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Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 (1 July 2008)
Last Updated: 1 July 2008
CATCHWORDS – PRACTICE AND PROCEDURE – COMPENSATION –estoppel – claims previously made for compensation arising from employment – whether raising same substantive issues – relevance of principles of res judicata, estoppel, issue estoppel and Ashun estoppel in proceedings of Tribunal – whether application frivolous or vexatious – power of Tribunal to limit evidence on matters canvassed in review of previous decisions and subject of extensive findings of fact – application not dismissed but evidence restricted.
Administrative Appeals Tribunal Act 1975 ss 2A, 25, 33(1)(c), 37, 42B, 43, 44 and 64(1)Administrative Decisions (Judicial Review) Act 1977Compensation (Commonwealth Government Employees) Act 1971 Defence Force Retirement and Death Benefits Act 1973Judiciary Act 1901 s 39BSafety, Rehabilitation and Compensation Act 1988 ss 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 38(4), 60(1), 62 and 64Veterans’ Entitlements Act 1986 ss 14(5), (6) and (7)
Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11Blair v Curran (1939) 62 CLR 464Bogaards v McMahon (1988) 80 ALR 342Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1998) 164 CLR 502Coalcliff Collieries Pty Ltd v Campbell (1965) 112 CLR 349Comcare v Grimes (1994) 50 FCR 60; 121 ALR 485; 33 ALD 548; 19 AAR 422Commonwealth v Muratore (1978) 141 CLR 296Commonwealth v Sciacca (1988) 17 FCR 476; 78 ALR 279Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321Director General Security v Sultan and Another (1998) 90 FCR 334Esber v Comcare (1992) 174 CLR 430; 106 ALR 577Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13Formosa v Secretary, Department of Social Security (1988) 81 ALR 687; 15 ALD 657General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155Jackson v Goldsmith (1950) 81 CLR 446JF Keir Pty Limited v Sparks [2008] FCA 611Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18Lees v Comcare [1999] FCA 753Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424Miller v University of New South Wales (2003) 132 FCR 147; 200 ALR 565 [2003] FCA 180Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234Morales v Minister for Immigration and Multicultural Affairs (1998) 151 ALR 51Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923Plumb v Comcare (1992) 17 AAR 1; 39 FCR 236Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317Rana v Chief of Army [2005] FCA 1283Rana v Chief of Army Staff [2006] FCAFC 63; (2006) 90 ALD 474Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1) (1992) 28 ALD 25; 16 AAR 158Re Jebb and Repatriation Commission (2005) 86 ALD 182; [2005] AATA 470Re Lowth and Comcare [1999] AATA 645Re Matusko and Australian Postal Corporation (1995) 21 AAR 9; [1995] AATA 14Re McWilliam and Civil Aviation Safety Authority (2005) 89 ALD 391; [2005] AATA 1148Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133Re Proctor and Commissioner of Taxation (2005) 87 ALD 247; 59 ATR 1064; [2005] AATA 389Re Quinn and Australian Postal Corporation (1992) 15 AAR 519Re Street Nation and Australian Communications Authority (2004) 86 ALD 413; 40 AAR 68; [2004] AATA 1251Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366Rodriguez v Telstra Corporation Limited [1999] FCA 1400Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578; 102 ALR 19Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1Smith v Caltex Australia Petroleum Pty Ltd (2004) 80 ALD 106; [2004] FCA 480Stuart v Sanderson (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870Tankey v Adams (1999) 56 ALD 501; [1999] FCA 683WE Bassett and Partners Pty Ltd v John Francis Doherty [1997] FCA 715WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294
DECISION AND REASONS FOR DECISION [2008] AATA 558
ADMINISTRATIVE APPEALS TRIBUNAL ) ) 2007/1885 andVETERANS’ APPEALS DIVISION ) S 200600223
Re: RANJIT RANA
Applicant
And: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie Date: 1 July 2008Place: Melbourne
Decision: 1. The Tribunal decides that:
(1) the respondent’s application that the applicant’s application be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 be refused; and
(2) under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a) inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re “SAN” and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b) not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
2. The Tribunal directs that:
(1) by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2) by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
3. gives the parties liberty to apply.
S A Forgie
Deputy President REASONS FOR DECISION
Mr Rana has applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (1988 Act) and has done so on two earlier occasions that have led to review in the Tribunal. On both occasions, he has been unsuccessful. On all occasions, he has relied on events that can generally be described as physical, mental and other abuses that he alleged occurred during his employment with the Army. The conditions for which he claimed compensation have varied on each occasion. A delegate of the Military Rehabilitation and Compensation Commission (MRCC) refused Mr Rana’s latest claim for compensation on the basis that, in summary, the issues had been the subject of earlier determinations and decisions. When Mr Rana applied to the Tribunal for review of the decision, the MRCC applied for an order dismissing them on two bases. One was that the doctrines of res judicata or issue estoppel meant that the Tribunal had already considered the matter and could not do so again. Alternatively, the MRCC sought an order under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) dismissing the application on the basis that they are frivolous and vexatious. I have decided that they should not be dismissed and that the doctrines of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel have no place in proceedings of the Tribunal.[1] Instead, I have decided to rely on s 33(1)(c) of the AAT Act to limit the evidence that can be led regarding the events in Mr Rana’s employment to the findings of fact made by the Tribunal in the two previous proceedings.BACKGROUND
2. In this section of my reasons, I will summarise the claims and decisions in chronological order together with a further proceeding that Mr Rana instituted against the University of Adelaide.
4 September 1984: claim for compensation for psychiatric condition
3. The only record that I have of Mr Rana’s claim and of its outcome is in the reasons for decision of the Tribunal given on 22 April 1988.[2] That decision concerned reviewable decisions made by the then Commissioner for Employees’ Compensation (CEC) under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) then in force. It appears from the reasons that Mr Rana’s claim for compensation made on 4 September 1984 was to the effect:
“... that he suffered from a psychiatric condition (personality disorder and/or adjustment disorder or reactive depression) as a result of his employment with the Australian Army. In particular, he alleges that during his employment in the Army which began on 14 October 1980 and ended with his discharge on 13 July 1982, he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. ...’[3]
4. Mr Rana’s also made a second claim for compensation that was dealt with by the Tribunal but it was for a condition not relevant in this case.[4]
5. On review, the Tribunal decided that Mr Rana had a personality disorder, although not of a high order, before he migrated to Australia. On his arrival in Australia, Mr Rana faced a number of stresses both in his personal life and during his Army service. The Tribunal found that:
“... All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which Army service was but one component.
The Tribunal does not consider that the Army service caused the applicant’s personality disorder or adjustment disorder, or reactive depression but finds that such adjustment disorder and reactive depression were aggravated by the conditions of his employment.
However, the Tribunal is not persuaded that since April 1985, the applicant has continued to suffer from an aggravation of an adjustment disorder or reactive depression due to his Army service. Certainly the applicant’s employment with the Army was a contributing factor to the aggravation of this disorder within the meaning of s 29 of the Act. But in accepting the medical evidence ..., the Tribunal finds any continuance symptomatic of a disorder to be probably the result of other life stress factors currently operating and not those relating to the applicant’s period of Army service.”[5]
29 August 2001: claim for compensation and rehabilitation in respect of psychotic paranoid reaction resulting in a mental condition
6. I do have a record of Mr Rana’s claim dated 28 August 2001 and lodged on the following day as it led to his making an application to the Tribunal. It appears in the documents lodged under s 37 of the AAT Act (T2005/58 documents). He claimed compensation for “psychotic paranoid reaction”, which he described as a “mental condition”.[6] Mr Rana answered the questions set out in the claim form. His answers were to the effect that he had sustained the injury when performing military duties by reason of “emotional and physical harassment by the other Defence Force members.”[7] All of his interactions as a storeman with others contributed to his illness. In its decision in reviewing the reviewable decision that was ultimately made, the Tribunal noted that Mr Rana had:
“... subsequently asserted that the ‘correct diagnosis’ should have been ‘post-traumatic disorder with features of paranoid pscizonphrenia (sic)’....”[8]
7. The delegate refused Mr Rana’s claim for a psychiatric condition, however described arising out of his Army service between 1980 and 1982. The delegate referred to Mr Rana’s previous claim for “acute depression” that he had lodged on 4 September 1984 and stated that the two claims dealt with the same issues. The Tribunal had reviewed the decision at the time and Mr Rana had not produced any further evidence. Therefore, the findings of that Tribunal remained persuasive.
8. Comcare, which then had responsibility under the 1988 Act, submitted that the Tribunal did not have jurisdiction to review the decision because, in order to do so, it would have to revisit issues that had been the subject of the Tribunal’s decision in 1988. At a directions hearing, Deputy President Jarvis and I heard submissions from both parties on that matter. We decided that the Tribunal:
“... had jurisdiction to hear the application for review of the respondent’s decision to refuse the applicant’s claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder (‘PTSD’) on the basis that the 1988 Tribunal decision did not determine the applicant’s entitlement to compensation for those two conditions. The Tribunal further directed that the application for review was to be limited to the conditions of paranoid reaction and PTSD. ...”[9]
9. The hearing was conducted by Deputy President Jarvis and Dr Eriksen, Member, on the basis that it was limited to the two conditions and the Tribunal decided that Comcare’s decision to refuse Mr Rana’s claim was correct and that he was not entitled to compensation in respect of them.[10] In doing so, they were not reasonably satisfied that Mr Rana’s army service contributed to the development of paranoid psychosis.[11] With regard to PTSD, they did not accept that he had suffered the symptoms necessary to support its diagnosis in his case.[12] Neither his paranoid psychosis nor his PTSD had been aggravated by Mr Rana’s army service.[13] They were not satisfied that Mr Rana’s army service caused or contributed to his condition of paranoid psychosis. That was a condition that they found he developed either during or soon after his army service. It developed further over the years until its diagnosis in 1998.[14]
10. In the course of its consideration, the Tribunal concluded:
“We referred in paragraph 98(e) above to the Tribunal’s findings in its 1988 decision to the effect that the applicant was subjected to physical assaults or racial vilification or verbal abuse during his army service. The proceedings before us did not focus on the question of whether these events occurred, and this issue clearly would not have affected the opinion of Dr Davis, which we have accepted in preference to that of Dr DePasquale, because he took into account the applicant’s history that he had been subjected to the sexual assaults as well as non-sexual physical abuse and verbal abuse. We refer in particular to his evidence at pages 7.7 to 8.2 and 10.1 to 10.4 of the transcript of 04.09.03. We are inclined to accept that the applicant was subjected to certain non-sexual assaults and abuse as found in the 1988 decision, but we find on all of the evidence before us that these events did not have the effect that the applicant’s employment contributed to the conditions asserted by the applicant in the present proceedings.”[15]
11. Mr Rana lodged an appeal to the Federal Court from the decision of Deputy President Jarvis and Dr Eriksen. It was heard by Finn J, who dismissed it on 12 January 2005.[16] His Honour said that he could not discern any error of law that should be decided in Mr Rana’s favour and added:
“... His claims, in the main, do not rise above what are in substance challenges to the merits of individual findings and conclusions notwithstanding that the language in which those challenges are cast often reflects well-known grounds of judicial review. I need only reiterate that any court reviewing a decision of the Tribunal cannot turn ‘a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision’: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at 272.”[17]
12. A Full Court of the Federal Court constituted by Marshall, Mansfield and Stone JJ dismissed Mr Rana’s appeal from the judgement of Finn J on the basis that there was no error of law disclosed in his judgment.[18]
13. Mr Rana made an application to the High Court. At a hearing on 4 May 2007, it was treated by Crennan J as an application for orders nisi for prerogative writs. Among the grounds on which Mr Rana claimed for relief on bias, surprise, undue intervention, irrelevant considerations, denial of natural justice, jurisdictional error, factual errors, unreasonableness, collusion and factual reasons. Crennan J found that neither Mr Rana’s submissions nor the material that he had filed supported any arguable ground for relief and dismissed his application.[19]
November and December 2004: hearing of evidence in Rana v University of Adelaide
14. Mr Rana brought proceedings against the University of Adelaide and it would appear from the later judgment of Lander J in Rana v University of Adelaide[20] that the earlier proceedings were settled between them. Whatever the outcome, a transcript of part of the evidence appears in the material I was given. That is a transcript of the evidence given by Dr Bal Krishna Jha, who is a senior consultant psychiatrist at the Royal Adelaide Hospital.
15. Dr Jha answered various questions and, in doing so, made a number of points. DSM-IV, which is the American Diagnostic and Statistical Manual of Mental Disorders, recognises paranoid schizophrenia. People who suffer from paranoid schizophrenia may have a personality disorder but the two are different. A personality disorder is not a psychosis. Despite that, it is most likely that a person with paranoid schizophrenia will have a paranoid personality disorder and that, under stress, the paranoid personality disorder will bloom into full paranoid schizophrenia. In Dr Jha’s opinion, Mr Rana suffers from paranoid schizophrenia and also has a paranoid personality disorder.[21] In answer to Mr Rana, Dr Jha said that his:
“You actually – from primary school go to secondary and they you go to the college. So similarly your illness started with adjustment problems, personality disorder, delusional disorder and then went into paranoid schizophrenia.”[22]
16. As to the cause of Mr Rana’s condition, Dr Jha said that it first became apparent when he was in the Army. He had read the reports of proceedings in the Tribunal and he thought that Mr Rana “... probably ... had a very horrible time in the Army.”[23] In response to Lander J, Dr Jha said:
“It is possible that he might have the predisposition to mental illness, but that become [sic] quite evident when he was subjected to various types of physical, emotional and sexual abuses in the army.”[24]
In response to Mr Rana, Dr Jha explained that:
“... it is likelihood that whenever you’ll be subjected to any stress – any type of distress in your personal life, in your academic life, in your work situations, wherever it is – you know, it is likely that the illness can flare up.”[25]
30 August 2005: claim for stress induced diabetes
17. Mr Rana made a claim dated 30 August 2005 in respect of “stress induced diabetes”.[26] He stated in that claim that he first noticed the disease on 29 August 2005, which was the day on which he first received treatment for it. When asked what aspects of his employment contributed to his disease or illness, Mr Rana wrote:
“Stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses.”[27]
In a letter dated 6 October 2005 to the MRCC, Mr Rana expanded on his understanding of the cause of his diabetes. He provided an:
“... additional report of Dr Henry Fellner to link the causation with the effect. The doctor indicates that the depression is related to Paranoid state and thus aggravating the pancreas and thus troubling me via the diabetes.”[28]
18. On 27 July 2006, Mr Ontong, the Director, Appeals, MRCC, refused Mr Rana’s claim saying:
“Your claims for psychiatric conditions (however described) arising out of your Army service have been considered previously by the Administrative Appeals Tribunal (‘AAT’) in matters No. S86/207 and S2001/378. You have also appealed the decision of the AAT in matter no. S2001/378 to the Federal Court and the Full Court of the Federal Court, both of which appeals were dismissed. I note that I have already refused to deal with your additional claim for Paranoid Schizophrenia in my letter to you dated 19 September 2005.
I therefore also find that in so far as your claim for diabetes is reliant on your claim that you have a psychiatric condition arising from your military service, the claim is denied on the basis there is no liability for a psychiatric condition arising from your military service.”[29]
19. On 16 August 2006, Mr Rana lodged an application in the Tribunal for review of the decision[30] but then, as he should have, asked the MRCC to reconsider its decision when he sent it an email on 28 September 2006.[31] The MRCC gave Mr Rana an opportunity to provide evidence in support of his claim and, in particular, any opinion by his treating medical practitioner with regard to how his diabetes is related to his military service.[32] It extended the time within which Mr Rana could provide that medical evidence both voluntarily and at his request. Mr Rana provided some medical evidence including a document described as a “Medical note” from Dr Miller, who is a consultant physician. In his Medical note, Dr Miller stated that Mr Rana had questioned whether there was a possible link between the medication he had been receiving for his psychiatric condition and his diabetes. He addressed that question.[33]
20. In a letter dated 9 May 2007, a delegate of the MRCC advised Mr Rana that it had affirmed the determination dated 27 July 2006. After reciting the medical evidence, the letter continued:
“Having taken the above medical documentation into consideration, neither Drs Fellner or Miller refer to the cause of your diabetes condition, and more importantly, any link between your diabetes condition and your military service. I note that in the determination dated 27 July 2006 reference was made to two letters from Dr Fellner dated 29 August 2005 and 01 September 2005 respectively, which also did not provide any link of your military service making a material contribution to your diabetes condition.
While you assert that the your diabetes condition was caused by your stress induced paranoid schizophrenia condition, which you contend was caused by your military service, this Department does not accept liability for the schizophrenia condition. Accordingly, as no liability exists for the schizophrenia condition, I cannot accept liability for your diabetes condition.
I further note that your psychiatric conditions which you contend arose out of your military service have previously been considered (and liability disallowed) by the Administrative Appeals Tribunal (AAT) in matters S1986/207 and S2001/378. I note that your appealed the AAT decision of the matter S2001/378 to the Federal Court and the Full Court of the Federal Court, and more recently the High Court of Australia, all of which have been dismissed.
I also note that in his letter dated 19 September 2005, Mr Paul Ontong, Director of Appeals, Military Rehabilitation and Compensation Commission (MRCC), advised that your claim for szhizophrenia is essentially the same as that considered by the AAT in S1986/207 and S2001/378, and therefore would not be further considered by the MRCC.
...
In conclusion, while I find that your claim for diabetes is dependent on your assertion that you developed a psychiatric condition during the course of your military employment, the claim must be denied on the basis that no liability exists for a psychiatric condition arising from your military service.”[34]
21. On 14 May 2007, Mr Rana lodged an application in the Tribunal seeking review of the MRCC’s reviewable decision.[35]
14 September 2005: applications under ADJR Act regarding entitlements under the DFDRB Act
22. On 14 September 2005, Mansfield J gave judgment on two applications that Mr Rana had made under the Administrative Decisions (Judicial Review) Act 1977 regarding his claim for benefits under the Defence Force Retirement and Death Benefits Act 1973. A delegate of the Chief of Army decided that, at the time of Mr Rana’s discharge from the Army, grounds did not exist whereby he could be discharged because of physical or mental incapacity. Mr Rana relied on various grounds but Mansfield J dismissed the applications.[36] The Full Court dismissed an appeal from that decision.[37]
CONSIDERATION
23. On behalf of the MRCC, Ms Bean submitted that I should have regard to the principles of estoppel and dismiss Mr Rana’s latest application on the basis either that his claim for paranoid schizophrenia was considered by the Tribunal in 2004 or that the issue of causation is, in substance, the same as that considered by the Tribunal in its earlier decisions dated 1988 and 2004. She referred to the authorities of Re Quinn and Australian Postal Corporation,[38] Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1)[39] and Re Matusko and Australian Postal Corporation.[40] Before I look at these authorities, I need to consider for a moment what is meant by the notion of estoppel and then the context of merits review in which I am considering its application.
What is estoppel or issue estoppel?
24. The notion of estoppel, or issue estoppel as it is sometimes described, has been explained by Dixon J in Blair v Curran[41]:
“ A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.”
25. More recently, the Privy Council succinctly specified the three essential elements that must exist if the doctrine is to apply:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”[42]
In Blair v Curran, Dixon J explained its limits:
“Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends on a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter[43] the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw ‘a fact fundamental to the decision arrived at’ in the former proceedings and the ‘legal quality of the fact’ must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation (2))[44]. But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tend to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.”[45]
26. In Hoysted v Federal Commissioner of Taxation[46], the Privy Council explained the same principle in a different way by setting out what has been settled:
“ ... first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”[47]
27. It may be relatively easy to state the principle but, as Dixon J said:
“The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. ...”[48]
28. The Privy Council in Hoysted v Federal Commissioner of Taxation gave an illustration of the application of issue estoppel:
“In Outram v Morewood[49], an action of trespass over a certain vein of coals lying under the close of the plaintiff, it was held that if a verdict be found on any fact or title, distinctly put in issue in an action of trespass, such verdict may be pleaded by way of estoppel in another action between the same parties or their privies, in respect of the same fact or title.
In a previous action an issue was found for the plaintiff and against the wife, one of the two subsequent defendants, her husband being the other defendant with her in the action under decision. Lord Ellenborough C.J. said(2)[50]: ‘The operation and effect of this finding, if it operate at all as a conclusive bar, must be by way of estoppel. If the wife were bound by this finding, as an estoppel and precluded from averring the contrary of what was then so found, the husband, in respect of his privity, either in estate, or in law, would be equally bound.’ And in subsequent portions of his judgement (3)[51] he spoke as follows: ‘A finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. . . . . . And it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury: but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.”[52]
What is res judicata?
29. In Port of Melbourne Authority v Anshun Pty Ltd,[53] Gibbs CJ, Mason and Aickin JJ said:
“ The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”[54]
30. Their Honours referred with approval to a passage from the dissenting judgment of Fullagar J in Jackson v Goldsmith[55] in which he explained the rule as to res judicata, which may also be referred to as “cause of action estoppel”[56] in the following terms:
“... where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims ‘interest republicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’.”[57]
What is Anshun estoppel?
31. In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason and Aickin JJ also referred to the principle explained by Sir James Wigram VC in the much earlier case of Henderson v Henderson.[58] Sir James Wigram had taken the notion of res judicata a step further when he said:
“... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”[59]
32. Gibbs CJ, Mason and Aickin JJ adopted these principles but recast them slightly to emphasise that notion of reasonableness to which Sir James Wigram had also referred. They said:
“ In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings ...”.[60]
Anshun estoppel and res judicata; a variation on a theme
33. It is apparent from the statements of principle themselves that the principles referred to in Henderson v Henderson and adopted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd are different facets of the same crystal. The explanation of the underlying principles in the judgment of Brennan J in the same case makes the point even more clearly. His Honour said:
“... Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule ... is the merging of the cause of action in the judgment. ...
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ...
If a cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars and action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment....
When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ...
The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.
Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts. ...”[61]
34. The rationale for Anshun estoppel was explained by Madgwick J in Stuart v Sanderson:[62]
“ The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (Bryant [v Commonwealth Bank (1995) 57 FCR 287] at 298, and Trawl Industries v Effem Foods (1992) 36 FCR 406 at 423 per Gummow J). It is also founded upon the need to avoid ‘conflicting judgments (Anshun at 603-604), to ensure finality of litigation (Anshun at 609, per Brennan J, and Bryant at 299), to prevent parties from gaining an advantage in the use of the court's time ... and, in the more global expression of Murphy J ‘to preserve the orderly administration of justice’ (Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes.”[63]
Difference between estoppel and res judicata
35. In Blair v Curran, Dixon J distinguished between res judicata and issue estoppel by saying:
“... in the first the very right or cause of action claimed or put in suit has in former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact of law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order.”[64]
36. As Graham J said in JF Keir Pty Ltd v Sparks:[65]
“ Unlike res judicata, issue estoppel may arise when the cause of action in each proceeding is entirely different (per Merkel J in Somander v Minister for Immigration and Multicultural Affairs ... 92000) 178 ALR 677 at [69]).”[66]
Application of principles
37. In Miller v University of New South Wales,[67] Ryan and Gyles JJ reviewed a large number of authorities. I will return to their judgment but observed “... that it is difficult, if not impossible, to reconcile all that has been said in this array of authority.”[68] That may well be the case but, in an attempt to achieve some reconciliation, I have examined the previous authority under separate headings. Those headings relate to some of the various situations in which reference is made to estoppel, issue estoppel, cause of action estoppel, res judicata or Anshun estoppel. There are variations among those situations that can, in most instances if not all, be reconciled with the final decision reached in the particular case. The difficulties in reconciliation come in attempting to reconcile the authorities to which some of the authorities refer for they do not distinguish among the different situations. Perhaps the difficulties are mine alone but, if only to sort out my own thinking in order to decide this case, I have categorised the authorities and attempted an analysis by reference to those categories.
Relevance and status in subsequent court proceedings of a decision made by a body other than a court
38. This was the situation that faced the High Court in Administration of Papua New Guinea v Daera Guba.[69] In 1886, officers of the Crown purported to purchase 95 acres of land at Port Moresby from the then owners. Most of that land subsequently became Crown land by virtue of an Order in Council. In 1954, a Land Board was established under s 9 of the Land Ordinance 1911 to decide disputes regarding the ownership of the land. The Land Board made a determination in 1954 but, in 1966, claimed to be entitled to part of the land. Barwick CJ, with whom McTiernan J agreed, described the task given to the Land Board and the way it was required to undertake that task:
“... Power was given to the Board to decide ownership in the case of all disputes on that question. ‘All’ in this context means ‘any’ dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board’s power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board’s decision was an entry on a register with the intention of giving absolute finality to the matter. ... In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person hav...[ing] had the opportunity of claiming or of being heard.”[70]
39. Barwick CJ “... suppose[d] there could not be a better justification for resort to the principle of estoppel than the present case.”[71] In a separate judgment, Menzies J also agreed with Barwick CJ and, except with respect to an issue relating to the extent of the initial purchase of land, also with Gibbs J. Gibbs J approached the issue of estoppel from a slightly different angle although the outcome was the same. He began with a discussion of res judicata and then considered the breadth of its application:
“... In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) ...[[72]], Lord Guest said:
‘The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3).’
The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc ...”[73]
40. Gibbs J considered whether estoppel arose in the case before him having regard to the principle expressed:
“ In Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) ... [[74]], Lord Reid said that it ‘is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject-matter in the former and in the present litigation’.”[75]
41. More recently, the Full Court considered issue estoppel in Miller v University of New South Wales.[76] Dr Miller alleged in the Australian Industrial Relations Commission (AIRC) that the termination of his employment had been harsh, unjust or unreasonable and in contravention of s 170CK of the Workplace Relations Act 1996 (WR Act). The AIRC dismissed his application and the Full Bench dismissed his appeal. Before his application for leave to appeal to the Full Bench, Dr Miller had applied to the Federal Court under s 413 of the WR Act for an interpretation of the certified agreement and a declaration that the University of New South Wales (University) had breached it when it terminated his employment. The University sought an order staying the Federal Court proceedings on the basis that Dr Miller’s application raised the same issues as were raised before the AIRC so that the causes of action on which he relied were merged in the decision of the Full Bench of the AIRC. The University also submitted that the proceedings amounted to an abuse of process as they constituted an attempt to re-litigate a case already decided by the AIRC in a manner adverse to Dr Miller.
42. In their joint judgment, Ryan and Gyles JJ alluded to res judicata and then canvassed the authorities extensively under the heading of issue estoppel. Those authorities included many of those to which I refer in these reasons including Minister for Immigration and Multicultural Affairs v Daniele,[77] Blair v Curran, Administration of Papua New Guinea v Daera Guba, WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation,[78] Bogaards v McMahon[79] and Commonwealth v Sciacca[80]. They referred also to a number of other cases.
43. Among them was Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd,[81] in which the Full Court of the Federal Court considered whether the effect of a finding by the Full Commission of the AIRC was that Mr Kowalski was estopped from pursuing relief in the Federal Court. The AIRC’s findings concerned his claim that he be reinstated and compensated on the grounds that the termination of his employment had been harsh, unjust or unreasonable or discriminatory and had been effected without written notice to him. Mr Kowalski regarded himself as bound by the AIRC’s determination but pursued other claims under the relevant award and Superannuation Deed. The AIRC had proceeded on the basis that his date of termination was one date but Mr Kowalski claimed in the Federal Court that it was a much later date. The Full Court said:
“12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently ‘final’ and ‘determinative’ to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]-[77].
13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a ‘jurisdictional fact’ is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a ‘jurisdictional fact’ i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel.”
44. This passage has caused me some concern if it is intended to mean that there is a conflict between the two chains of authority. On reading them, it seems to me that there is not for they are dealing with different matters. Taking first the judgment of Branson J in Miller v University of New South Wales, it was the judgment that was the subject of the appeal being considered by Ryan and Gyles JJ with Gray J. Its subject matter was that of the relevance and status of a determination by the AIRC and a finding made in the course of reaching that determination in subsequent and separate proceedings in the Federal Court. In Bramwell v Repatriation Commission,[82] Weinberg J had been concerned with a very different question. That question was whether the Tribunal was estopped from considering an issue that had been decided by the Veterans’ Review Board (VRB). The Tribunal had received an application to review the VRB’s decision and was reviewing that decision as it was required to do under the Veterans’ Entitlements Act 1986.[83]
45. I also note that the issue with which their Honours were concerned was different from that being considered in either line of authority. They were concerned with whether the decision of an administrative tribunal in relation to a jurisdictional fact could be conclusive or binding. That brings into consideration different issues. They are issues that were considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[84] Although they were issues relevant in my decision in Re McWilliam and Civil Aviation Safety Authority[85] and I adopt my reasoning in that case, jurisdictional facts are not in issue in this case. Therefore, I will not address them further.
46. In Miller v University of New South Wales, Ryan and Gyles JJ also referred to the judgment of the Full Court of the Federal Court in Sande v Registrar, Supreme Court of Queensland.[86] On my analysis of the authorities, this is a case that more readily fits under the heading of “Previous proceedings in a court between parties to proceedings in the Tribunal”, where I have placed the case of Smith v Caltex Australia Petroleum Pty Ltd,[87] which relies on Sande v Registrar, Supreme Court of Queensland.[88] Alternatively, it could come under the heading of “Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal.”[89] I return to Sande v Registrar, Supreme Court of Queensland below.[90]
47. In drawing their consideration together, Gyles and Ryan JJ returned to the question that they had to consider: the nature and effect of the determination by the AIRC on the proceedings in the Federal Court. They expressly put to one side cases which they described as “... truly administrative in the sense that it stands in the shoes of the original administrative decision-maker, and has power to substitute its own decision for the original decision ...”.[91] Of bodies other than those that are truly administrative, their Honours said:
“ While estoppels may arise from decisions of bodies other than superior courts of record, and the language of res judicata, including cause of action estoppel and issue estoppel, is used in this connection, the starting point is to decide precisely what jurisdiction the body is exercising ...”[92]
48. They adopted what Jordan CJ, with whom Halse Rogers and Maxwell JJ agreed, had said in Ex parte Amalgamated Engineering Union (Australian Section);
Re Jackson:[93]
“ But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that “nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so”. But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal. Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.”[94]
49. Applying that reasoning to the issue before them, Ryan and Gyles JJ concluded that:
“ In our opinion, the only matter which is committed to the decision of the AIRC in the sense explained by Jordan CJ is whether the termination was harsh, unjust or unreasonable. It may be accepted, for the purposes of argument, that the AIRC decision conclusively decided that the termination was not harsh, unjust or unreasonable. It is that which is given finality by s 170CI, subject to s 170JD [of the WR Act]. Any findings made by the AIRC in the course of reasoning towards the ultimate decision do not give rise to any issue estoppel.”[95]
The consequence of this conclusion was that steps such as the following “... were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel ...”:[96]
“... that the direction given to the appellant to assume the disputed duties both reasonable and lawful, that there was conduct on the part of the appellant amounting to serious misconduct, namely, conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract, and that there existed a valid reason under the certified agreement for the termination of the appellant’s employment by the respondent. ...”[97]
Relevance and status in subsequent court proceedings of finding of fact or determination of an issue made by body other than court in reaching its decision
50. In Midland Metals Overseas Limited v Comptroller-General of Customs,[98] Hill J considered whether a decision of the Tribunal would give rise to an issue estoppel. His Honour was considering an application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to consider a decision by a delegate of the Comptroller-General of Customs (Comptroller-General) to accept an application under s 269TB of the Customs Act 1901. The application had been made for the publication of a dumping notice in respect of certain goods being exported to Australia by Midland Metals Overseas Limited (Midland Metals). The goods were shipped either directly from Korea to Australia or indirectly via Singapore. Earlier, the Comptroller-General had determined that the customs value of identical goods was to be calculated on the basis that they were exported from Singapore. The Tribunal reviewed that determination and substituted a decision that the calculation was to be made on the basis that the place of export was Korea and not Singapore. During the hearing of the application for review under the ADJR Act, Midland Metals submitted that the Comptroller-General was bound by the determination made by the Tribunal that the goods were imported from Korea and not from Singapore.
51. Hill J said that:
“ First, it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue, even if the parties to the Tribunal proceedings are regarded as the same parties as are presently before the court. The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s 33 of the AAT Act. In reviewing decisions referred to it, the tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-maker: s 43(1) of the AAT Act. If the tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s 43(1).
Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: “only another executive body in an administrative hierarchy”.
The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be.
In relation to the taxation boards of review, Kitto J in W J & F Barnes Pty Ltd v FCT (1957) 96 CLR 294 at 315, said: ‘The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel.’
The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279; 17 FCR 476 at 480 had no hesitation in saying: ‘A finding by an administrative tribunal will not give rise to an issue estoppel.’”[99]
52. His Honour made the point that:
“... the question arises whether the process by which an administrative tribunal, or for that matter, an administrator determining a matter before him, may ever involve an adjudication in the strict sense of the word. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, Kitto J expressed the view that no exercise of powers by the Trade Practices Commissioner involved an adjudication (in the proper sense of the word). No doubt, if the exercise by an administrative tribunal did involve an impermissible exercise of Commonwealth judicial power: cf Huddart Parker & Co Pty Ltd v Moorhead (1909) 8 CLR 330 at 357, per Griffith CJ; R v Davison (1954) 90 CLR 353 at 368.”[100]
53. Hill J also addressed the issues raised in Administration of Papua New Guinea v Daera Guba.[101] He observed that “Gibbs J, with whose reasons Stephen J agreed, expressed the view that the case was one involving cause of action estoppel, not issue estoppel.”[102]
54. As for the particular case before him, Hill J said:
“... No doubt if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal expires without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision created an issue estoppel.”[103]
55. In the circumstances of the case before him, Hill J decided that, even if the Tribunal’s decision could create an issue estoppel such that it would bind the Comptroller-General, it would not do so in respect of the import of goods that were not the subject of the Tribunal’s review. In any event, the question decided by the Tribunal had been a different question from that which he faced in deciding the ADJR application. The Tribunal had been required to consider the “place of export” of the goods whereas Hill J had to consider whether the goods were “exported” from Korea or Singapore.
Previous judicial review of decision
56. In Stuart v Sanderson,[104] Madgwick J rejected a submission that Anshun estoppel did not apply to administrative decisions. The submission had been based on issues relating to equitable estoppel or estoppel by representation, to which I am not referring.[105] His Honour rejected that basis as the principles underlying the two doctrines are built upon different foundations. He also rejected any submission that Anshun estoppel should not apply to a right that is derived from statute rather than the common law. Therefore, in considering an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), in light of earlier proceedings for judicial review under s 39B of the Judiciary Act 1901 in relation to the same decisions and arising out of the same circumstances, Madgwick J said:
“Thus, where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances. ...”[106]
Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal
57. This is a scenario that I have considered previously in both Re Street Nation and Australian Communications Authority[107] and in Re Proctor and Commissioner of Taxation.[108] I rely on my reasoning in those cases and will refer in this only to aspects of it.
58. In Minister for Immigration and Multicultural Affairs v Ali,[109] Branson J recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act 1958 is such a section for it permits the Minister to deport a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded, “... the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman[[110]]), Daniele, Gungor and SRT[[111]])”.[112]
59. By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):[113]
“ A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.
... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.”[114]
60. His Honour distinguished between those cases in which the Tribunal’s power is founded on a conviction and those where it is not:
“ The rationale for the distinction between the two categories is, or course, that in the first of the categories the exercise of the power arises out of, and is founded on, the conviction. The power conferred is not a power to reconsider that matter or the essential facts on which the conviction was based but a power to consider matters of discretion and like consequential matters which flow from the established fact of conviction. When the power is not so founded, then all relevant matters, including the facts on which the conviction was based, are open.”[115]
61. Even when a conviction is regarded as part of the evidence and is not determinative of the grounds on which that conviction was based, caution should be exercised in considering whether an administrative tribunal should reach a conclusion that runs counter to those grounds. Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:
“... although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).”[116]
Previous proceedings in a court between parties to proceedings in the Tribunal
62. In Commonwealth of Australia v Sciacca,[117] the Full Court of the Federal Court was concerned with a case in which Ms Sciacca had previously taken action against the Commonwealth of Australia (Commonwealth) for damages for injuries she claimed she had suffered while in its employ and through its negligence. Gallop J of the Supreme Court of the Australian Capital Territory found that the Commonwealth had not breached any duty of care it had to Ms Sciacca and entered judgment for the Commonwealth. Even though that was enough to decide the case, Gallop J proceeded to assess damages lest an appellate court come to a different conclusion regarding liability. In the course of doing that, Gallop J found that there was no causal relationship between Ms Sciacca’s back injuries and the accident that she had occurred during her employment. Furthermore, he found that she had been fit to return to her former duties since 13 December 1978.
63. Ms Sciacca claimed compensation under the 1971 Act in respect of her back injury. A delegate of the CEC determined that the back condition from which she suffered was not the result of personal injury arising out of or in the course of her employment on 31 December 1976 and that, since 13 December 1978, she had been fit to resume her duties as a tea attendant. Contrary to the submission made on behalf of the Commonwealth, the Tribunal decided that Ms Sciacca’s application was not barred by issue estoppel or res judicata. The Full Court of the Federal Court agreed that this was so saying:
“ The mere circumstance that a finding of fact has been made in earlier proceedings between parties does not lead to the result that there is an issue estoppel as to that fact in later proceedings between the same parties. An issue estoppel will only arise in relation to what Dixon J ... described in Blair v Curran ...as ‘those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established’. ...
...
... [I]ssue estoppel applies only as to issues. It is true that in the proceedings before Gallop J there was an issue as to damages only in the sense that such an issue would have arisen for decision if his Honour had found for the respondent (the plaintiff in the proceedings before him) on the question of liability. But having reached the conclusion that there should be judgment for the Commonwealth in those proceedings because no breach of duty was shown, it was unnecessary for Gallop J to decide the issue of damages. What he said in his judgment on the question of damages was no more than the expression of opinions for the benefit of an appellate court, should an appeal against his finding on liability succeed. His Honour’s particular findings, if they be described as such, on questions of damage were not relevant, let alone fundamental, to the only issue which he decided. ...”[118]
64. To this point in their judgment, the issues considered by the Court related to the situation in which the parties to the proceeding in the Tribunal have been engaged in previous proceedings in a court. Their Honours then considered a submission that there is no room for issue estoppel because the Tribunal is not bound by the rules of evidence.[119] In doing so, the Court referred to the judgment of Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele,[120] in which
they had said:
“ Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act 1975. Section 33(1)(b) directing that proceedings should be conducted as far as possible with as little formality and technicality and s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to the exclusion of the doctrine.”[121]
65. Bowen CJ and Sheppard and Morling JJ in Commonwealth of Australia v Sciacca thought that the more acceptable view is that issue estoppel is a rule of law[122] but, even if it is, said that:
“... would not conclude the matter, as is apparent from what was said by their Honours [in Minister for Immigration and Ethnic Affairs v Daniele], because of the administrative nature of the Tribunal and the provisions of s 33(1)(b) of the Administrative Appeals Tribunal Act 1975 which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel. In WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294, Kitto J said (at 315) that a taxation board of review’s decision was not an adjudication; it was administrative in character and could not create an issue estoppel.”[123]
66. Their Honours took the matter no further saying that the issue was not a straightforward one and that it had not been fully argued. In doing so, it is understandable that they did not comment on the fact that they were referring to estoppel in three different situations in their judgment. The situation with which they were dealing concerned the relevance of a courts’ determination between the parties in the context of proceedings between the same parties. The case of Minister for Immigration and Ethnic Affairs v Daniele concerned the situation in which an administrative decision-maker is bound to accept the fact of conviction as a source of power but in which that same administrative decision-maker is entitled to consider the circumstances surrounding the commission of the offence or matters relating to the trial itself and to make its own assessment in relation to the nature and gravity of the convicted person’s conduct. The final situation concerned the ability of an administrative decision to create an estoppel.
67. In Midland Metals Overseas Limited v Comptroller-General of Customs,[124] Hill J commented that, in Commonwealth of Australia v Sciacca:
“... what the Full Court left open was not the question whether the decision of the Tribunal itself created an issue estoppel, ... 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. ...”[125]
68. Issue estoppel in the context of a judgment given in previous proceedings in a court between parties to proceedings in the Tribunal was considered by Whitlam J in Smith v Caltex Australia Petroleum Pty Ltd.[126] Mr Smith had made claims for compensation against the Australian National Line (ANL) in respect of an accident on one of its ships in 1983 and against Caltex Australia Petroleum Pty Ltd (Caltex) in respect of an accident on another ship, the WM Leonard on 19 September 1985. He brought them under the Seamen’s Compensation Act 1911 (SC Act 1922). Issues relating to liability to pay compensation, the amount and duration of that compensation and the contribution to that compensation to be made by each of ANL and Caltex were settled by arbitration before McCredie DCJ in 1992. His Honour made an award setting out various findings of fact. They included a finding that, as a result of his injuries, Mr Smith had been totally incapacitated for work up until 8 February 1989 and partially incapacitated from that date to the date of the arbitration i.e. 1 April 1992.
69. Mr Smith had also claimed compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 (SRC Act 1992) in respect of an injury sustained in 1998 when in the employ of Stolt. Stolt had denied liability to pay compensation after a date in 1999. The Tribunal had affirmed that decision with the consent of the parties under s 42C(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In 2001, Mr Smith claimed compensation from Caltex for injury sustained in the accident that occurred on the WM Leonard on 19 September 1985. His claim related to his partial incapacity for the period occurring after 26 October 1998. The Tribunal found that Mr Smith had suffered a muscular strain of the thoracic spine on 19 September 1985 but that, before he recommenced work on 8 February 1989, the effects of that injury had ceased. It was submitted on behalf of Mr Smith that the Tribunal’s findings were inconsistent with those of McCredie DCJ and that it was estopped from making them.
70. Whitlam J noted that the Tribunal was concerned with a period after that considered by McCredie J. The issues that it was required to consider did not involve the re-litigation the question of Mr Smith’s incapacity in the period before 26 October 1998. Whitlam J analysed the issue to be considered by the Tribunal and that which had been decided by the District Court. He found that the District Court’s findings were not made in respect of any issue that had to be decided by the Tribunal. His Honour concluded that, even if he was wrong about the findings of the District Court being incapable of binding the Tribunal, he was:
“... instructed by the decision of the majority in Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 127, 145; 134 ALR 560 at 564; 40 ALD 1 at 4 that the tribunal would not only be free, but bound, to arrive at its own findings of fact in order to determine any issue relating to the applicant’s incapacity. The doctrine of issue estoppel thus has no application to a proceeding under s 88(1) of the Act. ...”[127]
71. In reaching this conclusion, Whitlam J said that he had taken into account the fact that the SRC Act 1992 had not varied Caltex’s obligations under s 37 of the AAT Act to give Mr Smith documents relevant to the review of the decision. Section 66 of the SRC Act 1992 gave an employer such as Caltex the power to require a medical examination and s 70 made it clear that legal professional privilege did not apply to such a report. Plainly, such a report could be used by the Tribunal on review as could other information or documents obtained as a result of requests made ss 67, 68 and 83. The SRC Act 1992 did not modify the requirements of s 37(1) of the AAT Act to provide all documents relevant to the review of the decision. Subject only to the leave provisions in s 90 in relation to certain evidence, the provisions of s 33 of the AAT Act have not been modified.
72. Section 33(1) provides that:
“In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
73. Finally under this section, I will consider Sande v Registrar, Supreme Court of Queensland, to which reference was made by Ryan and Gyless JJ in Miller v University of New South Wales. It too requires the Tribunal to have regard to the legislation under which it is reviewing a decision when deciding the relevance or status of findings and decisions made in the courts in related matters or on related issues.
74. In Sande, Fryberg J had refused to make a declaration that, on the true construction of the Mutual Recognition Act 1992 (MR Act), the occupation of “conveyancer” existed in Queensland and that it was an occupation that was within the definition of “occupation” in s 4(1) of that legislation. Fryberg J found that he could not infer the existence of the occupation as a matter of present fact from the references or assumptions in the statutes and no evidence was presented to him. Whether the occupation of a conveyancer existed in Queensland was also relevant in relation to an application made subsequently to the Tribunal under the MR Act. Davies J, with whom Spender J agreed on this point, said:
“ The respondents in this appeal relied upon his Honour’s judgment as an issue estoppel against Mr Sande. I do not so regard it. The decision-making powers were conferred by the MR Act upon the registration authorities and the Tribunal, not the courts. The Supreme Court may well have had a review function in relation to decisions of its Registrar. But, even so, it was concerned only with decision-making at the first level. The function of the Tribunal was to form its own view and to come to the ‘correct or preferable’ decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 2 ALD 60 at 68. The Tribunal was therefore bound to arrive at its own finding of fact.”[128]
Previous proceedings between the same parties in another body whose decision reviewed by the Tribunal
75. This was the situation facing Weinberg J in Bramwell v Repatriation Commission, to which I have already referred.[129] The Repatriation Commission had decided that the late Mr Bramwell had rendered operational service but that there was no reasonable hypothesis connecting his death with that service. The VRB affirmed the decision and, in doing so, accepted that he had operational service without question. When Mrs Bramwell applied to the Tribunal for review of the VRB’s decision, the Repatriation Commission contended that Mr Bramwell had not rendered operational service. The Tribunal decided that Mr Bramwell had not rendered operational service and that his widow was not able to satisfy the more stringent standard of proof that inevitably followed that decision. It affirmed the decision of the Commission as affirmed by the VRB.
76. Weinberg J referred to s 175(1)(a) of the VE Act, which provides that, where a decision of the Repatriation Commission has been reviewed by the VRB and has been affirmed, an application may be made to the Tribunal for review of that decision. The decision of the Repatriation Commission had been that Mr Bramwell’s death was not war-caused and that the claim for pension was refused. His Honour said that:
“ The fact that the delegate was prepared to treat the deceased as having rendered operational service while working towards the determination that his death was not war-related did not, in my opinion, quarantine that finding, and exclude it from the parameters of ‘the decision of the Commission that was so affirmed’, which decision formed the subject of review.
In a case of merit review there is a distinction to be drawn between the decision of the Commission, as affirmed by the Board, and its reasons for decision. The tribunal is given the task of reviewing ‘the decision of the Commission that was so affirmed’ by the Board: s 175(1)(a). It is the whole of that decision which is to be reviewed. In merit review that must include a capacity to depart from the process of reasoning which led to that ultimate decision. In carrying out its statutory responsibility, the tribunal is in no way inhibited by the language of s 175(1) from reasoning to a conclusion upon a basis which differs from that which found favour with the Commission, and with the Board.
...
It was the function of the tribunal in reviewing the decision of the Commission, as affirmed by the Board, to consider the matter afresh. It was, in other words, its task to conduct a merits review. It was obliged to review that decision upon the material before it, together with the material which had been before the Commission and before the Board. Its responsibility was to arrive at the correct and [sic] preferable decision. This responsibility could not be discharged if the tribunal were prevented from considering what standard of proof should govern the resolution of the issue before it. ”[130]
77. With regard to estoppel, Weinberg J rejected the contention that it applied. He referred to Minister for Immigration and Multicultural Affairs v Daniele,[131] Commonwealth v Sciacca, Midland Metals Overseas Limited v Comptroller-General of Customs and Minister for Immigration and Ethnic Affairs v Kurtovic.[132] His Honour did not analyse the authorities relying instead on the statement by the Full Court of the Federal Court in Commonwealth v Sciacca that:
“A finding by an administrative tribunal will not give rise to an issue estoppel.”[133]
78. Weinberg J also considered whether the Tribunal should not have considered a contention that Mr Bramwell did not have operational service for it was unconscionable to permit the Repatriation Commission to change its position at that stage. This argument was based on a form of estoppel by conduct recognised by the High Court in Commonwealth v Verwayen.[134] Weinberg J dealt with this argument by referring to Formosa v Secretary, Department of Social Security.[135] In that case:
“... Davies and Gummow JJ, in a joint judgment, dealt with the question of estoppel at 695-6. Their Honours concluded that estoppel has no role to play where the issues to be determined involved rights and obligations rather than the exercise of administrative decisions. The authority of a decision-maker cannot be extended beyond that given by the statute through the mechanism of an estoppel.
The question whether the deceased rendered operational service so as to bring into play the provisions of ss 8, 120(1) and (3) seems to me to involve the determination of rights and obligations rather than the exercise of any administrative discretions. The principles laid down in Formosa are, therefore, strongly against this particular contention by the applicant.”[136]
Previous proceedings between the same parties in Tribunal
79. As I have already mentioned, the Full Court of the Federal Court alluded to this in Commonwealth of Australia v Sciacca.[137] Another case in which it arose was Bogaards v McMahon.[138] The headnote summarises the proceedings and decisions leading to the proceedings before Pincus J in the Federal Court under the 1971 Act:
“ The applicant was being paid compensation arising from an injury sustained while an RAAF cadet. Disputes arose concerning the proper rate of compensation to be paid, relating to questions of what future promotion position the cadet might have achieved. On three occasions the tribunal made consent orders giving effect to a view of the law favourable to the applicant. The tribunal was then invited to consider the point afresh, with a view to producing the result that two of its three previous orders and what had been done under them over a period of years would be invalidated.
The tribunal held that it had jurisdiction to review the matters contained in the previous consent orders while hearing the fresh application (N87/899). Prohibition, and a declaration, was sought restraining the tribunal from further proceeding with N87/899.”[139]
80. I would add that the Tribunal’s third decision directed the CEC to make a determination in accordance with its decision. The CEC did so and it was from that determination that the respondent sought review by the Tribunal. Mr Bogaards argued that the Tribunal had previously decided the precise dispute so that it was now functus officio and could not do so again. The Tribunal decided that it had jurisdiction to hear the matter as its previous decisions had been made by consent and the issues had not been tested.
81. Pincus J described the power and role of the Tribunal:
“ The tribunal, whether or not constituted by a judge, is one of a class which does not in general exercise judicial power: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584. Such bodies, however, may have the function of ascertaining facts and applying the law to them: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 411. The decisions of the tribunal may be based on, or indeed consist of, determination of questions of law is necessarily implicit in s 44(1), which gives the right of appeal to this court on such questions, and s 43(2B) recognises its right to resolve the questions of fact.
The tribunal may, if an application before it succeeds, make an order which is then deemed to be a decision of the original decision maker, under determination of the delegate; but that substituted decision cannot be itself the subject of a further application to the tribunal, as s 43(6) makes clear.
The other sort of decision the tribunal can make is to remit the matter ‘for reconsideration in accordance with any directions or recommendations of the tribunal’ under para (ii) of s 43(1)(c); then s 43(6) does not apply.
It is noticeable that the AAT Act nowhere says expressly whether either sort of decision is binding. It is necessarily implicit in the provisions relating to the first class of decision just discussed (that is, those where the tribunal is at least as binding as that which was challenged. The binding quality of decisions of the other sort, where the matter is merely remitted for reconsideration, is not so obvious. Whatever may be the position as to ‘recommendations’ of the tribunal, in my opinion the word ‘directions’ imports a binding quality. The intention is that the directions shall constrain the decision maker in making his new decision, and that the new decision may not lawfully be made in a way which conflicts with the directions. In Spackman v Plumstead District Board of Works (1885) 10 App Cas 229 at 235, Lord Selborne LC, spoke of a statute providing for an administrative decision:
‘... “decided” implies that there is a matter which may admit of difference, which may require a determination. Prima facie that would mean determination so as to bind those who are to be affected by it.’
It would seem easy enough to conclude that, to the extent that the tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member. The same result must follow where the tribunal’s decision is made by consent; at least as a general rule, a consent order can support a plea of res judicata ...”[140]
82. Pincus J referred then to the High Court’s judgment in Administration of Papua New Guinea v Daera Guba and thought there to be no feature that distinguished the Land Board from the Tribunal. Therefore, the judgment had to be applied to the Tribunal but Pincus J said that it “... leaves open, however, the question whether an issue estoppel may arise from such a decision.”[141] His Honour noted that all but one of the English authorities had consistently rejected the application of issue estoppel to decisions of taxation and rating boards.
The authorities cited in support of MRCC’s contentions
83. That brings me back to the three authorities cited to me in this case: Re Quinn and Australian Postal Corporation,[142] Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1)[143] and Re Matusko and Australian Postal Corporation.[144] The first two were decided by Tribunals presided over by O’Connor J, President. The earlier of the two, Re Quinn and Australian Postal Corporation, concerned the review of a determination by a delegate of the Australian Postal Corporation (APC) in 1991 that liability to pay Ms Quinn compensation had ceased. Previously, the Tribunal had decided that she was entitled to compensation on the basis of total incapacity for the period from August 1987 to October 1988. Ms Quinn sought a direction that the APC be prevented from canvassing the correctness of the 1988 decision.
84. In their decision, the majority comprising O’Connor J and Mr Barbour, Member, examined the structure of the SRC Act and of authorities including those of the High Court in Coalcliff Collieries Pty Ltd v Campbell[145] and Commonwealth v Muratore.[146] They concluded:
“ In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change of circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change of circumstances.
In this case there has been a prima facie change in circumstances demonstrated by the medical reviews sought by the respondent. Irrespective of whether those medical reports relate to matters which should not properly be considered part of this Tribunal’s proceedings, they can be seen to offer support for a lack of continuing incapacity demonstrating a change in circumstances since the previous Tribunal decision.”[147]
85. The majority said that they did not need to decide whether, as a matter of law, the doctrine of estoppel applied to administrative decisions but they did express some views:
“ The Tribunal does not need to decide in this case whether as a matter of law the doctrine of estoppel applies to administrative decisions. The Tribunal’s process is administrative and in understanding the task of review is obliged to consider the administrative consequences and fairness of the investigation it makes in reaching the correct or preferable decision. The policy basis upon which the doctrine of estoppel rests, that is, ‘it is for the common good that there should be an end to litigation’ and ‘no one should be harassed twice for the same cause’, are relevant to administrative law. The Tribunal should be guided by the principles of ‘equity, good conscience and the substantial merits of the case, without regard to technicalities’; s 72 of the Commonwealth Employees’ Rehabilitation and Compensation Act. The re-examination of the extent of the original injury nearly eight years ago would defy these principles.
There is no single appropriate answer to the question of what extent estoppel as a matter of policy rather than law should apply in administrative decision-making as the balance of individual and public interests can and will produce different answers in the diverse area of administrative practice. A doctrine with sufficient flexibility to recognise this diversity is needed. ...
Section 33 of the Administrative Appeals Tribunal Act provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.
It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.”[148]
86. O’Connor J presided over a second Tribunal that considered issue estoppel and res judicata. She did so in Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service(No 1).[149] The Hospital Benefit Fund of Western Australia (Fund) applied for review of a decision of a delegate of the Minister for Health, Housing and Community Service (Minister) that the change to the Fund’s rules shall not be taken to have come into operation. The Minister had made an earlier determination to the same effect but, after the Fund had lodged an application in the Tribunal, the parties reached an agreement. The Tribunal set aside the decision but without prejudice to the Minister’s right to make a further declaration under the relevant section of the National Health Act 1953 Act (NH Act). The parties reached agreement on the basis that the condition of infertility was not a pre-existing ailment. The subsequent decision was made on a different basis.
87. The applicant submitted that the Tribunal was estopped from making a decision which conflicted with the earlier consent decision. The Tribunal said:
“ As regards the doctrine of res judicata, or cause of action estoppel, the Federal Court of Australia (Pincus J) has held that the doctrine is applicable to a decision of the tribunal – even where ... the decision is made by consent: Bogaards v McMahon ... That view was very recently approved unanimously by the tribunal which was constituted by three members, including the President, O’Connor J, and should now be regarded as settled: see Re Quinn and Australian Postal Corporation ... In the present case, however, the application of that doctrine results only in the conclusion that the tribunal, when it decided ... [the earlier matter], was functus officio in relation to that matter and that the tribunal has no power to review or reconsider that decision in the present proceedings.
In these proceedings, the tribunal is called upon to review a different decision from that reviewed in [the previous] matter ...”[150]
88. The third authority to which I was referred is Re Matusko and Australian Postal Corporation.[151] Mr Matusko had claimed compensation in 1991 under the 1988 Act for incapacity from chest pain and a stroke in November 1987. He argued that his conditions were related to an anxiety state caused by stress at work. His claim was refused and the refusal affirmed by the Tribunal. In 1992, he made a further claim for a stress condition in respect of a period after November 1987. Again, his claim was refused by the APC. At the Tribunal, the APC sought an order dismissing Mr Matusko’s application for review on the basis that it was frivolous or vexatious. The APC argued that the previous decision had already dealt with the issue of whether Mr Matusko was incapacitated for work after November 1987 as a result of a stress related work condition. It also argued that, even if the matter were relitigated, Mr Matsuko could not succeed on the evidence.
89. The Tribunal analysed the previous Tribunal’s decision and decided that Mr Matusko’s claim had failed because the Tribunal did not have material in 1991 on which it could find that his incapacity after that date resulted from work-related stress or an anxiety state. The earlier Tribunal had not prejudged the question whether it could make that finding had it had relevant evidence. The Tribunal canvassed the authorities to which I have referred and also referred to the judgment of the Full Court of the Federal Court in Plumb v Comcare.[152] In that case, the Tribunal said that:
“... The Court there commented that s 62 of the [1988] Act empowered reconsideration of decisions ‘whether or not those determinations had been subject to review by the AAT’ and gave that as an additional reason for holding that the AAT was no ‘functus officio’ in respect of later periods covered by further determinations, in a matter where it had in earlier proceedings found entitlement to compensation up to a date where the applicant took further employment.”[153]
90. The tribunal in Re Matusko also referred to a judgement by Wilcox J in Comcare v Grimes.[154] His Honour had agreed with a submission that a Tribunal decision cannot give rise to an issue estoppel. He relied on Minister for Immigration and Ethnic Affairs v Daniele, Commonwealth v Sciacca and Midland Metals Overseas Ltd v Comptroller-General of Customs. Wilcox J had said:
“Whether or not it is correct to go that far, there is clearly a close correspondence between issue estoppel and cause of action estoppel and there is high authority for the proposition that issue estoppel does not apply to AAT decisions. It would be curious if a different rule applied to cause of action estoppel. It seems to me that the conclusion reached in Bogaards v McMahon, which was clearly correct, can readily be accommodated by the approach taken in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 and Quinn; the AAT, which is master of its own procedures, will not allow a finally determined matter to be relitigated.”[155]
91. The Tribunal in Re Matusko concluded that, from the authorities to which they had referred, the following principles applied in the case before them:
“(a) No formal issue estoppel arises from the Tribunal’s findings in Re Matusko in 1991,
(b) The Tribunal should not generally allow relitigation of issues already decided,
(c) But the Tribunal should use its flexible procedures to allow further consideration of issues where there is reason to do so, for instance:
(i) where there is a different decision,
(ii) where there is a clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.
(d) The Tribunal should usually consider the evidence proposed to be called and make appropriate directions as to its admissibility during the hearing, as suggested in Re Quinn, rather than in a directions hearing prior to the substantive hearing.”[156]
92. In Morales v Minister for Immigration and Multicultural Affairs,[157] the Full Court of the Federal Court referred to Re Matusko, together with Comcare Australia v Grimes and Re Quinn and Australian Postal Corporation, in the context of its statement that “The procedural flexibility that the AAT Act gives to the tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated ...”.[158] I will return to this decision below.[159]
How should I approach the issue I must decide in light of the authorities?
93. In light of these authorities, it seems clear that, unlike a judicial decision, the fact that an administrative decision has been made does not necessarily lead to a consideration of whether it affects subsequent proceedings by virtue of the application of the principles of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel. That is not to say that an administrative decision will never lead to a consideration of those principles. As is clear from the judgments of the High Court in Administration of Papua New Guinea v Daera Guba, however, whether it will do so depends very much on an analysis of the administrative decision, of the powers under which it is made and the consequences that Parliament intended that decision to have. Although there were slight differences among their approaches, the High Court concluded that the particular administrative decision did give rise to estoppel. Although it was merely noted in the case, the doctrine of separation of powers was not embedded in the Constitution of Papua New Guinea and that may also be a relevant factor.
94. The Federal Court’s analysis of the Tribunal’s decisions has not led to the same conclusion as the High Court reached in relation to the Land Board. Its conclusion binds me of course but, for me, it is not enough to know the Federal Court’s conclusion even if I happen to agree with it. I need to set out my understanding of the principles that underpin the reasoning that has led to the Federal Court’s decisions. Unpicking the decisions and conclusions in order to identify the principles underpinning the conclusion or decision means that I will be able to assess whether I have jurisdiction in these proceedings. It will be a fare easier exercise than trying to work it out by reference to conclusions or decisions even if they are to apply a principle such as estoppel.
95. At the outset, it seems to me that I should keep in mind the difference between administrative decisions and judicial decisions. The difference is not always clear and, as Einfeld J said in Tankey v Adams:[160]
“In determining whether a body is exercising the judicial power of the Commonwealth, it is necessary to characterise the process taking place as being judicial or otherwise. The whole system is to be examined: who is constituting the Tribunal, what powers do they have, what are the procedures, what are the results and what are the consequences. ...”[161]
96. Some of the considerations were canvassed by the High Court in Precision Data Holdings Ltd v Wills:[162]
“ The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exhaustive arises from the circumstances that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgements, even the formation of an opinion as to the legal rights and obligations of the parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. ... Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. ... So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. ... That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines [1987] HCA; (1987) 163 CLR 656 the Court said:
‘The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.’
The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows ... the remarks apply with equal force to determinations made for administrative, executive or legislative purposes.”[163]
97. There is no question that the Tribunal:
“... is an administrative body constituted to review decisions made by persons in the exercise of powers conferred by statute. The review may be sought by a person whose interests are affected by the decision sought to be reviewed; see section 27 AAT Act. ...
... The authorities make it clear that in exercising its powers of review the AAT stands in the place of the person whose decision is being reviewed. Because of the wide range of decision that can be reviewed it is always important to understand the nature of the powers and discretions conferred on the person whose decision is being reviewed. In some cases, that person may be exercising powers similar to arbitrating between competing parties. Powers of that kind are very different from the great bulk of cases where a person claiming an entitlement should be granted. ... [O]n review review before the AAT no parties in the traditional sense appear before the AAT. The decision-maker appears before the AAT to assist the AAT. The true position can be illustrated by reference to authority. In McDonald v Director-General of Social Security (1984) 1 FCR 354, the issue was whether the applicant was entitled to a social security payment. In a very helpful passage at 356-359 Woodward J discusses the nature of the proceedings before the AAT and the fact that the concepts of ‘onus of proof’ have no application to these proceedings. Northrop J expressed similar views at 365-366.
...
In conducting a review, the AAT as a matter of necessity needs to determine questions of law in the sense discussed in the extract from the judgment in Precision Data Holdings Ltd set out earlier in these reasons. Nevertheless it is exercising a non-judicial function.”[164]
98. It is apparent from this passage that the Tribunal’s role is to “ascertain what rights and obligations should exist”.[165] That role is played out against a framework that includes a statutory regimen according to which such things as entitlements, rights, duties and powers are conferred or imposed. That statutory regimen sets the limits of those entitlements, rights, duties and powers. The Tribunal’s role is also defined by the statutory regimen. That means that the Tribunal’s decisions cannot be made about any dispute that a person happens to have or happens to attempt to bring to the Tribunal. Its decisions must be related to the correctness or, if a discretion must be exercised in making the decision, the appropriateness of decisions that have been made under enactments and that the Tribunal has been given the power to review.[166] In a case such as this, the Tribunal has jurisdiction to review decisions that are reviewable decisions[167] and so decisions made under either ss 38(4) or 62 of the 1988 Act.[168] A decision under s 38(4) is a decision made after Comcare has reviewed a determination in relation to, in essence, a claim for rehabilitation.[169] A decision under s 62 is made after Comcare has reconsidered determinations or requirements made under various sections relating to claims for compensation.[170]
99. Where a person is given the liberty to apply to the Tribunal by an enactment and does in fact apply, that person has a right to have the application determined by the Tribunal.[171] The duty that is imposed upon the Tribunal must be to review the particular decision of which review is sought and in relation to which the Tribunal is given jurisdiction. Once it has done so in accordance with its statutory authority and power, it seems to me that the Tribunal has done all that it can lawfully do. It is functus officio. Subject only to judicial review or an application to the Federal Court under s 44 of the AAT Act, its decision stands. It stands as the determination of the entitlements and obligations and rights and duties of the parties in relation to the issues that are the subject of that decision made against a particular statutory framework. Given the statutory limits on the Tribunal’s power, it can decide no wider issues.
100. This means that when the Tribunal is faced with a submission that it is prevented from reviewing a decision because it has already done so, it must analyse the earlier decision and the decision of which review is sought to determine whether it truly has done so. If it has done so, its power is exhausted because it can only exercise the power once before it is exhausted. This approach seems to me to have been at the heart of the judgments by the Full Court of the Federal Court in Plumb v Comcare, by Davies J, with whom Spender J agreed on this point, in Sande and by Pincus J in Bogaards v McMahon. It is an approach that does not need to have regard to the principles of res judicata or cause of action estoppel, Anshun estoppel or issue estoppel. It is an approach that analyses the nature of the decision and looks to whether the Tribunal has considered that decision, as distinct from the issue that was the subject of the decision, at an earlier time. The decision of which review was sought in Bogaards v McMahon was a decision made by the CEC in accordance with directions given by the Tribunal in reviewing an earlier decision. To permit review of the last decision would be, in effect and in substance, to review its own decision. That is not a decision in respect of which the Tribunal is given jurisdiction. Once the Tribunal had made a decision remitting the matter to the CEC, it had exhausted its function and was functus officio. If the applicant was unhappy with the state of affairs, he had a right to take the Tribunal’s decision to the Federal Court. He had no right to take the CEC’s determination that was merely implementing the Tribunal’s decision.
101. This approach does not depend on s 33(1)(a) of the AAT Act and, indeed, I have difficulty in understanding how the Tribunal’s powers regarding the conduct of its proceedings can influence the extent of its jurisdiction. Its jurisdiction is a matter that is determined by s 25 of the AAT Act when read with the relevant provision of the enactment conferring jurisdiction. It is to the AAT Act and to the relevant enactment that regard must be had in determining the Tribunal’s jurisdiction in relation to a particular decision.
102. I have a reservation about the analysis that the Tribunal set out in Re Matusko because, by its reference to the Tribunal’s “flexible procedures” it seems to be built upon a foundation of s 33(1)(a) of the AAT Act. That is the section that, for the most part, allows the Tribunal to regulates its own procedures and requires it to conduct its proceedings with as little formality and technicality and with as much expedition as possible. I say “for the most part” because s 33(1)(a) is subject to any modifications found in other provisions of the AAT Act, by the regulations made under it and by any other enactment. Whether modified or not, s 33(1) specifically relates to the Tribunal’s “procedure” when it has power to review a decision and not to determining whether it has power to review decisions, and so jurisdiction, at all.
103. For similar reasons, I have difficulty with notions of policy having any relevance in determining whether the Tribunal has jurisdiction to review a decision. Jurisdiction depends upon the proper interpretation of the statutory provisions conferring jurisdiction on the Tribunal and the application of that interpretation to the facts of the case. It may be that policy issues become relevant when considering whether an application should be dismissed under s 42B on the basis that it is frivolous or vexatious but that is a question that I will come to later in these reasons.[172] An application dismissed under that section will be an application that the Tribunal has jurisdiction to consider but decides that it will not do so because the application is frivolous or vexatious. If it were the case that the Tribunal had no jurisdiction to review the decision in relation to which the application is made, it would dismiss the application on that basis. The power given by s 42B would not be called upon.
104. In this case, the decision of which Mr Rana seeks review is the reviewable decision that a delegate of the MRCC made on 9 May 2007. Under s 64 of the 1988 Act, the Tribunal has power to review that decision. Part VI of the 1988 Act modifies the provisions of the AAT Act but not in so far as s 43 is concerned. Section 43(1) provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
105. As the Tribunal is reviewing the reviewable decision, it has all the powers and discretions conferred on the determining authority under s 62 of the 1988 Act. The determining authority’s powers are to make a decision affirming or revoking the determination or varying it in such manner as the person thinks fit.[173]
The upshot is that:
“... The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”[174]
106. The limitations on the Tribunal’s powers were the subject of the Full Court of the Federal Court’s judgment in Lees v Comcare. It considered the structure of the 1988 Act. In addition to ss 62 and 64 of the 1988 Act and s 43 of the AAT Act, the Federal Court considered sections of the 1988 Act such as s 14(1) in Part II. It provides that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
In separate sections, Part II sets out the various types of compensation for which Comcare, and so the MRCC, is liable to pay as well as the qualifications to the entitlement. Compensation may be paid in respect of, for example, loss of or damage to property, medical expenses and incapacity for work. A “determining authority” makes a determination.[175] A “determination” means a determination, decision or requirement under, among others, ss 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30 and 31. These are all sections specifying different entitlements to compensation. A separate claim is required for each.[176]
107. The Full Court described the decision-making processes set out in the 1988 Act as “structured”. In that case, that process;
“... and the plain language of s 64 of the [1988] Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O’Donoghue’s entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which was determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.”[177]
108. In Lees v Comcare, the Full Court did not turn its mind to whether the determining authority was obliged to make a determination. It seems clear from the requirement that there be a claim and from the three tiered decision-making process that the determining authority is obliged to make a decision regarding each claim that is made. Once that determination is made, it triggers the claimant’s right to have it reviewed and so the determining authority’s, and then the Tribunal’s obligation to review it. It matters not whether there has been a separate claim for compensation regarding the same injury or whether or not the same type of compensation was claimed for. Nothing in the 1988 Act provides that a person may not make more than one claim. There is no provision even of the sort found in ss 14(5), (6) and (7) of the Veterans’ Entitlements Act 1986 disentitling a person from making a claim while a claim respect of incapacity or death from a particular injury or disease has not been finally determined.
109. In this case, once Mr Rana made his claim to the MRCC on 30 August 2005, that enlivened the obligation to make a determination. Once the determination had been made on 27 July 2006, Mr Rana had the right to request the MRCC under s 62(2)(a) to reconsider that determination. Once the reviewable decision was made, Mr Rana was entitled under s 64(1) of the AAT Act to ask the Tribunal to review the reviewable decision. As he could do so, the effect of s 25(4) of the AAT Act is that the Tribunal has power to review it. Section 25(4) provides that:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
110. In light of these provisions, I feel obliged to find that the Tribunal has power to review the reviewable decision in this case. Principles of res judicata or issue estoppel cannot stand in the way of the statutory provisions giving the Tribunal the power to review it.
111. I also reach that conclusion in relation to the application of the Anshun principles of estoppel. Certainly, in Stuart v Sanderson,[178] Madgwick J said that the doctrine applies to administrative decisions. What was in issue in that case was judicial review, in one form or another, of an administrative decision or set of decisions, arising out of one set of circumstances. Ms Stuart sought to have a second bite at the cherry, as it were, by bringing separate proceedings for judicial review. In doing so, she sought to raise matters that Madwick J could reasonably have raised in the first set of proceedings. This is a situation quite unlike that which prevails when the Tribunal is called upon to review a reviewable decision that has its origins in a claim properly made under the 1988 Act. It may well be that the claim is made in relation to a set of circumstances in relation to which a previous claim has been made. It may be that the earlier claim could have been made to extend to matters dealt with in the later claim. For all that, though, the Tribunal is not being called upon to review the same decision arising out of the same set of circumstances as Madgwick J was being asked to do in Stuart v Sanderson. What the Tribunal is being asked to do is to review a different decision made as a result of a different claim made in respect of the same set of circumstances. Had Parliament wanted to ensure that each claim raised all matters that could reasonably be expected to be raised in the circumstances, it would presumably have said so. As it has not, it seems to me that the Tribunal is obliged to review the decision as required by a reading of the AAT Act and the 1988 Act.
Frivolous or vexatious
112. I have also considered whether Mr Rana’s application should be dismissed under s 42B of the AAT Act. That section provides that:
“(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.”
113. Implicit in s 42B is an assumption that the Tribunal has power to review the decision. If it did not, it could dismiss the application for want of jurisdiction and no reference would need to be made to s 42B dismiss an application.
114. As Gray J explained in Pitt v OneSteel Reinforcing Pty Limited,[179] “the word ‘frivolous’, especially when coupled with ‘vexatious’, is a technical legal term, in substance meaning the absence of a cause of action.”[180] As Graham J said in JF Keir Pty Limited v Sparks,[181] “An action can be stayed as vexatious ‘if it can really lead to no possible good’.”[182] The power to dismiss an application summarily is a power known to, and exercised by, the courts under various names. It is a power whose limits were considered by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.):[183]
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. ... [the] cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
...
... Dixon J. (as he then was) sums ...a number of authorities in Dey v Victorian Railways Commissioners [(1949) 78 CLR 62] where he says: ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”[184]
115. Principles of this sort underpin the Tribunal’s exercise of the power given to it by s 42B(1) of the AAT Act. The Tribunal’s reasons for decision in Re Williams and Australian Electoral Commission and The Greens (party joined)[185] set out the following general principles governing the exercise of the power:
“(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. ...”[186]
116. The Tribunal went on to consider the relevance of futility in the context of s 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. The decision under review was a decision that a certain name be entered in the register kept under the Commonwealth Electoral Act 1918 as the registered officer of the Greens. At the time of the hearing, that person was no longer the registered officer of the Greens. Had Mr Williams been successful in having that name removed from the register, the effect would have been that the position of registered officer of the Greens was vacant for a period of time. As no election had been called during that period and the registered officer had not been called upon to perform his sole function under the Commonwealth Electoral Act, the vacancy was of no consequence at all. The Tribunal concluded that Mr Williams’ application would be futile.
117. Despite its conclusion on that point, the Tribunal also accepted that Mr Williams genuinely believed that the contrary was the case and his application for review was not futile. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:
“(37) The genuineness of the applicant’s belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to ‘a day in court’. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. ...”[187]
118. In adopting this approach, the Tribunal took the same path as that later taken by Sundberg J in Director General Security v Sultan and Another[188] (1998) 90 FCR 334. In the Sultan case, review by the Tribunal would not lead to Mr Sultan’s being able to obtain the visa he sought even if he were successful in every respect on that matter that was within the Tribunal’s jurisdiction to review. Both Sundberg J and the Tribunal looked to the practical outcome of the review.
119. These principles are equally applicable in this case. Mr Rana submitted two handwritten notes both dated 30 March 2007 in support of his application. Both were written by Dr Fellner. The first was addressed to the Southern Cross University and said:
“ Mr Rana has been treated by me for a number of years and I am aware of his medical psychotic conditions.
He has been unwell with diabetes and the complications/side effects of his medications over the last few months. (9.)
I support a withdrawal from the two subjects he has nominated on his application to help reduce his study load & stress levels.”[189]
120. The second note is a little harder to read but appears to be addressed to Dr Leonello. It reads:
“ I have suggested to Ranjit to cease his Lipidil because of his myalgia & raised CK which you kindly organised. (Trigs still 3+ on Rx.) He will see you soon.”[190]
121. In my view, the medical evidence is insufficient to establish the necessary causal connection between the circumstances of Mr Rana’s employment as found in the Tribunal’s previous decisions and the conditions of paranoid schizophrenia and diabetes. If his condition is to be taken as an “injury” for the purposes of the 1988 Act, it must be:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”[191]
A “disease” means:
“(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, or a significant degree, by the employee’s employment by the Commonwealth or a licensee.”[192]
122. That conclusion might be thought to justify my concluding that Mr Rana’s application is futile and so dismissing it as frivolous or vexatious. In this case, I do not think that I should at this stage. His claim that he is suffering from paranoid schizophrenia is not a claim that the Tribunal has previously considered. Certainly, the Tribunal presided over by Deputy President Jarvis touched upon it but it was not a condition that was in issue in that case. In the proceedings before Lander J, evidence was given by Dr Jha to the effect that Mr Rana suffered from a paranoid personality disorder and that stress could lead to a “flare up” of that disorder and so to paranoid schizophrenia. His opinion does not appear to have been linked to a finding that any stress was linked to sexual abuse in the workplace. Equally, Dr Jha did not limit it to stress in the workplace.
123. When viewed in light of the principles in Rodriguez v Telstra Corporation Limited, [193] it becomes clear that, in order to be an injury for the purposes of the 1988 Act, there need be no finding that a condition have been caused by or resulted from some sort of event or action to which there is attached some sort of fault or misfeasance. This was addressed by Spender J in that case when he reviewed the relevant authorities.[194] I will not set the passage out but will refer to only a segment:
“44 The principles to be applied in relation to Mr Rodriguez’s case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 642, where his Honour said:
‘The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.’
[my emphasis]
45 In Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 ...
... Davies J referred, at 239, to the observations of Windeyer J in Federal Broom Co Pty Ltd, to which I have referred, and then said at 240:
‘A like problem was examined in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In that case, Pincus J went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation , acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself.’
...”
Davies J held at 242:
‘Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.’
...”[195]
124. Dr Jha’s evidence may be thought to support a causal connection between Mr Rana’s army service and the condition of paranoid schizophrenia for which he now claims compensation. The evidence suggesting a possible link between Mr Rana’s diabetes and the treatment for his psychiatric conditions depends on a finding the necessary causal link between the treatment and the conditions. I do not propose to deal with that further.
125. It seems to me that Mr Rana’s application is not manifestly without cause or groundless. He is entitled to pursue his application and to have the opportunity to gather evidence to support his claim on the basis that I have set out. If he is unable to gather that evidence, it may be that the Tribunal would entertain an application under s 42B but that remains to be seen. If he does gather the evidence, he is entitled to have the Tribunal consider his claim for compensation for paranoid schizophrenia and diabetes.
Can the Tribunal have regard to the previous decision?
126. I do not consider that Mr Rana is entitled to regard his application in the Tribunal as opening up for consideration all of the issues that have been considered and decided by previous Tribunals. He cannot again produce all of the evidence regarding his employment in the Army or all of the medical evidence about the other conditions from which he suffers or claims to suffer. Instead, he will be restricted in the evidence that he can call. I will come to those restrictions shortly but, for the moment, will set out my reasons for imposing them.
127. In Morales v Minister for Immigration and Multicultural Affairs,[196] it was the view of the Full Court that:
“... the essentially administrative nature of the tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.”[197]
128. This is a different approach from that taken by the Tribunal in Re Matusko, which relied on the “flexible procedures” permitted by s 33 of the AAT Act. Rather, it seems to be an approach based not so much on procedures but on the evidence to which the Tribunal may have regard. It seems to be an approach that is based more on s 33(1)(c), which provides that:
“the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
129. Since Morales v Minister for Immigration and Multicultural Affairs was decided, the AAT Act has been amended by the enactment of s 2A. It provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Its inclusion in the AAT Act reinforces the Full Court’s reference to what may be the dictates of fairness.
130. The Full Court was speaking in terms of a “decision”. Do the principles apply equally to findings of fact that are made as part of the processes leading to the making of a decision? Findings of fact are not decisions in the sense that the word is understood by the High Court in Australian Broadcasting Tribunal v Bond[198] when analysing the meaning of the word “decision” in s 3(2) of the ADJR Act. That provision defines the word, in part and in so far as they are relevant in this case, in terms of “... a decision of an administrative character made ... under an enactment ...”.
131. Mason CJ, with whom Brennan J and Deane J agreed, considered the competing policy considerations to be taken into account in determining the compass of the word “decision” in the context of the ADJR Act. These were:
“On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen CJ and Lockhart J appeared to emphasise the first of these considerations in Australian National University v Burns (1982) 64 FLR 166 at 172; 43 ALR 25 at 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.”[199]
132. Mason CJ distinguished between a “decision” that is, for the purposes of s 3(2) of the ADJR Act “... one that generally is substantive, final and operative ...”,[200] conduct that “...looks to the way in which the proceedings have been conducted ...” and “... decisions made along the way with a view to the making of a final determination. ...”,[201] which are “... unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.”[202]
133. I do not think that the Full Court in Morales v Minister for Immigration and Multicultural Affairs was speaking in terms of a decision in the sense of a substantive, final and operative decision. Rather, it was speaking in terms of decisions that are themselves no more than steps in the deliberative or reasoning process. The Court considered whether the Tribunal was bound to rehear every aspect of an application that had been remitted by the Federal Court following an appeal from an earlier decision of the Tribunal. The appeal had been allowed on the basis that a finding that G had incited discord was affected by an error of law but its finding that the evidence was not sufficient to establish that G was not of good character was not disturbed. On the remittal, the Tribunal permitted further evidence in relation to both matters and decided that G was not of good character. The Tribunal affirmed the Minister’s decision to refuse G’s visa application as had the earlier Tribunal although on the ground that G had incited discord. The Tribunal’s decisions regarding the incitement of discord and of not being of good character may both be characterised as decisions that are no more than steps along the way to the final decision i.e. refusal of G’s visa application.
134. Is this a case in which the previous decision of the Tribunal should be treated in this way? It is a case in which Mr Rana has applied for compensation in relation to the same set of events as he has in the previous two cases. He has described them in various ways but they may be summarised as physical, mental or other abuses, including sexual abuses. They are events that have been comprehensively considered in each of the previous matters and findings of fact have been made that, when applied to the law, have led the Tribunal concerned to reach a particular decision. In relation to the decision of Deputy President Jarvis and Dr Eriksen, the Federal Court and the Full Court of the Federal Court found no error of law in their findings of fact. Mr Rana did not challenge the Tribunal’s much earlier 1988 decision and it too addressed a similar factual background which Mr Rana claims has caused him to suffer from various conditions.
135. There is a difference between Mr Rana’s current claim and his earlier claims that have made their way to the Tribunal. It is an important difference. It concerns different conditions: stress induced paranoid schizophrenia and diabetes arising as a result of the medication for his condition. The condition of paranoid schizophrenia was touched upon in the second Tribunal’s hearing but it was not a condition that was the subject of the decision they were reviewing. Diabetes was not claimed but is said to arise out of the medication to treat conditions, in relation to some of which have been found not to be compensable under the 1988 Act.
136. Where the similarities lie are in the circumstances which Mr Rana claims has caused them. They are circumstances that have been canvassed at length and have been examined on appeal by the Federal Court. They have been canvassed whether they have been put on the basis of sexual abuses or abuses or simply as events that occurred during Mr Rana’s service.
137. These are considerations that must inform any exercise of the Tribunal’s power in s 33(1)(c) of the AAT Act. That power must also be exercised with the exhortation found in s 2A to pursue, among others, the objectives of fairness, justice, economy, informality and speed firmly in mind. When I do that, it seems to me to lead to a conclusion that Mr Rana should not be permitted to rehearse the circumstances of his employment a further time, to challenge the findings that have been made about the circumstances of that employment or to challenge the findings that have been made about the compensability of the conditions for which he has previously been denied compensation and in respect of which the Tribunal has affirmed the decisions. Instead, the Tribunal should have regard to the findings of fact made by the earlier Tribunals presided over by Deputy Presidents Layton and Jarvis respectively in reviewing the decision in the current matter. Any evidence that is given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions as now claimed by Rana.
138. For the reasons I have given, I have:
1. decided that:
(1) the respondent’s application that the applicant’s application be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 be refused; and
(2) under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:
(a) inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re “SAN” and Comcare No 2001/378, Decision No [2004] AATA 445; and
(b) not permit the parties to lead further evidence regarding the matters in 1(2)(a); and
2. direct that:
(1) by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and
(2) by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and
3. give the parties liberty to apply.
I certify that the one hundred and thirty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Date of Hearing 26 October 2007
Date of Decision 1 July 2008
Representative for the Applicant unrespresented
Counsel for the Respondent Ms K. Bean
Solicitor for the Respondent Australian Government Solicitor
[1] I have given no consideration to the doctrine of equitable estoppel as it was not raised in this case but note that I have earlier concluded that it cannot fetter a statutory duty: Re Lowth and Comcare [1999] AATA 645 and see also Deputy President Jarvis’s decision in Re Jebb and Repatriation Commission (2005) 86 ALD 182; [2005] AATA 470[2] Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133, Deputy President Layton, Mr Kiosoglous, Senior Member and Dr Williams, Member[3] (1988) 15 ALD 167; [1988] AATA 133 at 168; [3][4] (1988) 15 ALD 167; [1988] AATA 133 at 168; [4][5] (1988) 15 ALD 167; [1988] AATA 133 at 168; [102]-[104][6] T2005/58 documents at 43[7] T2005/58 documents at 44[8] Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445 at 149; [1], T2005/58 documents at 24[9] Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445 at 152; [5], T2005/58 documents at 25[10] (2004) 81 ALD 149; [2004] AATA 445 at 192; [169], T2005/58 documents at 87[11] (2004) 81 ALD 149; [2004] AATA 445 at 184; [144], T2005/58 documents at 121[12] (2004) 81 ALD 149; [2004] AATA 445 at 184-185; [145-146], T2005/58 documents at 121-122[13] (2004) 81 ALD 149; [2004] AATA 445 at 185-186; [149], T2005/58 documents at 123[14] (2004) 81 ALD 149; [2004] AATA 445 at 185; [148], T2005/58 documents at 122-123[15] (2004) 81 ALD 149; [2004] AATA 445 at 190-191; [163], T2005/58 documents at 130[16] Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6[17] [2005] FCA 6 at [3][18] Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85[19] Rana v Marshall, Mansfield and Stone JJ & Ors [2007] HCATrans 189[20] [2008] FCA 365[21] Transcript SAD67/2004 at 187-188; Documents lodged in S2005/58 (T2005/58 documents) at 107-108[22] Transcript SAD67/2004 at 189; T2005/58 documents at 109-110[23] Transcript SAD67/2004 at 177; T2005/58 documents at 97[24] Transcript SAD67/2004 at 177; T2005/58 documents at 97[25] Transcript SAD67/2004 at 177; T2005/58 documents at 97[26] Documents lodged in S2007/1885 (T2007/1885 documents) at 51[27] T20071885 documents at 54[28] T2007/1885 documents at 62[29] T2007/1885 documents at 64[30] T2007/1885 documents at 65-66[31] Referred to in letter from MRCC to Mr Rana dated 3 October 2006: T2007/1885 at 67[32] T2007/1885 documents at 67[33] T2007/1885 documents at 71[34] T2007/1885 documents at 79[35] T2007/1885 documents at 2-3[36] Rana v Chief of Army [2005] FCA 1283[37] Rana v Chief of Army Staff [2006] FCAFC 63; (2006) 90 ALD 474, Kiefel, Kenny and Graham JJ[38] (1992) 15 AAR 519[39] (1992) 28 ALD 25; 16 AAR 158[40] (1995) 21 AAR 9; [1995] AATA 14[41] (1939) 62 CLR 464 at 531-532 and approved in cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 at 597-599; 7-8[42] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest[43] (1855) 4 E & B 780 at 794 [119 ER 288 at 293][44] (1925) 37 CLR 290; (1926) AC 155[45] (1939) 62 CLR 464 at 532-533[46] (1925) 37 CLR 290; [1926] AC 155[47] (1925) 37 CLR 290; [1926] AC 155 at 299; 165-166[48] Blair v Curran (1939) 62 CLR 464 at 533[49] 3 East 346[50] 3 East 346 at 353[51] 3 East 346 at 355[52] [1926] AC 155 at 166-167[53] (1981) 147 CLR 589; 36 ALR 3[54] (1981) 147 CLR 589; 36 ALR 3 at 597; 8[55] (1950) 81 CLR 446[56] (1981) 147 CLR 589; 36 ALR 3 at 611; 18 per Brennan J and see also Miller v University of New South Wales (2003) 132 FCR 147; 200 ALR 565 at 163; 579 per Ryan and Gyles JJ[57] (1950) 81 CLR 446 at 466 referred to at (1981) 147 CLR 589 at 597[58] (1843) 3 Hare 100; 67 ER 313[59] (1843) 3 Hare 100; 67 ER 313 at 115; 319 referred to at (1981) 147 CLR 589; 36 ALR 3 at 598; 8-9[60] (1981) 147 CLR 589; 36 ALR 3 at 602-603; 12[61] (1981) 147 CLR 589; 36 ALR 3 at 611-612; 18-19, authorities omitted[62] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870 at 156; 686; [20][63] [2000] FCA 870 at [20][64] (1939) 62 CLR 464 at 532[65] [2008] FCA 611[66] [2008] FCA 611 at [59][67] (2003) 132 FCR 147; 200 ALR 565 [68] (2003) 132 FCR 147; 200 ALR 565 at 169; 584; [63][69] (1973) 130 CLR 353; [1973] HCA 59[70] (1973) 130 CLR 353; [1973] HCA 59 at 402-403; [99][71] (1973) 130 CLR 353; [1973] HCA 59 at 403; [102][72] [1967] 1 AC 853 at 933[73] (1973) 130 CLR 353; [1973] HCA 59 at 453; [73][74] [1967] 1 AC 853 at 909-910[75] (1973) 130 CLR 353; [1973] HCA 59 at 454; [74][76] (2003) 132 FCR 147; 200 ALR 565, Gray, Ryan and Gyles JJ[77] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135[78] (1957) 96 CLR 294[79] (1988) 80 ALR 342[80] (1988) 17 FCR 476; 78 ALR 279[81] [2003] FCAFC 18, Ryan, Dowsett and Selway JJ[82] (1998) 158 ALR 623; 51 ALD 56[83] See [75-78] below[84] (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11[85] (2005) 89 ALD 391; [2005] AATA 1148 at [26]-[37][86] (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1[87] (2004) 80 ALD 106; [2004] FCA 480[88] See [68-74] below[89] See [57-61] below[90] See [73-74] below[91] (2003) 200 ALR 565; [2003] FCA 180 at 585; [64][92] (2003) 200 ALR 565; [2003] FCA 180 at 585; [65][93] (1937) 38 SR (NSW) 13[94] (1937) 38 SR (NSW) 13 at 19-20, citations omitted, referred to at (2003) 200 ALR 565; [2003] FCA 180 at 585; [65][95] (2003) 200 ALR 565; [2003] FCA 180 at 588; [73][96] (2003) 200 ALR 565; [2003] FCA 180 at 589; [75][97] (2003) 200 ALR 565; [2003] FCA 180 at 589; [75][98] (1991) 30 FCR 87; 24 ALD 424[99] (1991) 30 FCR 87; 24 ALD 424 at 96-97; 429[100] (1991) 30 FCR 87; 24 ALD 424 at 97; 429-430[101] (1973) 130 CLR 353; [1973] HCA 59[102] (1991) 30 FCR 87; 24 ALD 424 at 98; 430[103] (1991) 30 FCR 87; 24 ALD 424 at 98; 430[104] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870 [105] See Footnote 1 above[106] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870 at 159; 689; [31][107] (2004) 86 ALD 413; 40 AAR 68; [2004] AATA 1251[108] (2005) 87 ALD 247; 59 ATR 1064; [2005] AATA 389[109] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385[110] [1943] AC 627[111] Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135; Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441; and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234[112] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385 at 325; 684; [41][113] (1991) 30 FCR 578; 102 ALR 19 [114] (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22[115] (1991) 30 FCR 578; ; 102 ALR 19 at 582; 22[116] (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385 at 325; 684; [43][117] (1988) 17 FCR 476; 78 ALR 279, Bowen CJ, Sheppard and Morling JJ[118] (1988) 17 FCR 476; 78 ALR 279; at 478; 281-282[119] AAT Act, s. 33(1)(c)[120] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135[121] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135 at 359; 654; 139[122] In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135 at 359; 654; 139, Fisher and Lockhart JJ had thought that it was “... generally but not universally seen as a rule of evidence ...”. In relation to the doctrine of res judicata Deane, Toohey and Gaudron JJ, with whom Brennan J agreed on this point, said that it existed by operation of law: Chamberlain v Deputy Commissioner of Taxation (1998) 164 CLR 502; [1988] HCA 21 at 510; [21][123] (1988) 17 FCR 476; 78 ALR 279 at 480; 283-284[124] (1991) 30 FCR 87; 24 ALD 424[125] (1991) 30 FCR 87; 24 ALD 424 at 98; 430[126] (2004) 80 ALD 106; [2004] FCA 480[127] (2004) 80 ALD 106; [2004] FCA 480 at 113; [14][128] (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1 at 127; 564; 4[129] See [44] above[130] Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56 at 631-632; 64-65[131] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135[132] (1990) 21 FCR 193; 92 ALR 93[133] (1998) 158 ALR 623; 51 ALD 56 at 635; 68[134] (1990) 170 CLR 394; 95 ALR 321[135] (1988) 81 ALR 687; 15 ALD 657[136] (1998) 158 ALR 623; 51 ALD 56 at 636; 68-69[137] (1988) 17 FCR 476; 78 ALR 279 at 480; 281 see [62-63] above[138] (1988) 80 ALR 342[139] (1988) 80 ALR 342 at 342[140] (1988) 80 ALR 342 at 349-350[141] (1988) 80 ALR 342 at 351[142] (1992) 15 AAR 519[143] (1992) 28 ALD 25; 16 AAR 158[144] (1995) 21 AAR 9[145] (1965) 112 CLR 349 at 351[146] (1978) 141 CLR 296[147] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525[148] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525-526[149] (1992) 28 ALD 25; 16 AAR 158, O’Connor J, President, with Dr Staer and Mr Hotop, then Members[150] (1992) 28 ALD 25; 16 AAR 158 at 29; 162-163[151] (1995) 21 AAR 9; [1995] AATA 14[152] (1992) 17 AAR 1; 39 FCR 236[153] Re Matusko and Australian Postal Corporation (1995) 21 AAR 9; [1995] AATA 14 at 18-19; [29][154] (1994) 50 FCR 60; 121 ALR 485; 33 ALD 548; 19 AAR 422[155] (1994) 50 FCR 60; 121 ALR 485; 33 ALD 548; 19 AAR 422 at 67; 492; 555; 429[156] (1995) 21 AAR 9; [1995] AATA 14 at 20-21; [33][157] (1998) 151 ALR 51, Black CJ, Burchett and Tamberlin JJ[158] (1998) 151 ALR 51 at 65[159] See [129] below[160] (1999) 56 ALD 501; [1999] FCA 683[161] (1999) 56 ALD 501; [1999] FCA 683 at 521; [84][162] (1991) 173 CLR 167; 104 ALR 317[163] (1991) 173 CLR 167; 104 ALR 317 at 188-190; 325-326[164] WE Bassett and Partners Pty Ltd v John Francis Doherty [1997] FCA 715 per Northrop J[165] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 at 189; 326[166] AAT Act, s 25[167] 1988 Act, s 64[168] 1988 Act, s 60(1)[169] 1988 Act, s 38(4)[170] 1988 Act, s 60(1)[171] Esber v Comcare (1992) 174 CLR 430; 106 ALR 577; [1992] HCA 20 at ; 583; [21] per Mason CJ, Deane, Toohey and Gaudron JJ[172] See [112]-[118][173] 1988 Act, s 62(5)[174] Lees v Comcare [1999] FCA 753 at [39], Wilcox, Branson and Tamberlin JJ[175] 1988 Act, s 60(1)[176] Lees v Comcare [1999] FCA 753[177] [1999] FCA 753 at [56][178] (2000) 100 FCR 150; 175 ALR 681; [2000] FCA 870[179] [2008] FCA 923[180] [2008] FCA 923 at [9][181] [2008] FCA 611[182] [2008] FCA 611 at [62][183] (1964) 112 CLR 125[184] (1964) 112 CLR 125 at 128-129, footnotes omitted[185] (1995) 38 ALD 366[186] (1995) 38 ALD 366 at 372[187] (1995) 38 ALD 366 at 374[188] (1998) 90 FCR 334[189] T2007/1885 documents at 74-75[190] T2007/1885 documents at 76[191] 1988 Act, s 5A(1)[192] 1988 Act, s 5B(1)[193] [1999] FCA 1400[194] [1999] FCA 1400 at [44]-[49][195] [1999] FCA 1400 at [44]-[46][196] (1998) 154 ALR 51, Black CJ, Burchett and Tamberlin JJ[197] (1998) 154 ALR 51 at 66[198] (1990) 170 CLR 321; 94 ALR 11[199] (1990) 170 CLR 321; 94 ALR 11 at 23; 336-337[200] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342 [201] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342 [202] (1990) 170 CLR 321; 94 ALR 11 at 27; 341-342
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