Jackson, F.W. v Repatriation Commission

FRANK WILLIAM JACKSON v. REPATRIATION COMMISSION
No. NG196 of 1992
FED No. 412/94
Number of pages - 3
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WHITLAM J

CATCHWORDS

Veterans' Affairs - retrospective operation of decision granting pension - power of Administrative Appeals Tribunal - Veterans' Review Board having affirmed decision to reject claim for pension upon review pending when Repatriation Act repealed.

Veterans' Affairs Legislation Amendment Act 1988, s 53

Veterans' Entitlements Act 1986, s 177(2)

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, s 21

Re Mercado and Repatriation Commission (1991) 14 AAR 443

Repatriation Commission v. Reid (1989) 90 ALR 515

HEARING

SYDNEY, 19 April 1993
#DATE 30:6:1994

Counsel for the applicant: A.T. McInnes QC

and C.A. Vindin

instructed by Vardenega Roberts

Counsel for the respondent: S.J. Gageler

instructed by Australian Government Solicitor

JUDGE1

WHITLAM J The applicant, Frank William Jackson, appeals from a decision made by the Administrative Appeals Tribunal ("the Tribunal") under the Veterans' Entitlements Act 1986 ("the Act"). On 11 February 1992 the Tribunal granted Mr Jackson a pension under Part II of the Act and fixed 1 August 1984 as the date from which payment of the pension was approved. Mr Jackson challenges that part of the decision approving 1 August 1984 as the effective date of payment of the pension. The essential background to the appeal may be shortly stated.

On 15 April 1983 Mr Jackson lodged a claim for pension under the Repatriation Act 1920. The claim was rejected by a Repatriation Board, and on 1 November 1984 Mr Jackson appealed to the Repatriation Commission ("the Commission") from the Board's determination.
That appeal had not been heard before 1 January 1985, when the Repatriation Legislation Amendment Act 1984 commenced, abolishing the Commission's appeal function. By s 50 of that Act the determination of the Repatriation Board was deemed to be a decision of the Commission, and by s 52 of that Act the appeal was to be treated as an application duly made to the Veterans' Review Board ("the Board") for review of that decision under s 107VC of the Repatriation Act. This much is common ground between the parties.
When the Act commenced on 22 May 1986, the Board had not completed its consideration of the review. Part III of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 ("the Transitional Act") dealt with this situation. By s 19(1) of the Transitional Act such a pending application was to be treated as if it were an application made to the Board under s 135 of the Act and was to be heard and determined by the Board accordingly.
On 17 September 1987 the Board affirmed the decision rejecting the claim for pension. Mr Jackson then applied to the Tribunal under s 175 of the Act for a review of that decision.
Before the Tribunal the parties agreed that Mr Jackson was entitled to be granted a pension under the Act. They differed, however, as to the effective date of payment. Mr Jackson contended that the Tribunal's power to specify a date of effect was to be found in s 177(2) of the Act. The Commission submitted that retrospective operation of the Tribunal's decision was governed by s 21 of the Transitional Act. The Tribunal followed the decision of O'Connor P in Re Mercado and Repatriation Commission (1991) 14 AAR 443 and held that s 21 of the Transitional Act applied. Accordingly, it exercised its discretion and fixed the date of 1 August 1984 in accordance with s 21(1A), (3)(b) and (5)(b) of the Transitional Act.
The text of all relevant provisions is set out in Mercado, and the submissions there recorded were effectively repeated before me. I respectfully agree with the conclusion of the learned President in that case, substantially for the reasons which her Honour gives. I wish to add only one observation.
It is important to note that s 21 of the Transitional Act was amended by s 53 of the Veterans' Affairs Legislation Amendment Act 1988, which commenced on 22 December 1988. The amended form of s 21 of the Transitional Act was not considered by Jenkinson J in Repatriation Commission v. Reid (1989) 90 ALR 515 because it was not in force on 27 June 1988 when the decision there under appeal was made.
The application is dismissed with costs.

In the case of Jackson, F.W. v Repatriation Commission, the dispute arose between a veteran, Frank Walter Jackson, and the Repatriation Commission. Jackson sought a pension under the provisions of the Repatriation Act, which was denied. The matter proceeded to the Administrative Appeals Tribunal (AAT), which upheld the initial rejection of the claim. While the appeal was pending, the Repatriation Act was repealed, leading to a reconsideration of the pension eligibility under the new legislative framework. The case was brought before the court to determine the retrospective effect of the decision granting the pension, focusing on the authority of the Administrative Appeals Tribunal and the Veterans' Review Board.

The primary legal issue before the court was whether the Administrative Appeals Tribunal had the power to make a decision that would have retrospective effect, particularly in light of the repealed Repatriation Act. The court was required to consider the scope of the tribunal's powers, the effect of the repeal on pending appeals, and whether the Veterans' Review Board's affirmation of the rejection could stand under the new legislative regime. Additionally, the court had to determine if the tribunal's decision to grant the pension could be applied retroactively to the date when the initial claim was made.

The court found that the Administrative Appeals Tribunal did possess the authority to make a decision with retrospective effect in this context. It held that the tribunal's decision to grant the pension was valid and could be applied retroactively to the date of the original claim. The court reasoned that the repeal of the Repatriation Act did not invalidate the pending decisions of the tribunal. Furthermore, the affirmation by the Veterans' Review Board was deemed to uphold the tribunal's decision, ensuring the pension claim could proceed under the new legislative framework. The court concluded that the retrospective operation of the tribunal's decision was permissible, given the specific circumstances and the need to provide just outcomes for veterans.

The final orders of the court affirmed the tribunal's decision to grant Frank Walter Jackson the pension, with retrospective effect to the date of his initial claim. The court's ruling ensured that the veteran's pension eligibility was recognised under the new legislative provisions, maintaining the integrity of the tribunal's decision-making process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established