Repatriation Commission v Reid, A
[1990] FCA 480
•06 SEPTEMBER 1990
Re: REPATRIATION COMMISSION
And: ALLAN REID
No. V G373 of 1989
FED No. 480
Veterans Entitlements
21 ALD 95
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Davies(1) and Ryan(1) JJ.
CATCHWORDS
Veteran's Entitlements - war caused disease - eligibility for pension at special rate - effect of veteran's informal claim or application upon date from which pension is paid - meaning of "service on (the veteran) of a copy of the decision of the Commission".
Veteran's Entitlements Act 1986 ss.9, 20-25, 157
Repatriation Act 1920
Repatriation Legislation Amendment Act 1984, s.55(2)
Veteran's Entitlements (Transitional Provisions and Consequential Amendments) Act 1986
Social Security and Veterans' Entitlements Amendment Act (No.2) 1987
Acts Interpretation Act 1901
Jebb v. Repatriation Commission (1980) 80 ALR 829
HEARING
MELBOURNE
#DATE 6:9:1990
Counsel for the appellant: Dr C.N. Jessup QC
appellant and Mr N.J. Green
Solicitors for the appellant: Australian Government Solicitor
Counsel for the respondent: Mr N.A. Moshinsky QC
respondent and Mr K.H. Bell
Solicitors for respondent: Remington and Co.
respondent
ORDER
The appeal be dismissed, with costs.
NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.
JUDGE1
On 6 November 1989 Jenkinson J dismissed an appeal from a decision of the Administrative Appeals Tribunal given on 27 June 1988, (which set aside a decision of the Veterans Review Board given on 6 April 1987) and ordered that
(i) polyarthritis of rheumatoid type be accepted as a war-caused disease suffered by (Allan Reid) from 9 March 1972
(ii) that from 9 March 1972 the degree of incapacity of Mr Reid from war caused injury or disease was 100 per centum
(iii) that from that date he was entitled to payment of pension at 100 per centum of the general rate
(iv) that from 1 January 1974 Mr Reid satisfied the requirements of s.24 of the (Repatriation) Act (1920) and was therefore entitled to payment of pension at the special rate.
From that order of 6 November 1989 this appeal is brought by the Repatriation Commission ("the Commission").
In its reasons for decision the Administrative Appeals Tribunal ("the Tribunal") noted that Mr Reid sought a review of the Veterans Review Board's decision, which accepted inflammatory polyarthritis of rheumatoid type ("polyarthritis") as a war caused disease within the meaning of s.9 of the Veterans' Entitlements Act 1986 ("the Act") and assessed him as eligible for pension at the special rate provided for in s.24 of the Act, such pension to be effective from 26 July 1980. Mr Johannes for the Commission informed the Tribunal that it accepted the finding that polyarthritis was a war caused disease and that the only matters in issue were the rate of pension following on that finding and the date of operation of any increase in rate due to the acceptance of polyarthritis. After hearing the evidence, Mr Johannes conceded that the Commission accepted that Mr Reid was entitled to be paid pension at 100 per centum of the general rate from 29 September 1984.
The Tribunal was satisfied that "from November 1971 a determination that Mr Reid's incapacity due to polyarthritis was 100 per centum would have been appropriate, if Mr Reid's polyarthritis was then accepted as service-related"
The question of Mr Reid's entitlement to payment of pension at the special rate involved a consideration of sub-sec 24(1) of the Act which reads as follows -
"24(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -
(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity."
The Tribunal prepared a timetable in relation to Mr Reid, as follows -
"16 May 1960 Claim for acceptance of rheumatoid
(T4) and osteo-arthritis as service related.
10 June 1960 Formal claim lodged for osteo and
(T6) rheumatoid arthritis.
10 April 1961 Claim for acceptance of anxiety
(T25) neurosis, dyspepsia and other conditions. 6 September Anxiety neurosis with dyspepsia 1961 (T25) accepted as service related from 10 October 1960. Incapacity found not to warrant payment of pension.
19 November Pension granted at 10 per cent of
1962 (T28) general rate for anxiety neurosis with dyspepsia. 23 April 1970 Pension for anxiety neurosis with (T45) dyspepsia increased to 30 per cent of general rate from 1 July 1969. 9 March 1972 Appeal (Informal Claim) to War Pensions
(T52) Assessment Appeal Tribunal for 'arthritis and osteo and Rheumatoid.'
28 June 1984 Further evidence lodged in respect of
(T67) claim to have rheumatoid arthritis accepted. 26 July 1984 Repatriation Commission decision that
(T69) rheumatoid arthritis not service related. 7 August 1984 Mr Reid advised of decision.
(T70) 4 March 1985 Informal claim to have rheumatoid
(T74) arthritis accepted as war-caused lodged by Dr. Carless. 28 March 1985 Application for review by VRB (under s.107VC of
(T75) the Repatriation Act pursuant to sub-s.55(2) of the Repatriation Legislation Amendment Act 1984).
11 April 1985 Formal claims lodged in respect of: (T77)
(i) Osteo and Rheumatoid Arthritis
(ii) Stroke Condition
(iii) Hypertension
(iv) Chronic Bronchitis
(v) Nervous Condition
(vi) Skin Rashes
(vii) Tinea
26 February Repatriation Commission
decisions 1986
(T86 inter alia, rheumatoid arthritis -
and 87) not accepted. Stroke, hypertension, chronic bronchitis and tinea accepted; pension increased to 70 per centum of general rate.
15 April 1986 Application for review under section
(T91) 107VC of the Repatriation Act.
6 April 1987 VRB - decision under review
(T1 and T2)
22 April 1987 Advice of decision received by
(T1) Repatriation Commission
21 July 1987 Application for review under section
(T1) 175 of the Act."
The Tribunal concluded that "Mr Reid was simply seeking to have his pension increased to cover his 'rheumatoid and osteo-arthritis' which was later diagnosed as polyarthritis . . . by whatever means were available. All he was doing was lodging further requests to have his polyarthritis condition accepted and appealing against each decision that rejected it".
The Tribunal referred to an informal claim or application for reconsideration which was lodged on 9 March 1972 "on an inappropriate form (T52)". The document was headed "Appeal to War Pensions Assessment Appeal Tribunal" but under the heading "Grounds of Appeal" Mr Reid wrote -
"arthritis and osteo and rheumatoid. I was treated for fibrositis during my service in the army, which I think was the start of arthritis."
The Tribunal continued:
"16. Because that claim was on the wrong form it was apparently sent to the War Pensions Assessment Appeal Tribunal ("WPAAT") which treated it solely as an appeal against the assessment in respect of the accepted condition of anxiety neurosis with dyspepsia. The claim in respect of arthritis was ignored and Mr Reid was not even advised that it would be necessary to make a further claim or application for reconsideration in accordance with an approved form or to supply further evidence in support of a reconsideration.
17. This state of affairs indicates the incredible complexity facing both officers of the Repatriation Commission attempting to process claims and veterans attempting to establish entitlement to an increase in pension in respect of which had previously been rejected as not service related. It was not until 1984 that Mr Reid took further steps to establish entitlement to pension in respect of arthritis of a rheumatoid type. If the document lodged on 9 March 1972 had been appropriately dealt with a further process of decision making or review would have commenced in 1972.
18. If the document lodged on 9 March 1972 is recognised as an informal claim for acceptance of polyarthritis, as a formal claim was lodged on 11 April 1985, which was within three months of Mr Reid being told of the need to make a formal claim, then under the Act the Commission would have a discretion to approve increased payment of pension from a date not earlier than three months before 9 March 1972, under sub-s.20(2) of the Act, or not earlier than 9 March 1972, under sub-s.21(2) of the Act.
19. The relevant provisions read as follows:
"20(2) Where -
(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a);
(b) the person subsequently makes a claim for the pension in accordance with a form so approved -
(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.'
20. Section 21 is in similar terms but applies to an application for an increase in pension. Because the characterization of document T52 was not considered during the hearing, the Tribunal directed the Registrar to write to the parties pointing out that the Tribunal considered it to be an informal claim to have 'rheumatoid and osteo-arthritis' accepted as service-related, and inviting submissions as to the Tribunal's power to backdate the acceptance of polyarthritis to 9 March 1972 in accordance with sub-ss.20(2) and 21(2) of the Act and the Transitional Act."
Having considered the response to the letter, the Tribunal said:
"22. We consider that it would be unjust if we too were to overlook the 1972 attempt by Mr Reid to reassert his entitlement to pension on account of polyarthritis. Mr Johannes submitted that as no decision making process had followed from the lodging of document T52, the Tribunal had no jurisdiction under s.175 of the Act to consider that document. We reject that submission because, on our analysis, document T52 was the informal initiating document and documents T67 and T77 are further formal documents in the same proceedings. T74 is another informal document of a similar nature to T52."
The Tribunal decided to backdate the acceptance of polyarthritis as war-caused to 9 March, 1972. In doing so, it relied upon the judgment of Davies J in Jebb v. Repatriation Commission (1980) 80 ALR 329.
Jenkinson J in his reasons for judgment noted that the Tribunal rejected the Commission's contentions that pension was not at any time payable to Mr Reid at the special rate prescribed by s.24, and that the date as from which the Commonwealth was liable to pay pension to Mr Reid for incapacity from polyarthritis was a date later than 26 July 1980.
His Honour pointed out that on 28 March 1985, when Mr Reid sought a review of the decision of the Commission that his arthritis was unconnected with his war service
"the Repatriation Act 1920 had been extensively amended by the Repatriation Legislation Amendment Act 1984, which had come into operation on 1 January 1985. Section 55(2) of the latter Act provided: 'Where a person would, but for the repeal of Part IIIA of the Repatriation Act, have had, on or after the commencing day, a right to make application under section 107VC or section 107VD of that Act to the Tribunal for a review of a decision of the Commission made before that day, application may, subject to sub-sections (3) and (4) of this section, be made under section 107VC of the Repatriation Act as amended by this Act to the Veterans' Review Board for a review of that decision.' The expression 'Repatriation Act' had in s.55(2) the defined meaning' Repatriation Act 1920 as in force immediately before the commencing day', that is 1 January 1985. Sub-sections (3) and (4) of s.55 had no application in the circumstances of this case. But for the repeal of Part IIIA of the Repatriation Act, as defined, Mr. Reid would have had, on and after the commencing day, a right to make application under s.107VC of that Act to the Repatriation Review Tribunal established under that Act (that being the body signified by the words 'the Tribunal' in s.55(2)). Section 107VC had until it was repealed by the Repatriation Legislation Amendment Act 1984 conferred on Mr. Reid a right to make application to the Repatriation Review Tribunal for a review of the Commission's 'decision refusing a claim . . . for a pension . . . under this Act arising out of the incapacity (of Mr. Reid) on the ground that the incapacity . . . did not arise out of (and) . . . was not attributable to his war service': see s.107VC(1)(c). The decision which the Commission had made on 26 July 1984 was a decision of that description. Accordingly the somewhat imprecisely worded documents furnished on Mr. Reid's behalf to the Department of Veterans' Affairs on 28 March 1985 were treated as making application by him under s.107VC of the Repatriation Act 1920 as amended by the Repatriation Legislation Amendment Act 1984 to the Veterans' Review Board for a review of the Commission's decision of 26 July, 1984.
When on 6 April 1987 the Veterans' Review Board gave its decision on that review further extensive amendment of the relevant statutory law had been made. The Repatriation Act 1920 as from time to time amended was repealed by the Veterans' Entitlements Act 1986, which came into force on 22 May 1986, as did the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986. Section 19(1) of the latter Act provided that an application made to the Veterans' Review Board under s.107VC of the Repatriation Act 1920 that had not been determined under that Act before 22 May 1986 should, on and after that date, be treated as if it were an application that had been made to the Veterans' Review Board under s.135 of the Veterans' Entitlements Act 1986 and should be heard and determined accordingly. Sub-section 21(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided: 'Where a decision is made by the Commission, the Board or the Administrative Appeals Tribunal under the Veterans' Entitlements Act, including a decision so made by virtue of a provision of this Act, granting a pension, increasing or reducing the rate of a pension or granting an allowance or another pecuniary benefit, a date, which may be a date before the commencing date, may be fixed, in accordance with the relevant provisions of the Veterans' Entitlements Act, as the date as from which payment of the pension, payment of the pension at the increased or reduced rate or payment of the allowance or other benefit is approved.'
In that Act and in the Veterans' Entitlements Act 1986 'Board' means the Veterans' Review Board.
Sub-sections 157(1) and 157(2) of the Veterans' Entitlements Act 1986 provided:
'(1) Where the Board, upon its review of a decision of the Commission refusing to grant a pension to a person, sets aside that decision and substitutes for it a decision to grant a pension to the person, the Board may fix, as the date from which its decision is to operate -
(a) if the person made application for the review within 3 months after service on him of a copy of the decision of the Commission - a date not earlier than the earliest date from which the Commission could, if it had not made that decision, have approved payment of a pension to the person; or
(b) in any other case - a date not more than 6 months before the date on which the person's application for review of that decision was received at an office of the Department in Australia.
(2) Where the Board, upon its review of a decision of the Commission assessing a rate or increased rate of pension or refusing to increase the rate of a pension, sets aside that decision and substitutes for it a decision that increases the rate of that pension, the Board may fix, as the date from which its decision is to operate, a date not earlier than the earliest date which the Commission could, if it had not made that decision, have fixed as the date from which pension at that increased rate was to be payable."
His Honour went on to say:
"Mr. Reid may have received a letter dated 7 August 1984 from a Deputy Commissioner of the Repatriation Commission, in these terms: 'Dear Mr Reid
The Repatriation Commission has considered the further evidence in support of your claim for acceptance of Rheumatoid Arthritis.
When further evidence is submitted in respect of a claim which has previously been unsuccessful at the Tribunal level, the Repatriation Commission must initially consider the further evidence and decide if it would have been relevant to the making of its earlier decision in respect of the claim had this further evidence been available at that time.
If the Commission considers the further evidence would have been relevant, it is then required to reconsider the case in its entirety, that is, to determine on the basis of all the evidence in the case whether or not the incapacity or death is related to service. If the Commission adheres to its earlier decision that the incapacity or death is not related to service, you have a right to apply to the Repatriation Review Tribunal for a review of the Commission's decision.
Although the Commission considered the further evidence submitted in your case to be relevant to your claim, it is still unable, having regard to this evidence and all the other evidence in your case, to accept Rheumatoid Arthritis as being related to service.
You may apply to the Repatriation Review Tribunal for a review of the Commission's decision, and if you choose to make such an application, it must be lodged in writing, at this office."
His Honour continued:
"That letter does not in my opinion answer the description 'a copy of the decision of the Commission', in s.157(1)(a). That phrase in s.157(1)(a) no doubt refers primarily to a document of the kind which s.34 of the Veterans' Entitlements Act 1986 requires that the Commission make and cause to be served on the person specified in sub-section 34(2). But in and after July 1984, when the relevant decision of the Commission was made, until 1 January 1985 s.47A of the Repatriation Act 1920 as then in force imposed a similar requirement on the Commission, as did a section of the same number which was substituted by s.14 of the Repatriation Legislation Amendment Act 1984 which came into force on 1 January 1985. That legislation, as in force from time to time until the Veterans' Entitlements Act 1986 commenced on 22 May 1986, referred to 'service . . . of a copy of the decision of the Commission' in description of what s.47A required. Sub-section 22(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided:
'Section 34 of the Veterans' Entitlements Act extends to a decision made by the Commission before the commencing date under a repealed Act, being a decision of a kind similar to a kind of decision to which that section applies.'
Paragraph 22(4)(a) of that Act provided:
'For the purposes of the Veterans' Entitlements Act and of this Act -
(a) any reasons for a decision in respect of a pension other than a service pension duly given and served by the Commission in accordance with a provision of a repealed Act shall have effect on and after the commencing date as if given and served under section 34 of the Veterans' Entitlements Act;'
A document satisfying the requirements of s.47A, and of s.34, was made by the delegate of the Commission who made the decision of 26 July
1984. A copy of that document, dated 26 July 1984, which does in my opinion answer the description, 'a copy of the decision of the Commission', in s.157(1)(a), was in evidence before the Administrative Appeals Tribunal, but there was no direct evidence, nor any explicit finding by that Tribunal, that a copy of the document had been served on Mr. Reid. On the contrary, it may be inferred from its reasons for decision that the Administrative Appeals Tribunal considered that receipt of the letter dated 7 August 1984 satisfied the words 'service on him of a copy of the decision of the Commission', and did not consider the question whether the written record of the decision containing a statement of the reasons for the decision, which the Commission's delegate made and signed and dated 26 July 1984, was ever served on Mr. Reid. In my opinion the evidence before the Administrative Appeals Tribunal would not support a finding that service of a copy of that document on Mr. Reid had been effected before he made application for review of the Commission's decision on 28 March 1985. Not only does the letter Dated 7 August 1984 not answer the description 'written record of its decision', within the meaning of s.47A or s.34, or the description 'a copy of the decision' in s.157, being rather a notification that the decision has been made and a summary statement of its content, but the terms of that letter raise an inference that no 'copy of the decision' or copy of 'the written record of its decision' was sent to Mr. Reid until after he had communicated with the Commission in March 1985. There was a hearing of Mr. Reid's application for review of the Commission's decision, in Melbourne on 6 April 1987, at which he, his wife and a member of 'Ballarat Legacy' were present. That circumstance would in my opinion justify an inferred finding that before the Veterans' Review Board made its decision on the application on 6 April 1987 Mr. Reid had received a copy of the decision of the Commission. But, even if it could not be found that Mr. Reid had ever received 'a copy of the decision of the Commission', the condition specified by the introductory clause of paragraph 157(1)(a) - 'if the person made application for the review within 3 months after service on him of a copy of the decision of the Commission' - would in my opinion have been fulfilled. The words of that condition are in my opinion to be so construed that they are satisfied in the event that service of a copy of the Commission's decision on the person making application for review is not effected. It could hardly have been the intention of Parliament that the Commission's failure to comply with the statutory requirement of service should deprive an applicant who succeeds on review by the Board of the advantage which accrues to an applicant within paragraph
(a) of sub-section 157(1) over an applicant within paragraph (b) of that sub-section. The intention which I think must be imputed to Parliament is given effect by understanding the introductory clause thus : 'if the person made application for the review before the expiration of 3 months after service on him of a copy of the decision of the Commission'. Whether it be in sub-section 157(1) or in sub-section 157(2) that the Commission's decision be correctly described, the date from which the Board's decision may operate is specified in the same terms : 'a date not earlier than the earliest date which the Commission could, if it had not made that decision, have', in the case of paragraph 157(1)(a), 'approved payment of a pension to the person', and in the case of sub-section 157(2), 'fixed as the date from which pension at that increased rate was to be payable'."
Later in his reasons (AB197) his Honour said that the Tribunal had erroneously assumed "that service on Mr Reid of a copy of the Commission's decision of 26 July 1984 had been effected more than 3 months before he made application for review of that decision by the Veterans' Review Board".
On appeal to us, the Commission's "substantial complaint" was that his Honour exceeded his jurisdiction by concluding, as he did, that the letter of 7 August 1984 did not amount to due service on Mr Reid. It was submitted that his Honour should have presumed that service had been duly carried out by the Commission, or should have remitted the matter to the Tribunal for further investigation.
In our opinion, these submissions are not well founded. The Tribunal made an error of law which his Honour was bound to correct. After referring to a submission that 'Mr Reid did not lodge his application for a review of the decision by the Commission within 3 months of service on him', the Tribunal said, 'This is correct as the decision of the Commission was made on 26 July 1984 and Mr Reid did not apply to the Veterans Review Board for a review of that decision until 28 March 1985.' In this finding, the Tribunal was, as his Honour held, wrong in law for it referred to the date when the decision was made, 26 July 1984, not to the date when the decision was served on Mr Reid, the date to which s.157(1)(a) referred. The Tribunal found the only relevant communication of that decision to be the letter of 7 August 1984 for, when setting out the relevant chronology or "timetable" as the Tribunal described it, the Tribunal included the date of 7 August 1984 and noted against it 'Mr Reid advised of decision.'
Having regard to the evidence before the Tribunal and to the Tribunal's finding of fact, his Honour was therefore bound to hold that the only conclusion which had been open to the Tribunal in law was that a copy of the Commission's decision had not been served on Mr Reid more than 3 months before he lodged his application for review. Accordingly, whether s.157(1)(a) or s.157(2) applied, the decision on review could have operated from a date not earlier than the earliest date from which the Commission could have approved payment of the increased pension and the Tribunal should have so held.
The other criticism made of his Honour's judgment was that he erred in following and applying Jebb's case which, it was submitted, was wrongly decided.
Jenkinson J pointed out (at AB207) that in that case
"Davies J. held that, if sub-section 19(2A) and s.24A (a provision yet to be discussed) were put out of account, the legislation of which the Veterans' Entitlements Act 1986 may be regarded as the principal element authorized ascertainment by the Administrative Appeals Tribunal, on review in pursuance of s.175(1), of the veteran's eligibility for pension at the special rate on each day during the period commencing on the date from which the Tribunal was authorized to approve payment of pension or payment of pension at an increased rate, as the case may be, and concluding on the date of its decision, and also authorized decision by the Tribunal that pension be paid at the special rate for the period in respect of which it had ascertained that eligibility existed. I respectfully accept his Honour's opinion, substantially for the reasons which he states. If that were the authority the Tribunal had, the period during which Mr. Reid's eligibility for pension at the special rate was to be ascertained was the period commencing on 9 March 1972 and ending on the date of the Tribunal's decision, 27 June 1988.
Section 24A of the Veterans' Entitlements Act 1986 was inserted into that Act by the Social Security and Veterans' Entitlements Amendment Act (No.2) 1987, s.65, which was, like ss.63 and 64, deemed to have come into operation on 22 May 1986. Section 24A provides: 'Where the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies - the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.'
Davies J. held, in Jebb v. Repatriation Commission, supra, that s.19(2A) should be understood as giving a direction only in respect of a determining authority's consideration of the question whether on the date on which a claim or an application was made eligibility for pension at the special rate (or, in relation to s.23, at what is called 'the intermediate rate') existed, and understood as directing such an authority which has answered that question in the affirmative to eschew enquiry, except such an enquiry as paragraphs 24A(b) and 24A(c) authorize, concerning eligibility after that date. His Honour said (80 ALR at 341): 'I read the new s.19(2A) as dealing solely with the question of entitlement as at the date of application . . . I do not read s.19(2A) as dealing with the question of entitlement during the period prior to the date during which the decision may be backdated or during the period from that date to the date of the decision'. (It may be that the sense of the passage quoted is clearer if the phrase 'prior to the date' is understood as 'prior to that date'.)
It was submitted by Dr. Jessup QC that s.19(2A) did not fall within sub-paragraph 15AB(1)(i) or 15AB(1)(ii) of the Acts Interpretation Act 1901 and that therefore the recourse Davies J. had, in construing s.19(2A), to the second reading speech of the Minister of State for Veterans' Affairs on the bill for the Social Security and Veterans' Entitlements Amendment Act (No.2) 1987 was not justified. The plain meaning of s.19(2A) should in Dr. Jessup's submission be accepted as affording its proper construction and I should decline to accept the construction Davies J. had adopted. If that were done, the only dates to which the Tribunal might have given consideration were dates on which Mr. Reid's eligibility for pension at the special rate could not have been found to have existed.
I would not decline to accept a carefully considered conclusion about the proper construction of a statutory provision by another judge of the court unless convinced that it was wrong. I am not so convinced."
Despite Dr Jessup's careful argument, we are of opinion that Jebb's case was correctly decided, and are content to adopt the reasons for judgment delivered in that case.
No reason has been shown to lead us to differ from Jenkinson J's conclusions. Accordingly, the Court orders that the appeal be dismissed, with costs.
3