Bannister v See

[1982] FCA 109

BANNISTER v. SEE (1982) 63 FLR 74
Repatriation

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Toohey J(1)

CATCHWORDS

Repatriation - Widow's claim for late husband's death related to war injuries repeatedly rejected - Repatriation Commission's reconsideration of widow's claim - Commission's decision against further review under s. 32 of Repatriation Act of widow's claim - Purported application under s. 107VC of Repatriation Act appealing against Commission's decision - Whether applicant had claim under Repatriation Act - Whether Commission's decision was in terms of s. 107VC - Meaning of "review" in s. 31 - Whether scope for review of "decision" under s. 107VC - Whether Secretary to Department of Veterans' Affairs had duty to act pursuant to s. 107VF - Appellate structure of Repatriation Act 1920 discussed - Repatriation Act 1920 (Cth), ss. 24AB, 28, 31, 64(4), 107VA-107VZZH, as amended by Repatriation Acts Amendment Act 1979 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 7 (2).

HEADNOTE

Section 31 (1) of the Repatriation Act 1920 provides: "Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension) the Commission may review the assessment, decision or determination."

Section 107VC(1) of that Act, so far as relevant, provides: "Where the Commission has made a decision refusing a claim by a person for a pension (other than a service pension) or other benefit under this Act . . . that person may, on or after 1 July 1979, make application to the Tribunal for a review of the decision of the Commission."

The applicant's claim for acceptance of her late husband's death on 21st March, 1975, as being related to his war injuries had been rejected by a Repatriation Board and her appeal was dismissed by the Repatriation Commission. Her subsequent appeals producing further evidence to a War Pensions Entitlement Appeal Tribunal and to the Commission had also been dismissed. Following the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v. Law (1980) 47 FLR 57, the applicant sought further consideration of her claim and the Commission notified her on 12th November, 1981, that it would reconsider her case under s. 31 of the Act. The Commission delivered reasons and concluded that it did not consider sufficient reason existed to warrant further review under s. 31 of the Act of the applicant's claim. The applicant appealed against the Commission's decision in a letter expressed to be an application under s. 107VC of the Act. The Commission contended that, in deciding to make no change to its earlier decision that the applicant had no claim under the Act, its action was not "a decision refusing a claim by a person for a pension" in the terms of s. 107VC of the Act and accordingly the Commission declined to act pursuant to s. 107VF of the Act.

Held: (1) Section 31 of the Act used the word "review" in the sense that it contemplated a reconsideration of an assessment, decision or determination because of subsequent events, not in the sense of an appeal from an original decision, assessment or determination.

Crossfield & Sons Ltd. v. Tanian (1900) 2 QB 629; Sharman v. Holliday & Greenwood Ltd. (1904) 1 KB 235; Radcliffe v. Pacific Steam Navigation Company (1910) 1 KB 685, referred to.

(2) There was no relevant "decision" under s. 107VC (1) of the Act, so that there was no scope for review under that subsection and hence there was no room for the operation of s. 107VF.

(3) In the absence of power, the Secretary of the Department of Veterans' Affairs was under no duty to make a decision, so that it could not be said that the Secretary had failed to act pursuant to the provisions of s. 107VF.

(4) The applicant could not rely upon s. 7 (2) of the Administrative Decisions (Judicial Review) Act 1977 as it presupposed a duty to make a decision to which that Act applied.

Accordingly, the application would be dismissed.

Observations concerning the appellate structure of the Repatriation Act 1920, discussed.

Quaere: Whether, if the grant of a pension were revoked following a review under s. 31 of the Act, there would have been a decision refusing a claim within s. 107VC of the Act.

Quaere: Whether such a review would be susceptible to challenge under s. 5 of the Administrative Decisions (Judicial Review) Act 1977.

HEARING

PERTH, 1982, May 7, 26. #DATE 26:5:1982

ORDER OF REVIEW.

The applicant applied to the court for an order of review pursuant to s. 7 (2) of the Administrative Decisions (Judicial Review) Act 1977, seeking orders against the respondents (one of whom was the Deputy Repatriation Commissioner) to implement the provisions of s. 107VF of the Repatriation Act 1920.

The facts appear in the judgment.

K. White, for the applicant.

P. L. Seaman Q.C. and S. W. O'Sullivan, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Muir Williams Nicholson.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. D. WHITEHEAD

JUDGE1

MAY 26.

TOOHEY J. delivered the following written judgment.

This is another journey along the tortuous paths of the Repatriation Act 1920 (Cth). The applicant Mrs. Bannister, relying upon s. 7 (2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeks orders against the respondents to implement the provisions of s. 107VF of the Repatriation Act. (at p76)

1. Mrs. Bannister's husband died on 21st March, 1975. On 8th May she lodged a claim for acceptance of his death as being related to his war service. That claim was rejected by a Repatriation Board on 10th July. On 20th August she lodged an appeal to the Repatriation Commission which on 1st September dismissed the appeal. (at p76)

2. At that time there existed War Pensions Entitlement Appeal Tribunals, bodies which were replaced by the Repatriation Review Tribunal following the substantial amendments made by the Repatriation Acts Amendment Act 1979. On 2nd October, 1975, Mrs. Bannister lodged an appeal to such a Tribunal, producing further evidence in support of her claim. On 7th July, 1976, in the light of the further evidence, the Tribunal referred the appeal to the Repatriation Commission for its reconsideration under s. 64 (4), a section since repealed. On 13th October, 1976, the Repatriation Commission reconsidered Mrs. Bannister's appeal but stood by its previous decision. On 2nd May, 1978, the War Pensions Entitlement Appeal Tribunal dismissed the appeal. (at p76)

3. By reason of s. 49 (1) (a) of the 1979 legislation, on a review under s. 107VC, a decision of a War Pensions Entitlement Appeal Tribunal is to be regarded as if it were a decision of a Repatriation Review Tribunal. (at p76)

4. Following the decision of the Full Court of the Federal Court in Repatriation Commission v. Law (1980) 47 F.L.R. 57, Mrs. Bannister sought further consideration of her claim. She did this through a letter written by the Legacy advocate Mr. I. H. Davies on 1st July, 1981. In response to that letter the Repatriation Commission wrote on 12th November, 1981, to say: "The Commission has decided that it will reconsider the case under s. 31 of the Repatriation Act." Subsection (1) of that section reads: "Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension) the Commission may review the assessment, decision or determination." (at p76)

5. On 9th December, 1981, the Commission delivered reasons in which it canvassed the evidence in the light of the principles in Law's case and concluded: "For these reasons, the Commission, having had full regard to the judgment by the Full Court of the Federal Court in the case of Repatriation Commission v. Law, does not consider that sufficient reason exists to warrant further review under s. 31 of the Repatriation Act in respect of the widow's claim." (at p76)

6. On 22nd December Mr. See, one of the respondents and Deputy Repatriation Commissioner, wrote to Mrs. Bannister with a copy of the Commission's reasons, adding: "However, your case may be re-opened at any time by the submission, in writing, of further evidence which would have been relevant to the Commission's decision." (at p77)

7. On 11th January, 1982, Mr. Davies wrote to the Repatriation Review Tribunal, appealing against "the decision of the Repatriation Commission as set out in the 'reasons' dated 9th December, 1981, not to review or grant this appeal". The letter was expressed to be an application under s. 107VC of the Repatriation Act. That section reads in part: "Where the Commission has made a decision refusing a claim by a person for a pension (other than a service pension) or other benefit under this Act . . . that person may . . . make application to the Tribunal for a review of the decision of the Commission." (at p77)

8. Where an application is made to the Tribunal for review of a decision under s. 107VC, the Secretary to the Department of Veterans' Affairs is required, by reason of s. 107VF, within twenty-one days to notify the President of the Tribunal that the application has been lodged and, as soon as practicable thereafter, to forward to the President the application and all relevant material. The Secretary declined to take either step as a result of which Mrs. Bannister brought the present application. (at p77)

9. It emerged from the hearing before this Court that the basis for declining to act pursuant to s. 107VF was that in the respondents' submission the action of the Commission in deciding to make no change to earlier decisions that Mrs. Bannister had no claim under the Repatriation Act was not "a decision refusing a claim by a person for a pension" in the terms of s. 107VC. That is the crux of the matter. (at p77)

10. In the respondents' submission s. 31 is not part of the chain of appellate procedures established by the Act. Section 24AB provides that when a claim for a pension is lodged with the department the Secretary shall cause an investigation to be made and on completion of that investigation shall cause the claim to be submitted to a Board for its consideration and determination. From that determination an appeal lies to the Commission (s. 28). In 1975 when Mrs. Bannister first lodged a claim, the appropriate step once the Commission had dismissed her appeal from the determination of the Board, was to appeal to a War Pensions Entitlement Tribunal. This she did. As mentioned earlier, the Act must now be read as if the decision by that Tribunal was a decision by the present Repatriation Review Tribunal. (at p77)

11. This is by no means the totality of the appellate structure. The President of the Repatriation Review Tribunal may, pursuant to s. 107VZZB, refer an application for review by that Tribunal of a decision of the Commission to the President of the Administrative Appeals Tribunal, with a request for a review by that body of the decision. The President of the Administrative Appeals Tribunal must direct a review by that Tribunal in accordance with the Administrative Appeals Tribunal Act 1975 (Cth). Similar action may be taken at the instance of one of the parties during a hearing before the Repatriation Review Tribunal (s. 107VZZB (3)). Again the Repatriation Review Tribunal may of its own motion or at the request of one of the parties refer a question of law arising in a proceeding before that Tribunal to the Federal Court, constituted by a single judge unless the Chief Judge of the Federal Court directs that by reason of the importance of the matter the court shall be constituted by not less than three judges (s. 107VZZG). There is as well a right of appeal to the Federal Court on a question of law from any decision of the Tribunal (s. 107VZZH). (at p78)

12. Returning to s. 107VC, where the Tribunal, following a review of a decision of the Commission, affirms that decision the President may thereafter notify the applicant that in his opinion further evidence submitted by the applicant under s. 107VM would have been relevant to the decision made by the Commission and affirmed by the Tribunal. In that event the applicant may again make application to the Tribunal for a review of the Commission's decision (s. 107VC (2)). (at p78)

13. Although amended and renumbered, s. 31 has been part of the Act since its inception as the Australian Soldiers' Repatriation Act 1920. The section is expressed not to apply to a variety of decisions. They include a decision of the Repatriation Review Tribunal under s. 107VZB (provision for the rehearing within six months of a decision under s. 107VC favourable to the applicant where further relevant evidence is forthcoming); a decision of the Administrative Appeals Tribunal in like circumstances (s. 107VZZE operating to give such a decision the effect of one made by the Repatriation Review Tribunal); a decision of the Repatriation Review Tribunal under s. 107VZC (1) (where binding on the Commission for a specified period, and that period has not expired); a decision of the Administrative Appeals Tribunal in like circumstances (deemed to be a decision of the Repatriation Review Tribunal by s. 107VZZE). (at p78)

14. Section 31 empowers the Commission to review an assessment, decision or determination, whenever it appears to the Commission that sufficient reason exists. It seems to permit the Commission to act of its own motion though the matter has to be brought to the attention of the Commission in some way. (at p78)

15. The term "review" is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself. It may have the more limited meaning of reconsideration in the light of changed circumstances, as with workers' compensation payments. In such a case, if there has been no change of circumstance there cannot be a review (Crossfield & Sons Ltd. v. Tanian (1900) 2 Q.B. 629), though the changed circumstances may be used to demonstrate that the original decision was wrong (Sharman v. Holliday & Greenwood Ltd. (1904) 1 K.B. 235; Radcliffe v. Pacific Steam Navigation Company (1910) 1 K.B. 685). (at p79)

16. In my opinion s. 31 uses "review" in the second sense, that is it contemplates, not an appeal from the original assessment, decision or determination but a reconsideration of that assessment, decision or determination because of subsequent events. That is to say that there must be shown some alteration in the position of the person benefiting or standing to benefit from a pension; it may be enough that later events have proved the assessment, decision or determination to have been wrong. Such an interpretation accords with the presence in the Act of a wide range of what are truly appellate procedures. It also explains the exclusion in s. 31 (3) of certain decisions where there has been already "further evidence" (s. 107VZB) or where the decision itself has been expressed to operate for a specified period with provision for reconsideration if there has been an increase in incapacity. (at p79)

17. As a result of a review under s. 31 the Commission may vary or revoke an assessment, decision or determination or of course it may leave that assessment, decision or determination stand. If, following a review under s. 31 the Commission decides to leave unchanged an earlier determination refusing a claim for a pension, I do not think that is itself "a decision refusing a claim by a person for a pension" within s. 107VC. That decision has already been made and was subject to appeal under Pt IIIA of the Act; all that the Commission has done is to leave that decision unchanged. (at p79)

18. It follows that when the Secretary was called upon by Mrs. Bannister to notify the President of the Repatriation Review Tribunal of her application for a review under s. 107VC and to forward to the President that application together with the relevant records and documents, the Secretary was being asked to do something which he had no power to do. There being no relevant "decision" under s. 107VC (1), there was no scope for a review under that subsection, hence no room for the operation of s. 107VF. In the absence of power it cannot be said that there was a duty upon the Secretary and accordingly it cannot be said that there was a failure on his part. Section ( (2) of the Administrative Decisions (Judicial Review) Act 1977, upon which Mrs. Bannister relies, presupposes a duty to make a decision; for the reasons mentioned no such duty exists. (at p80)

19. It may be that if, following a review under s. 31, the grant of a pension is revoked, there has been a decision refusing a claim within s. 107VC. It may be too that any such review is susceptible to challenge under s. 5 of the Administrative Decisions (Judicial Review) Act. I express no view on those matters for it is unnecessary to do so. (at p80)

20. But I accept the respondents' submission that this Court may not order the respondents to do what the application seeks. The application must be dismissed. (at p80)

ORDER

Application dismissed.