinusitis was war-caused, and the only issue for determination by the second Tribunal was the issue of whether the neurosis was war-caused. Beaumont J (with whom Black CJ and Jenkinson J agreed) pointed out that the Court's order referred to the "matter" rather than the "case", but said that it appeared that an order of the kind provided by s 44(5) was intended; and as a matter of power, s 44(4) would, in any event, have authorised an order in terms of the order made. His Honour then proceeded to consider the "more difficult question" of whether, upon its true construction, the order should have been read down so as to have remitted to the Tribunal only that part of the claim as was concerned with the question of whether the neurosis was war-caused. His Honour cited authority to the effect that where a judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity, and that if the true meaning of a "speaking" order is not immediately plain, the true meaning may be ascertained according to ordinary rules of construction (see 57 FCR at pages 33.7 - 34.2). His Honour continued (at page 34.5):

"It follows from the ambiguity in the order of remitter that resort may be had, in aid of its true interpretation, to the surrounding circumstances. Those circumstances included, of course, the reasons for judgment. When regard is had to those reasons, it appears clearly that the meaning to be given to "matter" in the present context is the more restricted one, that is, the sequela question. That was the only issue tendered for determination by the Court. There was no issue that the sinusitis was war-caused."

The Full Court accordingly agreed with Northrop J that the Tribunal went beyond its jurisdiction in embarking upon the issue of whether the sinusitis was a war-caused disease.

Beaumont J also alluded to the relevance of issues of waiver, estoppel and abuse of process in relation to whether the Commission should be able to re-agitate the sinusitis in question. His Honour said:

"I would add that, even if "matter" were to receive here a broader interpretation, other questions argued in the appeal would require consideration, for instance, whether, by agreeing to confine the issues before the first Tribunal, the Commission should be held to have waived its right to re-agitate the sinusitis question or to be estopped from doing so (cf Commonwealth v Verwayen (1990) 170 CLR 394 at 413, 422, 444, 448, 453, 461 and 502). Another possible approach would hold that the circumstances are analogous to an abuse of process if the Commission were to be permitted, unreasonably, to re-agitate an issue, viz, sinusitis, long since treated as settled as a matter of administrative action (see Walton v Gardiner (1993) 177 CLR 378 at 395-396; cf Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602). But it is not necessary for me to pursue these questions in the light of the conclusion I have reached on the scope of the remitter." (57 FCR at page 34.7).

In Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374, a contrary interpretation was given to the order for remittal. In this case, the first Tribunal affirmed the refusal of a visa because the "association ground" in s 501(2)(b) of the Migration Act had not been satisfied, but it found that the "incite discord" in s 501(1)(b)(iii) had been made out. On an appeal against this decision, Sackville J ordered that the "matter" be remitted to the Tribunal for determination according to the law. On the hearing of the appeal before Sackville J, the Minister conceded that the Tribunal had erred and that the decision must be set aside. The only issue before Sackville J therefore was whether the case should be remitted with a direction that s 501(2) had no application to the applicant. His Honour refused to make a direction to this effect. There was no challenge to the findings of the Tribunal in relation to s 501(2), and the only question of law raised in the notice of appeal before Sackville J related to the incite discord ground in s 501(1)(b)(iii). On the remitter hearing, the Tribunal received further evidence in relation to the association ground (i.e. s 501(2)(b)). On an appeal against the second Tribunal's decision, it was argued that as the only issue on the appeal before Sackville J was the incite discord ground, the second Tribunal had erred as it was barred from taking evidence in respect of the association ground. The Full Court rejected this argument. It said (at page 387):

"If Sackville J had intended to limit the introduction of further evidence it would have been a simple matter for him to have specifically so directed, as provided for in s 44(4)(sic) of the AAT Act. His Honour did not do so and he expressly declined to give a general direction that the AAT should not receive further evidence.

Accordingly, the intention and effect of the order, in our view, was that the whole matter was remitted to the AAT, without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with."

Counsel for the respondent also referred to Repatriation Commission v Parr [2003] FCA 970, where the parties agreed that the Tribunal had made an error of law in its approach to the question of the clinical onset of the relevant conditions, but there was a dispute as to the terms of the order which the Court should make under s 44(5) of the AAT Act. Moore J was not prepared to make, and did not make, an order to constrain what the Tribunal could consider. His Honour said:

"[16] Counsel for the respondent submitted that the order in this matter should be in terms which ensure the Tribunal only considers when there was clinical onset of the generalised anxiety disorder and alcohol abuse, and whether that occurred within the requisite two year period. It was contended that to follow any other approach would potentially expose for reconsideration the Tribunal's findings about the existence of both conditions, and not simply when there was clinical onset of each. Counsel for the respondent also submitted that the Tribunal should be directed to determine the matter without receiving further evidence.

[17] In my opinion I should not make an order that, in express terms, constrains what the Tribunal can consider. I should, as commonly occurs, make an order remitting the matter for further hearing and determination by the Tribunal according to law, which reflects a formulation of the order sought by the Commission. However the Tribunal will no doubt be made aware that the error of law alleged by the Commission in its notice of appeal only arose "when [the Tribunal was] determining the time at which the clinical onset of generalised anxiety disorder and alcohol abuse occurred". It will be a matter for the Tribunal, aided by submissions of the parties, to determine the scope of what it can consider having regard to the terms of the order: see Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25. The Tribunal may well take the view that it is possible to divorce the question of whether a person suffers from a disease or disorder from the question of when clinical onset of the disease or disorder occurred."

This decision appears therefore to be consistent with the Full Court's approach in Morales (supra), although that case is not referred to by his Honour. The last two sentences of the above extract, and his Honour's reference to Nation (supra) contemplated that the Tribunal on the rehearing might confine the scope of what it could consider to the matter which was the subject of the error of law, (namely the time when the clinical onset of the disease or disorder occurred), but that the scope of what it could consider on the rehearing would be a matter for the Tribunal to determine.

Finally, the respondent referred to Repatriation Commissions and Others v Yates (1997) 46 ALD 487, where Lindgren J allowed an appeal from the Tribunal to the Federal Court and ordered that the "matter" be remitted to the Tribunal "to be heard and decided in conformity with the reasons for judgment", but the penultimate paragraph of the reasons for judgment stated that the matter should be "heard and decided again ... in conformity with the foregoing reasons, without the hearing of further evidence." Notwithstanding this reference in the reasons for judgment, Moore J held that the Tribunal could receive further evidence on remitter. His Honour concluded that if Lindgren J had intended that the order would fetter the Tribunal's capacity to receive further evidence, he would have expressly embodied this in his order, rather than including this "indirectly and ambiguously" in the direction in the reasons for judgment. Moore J also said that in determining the meaning of the order, it was relevant that the specific issue before Lindgren J was whether the Tribunal erred in law in its consideration of whether there was an aggravation of a defence-caused disease in a particular period, whereas the matter before the Tribunal was the larger question of whether the applicant's claim for pension should be allowed. His Honour referred to the steps the Repatriation Commission must follow when determining a claim as set out in s 19 of the Act, and said (at page 494.2):

"The task of the tribunal, prior to the judgment of Lindgren J, was to embark the course charted, indirectly, by s 19 of the Act. In my view, the real issue is whether Lindgren J intended to limit or modify what the tribunal would otherwise have to do and, in particular, might do in accordance with s 19(2)(b)."

Moore J also observed that his conclusion that the Tribunal could have received evidence was supported by the fact that the Commission had not, before Lindgren J, sought an order fettering the power of the Tribunal to receive further evidence, and the parties did not make submissions on the matter.

In Nation, Morales and Yates (supra), after allowing an appeal the Federal Court made an order remitting the "matter" to the Tribunal to be heard and determined according to law, and the question arose as to what was meant by the word "matter". The same question has arisen in the present proceedings. It is apparent from the above cases that the word "matter" is potentially ambiguous. I was informed by the respondent that the issue in the present case has implications in other proceedings, where similar orders have been made. It seems to me very unfortunate that issues of this sort arise; they could, of course, be avoided if parties to appeals to the Federal Court are assiduous to ensure that there is no ambiguity in the orders made when matters are remitted to the Tribunal, having regard to the powers of the Federal Court under s 44(5) of the AAT Act including the Court's power to craft directions which are appropriate to the circumstances of each particular case. Indeed, one way of resolving any ambiguity in the Federal Court's order in the present matter might have been for the parties to approach the Federal Court to clarify its order by varying it if this were thought necessary. It appears that the Court would not have been functus officio for this purpose: Yates (supra) at page 494.4. However, I understand that the parties thought that the issue could be determined with less expense and formality by this Tribunal. In any event, the issue has apparently arisen in the present manner because of new medical evidence to the effect that the applicant is not suffering from a generalised anxiety disorder, and the respondent did not receive this evidence until after the conclusion of the appeal.

Where the issue of what should be the scope of the remitter has been the subject of argument and the Court's order was made in general terms notwithstanding argument that the scope of the remitter should be restricted (as in Morales and Parr), I think the conclusion can more readily be reached that the remittal of the "matter" was intended not to be limited in scope. However, there is nothing before me to indicate that in the present matter, the scope of the remitter was the subject of argument.

The present case is therefore more like the situation in Nation and Yates, where opposite interpretations were arrived at. In Nation, however, there had been a review by the Repatriation Board in 1983 of whether the veteran's sinusitis was war caused, and this was favourable to the veteran, with the result that he was eligible for treatment for his sinusitis. In these circumstances, his entitlement (entailing a finding of a diagnosis of sinusitis) was of long standing when the Tribunal heard the veteran's case on remittal from the Federal Court in 1994, and it is perhaps not surprising that the Court in Nation (No.2) held that the remitter was not intended to re-open this long standing administrative decision. On this basis, Nation can be distinguished on its facts from the present matter.

In the present matter, as mentioned above, the respondent wishes to re-open the issue of the diagnosis of a generalised anxiety disorder because of the new medical evidence. This new evidence would have raised a threshold issue in the determination of the applicant's pension entitlement if it had been raised at the first Tribunal hearing. Under s 19(2)(b) of the VE Act, the Commission, when considering a claim for pension, may consider any evidence submitted to it after the claim was lodged. Further, there is provision in s 31(2) of the VE Act for the Commission to review and vary an earlier decision of its own motion where an application has been made by a veteran to this Tribunal for a review of a decision by the VRB, but the review has not been determined. The respondent could, in my opinion, still use its powers under this section to review its earlier decision as regards diagnosis, although so far it has not apparently chosen to do so.

If the new medical evidence had become known to the respondent before the Tribunal had determined the first hearing, the Tribunal would undoubtedly have given the respondent leave to adduce the new evidence, subject, if so requested, to adjourning the proceedings in order to enable the applicant to investigate the new evidence and to obtain a further medical assessment. This course of action would be consistent with the Tribunal's function of acting in place of the decision-maker and arriving at the correct or preferable decision. Further, it would be incumbent on the Tribunal to take into account all evidence available to it up to the time of its decision: Yates at page 493.4 (where Moore J referred to the possibility that the Tribunal might receive evidence of incapacity, contribution or aggravation well after the claim had been considered by the primary decision maker), and see also Re Wagener and Comcare [2003] AATA 1083 at [33] and [34] and the cases there cited. Further, under s 19(1)(a) of the Veterans Entitlements Act, the Commission is under a statutory duty to consider all matters that, in its opinion, are relevant to the claim, and the issue of whether or not the veteran is suffering from a disease is a matter which must be determined at the outset: Fogarty v Repatriation Commission (2002] [2002] FCA 1541; 36 AAR 307 at [14] and [16], and on appeal [2003] FCAFC 136 at [37]. The Commission cannot be estopped from carrying out its statutory obligations or exercising discretions conferred on it by statute: Brickworks Ltd v The Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568; Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide and Attorney-General at 511.3 to 513.5. For the above reasons and for the reasons referred to in paragraph 22 above, it would seem inappropriate therefore to interpret the remitter in the present case so as to prevent the Tribunal from admitting the new and relevant medical evidence now available.

Having regard to the above considerations, if the respondent had been in a position to and had informed the Federal Court, on the hearing of the appeal of the existence of the new medical evidence, the Court would almost certainly have intended that when the case was remitted to the Tribunal, the Tribunal would not have been precluded from receiving that new evidence on the rehearing. (I refer in this regard to the analysis of Moore J in Yates of the Commission's responsibility under s 19 of the VE Act to consider the various steps entailed in determining a claim by a veteran for a pension. The first of those steps is for the veteran to satisfy the Commission that he or she is suffering from the asserted condition.) However, it appears that neither the parties nor the Full Court turned their mind to this issue.

For the reasons referred to above I have concluded that in the circumstances of the present matter, the remitter should not be restricted in the manner contended for by the applicant, and that it will be competent for the respondent, if so advised, to dispute that the applicant is suffering from a generalised anxiety disorder.

Counsel for the applicant further submitted that if the remitted matter were to be regarded as including the issue of diagnosis, then by not raising the issue at the first Tribunal hearing:

(a) the respondent has waived its right to re-agitate the diagnosis issue or estopped from doing so (and counsel relied on the authority of The Commonwealth v Verwayen (1990) 170 CLR 394 at 413, 422, 444, 448, 453 and 462); or

(b) the circumstances are analogous to an abuse of process if the respondent were to be permitted, unreasonably, to re-agitate an issue treated as settled as a matter of administrative action (and counsel relied on the authority of Walton v Gardiner (1993) 177 CLR 378 at 395-6 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602.

However, in his subsequent written submission, counsel for the applicant said:

"(a) It appears that the issue of estoppel by conduct and the Tribunal has been determined adversely to the present applicant's contentions in Roberts v Repatriation Commission [1992] FCA 642; (1992) 29 ALD 442. See also Re Bowen and Repatriation Commission [1994] AATA 53; (1994) 32 ALD 700, which recounts the history of the Roberts litigation, including the fact that an application for special leave to appeal was refused from the decision of the Full Court of the Federal Court.

(b) Accordingly, the applicant notes that the Tribunal is bound by Roberts in relation to the estoppel/waiver issue but reserves its position to argue the issue of both estoppel and waiver (which the respondent does not address) on appeal under s 44 of the Act".

Notwithstanding counsel's concession, I am not sure that the question of whether the doctrines of waiver and estoppel apply in this Tribunal has been conclusively determined (see for example the decision of the Full Court in Nation, quoted in paragraph 15 above). Further, in Roberts it was decided that the Commission, and so also the Tribunal, had no authority under the relevant section of the VE Act to order payment of a pension from an earlier date, because the relevant application had not been made within the relevant statutory period of three months; the doctrine of estoppel could not extend the powers of the Tribunal. I will accordingly briefly refer to the further issues referred to in paragraph 24 above notwithstanding counsel's concession.

In helpful and detailed submissions on these further issues, counsel for the respondent submitted, after referring to a number of authorities, that in determining whether an estoppel by conduct has arisen, three essential elements must be established, namely induced assumption, detrimental reliance and reasonableness. She also submitted that a "fourth element, unconscionability, may also be required". Counsel pointed out that the respondent's concession was not a concession that the applicant was suffering from an anxiety disorder "for all time"; and I note that in paragraph 4 of the respondent's contentions lodged in this Tribunal on 16 November 2001, the respondent merely concedes that "the applicant is now suffering from an anxiety disorder" (emphasis added). However, this concession must also be read in conjunction with the respondent's position on the hearing of the applicant's claim in the first Tribunal hearing, which I have recounted in paragraph 1 above. There was apparently no reservation at the hearing that the respondent would at some future time retract the concession it had made, and the recital of the position by the Tribunal does not indicate that the respondent's concession was subject to any temporal qualification. I therefore conclude that the applicant should not have understood the respondent's concession to be so qualified.

On the issue of detriment, Mr Ower for the applicant argued that if the applicant had been aware that the issue of diagnosis was an issue, he may not have incurred the risks and expense of an appeal to the Federal Court against the adverse decision in the first Tribunal hearing. However, as events transpired, his appeal was successful and he obtained an order as to costs, which presumably substantially covered his solicitor and client costs. In the circumstances, it would appear to be difficult for the applicant to establish as matter of fact that he acted to his detriment.

Counsel for the respondent further submitted that estoppel cannot be relied upon to preclude the performance of a statutory duty or the exercise of a statutory discretion, and referred to Brickworks Ltd v The Council of the Shire of Warringah (supra) and also to Formosa v Secretary, Department of Social Security (1988) 46FCR 117 at 124-5 and to Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 21 FCR 193. These authorities would, in my view, prevent the applicant from relying on estoppel in the circumstances of the present case, especially where the decision-maker is under a statutory duty to consider claims for pension in accordance with s 19 of the VE Act, and the proceedings in this Tribunal are administrative and not inter partes.

Finally, counsel submitted that the respondent had not behaved unconscionably, and referred to the dictum of Deane J in Verwayen (supra) that the "[representor] must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it": (1990) 170 CLR 394 at page 444. In this context, the temporal qualification in the respondent's Statement of Contentions is relevant, as is the fact that the circumstance which has given rise to the respondent raising the issue of diagnosis arises from new evidence not previously available. It is also relevant that under s 19(2)(b) of the VE Act, the respondent is expressly empowered to consider evidence submitted to the Commission after a claim or application has been made to it, and this Tribunal now stands in the shoes of the Commission. In the above circumstances, the respondent has not, in my view, acted unconscionably in seeking to agitate the issue of diagnosis in the rehearing.

From a more general perspective, I think it is relevant take into account that this Tribunal performs an administrative function and not a judicial function, and the proceedings in the Tribunal are not inter partes. The Tribunal's task is to arrive at the correct or preferable decision. It seems to me that the function may be impeded by an application of the doctrines such as waiver and estoppel in circumstances where a particular issue has been conceded by the respondent, but there is then a change of circumstances because new evidence has become available which requires evaluation by the decision-maker.

Counsel for the applicant also referred to Walton (supra) and Anshun (supra) in his written submissions, but did not press this argument in his oral submissions. Whilst it is not clear that the Anshun estoppel doctrine applies in this Tribunal, I consider that there is no basis for its application on the facts of this matter, since there is no suggestion on the facts before me that the respondent behaved unreasonably in not raising the issue of diagnosis in the first Tribunal hearing; the respondent is now only seeking to raise the issue of diagnosis because it has become aware, since that hearing, of new medical evidence.

For the above reasons, I direct that on the rehearing of this matter on remittal from the Federal Court, the respondent may, if so advised, raise the issue of whether the applicant suffers from an anxiety disorder, and the Tribunal may receive evidence on that issue. I reserve for further consideration the issue of the manner in which the rehearing should be conducted.

I certify that the 34 preceding paragraphs are a

true copy of the reasons for the decision herein

of Deputy President D G Jarvis

Signed: .....................................................................................

N. Quirke Associate

Date/s of Hearing 19 April 2004

Date of Decision 7 June 2004

Counsel for the Applicant Mr S Ower

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Ms S Maharaj