VETERANS’ AFFAIRS – claim for pension – review by Administrative Appeals Tribunal of Repatriation Commission’s determination that disease was not war-caused – Statement of Principles made after application for review filed with Tribunal but before determination of the Tribunal – whether Statement of Principles should have been applied by Tribunal – effect of s120A Veterans’ Entitlements Act 1986 – whether s120A “affected” a right
REPATRIATION COMMISSION v FRANK THOMPSON N 820 OF 2000
DRUMMOND, WHITLAM & EMMETT JJ 2 APRIL 2001 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 820 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
FRANK THOMPSON RESPONDENT
JUDGES:
DRUMMOND, WHITLAM and EMMETT JJ
DATE OF ORDER:
2 APRIL 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 820 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
FRANK THOMPSON RESPONDENT
JUDGES:
DRUMMOND, WHITLAM AND EMMETT JJ
DATE:
2 APRIL 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
DRUMMOND J:
I have had the advantage of reading in draft the reasons of Whitlam and Emmett JJ. I agree with the order Emmett J proposes.
Section 120 the Veterans’ Entitlements Act 1986 (Cth), in terms, gives directions only to the Commission, when it is dealing with a pension claim under s 14, as to how it is to determine whether injury to or disease or death of a veteran was war-caused. But neither the Board when it reviews a decision of the Commission on application under s 135 or the Tribunal when it reviews a decision of the Board on application under s 175 has any authority to make determinations on the war-caused issue by applying an approach different from that which s 120 obliges the Commission to adopt. This follows from their roles as administrative tribunals charged with merit review of decisions of other administrative bodies and from s 139(3) the Veterans’ Entitlements Act (in the case of the Board) and s 43(1) the Administrative Appeals Tribunal Act 1975 (Cth) (in the case of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Repatriation Commission v Thompson [2001] FCA 341
Case
[2001] FCA 341
Decision Date
CaseChat Overview and Summary
The appeal in Repatriation Commission v Thompson was heard by the Full Court of the Federal Court of Australia. The dispute involved a claim for a pension by a veteran, who alleged that his irritable bowel syndrome was caused by his war service. The Repatriation Commission had rejected the claim, and the matter was reviewed by the Administrative Appeals Tribunal (AAT). The Tribunal subsequently considered a Statement of Principles that was issued after the veteran had filed an application for review but before the Tribunal made its decision. The central legal issue was whether the Tribunal should have applied the Statement of Principles in making its decision.
The court had to determine the effect of section 120A of the Veterans’ Entitlements Act 1986, which provides that a claim for pension must be made within a specified period and sets out the criteria for determining the claim. The court also had to decide whether section 120A affected a right in a way that would preclude the application of a subsequently issued Statement of Principles. The Full Court found that the Tribunal should not have applied the Statement of Principles because it would have been unfair to the veteran to change the substantive rules governing the claim after the veteran had initiated a review. The court reasoned that there was an implied intention by Parliament to protect accrued rights, and that the legislation did not clearly intend to abrogate such rights.
The Full Court held that the AAT had erred in applying the Statement of Principles in its review of the Commission’s decision. The court found that the primary judge correctly interpreted section 120A and applied the correct principles of statutory interpretation. The court also noted that the Full Court’s decision in Repatriation Commission v Keeley supported the primary judge’s conclusion. The appeal was dismissed, and the veteran was awarded costs.
Orders
Orders of the court
1. The appeal be dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
It is clear that in the exercise of its review function under s 43, the Tribunal stands in the shoes of the decision-maker and the exercise of its review jurisdiction is the occasion of a fresh exercise of administrative power, accordingly, in the ordinary course of events, the Tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision. Where appropriate, the Tribunal can amend the diagnosis of a relevant disease that was determined upon by the Commission. See Brook v Repatriation Commission (1986) 5 AAR 102 and Re Riley v Repatriation Commission (1995) 21 AAR 174. The law to be applied is that in force on the date of the Tribunal’s decision: Re Costello v The Secretary, Department of Transport (1979) 2 ALD 934 at 943 - 944.THE ISSUE AND THE DECISION BELOW The essence of the question on appeal was whether the Tribunal in its review of the Board’s decision affirming the Commission’s decision, erred in having regard to s 120A(3) of the Act. The question turns on the operation of s 120A in circumstances where a Statement of Principles was determined after the decision of the Board but before the consideration of the question by the Tribunal. The Veteran applied for a pension on 10 April 1995. Accordingly, s 120A applied to the claim, since it was made after 1 June 1994. The claim for a pension was based on the condition known as “irritable bowel syndrome”. At the time of the decision of the Commission’s delegate, the Authority had not determined a Statement of Principles for irritable bowel syndrome. Accordingly, the decision of the Commission’s delegate was based on the evidence before the delegate at the time of the decision as to the connection between that condition and war service. At the time of the decision by the Board of 29 March 1996, the Authority had still not made a determination of a Statement of Principles concerning irritable bowel syndrome. However, by the time the matter came to hearing before the Tribunal on 28 May 1997, a Statement of Principles (No. 103) concerning irritable bowel syndrome had made on 16 August 1996. Nevertheless, the Tribunal concluded that, in making a decision of the matter before it, it should apply that Statement of Principles. The primary judge concluded that the Tribunal had made an error of law in making a decision on the basis of the Statement of Principles concerning irritable bowel syndrome. His Honour concluded that an intention should be imputed to Parliament that, after a veteran has made a claim on one legally relevant set of criteria and embarked on the exercise of a right of review of a claim so based, the substantive rules governing the claim should not be changed to the disadvantage of the claimant. On appeal the Veteran supported the primary judge’s conclusion that:·a presumption of construction protecting accrued rights applies in the circumstances; and·the legislation does not exhibit, with the requisite clarity, an intention to abrogate such accrued rights.The primary judge in his reasoning and the Veteran on appeal placed considerable reliance on the decision of the Full Court in Repatriation Commission v Keeley [2000] FCA 532, 98 FCR 108 (“Keeley’s Case”).REASONING ON APPEAL