Harris, Maxwell George v Repatriation Commission
[1996] FCA 770
•30 AUGUST 1996
CATCHWORDS
VETERANS' AFFAIRS - veteran in receipt of pension - Veterans' Review Board finding further condition war caused - remitter by Veterans' Review Board to Commission for assessment of rate of pension - whether Commission bound by earlier rating for other conditions
Veterans' Entitlement Act 1986 (Cth): ss 18(2), 19(7), 21A(1), 22(4)(c), 29(4) and 139(4)
Maxwell George Harris v Repatriation Commission
(No. TG 14 of 1996)
Judge: Heerey J
Date: 30 August 1996
Place: Melbourne (heard in Hobart)
IN THE FEDERAL COURT OF AUSTRALIA )
)
TASMANIA DISTRICT REGISTRY ) No. TG 14 of 1996
)
GENERAL DIVISION )
B E T W E E N:
MAXWELL GEORGE HARRIS
Applicant
- and -
REPATRIATION COMMISSION
Respondent
JUDGE: Heerey J
DATE: 30 August 1996
PLACE: Melbourne (heard in Hobart)
MINUTES OF ORDER
The Court orders that:
Application is dismissed.
Applicant pay the respondent's costs including reserved costs
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
TASMANIA DISTRICT REGISTRY ) No. TG 14 of 1996
)
GENERAL DIVISION )
B E T W E E N:
MAXWELL GEORGE HARRIS
Applicant
- and -
REPATRIATION COMMISSION
Respondent
JUDGE: Heerey J
DATE: 30 August 1996
PLACE: Melbourne (heard in Hobart)
REASONS FOR JUDGMENT
This application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeks an order of review of a decision made by the Repatriation Commission on 25 May 1995 which assessed impairment ratings for each of the veteran's accepted disabilities and assessed pension at 80 per cent of the general rate. However because the Commission applied the non reduction provisions of the Guide to the Assessment of Rates of Veterans' Pensions (4th edition) (GARP), pension continued to be payable to the veteran at 100 per cent of the general rate.
The essential complaint of the veteran is that in its decision under review the Commission reduced impairment ratings which had been assessed at 60 points by a delegate of the Commission on 14 December 1992. Specifically in its decision under review the Commission varied ratings as follows:
Impairment of spine and limbs - 25 (formerly 30)
Hypertension - nil (previously not accepted)
Emotional and behavioural disorders - 20 (formerly 25)
Renal function - nil (previously not accepted)
Skin disorders - 5 (previously 10)
The combined impairment converted to a value of 45.
The veteran on 21 June 1995 appealed to the Veterans' Review Board. On 20 November the Board affirmed the decision of the Commission. The veteran appealed to the Administrative Appeals Tribunal which on 29 April 1996 affirmed the decision of the Board. By its reasons delivered on 14 June the Tribunal assessed the veteran's lifestyle rating at 5 points. Thus he did not satisfy the requirement of a lifestyle rating of at least 6 points which is a mandatory requirement for extreme disablement adjustment: s 22(4)(c). Therefore the Tribunal indicated that it did not need to hear further submissions or make a determination on the veteran's impairment rating, which had to be at least 70 points.
The veteran has not sought to appeal from this decision of the Tribunal. Instead he sought and was granted leave to seek an order for review out of time against the Commission's decision of 25 May 1995. I might say that I granted the extension of time with some hesitation, not least because the veteran's case is a hypothetical one. He would get no practical benefit unless and until his lifestyle rating reached 6 points by some future assessment and his impairment rating reached at least 70 points,
in other words was more favourable than he had prior to the decision complained of.
In any event, I am satisfied that the grounds for attack on the decision under review are not made out.
Because the parties are, on the one hand, the Commission itself and on the other hand a veteran represented by a practitioner with extensive experience in this field, it will not be necessary for me to refer in any detail to the structure and terms of the Act or the operation of GARP.
The first ground of the application was that the Commission did not have jurisdiction to make the decision. I do not accept this. The Board, after determining that the Commission's decision that the veteran's hypertension was not war-caused should be set aside, substituted as its decision
that the condition is war-caused as defined in s 9 of the (Act);
that the Commonwealth of Australia is liable pursuant to s 13 of the Act to pay pension for any incapacity arising from that condition from and including 15 November 1993; and
to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid.
It is fundamental that the Act does not fix rate of pension according to any particular condition or a disability. Pension rate depends on impairment. The rate of pension was the "matter" which was remitted to the Commission under s 139(4). Upon that remitter s 18(2) applies. Relevantly s 18(2) provides
Where the Board ... makes a decision remitting to the Commission a matter, being
(a)The assessment of the rate, or increased rate, at which a pension is payable under this Part
(b) ...
it is the duty of the Commission to determine that matter having regard to the provisions of this Act and the reasons of the Board ... for that decision.
Contrary to the submissions on behalf of the veteran, there is no "appropriate rate of pension for hypertension" and the question of determining any such rate was not what was remitted by the Board to the Commission.
The second ground of the application is that the decision involved errors of law in that
(a)it failed to comply with the provisions of paragraph 4 of the revocation of the GARP (3rd edition) [sic] [presumably the 4th edition];
(b)it reduced the degree of incapacity for some of the applicant's accepted disabilities from those determined in the Commission's decision of 14 December 1992;
(c)it ignored the provisions of s 50(a) of the Acts Interpretation Act 1901 (Cth).
These arguments relate to the terms of GARP. Under instrument No. 6 of 1994 ("the instrument") the Commission on 2 June 1994 revoked the GARP dated 20 May 1992. Paragraph 2 of the instrument provided that where, on or after 4 July 1994, the Commission
... is required to assess or reassess, or review the assessment or reassessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the GARP are binding on the Repatriation Commission ... in and in connection with, the carrying out by it of that assessment, reassessment or review, and the assessment, reassessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the Guide.
Paragraph 3 provides that para 2 of the instrument
applies to the assessment, reassessment or review of the assessment or reassessment whether the proceedings in relation to the assessment, reassessment or review of the assessment or reassessment commenced before, on or after 4 July 1994.
Paragraph 4 provides:
The...Commission ... shall not, in the course of reassessing or reviewing the assessment or reassessment of the rate at which a pension is payable, determine, as the degree of incapacity of the person to whom that pension is payable, a percentage that is less than the percentage of the general rate of pension constituted by the rate at which that pension was, immediately before 4 July 1994, payable unless ...
There then follow certain exceptions none of which are relevant to the present case.
The provisions of GARP were binding on the Commission: s 29(4). The degree of incapacity had to be determined in accordance with GARP: 21A(1), as also did the impairment rating for the purposes of extreme disablement adjustment: s 22(4)(c).
Also s 19(7) makes it clear that where a person already has a pension and a claim is accepted in respect of a new injury or disease, the Commission shall not
grant a separate and additional pension to the claimant in respect of incapacity resulting from the (new) injury or disease ... but the Commission shall, having regard to any incapacity resulting from the injury or disease (both previous and existing), ...
(d)if the complainant is in receipt of a pension under Part II ... reassess the rate of that pension in accordance with the preceding provisions of this section.
I agree with the submission of counsel for the Commission that the effect of s 19(7) is that the Commission is to reassess the amount of the existing pension in the light of its allowance of the new claims.
Paragraph 4 of the instrument protects the percentage rate of pension, not the impairment rating in respect of individual conditions. It is the "degree of incapacity of the person to whom that pension is payable" which must be a percentage not less than the percentage of the general rate of pension payable immediately before 4 July 1994. In the present case that was 100 per cent and the Commission correctly determined that the veteran should continue to receive 100 per cent pension instead of a pension of 80 per cent which would otherwise have been payable on the basis of the impairment and lifestyle ratings found by the Commission. In the Board's decision of 20 November 1995 in reference to the instrument it was said
It was the Board's view that this instrument clearly applied to the determination of a rate of pension and not the impairment ratings themselves. Indeed, the decision of the delegate and the matter before the Board refers to the non-reduction provisions quoted above as preserving the veteran's rate of pension at 100 per cent of the General Rate, notwithstanding that a lesser rate had been determined. The Board accepted that the thrust of the advocate's argument was that impairment rating was an important factor in the veteran achieving pension at the Extreme Disablement Adjustment but found no provision under the Act for the preservation of impairment points per se.
In my view that construction of the Act is correct for the reasons already given.
Since the instrument makes explicit provision for the preservation of some rights, i.e. the rate of pension, there is no room for the provision of s 50 of the Acts Interpretation Act.
The application for review will be dismissed with costs including reserved costs.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.
Dated:
Associate
Appearances
Counsel for the applicant: Mr R M Webster
Solicitor for the applicant: R M Webster
Counsel for the respondent: Mr N J D Green
Solicitor for the respondent: Australian Government
Solicitor
Date of hearing: 9 August 1996
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