Anderson, Joan Annie v The Commonwealth of Australia

[1998] FCA 580

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - status of preliminary decision - Veterans Review Board - whether decision by Board within meaning of s 107VJ Repatriation Act 1920 - where Board issued draft reasons in favour of granting applicant war widows’ pension - where by time of applicant’s acceptance of Board’s proposal, legislative amendment precluded grant of pension - meaning of ‘decision’ - whether Board estopped from denying that it had made a final decision

FEDERAL COURT - PRACTICE AND PROCEDURE - interest -whether award of interest justified in circumstances where application filed 10 years after alleged ‘decision’

Repatriation Act 1920 s 107VJ
Federal Court of Australia Act 1976 s 51A

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 - cited
R v Smith; Ex parte Mole Engineering Pty Ltd (1981) 147 CLR 340 - cited
In re 56 Denton Road, Twickenham [1953] 1 Ch 51 - cited
Commonwealth v Verwayen (1990) 170 CLR 394 - applied

Comptroller-General of Customs v Kawasaki Motors (1991-2) 25 ALD 635 - followed

JOAN ANNIE ANDERSON V THE COMMONWEALTH OF AUSTRALIA
No QG 151 of 1995

SPENDER J
BRISBANE
21 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 151  of   1995

BETWEEN:	JOAN ANNIE ANDERSON Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:		SPENDER J
DATE OF ORDER:		21 APRIL 1998
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 151 of 1995

BETWEEN:	JOAN ANNIE ANDERSON Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	SPENDER J
DATE:	21 APRIL 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The applicant (Mrs Anderson) on 18 September 1995 sought the following orders:

“1.A declaration that the decision of the Repatriation Review Board pronounced on 3 April 1985 that the death of one Malcolm Miller Anderson was war related and that the Commonwealth of Australia is liable to pay the Applicant a pension on and from 9 July 1980 is valid and binding upon the Respondent;

2.An order that the Respondent pay the Applicant a pension in accordance with Divisions 1 and 6 of Part 3 of the Repatriation Act 1920 on and from 9 July 1980;

3.Such further or other relief or orders as the Honourable Court may deem meet, including an order that the Respondent pay the Applicant interest upon the sums payable pursuant to paragraphs 1 and 2 hereof from the said 9 July 1980.”

The reference to the Repatriation Review Board should be a reference to the Veterans’ Review Board (‘the Board’).

The Commonwealth of Australia contends that the Board made no decision to the effect contended by Mrs Anderson on 3 April 1985, and further says that there is no basis on which it can be asserted that the Commonwealth is estopped from denying that fact.
Mrs Anderson is the widow of one Malcolm Miller Anderson, who died on 28 April 1980. Mr Anderson was a member of the Australian Military Forces in the Second World War. On 26 September 1980 the applicant appointed Melbourne Legacy to act on her behalf in her claim for a pension on the ground that the death of Mr Anderson was caused through war service. That application was lodged with the Department of Veterans’ Affairs on 9 October 1980. On 5 June 1981 the Repatriation Board found that the deceased’s death was not caused through war service. The Repatriation Commission on 16 December 1981 disallowed an appeal from the decision of the Repatriation Board. On 16 February 1982 Mrs Anderson applied to the Repatriation Review Tribunal for a review of the Repatriation Commission’s decision. That application was, after 1 January 1985, an application to the Veterans’ Review Board, pursuant to s 55(1) of the Repatriation Legislation Amendment Act 1984.

Mr Stephen Skehill was the Principal Member of the Veterans’ Review Board for the period commencing late 1984 and ending in early 1988.  In his capacity as Principal Member he developed and approved procedures for the conduct of “preliminary reviews” by the Board.  Mr Skehill says:

“That process was introduced to enable the Board, in certain limited circumstances, to deal with Applications for Review made to it without requiring the attendance of applicants or their representatives at formal hearings of the Board.  In essence it involved the screening of applications to identify those that might, on fuller consideration, result in a decision favourable to the applicant;  listing of such cases before a panel of the Board; the preparation of a draft decision by that panel where it believed that a favourable decision could eventually be so reached; the dispatch of that draft decision to the applicant (and their representative) for their consideration; the making of a final decision in favour of the applicant (either in terms of the draft or as amended following consultation with the applicant) where the applicant so consented; and dispatch of that final decision to the applicant and the Repatriation Commission.  Final decisions favourable to the applicant were not made without this process of consultation on a draft decision for a number of reasons and in particular in case the draft was not as favourable to the applicant (whether as to date of effect or otherwise) as he or she believed it could lawfully be.”

Paragraph 5.2 of the procedure introduced by Mr Skehill for “preliminary reviews” provides:

“A preliminary review involves submitting an entitlement application to a panel to examine the case on the papers and to form a view about whether it can make a decision favourable to the applicant on that material alone.  If the panel:

..Does not think it can make a favourable decision on the papers - the application is returned to await normal hearing.

..Can make a favourable decision - it prepares and sends a draft decision and reasons to the applicant.  If the applicant is happy with the draft or asks for amendments that the panel is willing to make, a formal decision is then made.  If the applicant is unhappy with the decision or asks for amendments that the Board is not willing to make, the application is returned to await normal hearing.”

In accordance with that procedure, a letter was sent to Mrs Anderson at 11 Jamboree Avenue, Frankston Vic on 25 January 1985 in connection with her application for review, which would be conducted by the Veterans’ Review Board.  That letter indicated that there were a number of ways the Board could handle Mrs Anderson’s application, including dealing with her case in her absence.  The letter included the statement:

“Whatever you decide to do, the members of the Board will understand if you feel nervous.  They will do their best to make you feel at ease and will make sure they understand exactly why you disgaree (sic) with the decision under review.  No matter how you ask the Board to deal with your case, you may let the Board know, in writing, why you think that decision is wrong and let the Board have any other material that you think supports your case.”

Mrs Anderson wrote on 18 March 1985 to the Board, where she requested an early hearing of her application and ticked the box against the statement “I am happy for the Board to deal with my application in my absence”.

On 3 April 1985 the Board considered Mrs Anderson’s application “on the papers”. After the “preliminary review” of her application, the Board prepared draft reasons for a proposed decision to set aside the Commission’s decision and substitute one favourable to Mrs Anderson.  Those draft reasons were initialled on 3 April 1985 by two of the three members who constituted the Board for the purpose of the “preliminary review”.

In a letter dated 4 April 1985 the senior member of the Board wrote to Mrs Anderson stating that:

I am writing about your application for a review of the decision of the Repatriation Commission of 16 December 1981 refusing your appeal in respect of a claim for a pension arising out of the death of your late husband.
...
The Board members have looked at the available papers concerning your application and consider that that material would justify making a decision in your favour - to accept as service-related the death of your late husband and that pension should be payable on and from 9 July 1980.

I must stress at this stage that the Board has made only a proposed decision.  A formal decision will not be made until the Board hears from you and considers any views you may put forward.  If requested we will arrange a hearing at which you may attend yourself or be represented, or both.

When the Board does formally decide the application for review, you will receive a statement of the reasons for that decision.  Draft reasons for the proposed decision have in fact also been prepared.  If you would like to see these before making up your mind, please ring Mrs Elaine Bain ........ ....... and she will arrange for a copy to be sent to you.

Your right of appeal from the decision which the Board may make in due course will not be affected in any way if you should consent to the proposed decision and subsequently change your mind.

Please consider this matter carefully.  If you would be satisfied for the Board to decide the matter as proposed please let me know in writing.  Alternatively, if you are dissatisfied with some aspect of the proposed decision, please write to me setting out your views and the Board will look at the matter again.

...

The letter of 4 April was addressed to Mrs Anderson at 9 Bright Crescent, Mt Eliza, which had been Mrs Anderson’s address at the time of her application for pension.

On 24 May 1985 a telegram was sent to Mrs Anderson.  That telegram stated:

“I refer to proposed favourable decision on your claim set out in letter posted to you on 19 April 1985.  Proposed changes to repatriation legislation may affect proposed decision.  Please contact me ........ ...... before 5 pm today or between 10 am and 12 noon tomorrow (Saturday) or as soon as possible. 

Peter Watson, Registrar, Veterans’ Review Board
Friday, 24 May 1985.”

On 28 May 1985, Melbourne Legacy, the chosen representative of Mrs Anderson, had written to the applicant.  The letter says:

“The Veterans’ Review Board wrote you a letter dated 4 April 1985 advising you that they had again looked at your papers favourably.  Unfortunately, their letter was addressed to you at your previous address, and it is possible that you did not receive it.  In case this is so, a copy is enclosed for your information.

The Board cannot confirm their decision until you write to them and accept it.”

Mrs Anderson did not receive a copy of the letter dated 4 April 1985 or the telegram of 24 May 1985 until she returned from overseas on 8 June 1985.

On 11 June 1985, she rang Mr Watson, the Registrar of the Veterans’ Review Board, who told her that it was too late to accept the decision.  She was further told that a hearing would be arranged at some future date.

On 14 July 1995, Mrs Anderson wrote to the Veterans’ Review Board acknowledging receipt of a telegram that was dated 24 May 1985 and continued:

“Unfortunately I was on sick leave from my job, and not at home when this telegram was delivered.  I have also received from Melbourne Legacy, a copy of your letter dated 4 April 1985 which was incorrectly addressed.  Please note the change of address as above.”

In ending the letter, she wrote:

“As I have now received your letter about my appeal, I am writing to you direct to accept the Board’s decision.

Would you kindly inform Melbourne Legacy when this matter is finalised.”

On 24 July the Registrar of the Board wrote to Mrs Anderson in the following terms:

“Further to the letter dated 19 April 1985 from the Board and our telephone conversation of 11 June 1985, I confirm that, owing to changes to Repatriation legislation which became effective on 6 June 1985, the Board is now unable to take the favourable decision which was proposed from the information already on your files.

The Board will now need to consider your application in the usual way by arranging a hearing at which you may attend and/or be represented.  I note that you have nominated Melbourne Legacy to represent you at any hearing and you may wish to contact that organisation in this regard.

Details of the hearing of your application will be advised to you shortly.

I have forwarded a copy of this letter to Melbourne Legacy for the information of your representative.
...”

The Repatriation Legislation Amendment Act 1984 which altered the operation of s 107VG and in particular s 107VG(7) of the Repatriation Act 1920, came into effect on 6 June 1985.

There is no evidence that Mrs Anderson or anyone on her behalf sought or obtained a copy of the Board’s draft reasons at any time before being told that the Board would not proceed with the preliminary review but would instead hold a hearing.

The document headed “Decisions and Reasons” (which document was never sent to Mrs Anderson or her representative) has the date of hearing left blank and the date of decision left blank.  Contrary to the procedures set out in Mr Skehill’s manual, the document does not bear a stamp “Draft” on it.

On these facts it is contended by Mr Crowley QC, senior counsel for Mrs Anderson, that there was a decision by the Board on 3 April within the meaning of s 107VJ, as inserted by the Repatriation Legislation Amendment Act 1984, it being said that all that was required by the Repatriation Act to be done was in fact done.

The statutory scheme which existed on 3 April 1985 empowered the Board to conduct, hear, and decide reviews of decisions of the Commission: s 107VF(1).  The Board was required to satisfy itself with respect to or to determine all matters relevant to any such review: s 107VG(2).  Where, as in Mrs Anderson’s case, the decision of the Commission was to refuse to grant her a pension, s 107VG(3)(a) applied.  It provided:

“(3)  On the completion of its consideration of a review of a decision -

(a)if the decision was a decision to refuse to grant a claim for a pension - the Board shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application;

...”

Where the Board took that course, it was required to substitute its own decision for that of the Commission: s 107VG(4).  If the Board did not set aside the Commission’s decision, it was required to affirm it: s 107VG(6).  Where the Board reviewed a decision of the Commission, the Board was required to record its decision in writing: s 107VJ(1)(a);  prepare a written statement of reasons: s 107VJ(1)(b); file the decision and the written statement with the records of the case: s 107VJ(1)(c); and cause to be served a copy of its decision and a statement of reasons on the applicant for review and the Commission: s 107VJ(1)(d).

The term “decision” is not defined in the Act.  Mason CJ noted in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 that where the relevant context is not that of a decision reached in curial or judicial proceedings:

“...the meaning must be determined by reference to the text, scope and purpose of the statute itself.”

The provisions of the Act earlier set out indicate that the Board’s “decision” in relation to a review application is the determination of the Board either to set aside the Commission’s decision and substitute its own; or to affirm the Commission’s decision.  This is consistent with the accepted meaning of a “decision”, namely, “some announced or published ruling or adjudication”: Director-General of Social Services v Chaney (1980) 31 ALR 571; per Deane J at 590, and with the observation of Mason CJ in Bond (supra), at 337, directing attention to the “final” or “operative” or “determinative” character of what is a “decision”.

I do not accept that the Board’s draft reasons constituted a decision to set aside the Commission’s decision and to substitute therefor a decision that the applicant was entitled to a widow’s pension.  The statutory duty of the Board required the Board to have completed considering the review of the Commission’s decision and to have reached a conclusion as to how to dispose of it.

In my judgment, the reaching of a preliminary or provisional, tentative, or qualified view on that question does not amount to a decision in relation to it.

In R v Smith; Ex parte Mole Engineering Pty Ltd (1981) 147 CLR 340, Mason J was concerned with a decision by an Acting Deputy Commissioner of Patents to uphold objections to the grant of a patent, but who refrained from refusing the application for a patent where it appeared that the objections might be cured by amendment. Mason J said of this decision at 348:

“...his decision was nonetheless a final decision on the original unamended application - there was nothing provisional or tentative about the finding on the grounds of objection.  It dealt with all the issues arising on the notice of opposition so far as they were capable of final determination.”

So too in In Re 56 Denton Road, Twickenham [1953] 1 Ch 51, Vaisey J said at 56-7:

“...the plaintiff’s counsel offered for my acceptance the following proposition: that where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body.  I accept that proposition as well-founded, and applicable to the present case.”

In this case, in my opinion, it is plain that on 3 April 1985 the Board had not made a decision favourable to Mrs Anderson.  The letter of 4 April contains overwhelming evidence that the contrary was the case.  The letter said in part:

“The Board members have looked at the available papers concerning your application and consider that the material would justify making a decision in your favour...”

And later:

“I must stress at this stage that the Board has made only a proposed decision.  A formal decision will not be made until the Board hears from you and considers any views you may put forward.”

The many references to “proposed decision” which follow, and the statement “When the Board does formally decide the application for review, you will receive a statement of the reasons for that decision”, all indicate that as at 4 April 1985 no decision had been made by the Board concerning the review of the Commission’s decision.         [emphasis added]

If, contrary to my conclusion, the Board did decide on 3 April 1985 to set aside the decision of the Commission, the fact that there was non-compliance with service of a copy of the decision and a copy of the written statement of reasons on Mrs Anderson would not, in my opinion, preclude the decision from being effective: cf Formosa v The Department of Social Security (1988) 81 ALR 687.

The “preliminary review” procedure, in my opinion, was authorised by the Act.  Section 107VS(5) empowered the principal member of the Board to “give directions not inconsistent with sub-sections (1), (2), (3) and (4) as to the procedure of the Board with respect to reviews before it”.  Section 107VS(7) provided:

“In giving a direction under this section, the Principal Member...shall have regard to the need for the review to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Board permit.”

A detailed analysis of the “Preliminary Review” process established by Mr Skehill reflects a beneficent attitude to an applicant for an entitlement, but it plainly constituted a process which resulted in a decision conferring that entitlement only after the response to the applicant to the proposed decision has been received by the Board, and only after the members of the Board had considered that response.  Paragraph 5.23 of the document outlining the Preliminary Review process provided:

“If the applicant is happy with the decision and reasons or has asked for amendments that the panel agrees to, the members will finalise and sign the decision and reasons.  The ‘hearing’ and ‘decision’ dates will be the date of the meeting (see 5.19) when the members reached the final decision.  The presiding member will prepare a covering letter (format V31 and attachment)....

I am satisfied that as at 3 April 1985 there had not been, in accordance with s 107VG(2), a satisfaction with respect to or a determination of all matters relevant to the review of the Commission’s decision concerning Mrs Anderson’s claim to a pension. In particular, there was no decision by the Board to set aside the decision of the Repatriation Commission of 16 December 1981 and to substitute therefor its decision that, pursuant to the provisions of s 101 of the Repatriation Act 1920, the death of Malcolm Miller Anderson be accepted as being related to his war service and that on and from 9 July 1980 the Commonwealth of Australia was liable to pay to his dependants pension in accordance with Division I of Part III of the Repatriation Act 1920.

A contrary conclusion is inconsistent with the letter of 4 April 1985; inconsistent with the letter from Melbourne Legacy dated 28 May 1985 to Mrs Anderson and to the reference in the telegram of 24 May 1985 to the “proposed favourable decision”.
In my opinion, there is no question of estoppel against the Commonwealth preventing it from denying that on 3 April 1985 the Board made a final decision that Mrs Anderson was entitled to a pension.  There was no representation by the Commonwealth that the Board had made a determination that Mrs Anderson was entitled to a widow’s pension.  It follows that there can have been no reliance by Mrs Anderson on any such representation.

In my opinion, in this case there is no representation of the kind made in Commonwealth v Verwayen (1990) 170 CLR 394, which representation induced reliance on behalf of the person to whom it was made. In my judgment, there was no representation of the kind asserted on behalf of Mrs Anderson to support any application of the principle of estoppel.

In the course of argument before the Court, an application was made on behalf of the applicant to amend the statement of claim pleaded on behalf of the applicant to allege a new sub-paragraph 10D and 10E in the following terms:

“10D.  That by reason of the erroneous statements made by the defendant by letter of 24 July 1985 and its failure to finalise its decision of 3 April 1985, the defendant is estopped from denying that the applicant is entitled to the benefit of the decision and reasons of the Veterans Review Board of 3 April 1985.

10E.  By reason of the said erroneous statements by the defendant in its said letter of 24 July 1985, the applicant acted to her detriment in that she did not seek to further her rights pursuant to her appeal to the Veterans Review Board of 6 February 1982.

The erroneous statements are said to be found in the first paragraph of the letter of 24 July 1985, namely:

‘I confirm that owing to changes to repatriation legislation which became effective on 6 June 1985, the Board is now unable to take the favourable decision which was proposed from the information already on your files.’”

It is to be noted that no change is sought in the relief sought by the applicant.

It seems to me factual questions may be raised, if the amendments were to be permitted.  Independently of that ground for refusing the amendments at this stage, nothing in the proposed amendments affects the basis of the applicant’s application, which is the claim that the Board decided on 3 April 1985 to grant her entitlement to a pension.  This, in my view, it did not do and has not since done.

Since nothing to the advantage of the applicant would be gained by permitting the proposed amendments, they are refused.

It was further submitted on behalf of Mrs Anderson that her application for review of the Commission’s decision was to be determined according to the law as it existed prior to the amendments introduced by the 1985 amending Act.  In my opinion, the determination of which law ought properly to have been applied in the review application is irrelevant to the question of whether the Board decided Mrs Anderson’s review application on 3 April 1985.

Further, in my opinion, the letter of acceptance of 14 July 1985 does not constitute the making of a decision by the Board to grant a pension to Mrs Anderson.  As the correspondence makes plain, the response of Mrs Anderson was a necessary precursor to the making of a decision, including a decision favourable to her: it did not, of itself, constitute the making of a decision by the Board.  In particular, it did not constitute the making of a decision or entitlement favourable to Mrs Anderson.

Whether on receipt of that letter of acceptance the Board could or should have proceeded to make a determination on the review application is not relevant in the present proceedings.  The fact is it did not.

The question of whether the Veterans’ Review Board and the Administrative Appeals Tribunal correctly applied the transitional provisions under the Repatriation Legislation Amendment Act 1985 and later the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 is not a matter properly in issue in the present proceedings. I am told from the Bar table that there are other proceedings in which those questions are relevant.

For the above reasons, in my opinion, the application should be dismissed.  Should I be wrong in that conclusion, it is appropriate that I express my opinion concerning the claim in the third prayer of relief of the application for an order concerning payment of interest.

In my opinion, the court lacks power to make an order of the kind sought in that prayer.  There is no power in the Veterans’ Review Board to direct the payment of interest on back-dated pension payments.  Neither the Veterans’ Entitlements Act 1986 nor the predecessor The Repatriation Act 1920 makes any provision for the payment of interest on back-dated pension payments. The power of the Board, pursuant to s 107VG of the Act, was to set aside or affirm the decision of the Commission. The power of the Court on review for error of law is not more extensive.

While the matter was scantily argued, I do not think that anything in the general powers of the Court would justify the award of interest in the present circumstances. Section 51A of the Federal Court of Australia Act 1976 authorises an order for interest being made in “...any proceedings, for the recovery of any money (including any debt or damages or the value of any goods).”  In my judgment, notwithstanding that the application seeks “An order that the Respondent pay the Applicant a pension in accordance with Divisions 1 and 6 of Part 3 of the Repatriation Act 1920 on and from 9 July 1980”, the present proceedings are not proceedings for the recovery of money: see Comptroller-General of Customs v Kawasaki Motors (1991-2) 25 ALD 635 at 648. The prayer for relief seeking the payment of a pension from 9 July 1980 is akin to an order for mandamus.

Moreover, s 51A applies only to causes of action arising on or after 22 November 1984.

Further, if, contrary to my view, there is power in the Court to award interest in the present circumstances, having regard to the circumstance that the present application was filed more than ten years after the asserted decision, I would not order the payment of any sum by way of interest.

I will hear the parties on costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate
Dated:             21 April 1998

Counsel for the Applicant:	Mr Crowley QC and Mr I A Erskine
Solicitor for the Applicant:	Stockley Furlong
Counsel for the Respondent:	Mr Doyle SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 August 1997
Date of Judgment:	21 April 1998