Case: Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Outcome: considered
respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2 In order to explain this ground, it is necessary to set out the following passages from the Deputy President's reasons. "As mentioned in paragraph 6 above, during the hearing I raised a concern as to jurisdiction, because the application for review refers to the decision of the VRB instead of the decision of the Commission. To overcome my concern I suggested that Mr Kowalski should lodge a fresh application to review the decision of the Commission. He did this, and I made an order, with the consent of the Commission, to extend the time for making the new application. I then gave directions to the effect that the existing proceedings and the new proceedings should be heard together, with the evidence in each case being treated as evidence in the other. ... As there is no issue of jurisdiction in relation to the new application, and in view of the conclusion I have reached, it is not necessary for me to determine whether I had jurisdiction by virtue of the original application. However, on reflection, I think that the original application was sufficient." That reasoning is correct and nothing was said by the Full Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 which suggests that the Deputy President's approach was erroneous. Ground 10 The contention in this ground of appeal is that the Tribunal erred in law in determining that the error that the applicant had made by referring to the Board's decision in his application for review instead of referring to the respondent's decision was an obvious error that should not have rendered his application for review ineffective, or deprived the Tribunal of its jurisdiction or power to make a determination on his application for review. The passage of which the applicant complains is as follows: "In the present case Mr Kowalski clearly intended to invoke the jurisdiction of this tribunal because he was dissatisfied with the decision of the VRB. The error he made in referring to the wrong decision was an obvious error, and should not render his application for review ineffective." That approach favours the applicant and it is not at all clear why he is attacking it. In any event, the approach does not involve error. Ground 11 The contention in this ground of appeal is that the Tribunal failed to consider the applicant's many contentions and his contention based on the changed "ability to work classification" from FE on enlistment to HO on discharge to which the Tribunal referred in paragraph 29 of its reasons "because the facts found in those par's [sic] clearly meet the evidentiary burden on the applicant to adduce sufficient evidence to establish his claims, therefore, Jarvis DP erred in law in finding that the conditions for which the applicant was claiming a disability pension were not caused by his compulsory National Service in the Army". I have set out above the Deputy President's conclusions in the penultimate paragraph in his reasons (see [29]).