Case: Repatriation Commission v Warren (2008) 101 ALD 222
Outcome: applied
One finds in the joint judgment of Lindgren and Bennett JJ, with whom in this regard I concurred, in Repatriation Commission v Warren (2008) 101 ALD 222 at 238, para 78, a very helpful summary of principles of arising from that case and earlier authority in respect of the obligations which attend the exercise by the Tribunal of its jurisdiction in circumstances where the parties have taken, or at least promoted, a particular way in which the issues ought to be identified or determined. The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances ( Kuswardana at 195 per Bowen CJ and at 199 per Fox J). Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court ( Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material ( Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation ( Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be ' able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it ' ( Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]); A concession ' does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions ' ( Peacock at [23]; and see Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at 337 338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation ( Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation ( Ferriday at 527 528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself ( Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150 ; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual ( Kuswardana ) . 25 Of particular interest in the context of this case, having regard to the submissions that came to be made on behalf of Mr Todd, is the question of whether, though the parties did narrow the issues by concession, the Tribunal was nonetheless obliged in the discharge of its duty to make the correct or preferable decision in respect of the review application, to look beyond the issues that were identified for it. 26 The argument in that regard was developed, on behalf of Mr Todd, by reference to a report which Dr Stephenson gave. Dr Stephenson's report, which formed the basis of the submission, is one dated 22 June 1998. It must be said that there is some reference to the fact of this report in the statements of facts and contentions that were exchanged before the hearing in the Tribunal. It must also be said though that nothing was made of the opinions expressed in Dr Stephenson's report of 22 June 1998, even though, strictly speaking, it was a report before the Tribunal. 27 In the report of 22 June 1998, Dr Stephenson rehearses a number of events as related to her by Mr Todd that occurred in the course of his regular naval service. Of this and other events related by Mr Todd, Dr Stephenson stated: As to how much of this is due to his naval service, it is very hard to assess. Certainly, his perception is that he changed appreciably and from the time he went into the navy, compared with before, when he coped with a number of very efficient work situations without becoming unduly stressed. On the other hand, there have been other factors, at least in the last decade, that have preyed on his nerves. 28 She continued in the final paragraph of her report: It would appear that despite Mr Todd's self-perception of being entirely stable prior to his naval service, that he probably is susceptible to stress; and from his account of his attitude to work at his navy days, probably a bit perfectionistic and hard on himself.