Crompton v Repatriation Commission

[1993] FCA 657

DAVID JOHN ROY CROMPTON v. REPATRIATION COMMISSION
No. G838 of 1992
FED No. 657
Number of pages - 4
Veterans' Affairs
(1993) 18 AAR 192
(1993) 30 ALD 45

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
KEELY, O'CONNOR AND BEAZLEY JJ

CATCHWORDS

Veterans' Affairs - jurisdiction of Veterans' Review Board to hear application for increase in veteran's pension - whether determination of its jurisdiction by Board is a decision reviewable by the Administrative Appeals Tribunal - whether jurisdictional finding is a procedural or substantive matter - whether "final and operative" decision precluding review on appeal - decision to be reviewed as a whole, not separated into its constituent parts.

Director-General of Social Services v Chaney (1980) 47 FLR 80

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Ward v Nicholls (1988) 16 ALD 353

Fitzmaurice v Repatriation Commission (1989) 19 ALD 297

Re McLeod and Repatriation Commission (1990) 21 ALD 579

Repatriation Commission v Gordon (1990) 26 FCR 569

Re Mahon and Repatriation Commission (1991) 25 ALD 541

Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167

Chaperlin and Repatriation Commission (AAT, 12 January 1993, unreported)

Veterans' Entitlements Act 1986 ss.15(1), 135(1)(b), 139(2), 174, 175

Administrative Decisions (Judicial Review) Act 1977

HEARING

SYDNEY, 18 May 1993

#DATE 21:9:1993

Counsel for the Applicant: Ms. C. Ronalds

Solicitors for the Applicant: R.L. Whyburn and Associates

Counsel for the Respondent: Ms. R. Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's costs.

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

JUDGE1

KEELY, O'CONNOR AND BEAZLEY JJ This is an appeal by David John Crompton from a decision of the Administrative Appeals Tribunal (the Tribunal) on a question of the Tribunal's jurisdiction to review a decision of the Veterans' Review Board (the Board), including the issue of the Board's jurisdiction. In its decision, the Tribunal found that the Board erred in its view that it possessed the required jurisdiction to hear the veteran's application. The error arose, the Tribunal found, by virtue of the applicant's failure to comply with a statutory condition precedent which prevented the matter being heard and determined on its merits by the Board, and thus by the Tribunal.

History of the Proceedings
2. On 24 November 1987, the applicant veteran made an application for an increase in pension pursuant to s.15(1) of the Veterans' Entitlements Act 1986 (the Act). When the respondent Commission refused the application on 12 December 1988, the veteran sought review of that decision by the Veterans' Review Board pursuant to s.135(1)(b) of the Act. Despite the veteran completing and signing an application form on 16 January 1989, with the assistance of an officer of the Legal Aid Commission of NSW, the application was never received by the Department of Veterans' Affairs (the Department). The completed application was placed in the Legal Aid Commission's outward mail tray for posting but did not arrive at its destination. There was no evidence that the application form was in fact posted. After two follow up letters to the Department on 24 May and 26 June respectively, the applicant was advised on 7 July 1989 that his application had not been received. On 11 July 1989, the Veterans' Advocacy Service forwarded a photocopy of the application to the Department.

1. On 8 May 1990, the Veterans' Review Board decided to treat the original application as "validly made" and on 15 October 1991 the Board affirmed the decision of the Commission to refuse an increase in pension. In the subsequent application to the Tribunal, the Board's decision was set aside on the ground that s.135 of the Act requires an application to be lodged within three months of the applicant being served with a copy of the decision and that the application was out of time. The Tribunal found that the application was not lodged until July 1989, when the photocopy of the application was forwarded to the Department, and the Board had no discretion to extend the period of time provided for in the statute.

The Legislative Scheme
4. A veteran who is dissatisfied with a decision of the Repatriation Commission refusing an increase in pension, may lodge an application for review with the Veterans' Review Board pursuant to s.135(1)(b) of the Act. Section 135(5) provides that an application under s.135(1)(b) must be made within three months of the decision being served on the person to whom that decision relates, "but not otherwise". If the veteran is not satisfied with the decision of the Board, an application may be made to the Administrative Appeals Tribunal under s.175 of the Act.

1. For the purposes of review by the Tribunal, s.174 defines a "reviewable decision" as one which may be the subject of an application for review under s.175. Section 175 relevantly states:
   

"175. (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:

(a) of the decision of the Commission that was so affirmed;

(b) of the decision of the Commission as so varied; or

(c) of the decision made by the Board in substitution for the decision so set aside;

as the case may be.

(2) ..."

The Present Case
6. The applicant is appealing from the Tribunal's decision on two alternative grounds. The first is that the Tribunal erred in law when it purported to review the Board's finding as to its jurisdiction because the finding was not a reviewable decision under the Act; or, alternatively, that the respondent is estopped from raising the matter of the jurisdictional competence of the Board in its application to the Tribunal, having failed to challenge the decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 at the material time.

1. The essence of the applicant's first submission is that the Board's decision of 8 May 1990 was separate and discrete from that of 15 October 1991, made outside the ambit of s.135 on a substantive matter going only to jurisdiction, and that the Tribunal erred in law when it conflated the two decisions and re-determined the question of the Board's jurisdiction to hear the matter. On this submission, the Board's decision as to its own jurisdiction must stand until declared invalid by a court of competent jurisdiction.

2. Counsel for the applicant submitted that the decision of the Board to treat the original application as "validly made" was a decision made pursuant to s.139(2) of the Act and is thus not susceptible to review by the Tribunal under s.174 and s.175. Section 139(2) is as follows:
   

"(2) It is the duty of the Board, in reviewing a decision of the Commission to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review."

1. According to this submission, a decision made pursuant to s.139(2) is a substantive decision since the procedural powers of the Board are set out in s.148 of the Act, and the Board's finding as to its own jurisdiction was not a procedural power envisaged by that section. Counsel for the applicant argues that the Board's finding on the jurisdictional question was a finding of fact which resolved a substantive issue pursuant to s.139(2). Accordingly, the Board made a final determination on the matter of its jurisdiction on 8 May 1990. On the other hand, the Board's separate decision of the 15 October 1991, was a decision to affirm, vary or set aside the Commission's decision pursuant to s.175(1) which is therefore a reviewable decision under s.175.

2. As a matter of law, we cannot accept this submission as correct. The submission is predicated on characterising the Board's jurisdictional finding as a "final and operative" decision, rather than as a preliminary procedural ruling: see Director-General of Social Services v Chaney (1980) 47 FLR 80; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. There is nothing in s.139(2) which leads to the inevitable conclusion that a jurisdictional question must fall within it, or indeed, that any such jurisdictional determination is a substantive one.

3. In our view, the jurisdictional finding by the Board on 8 May 1990 was a procedural matter forming part of the overall decision of the Board. A similar view is expounded by Deane J in Chaney (supra), who found that a jurisdictional finding made by the Tribunal was a preliminary ruling made in the course of review. His Honour said (at p 99):
   

"It is apparent that the Tribunal has not, at this stage, purported to make any determination disposing of the application for review which has been made to it. All that has happened is that the Tribunal has made a ruling on a preliminary question of jurisdiction and has made an interim order pending the determination of the application for review."

1. In the present case, since the Board of the Commission had to satisfy itself of its power to hear the matter at some point prior to the hearing of the merits, it is immaterial, as the Tribunal noted, whether the jurisdictional question was decided on the 8 May or the 15 October. It formed part of the final decision which is reviewable in all its aspects. Deane J expressed it thus in Chaney (at p 104):
   

"That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this Court pursuant to the provisions of s44(1) of the Act. In the event that the Tribunal adheres, in the light of all the evidence, to its present ruling that jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from that ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision."

1. In the present case, it is the Board rather than the Tribunal which determined its jurisdiction and from which the appeal lay. In Ward v Nicholls (1988) 16 ALD 353, Wilcox J discussed a similar situation where the Board made the reverse finding on the jurisdictional question. His Honour said in that case (at p 361):
   

"It would be a very odd situation if the position were as perceived by...; that is to say, if the appointed first instance reviewer, the Veterans' Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal - which is set up by statute to review on their merits decisions of that Board - was then precluded from considering for itself whether that Board in fact had jurisdiction, and, if so, what decision it should have made. There would be a lacuna in the system of administrative review disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute."

1. We concur with the Tribunal's observation that "the same position must apply in the subject matter, be it that the Board in this instance found that it did have jurisdiction", not, as in Ward v Nicholls, that it did not have jurisdiction.

2. In Fitzmaurice v Repatriation Commission (1989) 19 ALD 297, a decision of this Court, Wilcox J discussed the requirement for a decision to be viewed as a whole and not separated into its constituent parts for the purposes of review. Referring to s.175(1)(b) (now (c)) of the Veterans' Entitlements Act, his Honour said (at p 309):
   

"I think that the difficulties to which I have alluded can only be avoided by reading the word "decision" in para (b) as being intended to embrace everything decided by the Board in substitution for the original decision of the Commission. Upon this interpretation it does not matter whether the conclusion reached by the Board in respect of Mr Fitzmaurice is seen as a single decision or as a series of decisions. What is important is that any application for review must raise for the Tribunal's consideration everything decided by the Board in its review of the case."

1. Counsel for the applicant referred to a number of recent decisions which, she submitted, run contrary to the view we have expressed in the present case. In Re McLeod and Repatriation Commission (1990) 21 ALD 579, the Tribunal found that it did not have jurisdiction to review a decision of the Board to adjourn a hearing. However, the Board's power to adjourn a hearing is conferred by s.151(1)(b) of the Act and its decision to adjourn was correctly identified by the Tribunal as an interim procedural decision, not a "final or operative" decision. No finding of substance had then been made.

2. Similarly, in Repatriation Commission v Gordon (1990) 26 FCR 569, Spender J approved the Tribunal's determination when he held that a jurisdictional decision by the Board was not a "reviewable decision" pursuant to the Act. In that case, the interim procedural decision determining the Board's jurisdiction to hear the matter was the only decision the Board had made. As no finding of substance had been made at that time, the procedural finding was not one open to review by the Tribunal under s.175.

3. In Re Mahon and Repatriation Commission (1991) 25 ALD 541, the Board made a decision on the merits of the applicant's case. That decision was invalid for lack of jurisdiction by the Board. However, as stated at page 542 of the report, the Board's review of the Commission's decision was a fact and provided jurisdiction for subsequent review by the Tribunal. This reasoning, which applied the principles in Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167, was followed in Chaperlin and Repatriation Commission (AAT, 12 January 1993, unreported) in which the Tribunal, in oral reasons, also found it had jurisdiction to review.

4. Neither Mahon nor Chaperlin, however, took the next step in the reasoning process, which is the basis of this present appeal. That is, although the Tribunal has jurisdiction to accept an application for review of the Board's decision, the Tribunal must, during the course of that review, have the power to re-determine the question of its own jurisdiction. If it is shown that the Board lacked the jurisdiction in the first instant then it follows that the Tribunal must also lack jurisdiction to review the merits. In our view there is nothing in these cases that precludes the finding that the Tribunal can, and indeed must, re-decide the question of its jurisdiction in each case before proceeding to merits review.

5. In administrative proceedings, having the power to determine and re-determine questions of jurisdiction is essential to the process of determining questions of law and fact. The Board is a body of limited jurisdiction which is incapable of binding subsequent administrative bodies on a question of jurisdiction. The applicant's proposition that a board or tribunal's finding on the question of its own jurisdiction must stand unassailed until overturned by a court of competent jurisdiction cannot be accepted.

6. In the present case, there is a right of appeal from the Board on questions of both law and fact, and it would indeed be "a lacuna" in administrative proceedings if questions of jurisdiction had always to be determined by court intervention. Where a board or tribunal determines a question of law during its own proceedings, that question must be open to redetermination by a superior tribunal.

7. For the reasons stated above, the applicant's first ground of appeal is dismissed. Of necessity, having found that the question of jurisdiction was a procedural matter forming part of the overall decision, the second ground of appeal, relating to estoppel, is also dismissed.