Finn, N.A. v Repatriation Commission

[1990] FCA 492

VETERANS' AFFAIRS - Appeal from Administrative Appeals Tribunal - meaning of "dependent of a deceased veteran" - meaning of "widow" - consideration of when statutory words may be read down.

Nina Aileen Finn
v . Reuatriation Commission

Qld G48 of 1990

PINCUS J.
BRISBANE

17 AUGUST 1990

PRINCIPAL

RECEIVED

FEDERAL COURT OF

AUSlRALlA

SA	1	QLD G48 of 1990
OUEENSLRND DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	1

BETWEEN: NINA AILEEN FINN

Applicant

AND:  REPATRIATION COMMISSION

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	17 AUGUST 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G48 of 1990
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: NINA AILEEN FINN

Applicant

AND: REPATRIATION COMMISSION

Respondent

CORAM: PINCUS J.

PLACE: BRISBANE

m: 17 AUGUST 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal from the Administrative Appeals Tribunal, which on 2 April 1990 affirmed a decision of the Veterans' Review Board of 17 November 1987. That decision in turn affirmed a determination of a delegate of the Repatriation Commission of 8 December 1986 to the effect that the applicant was not a "dependent of a deceased veteran"

VE Act) and therefore could not lodge a claim as such a	within the meaning of the Veterans' Entitlements Act 1986 (the	dependent for a pension under that Act.
The basis of the applicant's claim to a pension is the war service and the subsequent death of the late Mr William Kevin Finn, to whom the applicant was married in 1948. Mr Finn's death occurred in 1957. The applicant remarried in 1968, her second husband being a Mr Heikkonen. Mr Heikkonen died in 1974.
The application for a pension was made on 12 May 1986. Section 13 of the VE Act came into force on 22 May 1986 but it applies to the applicant's claim by virtue of section 17(l)(d) of the Veterans Entitlements (Transitional Provisions and Conseauential Amendments) Act 1986. It is not necessary to set out the whole of that provision, but its effect is that the "application shall be dealt with and determined under the Veterans' Entitlements Act as if it had been made under that Act".
Section 13 of the VE Act creates a liability in the Commonwealth to pay pensions to, amongst others, dependents of deceased veterans whose death was war-caused. Under s.14(1) "Subject to sub-section (2), a veteran, or a dependent of a deceased veteran may make a claim for a pension in accordance with sub-section (3)".
Sub-section (2) is not relevant. Sub-section (3) prescribes the procedure for making the claim. Section ll(1) (a) (i) of the VE Act provides, so far as relevant, that for the purposes of this Act unless the contrary intention appears, the wife or widow of a male veteran who has died is a dependent of the veteran.
Before the Veterans' Review Board, the applicant failed on the basis of the Board's construction of that definition and that point was reargued in this Court. The Board expressed the opinion, "that the Applicant is and was at all relevant times to this application the widow of Mr Heikkonen, the widow of the late Veteran within the meaning of section 11".
It was argued for the applicant in this Court that I should hold that the expression "widow of the veteran" in section ll(l)(a)(i) of the VE Act includes an applicant such as the present. It was not contended that a woman who was married to a veteran at the date of his death continues after remarriage to be properly described as the veteran's widow.
The contention was that, as under statutes permitting the making of orders to provide for the maintenance of a testator's dependents, the question of widowhood should be considered at the time of the death giving rise to the
claim. An example of the authorities relied on is Re Tavlor [l9891 1 Qd R 205, in which it was held that for the purposes of a claim under S. 90 of the Oueensland Succession Act 1867-
1978, an applicant claiming as a step-child had to establish that relationship as at the date of the testator's death, not the date of the application.
The reason for that decision appears to have been that the statutory provision, namely s.90 of the Succession which I do not here quote, was drawn so as to make the natural reading of it the construction which the Court gave to it. That authority and others like it do not purport to lay down any general rule as to the date at which relationships giving rise to statutory claims must be established, nor could
any such general rule sensibly be enunciated.
Here, s.13 creates a liability to pay a pension to dependants of the veteran where the death is war-caused, but that liability is subject to the Act. Section 14(1), which I have quoted above, provides for the making of a claim for a pension by a "dependant of the deceased veteran", and under s.11 that prima facie means, so far as relevant, "a widow of a veteran".
The difficulty is that s.14, read with the prima facie definition of "dependant" in 1 1 makes no provision for the making of a claim by a person who once was, but is not at the date of the making of a claim, a veteran's widow. On
behalf of the applicant, reliance was placed upon s.35(6) (b) of the VE Act which has the effect that in Part I11 of that Act:

"A reference to the widow of a deceased person

shall be read as a reference to a woman who was
the wife of the person immediately before the

person's death."

In Part 111, s.40 and ancillary provisions permit
the widow of a deceased veteran to continue to receive a

"wife's service pension" under that Part in certain circumstances. It was pointed out on behalf of the respondent, and appears to be correct, that so far from assisting the applicant's case on the construction of 9.14 of the VE Act this definition in s.35(6) rather tends the other way.

The applicant also relied on 9.13 of the VE Act, providing for the rate of pension to be paid to a dependant of a deceased veteran "being a person who is the widow of the veteran". By s.30(4) "widow" is given the same meaning as in Part I11 that is, the same meaning as derived from s.35(6)(b).

The applicant's counsel contended that it would be anomalous if, for the purpose of setting the rate, "widow" had a different meaning from that which it has in the provision allowing the making of a claim. Whether that be right or not, the applicant's difficulties seem to me to be increased and not diminished by these specific provisions extending the

ordinary meaning of the word "widow" in such a way as to catch

the present case. Had the legislature intended that, in

general throughout the Act, the applicant's status should be considered not at the date of the application but as at the date of the death relied on, these specific extensions would not have been expected to be found in the Act.

It is, strictly speaking, unnecessary to reach a conclusion on this point, that is, the meaning of the word "widow" in 6.11 insofar as that definition is to be applied to the provision for making a claim, in S. 14. As will appear, I have come to the conclusion that the resolution of the matter does not depend upon this point and I am somewhat hesitant to express a view about it. The way in which the matter was treated before the Tribunal is that one has to determine this particular claim by reference to the construction of s.l3(8A) and I think that is the critical point.

However, since the more general question was argued - that is, the general question of the date on which one determines widowhood for the purpose of s.14 - I think I should express my view about it. It is that the Board's decision on the point seems to me correct. I can see no sufficient justification for reading the expression "dependant of the deceased person" in S. 14 of the VE Act as extending to a person who once was, but is not at the date of the claim, such a dependant. More particularly, it does not seem to me that a woman who once was but no longer is the widow of the

deceased veteran can make a claim under s.14.

The way in which the Tribunal approached the matter was shorter and simpler than that which I have already set out and depended wholly upon the construction of s.l3(8A) of the VE Act.

It is doubtful whether anything much is gained by so doing, but I should make reference to the immediately preceding provision, s.13(8). It says:

"Where a dependant of a deceased veteran (not being a child of the veteran) re-marries or marries after the death of the veteran and

after the commencement of this Act -

(a)

the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board, o r the Administrative Appeals Tribunal, as the case may be, to grant the pension -

(i)	was made before the commencement of this Act; or
(ii)	was or is made after the commencement of this Act upon consideration or re- consideration of a claim for that pension that was duly made (whether before or after the commencement of

this Act) but before the re-marriage

or marriage occurred; and

(b)	a decision granting a pension to the dependant under this section made after the commencement of this Act by the Commission, the Board, or the Administrative Appeals Tribunal after that re-marriage or marriage occurred (including a decision granting such a pension as from a date before that re-	marriage or marriage occurred) is void and	of no effect unless the decision was made
upon consideration or re-consideration of a claim for that pension made as described in sub-paragraph (a)(ii)."

Now, what this provision says (putting it in a general way) is that in a case which is like the present except that the remarriage occurs after the Act began, which this one did not, then the Commonwealth is not, in general, liable to pay a pension under the section and exceptions are

set out. What was put forward by Mr Vitali, on behalf of the respondent, was that the provision was intended to be an alleviating one, to enable, contrary to the general rule, certain liabilities to pay pensions to persons, such as the applicant, to subsist. However that may be, the wording of the provision is puzzling because even on the rationalisation of it which Mr Vitali gives it is difficult to understand why the provision of 8.8 was confined to the case of a remarriage or marriage after the commencement of the Act. So to confine it gave rise to the possibility of an argument that those who remarried or married after the death of the veteran but before the commencement of the VE Act had a superior position. However, it does not seem to me to be necessary to determine the rationale of sub-s.(8), because it is common ground that the matter is caught by sub-s.(8A) and it is common ground that sub-s.(8A), which came into force on 22 December 1988, having been added by the Veterans Affairs Leaislation Amendment Act of that year, applies to the applicant.

however argues that, properly read, the subsection does not Mr Crowley QC, who led Mr McGhee for the applicant,	affect the case, or perhaps to put it slightly more
accurately, what Mr Crowley says is that if its literal construction is such as to affect the case, it reaches such an absurd or unjust result that it should be read down. Subsection (8A) is as follows:

"Where a dependant of a deceased veteran (not being a child of the veteran) has re-married or married after the death of the veteran but on or before 28 May 1984:

(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant the pension was made before the commencement of section 7 of

the V e t e r a n s ' A f f a i r s L e g i s l a t i o n

Amendment A c t 1988 ; and

(b) a decision granting a pension to the dependant under this section made after the commencement referred to in paragraph (a) by the Commission, the Board or the Administrative Appeals Tribunal (including a decision granting such a pension as from a date before that commencement) is void and of no effect. "

It was s.7 of the Veterans Affairs Leaislation
Amendment Act 1988 which added sub-S. (8A) to the VE Act and
the date of commencement, as I mentioned, was 22 December

1988. It will be noted, firstly, that in this case the remarriage did occur after the death of the veteran and it did occur on or before the 28 May 1984. In fact, the remarriage took place in 1968.

Secondly, it will be noted that, to have regard to the words of para. ( a ) of sub-S. (EA), there was no decision by any of the Commission, the Board, or the Administrative Appeals Tribunal to grant a pension made before 22 December

1. Indeed, there has been no such decision to the present

time .

Thirdly, as to (b), if in consequence of an allowance of this appeal and remitting of the matter to those responsible for its further conduct, a pension were subsequently granted to the applicant under s.13 of the VE Act, that purported grant would under para. (b) be void and of no effect.

The argument which Mr Crowley advances is that despite the apparent intractability of the language, the role of a Judge in construing legislation is such as to enable me to read it down and let this applicant in. I must say that the simple response I feel obliged to make is: how do I read it down? It is not the case that any obvious implication can be made which would allow this applicant in, nor that any of the language used is sufficiently flexible or ambiguous as to achieve that result. It appears to me that, to do so, one would simply have to redraft the sub-section, not necessarily to make an opposite provision, but to make a considerably different provision. As to para.(a), leaving the separate difficulty under (b) aside, one would have to provide that the	Commonwealth is in the circumstances mentioned, that is, in	the case of the remarriage after the death of the veteran but
before 1984, liable to pay a pension, although the decision of the Commission and that of the Board and that of the Administrative Appeals Tribunal (all made before 22 December 1988) was not to grant one.
In the end, then, one is faced with a claim with which, whatever its, what might be called, commonsense merits or otherwise (a matter on which I choose not to comment) is squarely met by plain words. The decision of the Tribunal was, in my opinion, correct, and the application is dismissed.

I certify that this and the

10 preceding pages are a true copy of the reasons for judgment herein of his Honour Mr Justice Pincus.

Date I 7 ~+waI- 1990

Counsel for the applicant :	Mr. J.C. Crowley Q.C. & Mr. K.J. McGhee
Solicitors for the applicant :	Foley & Foley
Counsel for the respondent :	Mr. W.V. Vitali
Solicitors for the respondent : Australian	Government

Solicitor

Date of Hearing:  17 August 1990