Marsh, T.J. v The Repatriation Commission

[1986] FCA 300

RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY j No. G 47 of 1986

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GENERAL DIVISION	1
ON APPEAL FROM THE VETERANS
APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :

THOMAS JOSEPH MARSH

Applicant

AND :	THE	REPATRIATION
COMMISSION

Respondent

- DATE: 20 June 1986

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an appeal, brought under S. 44 of the

Administrative Appeals Tribunal Act	1975, from a decision of the
Administrative Appeals Tribunal.	The Administrative Appeals

Tribunal hkt-dt_pwk'ed to review a purported decision of a delegate of the Repatriation Commission, Mr. R. Milligan, of 6

June 1985. Mr. Milligan had purported to review "a determination

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by a delegate of the Repatriation Commission on 19 December 1984

that (the present appellant) did not 'serve in a theatre of war'

as defined in S . 23 of the Repatriation Act" (see paragraph 1 of

the Statement of Reasons of Mr. Milligan, which is dated 6 June

1985).

Mr. Milligan expressed his determination in the

following terms:

"The (present appellant) did not 'serve in a

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theatre of war' as defined in S. 23 of the Repatriation Act, and is therefore not

eliairble for the arant of a service Dension -

under the provisions of S. 84 of the

Repatriation Act ."

(It appears the reference	to section 84 was in error, section 85
being intended.)

Prior to 19 December 1984 there had been an application

by the present appellant for a- service pension. In relation to

that application there was and is no dispute that he was at all relevant times permanently unemployable, and that he had served in the Royal Australian Air Force between February 1944 and April

1946.

The question whether he was entitled to a service

pension turned on whether or not he had fulfilled the

qualification expressed in	S.	8 5 ( 2 ) by the words "has served in a
theatre of war".

The appeal papers included document a from the

departmental file which is headed "Summary of Disability/Service

Pension Case submitted to Commission", refers to the appellant, contains a recommendation dated 18 December 1984 in the following

terms: "Submitted for determination that veteran did not serve in

a theatre of war", and concludes with a section which I will

quote in full, as follows:

"Decision of Commission - The member did not

serve in a theatre of war as defined in S.-

of the Repatriation Act, as he did not leave

Australia until after 2 September 1945.

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B. Finlay, Delegate.

(There was a signature appended which appears i

also to read	B. Finlay)
Date 19.12.84."

The submission put on behalf of the Repatriation

Commission by Mrs. Flemming, of Senior Counsel, is that the purported appeal dealt with by Mr. Milligan was incompetent as there was no provision for rev'iew, applicable as at 19 December

1984; and that the purported decision by the Administrative Appeals Tribunal was also incompetent, because there is no provision for a review by it applicable in the circumstances, and

also because, if it had been open to the appellant to seek a

review by the Administrative Appeals Tribunal, the only power of

the Administrative Appeals Tribunal would have been to set aside

Mr. Milligan's decision as incompetent.

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These submissions turn on the date of the decision of 19

December 1984. At that time there was no provision for review of

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a decision to grant, or not to grant, a service pension sought

under either S. 84 or S. 85 of the Repatriation Act 1920.

On 1 January 1985, Act No. 97 of 1984, which amended the

Repatriation Act, came into force. By S. 9OC, inserted into the

Repatriation Act by that Act, provision was made for review of such a decision made under the provisions of the amending Act, but, of course, the decision made on 19 December 1984 could not

have been made under the provisions of the amending Act.

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4.

There were transitional provisions in the amending Act,

S . 54(1) of which specifically dealt with the case of "a claim

. .. that had been submitted to a Repatriation Board but not

determined by the Board before the commencing date . .. " It was

submitted that the terms of this provision clearly exclude a case

where there had been a determination before the commencing date.

I Accordingly, it was put that there was simply no basis for the

review upon which Mr. Milligan purported to enter. It was not t

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disputed that Mr. Milligan's power as a delegate related to

review pursuant to the amending Act, and not to the making of

original decisions.

Mr. McInnes, Senior Counsel for the appellant, sought to

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meet these propositions In two ways. Firstly, he put a

submisslon that the decision signed by Mr. Finlay was not a

relevant determination, but only a step to the ultimate decision	I -
of the appellant's application. The proposition was that a	i

letter of 23 January 1985, advising the appellant that he was

"ineligible to apply for the service pension" evidenced the

making of a further decision, which should be assumed to have

been made after 1 January. I am unable to read the document in

this fashion. It seems to	me that the decislon was made on the	i
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only date suggested by the file, namely, 19 December 1984, which, I

as I have already indicated, was specifically referred to by Mr.

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Milligan as the date of the determination he thought he was

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revlewing.

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5.

In Evans v. Friemann 35 ALR 4 2 0 at 431, Fox ACJ, said:

"The making of a decision by a person is a mental process which

may be indicated orally or in writing, or be apparent from action

taken or not taken." It seems to me that it is apparent from the

terms of the minute I have quoted, notwithstanding that it does

not go on specifically to state in words that the application was

rejected, that in fact it wag' a decision which did reject the I

application.

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Senior Counsel for the appellant then referred me to i

Collector of Customs ( N S W ) v. Brian Lawlor Automotive Pty.

Limited 2 4 ALR 307 in support of the proposition that even an

invalid decision may ground jurisdiction in the Administrative

Apppeals Tribunal. The difficulty with this submission is that

the powers of the Administrative Appeals Tribunal, as set out in

S. 4 3 of its Act, are dependent upon the "powers and discretions

that are conferred by any relevant enactment upon the person who

made the decision". It has been held that those powers include the power to declare that a matter is outside the scope of the empowerment, but this cannot enlarge the powers involved so as to enable anything else to be done.

Apart from the absence of any capacity in Mr. Milligan

to review the decision, Mrs. Flemming also relied on the absence

of a right of review by the Administrative Appeals Tribunal in

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this case. Section 107vZW gives a right to apply to the

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Administrative Appeals Tribunal from an affirmat'ion of a decision	I .
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of the Commission made under S . 90A, or from a decision

substituted for such a decision, in either case given under S . 9OC. But since the original decision could not have been made

under S. 90A, nor reviewed under S . 9OC, both of which only came , *

into force	on	1	January 1985, this right cannot be applicable.	I-
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No other provision conferring any right to seek a review by the , . I /

Administrative	Appeals	relied	upon.	Tribunal	was	I
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In the circumstances, I am compelled to uphold Mrs.

Flemming's submission. I am glad to be able to add that the

Commission has shown itself conscious of the unfortunate position

which has been disclosed in this	case, and has agreed to bear the
appellant's costs in any event.

I will make a declaration that the Administrative

Appeals Tribunal had no power to review the decision purportedly made by Mr. Milligan as delegate of the Commission.

I certify that this and the

preceding five (5) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett. !

CL.Alzclk.

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Associate

Dated: 20 June, 1986.

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