4. A delegate of the respondent, in a decision dated 18 June 1984, determined that the applicant's chronic bronchitis and pancreatitis were war-caused. The applicant received a pension as a result of this determination. On 13 August 1990 the applicant applied for an increase in his pension on the basis that he was suffering from diabetes mellitus, ischaemic heart disease and cerebro vascular disease. The applicant claimed that his pancreatitis had lead to diabetes mellitus thus the diabetes was also war-caused. This claim was rejected by the Repatriation Commission (the Commission) and by the Veterans' Review Board (the Board) upon review. In its decision the Board accepted that there was a causal connection between the applicant's pancreatitis and his diabetes mellitus. The Board however, refused to accept the 1984 determination of the Commission that the applicant's anxiety state which had caused his pancreatitis was war-caused. So the applicant's pancreatitis and diabetes mellitus were found not to be war-caused.

5. At this hearing it was agreed that the parties would only make submissions on the preliminary point as to the effect of the 1984 determination.

6. The issue raised for preliminary decision is whether the Tribunal is prevented or estopped from finding on review that the applicant's pancreatitis was not war-caused because of the earlier determination of the Repatriation Commission.

7. The applicant's first submission concerned the power of the Administrative Appeals Tribunal (AAT) to find that the applicant's pancreatitis was not war-caused. In submitting that the AAT had no jurisdiction to disturb the earlier determination of the Commission, the applicant relied upon the decision of the High Court in Repatriation Commission and O'Brien [1985] HCA 10; (1984) 155 CLR 422.

8. In that case the respondent, Mr O'Brien, served in the Royal Australian Air Force from 20 January 1942 until 1 July 1946. In the years 1946 to 1970 the Repatriation Board accepted two disabilities as war-caused and a third, anxiety hysteria, as war-caused but resulting in negligible incapacity. The degree of incapacity resulting from the respondent's anxiety hysteria was raised by the Repatriation Board from nil to 20% in 1970. In 1974 the respondent applied for a war pension on the basis that his recently diagnosed essential hypertension was war-caused. This claim was considered and rejected by the Repatriation Commission five times, (it was referred to the War Pensions Entitlement Appeals Tribunal and sent back to the Repatriation Commission four times). After the fifth rejection it was referred again to the War Pensions Entitlement Appeals Tribunal but during this time, as a result of the Repatriation Acts Amendment Act 1979, that body was replaced by the Repatriation Review Tribunal. The Repatriation Review Tribunal considered the case and used its powers to direct that the AAT examine the five decisions of the Commission. The AAT found that the respondent's anxiety hysteria was not war-caused so that even if his essential hypertension was causally related to his anxiety hysteria, it was not war-caused. On appeal to the High Court it was found that the AAT in that case, pursuant to s107VZZB(8) of the Repatriation Act 1920 was empowered to look at the five decisions concerning essential hypertension only (per Gibbs C.J., Wilson and Dawson JJ. at 428-429). The decision of the Repatriation Board that the respondent's anxiety neurosis was war-caused was not challenged at any time below and was not in the terms of reference given by the Repatriation Review Tribunal to the AAT. Therefore the AAT had "no power to entertain" that issue.

9. O'Brien has been applied by the full Federal Court in Sprod v Repatriation Commission (1985) 2 RPD 504 (per Davies, Lockhart and Sheppard JJ. at 507, 518 and 520 respectively), in the same circumstances, and by the AAT in Re Deller and Repatriation Commission [1989] AATA 188; (1989) 18 ALD 317, (per Hartigan J, Mr D Allen and Dr M Thorpe at 318-319). Reference is made to a "lack of jurisdiction" in both of these cases but in my view this relates only to the limits of the terms of reference, that is, the AAT's jurisdiction in O'Brien was circumscribed by the referring instrument, which in that case, did not include the earlier determination of the Repatriation Board.

10. The present case is different to O'Brien in that it came to the Tribunal pursuant to subsection 25(1) of the Administrative Appeals Tribunal Act /175(a) of the Veterans' Entitlements Act 1986. In such a review the AAT stands in the shoes of the decision maker. If it was open to the Repatriation Commission and the Veterans' Review Board to find that the applicant's pancreatitis was not war-caused it is also open to this Tribunal to do so.

11. In Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354 Fisher and Lockhart JJ. held that issue estoppel has no application to the AAT because it is a rule of evidence. Rules of evidence are expressly excluded from AAT procedures by sub-section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (at 359). In Commonwealth of Australia v Sciacca (1988) 17 FCR 476 the full Federal Court (Bowen C.J., Sheppard and Morling JJ.) held that even if issue estoppel was seen as a rule of law it would not apply in the AAT because of "the administrative nature of the Tribunal and the provisions of s33(1)(b) of the Administrative Appeals Tribunal Act which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality" (at 480). They went on to say "A finding by an administrative tribunal will not give rise to issue estoppel" (at 480). In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 Gummow J, having regard to Sciacca and Daniele, said that "The question whether issue estoppel applies to decisions of the Administrative Appeals Tribunal has not been conclusively settled."(at 219). However in Midland Metals Overseas Limited v Comptroller-General of Customs (unrep. Federal Court 6 June 1991) Hill J said:

"Counsel for the applicant referred to the judgement of the full court in

Sciacca (supra at 480) in support of the proposition that in that case the

court had found it unnecessary to decide whether the doctrine of issue

estoppel applied in the Tribunal. But what the full court left open was

the question of whether the decision of the Tribunal itself created an

issue estoppel, a matter on which the Tribunal expressed a firm view

in the cited passage above. Rather, it was the question whether, a

matter having been decided in a court, the decision of the court

gave rise to an issue estoppel in the Tribunal thereby precluding

the Tribunal from investigating the underlying facts. Cf also

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR

354, and the comments of Gummow J on Sciacca in Minister for

Immigration, Local Government and Ethnic Affairs v Kurtovic (1990)

[1990] FCA 22; 21 FCR 193 at 219." (at 23-24)

I agree with the reasoning of Hill J and consider that the principle expressed in Sciacca applies in this case.

12. There is therefore no legal bar, either by way of jurisdictional limitation or estoppel, to the Tribunal examining the facts underlying the 1984 determination of the Commission that the applicant's pancreatitis is war-caused.

13. The parties have agreed to an adjournment of the proceedings and to the Tribunal being reconstituted for the remainder of these proceedings.