Repatriation Commission v Forrest, Brian, in his Capacity as Deputy President of the Administrative Appeals Tribunal
[1998] FCA 1316
•20 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
DEFENCE AND WAR – Veterans’ entitlement – review by Administrative Appeals Tribunal of decisions of Veterans’ Review Board and Repatriation Commission as to assessment application and entitlement claim by veteran – entitlement claim remitted to Commission – assessment application adjourned to be heard together with review of another entitlement claim – “liberty to apply” – whether AAT functus officio
WORDS AND PHRASES – “functus officio”, “liberty to apply”
Veterans’ Entitlements Act 1986 (Cth) ss 14,15
Repatriation Commission v Smith (Sundberg J, unreported, 16 June 1997) mentioned
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532 mentioned
Australian Broadcasting Tribunal v Bond (199 ) 171 CLR 321 mentioned
Fylas Pty Ltd v Vinyl Pty Ltd [1992] Qd R 593 mentioned
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
REPATRIATION COMMISSION v BRIAN FORREST, IN HIS CAPACITY AS DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL AND MATTHEW GRUNDMAN
NO. VG 193 OF 1998
JUDGE: HEEREY J
DATE: 20 OCTOBER 1998
PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 193 of 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
MR BRIAN FORREST, IN HIS CAPACITY AS DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENTMATTHEW GRUNDMAN
SECOND RESPONDENTJUDGE:
HEEREY J
DATE OF ORDER:
20 OCTOBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
Extend time so far as is necessary to bring application under the Administrative Decision (Judicial Review) Act 1974 (Cth) out of time.
The application will be dismissed with costs, including reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 193 of 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
MR BRIAN FORREST, IN HIS CAPACITY AS DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENTMATTHEW GRUNDMAN
SECOND RESPONDENT
JUDGE:
HEEREY J
DATE:
20 OCTOBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant Repatriation Commission seeks an order for review under the Administrative Decisions (Judicial Review) Act 1974 of a decision of the Administrative Appeals Tribunal (AAT) which reserved “liberty to apply” in relation to an appeal by the second respondent Matthew Grundman (the Veteran) until another appeal concerning the Veteran was heard.
In the alternative relief is sought under s 39B of the Judiciary Act 1903 (Cth).
The Veteran’s Application and Claim
The Veteran served in the Royal Australian Air Force in New Guinea in the Second World War. As at July 1993 he was in receipt of a pension at 50 per cent of the General Rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act).
On 20 July 1993 the Veteran made an application under s 15 of the Act for an increase in his rate of pension. I shall refer to this application as “the Assessment Application”. On 29 July 1993 he made a claim under s 14 of the Act for medical treatment and pension for incapacity from carcinoma of the prostate (hereinafter called “the Entitlement Claim”). The Assessment Application and the Entitlement Claim were separate and independent of each other.
Under s 19(4) of the Act the Commission was required to determine the Assessment Application in accordance with s 19(5). Under s 19(1)(b), the Commission was to determine the Entitlement Claim pursuant to s 19(3).
Commission’s Decisions
On 9 November 1993 the Commission determined that the Veteran’s carcinoma of the prostate was not war-caused and also made a decision that the Veteran’s pension should continue at 50 per cent of the General Rate.
Veterans’ Review Board
The Veteran made two applications to the Veterans’ Review Board (VRB) for the review of the Commission’s decisions of 9 November 1993. The application for review in respect of the Assessment Application was given the VRB number V 93/1938 and the review in respect of the Entitlement Claim was given the number V 93/1939.
On 6 July 1994 the VRB affirmed both decisions of the Commission. It commenced its reasons by noting (CB 35):
“The Board has before it two applications for review of two separate Repatriation Commission decisions both dated 9 November 1993.”
Under the sub-heading “V 93/1939 – Entitlement” the VRB reviewed the evidence and the applicable law and concluded (CB 39) that it was of the opinion that the material did not raise a reasonable hypothesis within the meaning of s 120(3) of the Act. In those circumstances the VRB said that it was “required to affirm the decision under review”.
Then under the sub-heading “V 93/1938 – Assessment” the VRB went on to discuss the Assessment Application. It referred to the Guide to the Assessment of Rates of Veterans’ Pensions (the Guide) and the assessment method therein laid down which involves the calculation of a combined impairment rating and lifestyle rating. The VRB dealt (CB 42) with a submission on behalf of the Veteran that he was entitled to a certain number of points on the table in the Guide on the basis of bilateral orchidectomy. The argument was that, whether or not the VRB accepted cancer of the prostate as a war caused condition, the orchidectomy (a surgical procedure involving removal of both testes) was performed because his irritable colon (itself an accepted war-caused condition) was such that it restricted the possibility of normal ray treatment for the cancer condition. The VRB said (CB 42):
“The Board was of the view that the matter raised by Mr Horan [on behalf of the Veteran] was more related to a claim for bilateral orchidectomy as a war caused condition on the premise put in relation to assessment.”
After noting that the Veteran’s original application for increase put the matter in the same way, the VRB stated:
“In the Board’s view, this application for increase should be treated as an informal claim for acceptance of bilateral orchidectomy as a war-caused condition on the basis of a sequela to the veteran’s irritable colon. If accepted, the question of assessment under Table 10.2.1, as suggested by Mr Horan, would need to be addressed by a delegate of the Repatriation Commission.”
The VRB continued (CB 42):
“Turning to the assessment of the two currently accepted disabilities, …”
The VRB then discussed the evidence in relation to the Veteran’s pain and disruption of life and concluded (CB 43):
“Having considered all of the material available to it, and for the reasons given above, the Board is reasonably satisfied that 50 per cent of the General rate has been the appropriate assessment since the application day. The Board accordingly affirms the decision under review.”
The formal decision was as follows:
“V 93/1939 – To affirm the decision under review. This means that the Repatriation Commission’s decision remains unchanged.
V 93/1938 – To affirm the decision under review. This means that the Repatriation Commission’s decision remains unchanged.”
Application to AAT
On 26 August 1994 the Veteran applied to the AAT for review of the VRB decisions. Although the VRB had made two separate decisions in respect of the two separate decisions of the Commission on the Assessment Application and the Entitlement Claim and although, as will be discussed in more detail hereafter, the AAT treated the matter as two separate applications for review under s 175 of the Act, the proceeding in the AAT was given the one number, viz V 94/787.
Post-traumatic Stress Disorder Claim
On 4 October 1994 the Veteran made a claim to have his condition of chronic anxiety accepted as war-caused. On the same day he applied for an increase in the rate of pension which he was entitled to receive. On 16 February 1995 the Commission accepted that the Veteran suffered from post-traumatic stress disorder and that this condition was war-caused. It increased his rate of pension to 60 per cent of the General Rate.
The Veteran applied for a review to the VRB which on 11 October 1995 determined to increase the rate of pension to 70 per cent of the General Rate.
On 19 February 1966 the Veteran lodged an application to the AAT for review of the VRB’s decision of 11 October 1995. This proceeding was given the AAT number V 96/157.
AAT 1996 Decision
On 21 June 1996 the AAT, constituted by Deputy President B M Forrest, gave its decision in V 94/787 (CB 52). It commenced by referring to the Veteran’s “claim [sic - strictly speaking an application] for an increase of pension” made on 20 July 1993 and the “claim for medical treatment and pension for incapacity from carcinoma of the prostate” made on 29 July 1993. The AAT continued (CB 53):
“Both claims were refused by the respondent on 9 November 1993.
The Veterans’ Review Board (the Board) affirmed the decisions of the respondent on 6 July 1995. Consequently pension continued at 50 per cent of the General Rate.
It was common ground that the proceedings before this Tribunal were to be confined to entitlement issues pending the outcome of a further claim awaiting determination.” (Emphasis added)
The “further claim” was of course the application for review of the decision in relation to the post-traumatic stress disorder assessment of 70 per cent (ie V 96/157).
The AAT then reviewed the law and the conflicting medical evidence. It upheld the argument on behalf of the Veteran that the existence of his irritable bowel was a contributing factor in the decision to perform the orchidectomy and that “it necessarily follows that the relationship between war service and the orchidectomy cannot be excluded beyond reasonable doubt” (CB 60). It did not accept the Commission’s submission that treatment for a non war-caused disability could not itself be regarded as war-caused (CB 60). For these reasons the AAT considered that “the condition of bilateral orchidectomy shall be taken to be war caused”. The reasons for the decision conclude as follows (CB 60):
“The question of assessment of the appropriate rate of pension is to be remitted to the respondent for further consideration. There will be liberty to the parties to be heard on a question of assessment when the application No V 96/157 currently in the list of cases before the Tribunal awaiting determination is heard.”
The formal decision of the AAT was in these terms (CB 52):
“The Tribunal:
1. affirms the decision under review that carcinoma of the prostate is not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the Act”);
2. decides that the disability ‘bilateral scrotal orchidectomy’ is a war-caused disability within the meaning of s 9 of the Act; and
3. the question of assessment of rate of pension is remitted to the respondent for consideration with liberty to apply when application number V96/157 is heard.”
Assessment by Commission 1997
Following on the remit from the AAT the Commission by a decision dated 26 March 1997 (CB 61) decided that:
· The Veteran’s disability pension should continue at 50 per cent of the General Rate from 29 April 1993 to 3 July 1994.
· The disability pension should be increased to 80 per cent of the General Rate with effect from 4 July 1994 with entitlement to payment commencing from 7 July 1994.
The Veteran did not seek a review of this decision.
AAT 1997 Decision
On 28 July 1997 the AAT made a “direction” which is the decision the subject of the present application. The formal direction (CB 6) was:
“The Tribunal directs that when application No. V 96/157 is heard, it has jurisdiction to consider the assessment issue in relation to the claim made on 29 July 1993.”
In its reasons, which were not given until some time later, the AAT noted (CB 8) the submission of counsel for the Commission that
“the Tribunal having remitted the question of assessment of the respondent is functus officio in relation to the claim for pension made by the application on 29 July 1993”.
The AAT also observed (CB 10):
“It is apparent from the reading of the Tribunal reasons for decision in the first application that the Tribunal was requested by the parties to confine its considerations to the entitlement issue.”
After quoting two passages to which I have already referred in these reasons, the AAT said (CB 10):
“In other words the final determination of the assessment question was to await another day, that being the hearing of the second application when the assessment issue would finally be considered. When the first application was heard the second application which is concerned with assessment only, was not part of the hearing before the Tribunal.
Clearly the Tribunal has made a decision on the entitlement question but for present purposes the relevant question is whether the matters for decision, relevantly the assessment issue has been finally determined by the Tribunal.”
After referring to Repatriation Commission v Smith (Sundberg J, unreported, 16 June 1997) and Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532 (Goldberg J) the AAT said (CB 11):
“In the present matter it is not a question of a decision maker seeking to resile from an earlier decision by reopening or reconsidering a decision on the merits as the Tribunal, insofar as the assessment issue is concerned, had not finally resolved the issue for consideration. I do not accept the Tribunal is functus officio in relation to that aspect of the matter.
To approach the matter another way, it seems to me that the Tribunal has not made a judicially reviewable decision on the assessment issue as the terms of the decision indicate the assessment (in accordance with the parties’ consent) remain to be considered with the second application.”
Conclusion
Counsel for the Commission argued that the decision of the AAT on 21 June 1996 was final and operative (see Australian Broadcasting Tribunal v Bond (1990) 171 CLR 321 at 337) and not partial or interim. This was confirmed, she said, by the fact that it had remitted assessment to the Commission which then made a further determination on 27 March 1997, which the Veteran had not sought to review. Thus the AAT was functus officio; its statutory function had been performed and there was no further act or function for the person authorised under the statute to perform: Jayasinghe at 542. It was said it was not appropriate to reserve liberty to apply which was not “inherent in a judgment or order which is final in nature”: Fylas Pty Ltd v Vinyl Pty Ltd [1992] Qd R 593 at 597-8.
I do not accept these submissions. It is clear that the Assessment Application and Entitlement Claim were separate and independent matters and were treated as such by the Commission, the VRB and the AAT. In particular, the reasons for the decision of the VRB deal with the two matters separately. When the AAT in 1996 decided in favour of the Veteran in relation to the Entitlement Claim, the Act required that the rate of pension should be assessed having regard to that determination: s 19(3) and (5). The AAT, standing in the shoes of the Commission, could have done this itself, but it took the usual and appropriate course of remitting the question of assessment to the Commission, as it was empowered to do under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (perhaps needless to say, assessment did not involve a separate pension for each war-caused medical condition of the Veteran; following the Guide, the assessment had to be made in the light of the Veteran’s impairment and lifestyle, including aspects attributable to the condition recently determined to be war-caused).
It is plain from the AAT’s 1996 decision that, unlike the VRB, it did not consider the merits of the Assessment Application. The AAT took the view that it was more appropriate to do this when the application for review in V 96/157 came on for hearing. Apparently no transcript of the proceeding is available. I was not directed to any affidavit evidence on this issue. Accordingly I see no reason to go behind the statement of the AAT that this course was taken with the consent of the Commission as well as the Veteran.
The expressions “liberty … to be heard” and “liberty to apply” in the AAT’s 1996 decision are not to be taken in any technical sense. In the context of this particular case the expression simply means that, as agreed between the parties, they will argue before the AAT the Assessment Application at the same time as V 96/157 is heard. The formal statement of the direction given on 28 July 1997 refers to “the claim made on 29 July 1993”. Obviously that is a mistake. The context makes it clear that the AAT intended to refer to the Assessment Application made on 20 July 1993. Likewise, the submission on behalf of the Commission to the AAT in 1997 that “the Tribunal having remitted the question of assessment of (the Veteran) is functus officio in relation to the claim for pension made on 29 July 1993” confuses the remitter of assessment in relation to the Entitlement Claim and the assessment in relation to the Assessment Application. The closeness of the two dates, the different statutory terms “claim” and “application”, and the sequence of the two matters being reversed in some of the proceedings have all resulted in some confusion and looseness of language.
But applying the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and looking at the matter in context, I am satisfied as to the substance of what the AAT did. There was in my view no question of it being functus officio. The AAT dealt with one matter (the Entitlement Claim) and in effect adjourned the other matter (the Assessment Application), with the consent of the parties, to a date to be fixed when it would be more sensible, convenient and efficient to deal with it. None of this amounted to constructive refusal to exercise jurisdiction. It was rather a routine arrangement of the AAT’s business in a way satisfactory (at the time) to the parties and the Tribunal itself.
Extension of Time
The AAT’s reasons were not provided until 11 March 1998. The time for review under the AD(JR) Act expired on 8 April but the application was not lodged until 5 May. The delay was due to disruption and confusion in the office of the Australian Government Solicitor at the time of privatisation. I think it is appropriate to extend time, particularly as the same relief could be obtained anyway under s 39B.
Orders
The application will be dismissed with costs, including reserved costs. There will be leave to bring the application out of time insofar as it is brought under the AD(JR) Act.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated:
Counsel for the Applicant: Ms D S Mortimer Solicitor for the Applicant: Australian Government Solicitor Counsel for the second Respondent: Mr D De Marchi Solicitor for the second Respondent: De Marchi & Associates Date of Hearing: 14 October 1998 Date of Judgment: 20 October 1998
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