Fitzmaurice v Repatriation Commission

Re: RONALD HAROLD FITZMAURICE
And: REPATRIATION COMMISSION
No. G1253 of 1988
FED No. 186
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(2) and Foster(3) JJ.

CATCHWORDS

Administrative Law - veterans' affairs - special case stated by Administrative Appeals Tribunal - ambit of jurisdiction of Administrative Appeals Tribunal when reviewing a decision of the Veterans' Review Board with respect to rate of pension

Acts Interpretation Act 1901 (Cth) - s.23(b)

Administrative Appeals Tribunal Act 1975 (Cth) - ss.3(3), 25, 27, 29, 33, 43, 45

Repatriation Act 1920 (Cth) - ss.31, 107VC, 107VD

Repatriation Legislation Amendment Act 1984 (Cth)

Veterans' Entitlement Act 1986 (Cth) - ss.5(1), 14, 19, 22, 23, 24, 135, 139, 174, 175, 176

Veterans' Entitlement (Transitional Provisions and

Consequential Amendments) Act 1986 (Cth) - s.19

Bannister v. See (1982) 45 ALR 146

Bastiani v. Repatriation Commission (1985) 60 ALR 557

Director-General of Social Services v. Hales (1983) 47 ALR 281

Gee v. Director-General of Social Services (1981) 58 FLR 347

Repatriation Commission v. Donovan (1985) 8 FCR 252

Ridge v. Baldwin and Ors (1964) AC 40

HEARING

SYDNEY

#DATE 3:5:1989

Counsel for the applicant: Mr M.B. Smith

Solicitors for the applicant: Legal Aid Commission

of New South Wales

Counsel for the respondent: Mr A. Robertson

Solicitor for the respondent: Australian Government

Solicitor

ORDER

The question raised in the Stated Case, namely

"Whether, in hearing and determining the application lodged with the Administrative Appeals Tribunal by the applicant, it is within the jurisdiction or authority of the Tribunal, to review the Veterans' Review Board's findings that the Commonwealth is liable to pay the applicant pension in respect of his incapacity from dyspepsia and anxiety state?"

is answered, Yes.

Each party shall abide his or its own costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.6

JUDGE1

This is a Special Case stated to this Court by the Administrative Appeals Tribunal pursuant to s.45 of the Administrative Appeals Tribunal Act 1975 (Cth)("the AAT Act").

Relevant parts of the Special Case read as follows:-

"1. The Veterans' Review Board established pursuant to s.107VB of the Repatriation Act 1920 (Cth) and continued pursuant to s.134 of the Veterans' Entitlements Act 1986 (Cth) on 24 June 1983 conducted a review pursuant to the provisions of Part IX of the latter Act, in proceedings in which Ronald Harold Fitzmaurice was the applicant, of decisions made by the Repatriation Commissioner on 16 September 1963 and 26 March 1964 that refused respectively, the applicant's claim for a war pension for what was diagnosed as (1) dyspepsia and (2) anxiety state.

2. On 28 April 1987, the Veterans' Review Board decided:

'* the Commonwealth is liable, pursuant to Section 13 of the Veterans' Entitlements Act 1986, to pay to the applicant, Ronald Harold Fitzmaurice, in respect of his incapacity resulting from (1) dyspepsia and (2) anxiety state the pension payable in accordance with Part II of the Act, with effect from and including 24 December 1982; and, * that the rate at which pension is to be paid in respect of all that applicant's accepted service related disabilities taken together (including dyspepsia and the anxiety state) shall be one hundred per cent of the general rate.

(The applicant has previously been granted pension at this rate, with effect from 16 April 1980, so that no increase in pension will be attracted by the Board's present decisions in this case.)'

...

4. On 23 June 1987 the applicant lodged an application with the Tribunal for a review of the 'DECISION ASSESSING DISABILITY PENSION AT 100% GENERAL RATE' (Annexure 'B'). ...

7. Pursuant to s.45 of the Administrative Appeals Tribunal Act 1975, the following question of law is referred to the Court at the request of the applicant: 'Whether, in hearing and determining the application lodged with the Administrative Appeals Tribunal by the applicant, it is within the jurisdiction or authority of the Tribunal, to review the Veterans' Review Board's findings that the Commonwealth is liable to pay the applicant pension in respect of his incapacity from dyspepsia and anxiety state?'"

As can be seen, the applicant, Ronald Harold Fitzmaurice, who had been in receipt of a pension at the rate of 100% of the General Rate, sought review by the Veterans' Review Board of decisions of the Repatriation Commission refusing claims for pension by reason of the conditions of dyspepsia and anxiety state. On 28 April 1987, the Veterans' Review Board determined that Mr Fitzmaurice's conditions of dyspepsia and anxiety state were attributable to war service but maintained the rate of pension at 100% of the General Rate.
The applicant then sought a review by the Administrative Appeals Tribunal of the decision of the Veterans' Review Board with respect to the rate of pension. Before the Administrative Appeals Tribunal, the Repatriation Commission, without separately applying for the review of the determination of the Veterans' Review Board that the conditions of dyspepsia and anxiety state were attributable to war service, sought to raise that issue on the footing that Mr Fitzmaurice's application to the Administrative Appeals Tribunal necessarily encompassed all parts of the decision made by the Veterans' Review Board on 28 April 1988.
The question posed for the consideration of this Court thus concerns the ambit of the jurisdiction of the Administrative Appeals Tribunal on the hearing of Mr Fitzmaurice's application for review, that application in terms seeking a review of the decision of the Veterans' Review Board with respect to the rate of pension.
Before entering upon an examination of the question, I think it appropriate to comment that appeals to courts could raise like questions, but sophisticated statutory provisions and Rules of Court deal with the issue. See, e.g., s.101 of the Supreme Court Act 1970 (NSW) and Part 51 Rules 8 and 15 of the Supreme Court Rules. Such provisions enable a court to restrict the ambit of an appeal to the grounds stated in a notice of appeal if the justice of the case so requires, or to formulate an order extending beyond the precise issues raised in the notice of appeal, should the formulation of a just and appropriate order in the circumstances of the case so demand. As to the latter course, see e.g. Attorney-General v. Simpson (1901) 2 Ch 671. The provisions of the AAT Act are much less complex, consonant with the intent of the Act to establish a tribunal of administrative review whose "proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant Act and in the proper consideration of the matters before the Tribunal permit". See s.33(1) of the AAT Act. The issue raised for the determination of this Court is difficult for the very reason that the provisions of the AAT Act are simple and direct and lack the sophistication and complexity of provisions in other jurisdictions.
I should also mention that, on the hearing of this Special Case, Mr M.B. Smith, counsel for the applicant, referred the Court to two decisions of the Administrative Appeals Tribunal, Re Carroll and Repatriation Commission, delivered 30 September 1988 and Re Smedley and Repatriation Commission, delivered 16 December 1988 and to two decisions of the Veterans' Review Board, Re Charles Arthur Edwards, delivered 19 September 1988 and Re Peter Joseph Hussin, delivered 10 November 1988. Mr Smith submitted that there were inconsistencies of approach taken in these decisions and asked the Court to resolve the issues raised thereby. However, as these decisions are not before the Court and as they raise issues which are not identical either with the question in this Special Case or as between themselves, it would not be appropriate to consider them.
The Veterans' Entitlements Act 1986 (Cth) ("the VE Act"), like the Repatriation Act 1920 (Cth) in its many forms, has drawn a distinction between a determination of an entitlement to a pension by reason of acceptance that a claimed disability is attributable to war service and the assessment of a rate of pension having regard to the overall disabilities which have been accepted as attributable to war service. Section 5(1) of the VE Act provides that the term "decision" includes "a determination and an assessment". I take that definition to mean that the word "decision" will, unless the contrary intention appears, refer to either a determination as to entitlement or an assessment as to a rate of pension.
Section 19(2) of the VE Act provides that where a claim, including an application for an increase in the rate of pension, is submitted to the Commission, the Commission shall consider and determine the claim. Section 19(6) provides that, where the Commission determines that the claimant is entitled to be granted a pension in respect of the incapacity from a war-caused injury or war-caused disease or both, the Commission shall assess the rate or increased rate at which the pension is to be payable to the claimant. Thus, when a claim is made for a pension by reason of a disability not previously accepted as attributable to war service, the Commission is required to make two decisions, the first is a determination as to whether the claimed disability is attributable to war service and the second an assessment of the rate of pension which is payable by reason of all the veterans' disabilities which have been accepted as war-caused.
I should emphasise that the veteran does not receive a separate pension for each separate war-caused injury or disease. The General Rate of pension is provided for by s.22 of the Act which in sub-section (2) provides that a pension is payable "in respect of the incapacity of the veteran from war-caused injury or war-caused disease or both". Sections 23 and 24 likewise deal with the total incapacity which arises from injuries and diseases which by determinations have been accepted as attributable to war service.
Thus, when the Repatriation Commission determines under s.19(2) that the veteran suffers from an injury or disease which was attributable to war service, the Commission must go on to consider, pursuant to s.19(6), the rate of pension which is payable to the veteran. But a decision under s.19(6) will not necessarily be made at the same time as a favourable determination under s.19(2), for it may raise separate issues which may have to be separately considered.
Once a favourable determination as to entitlement has been made under s.19(2) that determination continues to apply unless a review is undertaken by the Commission under s.31(4) or (6).
Section 31 in the Repatriation Act referred to any or an "assessment, decision or determination". In Bastiani v. Repatriation Commission (1985) 60 ALR 557 at p 562, Bowen C.J., Fisher and Lockhart JJ. cited with approval the remarks of Fox J. in Bannister v. See (1982) 45 ALR 146 at p 147 that:-

"It is of significance that the review is of 'any assessment, decision or determination in relation to pension'. The scope of reviewable matters is wide. It is plain that the review can lead to results of importance: sub-s (2) makes it clear that revocation and variation of an assessment of pension are included."

The present s.31 refers only to "a decision". However, the VE Act contains the definition to which I have already adverted. I would read the term "decision" as having the wide operation attached by Fox J. to the earlier provision.

In Bastiani's case, Bowen C.J., Fisher and Lockhart JJ. specifically stated at p 562 that s.31 of the Repatriation Act empowered the Commission "to review a wide scope of matters." In the subsequent case of Repatriation Commission v. Donovan (1985) 8 FCR 252, their Honours held that a decision granting a pension from a specified date was a single decision. I do not read anything said in that case as casting doubt upon their Honours' remarks in Bastiani's case or as holding that a determination of entitlement and an assessment of pension are a single decision.
Section 135 provides for a review by the Veterans' Review Board on the application of a veteran of decisions of the Commission. Section 135 provides inter alia:-

"(1) Where a person -

(a) who has made a claim for a pension in accordance with section 14;

(b) who has made application for a pension, or for an increased pension, in accordance with section 15; or

(c) who has made an application for attendant allowance under section 98, is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under sub-section 19(3)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.

...

(4) Subject to sub-section (5), an application under sub-section (1) or (2) to the Board to review a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with sub-section 34(2), but not otherwise.

(5) An application under sub-section (1), (2) or (3) to the Board to review a decision of the Commission -

(a) assessing a rate of pension or increased rate of pension;

(b) refusing to grant a pension on the ground that the extent of the incapacity of the veteran is insufficient to justify the grant of a pension;

(c) refusing to increase the rate of a pension;

(d) reducing the rate of a pension; or

(e) cancelling or suspending a pension, or fixing the date of recommencement of a pension that has been suspended, may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with sub-section 34(2), but not otherwise."

Section 139 provides inter alia:-

"(4) Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate at which the pension is to be paid to the person."

It will be seen that s.135(1) uses the term "any decision" and that the Veterans' Review Board is thereby authorised to review either a determination as to entitlement or a decision assessing the rate of pension payable to the veteran. An application for the review of a decision of the Commission refusing to accept an injury or disease as being attributable to war service must be made within 12 months of the Commission's decision. If that review is favourable to the veteran, the Veterans' Review Board is required by s.139 to go on to assess the rate of the pension having regard to the new determination or to remit the matter to the Commission to assess the rate of pension. An application seeking a review of an assessment of the rate of pension must be made within 3 months of service of the Commission's decision.
In the present case, the Veterans' Review Board reviewed the Commission's refusal as to entitlement, made a determination accepting dyspepsia and anxiety state as attributable to Mr Fitzmaurice's war service and went on to reassess the rate payable to Mr Fitzmaurice. In its assessment decision, the Veterans' Review Board maintained the rate of pension at 100% of the General Rate.
The VE Act also makes provision for review by the Administrative Appeals Tribunal. The Act provides inter alia:-

"175.(1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed 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; or

(b) of the decision made by the Board in substitution for the decision so set aside,

as the case may be.

...

176.(1) The Administrative Appeals Tribunal Act 1975 applies in relation to reviewable decisions as if paragraph 25(3)(a) of that Act had been omitted."

I now come to the crux of the matter. Mr A. Robertson, counsel for the respondent, submitted that, when s.175(1) speaks of "the decision made by the Board in substitution for the decision so set aside", it refers to the totality of the decision or directions then made. He submitted that the jurisdiction of the Administrative Appeals Tribunal is in this respect quite different from that of the Veterans' Review Board. Mr Robertson conceded that, when s.135 of the Act speaks of "any decision of the Commission", it would permit the Veterans' Review Board to review a determination, or an assessment or even a decision as to the date from which payment of the pension was to be made. Mr Robertson submitted that the terminology of s.175 was deliberate and reflected the intention of Parliament that, if the Veterans' Review Board had made a decision or decisions in substitution for a decision of the Commission, the Administrative Appeals Tribunal should in the exercise of its jurisdiction review the whole of that decision or those decisions.
Mr Smith referred to s.23(b) of the Acts Interpretation Act 1901 (Cth) and submitted that the term "the decision" should be read as including "the decisions or any one of them". To say that the singular includes the plural and vice versa does not conclude the matter. Certainly the term "the decision" can be read as encompassing "the decisions". But the question is not whether application can be made to the Administrative Appeals Tribunal to review all the decisions that were made by the Veterans' Review Board in substitution for the decision of the Commission which it set aside, but whether an application for review may be made with respect to one or more but not all of the decisions which were made by the Veterans' Review Board in substitution for the decision of the Repatriation Commission.
I reject the view the difference in terminology between s.135 and s.175 reflects Parliament's deliberate policy, that Parliament saw some relevant difference by reason of the decision having been made by the Veterans' Review Board rather than by the Commission itself. Section 175(2), which is concerned with the review of decisions related to service pensions, is in this respect in like terms to s.175(1) notwithstanding that the intermediate review is undertaken by the Commission itself, not by a separate body such as the Veterans' Review Board.
There are reasons for the differences in terminology between s.135 and s.175. Section 135 follows the terminology adopted by ss.107VC and 107VD of the Repatriation Act when first introduced by Act No. 18 of 1979. The limited provision for review by the Administrative Appeals Tribunal, introduced by that Act, was in different terms from the then s.107VZZB of the Repatriation Act. The Repatriation Legislation Amendment Act 1984 repealed the previous ss.107VC and 107VD, introduced the Veterans' Review Board in place of the Repatriation Review Tribunal and, in the replacement s.107VC, adopted much of the terminology of the provisions appearing in the previous ss.107VC and 107VD. The 1984 Act introduced new sections with respect to the Administrative Appeals Tribunal. Section 175 now appears to reflect the terminology of s.43 of the AAT Act and a view which may be found expressed, eg., in Ridge v. Baldwin and Ors (1964) AC 40 and Gee v. Director-General of Social Services (1981) 58 FLR 347 at pp 354-5, that when a decision is affirmed, the original decision may, in appropriate circumstances, remain the effective and operative decision.

The question then being fairly open, because the adoption of the language does not reflect a deliberate Parliamentary policy, I turn to consider the operation of the AAT Act.
The term "decision" is defined in the AAT Act in very wide terms. See s.3(3) of the AAT Act which provides:- PRINTER FONT NORMAL 3

"(3) A reference in this Act to a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing."

The AAT Act does not itself generally confer jurisdiction upon the Tribunal but provides, inter alia:-

"25.(1) An enactment may provide that applications may be made to the Tribunal -

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. ...

(3) Where an enactment makes provision in accordance with sub-section (1), that enactment -

(a) shall specify the person or persons to whose decisions the provision applies;

(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c) may specify conditions subject to which applications may be made."

The provisions of ss.175 and 176 of the VE Act are an enactment which, in accordance with s.25 of the AAT Act, confers jurisdiction upon the Administrative Appeals Tribunal. In doing so, s.176 of the Act picks up the general provisions of the AAT Act including the definition contained in s.3(3) thereof.

Section 25(4) of the AAT Act provides:-

"(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

It will be noted that that provision uses the term "any decision", the precise term used in s.135(1) of the VE Act, which I have already mentioned. Section 27(1) of the AAT Act provides:-

"27.(1) Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision." (the emphasis is mine)

Section 29 specifies the form of an "application to the Tribunal for a review of a decision." Having regard to the width of the definition of "decision", it is difficult to read these provisions as having in mind that a person seeking a review of a decision might be required to seek review at the same time of another decision with which the challenged decision is connected, which is the effect of the submissions put for the Commission in this Special Case.

It is common for legislation to provide administrative powers under several different heads. For example, legislation may provide for the grant of a licence or authority and may also provide as a separate, though related statutory power, that conditions or restrictions may be imposed upon that licence or authority. Similarly, welfare legislation may provide for a decision as to entitlement to benefit and for a decision as to the amount or rate of benefit. Each of these may be a matter concerning which persons affected thereby may wish to seek administrative review and for the review of which the structure established by the AAT Act makes provision.
As Lockhart J. said in Director-General of Social Services v. Hales (1983) 47 ALR 281 at pp 305-6:-

"The Administrative Appeals Tribunal has jurisdiction to review decisions made in the exercise of the powers conferred by particular statutes, not by the Administrative Appeals Tribunal Act itself. Those statutes are many and diverse. They include the Social Services Act 1947, the Migration Act 1958, the Compensation (Commonwealth Government Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901, and the Insurance Act 1973. Each of the statutes conferring jurisdiction on the Administrative Appeals Tribunal covers a wide range of decisions. The definition of 'decision' in s 3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in s 3(3) to determine definitively the meaning of the word 'decision'. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word 'decision' ..."

In my opinion, the argument put by Mr Robertson places undue emphasis upon the terms of s.175(1)(b) of the VE Act and not enough upon the provisions of the AAT Act. Section 175 of the VE Act is simply one of the numerous statutory provisions which have conferred jurisdiction upon the Administrative Appeals Tribunal in accordance with s.25 of the AAT Act.
Section 25(1) of the AAT Act, which I have set out above, specifies that an enactment may provide that applications be made to the Administrative Appeals Tribunal for the review of decisions made in the exercise of powers conferred by that enactment. Section 175(1)(b) provides that applications may be made to the Administrative Appeals Tribunal for a review "of the decision made by the Board in substitution for the decision so set aside". The Acts Interpretation Act applies so that this provision also reads "of the decisions made by the Board in substitution for the decision so set aside." Section 25(4) of the AAT Act then empowers the Tribunal to review any of these decisions in respect of which application is made to it.
When s.175 of the VE Act is read in this context, it takes its flavour as an ordinary provision conferring jurisdiction upon the Administrative Appeals Tribunal. The manner in which the jurisdiction is to be exercised is determined by the provisions of the AAT Act. It is sufficient for an applicant to identify a decision or decisions within jurisdiction and to seek review thereof. The review is then limited to the decision or decisions which is or are the subject of the application for review.
So read, s.175 has, in the circumstances of the present case, a sensible, straightforward operation consonant with the intent of the AAT Act to provide for effective, though informal and expeditious administrative review. The Administrative Appeals Tribunal has jurisdiction to review all the decisions which the Veterans' Review Board may make in substitution for decisions of the Commission which it sets aside, provided that the jurisdiction is enlivened by the lodging of an appropriate application or applications.
Mr Fitzmaurice was entitled to seek a review of the decision which troubled him, namely the assessment decision, without thereby initiating a review of the decision as to entitlement which was in his favour. Likewise, the Commission, whose interests were adversely affected by the decision as to entitlement, would have been entitled to lodge an application for the review of the Board's decision as to entitlement, without thereby initiating a review of the Board's decision as to assessment, with which the Commission has no dispute. Had the Commission decided to do so after receipt of the application lodged by Mr Fitzmaurice and had it then been out of time, the Commission was entitled to apply for an extension of time pursuant to s.29(7) of the AAT Act. That power to extend time is a power to be exercised beneficially to achieve justice in the circumstances of the case and it is so exercised by the Administrative Appeals Tribunal. There cannot be any doubt that had the Commission, on receipt of the applicant's application seeking a review of the decision as to the rate of pension, itself applied for an extension of time to lodge application for the review of the determination of entitlement, time would have been extended.
Any other interpretation would put the review by the Administrative Appeals Tribunal of decisions of the Veterans' Review Board into a novel category with incidents quite different from those applying throughout the generality of the Administrative Appeals Tribunal's jurisdiction. I cannot find in s.175 any intent to achieve this.
Indeed, Mr Robertson's submissions would raise an inconsistency as to the term "the decision" which appears in both paras (a) and (b) of s.175(1). Mr Robertson conceded that when the Repatriation Commission makes a determination as to entitlement and an assessment of a rate of pension, the veteran may apply to the Veterans' Review Board for a review of the assessment decision alone. See s.135 of the VE Act. If the Veterans' Review Board affirms that decision the veteran may then apply to the Administrative Appeals Tribunal. Thus, for the purposes of s.175(1)(a), the term "the decision" may refer to an assessment of the rate of pension notwithstanding that the assessment is made in association with a determination of entitlement. It would be strange if the term "the decision" in s.175(1)(b) did not also do so.
I may add that the interpretation for which Mr Robertson contends would have the effect that there would be no provision in the Act for the separate review of the decision by the Veterans' Review Board assessing the rate of pension payable to the applicant other than the discretionary power of review conferred upon the Commission by s.31 of the VE Act, notwithstanding that the Act sets up a complex mechanism for review. If Mr Robertson's submissions were correct, Mr Fitzmaurice's only right would have been to apply, at an appropriate time, under s.15(1) of the Act for an increase in the rate of pension on the ground that his incapacity had increased since the rate of his pension was assessed by the Veterans' Review Board. He would have no right to have the decision of the Veterans' Review Board as to assessment reviewed by the Administrative Appeals Tribunal. It seems to me to be unlikely that the interpretation contended for by Mr Robertson on behalf of the Commission was that intended by Parliament.
For these reasons, in my opinion, the decision of the Veterans' Review Board assessing the rate of pension payable to the applicant was a decision made in substitution for the decision of the Commission which the Veterans' Review Board had set aside and was a decision in respect of which an application could be made by Mr Fitzmaurice to the Administrative Appeals Tribunal.
It was not contended by Mr Robertson that the power to review that decision as to assessment was extended by s.43(1) of the Administrative Appeals Tribunal Act so as to permit the Tribunal in the exercise of "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision" to review the determination as to entitlement with respect to Mr Fitzmaurice's dyspepsia and anxiety state.
For these reasons, I would answer the question posed - "No".
The respondent should pay the costs of the Special Case.

JUDGE2

I have had the advantage of reading, in draft form, the reasons for judgment of Davies J. His Honour there sets out the question posed for the determination of this Court, together with the factual and statutory substratum out of which it arises. It is not necessary for me to repeat that material.

The question raised by the Stated Case concerns the extent of the review to be undertaken by the Administrative Appeals Tribunal in circumstances to which s.175 of the Veterans' Entitlement Act 1986 applies. Accordingly, although s.175 must be read in the context of the Act as a whole, the question reduces itself to one concerning the proper interpretation of that section.
Davies J points to the long-standing distinction, in this area of the law, between a claim for an entitlement to a pension and a claim to a pension at a particular rate. This distinction is carried forward into s.135, dealing with reviews by the Veterans' Review Board: see the separate references to claims under s.14 (entitlement claims), claims under s.15 (rate claims) and claims for attendant allowances and the different limitation periods prescribed by sub-ss.(4) and (5). But I see nothing in s.175 to suggest that such a distinction was regarded as important for the purposes of that section. Rather, in that section, the underlying concept is that of review of "the decision" of the Commission or Board, as the case may be. As I see the matter, the critical question in the present case is what constituted "the decision" of the Board.
To determine that question, it is necessary to apply the relevant statutory provisions to the facts of this case. Mr Fitzmaurice made two separate claims, under the Repatriation Act 1920, for a war pension. He alleged incapacity arising, respectively, from dyspepsia and anxiety state. Those claims were rejected. Many years later he sought review of the decisions to reject his claims. The claims for review came before the Veterans' Review Board pursuant to s.107VC of the Repatriation Act. Before the Board completed its review the Repatriation Act was replaced by the Veterans' Entitlement Act. Thereafter the Board dealt with the claims as if they had been made under the Veterans' Entitlement Act. This was the appropriate course. Section 19 of the Veterans' Entitlement (Transitional Provisions and Consequential Amendments) Act 1986 requires that an application made to the Board under s.107VC of the Repatriation Act that had not been determined under that Act before the commencing date shall, on and after that date, "be treated as if it were an application that had been made to the Board under section 135 of the Veterans' Entitlement Act, and shall be heard and determined by the Board accordingly".
The Veterans' Review Board found incapacity, both in relation to dyspepsia and anxiety state. That decision was made in the exercise of the powers and duties conferred upon the Board by sub-ss.(1) to (3) of s.139. Those sub-sections read as follows:

"139. (1) On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review.

(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.

(3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing--

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and making a decision in substitution for the decision so set aside."

The Board having decided to set aside the decisions of the Commission refusing the claims for a pension, sub-s.(4) became applicable. That sub-section has been quoted by Davies J. By virtue of sub-s.(4) the Board came under a duty either to assess the rate at which the pension is to be paid to Mr Fitzmaurice or to remit the matter to the Commission for that purpose. The Board chose to follow the first alternative and held that Mr Fitzmaurice was entitled to a pension at 100% of the General Rate.
It is possible cogently to argue that, in taking the course which it did, the Board made two separate decisions: firstly, a decision to set aside the Commission's refusals of the claims and to substitute a decision granting the claims and, secondly, a decision as to rate. If s.175 were worded differently, that analysis might lead logically to the further contention that either of the parties could seek review, before the Administrative Appeals Tribunal, of either of those decisions; without thereby invoking the jurisdiction of the Tribunal in relation to the other. But, respectfully differing from Davies J, I have reached the conclusion that the language of s.175 is too intractable to permit the adoption of that further contention.
The critical provision is s.175(1). Stripped of presently unnecessary verbiage, that sub-section reads:

"175. (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and ... set aside, then ... application may be made to the Administrative Appeals Tribunal for a review--

(a) ...

(b) of the decision made by the Board in substitution for the decision so set aside, ..."

It is to be noted that the subject matter of the review is the decision made by the Board in substitution for the Commission's decision.

In the present case the Board set aside the Commission's decisions upon the question of entitlement. In taking that course, the Board substituted its own findings as to entitlement for those of the Commission. Those findings must be regarded as constituting at least a part of the decision made by the Board in substitution for those of the Commission. I do not see how the Board's decision to reverse the Commission's decisions upon the question of entitlement can be ignored when identifying the substituted decision.
I do not think that s.23(b) of the Acts Interpretation Act 1901 assists the argument for the applicant. It is said that this provision justifies the reading of the words "the decision made by the Board" as "the decisions made by Board". But, if that argument were accepted, two problems would remain. Firstly, the sub-section would then relevantly read "application may be made to the Administrative Appeals Tribunal for a review of ... the decisions made by the Board". But Mr Fitzmaurice does not seek review of the decisions (plural) made by the Board but of only one of them. Paragraph (b) contains no reference to a review of one of the decisions made by the Board, any more than it provides for the review of part of a single decision. Furthermore, any decision the subject of the review must be a decision made in substitution for a decision of the Commission. It is not difficult to apply the concept of substitution to a decision of the Board setting aside the Commission's determination regarding entitlement and making the opposite determination upon that matter. It is another matter to speak of substitution on a matter -- rate of pension -- which the Commission had never relevantly addressed. This particular problem would not apply to the converse case, where the Commission was seeking to challenge a finding of entitlement without wishing to upset a determination of rate. But a reading which permitted that result would lead to the unlikely conclusion that Parliament intended not to permit a challenge by either party to the Board's decision on rate.
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.

It is argued by counsel for the applicant that this would be an inconvenient interpretation, forcing a party who wished to challenge only one aspect of a particular decision to re-litigate the whole. Except, perhaps, in a case where the arguments for and against a particular interpretation of a statute are very finely balanced, matters of convenience can be given little weight. But, in any event, I am not persuaded that the interpretation which I favour is likely to cause any major inconvenience. It is standard procedure for the Administrative Appeals Tribunal to conduct directions hearings for the purpose of identifying the live issues in any review. If, in a particular case, the only live issue between the parties related to rate, they both accepting the Board's finding on entitlement, the Tribunal would define the issues accordingly. By reason of the concession made by the parties the Tribunal would not need to trouble itself about entitlement. It would go to entitlement only when this course was necessary in order to deal with the matters in dispute between the parties.
Furthermore, there are arguments of convenience the other way. As Davies J points out, upon the interpretation argued by the applicant, it would be necessary for the Commission, in a case such as the present, to make a separate application for review of the finding regarding entitlement. No doubt, as his Honour says, the Tribunal would normally be disposed to extend time, within reasonable limits, for this purpose; but any requirement of a second application does add to the complexity of, and work involved in, what was intended as a simple procedure.
I would answer the question raised by the Stated Case in the affirmative. As to costs, having regard to the fact that the Court has been asked to deal as a matter of principle with a novel and difficult question arising out of recently enacted legislation, it seems to me that it would be unjust to cast the burden of the Commission's costs upon the applicant. I would make no order regarding the costs of the proceeding in this Court.

JUDGE3

As appears from the Special Case stated in this matter, Ronald Harold Fitzmaurice ("the applicant") made applications to the Repatriation Commissioner for a War Pension on the basis of (1). dyspepsia and (2). anxiety state, which applications were refused on the 16th September 1963 and 26th March 1964. The applicant thereafter applied, in exercise of statutory rights, for review of these decisions. As a result of statutory provision which I need not consider here, these applications came before the Veterans' Review Board ("The Board"). That body, in exercise of statutory powers to be considered hereafter, set aside the earlier decisions, found that the applicant was entitled to a pension in respect of his incapacity resulting from (1). dyspepsia and (2). anxiety state and further held that the rate at which the pension was to be paid should be one hundred per cent of the general rate.

The applicant was satisfied with the Board's finding of entitlement but was not satisfied with the finding as to the rate of pension. He therefore sought to exercise further rights of appeal to the Administrative Appeals Tribunal ("The Tribunal") in respect of the latter finding. He lodged, on the 23rd June 1987, an application with the Tribunal for a review of the "decision assessing disability pension at one hundred per cent general rate".
It was contended before the Tribunal, contrary to the applicant's submission, that the applicant's application necessarily conferred jurisdiction upon the Tribunal to determine not only the question of the appropriate rate of pension but also the question of entitlement. This result was said to flow from the construction of the relevant section of the Veterans Entitlements Act 1986 (Cth) ("the V.E. Act"), namely s 175. The applicant maintained that his application was effective to require a review only of so much of the Board's decision as related to the rate of pension and that the section did not require that the Tribunal also review the question of entitlement. The tribunal stated a Special Case, posing the question of law for the Court as follows:

"7. Pursuant to s.45 of the Administrative Appeals Tribunal Act 1975, the following question of law is referred to the Court at the request of the applicant: 'Whether, in hearing and determining the application lodged with the Administrative Appeals Tribunal by the applicant, it is within the jurisdiction or authority of the Tribunal, to review the Veterans' Review Board's findings that the Commonwealth is liable to pay the applicant pension in respect of his incapacity from dyspepsia and anxiety state?'"

The answer to this question depends upon the proper construction of s 175 of the V.E. Act.
Before considering the terms of that section, it is convenient to consider other relevant sections of the V.E. Act.
S 14 of the V.E. Act provides that a veteran may "make a claim for a pension". S 19(2) provides that the Commission shall consider and determine the veteran's "claim". By s 19(1), "claim" means a claim made in accordance with s 14.
S 19(6) (so far as relevant) provides as follows: "Where the Commission determines under sub-section 2 that the claimant is entitled to be granted .... a pension .... the Commission shall assess the rate, at which the pension is to be payable to the claimant ...."
Accordingly the primary task of the Commission was to determine whether the applicant had established entitlement to a pension by a claim made under s 14 and, if this determination was made in the applicant's favour, then to proceed to assess the appropriate rate of pension pursuant to s 19(6).
The Commission held that the applicant was not entitled to a pension, refused the claim, and was, accordingly, not required to proceed to an assessment pursuant to the latter section.
The applicants application for review by the Veterans Review Board was brought pursuant to s 135 of the V.E. Act which so far as relevant, provides:

"135. (1) Where a person -

(a) who has made a claim for a pension in accordance with section 14; ...

is dissatisfied with any decision of the Commission in respect of the claim ... the person may, subject to this Act, make application to the Board for a review of the decision of the Commission."

"Decision" is defined in s 5 as including "a determination and an assessment". It is, accordingly, clear that s 135(1) enables an applicant to seek a review not only of a decision denying him entitlement to a pension but also of one assessing the rate of pension.
S 139 of the V.E. Act deals with the hearing and determination by the Board of such an application. It provides as follows:-

"139. (1) On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review.

(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.

(3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing -

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and making a decision in substitution for the decision so set aside.

(4) Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate at which the pension is to be paid to the person."

In my opinion this section, in circumstances where the Board is satisfied that the applicants appeal against a refusal by the Commission to grant a pension should succeed, requires that the Board make three separate decisions, (a) a decision setting aside the Commission's refusal, (b) a decision, in substitution for that refusal, granting a pension to the applicant and (c) a decision assessing the rate at which the pension should be granted to the applicant or, (alternatively), remitting that question to the Commission.
So far as this section is concerned, in my opinion, a clear distinction is made between a decision by the Board granting a pension in substitution for a decision of the Commission refusing such a grant and the subsequent decision by the Board (if appropriate) assessing the rate at which such a pension should be paid. I am quite satisfied that the section contemplates, in these circumstances, the making of two separate decisions by the Board.
Appeals from the Board to the Tribunal are governed by part X of the V.E. Act. It is necessary to consider the effect of ss 174, 175, & 176 which, so far as relevant, provide as follows:-

"174. (1) In this Part, unless the contrary intention appears, 'reviewable decision' means a decision in respect of which application may be made to the Administrative Appeals Tribunal under section 175. ...

175. (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and ... set aside, then ... application may be made to the Administrative Appeals Tribunal for a review -

(a) ...

(b) of the decision made by the Board in substitution for the decision so set aside, ...

176. (1) The Administrative Appeals Tribunal Act 1975 applies in relation to reviewable decisions ..."

It is clear that the question for determination in this Special Case depends upon the construction to be accorded to the words "the decision made by the Board in substitution for the decision so set aside".
It is to be noted that these words are identical with the words set out above in s 139(3)(c). It is clear that the words where used in that section refer only to a decision by the Board granting a pension in circumstances where it had previously set aside a Commission decision refusing to grant it. As already indicated, the structure of s 139, in my opinion, indicates clearly that a decision by the Board assessing the rate of pension is a quite separate decision from the substituted decision contemplated by s 139(3)(c).
The question is, what do the same words mean in s 175(1)(b)? If the substituted decision of the board there referred to is to be held to include not only the decision to grant the pension but also the decision as to the rate of pension, then the same words would necessarily have a different meaning in each section. In ordinary circumstances, clearly, the Court would be loath to adopt a construction which would produce this result. It is to be assumed that Parliament in producing legislation will have proceeded in a logical fashion. However, it is quite clear that circumstances can exist that render it necessary for differing meanings to be ascribed to the same phraseology where used in different parts of legislation. In the instant case, if the Court were to adopt a construction of s 175 (1)(b) which confined the Tribunal's jurisdiction to review Board decisions merely to determinations by the Board of entitlement to pensions, then a veteran dissatisfied by a rate of pension awarded by the Board would be deprived of any right of appeal to the Tribunal in this regard. I can see nothing in the V.E. Act to indicate that this would be a consequence intended by the Legislature. Moreover, support for the inclusion of an assessment of pension rate by the Board in the substituted Board decision referred to in s 175(1)(b) can be derived from a consideration of the sections cited above dealing with the powers of the Commission and the Board.
Thus, s 19(6) clearly requires that the Commission, in circumstances where it has determined that the claimant is entitled to a grant of a pension, proceed to assess the rate at which the pension shall be payable. Accordingly where the Commission grants the pension it must also fix the rate. Conversely, where the grant is refused, the Commission enters into no enquiry as to the appropriate rate. Where the latter event has occurred, and the claimant is successful in an appeal to the Board, the Board, pursuant to s 139(3), &(4)(a), as in the present case, both grants a pension to the claimant appellant and can assess the rate of pension to be paid. When the Board takes this course it, in fact, gives the decision as to grant of pension and the consequential assessment of the rate of that pension which the Commission would have been required by s 19(6) to give, in the event that the Commission had itself found entitlement. Putting aside the logical problem arising from the wording of sections 139(1)(c) and 139(4), it would, in my opinion, be perfectly reasonable to construe the words of s 175(1)(b) as applying to an adjudication by the Board which resulted in its both granting a pension and fixing the rate of it, in substitution for a decision of the commission refusing a pension.
I am of the view that, despite the logical problem adverted to, it is appropriate, in all the circumstances, to construe the words in s 175 (1)(b), "decision made by the Board in substitution for the decision so set aside", as referring both to the decision granting a pension and also to a consequential assessment of the appropriate rate.
If this approach were incorrect, the same result, could be achieved by the application of s 23(b) of the Acts Interpretation Act 1901. The application of that section would enable the word "decision" where first appearing in s 175(1)(b) to be read as "decisions" (plural). If it were so read, then it would be quite easy and appropriate to regard the decision by the Board as to entitlement and the decision as to the appropriate rate as having been made in substitution for the decision of the Commission refusing to grant a pension, considering that, had the Commission granted a pension, it would have been under a statutory requirement to proceed to assessment of the rate.
This conclusion, of course, does no more than clear the way for the consideration of the question posed by the Stated Case. Given that the Boards determinations as to the granting of pension and rate of pension are reviewable by the Tribunal pursuant to s 175(1)(b), can the applicant successfully assert that the jurisdiction of the Tribunal may be invoked in relation to the Boards assessment of rate without, at the same time, bringing up for review the decision as to entitlement?
It is quite plain, in my view, that this contention cannot suceed unless some such words as "or part of the decision" can properly be read into s 175(1)(b) after the word "decision" where first appearing. As the section stands, whether that word be read in the singular or in the plural it necessarily denotes the whole of the Board's determination both as to entitlement and as to rate of pension. Accordingly, the question becomes one of whether these additional words must necessarily be read into the sub-section. Are they required to give effect to a legislative intention which is elsewhere made manifest in the relevent legislation?
I agree with what Davies J. has written in his draft judgment which I have had the advantage of reading, that, contrary to arguments advanced by the respondent, there is no legislative policy evinced in the V.E. Act that appeals to the Tribunal should necessarily be on all grounds. An absence of evident policy to this effect does not, however, mean that the reverse is true. It merely means that policy considerations are neutral. Moreover, I gain no assistance from considerations of convenience in the administration of the legislation, so far as such considerations may be relevant. There may be some procedural advantages involved in a construction of the section which would require the Commission to take positive appellant steps if it wishes to contest a finding of entitlement by the Board, rather than its being able to raise the matter in the event of a dissatisfied claimant appealing to the Tribunal on the question of rate. Undeniably more sophisticated procedural systems provide for appeals to be brought in respect of part only of decisions given in litigation. However, it is clear that proceedings before the Tribunal are intended to be conducted with a minimum of procedural requirement. The question whether entitlement is seriously in dispute between the parties will quickly be ascertained at a directions hearing, a procedure which may, in fact, be less onerous and time-consuming than one requiring separate appeals as to parts of the decision below.
It may be that the provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act), may have a bearing upon the construction of relevant aspects of other legislation providing for review by the Tribunal of administration decisions taken within the ambit of that legislation. This would be on the basis that the later legislation might properly be considered in the light of Parliament's awareness of the existence of the AAT Act and its detailed provisions relating to review by the Tribunal. However, I have come to the view that these considerations can have no application in the present case. S 176(1), cited above, indicates that the AAT Act is to apply only in relation to "reviewable decisions". "Reviewable decisions" are defined by s 174(1) as meaning decisions "in respect of which application may be made to the Administrative Appeals Tribunal under s 175". Consequently it is, in my view, necessary to determine whether a decision falls within the meaning of s 175(1) (a) or (b) before it can be found that that decision is amenable to the review provisions of the AAT Act. So far as the V.E. Act is concerned it is only in respect of decisions falling within s 175(1) that application for review may be made to the Tribunal. I am therefore of the view that considerations based upon the meaning and structure of the AAT Act can have no bearing upon the construction of s 175(1)(b) which is the only legislative source for the definition of a "reviewable decision" under s 176(1).
In my view the wording of s 175(1)(b) can lead only to one conclusion, namely that an application for review to the Tribunal must embrace the totality of the decision or decisions made by the Board in place of the decision which it has set aside.
The stated case should be answered in the affirmative. I agree that, as the point is a novel one and involves a question of principle in relation to recent legislation, there should be no order as to the costs of proceedings in this court.

[1989] FCA 186

03 MAY 1989

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Veterans' Affairs