Oldmeadow v Repatriation Commission

Case [2013] FCA 423

FEDERAL COURT OF AUSTRALIA

Oldmeadow v Repatriation Commission [2013] FCA 423

Citation: Oldmeadow v Repatriation Commission [2013] FCA 423
Appeal from: Oldmeadow v Repatriation Commission [2012] AATA 691
Parties:

RONALD OLDMEADOW v REPATRIATION COMMISSION AND ADMINISTRATIVE APPEALS TRIBUNAL
File numbers: NTD 27 of 2012, NTD 34 of 2012
Judge: MANSFIELD J
Date of judgment: 10 May 2013
Catchwords:

DEFENCE AND WAR – veterans’ affairs – entitlement to pension – whether funding by Administrative Appeals Tribunal that veteran did not work for continuous period of 10 years erroneous – consideration of evidence before Tribunal – Tribunal did not err in its finding

ADMINISTRATIVE LAW – veterans’ disability pension claim –Veterans’ Review Board found applicant ineligible because one criterion not established – Administrative Appeals Tribunal review found that criterion was established, but another criterion not considered by the Board was not – whether Tribunal review confined to matters considered by the Board – Tribunal reviews whole of decision, even if that involves considering matters not considered by original decision-maker

Legislation: Veterans’ Entitlements Act 1986 (Cth) ss 70, 24, 25, 175, 176
Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 43
Administrative Decisions (Judicial Review) Act 1976 (Cth) s 5
Census and Statistics Act 1905 (Cth) s 7
Statistics Regulations 1983 (Cth) reg 3
Public Service Act 1999 (Cth)
Cases cited:

Bramwell v Repatriation Commission (1998) 158 ALR 623 followed
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 followed
Fitzmaurice v Repatriation Commission (1984) 51 ALD 297 followed
Stewart v Repatriation Commission [2002] FCA 316 followed
Kowalski v Repatriation Commission [2009] FCA 794 cited
Sutherland v Repatriation Commission [1996] FCA 1265 distinguished
Repatriation Commission v Stafford (1995) 56 FCR 132 followed
Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (New South Wales) (1978) 1 ALD 167 considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed
McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 cited
Luu v Renevier (1989) 91 ALR 39 cited
Date of hearing: 1 March 2013
Date of last submissions: 25 February 2013
Place: Adelaide (via video link to Darwin)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 50
Counsel for the Appellant: N Aughterson
Solicitor for the Appellant: Pipers Barristers and Solicitors
Counsel for the Respondents: T Anderson
Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 27 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RONALD OLDMEADOW
Applicant
AND:

REPATRIATION COMMISSION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

10 MAY 2013

WHERE MADE:

ADELAIDE (VIA VIDEO LINK TO DARWIN)

THE COURT ORDERS THAT:

1.The application by way of appeal is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 34 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

RONALD OLDMEADOW
Applicant
AND:

REPATRIATION COMMISSION
First Respondent

JUDGE:

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AGLC
Oldmeadow v Repatriation Commission [2013] FCA 423
Case
[2013] FCA 423
Decision Date

CaseChat Overview and Summary

The case of Oldmeadow v Repatriation Commission involved Mr Oldmeadow, a veteran, who sought a review of the Repatriation Commission's decision regarding his entitlement to a special rate of pension. The Commission had determined that Mr Oldmeadow was ineligible for the pension because he did not meet a specific criterion regarding the duration of his employment. Mr Oldmeadow appealed this decision to the Administrative Appeals Tribunal (AAT), which affirmed the Commission's decision. Dissatisfied, Mr Oldmeadow further appealed to the Federal Court of Australia, arguing that the AAT had erred in its determination of certain facts and in its jurisdictional scope.

The primary legal issue before the court was whether the AAT had the jurisdiction to review the Commission's decision on the merits, including making findings on facts not explicitly considered by the Commission. Specifically, the court had to determine if the AAT could consider whether Mr Oldmeadow had worked continuously for 10 years, a fact the Commission did not explicitly address. Additionally, the court had to assess if the AAT's decision-making process was flawed, including whether it considered relevant evidence and exercised its powers appropriately.

The court held that the AAT had the jurisdiction to review the Commission's decision on its merits, not just the reasons for the decision. The court emphasized that the AAT is empowered to make a decision afresh, which includes addressing all relevant facts and criteria. It found that the AAT did not err in its consideration of the evidence or in its determination of the facts. The court also clarified that the AAT's review of the Commission's decision was not confined to the issues specifically addressed by the Commission, but rather it could consider all relevant matters to make a well-rounded decision.

The Federal Court dismissed Mr Oldmeadow's appeal, affirming the AAT's decision. The court's ruling underscored the AAT's broad jurisdiction in reviewing decisions and its ability to make findings on facts not previously considered by the original decision-maker, provided it acts within its statutory powers and considers all relevant evidence.

Orders

Orders of the court

1. The application by way of appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1 The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note that the Commission made no submission that it was not appropriate for the two applications to be brought in respect of the Commission decision or whether in fact the grounds available under the ADJR Act provide an alternative more extensive suite of potential grounds to set aside the AAT decision than s 44 of the AAT Act.THE DECISION UNDER REVIEW The AAT reasons are short. The factual issue raised by the preliminary issue was whether Mr Oldmeadow started work at the ABS on 9 May 1993 or on 20 or 27 September 1993. If it was the first date, as the VRB accepted, the 10-year requirement in s 24(2A)(g) was satisfied; if it was either of the latter dates, he did not satisfy that criterion by a few months. After the introductory comments, the AAT said:Mr Oldmeadow gave evidence at the hearing in Darwin. I accept he was an honest witness who did his best to assist the Tribunal. He did not have a clear recollection of the dates but said he recalled starting work at the ABS in the early part of 1993. He said he recalled undertaking some training in or around May 1993 with the ABS and he recollected starting full-time work at around the same time.I was also provided with a copy of a certificate of service signed by an officer in the Darwin office of the ABS dated 10 September 2003. That document says the applicant commenced work at the ABS on 9 May 1993.The respondent produced a number of records supplied by the ABS, including a letter of appointment dated 27 September 1993 and a signed Undertaking of Fidelity and Secrecy which was also dated 27 September 1993. Ms Hinrichsen from the ABS explained in a letter dated 20 January 2012 (exhibit 8) that Mr Oldmeadow would not have been able to commence work without signing the Undertaking document. The other ABS records (apart from the certificate of service that originated from the Darwin office) suggest he started work in September, not May. In those circumstances the decision under review must be affirmed.THE ISSUES In the application under s 44 of the AAT Act, Mr Oldmeadow raises the question whether the AAT acted within its jurisdiction (perhaps power is a better word) in considering whether, when he stopped work, he had been working for a continuous period of 10 years. That is, did it have the jurisdiction or power to consider and determine the “preliminary question”. He points out that the Commission did not consider that question, and his application to the VRB and to the AAT did not seek review “in relation to” that question. In the application under the ADJR Act, Mr Oldmeadow now complains that:(1)the AAT did not have the jurisdiction or power to consider and determine whether the criterion in s 24(2A)(g) was satisfied, and so s 5(1)(c) of the ADJR Act was enlivened (in substance, the same error as the error of law argued under s 44 of the AAT Act); (2)the AAT committed an error of law and improperly exercised its power so as to enliven s 5(1)(e) of the ADJR Act, because:(a)it took into account irrelevant considerations because it based its decision on material which did not and could not reasonably support its conclusion; and(b)it failed to take into account relevant considerations because it failed to have regard to relevant and significant evidence;(3)the AAT improperly exercised its power, by doing so in a way that was so unreasonable that no reasonable person could have so exercised the power, contrary to s 5(1)(e) and (2)(g) of the ADJR Act; and(4)the AAT made the finding of fact on the criterion in s 24(2A)(g) of the VE Act without any evidentiary basis for that finding, contrary to s 5(1)(h) and 5(3) of the ADJR Act.

Ratio Decidendi

Legal Principle Established

The Commission said that the matters raised in (3)-(4) really are no more than an attempt to undertake a merits review of the finding of fact of the AAT. I note also that a complaint based on s 5(1)(a) of the ADJR Act was not pursued.CONSIDERATION I do not accept that the AAT was not entitled to consider and determine, on its review of the decision of the Commission by the application of Mr Oldmeadow, whether it was satisfied about the 10-year criterion. The AAT is given jurisdiction to review on the merits decisions of the Commission which have been reviewed by the VRB: s 175 of the VE Act. The jurisdiction is to review the decision of the Commission (as here, as affirmed by the VRB). It is not confined to reviewing the correctness or otherwise of the reasons for the decision. Section 176 of the VE Act provides then that the relevant provisions of the AAT Act apply. Section 43 of the AAT Act says that, on review, the AAT has all the powers and discretions of the Commission and it must make a decision affirming, varying or setting aside the decision under review with consequential orders. The decision of the Commission was that Mr Oldmeadow was not entitled to the special rate of pension under s 24 of the VE Act. In Bramwell v Repatriation Commission (1998) 158 ALR 623 (Bramwell), Weinberg J at 631 clearly indicated that, as s 43(1) and (6) of the AAT Act indicate, it is the decision of the Commission and not its reasons for decision which the AAT is to review. That conclusion followed earlier decisions of this Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Fitzmaurice v Repatriation Commission (1989) 91 ALD 297; and was followed in Stewart v Repatriation Commission [2002] FCA 316. See also Kowalski v Repatriation Commission [2009] FCA 794. The scope of the relief available to the AAT on a review of a decision supports the conclusion that it must consider the decision afresh, and may substitute the correct and preferable decision and not simply be confined to the particular issue addressed by the Commission. If it were satisfied that the reason for the decision of the Commission was wrong (as was acknowledged), if it could not go beyond that issue, it could not substitute the correct or preferable decision. It would need additionally to address the other criteria for qualifying for the special rate of pension. As Weinberg J pithily said in Bramwell at 632, “There is either a hearing de novo, or there is not”. The decision of Sutherland v Repatriation Commission [1996] FCA 1265 relied on by Mr Oldmeadow is, in my view, distinguishable from the present circumstances. That case decided that, on a review under s 175 of the VE Act, the AAT could not address a decision different from that made by the Commission. In that case, the AAT had decided that the veteran’s spinal condition was not war-caused, when the claim considered by the Commission did not include a claim based on the veteran’s spinal condition: see at [5].