Newell, K.V. v The Australian Telecommunications Commission

REPATRIATION COMMISSION v. DONOVAN (1985) 8 FCR 252
Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fisher(2) and Lockhart(1) JJ.

CATCHWORDS

Defence and War - Repatriation - Grant of widow's pension from a specified date by the Repatriation Review Tribunal - Earlier operative date sought - Decision of the Repatriation Commission not to review - Lack of power - Whether review excluded under s 31(3)(a)(i) of the Repatriation Act 1920 (Cth) - Meaning of words "referred to" - Whether decision was a decision "favourable to the applicant" - Repatriation Act 1920 (Cth), ss 31, 107VC, 107VG, 107VH, 107VZB, 107VZC - Acts Interpretation Act 1901 (Cth), s 8.

HEADNOTE

Held (per curiam): (1) Sub-paragraph 31(3)(a)(i) of the Repatriation Act 1920 (the Act) excludes from the operation of s 31 of the Act (which makes provision for review by the Repatriation Commission of certain assessments, decisions or determinations in relation to pension) "a decision of the Repatriation Review Tribunal referred to in s 107VZB" but the only decision to which s 107VZB refers in terms is " . . . a decision of the Tribunal on a review pursuant to an application under s 107VC . . . favourable to the applicant". It does not refer to a decision that may be made consequent upon the exercise of a power of rehearing conferred by s 107VZB of the Act.

(2) The decision of the Tribunal made on 8 March 1983 was a decision made on a review pursuant to an application under s 107VC of the Act and further answers the description that it is favourable to the respondent and accordingly was excluded from review under subpar 31(3)(a)(i) of the Act.

(3) A decision of the Tribunal granting a pension from a specified date, albeit later than the date sought by the applicant for pension, is a single decision and one which is "favourable to the applicant" within the meaning of s 107VZB of the Act.

R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Bastiani v. Repatriation Commission (1985) 60 ALR 557, referred to.

HEARING

1985, May 20-21; August 2. #DATE 2:8:1985
APPEAL

Appeal from a decision of a single judge of the court ordering the appellant to review a decision of the Repatriation Review Tribunal pursuant to s 31 of the Repatriation Act 1920.

R S French, for the appellant: the power conferred upon the Commission by s 31 of the Act as it stood prior to the Repatriation Legislation Amendment Act 1984 did not extend to a power to review any decision under s 107VC of the Act or, if it did, then not where that application was favourable to the applicant within the meaning of s 107VZB of the Act. The specification by the Tribunal pursuant to ss 107VZF and 107 VZG of the date from which its decision is to operate does not constitute an assessment, decision or determination for the purposes of s 31(1) but is a specification in the decision made on review. In any event, s 31 having been now repealed with effect from 1 January 1985, there is no power in the respondent to conduct a review pursuant to its provisions. Section 8 of the Acts Interpretation Act 1901 (Cth) is excluded from application to the Repatriation Legislation Amendment Act 1984 in respect of reviews by the Commission pursuant to s 31 of the Act as it stood before the amendment, by reason of the comprehensive transitional provisions in the Amendment Act.

R J Meadows and P C S van Hattem, for the respondent: section 31(1) of the Act confers a very wide power of review on the Commission, the only constraints being set forth in s 31(3). The words "a decision of the Repatriation Review Tribunal referred to in s 107VZB" mean a decision of the Tribunal pursuant to the rehearing of the proceeding provided for in s 107VZB. Alternatively those words mean a decision of the Tribunal under 107VC which was favourable to the applicant which the relevant decision here was not, being one of a composition of four decisions. Section 8 of the Acts Interpretation Act 1901 preserves the applicant's accrued right of privilege to have the decision reviewed by the Commission notwithstanding the repeal of s 31 of the Act. Alternatively that section preserves the applicant's remedy or the investigation or legal proceedings commenced under s 31 of the Act in respect of her right to receive a pension with effect from a date three months before the application was lodged.

Cur adv. vult

Solicitors for the appellant: Australian Government Solicitor.

Solicitors for the respondent: Freehill, Hollingdale & Page.

CMH

JUDGE1

2 August 1985
BOWEN C.J. and LOCKHART J. This is an appeal from a judgment of a single judge of this Court ordering The Repatriation Commission (the Commission) to review a decision of the Repatriation Review Tribunal (the Tribunal) granting the respondent a pension. The apparent anomaly in the Commission reviewing a decision of the Tribunal can be explained only by reference to the complex provisions of the Repatriation Act 1920 (Cth) (the Repatriation Act) and the history of this matter.

On 5 November 1974 the respondent lodged a claim for a pension following the death of her husband on 29 March 1974 at the age of seventy-seven years. On 5 December 1974 the claim was refused by a Repatriation Board. Between that date and January 1982 the respondent appealed to both the Commission and the War Pensions Entitlement Appeal Tribunal (a body no longer in existence) against the Board's decision and requested reviews of it, but they were all unsuccessful. On 7 January 1982 the respondent appealed to the Tribunal against decisions of the Commission made on 14 March 1975 and 8 December 1981. The earlier decision dismissed an appeal against the decision of the Board rejecting the respondent's claim to a pension. The later decision was a decision of the Commission not to review the respondent's claim to a pension. On 8 March 1983 the Tribunal allowed the respondent's appeal by granting her a pension from 6 April 1981. There is some suggestion in the evidence that the date of the Tribunal's decision is 10 March 1983, but the correct date is 8 March 1983. The Tribunal accepted that the aetiology of the carcinoma that contributed to the deceased's death was unknown and that in the light of the evidence, of amendments to the Repatriation Act and of decisions of the courts on matters arising under the Repatriation Act (including Repatriation Commission v. Law (1981) 147 CLR 635; and Lennell v. Repatriation Commission, (1982) 4 ALN No 29) it could not exclude the relationship of war service. The Tribunal gave as its reason for fixing 6 April 1981 as the date for the commencement of the pension the following:

"The date of effect of the Tribunal decision is set under the provision of s 107VZG(1)(d) of the Act and is a date not more than three months prior to the date on which the application was made under s 31 to the Commission for reconsideration of the Commission decision to refuse the pension claim as the application for review was lodged within the prescribed time under the Act."

Following the judgment of Beaumont J. in The Repatriation Commission v. Morcombe, unreported, 19 September 1983, the respondent's advocate, a Mr Davies, made a further application to the Commission on 7 May 1984 for a review of so much of the Tribunal's decision as fixed the date for the commencement of the pension as 6 April 1981. The respondent sought payment of her pension from the date of the deceased's death, namely, 29 March 1974.
On 18 July 1984 the Commission wrote to Mr Davies saying that it had no power under s 31 of the Repatriation Act to review the decision of the Tribunal of 8 March 1983. Mr Davies made a further submission on behalf of the respondent by letter to the Commission dated 27 July 1984 which was rejected by letter from the Commission to him of 17 August 1984 stating as follows:

"You will be aware that Section 31 is the section which confers the widest review power upon the Commission and that sub-section 31(3) restricts the Commission's review power. The Tribunal's decision in this case was made pursuant to section 107VC. Paragraph 31(3)(i) provides that the Commission cannot review a decision of the RRT referred to in section 107VZB. If you refer to section 107VZB you will find that that section refers to a decision of the RRT on a review pursuant to an application under section 107 VC which is favourable to the applicant. The Commission sought legal advice on the question of its power to review an effective date determined by the Tribunal in another matter. The advice of the Attorney-General's Department is to the effect that the Commission cannot review under the circumstances of this case."

On 14 September 1984 the respondent filed an application with this Court, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act), to review the decision of the Commission that it would not review the Tribunal's decision because the Commission had no power to do so. It was this application that was heard by the learned primary judge who held that the respondent was entitled to the relief sought by her and, in particular, to an order that the Commission review her claim to a pension under s 31 of the Act as it stood before the amendments made by the Repatriation Legislation Amendment Act 1984. The Commission then appealed to this Full Court from his Honour's judgment.
Before turning to his Honour's findings in more detail and to the questions argued before us it is necessary to refer to the relevant provisions of the Repatriation Act, in particular those relating to the primary question involved in the appeal, namely, whether the decision of the Tribunal of 8 March 1983 is "a decision of the Repatriation Review Tribunal referred to in section 107VZB" within the meaning of subpar 31(3)(a)(i) and is therefore excluded from review by the Commission under s 31(1). This is essentially a question of construction of the Repatriation Act. Our references to the Repatriation Act are, of course, to the sections as they stood at the relevant times.
Section 31 provides:

"31(1) Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension) the Commission may review the assessment, decision or determination.

(2) Whenever, in pursuance of the last preceding sub-section, the Commission reviews an assessment, decision or determination, and varies or revokes the assessment, decision or determination, as the case may be, the Commission shall specify the date from which the variation or revocation shall operate and it shall operate accordingly.

(3) This section -

(a) does not apply in relation to -

(i) a decision of the Repatriation Review Tribunal referred to in section 107VZB;

(ii) a decision of the Administrative Appeals Tribunal referred to in section 107VZB in its application by virtue of section 107VZZE;

(iii) a decision of the Repatriation Review Tribunal referred to in sub-section (1) of section 107VZC that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; or

(iv) a decision of the Administrative Appeals Tribunal referred to in sub-section (1) of section 107VZC, in its application by virtue of section 107VZZE, that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; and

(b) subject to section 107VJ and sub-section (2) of section 107VZC, does not apply in relation to an assessment made by a decision to which sub-paragraph (iii) or (iv) of paragraph (a) applies."

Section 107VZB which is mentioned in subpar 31(3)(a)(i) states:

"107VZB. Where a decision of the Tribunal on a review pursuant to an application under section 107VC is favourable to the applicant, the Commission may, within 6 months after the service, in accordance with section 107VK, of a copy of that decision on the Commission -

(a) submit to the Tribunal further evidence that the Commission is satisfied is evidence that would have been relevant to the making of a decision in the proceeding before the Tribunal on that review; and

(b) request the Tribunal to rehear that proceeding,

and the Tribunal may, if it thinks fit, rehear that proceeding accordingly."

Section 107VC is referred to in s 107VZB. It provides:

"107VC. (1) Where the Commission has made a decision refusing a claim by a person for a pension (other than a service pension) or other benefit under this Act arising out of the incapacity or death of a member of the Forces on the ground that -

(a) the member is not suffering from any incapacity;

(b) the incapacity or death of the member has not resulted from any occurrence that happened during the period of his war service, or from his employment in connection with naval or military preparations or operations, or did not arise out of or is not attributable to his war service, as the case may be; or

(c) the incapacity from which the member is suffering or from which he has died has not been contributed to in any material degree, or has not been aggravated, by the conditions of his war service,

that person may, on or after 1 July 1979, make application to the Tribunal for a review of the decision of the Commission.

(2) Where -

(a) the Tribunal, pursuant to an application under sub-section (1) for a review of a decision of the Commission, has made a decision (in this sub-section referred to as 'the relevant decision') affirming that decision of the Commission; and

(b) at any time after the making of the relevant decision, the President, under sub-section (2) or section 107VM, notifies the applicant that, in his opinion, further evidence submitted by the applicant under that sub-section would have been relevant to the making of a decision in the proceeding before the Commission the decision in which was affirmed by the relevant decision,

the applicant may again make application to the Tribunal for a review of that decision of the Commission."

It was common ground that the decision of the Tribunal which the respondent wished the Commission to review under s 31(1) was a decision made pursuant to an application under s 107VC, not a decision of the Tribunal in exercise of the power of rehearing conferred on it by s 107VZB.
The primary judge found that subpar 31(3)(a)(i) excluded from review of the Commission under s 31(1) a decision made by the Tribunal in exercise of the power of rehearing conferred on it by s 107VZB and did not exclude a decision of the Tribunal pursuant to an application under s 107VC which was favourable to an applicant.
His Honour said that, although it was not strictly necessary for him to resolve the other questions in the case, as they were fully argued he would express views on them which he did as follows:

. the specification by the Tribunal of the date from which the pension was to commence was part of the one decision to grant the respondent a pension and was not itself an independent decision. . the decision granting the respondent a pension was a decision favourable to her and was therefore within the language of the opening words of s 107VZB.

. The amendments to the Repatriation Act made by the Repatriation Legislation Amendment Act 1984 did not destroy the respondent's entitlement to an order under the Judicial Review Act that the Commission review pursuant to s 31 of the Repatriation Act, as it stood before the amendments, the Tribunal's decision relating to her pension.

Counsel for the Commission submitted that two classes of decisions of the Tribunal were excluded from review under s 31(1): first, a decision favourable to an applicant given by the Tribunal on a review pursuant to an application under s 107VC (the relevant decision in the present case) and secondly, a decision made by the Tribunal in exercise of the power of rehearing conferred on it by s 107VZB. Counsel for the Commission also submitted that the decision of the Tribunal of 8 March 1983 to grant a pension to the respondent as from 6 April 1981 was favourable to the respondent within the meaning of s 107VZB and therefore fell within the first class of the decisions of the Tribunal excluded from review under s 31(1), so that the Commission must succeed on the appeal.
Counsel for the respondent submitted that:

. The only decisions excluded from review under s 31(1) by the

operation of subpar 31(3)(i) are decisions made by the Tribunal in exercise of its power to rehear an earlier proceeding conferred by s 107VZB and the decision involved in the present case was not such a decision;

. In the alternative, if the decisions excluded from review under s 31(1) include decisions of the Tribunal pursuant to application under s 107VC, which are favourable to applicants, the decision in question in this case was not favourable to the respondent because what had been sought by her was a pension operative from 1974, when she submitted her claim, but what she received was a pension operative from 6 April 1981, she having failed to obtain a pension in respect of the intervening seven years;

. the decision of the Tribunal in question in this case was in truth not one decision but a combination of four decisions each of which was independent of the others, namely:

(1) to set aside the Commission's decision of 8 December 1981 not to review its decision of 15 May 1976 affirming a decision of 14 March 1975 to refuse repatriation benefits to the respondent;

(2) to set aside the Commission's decision of 15 May 1976 and substitute for it the Tribunal's decision that the Commonwealth was liable to pay a pension to the respondent;

(3) pursuant to par 107VZG(1)(e) of the Repatriation Act that the Tribunal's decision operate on and from 6 April 1981; and

(4) pursuant to s 107VK(1) of the Repatriation Act that the Tribunal's decisions and reasons be given orally;

so that the third of those decisions may be isolated from the other three thereby giving further force to the submission that the decision in question was not favourable to the respondent.

The arguments of counsel which we have summarised above all relate to the construction of s 31 and related sections. A separate argument was advanced by counsel for the Commission based on the amendments made to the Repatriation Act by the Repatriation Legislation Amendment Act 1984 which came into effect on 1 January 1985. It was submitted that even if s 31 as it stood before the 1984 amendments had been available to the respondent this was no longer the case because the relief sought by the respondent was an order that the Commission review her claim under s 31. It was argued that the court cannot direct the Commission to conduct a review under s 31 as it stood before 1 January 1985 because that section no longer exists. In the alternative, it was submitted that the court cannot direct the Commission to conduct a review under s 31 in its present form because nothing has happened to give that section any application to the claim for a pension the subject of these proceedings. Counsel for the Commission submitted that the provisions of s 8 of the Acts Interpretation Act 1901 were excluded from application to the Repatriation Legislation Amendment Act 1984 in respect of reviews by the Commission pursuant to s 31 as it stood before the amendments by reason of the transitional provisions in the amending Act itself.

We turn now to the question what decision or class of decisions is excluded from review under s 31 by the operation of subpar 31(3)(a)(i). That sub-paragraph was introduced into the Repatriation Act by the Repatriation Acts Amendment Act 1979 (Cth) (Act No 18 of 1979) which inserted Pt IIIA in the Repatriation Act including ss 107VC, 107VG, 107VH, 107VZB and which added s 31(3) to s 31. Sub-paragraph 31(3)(a)(i) excludes from the operation of s 31 "a decision of the Repatriation Review Tribunal referred to in section 107VZB". On turning to s 107VZB one sees that its opening words refer to ". . . a decision of the Tribunal on a review pursuant to an application under section 107VC . . . favourable to the applicant". The decision so described is the only decision to which the section refers in terms. Thus, according to the ordinary and literal meaning of the language of subpar 31(3)(a)(i) and s 107VZB the subject matter of the sub-paragraph is a decision of the Tribunal on a review pursuant to an application under s 107VC which is favourable to the applicant. This construction of the relevant statutory provisions is in accordance not only with their ordinary and literal meaning but also with the purpose of those provisions discerned from the language and structure of the Repatriation Act itself.
Section 107VC(1) provides for the review by the Tribunal of decisions of the Commission refusing claims by persons for pensions on the grounds therein specified. Where the Tribunal finds against the applicant for a review under s 107VC(1) and affirms the decision of the Commission, the applicant is given a further opportunity to apply to the Tribunal for a review of the Commission's decision in the circumstances mentioned in s 107VC(2) which essentially are that further evidence from the applicant is available with respect to the claim the subject of the Commission's decision. The Tribunal is then empowered to review once again the decision of the Commission previously affirmed by the Tribunal (s 107VC(2)). Sections 107VG and 107VH provide for the conduct of the review by the Tribunal including the requirement that the Tribunal shall set aside the Commission's decision unless it is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application (par 107VH(2)(a)).
Section 107VZB confers upon the Commission the right to request the Tribunal, within a stipulated time, to rehear the proceeding initially before it upon application under s 107VC which resulted in a decision favourable to the applicant. The Commission must submit further evidence to the Tribunal that the Commission is satisfied is evidence that would have been relevant to the making of a decision in the proceeding before the Tribunal on the earlier review. The Tribunal may, if it thinks fit, rehear that proceeding. If the Tribunal decides to embark upon this course the same provisions apply with respect to the conduct of the rehearing by the Tribunal as applied to the review by it under s 107VC including ss 107VG and 107VH.
If subpar 31(3)(a)(i) did not exclude from the Commission's power of review the Tribunal's decision made pursuant to application under s 107VC it may follow that the Commission, having refused the applicant's claim for a pension and following a subsequent application by the applicant to the Tribunal under s 107VC for a review of the Commission's decision which resulted in the Commission's decision being set aside, could then elect either to seek a rehearing of the proceeding by the Tribunal under s 107VZB or itself review the Tribunal's decision under s 31 provided that it appeared to the Commission that under the Repatriation Act sufficient reason existed for that review (s 31(1)). Sub-paragraph 31(3)(a)(i) was designed primarily, in our opinion, to ensure that this unsatisfactory and anomalous result could not arise by confining the Commission, in the circumstances to which we have referred, to its rights under s 107VZB to request the Tribunal to rehear the proceeding. Whether this would in truth be the result without the operation of the sub-paragraph is open to argument (see R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 238); but we do not have to decide that question because the object of the sub-paragraph is as we have stated. Sub-paragraphs 31(3)(a)(ii), (iii) and (iv) show a similar and consistent legislative pattern with respect to the decisions of the Commission and of the Tribunal and of the Administrative Appeals Tribunal on review mentioned in those sub-paragraphs.
It follows that the decision of the Tribunal made on 8 March 1983, being a decision made on a review pursuant to an application under s 107VC, is excluded from review under s 31 provided that it answers the description of a decision that is favourable to the respondent.
The primary judge found that a decision granting a pension is a decision favourable to an applicant and is therefore within the language of the opening words of s 107VZB. His Honour acknowledged that there was some force in the submission on behalf of the respondent that she did not get what she desired in that she desired a pension operative from the time she made her claim and some force in the submission of the Commission that the respondent got what she desired, namely, a pension notwithstanding that it was payable from a later date that she wished. His Honour said that he thought the question was to be resolved by looking at the provisions of the Repatriation Act itself. His Honour said:

"Where a decision is made by the Tribunal on a review under s 107VC, s 107VZG requires that the decision not be expressed to operate from a date earlier than three months before the day on which the relevant claim for pension was lodged. Section 107VZG is part of Division 7 which is entitled 'Date of Operation of Decisions of the Tribunal and Certain Decisions of the Commission'. The opening section in that Division is s 107VZF which empowers the Tribunal to 'specify in a decision on a review under this Part . . . the date from which the decision is to operate, being a date fixed in accordance with this Division'. The legislature has singled out the date from which a decision is to operate as a date which the Commission may specify in a decision. This suggests that, at its highest, the specification of a date is part of a decision and is not a decision of itself."

His Honour found that the decision of the Tribunal of 8 March 1983 was a decision favourable to the respondent. In our opinion this conclusion of the primary judge and the reasons which he gave to support it are correct. We would add, and it is implicit in his Honour's findings, that the Tribunal's decision of 8 March 1983 was relevantly one decision, not a conglomerate of four decisions.
We do not find it necessary to consider the other questions argued on the appeal including the question whether subpar 31(3)(a)(i) also excludes from the Commission's power of review under s 31(1) decisions made by the Tribunal in exercise of the power to rehear an earlier proceeding conferred upon it by s 107VZB itself. We regard this is an open question: see Bott's case (supra).
The appeal should be allowed, the orders of the primary judge set aside, the application for review made by the respondent pursuant to the provisions of the Judicial Review Act dismissed and the respondent ordered to pay the Commission's costs of the application for review and of this appeal.

JUDGE2

FISHER J. In this matter I have had the opportunity to peruse in draft form the joint reasons for decision of Bowen C.J. and Lockhart J. I agree with their conclusions and generally with their reasons. However as we are upholding an appeal from the decision of the learned trial judge it is appropriate that I state my reasons for so doing.

The primary question before us is, as stated by the trial judge, a somewhat narrow question of statutory construction, namely whether the appellant the Repatriation Commission (the Commission) had power to review a decision of the Repatriation Review Tribunal (the Tribunal) fixing the commencement date for payment of a pension. The statutory provision which fell to be construed was subpar 31(3)(a)(i) of the Repatriation Act 1920 (Cth) (the Act). It is desirable to set out in full the provisions of subs (3) of s 31, which specified certain decisions which were excluded from review by the Commission under s 31(1) of the Act. Section 31(3) was as follows:

"(3) This section -

(a) does not apply in relation to -

(i) a decision of the Repatriation Review Tribunal referred to in section 107VZB;

(ii) a decision of the Administrative Appeals Tribunal referred to in section 107VZB in its application by virtue of section 107VZZE;

(iii) a decision of the Repatriation Review Tribunal referred to in sub-section (1) of section 107VZC that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; or

(iv) a decision of the Administrative Appeals Tribunal referred to in sub-section (1) of section 107VZC, in its application by virtue of section 107VZZE, that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; and

(b) subject to section 107VJ and sub-section (2) of section 107VZC, does not apply in relation to an assessment made by a decision to which sub-paragraph (iii) or (iv) of paragraph (a) applies."

It has on all occasions been accepted that the Commission has a wide power of review under s 31(1) though whether such width was intended by the legislature may be a matter for debate (Cf Bastiani v. Repatriation Commission (1985) 60 ALR 557). Prior to 1979, when subs (3) was added to s 31, appeals against decisions of the Commission were to the War Pensions Entitlement Appeal Tribunal or to the Assessment Appeal Tribunal, depending upon the nature of the decision. Section 64 of the Act prior to its repeal provided for such appeals. On the question whether there was at the time any limitation on the power under s 31(1) of the Commission, if sufficient reason existed, to review decisions, subs 64(6A) is significant. Its insertion was apparently considered necessary so as to give the Commission express power, notwithstanding the apparent width of its power under s 31(1), to reconsider certain decisions of the War Pensions Entitlement Appeal Tribunal. This sub-section was as follows:

"(6A) A decision by an Appeal Tribunal under sub-section (3), or under the last preceding sub-section, which is adverse to the appellant does not prevent the Commission reconsidering the claim of the appellant at any time when it appears to the Commission that there are sufficient grounds for so doing."

The system of appeals provided by s 64 was repealed in 1979 and new provisions substituted by Pt IIIA of the Act as it stood prior to amendments thereto in 1984. These amendments are not at this stage relevant to the question of statutory construction. Pt IIIA provided a very different system for appeals from the Commission, substituting the Repatriation Review Tribunal for the previously mentioned Tribunals, and providing in certain specified circumstances for review of decisions of the Commission by the Administrative Appeals Tribunal. Moreover an appeal to this Court was made available on questions of law against decisions of the Tribunal (s 107VZZH) or of the Administrative Appeals Tribunal (s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)). At the same time s 31(3) was enacted, with the obvious purpose of placing some limitations on the power of the Commission to review, in accordance with s 31(1), decisions of the Tribunal and the Administrative Appeals Tribunal. The question of construction in this matter is whether subpar 31(3)(a)(i) imposed such a limitation. It stated that s 31(1) did not apply in relation to -

"(1) a decision of the Repatriation Review Tribunal referred to in section 107VZB." (Emphasis supplied).

Section 107VZB is as follows:

"107VZB. Where a decision of the Tribunal on a review pursuant to an application under section 107VC is favourable to the applicant, the Commission may, within 6 months after the service, in accordance with s 107VK, of a copy of that decision on the Commission -

(a) submit to the Tribunal further evidence that the Commission is satisfied is evidence that would have been relevant to the making of a decision in the proceeding before the Tribunal on that review; and

(b) request the Tribunal to rehear that proceeding,

and the Tribunal may, if it thinks fit, rehear that proceeding accordingly."

Sub-paragraph (1) denied the Commission the power to review the decision "referred to" in s 107VZB. The issue of construction before the trial judge was whether that decision was the decision of the Tribunal under s 107VZB on a rehearing at the request of the Commission or was the decision of the Tribunal under s 107VC which section is specifically mentioned in s 107VZB. He rejected the contention of the Commission that the latter decision was that "referred to" in subpar 31(3)(1)(a) and upheld the contrary submission. His view was that the relevant decision was that made by the Tribunal after a rehearing in the circumstances specified in s 107VZB.
I however have come, after considerable initial reservations, to the contrary view. I can not agree with the trial judge's approach to the effect that the use of the words "referred to" in this and each of the succeeding sub-paragraphs is no more than a "convenient, though perhaps unsatisfactory, method of identifying the particular decision". In my view the use of the words in question was intentional and they were adopted for the purpose of indicating expressly that the legislature did not have in mind a decision by the Tribunal "pursuant to s 107VZB". The emphasis in this instance is that of the trial judge.
I have reached this conclusion by considering whether to read in the succeeding sub-paragraphs the words "referred to" as meaning "pursuant to" is appropriate or even feasible, and after ascertaining the circumstances in which one or other expression is used in other provisions of the Act. Furthermore, in my opinion to read "referred to" in subpar 31(3)(a)(1) as a reference to a decision under s 107VC rather than a decision consequent upon a rehearing pursuant to s 107VZB is more consistent with the obvious purpose of s 31(3) of limiting the Commission's power to review decisions of the Tribunal adverse to its interests.
In my opinion it can not be said that any decision is made "pursuant to" any of the provisions specifically set out in subpars (i) to (iv) of par 31(2)(a). Even in relation to the sub-paragraph in question, no decision is strictly made "pursuant to" s 107VZB. If a decision is made in reliance by the Tribunal upon its powers under that section, that decision is made "pursuant to" s 107VC on the rehearing. Section 107VZB does not empower the Tribunal to make any decision but merely to enter upon a rehearing of the proceeding. This situation is exactly the same under subpar (ii) when it is the Administrative Appeals Tribunal and not the Tribunal which holds the rehearing (s 107VZZE).
A consideration of subpars (iii) and (iv) in each of which the decision referred to is in s 107VZC(1), reinforces this view. No decision, let alone a rehearing productive of a decision, can be identified as being made or held pursuant to that sub-section. It merely provides that a decision by the Tribunal under s 107VD in respect of the assessment of the rate of a pension is, subject to specified exceptions, binding upon an applicant, the Commission and the Board for the periods expressed therein. A rehearing is contemplated by subs 2 of s 107VZC and a decision could be made "pursuant to" subs 3 of that section, but there is nothing empowering a rehearing or identifying a decision which would or could be made under subs (1).
No assistance can be obtained either way from a consideration of par (1)(b) or subs (3) of s 31 as the terminology is, and probably intentionally is, quite different from that in par (a).
It is furthermore my opinion that the legislature intentionally and deliberately used the expression "referred to" rather than "pursuant to" in par (a) of s 31(3). It is significant that the expression "pursuant to", the use of which the trial judge thought would have made the position clearer, is in fact used in the section to which subpar (1) of s 31(3) directs attention, namely s 107VZB. That section expressly refers at the outset to, "a decision . . . on a review pursuant to an application". (Emphasis supplied). The use in subpar (i) of the expression "referred to" rather than "pursuant to" is hardly likely in the circumstances to have been an unintentional and loose use of language. It is more likely that such use was deliberate, and intended to identify the decision as the decision specifically mentioned in the section rather than a decision made in exercise of the power of rehearing given by the section. The same comments can be made in relation to s 107VZC(1) where again the expression "decision . . . pursuant to an application" is used.
The fact that the expression "referred to" is itself used, prima facie deliberately, in other sections of the Act to identify a decision or matter is also confirmatory of my opinion that its use in par (a) is deliberate. I refer to s 107VK where in subs (2) the words "a decision referred to in subs (1)" are used to identify a decision. In subs (3) of that section the words "a matter referred to in paragraph (a), (d) or (j) of sub-section (1) of section 27" are used to identify the particular matter under consideration. Likewise the words "referred to" appear in pars 107VZZE(b) and (c) to identify particular decisions. I also note that in this section as well as in s 107VGB the words "in accordance with" are used in circumstances where they are strictly more appropriate than a "pursuant to" or "referred to". These matters reinforce my view that there has been a careful use of language in Pt IIIA.
For all of these reasons I am satisfied that the words "referred to" in par 31(3)(a) have been carefully and deliberately chosen. It is significant that each of the provisions of the Act to which I have drawn attention in construing par 31(3)(a) appears in Pt IIIA which was enacted at the same time as par 31(3)(a). I see the construction which I have preferred as indicating a consistent use of language in the amending legislation as well as coinciding with the purpose of imposing limitations on the powers of the Commission under s 31(1).
My conclusion is that the decision which is excluded from review by the Commission by virtue of subpar (i) is not a decision of the Tribunal consequent upon a rehearing authorised by s 107VGB. It is a decision of the Tribunal under s 107VC which is favourable to the applicant. If the decision was favourable to the Commission there would be no reason why the Commission should not, particularly if further evidence was available, of its own volition review the Tribunal's decision.
A question which was debated on the appeal was the meaning of the expression "favourable to the applicant". The trial judge was of opinion that if it was necessary to make a finding on this aspect of the case, the decision was "favourable to the applicant" and I agree and with respect adopt his reasoning as well as that of Bowen C.J. and Lockhart J.
In my opinion the appeal must be allowed, the application by the respondent for a review of the Commission's decision dismissed and the respondent must pay the Commission's costs of that application and this appeal.

ORDER

Appeal allowed

[1985] FCA 371

02 AUGUST 1985