Smith, M. v The Repatriation Commission

[1986] FCA 537

C A T C H W O R D S

REPATRIATION - pension granted on review by Veterans' Revlew Board -

appeal to A.A.T. concerning date from which pension to be paid -

appeal to Board instituted before but decided after commencement

of amending Act - whether transltional provision wlth

retrospective effect has a substantive operation - specific

provlslon dealing wlth date from whlch a declslon to operate

overriding general provision with respect to Board's exerclse of

discretion.

Repatrlation Act, 1920 ss.l07VC, 107VZG(1)

Repatrlation Leqislatlon Amendment Act, 1984 55.19,

5 5 ( 1 )

Marv Smlth

v. The Repatriation Commlssion

QLD G10 of 1986

PINCUS J.

BRISBANE

24 NOVEMBER 1986

ZlVED

I	2 5 NOV 1986
l

\	FEDERAL	COURT	OF
AUSTRALIA

PRINCIPAL REOISTRY

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD G10 of 1986
GENERAL DIVISION	)

ON APPEAL F R O M THE OUEENSLAND DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL. CONSTITUTED BY

THE HON. J.B.K. WILLIAMS, SENIOR MEMBER

BETWEEN: MARY SMITH

Appllcant

AND: THE REPATRIATION COMMISSION

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	24 NOVEMBER 1986
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

The appeal be dlsmissed.

NOTE: Settlement and entry of orders is dealt wlth In

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G10 of 1986
GENERAL DIVISION	)

ON APPEAL FROM THE OUEENSLAND DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL, CONSTITUTED	BY
THE HON. J.B.K. WILLIAMS. SENIOR MEMBER

BETWEEN: MARY SMITH

Appllcant

AND: THE REPATRIATION COMMISSION

Respondent

PINCUS J. 24 NOVEMBER 1986

REASONS FOR J U K M E N T

Thls 1s an application concernlng the date from whlch a

pension granted under the Repatriation Act 1920 to the applicant, a war widow, should be pald. The appllcatlon comes to thls Court

by way of appeal from the Admlnlstratlve Appeals Trlbunal, but I s

curial history goes back to 1960. The Repatrlatlon Act has been

repealed by the Veterans' Entitlement Act 1986, 5 . 3 , but will be

spoken of in these reasons as If still in force.

The applicant's husband, a veteran of World War I, died

on 7 February 1960,	the certificate giving the direct cause	of
death as cachexia,	with the antecedent cause being given as

carcinoma of the bladder. The applicant lodged a claim with the

Repatriation Board for a war widow's pension on 29 March 1960.

The decision of the Board, dated 4 May 1960, was that the

applicant was not entitled to a pension because her husband's

death was not due to his war service. It was not until 9 July

1975 that an appeal was lodged against thls decision by way of

letter to the Repatriation Commission. This appeal was disallowed

on 1 December 1975. A n appeal was then instituted against the

latter decislon on 3 January 1984, and it was heard by the

Veterans' Review Board, which made a decision on the 11 February

1985 in these terms:

"Pursuant to section 24 of the Repatriation Act

1920, the Commonwealth is liable to pay, on and

from 6th July 1983 to the dependants of Edward

George SMITH (deceased), includlng his widow, MARY

SMITH the pensions payable In accordance with

Divison 1 of Part 111 of that Act, in the case of the death of a member of the Forces."

It may be that the change in attitude was due in part to

a 1977 amendment to the Act, which had the effect of changing the

onus of proof where application was made for a penslon. The new

s.47 said, In effect, that the relevant body should allow an

appeal "unless it 1 s satisfied, beyond reasonable doubt, that

there are insufflcient grounds for granting the clalm or

application or allowing the appeal".

The argument put forward by the applicant In her appeal

to the Administrative Appeals Tribunal concerned the date from

which the Veterans' Review Board had ordered the pension to be

paid. The applicant contended that she was entitled to recelve a

pension from the date of her husband's death. That appeal was

dismissed on	25 October	1985, and application was then made to
this Court.

The Repatriation Act was amended frequently, and the

most important amendments, for the purpose of this case, were

those which came into operation on 1 January 1985, made by the

Repatriation Lesislation Amendment Act 1984. Prior to the passage

of that Amendment Act, initial applications for pensions under the

Act were decided by the Repatriation Board or Repatrlatlon

Commission; the latter could review the former's declsions.

Appeals from the Commission were then heard by a Repatriation

Review Tribunal. The 1984 Amendment Act abolished that Trlbunal

and made the Commission the body which was to declde inltial

applicatlons, sub~ect to review by a Veterans' Renew Board

established under a new Part IIIA. The Act provlded an appeal

from the Veterans'	Renew Board to the Administratlve Appeals
Trlbunal.

The appeal lodged In 1975, to whlch reference 1 s made

above, was, of course, made under the older provlslons lust

referred to. The appeal from the Commission was also made whlle the old provisions were in force, and in the normal course would have been heard by the Repatriation Review Trlbunal. However, the

appeal was not decided until after the commencement date of the

Amendment Act. The relevant transitional provislon to be applied

was s.55(1):

"An application under section 107VC or section 107VD

of the Repatriation Act that had not been decided

by the Tribunal before the commencing day shall, on

and after the commencing day, be treated as If it

were an application duly made under section 107VC

of the Repatriation Act as amended by this Act, and

that Act, as so amended, applies, subject to this

section, to and in relation to it accordingly."

The "Tribunal" referred to in this provision is the Repatriation

Review Tribunal. Section 107VC is the provision which provides

for an application to the Repatriation Review Tribunal for a

review of a decision of the Commission refuslng a claim by a

person for a pension. Section 107VC, as amended, provides for the

review of a decision of the Commission by the Veterans' Review

Board, where a person making a claim for a pension is dlssatlsfled

wlth the declslon.

The requirement that an applicatlon to the former

Repatriation Review Tribunal be treated, in cases of thls sort,	as
if made to the Veterans' Review Board appears to me to apply to

the fixation of the date of commencement of the penslon. There

is, of course, a presumptlon against retrospectlvlty applicable to

all but procedural statutes: Maxwell v. Murphv (1957) 96 C.L.R.

261. In that case, a time llmitation prescrlbed for lnstltutlon

of a Lord Campbell's Act sult was held not to be a procedural

provlslon and, in my oplnlon, that case and the line of the

authority it follows support the vlew that provisions of the

Repatriation Act setting a time limit on the power to backdate

pensions are not procedural either. However, it appears to me

that the relevant words "be treated as if" In s.55(1) are strong

enough to show an intention that, in all respects, substantlve as

well as procedural, the application is to be treated	as if made to
the Veterans' Review Board.

The provision under which the Veterans' Review Board

acted when fixing the date mentioned, in its decision of 11

February 1985, as being that from which liability to pay the

pension arose was s.l07VZB(1) reading as follows:

"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 whlch its

decision is to operate -

(a)	if the person made application for the review
within 3 months after servlce on hlm of a copy
of the decision of the Commisslon - a date not

earlier than the earliest date from whlch 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 declslon was

received at an address of the Department."

Slnce para.(a) of this sectlon does not apply, the Veterans'

Review Board had no power to fix a date earller than s1x months

before the application for review was recelved. The date It in

fact fixed was 6 July 1983, obviously on the basls that the

application for renew was received on 6 January 1984 - as,

accordlng to the papers before me, it was. But even If the view

expressed above as to retrospectlvity 1 s incorrect, the same

result appears to follow. That is so because by the old

s.l07VZG(l)(d) and (e), time limits were set whose effect was

precisely the same, in the instant case, as that of the new

provisions; s.l07VZG(l), subject to provisions whlch have no

application here, required that a decislon of the Repatriation

Review Tribunal pursuant to an application under s.lO7VC:

' I . . . shall not be expressed to operate from -

(d) a date earlier than 3 months before the day in

which the relevant claim for pension was

lodged;

(e) a date earlier than 6 months before the day in

which the application under sub-section (1) of

section 107VC was lodged at the appropriate

address referred to in section 107W ..."

The applicant's representative argued that the result

produced by the application of the relevant provlslons was grossly

unfair and relied on s.lO7W which reads as follows:

"The Board, in conducting a review, In hearlng a

review or in making a decision on a revlew -

(a)	1 s not bound by technicalltles, legal forms	or
rules of evidence; and

(b) shall act according to substantial ~ustlce and

the merlts and all the clrcumstances of the

case and, wlthout limiting the generallty of

the foregolng, shall take Into account any

dlfflculties that, for any reason, lie In the

way of ascertainlng the existence of any fact,

matter, cause or clrcumstance, . . ."

It is Mr. Quade-Smith's contentlon that the Board, In applylnq s.l07VZB, was blndlng Itself by a technlcallty and not acting In

accordance with substantial lustlce and the merits of the case.

Section 107VF(1) provides the Board with a broad

discretion in dealing with a review of a decision. Section 107VZB is, however, a specific provision which limits the discretion of

the Board when setting a date from which a decision is to operate,

and plainly overrides general provisions such as s.107W.

The legislature contemplated that even in cases where it

might be decided on review that a person was, after all, entitled

to a pension, such pension was not necessarily to be paid on the

date at which that entitlement arose, but on a date fixed by reference to the time of the lodgment of either the claim or the

application for review. The Board, in renewing the decision,

exercised its power in accordance with these provisions and this

Court cannot, therefore, interfere.

The appeal will therefore be dismissed.