Delkou v Repatriation Commission

[1986] FCA 516

Re: THOMAS PETROU DELKOU
And: THE REPATRIATION COMMISSION
No. NSW G179 of 1986
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Beaumont J.
Wilcox J.

CATCHWORDS

Repatriation - Claim for Special Rate pension - Pension granted by Veterans' Review Board - Appeal by Repatriation Commission to Administrative Appeals Tribunal - Amendment of legislation before appeal heard - Whether amended legislation applied in proceedings before Tribunal - Whether applicant prevented from continuing to carry out remunerative work by incapacity caused by his war related disabilities alone.

Repatriation Act 1920, ss.24, 25, 29, 47, 101, Schedule 2

Repatriation Legislation Amendment Act 1984, s.55

Repatriation Legislation Amendment Act 1985, ss.16, 34(1), 68, 69, 70

Administrative Appeals Tribunal Act 1975, s.44

Maxwell v Murphy (1957) 96 CLR 261, Duralla Pty Ltd v Plant (1984) 2 FCR 342, Cooper Brookes (Wollongong) Proprietary Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, Banovich v Repatriation Commission (Full Court of the Federal Court of Australia, unreported, 17 November 1986) referred to.

HEARING

SYDNEY

#DATE 17:11:1986

Counsel and Solicitors for Applicant: A.T. McInnes Q.C. with I.M. Khan instructed by the Autralian Legal Aid Office.

Counsel and Solicitors for Respondent: Mrs. P. Flemming Q.C. with Miss S. Ward instructed by the Australian Government Solicitor

ORDER

The appeal be dismissed.

The appellant pay to the respondent its costs of the appeal.

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

JUDGE1

Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975, the applicant, Thomas Petrou Delkou, appeals to the Court from a decision of the Administrative Appeals Tribunal ("the Tribunal") deciding the applicant's pension entitlement under the Repatriation Act 1920. To understand the questions of law which are said to arise on the appeal, it is necessary to describe the history of the matter.

1. Born in Greece on 5 May 1917, the applicant migrated to Australia in 1937. After enlisting in the Australian Army in March 1942, he served in a number of postings in this country until his discharge in April 1946. Upon his discharge, he was self-employed as a tailor until 1965; between March 1965 and December 1970, he was employed as a machine operator by Johnson & Johnson Australia Pty. Limited. In the course of his employment, the applicant sustained two injuries to his back - one in October 1967, the second, more serious, in September 1970; he was on light work from November until December 1970. Apart from some part-time tailoring work in October and November 1971, he has not worked since December 1970.

2. In March 1977, the applicant lodged a claim for a pension under the Repatriation Act in respect of "nerves", i.e. a chronic anxiety condition. The claim ultimately came before the Repatriation Review Tribunal ("the RRT") for review in June 1982. The RRT set aside a decision of the respondent, the Repatriation Commission ("the Commission"), rejecting the applicant's claim and, in substitution for that decision, decided, pursuant to s.101 of the Repatriation Act, that the Commonwealth was liable to pay a pension in accordance with Division 1 of that Act, effective from December 1976. (By s.101(1)(b) of the Repatriation Act, upon the incapacity of a member of the forces whose incapacity has arisen out of or is attributable to his war service, the Commonwealth shall, subject to the Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1. The relevant provisions of that Division are described below). The claim was remitted to the Commission for assessment of the rate of pension. In December 1982, a Repatriation Board assessed the pension entitlement at 20% of the General Rate. The applicant applied for review by the RRT of that assessment but, in November 1983, the RRT affirmed the Repatriation Board's decision on assessment. The applicant then appealed to this Court against the RRT's decision. In October 1984, for the reasons mentioned below, Wilcox J. allowed the appeal and remitted the matter to the RRT for further consideration. The RRT had not completed that further consideration by 1 January 1985, on which date it ceased to exist: the Veterans' Review Board ("the VRB") was established in its place on 1 January 1985 and, by s.55 of the Repatriation Legislation Amendment Act 1984 ("the 1984 Amendment Act"), which came into operation on 1 January 1985, the application pending before the RRT was treated as an application to the VRB for review. On 6 May 1985, (the date is important for reasons which will appear later) the VRB set aside the Repatriation Board's assessment of a pension entitlement at 20% of the General Rate, deciding that the applicant was entitled to a pension at the Special Rate prescribed by Schedule 2 to the Repatriation Act.

3. (It is accepted by the parties that the ground upon which the applicant succeeded in his earlier appeal to this Court has become irrelevant to the present proceedings. Wilcox J. held that the RRT had fallen into error in holding that unless an applicant was eligible to receive a General Rate pension at the maximum rate, no question of eligibility for the Special Rate of pension arose. The RRT had refused to consider any question of entitlement to the Special Rate of pension because it agreed with the Repatriation Board's assessment that the applicant was entitled to no more than 20% of the General Rate of pension. That issue no longer arises because the Commission now concedes that the applicant is eligible in any event to receive a General Rate pension at the maximum rate.)

4. At the time of the decision of the VRB (6 May 1985) Schedule 2 to the Act provided for the grant of a pension at the Special Rate in these terms:
   
   

"The Special Rate of Pension may be granted to members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a neglible percentage of a living wage)..."

1. Almost immediately after that decision, amendments were made to Schedule 2 by the Repatriation Legislation Amendment Act 1985 ("the 1985 Amendment Act"). By s.34(1) of that Act, which came into operation on 6 June 1985, it was provided that Schedule 2 be amended by omitting the paragraph previously mentioned and by substituting in its place the following:
   
   

"(1) The special rate of pension may be granted to -

(a) a member of the Forces who has been blinded as a result of war service; and

(b) any other member of the Forces if -

(i) the other member is in receipt of, or is eligible to receive, a general rate pension at the rate specified in column 3 of the table in Schedule l;

(ii) the other member is totally and permanently incapacitated, that is to say, the member's incapacity from injury or disease that has been accepted as related to the member's relevant war service is of such a nature as, of itself alone, to render the member incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(iii) the other member is, by reason of incapacity from that injury or disease alone, prevented from continuing to undertake remunerative work that the member was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the member would not be suffering if the member were free of that incapacity.

(2) For the purpose of the last preceding paragraph -

(a) a member of the Forces who is incapacitated from injury or disease that has been accepted as related to the member's relevant war service shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if -

(i) the member has ceased to engage in remunerative work for reasons other than his or her incapacity from that injury or disease; or

(ii) the member is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a member of the Forces, not being a member who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is a substantial cause of his or her inability to obtain remunerative work in which to engage, the member shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the member was undertaking.

(3) In determining whether a member of the Forces who is incapacitated from injury or disease is incapable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the member;

(b) the kinds of remunerative work which a person with skills, qualifications and experience referred to in sub-paragraph (a) might reasonably undertake; and

(c) the degree to which the incapacity of the member from injury or disease that has been accepted as related to the member's relevant war service has reduced his or her capacity to undertake the kinds of remunerative work referred to in sub-paragraph (b).

....

In this Schedule, a reference to remunerative work shall be read as including a reference to any remunerative activity."

(For convenience of reference, the un-numbered paragraphs in Schedule 2 have been identified as paragraphs (1), (2) and (3)).

1. The Commission successfully sought review by the Tribunal of the decision of the VRB, given on 6 May 1985. By its decision, dated 10 April 1986, the Tribunal set aside the decision of the VRB that the applicant was entitled to a pension at the Special Rate and varied the decision of the Repatriation Board by deciding that the applicant was entitled to the General Rate of Pension at the maximum rate with effect from 28 December 1976.

2. At the Tribunal hearing, the question whether the amended provisions of Schedule 2 were capable of application in the present case was debated. The Tribunal decided that the amended Schedule 2 was capable of application here but found that its provisions were not satisfied on the facts of the present case. To support its conclusion that the amended version of Schedule 2 was capable of application, the Tribunal relied upon the transitional provisions of s.68 of the 1985 Amendment Act, as follows (it will be remembered that the 1985 Amendment Act came into effect on 6 June 1985):
   
   

"68.(1)....

(2) The amendments of the Repatriation Act 1920 effected by ... section 34 of this Act apply to and in relation to any assessment or re-assessment of the rate of a pension that is made by the Commission, by the Veterans' Review Board or by the Administrative Appeals Tribunal after the commencement of this Act.

(3) ...

(4) Sub-sections (2) and (3) apply to the assessment or re-assessment of the rate of a pension whether the proceedings in relation to which the assessment or re-assessment is made commenced before, or commence after, the commencement of this Act."

1. In the explanatory memorandum circulated with the Bill for this Act, it was explained that the clause which became s.68 provided that the amendments to be effected by the Bill with regard to the intermediate and Special Rates of pension were to "apply to all assessments applied at all levels of the Repatriation determining system after the commencement of this Bill." (emphasis added) In the course of his second reading speech in the House of Representatives, the Acting Minister for Veterans' Affairs said that the criteria for the assessment of intermediate and TPI rate pensions "will apply to future determinations of pension claims and the assessment of pension increases. Pensions already granted will not be affected by these amendments. The amendments relating to Special Rate...pensions...will apply as from the date of effect of this legislation." (see Parliamentary Debates, House of Representatives, 17 May 1985 at p.2646).

2. It is true that s.68(2) applies only to an "assessment or re-assessment of the rate" of a pension made by the Commission, the VRB or by the Tribunal after the commencement of the 1985 Amendment Act. The applicant contended that s.68(2) could not apply here because the Tribunal was, in truth, dealing not with the assessment or re-assessment of the rate of a pension but with something different, that is to say, the determination of the applicant's entitlement to a pension in accordance with his original claim made in March 1977.

3. In our opinion, the Tribunal was correct in holding that the amended Schedule governed the application before it.

4. The application by the respondent to the Tribunal for review of the VRB decision was made on grounds which raised the question of the rate of pension payable to the applicant. The respondent did not seek to put in issue the more fundamental question of the liability of the Commonwealth to pay the applicant a pension by reason of his incapacity. The grounds for the review sought by the respondent were expressed in its application as follows:
   
   

"l. As a matter of fact, the medical and other material does not support the decision of the Veterans' Review Board that Mr. Delkou is entitled to pension at the Special Rate in accordance with Schedule 2 of the Repatriation Act 1920 (the Act).

2. (i) As a matter of law, Mr. Delkou does not satisfy, for the reasons set out below, the requirements of Schedule 2 of the Repatriation Act 1920, as amended by section 34 of the Repatriation Legislation Amendment Act 1985, which applies to decisions taken by the AAT after 6 June 1985 by virtue of section 68 of that Act;

(a) Mr. Delkou is not eligible in fact or in law to receive general rate pension at the rate specified in column 3 of the table in Schedule 1 of the Repatriation Act 1920.

(b) Mr. Delkou's incapacity from injuries or diseases that have been accepted as related to his relevant war service is not of such a nature that it, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

(c) Mr. Delkou is not, by reason of incapacity from accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and is not, by reason thereof, suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he were free of that incapacity; AND/OR

(ii) As a matter of law, Mr. Delkou did not satisfy the requirements of Schedule 2 of the Repatriation Act applicable prior to 8 June 1985, for the reasons that he was not @totally and permanently incapacitated' within the meaning of that Schedule."

1. It will be seen that the application proceeds upon the footing that a liability to pay some pension was accepted (para.2(i)(b)). This accorded with the history of the matter. It will be remembered that in June 1982 the RRT decided that the Commonwealth was liable to pay a pension to the applicant but remitted the issue of the rate of his pension to the Commission for determination. It was that issue which remained outstanding as at 1 January 1985.

2. At material times, Division 1 of the Repatriation Act 1920, recognized the distinction between a determination that the Commonwealth is liable to pay a pension to a member of the Forces on the ground of his incapacity on the one hand and the rate of any such pension on the other. A liability of the Commonwealth to pay pensions upon death or incapacity is created (s.24). A claim for a pension is to be in accordance with an approved form (s.25). It is then the duty of the Commission (a) to determine all matters relevant to the claim and (b) to assess, from time to time, the rates of pensions (s.29).

3. In our view, it is clear from this legislative framework and from the manner in which the present matter was dealt with within that framework that the subject matter of the application before the Tribunal was the assessment or, alternatively the re-assessment, of the rate of the applicant's pension. It follows, in our opinion, that the application before the Tribunal fell within s.68(2) of the 1985 Amendment Act. It will be recalled that by s.68(4) of that Act, the provisions of s.68(2) are made applicable to proceedings even if they were commenced before the commencement of the 1985 Amendment Act.

4. The applicant further argued that, because of the general assumption that legislation is not to apply retrospectively (see Maxwell v. Murphy (1957) 96 CLR 261 at p 267; D.C. Pearce Statutory Interpretation in Australia, 2nd ed. at p 149; Bennion, Statutory Interpretation at p 443; cf. Duralla Pty. Ltd. v. Plant (1984) 2 FCR 342), it should be presumed that the amendment to Schedule 2 was not capable of application in his case.

5. We think that the Parliament intended here to displace the ordinary assumption that legislation does not have a retrospective effect. The language of s.68 of the 1985 Amendment Act itself indicates such an intention. If needed, confirmation of that intention may be found in the parliamentary material to which we have referred.

6. A similar question arises with respect to the onus of proof to be applied in the application for review. By the former s.47(2) of the Repatriation Act, the Commission or a Board shall grant a claim or application, and the Commission shall allow an appeal, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application (see Repatriation Commission v. O'Brien (1985) 155 CLR 422). By s.16 of the 1985 Amendment Act, s.47(2) was omitted and there was substituted a new onus of proof provision. So far as presently relevant, it provides that in determining, or making a decision in relation to, any matter under the Repatriation Act, including the assessment or re-assessment of the rate of a pension, the Commission shall decide the matter to its reasonable satisfaction (s.47(4)). By s.69(4) of the 1985 Amendment Act, subject to s.69(1)(2) and (3) (dealing with claims for pensions, as distinct from the assessment or re-assessment of their rate), s.47 as so amended applies to a decision or determination made by the Commission under the Repatriation Act. Section 70(3) of the 1985 Amendment Act picks up the new s.47 in proceedings before the V.R.B. Although there is no similar provision in respect of proceedings before the Tribunal, the same rule must then apply. The duty of the Tribunal is to make the decision which, upon the facts proved before the Tribunal, the primary decision-maker ought to have made. This necessarily involves the application of the same standard of proof. Further, even if, by reason of an oversight in the drafting of the provisions dealing with the new standard of proof, proceedings before the Tribunal were not mentioned, the context and legislative history indicate that the legislation should be construed so as to make the new standard applicable to Tribunal proceedings also (see Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297).

1. Once it be accepted that the amended Schedule, and theamended s.47, apply to Mr. Delkou's application, upon the findings of fact made by the Tribunal, his case becomes hopeless. We have discussed the proper interpretation of the Schedule in our reasons for judgment in Banovich v. Repatriation Commission, delivered to-day. We need not repeat what is there said. The application of the new Schedule necessarily requires that it appear that Mr. Delkou was, by reason of the incapacity caused by his war related disabilities alone, prevented from continuing to carry out remunerative work that he was undertaking and that he thereby suffered a loss of salary or wages that he would not have suffered if he were free of that disability. The factual position in that regard must be considered as at the date of Mr. Delkou's claim for a Special Rate pension, March 1977: see Banovich at p.15 and following. But, by that date, Mr. Delkou had been retired from his last remunerative employment for some six years. That retirement had been caused by a non-war related disability, his back condition, the effect of which still continued. The Tribunal found as a fact that, at March 1977, Mr. Delkou was not prevented from continuing to undertake remunerative work by reason only of his anxiety condition but that "the incapacity from his non-accepted back condition contributed to a significant degree in preventing him from continuing to work."

2. Counsel for the appellant submitted that the Tribunal erred by failing to determine whether, absent the accepted disabilities, Mr. Delkou's back problem was such as to prevent him continuing the type of work in which he had been employed by Johnson & Johnson. However, we do not read the Tribunal's decision as neglecting this question. The Tribunal pointed out that, notwithstanding the accepted disabilities, Mr. Delkou had been able to continue with Johnson & Johnson until his back condition forced the termination of his employment. As the Tribunal said: "It was his back injury that made the difference between him working and ceasing to work."

3. The Tribunal considered the position between March 1977 and the date of the hearing before it. It held that, although there may have been some variation in the contributions to Mr. Delkou's incapacity made respectively by his anxiety state and his spondylosis, there has been no time since March 1977 at which it might be said that, by reason of incapacity from his anxiety state alone, he has suffered a loss of salary or wages or of earnings on his own account which he would not have suffered if he were free of that incapacity. It follows that, at no such time, was Mr. Delkou able to satisfy the requirements imposed by para.(1)(b)(iii) and that the Tribunal rightly held that his application for a Special Rate pension ought to be refused.

4. The appeal must be dismissed, with costs.