Repatriation Commission v Morris, William Harold
[1997] FCA 1524
•18 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
Veterans’ Affairs - Administrative Appeals Tribunal - whether Administrative Appeals Tribunal abdicated its statutory function by standing over a matter before it for twelve months - whether statutory duty must be performed within what is, in the circumstances, a reasonable time - inquisitorial nature of review conducted by Administrative Appeals Tribunal.
Veterans’ Entitlement Act 1986
Administrative Appeals Tribunal Act 1975
Re Lawlor (1978) 1 ALD 167 - cited
Bushell v Repatriation Commission (1992) 175 CLR 408 - cons.
Noble v Repatriation Commission, Beaumont, Branson and Merkel JJ, 3 November 1997, unreported - cons.
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532 - cited
Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 - appl.
Re Coldham; Ex parte Brideson (1989) 166 CLR 338 - appl.
REPATRIATION COMMISSION v WILLIAM HAROLD MORRIS and DESMOND PATRICK BREEN
QG 29 of 1997
JUDGE: BEAUMONT J
PLACE: BRISBANE
DATE: 18 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 29 of 1997
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
WILLIAM HAROLD MORRIS
FIRST RESPONDENTDESMOND PATRICK BREEN (A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
SECOND RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
18 NOVEMBER 1997
WHERE MADE:
BRISBANE
ORDERS:
Appeal allowed; set aside the interim decision made on 5 February 1997.
Remit the matter to the Administrative Appeals Tribunal for reconsideration in accordance with law by a reconstituted Tribunal, with or without the hearing of fresh evidence.
No order for costs; note that the parties have reached an agreement on the question of costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 29 of 1997
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
WILLIAM HAROLD MORRIS
FIRST RESPONDENTDESMOND PATRICK BREEN (A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
SECOND RESPONDENT
JUDGE:
BEAUMONT J
DATE:
18 NOVEMBER 1997
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
By s 22(2) of the Veterans' Entitlement Act 1986 (“the Act”), the rate at which pension is payable to a veteran in respect of incapacity due to war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Repatriation Commission (“the Commission”) in accordance with s 21A of the Act to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be. By s 22(3), the maximum rate per fortnight is fixed. By s 22(4), provision is made for the increase of the pension by 50 per cent of the maximum rate in the circumstances there described, that is to say, relevantly, where the degree of incapacity is determined to be 100 per cent under s 21A and the veteran has attained the age of 65 and, by s 22(4)(c), the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, as determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions.
The increased pension provided by s 22(4) applies to a veteran other than a veteran to whom ss 23, 24 or 25 applies. Section 23 of the Act provides for an intermediate rate of pension, while s 24 provides for a special rate.
In December 1995, William Harold Morris, the first respondent, applied pursuant to s 15 of the Act for an increase in the rate of his pension. At that time, Mr Morris was in receipt of a pension at the maximum general rate, pursuant to s 22(3) of the Act.
By his application, Mr Morris, who stated his date of birth as 11 February 1922, then being 73 years of age, said that the reason for his application was that he wished the Department of Veterans’ Affairs to consider, in essence, whether he was entitled to a pension at either the intermediate or the special rate due to his asthmatic condition. He said that he had stopped work due to that condition at the age of 62 years.
Mr Morris's application was considered by a delegate of the Commission on 12 January 1996. The delegate concluded that no case had been made for entitlement to either the intermediate or special rates. The delegate went on to consider whether the 50 per cent increase upon the general rate provided for by s 22(4) was made out. That increase was described, as it is commonly described within this field, as the "Extreme Disablement Adjustment". The delegate concluded that Mr Morris did not satisfy the lifestyle rating specified in s 22(4). In the result, the delegate refused the application for increase and instead decided that the pension should continue at 100 per cent of the general rate.
Pursuant to the provisions of s 135(1)(b) of the Act, Mr Morris sought review of the delegate's decision by the Veterans' Review Board (“the Board”). By its decision given on 6 February 1996, the Board affirmed the delegate's decision, essentially for the same reasons as those expressed by the delegate.
THE PROCEEDINGS BEFORE THE ADMINISTRATIVE APPEALS TRIBUNAL
Pursuant to the provisions of s 175 of the Act, Mr Morris applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Board's decision. In order to understand the issues that presently arise for decision, it will be necessary to describe in some detail the course of proceedings before the Tribunal.
That hearing took place on 5 February 1997. The Commission was represented by an advocate. Mr Morris was unrepresented. At the commencement of the hearing, Mr Morris sought to explain the nature of his application to the Tribunal, but it does not appear that, at least in any formal sense, evidence was taken at that hearing. There was, however, discussion between the Commission's representative and Mr Morris, and the learned Deputy President constituting the Tribunal.
In the course of the discussion, the Deputy President suggested that an updated lifestyle report should be prepared, that Dr Grant should examine Mr Morris, and that the proceedings should stand down until later that day after there had been attendance to those matters. At this time, the Deputy President informed Mr Morris that he could not decide whether he was entitled to either an intermediate or special rate because of his age. For this reason, the Deputy President repeated his suggestion that Dr Grant should examine Mr Morris with a view to assessing the results of that examination later that day.
Upon the resumption of the hearing, the Commission's representative informed the Tribunal that a lifestyle interview had been conducted and that Dr Grant had assessed Mr Morris. The representative then said:
“MRS BOWER: We have also had Dr Grant, the Senior Medical Officer, Appeals, consider what you suggested with the change in diagnosis of Mr Morris’s accepted disability and Dr Grant is of the opinion that the diagnosis could be changed to reflect the veteran’s condition better and he suggested that bronchial asthma be changed to bronchial asthma with emphysema. I have a copy of his Minute to hand up. I also have a copy of our lifestyle report. It is just a very brief report that we did.”
The representative went on to say:
“MRS BOWER: I will just mention too that Dr Grant has assessed Mr Morris’s accepted disabilities at 30 impairment points total. Deputy President, with regard to the change in diagnosis of the bronchial asthma, the respondent would be pleased if you would include that in the decision that you eventually make---
THE D. PRESIDENT: Yes.
MRS BOWER: ---and hand it down as part of that that the condition be re-diagnosed.”
At this point the Deputy President said:
“THE D. PRESIDENT: Okay. There is only one matter outstanding from our discussions this morning and that is the independent assessment.
MRS BOWER: Right.
THE D. PRESIDENT: I am not---
MRS BOWER: At this stage, we have not made it, sir. The respondent’s position would be that from---
THE D. PRESIDENT: It is not necessary.
MRS BOWER: Well, for Mr Morris to get an increase, the next level up, as we have discussed with him, is the extreme disablement adjustment rate which would require 70 points and a lifestyle of 6 and it would be our position that he is quite a long way from that---
THE D. PRESIDENT: He is indeed.
MRS BOWER: ---and we would think it not necessary for another opinion but would leave that to the Tribunal to decide.
THE D. PRESIDENT: I do not know that it can achieve anything. Mr Morris, we have got you to a stage where - as your condition deteriorates which it will. I mean that is a fact of life with lung conditions that you suffer. We have got you to the stage where, as your condition deteriorates, it is highly likely that you will eventually proceed to the extreme disablement adjustment rate but you are not there yet and what I am going to suggest to you is this: if I was to finally determine this case now, it would be a determination that of the condition that already had been accepted from bronchial asthma to bronchial asthma with emphysema in accordance with Dr Grant’s opinion, you have made your claim for the branch block and that has been accepted. So, that is an accepted condition, okay? So, the whole of your chest difficulties are now under the umbrella of pension entitlement.
The first question in these matters - it is a bit like if you get run over by a motor car and you sue for damages, your lawyers have to establish that the driver is liable. That is called liability. And then they have to establish your financial loss. That is called quantum and quantum is the Latin word for amount. So, is the driver liable and if so, how much damages do you get, okay? We have got the liability question covered as far as it can be now, as a result of today. The quantum question has to continue at 100 percent for the moment but I am not going to make a final decision in your case. I am going to make an interim decision which will give you those entitlements, okay, which will encapsulate the fact that you have made a claim for partial right bundle branch block and that was considered by a delegate and accepted, so your total accepted conditions now are so. I will put that in one piece of paper in the form of an interim AAT decision and I will stand your case down for 12 months and get you back then. You will not have to go back to the department, you will not have to go through VRB, you will come back to me in 12 months and we will get---
MR MORRIS: Sir, I will be 75 next week.
THE D. PRESIDENT: Yes, but you see---
MR MORRIS: I will be dead.
THE D. PRESIDENT: No, you will not; no, you will not. You are a long way from dead.
MR MORRIS: I would not say that, sir.
THE D. PRESIDENT: That means that you do not have to go through this circuitous route again, you just come back here. We will get someone - hopefully Mr Patchin or Mrs Bower will stay with the case, that is, their branch’s policy that an advocate retains a case. In 12 months’ time under the umbrella of the AAT and through the auspices of these helpful young people, we will have another look at you.”
The Deputy President added the following:
“THE D. PRESIDENT: ...that is a matter for you, you see, but the purpose - you might say to me when the matter comes back in 12 months, ‘Look, I don’t want to do any more’, but what it will do, it will mean that if you do - if your condition does worsen and you are approaching the EDA entitlement stage, you will not have to start at the grass roots, you can start at the top which is here and you will be dealing with Mrs Bower and not some unknown person over a counter.”
Finally, the Deputy President said:
“I will make an interim decision that reflects today's outcomes and I will delist the matter for automatic reinstatement 12 months from today...”
THE TRIBUNAL’S “INTERIM DECISION”
The Deputy President published reasons dated 5 February 1997 under the heading “Interim Decision” as follows:
“For the reasons given orally at the hearing, the Tribunal varies the decision under review by deciding that the accepted condition diagnosis be changed from ‘bronchial asthma’ to ‘bronchial asthma with emphysema’.
The Tribunal notes that, having regard to the medical report from Dr Oswald B Tofler dated 1 August 1984 which in respect of the condition ‘partial right bundle branch block’ expresses the opinion that the said condition results from long term asthma, the applicant today lodged a claim for pension in respect of the condition ‘partial right bundle branch block’ which was accepted by a delegate of the Repatriation Commission.
Accordingly, the applicant’s accepted war-caused disabilities are now -
(a) bronchial asthma with emphysema; and
(b) partial right bundle branch blockand pension is to be continued at 100% of the General Rate.
The Tribunal delists the application for review for a period of 12 months. At the expiration of that period a Directions Hearing is to be listed before me.”
THE PRESENT APPEAL AND APPLICATION
By its notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975, the Commission appeals from the decision of the Tribunal upon the following grounds:
(a)The Tribunal, after varying the decision under review by it, by deciding that the accepted condition diagnosis be changed, and that the pension was to be continued at 100 per cent of the general rate, exceeded its jurisdiction by directing that the application for review be de-listed, and that a directions hearing be listed at the expiration of a period of twelve months;
(b)The Tribunal, after varying the Board's decision, by deciding that the accepted diagnosis be changed and that the pension was to be continued at 100 per cent of the general rate, was functus officio; and
(c)Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal has no power and no discretion to make an interim decision of the kind purportedly made.
By its application for prerogative relief under s 39B of the Judiciary Act 1903, the Commission relies upon the same grounds on which it appeals under s 44 of the Administrative Appeals Tribunal Act 1975, and seeks an order for prohibition, or such other order as may be appropriate.
CONCLUSIONS ON THE PRESENT APPEAL AND APPLICATION
The jurisdiction of the Tribunal to review the Board's decision was conferred by s 25(1) and (4) of the Administrative Appeals Tribunal Act 1975, read in conjunction with s 175 of the Act. There can be no doubt that the Tribunal had jurisdiction to entertain Mr Morris's application to review the Board's decision. There can be equally no doubt that the powers of the Tribunal were those conferred by s 43(1) of the Administrative Appeals Tribunal Act 1975 as explained, for instance, by Brennan J in Re Lawlor (1978) 1 ALD 167 (at 175). Nor can there be any room for dispute that the procedures to be adopted by the Tribunal in the conduct of its review were those laid down in s 33 of the Administrative Appeals Tribunal Act 1975.
In the exercise of its jurisdiction and powers, the Tribunal is to conduct a review which, as Brennan J observed in Bushell v Repatriation Commission (1992) 175 CLR 408 (at 424-5), is, in substance, inquisitorial. So that, as Brennan J went on to note (at 425):
“If the material [before it] is inadequate, [the Tribunal] may request or itself compel the production of further material.”
If it were appropriate in the present case to exercise powers of this kind, it would have been open to the Tribunal to do so. It is equally well settled that in arriving at its decision, the Tribunal is entitled to be guided by issues that the parties choose to put before it for its consideration (see Noble v Repatriation Commission, Beaumont, Branson and Merkel JJ, 3 November 1997, unreported, at 16). There is a flavour of case management of this kind emerging from a reading of the transcript in the present proceedings; and the Deputy President was, of course, confronted with the difficult situation of the lack of representation of one of the parties in areas, at least potentially, of some complexity.
It is not necessary now to decide whether it is appropriate to describe the course of the hearing on 5 February 1997 as in the nature of an extended directions hearing, or as something more formal than that. But, however that hearing is described, it is clear, from the title given by the Deputy President to his reasons, that he was dealing with the matter on an interim footing only; that is to say, he was not purporting to make any final decision on any question, save, perhaps, that he was noting that the Commission accepted that it was proper to make the variation to the diagnosis that has been mentioned.
As I have said, it may be possible to describe this approach as no more than a conventional exercise in case management where the Tribunal, understandably, embarks upon the exercise of isolating the real matters in dispute. However, when the hearing of 5 February 1997 is scrutinised, it is clear, in my opinion, that so far as concerns any matter that remained in contention between the parties, there was never an attempt to embark upon a final hearing, let alone an attempt to dispose finally of the matter so far as the Tribunal was concerned. That being so, I cannot accept the submission advanced on behalf of the Commission that, in making his decision on 5 February 1997, the Deputy President became functus officio (cf. Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532). While, as I have indicated, I have no difficulty with, and indeed view as entirely appropriate, the step taken by the Tribunal to note the variation in the diagnosis, the decision to stand the matter over for twelve months should, I think, be looked at differently. With all respect, I can see neither the power nor the justification for the Tribunal to adopt that course.
It is clear, in my opinion, that the Tribunal had both the power and the duty to review the Board's decision. Moreover, it is plain that any such statutory duty must be performed within what is, in the circumstances, a reasonable time (see, e.g. Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 per Murphy J at 579; Koon Wing Lau v Calwell (1949) 80 CLR 533 per Dixon J at 573-4; Wade “Administrative Law”, 5th ed., at 634; Bennion, “Statutory Interpretation”, at 416 and 785; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365, per Windeyer J at 383-4). In my view, there was no power to stand the present matter over for such a lengthy period when that period is, as here, fixed in an arbitrary way. I can fully appreciate, as I have mentioned, the motives of the Tribunal in doing so, but Mr Morris had a legal right to have his application for review dealt with finally within a reasonable time. The Tribunal had a correlative duty. By purporting to stand the application over for a period of twelve months, the Tribunal, essentially, abdicated its statutory function. To borrow the language of Wilson, Deane and Gaudron JJ in Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 350:
“In the result the [Tribunal] not only misunderstood the nature of its task, but it failed to perform the task which the Act... required. This amounted to a constructive failure to exercise jurisdiction.”
ORDERS
I make the following orders:
Appeal allowed; set aside the interim decision made on 5 February 1997.
Remit the matter to the Administrative Appeals Tribunal for reconsideration in accordance with law by a reconstituted Tribunal, with or without the hearing of fresh evidence.
No order for costs; note that the parties have reached an agreement on the question of costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 18 November 1997
Counsel for the Applicant: Ms Ford Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr Wallace Solicitor for the First Respondent: Gabriel Ruddy & Garrett Solicitor for the Second Respondent: Solicitor, Administrative Appeals Tribunal Date of Hearing: 18 November 1997 Date of Judgment: 18 November 1997
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