Bastiani, H. v The Repatriation Commission
[1985] FCA 60
•01 MARCH 1985
Re: HELEN BASTIANI
And: THE REPATRIATION COMMISSION
No. WA G87 of 1984
Administrative Law - Defence and War
59 ALR 301 / 5 FCR 378
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)
CATCHWORDS
Administrative Law - judicial review - decision of Repatriation Commission pursuant to s.31 of the Repatriation Act allowing the applicant's claim for a war pension and specifying the operative date for payment of the pension - whether the discretion in sub-s.31(2) of the ACt to specify a date limited by the liability of the Commonwealth to pay a pension "upon incapacity or death" in s.101 - consideration of legislative history of s.31 - whether decision specifying the operative date contrary to law or an improper exercise of power - observations on the scope of judicial review
Administrative Decisions (Judicial Review) Act 1977 s.5
Repatriation ACt 1920 ss. 31, 101, 107VZG
Defence and War - Repatriation - Pensions - Unsuccessful claim for pension renewed after sixteen years - Pension granted on review - Operative date of pension - Relationship between ss 31(2) and 101(3) of the Repatriation Act 1920 - Repatriation Commission's discretionary power pursuant to s 31(2) - Relevance of new medical hypothesis - Repatriation Act 1920 (Cth), ss 31(1), 31(2), 101, 107VM, 107VZG - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Australian Soldiers' Repatriation Act 1920 (Cth), s 28.
HEADNOTE
Held: (1) Section 31 of the Repatriation Act 1920 which contemplates a reconsideration of an original assessment, decision or determination of certain pension claims because of subsequent events, was applicable to the review by the Repatriation Commission in this case.
(2) Section 31(2) of the Act not only obliges the Commission when varying or revoking any such assessment, decision or determination to specify the date from which the variation or revocation shall operate, but also vests in the Commission a discretion as to what that date shall be.
(3) No grounds within s 5 of the Administrative Decisions (Judicial Review) Act 1977 had been made out in relation to a decision of a delegate of the Commission made pursuant to s 31(2) of the Act that the pension be operative from 1981 and not 1966, the year of the applicant's first claim. A. factor weighing heavily with the delegate in making this decision was the great change in relevant medical hypothesis and knowledge that had taken place between 1966 and 1981, and this was a factor which the delegate should have taken and did take into account.
Repatriation Commission v. Law (1981) 147 CLR 635; Re Byrne and Ors and Repatriation Commission (1981) 3 ALN Note 43; Repatriation Commission v. Morcombe (unreported, Federal Court of Australia, Beaumont J, 19 September 1983); Bannister v. See (1982) 45 ALR 146; Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, referred to.
HEARING
Perth, 1985, February 6; March 1. #DATE 1:3:1985
APPLICATION
Application pursuant to the Administrative Decisions (Judicial Review) Act 1977 seeking orders of review in relation to a decision of the Repatriation Commission relating to the date on which a pension would become operative.
P. C. S. Van Hattem, for the applicant.
R. S. French, for the respondent.
Cur adv vult
Solicitors for the applicant: Muir Williams Nicholson.
Solicitors for the respondent: Australian Government Solicitor.
GFV
ORDER
The application is dismissed.
Liberty to the respondent to apply for the costs of the application.
Application dismissed
JUDGE1
This application, made under the provisions of the Administrative Decisions (Judicial Review) Act 1977, seeks to review a decision of the Commission relating to the date from which payment of a pension to the applicant under the Repatriation Act 1920 would commence. The issue is essentially one of statutory construction; its resolution requires yet another journey through the entanglements of this legislation.
The applicant is the widow of Arthur William Bastiani who died on 6 March 1966. On 2 May 1966 the applicant submitted to the Repatriation Department a claim for war pension as the widow of the deceased. On 7 June 1966 that claim was rejected by a Repatriation Board on the ground that Mr. Bastiani's death was not due to war service. On 22 August 1966 the applicant appealed to the Repatriation Commission against the rejection of the claim and that appeal was disallowed on 5 October 1966. On 19 October 1966 the applicant appealed to the War Pensions Entitlement Appeal Tribunal against the rejection of the claim and the disallowance of her appeal. On or about 30 November 1966 the Tribunal rejected the appeal.
There the matter rested for some 17 years. Following the decision of the High Court in Repatriation Commission v. Law (1980-1981) 147 CLR 635 and later decisions of the Administrative Appeals Tribunal and the Repatriation Review Tribunal giving effect to that decision, Mr. Ivan Davies, whose work in the field of war pensions is well known, applied to the respondent on behalf of the applicant for a reconsideration of her claim. At the relevant time sub-s.31(1) of the Repatriation Act empowered the Commission to review an assessment, decision or determination in relation to a pension whenever it appeared to the Commission that, under the Act, sufficient reason existed for such a review. By a determination, which was dated 27 March 1984 but for some reason not furnished to the applicant until 21 May 1984, the respondent decided that there was not sufficient reason for a review.
In consequence the applicant applied to this Court for an order to review the respondent's refusal to reconsider her claim. Before that application was heard by the Court the respondent, by a determination dated 21 August 1984, decided that the applicant's claim be accepted "with effect from 9 December 1981". The applicant contends that her pension should operate as from 7 March 1966, the day after her husband's death, and that the respondent erred in law in not so deciding.
The choice of the date 9 December 1981 was made by the delegate to the Commission, it being the date on which she understood the Administrative Appeals Tribunal had accepted what has become known as the Metcalf hypothesis. This was an hypothesis advanced by Dr. Metcalf in Re Byrne and Ors. and Repatriation Commission (1981) 3 ALN Note 43 that tropical infections, particularly malaria, may play a significant role in the development of certain cancers. As it happens, the decision of the Administrative Appeals Tribunal was given on 10 April 1981 not on 9 December. Counsel for the respondent pointed this out to the Court and said that the respondent was content that a pension be granted from the earlier date. In counsel's submission, this matter could be cured administratively without upholding the application.
The applicant's case was that the liability of the Commonwealth to pay a pension under the Repatriation Act arises, by reason of s.101, upon incapacity or death. Sub-section 101(3) provides that where a pension is granted, the Commission "may, subject to this Act, approve of the payment of the pension on and from a date not prior to 3 months before the date of lodgment of the claim for pension". In the applicant's submission, s.101, read in its entirety, obliges the Commission to approve of the payment of a pension on death with a rider that, where a claim is not made until some time later, the pension may not operate earlier than 3 months before the date of lodgment of the claim. In the applicant's submission, sub-s.31(2), which provides that whenever the Commission varies or revokes an assessment, decision or determination, it "shall specify the date from which the variation or revocation shall operate and it shall operate accordingly", is by way of a machinery provision. It vests no discretion in the Commission whose discretion is controlled by the language of s.101.
The respondent's case was that sub-s.31(2) imposes on the Commission a duty to specify the date from which any variation or revocation of a decision under review shall operate. The sub-section, it was said, vests in the Commission a discretion as to the date from which the variation or revocation shall operate, a discretion which is not confined by any express limitation under the Act. In particular the discretion is not limited by the provisions of sub-s.101(3) though the sub-section may be taken into account in the exercise of discretion. The respondent made submissions as to the matters which may properly be taken into account in the exercise of discretion under sub-s.31(2); I shall refer to those matters later in these reasons.
The question is one of statutory construction, unaided by any decision directly in point. Counsel for the applicant relied on Repatriation Commission v. Morcombe (unreported decision of Beaumont J. delivered 19 September 1983) but in my view that decision does not assist in the present case. Morcombe was concerned with the meaning of the expression "relevant claim" in para. 107VZG(1)(d) of the Act whereby a decision of the Repatriation Review Tribunal or of the Commission in the circumstances there mentioned may not be expressed to operate from:
"(d) a date earlier than 3 months before the day on which the relevant claim for pension was lodged".
Beaumont J. held that the relevant claim was that made pursuant to ss.24 and 101 in February 1976 and not a request for review under sub-s.31(1) made in May 1981. The effect of the decision was to make a pension payable from 13 December 1976, the date of death of the member of the Forces. But it is clear from a reading of the reasons for judgment and of the notices of appeal and cross-appeal before Beaumont J. that if the relevant claim was that made in February 1976 the Commission accepted liability to pay a pension from the date of death. In other words, once his Honour determined the relevant claim in the way that he did, the appropriate date from which the pension was to operate was inevitably the date of death. It was unnecessary for Beaumont J. to consider the question which is now before this Court.
Section 101 is the section which, for relevant purposes, establishes the liability of the Commonwealth, upon incapacity or death, to pay to the member or his dependants (or both) pensions in accordance with Division 1. Section 101 lies within Division 6 which extends the application of provisions of Divisions 1 and 5 to certain male members of the Forces in respect of the 1939-1945 War. Divisions 7, 8 and 9 extend Divisions 1 and 5 to certain female members of the Forces in respect of the 1939-1945 War and to certain male and female members of the Forces in respect of the Korea and Malaya Operations. Each of those Divisions has its counterpart to s.101 as does Division 10 which is also an extension Division. Section 24, which is within Division 1, is comparable to s.101.
In the applicant's submission, sub-s.101(1) expresses the liability of the Commonwealth to pay a pension, inter alia, in the case of death of a member of the Forces whose incapacity or death arose out of or was attributable to War service. If nothing more appeared, the liability, in the case of death, would be to pay a pension as from the date of death. However, in contemplation that a claim for a pension may not be lodged until some time after the death of the member, sub-s.101(3) limits the liability of the Commonwealth by precluding payment of a pension from a date more than 3 months before the date of lodgment of the claim. In the applicant's further submission, s.101 is a self-contained provision which in effect makes the Commonwealth liable to pay a pension from the date of death so long as a claim is made within 3 months of death. If it is not so made, a pension may not operate from an earlier date.
It is necessary for that submission to explain the meaning and operation of sub-s.31(2). The applicant submits in effect that the sub-section is a machinery provision, designed to ensure that on a review of an assessment, decision or determination, the Commission specifies the date from which any variation or revocation shall operate, in which event, in the language of the sub-section, "it shall operate accordingly". Of course if a review under s.31 results in the revocation of a decision granting a pension, s.101 is of no relevance. Equally, it may be said, if a review results in a variation of the amount of pension payable, no question arises as to the pension operating from the date of death or from some date not more than 3 months earlier. Ordinarily a variation will operate from a date having no relevance to the dates mentioned in sub-s.101(3).
It is desirable to make some reference to the legislative history of s.31 to see whether it throws any light on the meaning and operation of sub-s.31(2). Section 28 of the Australian Soldiers' Repatriation Act 1920 (the original name of the present Repatriation Act) read:
"28. Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment
or determination in relation to pension under this Part the Commission may review the assessment or determination".
In 1935 the section was amended by substituting "Division" for "Part". In 1943 s.28 became s.31, with its language unchanged. By Act No. 34 of 1950 the word "decision" was added after the word "assessment" and sub-s.(2) in its present form was added to the section.
I was not referred to any parliamentary or other material bearing on the reason for the introduction of sub-s.31(2). Nor can one, with any confidence, draw any conclusion from the legislative history, except perhaps to say that, as s.31 stood before 1950, the Commission would have been able to give effect to s.101 on a review of any assessment, decision or determination. The introduction of a sub-section requiring the Commission to specify the date from which any variation or revocation shall operate might be thought to imply a discretion in the Commission in determining the date from which any revocation or variation shall operate. In the end I think it is safer not to draw any conclusion from the legislative history but rather to look at ss.31 and 101 and any other relevant sections in the context of the statute.
Counsel for the applicant urged that the Act should be construed beneficially and I accept that this is the proper approach. But, taking that approach, it is still necessary to give effect to the language of sub-s.31(2). If s.101 stood on its own, the position would, I think, be clear enough. There would be a liability on the Commonwealth to pay a pension upon incapacity or death in one of the circumstances specified in sub-s.101(1), with the Commission or a Board empowered to approve of the payment of a pension in accordance with sub-s.(3). But s.31 is not concerned with the situation of a claim that is lodged and approved. It is concerned with the particular situation in which it appears to the Commission that sufficient reason exists for reviewing an assessment, decision or determination in relation to a pension, other than a service pension. In Bannister v. See (1982) 42 ALR 78 at 81 I said that s.31 "contemplates, not an appeal from the original assessment, decision or determination, but a reconsideration of that assessment, decision or determination because of subsequent events". Although, on appeal, the Full Court took a different view of the particular matter arising for decision, I can find nothing in the judgment of the members of the Court that casts any doubt on the statement just mentioned. See Bannister v. See (1982) 45 ALR 146.
Having conducted a review under s.31, the Commission may decide that there is no reason to alter the existing assessment, decision or determination and in that case it simply affirms what has been done. However, it may be persuaded that the earlier assessment, decision or determination should be varied or revoked. That is what happened in the present case and, as already mentioned, on 21 August 1984 the Commission decided that the applicant's claim for a pension should be accepted. The formal determination of the Commission does not speak of varying or revoking any earlier assessment, decision or determination; indeed it speaks of "reviewing the case". That may well have been prompted by the form of Mr. Davies' letter of 24 October 1983 which sought "reconsideration of this claim". Presumably, what was sought to be reviewed was the decision of the Repatriation Board on 7 June 1966 rejecting the applicant's claim for a pension on the ground that her husband's death was not due to war service.
When the Commission conducts a review under s.31, it will not ordinarily be because it has been furnished with further evidence, at least not where the decision of the Tribunal is involved. In that case the appropriate course is to seek a review under s.107VM of the Act. It seems to me that sub-s.31(2) was introduced to make it clear that the Commission, in varying or revoking an assessment, is empowered (indeed obliged) to specify the date from which the variation or revocation shall operate. Section 31 does not prescribe the circumstances in which the Commission may conduct a review, merely that it must appear to the Commission that, under the Act, sufficient reason exists for doing so. Because there may be a number of reasons to prompt the Commission to conduct a review under s.31, it is appropriate to give the Commission power to specify the date from which any variation or revocation may operate. It may be that, in the particular circumstances of the case, a variation shall operate from the date of the original assessment, decision or determination. But equally it may be appropriate that a variation or revocation shall operate from some other date. In my view, sub-s.31(2) is not constrained by the operation of s.101. It obliges the Commission to specify the date from which any variation or revocation shall operate but it vests in the Commission a discretion as to what that date shall be. Of course it is a discretion that must be exercised conformably with the provisions of the Act.
The application for an order of review is based on two gounds, first that the respondent's decision was contrary to law and second that, in deciding that the pension should operate from a date other than that prescribed by sub-s.101(3), there was an improper exercise of power. These grounds are amplified in particulars. Having decided that the respondent was not constrained by the provisions of sub-s.101(3), it is necessary to inquire whether the discretion of the respondent was properly exercised. In that regard it is necessary to keep in mind that the application is under the Judicial Review Act. Although s.5 of that Act contains a number of grounds upon which an order of review may be sought, they are the only grounds upon which the Court is empowered to review an administrative decision under the Act. The Court does not sit as a court of appeal in the sense in which that term is generally understood. It is not for the Court to make its own findings of fact or exercise its own discretion or substitute its own judgment merely because it thinks that the decision is wrong. Section 5 of the Judicial Review Act should not be read narrowly but it is the charter for the Court's interference with a decision reached under an enactment to which the Act applies.
In her reasons for decision the delegate referred to Re Byrne and the hypothesis of Dr. Metcalf, to which reference has already been made. She then examined the circumstances surrounding Mr. Bastiani's death and concluded that she was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The delegate considered that the Act did not "set any parameters for effective or operative dates of pension where a claim is accepted pursuant to section 31 of the Repatriation Act". She referred to the submission made on behalf of the applicant that a pension should date from 7 March 1966, a submission based on Morcombe. The delegate (correctly in my view) concluded that Morcombe was "not authority for the proposition that all claims accepted by the Commission upon review under section 31 must be backdated to three months before the original claim is lodged". The delegate then referred to the fact that Mrs. Bastiani pursued all avenues open to her in the 1960's and that at all levels her claim was rejected. She continued:
"Her claim was revived over 16 years
after the original claim. It has now been reconsidered pursuant to different legislation and in a vastly different medical climate where
the state of medical knowledge is different. While the nature of Mrs. Bastiani's argument for pension may not be vastly different, the circumstances of the claim are. To backdate the effective date of pension to the time of the original claim would be unjustifiable in the circumstances of this case in my view".
The delegate said that she had considered a range of possible dates but that the date of the decision of the Administrative Appeals Tribunal in Re Byrne was the most appropriate date "as the Metcalf hypothesis was the most important factor in my decision to accept the claim". In passing the delegate referred to s.107VZG and to a suggestion that the "spirit" of that section should be applied. She commented:
"My difficulty in complying with this
notion is that because section 107VZG covers a wide range of very different circumstances, a single uniform spirit is hard to identify".
The delegate did not identify the "different legislation" pursuant to which the claim was reconsidered. Sub- section 31(1) has been in the Act, in more or less its present terms, since the inception of the Act in 1920. Sub-section 31(2) was added by Act No. 34 of 1950. There were substantial amendments to the Act in 1976, 1977 and 1979 which included the introduction of the Repatriation Review Tribunal in the place of the War Pensions Entitlement Appeal Tribunal and changes to the onus of proof provisions in the Act. The applicant had, as the delegate suggested, pursued all avenues available to her during the 1960's. It is literally correct to say that the claim was reconsidered pursuant to different legislation but not, I think, legislation that of itself affected the outcome of the application for a review.
It is difficult to criticise the comment of the delegate that the claim was reconsidered "in a vastly different medical climate where the state of medical knowledge is different". It is apparent from the many reported and unreported decisions under the Repatriation Act in recent years that medical practitioners are now more disposed to associate the death of a member of the Forces long after war service with a condition encountered during war service or, more accurately, are not so prepared to exclude such a connection. Coupled with those decisions of the High Court and Federal Court that have stressed the onus of proof provisions in the Act, it is apparent that pension claims are now being made successfully where once they would have failed. In my view these were matters the delegate was entitled to take into account particularly, as she said, the Metcalf hypothesis was the most important factor in her decision.
In Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at 375 Deane J. commented:
"In a case such as the present, where
relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be
made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a
valid exercise of the power to decide".
I would add that it is not enough for an applicant to formulate what is said to be a relevant consideration and argue that the decision maker has not taken it into account in the way in which it is formulated. It is for the Court to identify what is in truth the relevant consideration and determine whether it has been taken into account.
I am not persuaded that the delegate failed to take into account a relevant decision or took into account an irrelevant one. She looked at the history of the claim which was lodged as long ago as 1966. No criticism was levelled at the applicant as indeed none could be for she took every step open to her to prosecute her claim. It was the decision in Law that prompted her representative to seek a review and it was on the basis of Re Byrne that she was successful. The delegate might well have decided that, in the circumstances, it was appropriate that the pension should be payable from the date of claim even though that was some 16 years ago. But she decided that it was not appropriate for reasons which she gave. It is not for this Court to say whether those reasons were compelling or whether other reasons should have compelled the delegate to a different decision. Before this Court can review the decision of the delegate, it must be satisfied that one of the grounds in s.5 of the Judicial Review Act has been made out. I am not so satisfied.
The application must be dismissed.
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