Dean, J.C. v Repatriation Commission

[1989] FCA 155

JUDGMENT No. i.5.S.?....8?.....

C A T C H W O R D S

VETERANS' AFFAIRS - Appeal from Veterans Appeals Division of AAT -

determination of rate of pension	- what approved Guide to
Assessment to be used.

ADMINISTRATIVE L A W - appeal from Administrative Appeals Tribunal -

appeal "on a question	of law"	- power to deal with factual
points.

Administrative Appeals Tribunal Act 1975, 6.44

Veterans' Entitlements Act 1986 ss.29(1), 29(4)

Veterans' Entitlements (Transitional Provisions and Consequential

Amendments) Act 1986 ss.27(1), 2/(2B)

John Charles Dean

v.    Repatriation Commission

Qld G315 of 1988

1 4 APRIL 1989

PINCUS J.
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA 1

QUEENSLAND DISTRICT EGISTRY 1 QLD G315 Of 1988

DIVISION GENERAL 1

BETWEEN:  JOHN CHARLES DEAN

Applicant

AND:  REPATRIATION CONHISSION

Respondent

MINUTES OF ORDER

MAKIN	JUDGE	ORDER:	PINCUS J.
DATE OF ORDER:	14 APRIL 1989
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.     the application be dismissed;

2. the applicant pay the respondent’s costs of and

incidental to the application, tu be taxed.

NOTE :	Settlement and entry of orders is dealt with in
-	Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
Q U E E N S M D DISTRICT REGISTRY	1  OLD G315 of 1988
GENERAL DIVISION	1

ON APPEAL FROM THE
VETERANS' APPEALS
DIVISION OF THE
ADMINISTRATIVE APPEALS

TRIBUNAL

BETWEEN: JOHN CHARLES DEAN

Applicant

AND:  REPATRIATION COMMISSION

Respondent

PINCUS J. 14 APRIL 1989

REASONS FOR JUDGMENT

This is an appeal under 6 . 4 4 of the Administrative

Appeals Tribunal Act 1975. It relates to a decision of the

Tribunal affirming a decision of a Veterans' Review Board which, in turn, affirmed a decision of the Repatriation Commission as to

the applicant's pension for service-related disabilities. The

Commission increased the applicant's pension rate to 80% under the

legislation in force at the time of its decision, namely 15 May

1985. The legal effect of fixing the rate does not require

explanation.

L.

The relevant part of the Commission's decision reads as

follows:

"Disability pension i creased toighty percent of

the General Rate with effect from 15 Hay 1983."

The Tribunal used what it referred to as the 'old Guide"

in determining the extent of incapacity, and its having done	so
was the principal criticism advanced on appeal.	Mr Crowley Q.C.,

who led Mr McGhee for the applicant, contended that the "new

Guide" also known as G.A.R.P., should have been used. These

Guides, the legal status of which is explained below, set out

criteria for assessing the pension rate, and the like.

The only other point taken was a criticism of the

Tribunal's view of the facts, but it is convenient to defer

discussion of that.

The point as to the new Guide depends for its resolution

entirely on the dates of relevant decisions. As I have mentioned, the Commission's decision was given on 15 May 1985. The Veterans'

Review Board decision is undated, but the hearing before that

Board is noted as having occurred on 22 January 1986. The

Tribunal heard the application to it on 5 December 1986 and 28

January 1987, and gave it6 decision on 27 July 1988. The

appellant's contention was that these dates were such as to

require the Tribunal to have regard, wholly or in part, to the new
Guide, G.A.R.P.

If the Tribunal was, as the applicant contends, obliged

to apply G.A.R.P.,	that obligation was created by s.29(4) of the
Veterans'	Entitlements Act 1986, which reads as follows:

Where the	Commission,	Board	the	or	the
Administrative	Appeals	Tribunal	is	required	to

assess or re-assess, or review the assessment or

re-assessment	of,	the	extent	of	the incapacity of a
veteran	resulting	from	war-caused	injury	or

oy ar-caused isease, or both, the provisions of the

approved Guide to the Assessment Ra es of of

Veterans' Pensions are binding on the Commission,

the Board or the Administrative Appeals Tribunal,

as the case may be, in, and in connection with, the

carrying out by i t that of assessment,

re-assessment assessment, revi w, the or and

re-assessment	review	or	the	of	xtent	of	that
incapacity	made	by	i t shall	be	in	accordance	with
the	relevant	provisions	of	the	approved	Guide	to

the Assessment of Rates of Veterans' Pensions."

Section 29(1) of the Bame Act empowered the Commission

to prepare such a guide, but e.29(3) deprived it of effect unless

and until approved by the relevant Minister. Approval of

G.A.R.P. was given on 22 May 1986.

Section 29(1) reads as follows:

"The Commission may, from time to time, prepare a

written document, to be known as the 'Guide to the

Assessment	of	Rates	of	Veterans'	Pensions'	setting
out -

criteria by reference to vhich the xtent of

the incapacity of a veteran resulting from

war-caused injury war-caused or disease, or

both, shall be assessed; and

methods by vhich the extent of that

incapacity, as essed as accordance in with

those criteria, shall expressed be as a

percentage of incapacity from that injury or

disease, b th, or being percentage a not

exceeding 100 per centum."

It will be seen that both the decision of the Commission

and that of the Board were given before G.A.R.P. was approved, but

the Tribunal's decision was given later. Fortunately, the

legislature did not overlook this sort of problem. The Veterans'

Entitlements (Transitional Provisions co sequential and

Amendments) Act 1986 as amended by the Veterans' Entitlements

(Transitional Proviaions and Consequential Amendments) Amendment

-	Act 1986, both of which came into force on the very day on which
G.A.R.P. was approved, deal specifically with use of G.A.R.P. in
pending matters. Section 2 1 of the former Act as amended by the
latter reads in part as follows:

"(1) Subject to sub-section (2) of this section,

sub-sections 22(4) and 29(4) of the Veterans'

Entitlements Act do not apply to a

determination of the degree of incapacity of a

veteran	from	war-caused	injury	or war-caused
disease, or both,	made	by	the	Commission

before 1 November 1986.

...

(28) Subject to sub-section (2C) of this ection,

sub-sections	22(4)	and	29(4)	of the	Veterans'
Entitlements Act	apply	to	not	do	a

determination	with	respect	to the degree	of
incapacity	of a veteran	from	war-caused	injury

or war-caused disease or both -

(a) made by the Board upon review a of a

decision of the Commission made by the

Commission before 1 November 1986; or

(b) made by the Administrative Appeals

Tribunal	upon	a	review	of a decision	of
the	Board	affirming	or setting	aside	such

a decision of the Commission."

Section 29(1) and s.29(4) of the Veterans' Entitlements transitional Act speaks of "degree" Act - speak of "extent" of incapacity, whereas 6 . 2 7 of the

of incapacity, but so far as

relevant they mean the same.

It will be noted that s.27(1) which has just been

quoted, has effect subject to	sub-s.(2) and that sub-s.(2B) has
effect subject to sub-s.(2C).	For reasons which do not require to

be stated, neither	sub-s.(2) nor sub-s.(2C)	has any bearing on
this case.

Sub-section (29) does, however, cover the matter. It

makes s.29(4) of the Veterans' Entitlements Act, the provision on

which the applicant relies before this Court, inapplicable to such

a determination as is in question, made by the Tribunal upon a

review of a Board decision affirming "such a decision of the

Commission". The word "such" is a reference back to decisions of

the kind mentioned in para.(a), i.e. decisions made before 1

November 1986. Here, the Commission's decision was made in 1985.

Therefore, s.29(4) is inapplicable. Counsel referred to

Donnelly v. Repatriation Commission (1987) 73 A.L.R. 350, where the Commission's decision was, as here, made in 1985;

nevertheless, the Tribunal used G.A.R.P. The argument there was

that the Tribunal had made an error	in that it had believed itself
to be bound to use G.A.R.P.	The Full Court held that the Tribunal

could use G.A.R.P. if it wished to do so, and that the Tribunal

had not regarded itself as bound by G.A.R.P. That problem does

not arise here, for the Tribunal did not use G.A.R.P.	at all, but
used the "old Guide".

Mr Crowley argued that nothing in 6.27 of the Veterans'

Entitlements (Transitional Provisions Co sequential and

Amendments) Act 1986, the relevant part of it which is quoted

above, affected the application of s.29(4) of the Veterans'

Entitlements Act to the case. I cannot agree and think the

opposite view plainly to be correct. Some reliance was also

placed upon 6.7 of the Veterans' Entitlements (Transitional

Provisions and Consequential Amendments) Act, which deals with the

rate of pension, but s e e m to me to have no relevance to the

problem raised by the applicant's argument. Mr Crowley also

argued that in s.27(1), quoted above, the word "determination"

means "hearing" or "result of hearing". It does not matter which,

for the Commission's decision was given in 1985 - i.e. before 1

November 1986.

In my opinion, the contention that the Tribunal made a

legal error in failing to regard itself as bound by s.29(4) of the

Veterans' Entitlements Act to use G.A.R.P. in performing its task

is unsound: it is true that the TT ,ibunal apparently did not think

it was obliged to apply G.A.R.P., but its view on that subject is

in accordance with the plain language of the transitional

provisions which have been quoted.

The only other point taken was that the Tribunal was in

error in expressing the following view:

"On the medical evidence before us from the various

doctors whose reports we tendered, we found little

ground to disagree with the assessment made by DK

Kirkpatrick in relation	first	the	to	six
disabilities set	out	in the	'Incapacity	Assessment

of Service Related Disabilities'."

This sentence, which is in para. 12 of the Tribunal's

reasons, was said to be erroneous in that the Tribunal should have

accepted, as to psychiatric aspects of the case, the assessment of

a Dr McIlwrath. The contention was that Dr McIlwrath, as a

psychiatrist, was better qualified to assess the degree of the

applicant's anxiety atate than Dr Kirkpatrick, who is not a

psychiatrist. Counsel contended that the Court could entertain

this	ground of attack on the Tribunalfs decision because, once
seized of a case involving a question of	law, the Court had wide

enough powers under s . 4 4 ( 5 ) of the Administrative Appeals Tribunal

Act 1975 to deal with factual points. In my opinion, that is not

so. The appeal must be "on a question of law", in which

expressions the singular includes the plural, and merely factual

grounds of attack are beyond the Court's jurisdiction under 6.44:

Commonwealth Banking Corporation v. Percival (1988) 82 A.L.R. 54

at p.60 (Pull court). The applicant relied in reply upon the

decision in TNT Skypak International (Aust.) Pty Ltd	v.	F.C.T.
(1988) 82 A.L.R.	175 at p.182,	perhaps for the proposition there
stated that	it	is a question of law whether material before the

Tribunal reasonably admits of a particular conclusion. Here,

there was simply a conflict of opinion between two r more doctors

and its resolution was a matter for the Tribunal. If, however,

the applicant intended to raise before me the doubt expressed, at

the same page of the report, as to the competence of Parliament to

invest a federal court with jurisdiction to decide a question	of
law only, I must say that such doubt seems to me groundless.

The application must be dismissed. /

; certify that this and the b preceding

pages are a truz copy of thp reasons for

pdgment hcrein of HIS . . Honoyr

Mr. Justice Pincus 4 Jkoclate