Repatriation Commission v Donovan, E.M

CATCHlqORDS

PeDatriation - Pension

claim

widow

refused

Repatrlation

Commission then uranted on appeal by Repatrlation Review Tribunal

Application for review by Commisslon of

so much of Tribunal's declsion

as related to date of

commencement of penslon - whether such decision

excluded

from

review

Commission

under

sub-para.

31(3)(a)(i)

Repatrlation Act

1920 by reason of its being

"a decision of the

Repatriation Review Tribunal referred to in section 107VZB"

- whether

a decision grantins a pension operative from a date later than that

claimed is a decision favourable to the applicant.

Repatriation Act 1920, s s .

31, 107VZB. 107VC

PEPATPIATION COMMISSIQN	v. ETHEL MAUDE DONOVPA
MAG 28 cf 1985

CORW:	Bowen C.J., Fisher and Lockhart JJ.
2 August 1985
Sydney

l. -

..-

IN THE FEDERAL COURT

OF AUSTRALIA )

WESTERN AUSTRALIA	)	No.	KAG	28 of 1985
)
DISTRICT REGISTRY	)
)
GENERAL DIVISION	)

ON APPEAL FROM A SINGLE JUDGE	OF THE
FEDERAL COURT OF AUSTRALIA

THE REPATRIATION COMMISSION

Appellant

ETHEL MAUDE DONOVAN

Respondent

JUDGES MAKING ORDER:	B O W C.J.,	FISHER, and LOCXHART JJ.
WHERE MADE:	SYDNEY

DATE OF ORDER:

2 AUGUST

1985

MINUTE OF ORDER

THE COURT ORDERS

THAT:

The appeal

allowed.

2 .	The orders dated	1	March 1985 of	the prlmary Judqe be set
aside.

The application for review

made by

Ethel

Maude

Donovan

pursuant to the provisions

of the Administratlve Decisions

(Judicial Review) Act, 1977 be

dismissed.

Ethel

Maude

Donovan pay to

the

Repatriatlon

Commission

its

costs of the appllcation

for review and

of this appeal.

NOTE:

Settlement and entry

of orders is dealt with in Order

36 of

the Federal Court Rules.

. .

IN THE FEDERAL COTJRT OF AUSTRALIA

)

WESTEP.N AUSTRALIA

)

No.

WAG 28 of 1985

REGISTRY	DISTRICT	1
)
GENERAL DIVISION	)

ON APPEAL

F R O M A SINGLE JUDGE

OF THE

FEDEPAL COURT

OF AUSTRALIA

THE REPATRIATION COMMISSION

Appellant

ETHEL MAUDE DONOVAN

Respondent

Bowen C.J., Fisher, and Lockhart	JJ.
2 August 1985

REASON5 FOR JUDGMENT

BOWEN C.

J. and LOCKHART J.

This is an appeal from a Iudument of a sinule Judqe of this

Court

ordering

The

Repatriation

Commission

("the Commission") to

review a decision of the

Repatrmtion Review Trlbunal !"the Tribunal")

granting

the

respondent a penslon. The apparent

anomaly

the

Commission reviewing a decision

of the Tribunal can be explalned only

by reference

to the complex provisions of the Repatriation Act 1920

("the Repatriation Act") and the history

f thls matter.

. ..

On S November 1974 the respondent lodged

a claim for a

pension following the death of her husband

on 29 March 1974 at the age

years.

December

l974

the

claim

was

refused

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

renews 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

pension.

The later

decislon

was

declsion

of the

Commission

not

to review

the

respondent's claim to

a penslon. On 8 March 1983 the Tribunal allowed

the respondent's appeal by granting her

a pension from 6 April 1981.

There

1 s

some suqgestlon

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

the

Repatriation

Act

and

decisions of the courts on matters arlsing under the Repatriation Act

(including Repatrlatlon Commisslon v. Law (1981) 147 C.L.R. 635; and

Lennell v.

Repatriation Commission, an unreported judgment of a Full

Federal Court, 3 February 1983,

4 A.L.N. 29) it could not exclude the

relationship of war service.

The Tribunal gave as its reason for

fixing 6

April 1981 as the date f o r the commencement of the pension

the following:

“The date

of effect of

the Tribunal decision

is set

under the provision of Section 107VZG(l)(d) of the

Act and is a

date not more than three months prior

to the date on which the application was made under the Commission decision to refuse the pension claim as the application for enew 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 Trlbunal of 8 March 1983. Mr.

Davies made a further

submission on behalf of the respondent by letter

the Commission

dated 27 July 1984 which was rejected by letter from the Commlssion 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 Commisslon

cannot review a decision of the

RRT referred to In

section 107VZB. If

you refer to section 107VZB you

wlll find that that sectlon refers to a decision of the RRT on a review pursuant to an application under section 107VC 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 1 s to the effect

that

Commission

cannot

review

under

the

circumstances of this case.''

On 14 September 1984 the respondent filed an application with

thls Court, pursuant to the Administrative Decisions (Judicial

Renew)

P.ct 1977 ("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.

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

Leuislation Amendment Act

1984.

The Commission then appealed to this

Full Court from his Honour's

~udgment.

Before turning to

his Honour's findings in more detail and

the questions argued before

it is necessary to refer to the

relevant provisions of the Repatriation

Act,

in partlcular those

relating

to the primary question involved in the appeal, namely,

whether the decision

of the Trlbunal of

8 March 1983 is

"a decision of

the Repatriation Review Tribunal referred to in section

107VZB" within

the meaning

of sub-para. 31(3)(a)(i) and is therefore excluded from

review by

the Commission under sub-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	a
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

pension

(other

than

service

pension) the Cornmission may review the assessment,

decision or determination.

( 2 )

Whenever,

pursuance

the

last

preceding sub-section, the Commission reviews an assessment, decision or determination, and varies

or revokes

assessment,

the

decision

determination, as

the case may be, the Commission

shall specify the date from which the variation or

revocation

shall

operate

and

shall

operate

accordingly.

( 3 )

This section -

(a) does not apply in relation to

a decislon of the Repatnation Review

Tribunal referred to in section 107VZB;

a decision of the

Administrative

Appeals Tribunal referred to in section

107VZB in its application by virtue of

section 107VZZE;

a decision of the Repatriation

Review

Tribunal referred to in sub-section	(1)
of section 107VZC that is binding	on

the

Commission

reason

that

the

appropriate period specified in that

sub-section has not expired; or

decision

the

Adminlstrative

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

reason

that

the

appropriate period speclfied 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

decision

whlch

sub-paragraph

(iii) or (iv) of paragraph (a)

applies.

6 .

Section 107VZB

which is mentioned in sub-para. 31(3)(a)(i)

states:

"107VZB. Where a decision of the Tribunal on a

review pursuant to

an application under section

107VC

favourable

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

the

Tribunal

further

evidence

that

the

Commission

satisfied

evidence that would have been relevant to

the making of a decision in the proceeding

before the Tribunal on that review; and

(b) request

Tribunal

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

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

death of a member of the Forces on

the ground that-

the

member

not

suffering

from

any

incapacity;

the incapacity

or death of the member has

not

resulted

from

any

occurrence

that

happened

during

the

period

his

war

service, or from

his

employment

connection with

naval

or military

preparations or

operations,

did

not

arise out of or is not attributable to	h1s
war service, as the case may be; or

the incapacity from which

the member

1 s

suffering or from which he has died has not

been contributed to in any material

degree,

or has

not

been

aggravated,

the

condltions 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

the

Commission,

has

made

decision (in this sub-section referred to

'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

the

applicant

under

that

sub-section would have been relevant to the

making

of a

decision

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

Commisslon.

It was common ground that the decision of the Tribunal which

the respondent wished the Commission to review under

sub-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 rehearlng

conferred on it by S . 107VZB.

The primary Judge found that sub-para. 31(3)(a)

(i) excluded

from revzew of the Commisslon under

sub-S. 31(1) a decision made by

the Tribunal in exercise of the power of rehearlng 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

e 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

the

Repatriation

Act

made

the

Repatriation Leqislation 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 Repatrlation Act, as it stood before the amendments, the

Tribunal's decision relating to her penslon.

Counsel for the Commission submitted that two classes of

decisions of the Tribunal were excluded from review under

sub-S.

31(1):

first, a decision favourable to an applicant given

by the

Tribunal on

a review pursuant to an applicatlon under

S. 107VC (the

relevant decislon in

the present case) and second, a decislon 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

B 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

sub-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 sub-S. 31(1) by the operation of sub-para. 31(3)(a)(i) are decisions made by

the Tribunal in exercise of its power.to rehear

an earlier

proceeding conferred by

107VZB and the decision involved

in the present case was not such

a decision;

In the alternative,

if the decisions excluded from review

under sub-s. 31(1) include decisions of the Tribunal pursuant

application

under

S .

107VC, which are favourable

applicants, the decision in question in thls case

was

not

favourable to the respondent because what had been sought

her was a pension operative from 1974, when she submitted her

claim, but what she received was a pension operative from

April 1981, she having failed to obtain a pension in respect of the intervening seven years:

10.

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

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 para. 107VZG(l)(e) of the Repatriation Act

that the Tribunal's decision operate on and from

6 April

1981; and

(4) pursuant to sub-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.

11.

The arguments of counsel which

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

the

amendments

made

the

Repatriation

Act

the

Repatriation

Leqislation 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

these proceedings'.

Counsel for the

Commission

submitted

that

the

provisions

S .

the Acts

Interpretation Act 1901

were

excluded

from

application

the

Repatriation Lesislation 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

class of

decisions is excluded from review under

S .

31 by the operation

sub-para. 31(3)(a)(i). That sub-paragraph was introduced into the

Repatriation Act by the Repatriation Acts Amendment Act 1979

(Act No.

18 of 1979) xhich inserted Part IIIA in the Repatrlation Act lncludinq

ss . 107VC, 107VG. 107VH, 107VZB and which added sub-s.

31(3) to S. 31.

12.

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

application under section 107VC

... favourable to the applicant". The

decision so described is the only decision to which

t e section refers

in terms.

Thus, according to the ordinary and literal meaning

of the

language of sub-para. 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

the

relevant

statutory

provisions

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.

Sub-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 sub-s. 107VC(1) and affirms the

decision of the

Commission,

the

applicant

given

further

opportunity to apply to the Tribunal

for a review of the Commission's

decisizn in

the circumstances mentioned In sub-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 (sub-S. 107VC(2)).

Sections 107VG and 107VH provlde for the conduct of the review by the

. . .

13.

Tribunal including the requirement that the Tribunal shall set aside

the Commission‘s decision unless

is satisfied beyond reasonable

doubt that there were insufficient grounds for granting the claim	or
application (para. 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

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

th same provisions apply

with respect to the conduct

the rehearing by the Tribunal as

applied to the review by	it under S .	107VC including s s .	107VG and
107VH.

sub-para.

31(3)(a)(i)

did

not

exclude

from

the

Commission‘s power of review the Tribunal’s decision made pursuant to

appllcation 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

the Tribunal under

S . 107VC for

review of the Commission‘s decision which resulted in the Commission’s

decision being set aside, could then

lect 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

14.

Commission that under the Repatriation Act

sufficient reason existed

for that review

(sub-S. 31(1)). Sub-para. 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 C.L.R. 228 at p.

238); but we do not have to

decide that question because the object of the sub-paragraph is as

have

stated.

Sub-paragraphs

31(3)(a)(ii),

(iii) and (iv) show

similar

and

consistent

legislative

pattern

with

respect

the

decisions

the

Commission

and

the

Tribunal

and

the

Administrative

Appeals

Tribunal

on review

mentioned

those

sub-paragraphs.

It follows that the decision

of the Tribunal made on 8 March

1983, being a decislon made on a review pursuant to

an application

under S .

107VC,

1 s excluded from review under

S.’

31 provided that it

answers the descrlption of a decision that is favourable to	the
respondent.

The primary Judge found that a decision granting a pension is

a decision favourable to

applicant and

is therefore within the

language of the opening words of

S . 107VZB.

His Honour acknowledged

that

there

was

some

force

the

submission

behalf

the

respondent that she dld not get what she desired in that she desired a

15.

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

later date than she wished. His Honour said that

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

review under S.

107VC, S . 107VZG requires that the

decision not be expressed to operate from

a date

earlier than

3 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

that

Division

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 1s

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

opmion this

conclusion of the primary Judge and the reasons which

gave to

support it are correct. W$ would add, and it is Implicit in

his

Honour's flndings, that the Tribunal's decision of 8

March 1983 was

relevantly one decision, not

a conglomerate of four declsions.

We do

not find it necessary to consider the other questions

argued

the

appeal

including

the

question

whether

sub-para.

31(3)(a)(i) also excludes from the Commission's power of review under

16.

sub-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.

I certify that this and the /5

preceding

pages are a true copy of the reasons for

judgment herein of the Court

“p&

Associate

IN THE FEDERAL COURT OF AUSTRALIA	)
)

WESTERN AUSTRALIA DISTRICT REGISTRY)

)	No. WAG 28 of 1985

GENERAL DIVISION	)
B E T W E E N :
THE REPATRIATION COMMISSION

Appellant

- and -

ETHEL MAUDE DONOVAN

Respondent

CORAM: Bowen

C . J .

Fisher & Lockhart JJ.

REASONS FOR JUDGMENT

Fisher J.: In this matter I have had the opportunity to peruse in

draft form the joint reasons for declslon 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

decislon of the learned trial

Judge it is appropriate that

state my reasons for

s o doing.

The primary question before us

is, as stated by the

trial Judge, a somewhat

narrow

questlon

statutory

constructlon,

namely

whether

the

appellant

the

Repatriatlon

Commission ("the Commlssion") had power to review a decislon of

L .

the Repatriation Review Tribunal

("the Tribunal")

fixing the

commencement

date

for

payment

of a pension.

The statutory

provision which fell to be construed was

sub-para.31(3)(a)(i) of

the Repatriation Act 1920

("the Act").

It 1 s desirable to set

out in full the provisions

of sub-s.(3) of s.31, which specified

certain

declsions

which

were

excluded

from

review by the

Commission under sub-s.31(1) of	the Act.	Sub-section 31(3) was
as follows:

" ( 3) This section-

(a)

does not apply in relation to-

(i)

a decislon

of the Repatriation Review

Tribunal referred to

in sectlon 107VZB;

(li) a decision of the Administrative

Appeals

Tribunal referred to in section 107VZB in

its

application

virtue

of section

107VZZE;

(1ii)a decislon 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

perlod specified In that sub-section has

not expired; or

(iv)a decislon of the Administratlve Appeals Tribunal referred to In sub-sectlon (1) of section 107VZC, In its application by

virtue of section

107VZZE,

that

bindlng on the Commission by reason that

the appropriate period speclfied in that

sub-section has not expired; and

(b) subject to section 107VJ and sub-sectlon

( 2 )

of section 107VZC, does not apply in relation

to an assessment made by a declsion to which

sub-paragraph (iii) or (iv) of paragraph (a)

applies.

It has on all

occasions

been

accepted

that

Commission

has a

wide power of review under sub-s.31(1)

though

whether such width was intended

by the legislature may be

matter for debate (Cf Bastianl v Reuatriation Commission

unreported judgment of the Full Court

of this Court delivered on

12 June 1985).

Prior to 1979, when sub-s.(3) was added

to 5.31,

appeals against decisions of the Commission were to the War

Pensions Entitlement Appeal Tribunal

or to the Assessment Appeal

Trlbunal, 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 llmitation

the

power under sub-s.31(1) of

the Commission, if sufficient reason

existed, to revlew decisions, sub-s.64(6A) is significant. Its

insertion was apparently considered necessary so as to give the Commission express power, notwithstandlng the apparent

width of

Its power under sub-s.31(1), to reconslder certain decisions of

the War Pensions Entitlement Appeal Tribunal.	This	sub-section
was as follows:

"(6A) A decislon by

Appeal

Trlbunal

under

sub-section (31, or under

the

last

precedlng

sub-section, which is adverse

to the appellant

does not prevent the Commission reconsldering the

claim of the appellant at any time when It appears

to the

Commission

that

there

are sufficient

grounds for

so dolng."

The system of appeals provided by s .64 was repealed in 1979 and new provisions substituted by

Part IIIA of the Act as it

stood prior to amendments thereto In 1984.

These amendments are

not

this

stage

relevant

to the

question

statutory

construction. Part

IIIA provided a very different system for

appeals from the Commission,

substitutmg the Repatriatlon 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

appeal to this Court was made available

on questions

law

against

decisions of

the

Tribunal

(s.107VZZH) or

the

Administrative

Appeals

Tribunal

(6.44 of the

Adminlstrative

Appeals Tribunal Act 1975).

At the same time sub-s.31(3)

was

enacted, with the obvious purpose

of placing some limitations on

the

power

the

Commisslon

to review,

accordance

with

sub-s.31(1), declsions

of the Tribunal and the Administrative

Appeals Tribunal. The questlon of construction in this matter

whether

sub-para.31(3)(a)(i)

imposed

such a Imitation. It

stated that sub-s.31(1) did not apply

in relation to -

"(l) a declsion

the

Repatriation

Review

Tribunal referred to in section 107VZB."

(I have emphasized the crucial word	in this
provision.)

Section 107VZB is as follows:

"107VZB. Where a declsion of the Tribunal on a

revlew pursuant to

appllcation under section

107VC

favourable

the

applicant,

the

Commisslon may, within

6 months after the service,

in accordance with s.107VK, of

a copy

that

decislon 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

decision in the proceeding before the Tribunal

on that review; and

(b) request

the

Tribunal

to rehear

that

proceedlng,

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

Sub-paragraph (1) denied the Commission the power

review the decision "referred to" in section 107VZB.

The

issue

of construction before the trlal 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.lO7VC

which

section

pecifically

mentioned

s.107VZB. He rejected the contention of the Commission that the latter decision was that "referred

to" in

sub-para.31(3)(l)(a)

and

upheld

the

contrary

submission.

His

view was that

the

relevant decision was that made by the Trlbunal 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 wlth the

trlal judge's approach to the effect that the use of the words

"referred to" in this and each of the succeedlng sub-paragraphs

is no

more than a "convenient, though perhaps unsatlsfactory,

method of identifying the particular declslon".

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 sub-para.31(3)(a)(l) as a

reference to

a decision under

s.107VC

rather than a decision

consequent

upon

rehearing

pursuant

s.107VZB is

consistent with the obvious purpose

of sub-s.31(3) of

limiting

the

Commission's

power

review

decisions

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 speclfically set out in

sub-paras (i) to (iv) of para.31(2)(a).

Even in relatlon to

the

sub-paragraph in question, no decision 1s strictly made "pursuant to" s.107VZB. If a decision is made in reliance by the Tribunal upon its powers under that section, that decision 1s 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. Thls situation

exactly

the

same

under

sub-para.(li)

when

the

Administratlve

7 .

Appeals Tribunal and not the Tribunal which holds the rehearing

( S . 107VZZE).

A consideration of sub-paras.(iii) and

(iv) in each

which the decision referred to is in sub-s.l07VZC(l), reinforces

this view.

No declsion, let alone

a rehearing productive of a

declsion, can be identified

being made or held pursuant to

that sub-section. It merely provides that

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

applicant, the Commission and the Board for the periods expressed

therein.

A rehearing is contemplated by sub-6.2 of s.107VZC and

a decision could be made "pursuant to" sub-s.3'of that section, but there is nothlng empowerlng a rehearlng or identlfying a decision which would or could be made under sub-s.(l).

No assistance

can be obtained

either

way

from

consideration of para.(l)(b)

sub-s.(3) of s.31 as the

terminology is, and probably intentionally is, quite different

from that in para.

( ).

It is

furthermore

opinion

that

the

legislature

intentionally and deliberately used the expression "referred

to"

rather than "pursuant

to" in para.(a) of sub-s.31(3).

It 1s

signiflcant that the expression "pursuant to", the use of

which

the trial judge thought would have made the position clearer,

in fact used In the sectlon to whlch sub-para.(l)

of sub.s.31(3)

directs

attention,

namely

s.lO7VZB.

That section

expressly

refers at the outset to, "a decision... on a review pursuant to

an application". My emphasis.

The

use in sub-para.(i) of the

expression "referred to" rather than "pursuant

to"

is hardly

likely in the circumstances to have been

an unmtentional and

loose use of language. It is more likely that such use was

deliberate, and intended to identify the decision

as the decision

specifically mentloned in the sectlon rather than

a decision made

in exercise of the power of rehearing given by the sectlon. The

same comments can be made in relation to sub-s.l07VZC(l) where again the expression "decision... pursuant to an application" is used.

The fact that the expression "referred

to" is itself

used, prlma facie deliberately, in other sections

of the Act to

identify a decision

or matter is a l so confirmatory of my opinion

that its use in para.(a) is deliberate.

I refer to s.lO7VK where

in sub-s.(Z) the words

"a decision referred to in sub-s.(l)" are

used to identify a decision.

sub-s.(3) of that section the

words "a matter referred to in paragraph

(a), (d) or ( j ) of

sub-section

(1)

section

27" are

used

Identify

the

partlcular

matter

under

Consideration.

Likewise

the

words

"referred to" appear in sub-s.l07VZZE(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

circumstances where they are strictly more approprlate than

"pursuant to" or "referred to". These matters reinforce my view

9 .

that there has been a careful use of language in Part IIIA.

For all of these reasons I am satlsfied that the words

"referred to" in

para.31(3)(a)

have

been

carefully

and

dellberately

chosen.

ignlficant

hat

each

the

provisions of the Act to

which

I have

dram

attention in

construing para.31(3)(a) appears in Part IIIA which was enacted at the same time as para.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 wlth the purpose

of imposlng limitations	on the powers of the Commission under
sub-s.31(1).

My conclusion is that the decision which is excluded

from review by the Commission by virtue of sub-para.(i) is not

declsion of the Tribunal consequent upon a rehearing authorised

by s.107VGB.

It is

a decision of the Tribunal under

s.lO7VC

which

favourable

the

applicant.

the decision was

favourable to the Commission there would be

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

the appeal was the

meaning of the expression "favourable to the applicant".

The

trial ~udge

was

of opinion that if it was necessary to make

finding on this aspect of the

case, the declsion

was "favourable

to the

applicant"

and

I agree and with respect adopt his

I - .

10.

reasoning as well as that of Bowen C . J .

and Lockhart

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.

I certlfy that

this

and

a true copy of the Reasons

the 9 preceding pages are

for Judgment of Mr Justice

Fisher.

_---

/---

Associate

Dated:

,.c

[1985] FCA 402

2 Aug 1985