- bI ' \> pace: Administrative Taw - judicial review - decision by delegate of Repatriation Commission under 5.31 of the Repatriation Act not to review a decision to refuse the applicant's claim for a war pension - whether decision involved an error of law or was an improper exercise of power - consideration of the onus of proof upon persons applying for war pensions - effect of repeal of 5.31 of the Act by the Repatriation Legislation Amendment Act upon the applicant's right to review under 5.31 - whether transitional provisions of amending Act an exhaustive code specifying rights and claims not extinguished by amending Act Ftatab ie te ee te ae lore the te ehh Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(e) & (f), 13 oF Repatriation Act 1920 ss. 31, 107VM Repatriation Leqislation Amendment Act 1984 5.53 Acts Interpretation Act 1901 5.8 THELMA HONORA MARION HINGE v. KAY MAREE RODDA & THE COMMONWEALTH OF AUSTRALIA No. WA G23 of 1983 TOOHEY 3. ; } i sy PERTH » i 1 MARCH 1985 Pe OC + ate ry os BE OS wt FeO ere a NEEL Ns ek He IYI ee ere rte err mea OF RO ree temmmermermi erin anes etn smree treme ere IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G23 of 1983 wwe eww BETWEEN: THELMA HONORA MARION HINGE Applicant and KAY MAREE RODDA First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent Oo R D E R JUDGE MAKING ORDER Toohey J. DATE _OF ORDER i March 1985 WHERE MADE Perth THE COURT ORDERS THAT: 1. The first respondent review, under 5.31 of the Repatriation Act 1920 as it stood hefore the Repatriation Legislation Amendment Act 1984, the decision of the No. 3 War Pensions Entitlement Appeal Tribunal made on 21 February 1978 disallowing the applicant's appeal against the refusal of her claim for a pension. ee sage FA Ne rn CPE REE mre eee reer TNE REET TOL TI RE a re i ET eer RETF 2. The respondents pay the applicant's costs of the application. ie aes ae a We tede ates penned a pees HMR ob my Dy eto Whe Sy ~ = 3s! pant at an ho ee sil ay SE ate 1 Pe IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G23 of 1983 BETWEE N: THELMA HONORA MARION HINGE Applicant and KAY MAREE RODDA First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent CORAM: TOOHEY J. 1 March 1985 REASONS FOR JUDGMENT This is an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977. Like a number of other applications that have been before the Court in recent times, it points up the complexity of the Repatriation Act 1920 and the procedural web of appellate and review procedures where an application for a pension has been refused. This comment is made in the light of the legislation as it stood before the amendments of 1984. The particular application hefore the Court seeks to review the decision of the first respondent, a delegate of the Commission, not to review under 5.31 of the Repatriation Act the cheater Sabet nhl te chen te pd sien Ler 2. decision of a War Pensions Entitlement Appeal Tribunal on 21 February 1978 disallowing the applicant's appeal against the refusal of her claim for a pension. The deceased member of the Forces saw service in World War II both overseas and in Australia. He was discharged from the Army on 5 October 1945 and over the next 25 years he worked at the Midland Workshops, farmed and was a temporary porter with the West Australian Government Railways. On 8 July 1970 he was admitted to Royal Perth Hospital with increasing shortness of breath and the development of leg oedema. He was found to have congestive cardiac failure with hepatosplenomegaly, with evidence of valvular heart disease. During 1970 he was admitted to and discharged from Royal Perth Hospital on several occasions. On 2 November 1970 he died following an operation to replace his aortic valve witha fascia lata prothesis. On 17 November 1970 the applicant, his widow, claimed a pension on the ground that her husband "died from serious heart complaint which specialists states was long standing, and could have been aggravated by war service". That claim was rejected by the Repatriation Board on 18 February 1971. On 26 November 1974 the applicant submitted a further claim which was, in essence, the same as that previously submitted. It is not clear what happened to that claim because the next step, as appears from the summaries file, is that on 24 December 1974 the applicant appealed to the Repatriation Commission against the decision of the Repatriation Board rejecting her claim. Apparently that was a reference to the claim made on 17 November 1970 because on 14 March 1975 the 3. Commission disallowed an appeal in respect of the SBoard's determination of 18 February 1971. On 27 May 1975 the applicant appealed to the War Pensions Entitlement Appeal Tribunal which, on 31 March 1976, referred the claim to the Commission for its reconsideration. On 2 July 1976 the Commission determined to adhere to its previous decision. On 22 February 1977 the War Pensions Entitlement Appeal Tribunal once more referred the claim to the Commission which in turn once more adhered to its previous determination. On 30 November 1977 Mr. Davies, the legacy advocate, requested the War Pensions Entitlement Appeal Tribunal to proceed with the appeal before it; on 21 February 1978 the Tribunal disallowed the appeal. As mentioned earlier, the application now before the Court is in respect of the refusal of the Commission to review the decision made on 21 February 1978. The request for a review was made on 4 September 1980 and undoubtedly was triggered by the Law case which at that stage had been determined by the Full Court of the Federal Court. See Repatriation Commission v. Law (1980) 31 ALR 140. The present application invokes paras 5(1)(e) and (f) of the Judicial Review Act. The applicant contends that the decision of the Commission involved an error of law and that it was an improper exercise of power in that the Commission took into account irrelevant considerations, failed to take into account relevant considerations, exercised a discretionary power in accordance with a rule or policy without regard to the merits of Fe en a IIT NOR ea peep I RT ee em Ee ROR RSE NRE EETR pO 4. the particular case and in that the exercise of power was 50 unreasonable that no reasonable person could have so exercised it. In a statement furnished pursuant to 5.13 of the Judicial Review Act, the first respondent referred to the disallowance of the applicant's appeal by the War Pensions Entitlement Appeal Tribunal and the request for a review of that decision under 5.31. After referring to certain other matters of record the first respondent stated: Ee a - ase lak anaeh « Neat atarns ot ae "Section 107VM of the Repatriation Act 1920 provides for the Repatriation Commission to reconsider a claim after an adverse decision of the Repatriation Review Tribunal where, at any time after the Tribunal's decision, the applicant submits, in writing, further evidence with respect to the relevant clain. i Under the Transitional provisions of part ' VIII of the Repatriation Acts Amendment Act 1979, provisions of section 107VM apply to an adverse decision of the War Pensions Entitlement Appeal Tribunal". The first respondent continued: "It is my understanding that section 31 of the Repatriation Act 1920 is not a means by which decisions adverse to a claimant may be reviewed whenever the claimant, or the claimant's representative, 50 requests. The legislature has provided the means of review of adverse decisions through specific appeal, review, and reconsideration provisions and, in the case of adverse Tribunal decisions, 7 provided in section 107VM an avenue for having a case reconsidered by the Commission". 8 nme COE vine TOY 2) > ay Hs seat The first respondent concluded by saying that she found 9 : 7 Ade sh omer that the matters advanced by Mr. Davies in support of a review BS) * wt bie ue ~ page tL ws ey core z at 5. were matters that were before the Tribunal and that Mr. Davies had not advanced any new matter or disclosed any grounds which might lead to the belief there had been an error in any material matter by the Tribunal. Now it is true that the legislature has, in the Repatriation Act, provided various avenues of appeal and review. It is also true that s.107VM provides for the reconsideration of a claim by the Commission where the Tribunal has affirmed the decision of the Commission. But s.107VM is concerned with a situation in which an applicant submits to the Commission "further evidence with respect to the claim the subject of that decision of the Commission". In such a case, and where the Commission is satisfied that the further evidence is evidence that would have been relevant to the making of the earlier decision, the Commission shall reconsider the claim. But the applicant was not relying upon 5.107VM; she was not submitting further evidence to the Commission. Through the Legacy advocate she was asking the Commission to review the decision made in regard to her claim in the light of what was referred to in the legacy advocate's letter as "the Federal Court's interpretation of the Act". It is common ground that this was a reference to the decision of the Full Court of the Federal Court in Repatriation Commission v. Law. However that is not the end of the matter for it is apparent that the first respondent did direct her attention to 5.31. The issue for the Court is whether her decision not to review under that section is itself susceptible of review under the provisions of the Judicial Rewiew Act. The resolution of this 6. issue necessarily involves a consideration of the reasons for decision of the War Pensions Entitiement Appeal Tribunal. But it is necessary to stress that the Court does not sit as a general court of appeal from the decision of the Tribunal. It is not for the Court to say what it might have decided had the matter come before it or to subject to close scrutiny the weight given by the Tribunal to a particular matter. The Court's function is spelt out and delimited by the provisions of 5.5 of the Judicial Review Act. er er eT When the War Pensions Entitlement Appeal Tribunal i rejected the applicant's appeal, it of course did not have available to it the judgment of the Full Court of this Court or ware - the judgment of the High Court in Law (Repatriation Commission v. Law (1980-1981) 147 CLR 635). But it may have reached its decision along a path which is consistent with Law or in any event not precluded by Law. That remains to be determined. The applicant's contention before the Tribunal was that the valvular j disease of the heart from which her husband died was due to rheumatic fever which may have been related to his war service. The Tribunal had before it the views of Dr. W. Laurie who was formerly Chief Government Pathologist in Western Australia. Dr. Laurie said that there were several conditions which may cause the disease of the aortic valve from which Mr. Hinge died but that all Be Ro tat, ice except two had been excluded. These were: eS als (a) rheumatic disease of the aortic valve (b) calcific aortic stenosis due to atheosclerosis ws Be ee se the mori. . De. Laurie thought it more likely that Mr. Hinge had rheumatic heart disease than pure calcified stenosis. His }. reasoning appears to have been that the latter condition is Similar to the hardening of the arteries seen in aged individuals " suffering from atheosclerosis of the coronary arteries and that it Zaew we is commonly found only in individuals over 60 years of age. Mr. Hinge was 56 when he died. As to rheumatic disease, most people Te eek develop the acute phase in youth but a significant proportion develop it in adult life and the diagnosis then can be very afaaidhee araseleem tn aifficult and easily missed. Relying upon a text book Boyd: Pathology 8th Ed. at pp. 525-560 Dr. Laurie adopted the writer's opinion that "in the great majority of cases, perhaps in every case, the lesion is rheumatic in origin". Dr. Laurie then continued: "If we are to accept this very authorative view, then I cannot see we can challenge the claim that the original cause of the disease was rheumatic fever which could well have been acquired, and certainly would have been worsened, by war service". The Tribunal recognised that this was not a case of competing medical evidence and it concerned itself with the Fi evidence of Dr. Laurie. The Tribunal commented that Dr. Laurie's evidence involved two propositions "namely that the original cause of the ex-member's fatal disease was rheumatic fever, and secondly that the rheumatic fever was related to the ex-member's war service". It pointed out, correctly, that there was no evidence of any manifestation of rheumatic fever in Mr. Hinge and, apart Bn ee ert nen ne rene rR UES HME EE ok srestnabvinnaiabene ne aru ey 8. from malaria, no abnormalities were detected on enlistment, during service, or at the final medical examination before discharge. Nevertheless, the Tribunal recognised that a condition of rheumatic endocarditis in an adult can easily be missed and that, according to the applicant, her husband was the kind of man who did not talk or complain about his health. The Tribunal said that it accorded due weight to Dr. Laurie's opinion but that, even if it were possible to drawa reasonable inference in favour of the applicant in relation to the first proposition, it would still be necessary to consider whether there was "any substantial evidence" that the rheumatic fever was related to war service. The Tribunal noted, again correctly, that Dr. Laurie did not say why the rheumatic fever could well have been acquired and certainly would have been worsened by war service. It concluded that there was no evidence from which it could reasonably infer that the rheumatic fever was related to war service and consequently there were insufficient grounds for allowing the appeal. In the course of its reasons the Tribunal said that it subscribed to certain views expressed by Sir Garfield Barwick while Attorney Generali for the Commonwealth. It is unnecessary to set out those views. Apparently they were part of advice given by Sir Garfield Barwick while Attorney relating to the function of a court when faced with a conflict of medical opinion. As already noted, the case was not one of conflicting medical opinions. The views expressed by Sir Garfield Barwick were not relevant to the 9. matter before the Tribunal but, on the other hand, I do not think they played any part in the decision which the Tribunal reached. The Tribunal also referred to a passage from the judgment of Denning J. in Miller v. Minister of Pensions (1947) 2 ALL ER 372. In that judgment Denning J. pointed out the need for a medical practitioner, in offering an opinion that a disease was or was not attributable to or aggravated by war service, to give reasons for that opinion otherwise the practitioner was virtually usurping the function of the tribunal whose role it was to decide that very question. Ido not think there can be any quarrel with the way in which the Tribunal referred to or applied the views expressed by Denning J. The real question is whether the Tribunal el ou ' - hn eine et Ah RS ee Ore correctly applied the onus of proof provisions inthe Act, as construed in Law, and in particular whether it should be concluded from the Tribunal's reasons that it wrongly placed the onus of proof on the applicant. I do not propose to refer to the many decisions in which the onus of proof provisions in the Repatriation Act have been examined - by the High Court in Repatriation Commission v. Law, by the Full Court of the Federal Court in Repatriation Commission v. Law and in O'Brien v. Repatriation Commission (1984) 53 ALR 477 and in judgments of the Federal Court at first instance. As a result of those decisions it is clear that the Tribunal had to be satisfied beyond reasonable doubt that any fact necessary to establish entitlement to a pension did not exist before it could refuse the applicant's claim. At no stage did the onus of proof shift to the applicant. te oe a ee en er a ee ee er eee ee we 4 Ebattee ty + i i | a 10. In my view there are passages in the reasons for decision of the Tribunal suggesting that, in its view, some onus did lie on the applicant to establish facts. Qne passage I have already referred to but, in the context of onus of proof, it is desirable to set it out in full. "The Tribunal accords due weight to Dr. Laurie's medical opinion in this respect. However even if, in the light of that opinion and notwithstanding the contentious nature of the medical argument involved and the lack of tangible evidence, it were possible to draw a reasonable inference in favour of the appellant in relation to the first proposition it would still be necessary to consider whether there is any substantial evidence that the rheumatic fever was related to war service". Towards the end of its reasons the Tribunal said: "The Tribunal has considered all of the evidence and finds that, even if the original cause of the ex-member's fatal disease was rheumatic fever as contended on behalf of the appellant, there is no evidence from which the Tribunal could reasonably infer that the rheumatic fever was related to the ex-member's war service within the terms of section 101 of the Repatriation Act". I am not to be taken as saying that the Tribunal was wrong in the conclusion that it reached but I am satisfied that in reaching its decision the Tribunal did err in law in requiring that it be satisfied that the original cause of Mr. Hinge's death was rheumatic fever and that the rheumatic fever was related to war service. il. The applicant does not seek an order in positive terms that she is entitied to a pension. She seeks an order "directing the Respondent to review under Section 31 of the Repatriation Act 1920 the said decision of the No. 3 War Pensions Entitlement Appeal Tribunal". In my view the first respondent's decision that sufficient reason did not exist for reviewing the decision of the Tribunal itself involved an error of law because it failed to appreciate that the Tribunal had reached its decision by a process of reasoning which may well have been understandable at the time tet ae a hence ote nt ede cearntedetnene AE but which had then been shown to have been wrong. In Bannister v. See (1982) 42 ALR 78 at 81 I said that 5.31 used "review", not in the sense of an appeal from the original assessment, decision or determination, but in the sense of a reconsideration of that assessment, decision or determination because of subsequent events. I said: "That is not to say that there must be shown some alteration in the position of the person benefitting or standing to benefit from a pension; it may be enough that later events have proved the assessment, decision or determination to have been wrong". Although the Full Court took a different view of the Particular matter for decision in that case (see Bannister v. See (1982) 45 ALR 146), nothing in the judgment of the Full Court casts doubt on that proposition. oH 4 The Repatriation Legislation Amendment Act 1984 effected ' many changes to the Repatriation Act, one of which was to repeal 5.31 and to replace it with a more involved system of review by the Commission. The first respondent submitted that, by reason of iz. the repeal of 5.31 and the substitution of a provision that had no application to the present case, no order could be made by the Court directing a review under 5.31 as it stood before the 1984 amendments. The 1984 amendments came into effect on 1 January 1985. The present application for an order for review was lodged on 16 dune 1983. Section 8 of the Acts Interpretation Act 1901 provides ' that when an Act repeals in whole or in part a former Act, then ; unless the contrary intention appears, the repeal shall not: (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or {e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid, and any such investigation legal proceeding or remedy may be instituted continued or enforced ... as if the repealing Act had not heen passed". In reasons for judgment delivered earlier today (Donovan v. Repatriation Commission WA G79 of 1984) I discussed the A implications of the repeal and re-enactment of 5.31. I shall not | repeat what is said there hut, for those reasons, I am of the 3 opinion that 5.48 of the Acts Interpretation Act is applicable in the present case. In my view, at the time of the repeal of 5.31 ' oe the applicant had a right to a review under that section which was aright accrued under the Repatriation Act. There was a legal aa By Rae a nat donner, Mae 13. proceeding on foot viz. the present application anda remedy available to the applicant in respect of the accrued right to a review of the decision of the respondent. I accept the submission of counsel for the applicant that the advice of the Privy Council in Director of Public Works v. Ho Po Sang (19613 AC 901 is distinguishable because what was involved in that case was not the investigation of a right but an investigation to decide whether some right should or should not be given. A case more in point is Free Lanka Insurance Co. Ltd. v. Ranasinghe €19643 AC 541 in which the repeal of the Motor Car Ordinance 1938 of Ceylon was held not to affect the right of the respondent to claim damages under that Ordinance. Legislation ' 4 ad j | replacing the Ordinance contained no transitional provisions designed to preserve rights or claims originating under the Ordinance. In Donovan v. Repatriation Commission I also discussed the effect of transitional provisions in the Repatriation Leqislation Amendwent Act and held that they had no application to the facts of that case. Equally they have no application to the facts of the present case. Section 53 of the Amendment Act applies sub-ss. 31(6) and (7) of the Act as amended to a refusal or failure of the Commission to review a decision in relation to a pension that occurs on or after the commencing day and a decision made by the Commission on or after the commencing day upon its review of a decision in relation to pension. We are concerned here with a refusal to review a decision in relation to a pension occurring well before the commencing day. St 4 Me Bess Sr SC i A a a AEST 14. The applicant is entitled to the relief sought and there will be an order directing the first respondent to review, under 5.31 of the Repatriation Act 1920 as it stood prior to the Repatriation Leqislation Amendment Act 1984, the decision of the No. 3 War Pensions Entitlement Appeal Tribunal made on 21 February 1978 disallowing the applicant's appeal against the refusal of her claim for a pension. I certify that this and the thirteen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey sgociate Dated: 1 March 1985