Donovan v Repatriation Commission
[1985] FCA 59
•01 MARCH 1985
Re: ETHEL MAUD DONOVAN
And: THE REPATRIATION COMMISSION
No. WA G79 of 1984
Administrative Law
58 ALR 634
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
CATCHWORDS
Administrative Law - judicial review - decision by Commission that in the circumstances of the case it had no power under s.31 of the Repatriation Act to review a decision granting a war pension to the applicant - meaning of the words "a decision of the Repatriation Review Tribunal referred to in s. 107VZB" as used in para. 31(3)(a)(i) of the Act - whether decision "favourable to the applicant" - effect of repeal of s.31 of the Act by the Repatriation Legislation Amendment Act upon the applicant's right to review under s.31 - whether transitional provisions of amending Act an exhaustive code specifying rights and claims not extinguished by amending Act.
Words and Phrases - "a decision ... favourable to the applicant".
Administrative Decisions (Judicial Review) Act 1977 s.5
Repatriation Act 1920 ss.31, 107VC, 107VZB, 107VZG
Repatriation Legislation Amendment Act 1984 Part VII, s.53
Acts Interpretation Act 1901 s.8
HEARING
PERTH
#DATE 1:3:1985
ORDER
The respondent review, under s.31 of the Repatriation Act 1920 as it stood before the Repatriation Legislation Amendment Act 1984, the decisioon of the Repatriation Review Tribunal of 10 March 1983.
The respondent pay the applicant's costs of the application.
JUDGE1
This application under the provisions of the Administrative Decisions (Judicial Review) Act 1977 requires yet another analysis of the complex provisions of the Repatriation Act 1920.
The application is one to review the decision of the respondent Commission on 20 August 1984 that it would not review a decision of the Repatriation Tribunal because the Commission had no power to do so. To understand the respondent's decision, it is necessary to say something about the circumstances in which it was made.
The initial claim for a pension on behalf of the applicant was lodged on 5 November 1974. On 5 December 1974 the claim was refused by a Repatriation Board. Thereafter and until January 1982 unsuccessful appeals against and requests for review of the Board's decision were instituted to both the Repatriation Commission and the War Pensions Entitlement Appeal Tribunal. On 7 January 1982 the applicant appealed to the Repatriation Review Tribunal against decisions of the Commission made on 14 March 1975 and 8 December 1981. The earlier of these decisions dismissed an appeal against the decision of the Repatriation Board rejecting the claim to a pension; the latter was a decision of the Commission refusing to review the applicant's claim to a pension.
On 10 March 1983 the Tribunal allowed the appeal by granting the applicant a pension as from 6 April 1981. It is unnecessary to consider at any length why the Tribunal decided to grant a pension but in essence it accepted that the aetiology of the carcinoma that contributed to the deceased's death was unknown and that, in the light of the evidence and of decisions of the courts on matters arising under the Repatriation Act, it could not exclude the relationship of war service. The Tribunal expressed its reason for fixing the date for the operation of the pension in this way:
"The date of effect of the Tribunal decision is set under the provision of Section 107VZG(1)(d) of the Act and is a date not more than three months prior to the date on which the application was made under Section 31 to the Commission for reconsideration the Commission decision to refuse the pension claim as the application for review was lodged within the prescribed time under the Act".
Following the judgment of Beaumont J. in Repatriation Commission v. Morcombe (unreported decision, delivered 19 September 1983) Mr. Davies, the applicant's advocate, made a further application to the Commission for a review of so much of the Tribunal's decision as set the operative date for pension as 6 April 1981. That application, made on 7 May 1984, sought payment of the pension from the date of Mr. Donovan's death on 29 November 1974. On 18 July the Commission wrote to Mr. Davies to say that it had no power under s.31 of the Repatriation Act to review a decision of the Repatriation Tribunal made under s.107VZB. Mr. Davies made a further submission on behalf of the applicant, which submission was rejected.
The question is, on its face, a somewhat narrow one - did the Commission have power under s.31 to review so much of the Tribunal's decision on 10 March 1983 as fixed the commencement date for the payment of a pension as 6 April 1981? This is essentially a question of statutory construction though the matter is complicated by amendments made to the Act in 1984 which, in the Commission's submission, now preclude the Commission from granting a review even if it had power to do so at the time review was sought.
Sub-section 31(1) of the Act provides that whenever it appears to the Commission that sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension), the Commission may review that assessment, decision or determination. The power is a broad one and may be invoked at any time. Sub-section 31(3) provides that the section does not apply in relation to the categories of decision set out in para. (a) thereof, one of which is:
"(i) a decision of the Repatriation Review Tribunal referred to in section 107VZB".
It is desirable to set out s.107VZB in full.
"107VZB. Where a decision of the Tribunal on a review pursuant to an application under section 107VC is favourable to the applicant, the Commission may, within 6 months after the service, in accordance with s.107VK, of a copy of that decision on the Commission -
(a) submit to the Tribunal further evidence that the Commission is satisfied is evidence that would have been relevant to the making of a decision in the proceeding before the Tribunal on that review; and
(b) request the Tribunal to rehear that proceeding,
and the Tribunal may, if it thinks fit, rehear that proceeding accordingly".
The first question may be expressed this way - when para. 31(3)(a)(i) mentions "a decision of the Repatriation Review Tribunal referred to in s.107VZB", is that a reference to a decision made by the Tribunal under s.107VZB in exercise of its power to rehear an earlier proceeding or is it also a reference to a decision, favourable to an applicant, given by the Tribunal on a review pursuant to an application under s.107VC? The difference is of course important. If, as the respondent contends, any decision referred to in s.107VZB is excluded from the scope of review under s.31, no decision under s.107VC favourable to an applicant may be reviewed except within 6 months and in accordance with the provisions of s.107VZB itself. If, as the applicant submits, it is only a decision made in exercise of the power under s.107VZB that is excluded from the operation of s.31, the Commission had power to conduct the review sought by the applicant.
In my view, the applicant's submission should be upheld. A decision of the Repatriation Review Tribunal referred to in s.107VZB is a decision given by the Tribunal in exercise of the power conferred on it by that section. No doubt the position would have been clearer if para. 31(3)(a) had spoken of a decision by the Tribunal pursuant to s.107VZB. But the expression "referred to" is the language adopted by para. (a) in relation to each of the decisions referred to therein and I think it is no more than a convenient, though perhaps unsatisfactory, method of identifying the particular decision. If the intention of the legislature was to exclude from the operation of s.31 a decision of the Tribunal on a review pursuant to an application under s.107VC which was favourable to the applicant, it might easily have said so. I agree with counsel for the applicant that the evident policy underlying the reference to s.107VZB is that, where there is a decision of the Tribunal on a review under s.107VC favourable to an applicant, the Commission is given one opportunity to obtain a rehearing. That opportunity must be exercised in accordance with s.107VZB and, once exercised, the Commission may not then seek a review under s.31.
It may be asked - why would an applicant who has obtained a favourable decision under s.107VC wish to obtain a review under s.31? The answer is not immediately apparent but further reference to the facts of the present application may throw some light on that question.
The applicant had an alternative submission viz. that if para. 31(3)(a) included a decision of the Tribunal on a review pursuant to an application under s.107VC, it was only where such a decision was "favourable to the applicant". In the applicant's submission, that meant a decision which was in all respects favourable. What had been sought by her was a pension operative from 1974 when she submitted her claim; what she received was a pension operative from 6 April 1981. In so far as she failed to obtain a pension in respect of those intervening 7 years, she said, the decision was not a favourable one.
The submission was further refined by referring to the decision of the Repatriation Review Tribunal on 8 March 1983 which in its terms:
1. Set aside the Commission's decision of 8 December 1981 not to review its decision of 15 May 1976 affirming a decision dated 14 March 1975 to refuse repatriation benefits to the applicant.
2. Set aside the Commission's decision dated 15 May 1976 and substituted for that decision the Tribunal's decision that the Commonwealth was liable to pay a pension to the applicant.
3. Directed pursuant to para. 107VZG(1)(e) that the Tribunal's decision operate on and from 6 April 1981.
4. Directed, pursuant to sub-s.107VK(1) that the Tribunal's
decision and reasons be given orally.
I am not to be taken as suggesting that the Tribunal in fact numbered its decision in that way but it did treat each of those matters as the subject of a separate paragraph in its statement of decision. In addition to contending that the decision in its entirety was not favourable to her, the applicant submitted that there were in truth four decisions, the third of which was clearly not favourable to her. Strictly speaking it is unnecessary to resolve these questions but the matter was fully argued and it may be helpful to express a view on them.
The Shorter Oxford English Dictionary defines "favourable", in relation to an answer as that which "concedes what is desired". The applicant says that she did not get what she desired in so far as she desired a pension operative from the time she made a claim. The respondent says that the applicant got what she desired because what she desired was a pension. As a matter of language, there is some force in each submission but I think the question is to be resolved by looking at the provisions of the Act. Where a decision is made by the Tribunal on a review under s.107VC, s.107VZG requires that the decision not be expressed to operate from a date earlier than 3 months before the day on which the relevant claim for pension was lodged. Section 107VZG is part of Division 7 which is entitled "Date of Operation of Decisions of the Tribunal and Certain Decisions of the Commission". The opening section in that Division is s.107VZF which empowers the Tribunal to "specify in a decision on a review under this Part ... the date from which the decision is to operate, being a date fixed in accordance with this Division". The legislature has singled out the date from which a decision is to operate as a date which the Commission may specify in a decision. This suggests that, at its highest, the specification of a date is part of a decision and is not a decision of itself.
A decision granting a pension is, I think, a decision favourable to an applicant and is therefore within the language of the opening words of s.107VZB. That section presupposes that there is something in a decision of the Tribunal that the Commission may wish to challenge. That is not the case here. But, because of the view I have taken of the operation of para. 31(3)(a), it is unnecessary to say any more about this matter. The decision sought to be reviewed was a decision of the Tribunal under s.107VC, not a decision of the Tribunal referred to in s.107VZB. Hence it was competent for the Commission to review the decision pursuant to s.31.
The Repatriation Legislation Amendment Act 1984 effected a number of changes to the Repatriation Act. It came into operation on 1 January 1985. One of those changes was to repeal s.31 and replace it with a more complex set of provisions for review by the Commission. It is not in dispute that none of the conditions precedent to an exercise of power under the new s.31 is appropriate in the present case. It was argued by the respondent that even if s.31, as it stood before the 1984 amendments, had been available to the applicant, this was no longer the case. The relief claimed in the application is an order that the Commission review the applicant's claim under s.31. But, so the argument runs, the Court cannot direct the Commission to conduct a review under s.31 as it stood before 1 January 1985 because that section no longer exists. On the other hand, it is said, the Court cannot direct the Commission to conduct a review under the present s.31 because nothing has happened to give that section any application to the claim for a pension the subject of these proceedings.
Mr. French, counsel for the respondent, submitted that the provisions of s.8 of the Acts Interpretation Act 1901 were excluded from application to the Repatriation Legislation Amendment Act 1984 in respect of reviews by the Commission pursuant to s.31 as it stood before the amendment, by reason of what he described as the comprehensive transitional provisions in the Amendment Act. Section 8 of the Acts Interpretation Act reads:
"8. Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid,
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
In the course of an examination of the provision made by s.5 of the Trade Marks Act 1955 with respect to applications under the repealed Act of 1905-1948 pending when the 1955 Act came into operation, the High Court (Dixon C.J., Taylor & Windeyer JJ.) said in G.F. Heublein & Bro. Inc. v. Continental Liquers Pty. Ltd. (1962) 109 CLR 153 at 161-162:
"Close consideration of the special provisions of s.5 induces us to think that the express provision which it makes with respect to applications pending under the earlier Act must be read as exhaustive and that there is therefore, no room for the application of s. 8 of the Acts Interpretation Act, even if it were otherwise possible to bring the case within its terms".
That decision was referred to by Blackburn J. in Agua Marga Pty. Ltd. v. Minister of State for Interior (1973) 22 FLR 136 which was concerned with s.38 of the Interpretation Ordinance 1967 of the Australian Capital Territory, a provision similar to s.8 of the Acts Interpretation Act. His Honour referred to Heublein and held that, in the case before him,
"the intention to exclude the operation of s.38 is shown by the provision for the continued application of the old law to the defined field; a provision to which I think the maxim expressum facit cessare tacitum must apply. This result is the opposite of that reached in the Heublein's case. There the matter in question was caught by the special saving provisions; here, in my opinion, it falls outside them. But I accept that case, with respect, as a demonstration that the effect of general saving provisions may be excluded by an intention which appears in the special saving provisions by implication and not by expression". (at p.148)
Heublein was also referred to by Zelling J. in Karounos v. Flavel (1984) 2 ACLC 394 at 402 where his Honour was concerned with s.16 of the Acts Interpretation Act 1915 of South Australia, again a provision comparable to s.8 of the Acts Interpretation Act of the Commonwealth. At p.402 his Honour said:
"However I agree with the defendant that sec. 16 of the Acts Interpretation Act has no application. To my mind the comprehensive scheme for the transition of the Companies Code indicates that it is intended to cover the field. Accordingly, it shows that sec. 16 of the Acts Interpretation Act is impliedly ousted. G.F. Heublein & Bro. Inc. v. Continental Liquers Pty. Ltd. (1962) 109 CLR 153 supports the proposition that where express provision is made for transition it ought to be regarded as exhaustive".
I do not accept that the Repatriation Legislation Amendment Act 1984 has made provision for matters pending before the Commission under s.31 in such a way as to indicate an intention to be exhaustive. Part VII of the amending legislation does contain transitional provisions of a detailed nature but, so far as s.31 is concerned, the only reference is in s.53 of the 1984 amendments. That makes it clear that sub-ss.31(6) and (7) of the new s.31 (which limits the scope for review of a refusal or failure by the Commission to review a decision) apply only to and in relation to:
"(a) a refusal or failure of the Commission to review a decision in relation to pension that occurs on or after the commencing day; and
(b) a decision made by the Commission on or after the commencing day upon its review of a decision in relation to pension".
Neither of those cases is applicable here. The application presently before the Court concerns a refusal by the Commission to review, a refusal which occurred well before the commencing date of the new legislation. The applicant may point to paras (b), (c) or (e) of s.8 of the Acts Interpretation Act to support her contention that her right to have the decision of the Commission reviewed by this Court has not been abrogated by the repeal and re-enactment of s.31.
In my view the applicant is entitled to the relief sought by her. In particular she is entitled to an order that the Commission review, under s.31 of the Act as it stood before the 1984 amendments, her claim to a pension.
3