CATCHWORDS or Administrative Law - Judicial Review - Repatriation Act - review by Commission under s.31 - scope of review - decision of Commission to grant pension - whether Commission has a discretion to specify date for commencement of pension.- whether discretion limited by 3.31(2), s.101 or s.29 of the Act - effect of para.27(1)(d) of the Act - +r unrestricted discretion relevant and irrelevant considerations - Act rl does not specify any particulat considerations ~ delegate entitled to select matters she saw as relevant. Administrative Decisions (Judicial Review) Act 1977: s.5 Repatriation Act 1920: ss. 24, 27, 29, 30, 31, 47, 101 and 107VZG. HELEN BASTIANI v. THE REPATRIATION COMMISSION WAG 27 of 1985 Bowen C.J., Fisher & Lockhart JJ. Sydney 12 June 1985 IN THE FEDERAL COURT OF AUSTRALIA ) $ ) ¢ WESTERN AUSTRALIA DISTRICT REGISTRY) ) No. WAG 27 of 1985 GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA ae BETWEEN: ot} 7: | HELEN BASTTANT ee . Appellant 7 7. ee = and - THE REPATRIATION COMMISSION Respondent Judges Making Order: Bowen C.J., Fisher and Lockhart JJ. Where Made: Sydney Date of Order: 12 June 1985 MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay to the respondent, The Repatriation Commission, its costs of the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) 3 ) WESTERN AUSTRALIA DISTRICT REGISTRY) ) No. WAG 27 of 1985 GENERAL DIVISION ) - ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HELEN BASTIANT ai a ee . . - s Appellant - and - THE REPATRIATION COMMISSION Respondent CORAM: Bowen C.d., Fisher and Lockhart JJ. 12 dune 1985. REASONS FOR JUDGMENT THE COURT: This is an appeal from a single Judge of this Court dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by the applicant ("Mrs. Bastiani") to review a . decision of the respondent ("the Commission"). The decision, which was furnished to Mrs. Bastiani on 31 August 1984, was to the effect that her claim to a pension was accepted pursuant to sub.s.101(1) of the Repatriation Act 1920 ("the Act") with effect from 9 December 1981. Mrs. Bastiani sought review under s.5 of the Judicial Review Act of so much of that decision as fixed the commencing date of her pension at 9 2. December 1981. Her contention was that it should have been backdated to 7 March 1966, the date of her husband's; death. She sought review of the Commission's decision on the ground that it involved an error of law or alternatively that in selecting that date the Commission took into account irrelevant considerations and failed to take into' account relevant considerations. v: ~ ee The facts can~ be- shortly stated. Mrs. Bastiani's =2° peetes husband, a member 6f=thei | Forées, within the meaning of s.100 of the Act, died on 6 March1966. She thereupon, with the assistance of the Legacy Club in Perth, lodged on 29 April 1966 a claim for acceptance of his death as being related to his war service. Section 101 of the Act was the section pursuant to which she claimed entitlement to a pension and was, to the extent relevant, as follows: "(1) Upon the incapacity or death (a)... (b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service, the Commonwealth shall, subject to this Act, he liable to pay to the member, or dependants, or both, as the case may be, pensions in accordance with Division 1:" Mrs. Bastiani's claim, which was lodged in accordance with s.24AA of the Act, was rejected by a Repatriation Board on 7 June 1966 on the ground that her husband's death was not due to war service. She appealed on 22 August 1966 to the Repatriation Commission against this rejection, which appeal was disallowed by > the Commission on 5 October 1966. On 29 October 1966 Mrs. Bastiani appealed to the War Pensions Entitlement Appeal Tribunal against the rejection of her claim and the disallowance of her appeal by the Commission. The War Pensions Entitlement Appeal Tribunal rejected her appeal on or about 30 November 1966. At - this stage Mrs. Bastiani had exhausted all of her rights of appeal and could take the matter no further. A right to appeal to this Court on questions~of law was not granted by the Act until 1979. tee, Taare ny a. re ae n ah 2 es In 1977 and also in 1979 significant amendments were made to s.47 of the Act, which amendments were designed to favour persons claiming pensions. In the light of these amendments and following the decisions of the High Court in Repatriation Commission v. Law "(1981) "36 A.L.R. 411 and Repatriation Commission v. O'Brien (1985) 59 A.L.J.R. 363 and certain other decisions, Mrs. Bastiani renewed her claim to be entitled toa pension under the Act. On 24 October 1983 Mr. Ivan Davies of Perth Legacy on her behalf made "application" under s.31 of the Act for reconsideration on the ground that "sufficient reason" existed for such reconsideration. He stated the grounds as follows: "1. The decision was against the best evidence and, even at that time "any doubt" was not resolved in favour of the applicant. 2. The decisions of the Federal Court and the High Court in Nancy Law, and the A.A.T. in Foulger; plus numerous R.R.T. decisions based on the foregoing require that the widow be paid a pension." The application concluded with the following. sentence. "In view of this evidence which was before the Commission and the correct interpretation of the Court and A.A.T. decisions- having regard to the fact that "ulcers"" is a known stress related condition, it is requested that Mrs. Bastiani be paid a War Widow's Pension with effect from 7th March 1966 - see Morecombe - cross appeal". rc + Be dl The reference to. the cross appeal in "Morecombe" was a reférence to the dettsion 'of Beaumont J. in The Repatriation Commission v Doris Ruby "Morcombe, an unreported judgment delivered on 19 September 1983. The Commission determined on 27 March 1984, which determination was not furnished to Mrs. Bastiani until 21 May 1984, that there was not sufficient reason for a reconsideration. The applicant thereupon on 18 June 1984 sought an order of this Court under the Judicial Review Act reviewing the Commission's refusal to reconsider her clain. However, by a further determination dated 21 August 1984, furnished to Mrs. Bastiani with a letter dated 31 August 1984, the Commission decided that the claim be accepted with effect from 9 December 1981. In consequence of this decision the proceedings in this Court seeking review of the earlier decision to refuse a reconsideration under s.31 were discontinued and an application filed for a review of the later decision that the pension commence from 9 December 1981. 5. In making a decision to grant a pension to Mrs. Bastiani effective from 9 December 1981 the Commission's delegate gave consideration to the request on behalf of Mrs. Bastiani that the effective date should be 7 March 1966. However the delegate held that such a backdating would be unjustifiable, in her opinion, in the circumstances of the matter. Her view was that the Act did not set any "parameters" for effective or operative dates of pension where a claim 'fs accepted. pursuant to s.31 of the Act. She considered a rangas of possible dates from three months prior to the time when the original ~ claim was lodged up to the date of her decision. The decision of Beaumont J. in Morcombe was pressed upon her, but she rejected this decision as distinguishable. Likewise she considered and rejected arguments to the effect that the spirit-of s.107 VZG should be applied. In the end she adopted as appropriate the date of the Administrative Appeals Tribunal decision which approved the "Metcalf hypothesis as a real possibility of cause and effect". This hypothesis was to the effect that tropical infections, particularly malaria, may play a significant role in the development of certain cancers. On application to this Court for a review of this decision counsel for Mrs. Bastiani contended that in the circumstances of this matter the Commission was obliged, pursuant to 3.101, to approve payment from the date of death. He contended that sub-s.31(2) of the Act, which had not been referred to by the delegate in her reasons, did not vest a discretion in the Commission to do otherwise than act under 6. g.101. The Commission's case was that sub-s.31(2) vested a discretion in the Commission, a discretion which was not confined by any express limitation under the Act. The trial Judge's view was that the Commission was not constrained by s.101 and therefore the delegate had not erred in law. Furthermore he said he was not persuaded that the delegate had failed to take into account a _ relevant consideration or taken into account an irrelevant one. Therefore' the applicant had not made out any of the grounds for review prescribed in s.5 of the Judicial Review we 7 Act. ~ ™ From this decision Mrs. Bastiani appealed. The grounds of appeal were essentially that the trial Judge was wrong in distinguishing Morcombe's case, in holding that sub-s.31(2) conferred a discretion, in holding that sub-s.31(2) was not constrained by s.101 and in his findings concerning relevant and irrelevant considerations. Mrs. Bastiani's renewal of her claim was couched in terms of an application for reconsideration under s.31 of the Act on the ground that sufficient reason existed for a review under that section. This section is in the following terms: "s.31.(¢1) Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension) the Commission may review the assessment, decision or determination. { é (2) Whenever, in pursuance of the last preceding sub-section, the Commission reviews an assessment, decision or determination, and' varies or revokes the assessment, decision or determination, as the case may be, the Commission shall specify the date from which the variation or revocation shall operate and it shall operate accordingly. (3) This section - (a) does not apply in relation to - (ijt a. decision of the Repatriation _wav- Review Tribunal referred to in ~Pesiy ry "section 107VZB; (ii) " a @ecision of the Administrative Appeals Tribunal referred to in section 107VZB in its application by virtue of section 107VZZE; (iii) a decision of the Repatriation Review Tribunal referred to in sub-section (1) of section 107VZC that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; or (iv) a decision of the Administrative Appeals Tribunal referred to in sub-section (1) of section 107VZC, in its application by virtue of section 107V2Z2ZE, that is binding on the Commission by reason that the appropriate period specified in that sub-section has not expired; and (b) subject to section 107Vd and sub-section (2) of section 107VZC, does not apply in relation to an assessment made by a decision to which sub-paragraph (iii) or (iv) of paragraph (a) applies." Whether s.31 was originally intended by the .legislature as the appropriate vehicle for reconsideration of a previously rejected claim ona request from a claimant is umnecessary to consider in these proceedings. There is no appeal against and no request to review the grant of the pension. The Commission has adopted the practice of reconsidering rejected claims because of a change in the law, .in * medical knowledge or some other circumstance, by conducting. a review: under s.31. Many cases r ™, wh oe involving this practice have come before this Court either in its original or appellate jurisdiction without provoking discussion as to any limitations inherent in the section. It might be said that the insertion of the words "in relation to pension" in 1935 indicated that the 'review contemplated was in respect of a pension already granted. In that case the section would be appropriately used if the pensioner's health improved or worsened, or some other change of circumstance occurred since the pension was granted. It would follow that it would be proper for an existing pension to be modified or "varied" or "revoked". It could well be that this wide use of the review procedure in 5.31 has prompted action on the part of the legislature. Certainly such use has aggravated "the complexities of the legislation and the procedural web of appellate and review procedures" (see per Toohey J. in Hinge v Rodda, an unreported decision delivered 1 March 1985). The section has now been repealed with effect from 1 January 1985 and new provisions enacted. It is unnecessary to consider further this aspect of the appeal. Stuer It is necessary to bear in mind that Mrs. Bastiani is seeking a review of the decision relating to the commencement of her pension. Such review is, under the Judicial Review Act, only for the purpose of identifying, stated shortiy, any error of law = in the decision of the Cémmission. The trial Judge correctly oy stated the position Wheir he "said. that it was not for him to make his own findings of fact of tS exercise his own discretion or exercise his own judgment merely because he might think that the decision concerning the commencing date was wrong. It follows that it was not for the trial Judge, as it is not for this Court, to substitute what he or we- might see as the correct or more appropriate date merely because he or we might consider that the delegate to the Commission attached too much significance, for example, to the decision on the Metcalf hypothesis in Repatriation Commission v. Byrne (1981) 40 A.L.R. 296. The application for review contended that the delegate of the Commission acted beyond power and made errors in respect of both relevant and irrelevant considerations. In relation to the contention that she acted beyond power certain matters were debated before this Court. It is necessary to consider Mrs. Bastiani's contention that the delegate was obliged to commence payment of the pension from date of death. It is also necessary to consider whether sub-s.31(2) and sub-s.29(1) restrict the 10. exercise of the delegate's discretion. The starting point however is the fact that in consequence of a review by the Commission under s.3l of the claim of Mrs. Bastiani a pension has been granted, A date for commencement of payment must of necessity be determined. The scope of s.31 was considered by the Full Court of this Court in Bannistex ¥ See (1982) 45 A.L.R. 145. Fox J. at p.147 said: Sean ws, "It is of significance that the review is of 'any assessment, decision or determination in relation to pension'. The scope of reviewable matters is wide. It is plain that the review can lead to results of importance: sub-s.(2) makes it clear that revocation and variation of an assessment are included." Woodward J. with whom Fox and Franki JJ., agreed said in that case at p.151 that - "The application ... was in terms a fresh application for a pension. More important, this was the substance of the application. The fact the application involved the Commission starting from the point of a previous adverse decision, and reviewing the correctness of that decision in the light of some alleged changed circumstances which gave "sufficient reason" to justify the review, does not alter the substance of the matter." Even though no provision is made for a person to request or make application for a review under s.31, generally an interested person will initiate the necessary action. The Commission could of course act on its own initiative. Bearing in ll. mind that the Commission is, under 3.47, not'? bound by "technicalities, legal forms or evidence", there, can be no objection to such a person making an approach by letter and the Commission acting upon such prompting. We do not consider it appropriate to seize upon the acceptance of this informal procedure as a basis upon which to determine and perhaps limit the choice of an appropriate date for commencement of the "n pension. mo "he Ot Se - - + eo ts The Commission having been given the power to reviewa wide scope of matters, it is obvious that it must have power to make decisions to carry into effect the consequences of its review. It will at least have the express power to make the determinations and assessments referred to in sub-s.27(2) so as to implement its recommendation. These determinations and assessments are those specified in sub-paras.27(1)(a) to (j), which are there prescribed as duties of the Repatriation Board. However sub-s.27(2) expressly empowers the Commission, when it considers it appropriate, itself to make these determinations or assessments. It is significant that to this end it may at any time direct that any particular cases or cases of a particular class be referred to it for assessment or determination. A power such as this is particularly appropriate if the Commission decides to exercise its power to review under s.3]1 any case or class of cases. In this particular matter the Commission, having made the decision to review and accept Mrs. Bastiani's claim, is expressly empowered by para. 27(1)(d) to determine the date of 12. commencement of her pension. Paragraph 27(1)(d) and sub-s.27(2) are in the following terms:- "27(1). Each Board shall be charged with the duties of - (d) assessing, from time to time, the rates of pensions of members of the Forces and their dependants, and determining the dates"of the commencement and cessation of such pensions;" (The emphasis has been added. ) — "27(2). The Commission may, in such cases as it thinks fit, make any determination or assessment specified in paragraphs (a) to (j) (inclusive) of the last preceding sub-section, and may, at any time, direct that any particular case or cases of a particular class he referred to it for assessment or determination." In our opinion, these provisions empower the Commission to make whatever determination or assessment is necessary in consequence of a review. In particular they enable the Commission to determine whether the incapacity from which a member has died arose out of or is attributable to his war service (sub.para.(27)(1){a)(iii)) and if so to assess rates of pension and to determine the date of commencement thereof. Subject to any specific provision to the contrary in the Act, the Commission has under para.27(1){(d) an unrestricted discretion to determine the date of commencement of a pension granted whether on an original claim or in consequence of a review under sub-s. 31(1). 13. Counsel for Mrs. Bastiani contended that she was entitled to a pension as from the date of death of her husband under s.101 of the Act because it was the event of death upon which the liability to pay a pension arose. Section 101, to the extent material, provides - "1OL(1) Upon the death or incapacity - On (b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may he, pensions in accordance with Division 1: (LAA)... (1A) ... (2) 2s (3) Where a pension is granted, the Commission or a Board may, subject to this Act, approve of the payment of the pension on and froma date not prior to three months before the date of lodgment of the claim for pension." This contention was put by Perth Legacy on behalf of Mrs. Bastiani in the letter of 24 October 1983. In support of this date reliance was placed on the decision of Beaumont J. in Morcombe. The delegate distinguished, 1n our opinion correctly, that case. The trial Judge also gave consideration to the submission and his view was the Commission was not obliged by s.101 to commence the payment of pension from the date of death. 14, He also was of opinion that Morcombe's case was of no assistance in this matter. Counsel for Mrs. Bastiani argued that the trial Judge was wrong in rejecting this ground fora review. We cannot accept this submission. > ;.in our opinion s.101 imposes no overriding obligation to pay a pension from the date of death, and in particular aa"z~"consequence of a review under sub-s.31(1). To construe sub-s.101(1) in this manner would render redundant the express power of the Board and Commission under para.27(1)(d) to determine the date of commencement of pensions. Sub-section 101(3) also merely enables the Commission to backdate a pension to a date prior to the lodgment of a claim, but imposes a limit of three months. Morcombe''s case is not authority to the contrary. Counsel for the respondent argued both before the trial Judge and on appeal that sub-s.31(2) vested in the Commission a discretion as to the date from which the decision should operate. The delegate to the Commission however placed no express reliance upon that sub-section, and in fact did not mention it in her reasons. It is our opinion that if the Commission grants a pension as a consequence of a review under sub-s.31(1), sub-s.(2) does not provide the power to specify the date from which the grant of pension will operate. As Fox J. noted in Bannister v See (supra) the scope. of reviewable matters 1s very wide. Paragraphs (a) to (f£) of sub-s.27(1) indicate the various matters 15. } upon which the Commission is empowered to make determinations or assessments and it is these determinations and 'assesonents, which, inter alia, are reviewable under sub-s.31(1). The fact that sub-s.31(2) was added in 1950, some 30 years after the enactment of s.31 or its predecessor, is of some relevance to the question whether it applies generally to any action taken on a review or merely to the!""specified decisions. Prior to 1950 the legislature did not "perceive it necessary to supplement 3.31 with a power to backdate payment of- pensions. It is more likely that sub-s.31(2) was added to cover only the two specified situations. Sub-section 31(2) refers only to the "variation" or "revocation" by the Commission of existing assessments etc., and its consequential obligation to specify a date of operation of the variation or revocation. It follows that it covers only two of the many decisions which the Commission is empowered to make and frequently will have to make as a result of a review. In our opinion sub-s.31(2) is not of general application but directs the Commission that if it revokes or varies an assessment, and only in those circumstances, it must specify the date from which the variation or revocation shall operate. The date of revocation or variation is of little significance if what is being revoked or varied is the rejection of a claim. What is of importance is the date upon which payments commence if a pension is granted. 16. Consideration of the ordinary meaning of the words "varies" and "revokes" reinforces this view. It is most inapt to describe a decision to grant a pension as a variation of a previous decision to reject the claim for a pension. The revocation of the decision to reject the claim for a pension could be seen as a first _ step, although not a necessary step, in the granting of a pension, but it is not the requisite positive decision to grant itr*- ~ In our opinion it is not necessary, or indeed proper to look to sub-s.31(2) as the source of the Commission's discretion to fix the commencement date for payment of the pension. The Commission had the general discretion, if the review required it, to make, for example, any of the assessments and determinations specified in sub-s.27(1) and in particular to determine under para.27(1)(d) the date of commencement of Mrs. Bastiani's pension. It is necessary however to consider whether this general discretion is in the circumstances constrained by sub-s.29(1) of the Act aithough neither counsel argued for the application of this sub-section. Omitting words which we see as irrelevant, sub-s. 29(1) provides that:- "Where a claim for pension has been rejected and upon subsequent application ... a pension is granted to the claimant, the pension shall not be payable in respect of a period prior to the period 17. of six months immediately preceding the date of lodgment of the application ... upon which the pension was granted." At first glance it might be said that this provision constrains the exercise,of the Commission's discretion to fix the commencing date for payment of pensions in circumstances such as the present. The specified * pre-condition, namely that a claim for pension has beenzréjected, has been satisfied. It could also be said that the request of..the applicant for a review of her claim in substance falls into the category of a "subsequent" application. It is an application which was "lodged", and the word "application" is not inappropriate to describe the letter from Legacy whether it was a request for reconsideration or a fresh application in the nature of another claim for a pension. Moreover the sub-section specifically identifies the date of lodgment of "the application ... upon which the pension was granted" as the date from which the period of six months is to be calculated. However, notwithstanding these first impressions it is in our opinion inappropriate to construe sub-s.29(1) as constraining the exercise by the Commission of its discretion consequent upon a review under sub-s.31(1). The latter sub-section is drawn widely and in very general terms. Its exercise is prompted by the Commission being of the view that sufficient reason exists for reviewing any assessment, decision or determination. There is no justification for imposing any 18. restriction upon the exercise of its power to review and make appropriate assessments or determinations unless such restriction is required by specific 'provisions of the Act, strictly construed. In our opinion sub-s.29(1) strictly construed does not apply in the present circumstances. Its language applies more appropriately to a person be it a widow or member of the forces, who lodges a" formal claim for a pension in accordance with the provisions "of" s.24AA subsequent to the rejection of an earlier like clain. The terminology of sub-s.29(1) in referring to a claimant who lodges a claim and in linking the payment of a pension to the date of lodgment is referable rather to ss.24AA and 24AB than a review by the Commission. Certainly it contrasts sharply with the unrestricted power of the Commission to determine the date of commencement of a pension under para.27(1)(d). In our opinion it is inappropriate to say that Mrs. Bastiani made "a subsequent application" when the Legacy Club wrote to the Commission on her behalf requesting a review. Certainly such an approach is not a necessary pre-condition to the Commission considering whether "sufficient reason exists" for entering upon ae review. Such action on the part of the Commission may be prompted by a number of happenings without any intervention by a person interested in the result of the review or the Commission may act solely on its own initiative. Section 47A of the Act indicates that there are persons interested in a review other than persons who are either claimants or applicants. 19. Sub-section 47A(3) defines a claimant as including an applicant and "a person affected by a decision under review by the Commission under section 31". It would be a perverse result if sub-s.29(1) applied to fix the date of commencement because Mrs. Bastiani's approach is construed as a "subsequent application" for the purposes of that sub-section but had no application if the Commission reviewed the decision of its own volition. Sucha T perverse result could-wéll affect not only Mrs. Bastiani but also any other person "affected by" a decision under review by the Commission under s.31". In our opinion the Commission had the discretion under para.27(1)(d) to fix'the date of commencement of payment of a pension to Mrs. Bastiani. Such discretion is not constrained by s.101, sub-s.29(1) or sub-s.31(2). It follows that the delegate's decision was not beyond power. The remaining question is whether the Commission improperly exercised its power because the delegate failed to take into account relevant considerations or took into account irrelevant considerations. The trial Judge gave extensive and careful consideration to this aspect of the matter and rejected the submission. The Act does not specify any particular considerations as relevant and therefore the delegate was entitled to select the matters she saw as relevant under the Act and to determine the weight to be attached to them. But the discretion may be exercised having regard to provisions of the 20. Act which indicate a legislative intention to limit: the period during which a pension is backdated. We refer to sub-sections 24(3), 29(1), 30(1) and (2), 101(3) and s.107VZG. We have no criticism of the approach adopted by the delegate or the reasons therefor, and the trial Judge correctly rejected Mrs. Bastiani's submissions. . In our opinton this appeal should be dismissed with costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment 5), of thal. Court Associate. Dated: (2. (7 mes