oer ek . . RESTRICTED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 47 of 1986 ) GENERAL DIVISION ) ON APPEAL FROM THE VETERANS APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : THOMAS JOSEPH MARSH Applicant AND: THE REPATRIATION COMMISSION Respondent DATE: 20 June 1986 EX TEMPORE REASONS FOR JUDGMENT BURCHETT J. This is an appeal, brought under s. 44 of the Administrative Appeals Tribunal Act 1975, from a decision of the Administrative Appeals Tribunal. The Administrative Appeals Tribunal had/pumpoYted to review a purported decision of a delegate of the Repatriation Commission, Mr. R. Milligan, of 6 June 1985. Mr. Milligan had purported to review "a determination by a delegate of the Repatriation Commission on 19 December 1984 that (the present appellant) did not 'serve in a theatre of war' as defined in s. 23 of the Repatriation Act" (see paragraph 1 of the Statement of Reasons of Mr. Milligan, which is dated 6 June 1985). Mr. Milligan expressed his determination in the following terms: "The (present appellant) did not 'serve in a a" een —w et ee 2. theatre of war' as defined in s. 23 of the Repatriation Act, and 1s therefore not eligible for the grant of a service pension under the provisions of s. 84 of the Repatriation Act." (It appears the reference to section 84 was in error, section 85 being intended.) Prior to 19 December 1984 there had been an application by the present appellant for a-service pension. In relation to that application there was and is no dispute that he was at all relevant times permanently unemployable, and that he had served in the Royal Australian Air Force between February 1944 and April 1946. The question whether he was entitled to a service pension turned on whether or not he had fulfilled' the qualification expressed in s. 85(2) by the words "has served in a theatre of war". The appeal papers included a document from the departmental file which is headed "Summary of Disability/Service Pension Case submitted to Commission", refers to the appellant, contains a recommendation dated 18 December 1984 in the following terms: "Submitted for determination that veteran did not serve in a theatre of war", and concludes with a section which I will quote in full, as follows: "Decision of Commission - The member did not serve in a theatre of war as defined in s. 23 of the Repatriation Act, as he did not leave Australia until after 2 September 1945. eres er ee ee B. Finlay, Delegate. (There was a signature appended which appears also to read B. Finlay) Date 19.12.84." The submission put on behalf of the Repatriation Commission by Mrs. Flemming, of Senior Counsel, is that the purported appeal dealt with by Mr. Milligan was incompetent as there was no provision for review, applicable as at 19 December 1984; and that the purported decision by the Administrative Appeals Tribunal was also incompetent, because there is no provision for a review by it applicable in the circumstances, and also because, if it had been open to the appellant to seek a review by the Administrative Appeals Tribunal, the only power of the Administrative Appeals Tribunal would have been to set aside Mr. Milligan's decision as incompetent. These submissions turn on the date of the decision of 19 December 1984. At that time there was no provision for review of a decision to grant, or not to grant, a service pension sought under either s. 84 or s. 85 of the Repatriation Act 1920. On 1 January 1985, Act No. 97 of 1984, which amended the Repatriation Act, came into force. By s. 90C, inserted into the Repatriation Act by that Act, provision was made for review of such a decision made under the provisions of the amending Act, but, of course, the decision made on 19 December 1984 could not have been made under the provisions of the amending Act. ween Rene Ps . ees ord There were transitional provisions in the amending Act, s. 54(1) of which specifically dealt with the case of "a claim «+. that had been submitted to a Repatriation Board but not determined by the Board before the commencing date ... " It was submitted that the terms of this provision clearly exclude a case where there had been a determination before the commencing date. Accordingly, it was put that there was simply no basis for the review upon which Mr. Milligan purported to enter. It was not disputed that Mr. Milligan's power as a delegate related to review pursuant to the amending Act, and not to the making of original decisions. Mr. McInnes, Senior Counsel for the appellant, sought to meet these propositions in two ways. Firstly, he put a submission that the decision signed by Mr. Finlay was not a relevant determination, but only a step to the ultimate decision of the appellant's application. The proposition was that a letter of 23 January 1985, advising the appellant that he was "ineligible to apply for the service pension" evidenced the making of a further decision, which should be assumed to have been made after 1 January. JI am unable to read the document in this fashion. It seems to me that the decision was made on the only date suggested by the file, namely, 19 December 1984, which, as I have already indicated, was specifically referred to by Mr. Milligan as the date of the determination he thought he was reviewing. ae ape eee - ee ee eK kee vy MeeTAse In Evans v. Friemann 35 ALR 428 at 431, Fox ACJ, said: "The making of a decision by a person is a mental process which may be indicated orally or in writing, or be apparent from action taken or not taken." It seems to me that it is apparent from the terms of the minute I have quoted, notwithstanding that it does not go on specifically to state in words that the application was rejected, that in fact it was a decision which did reject the application. Senior Counsel for the appellant then referred me to Collector of Customs (NSW) v. Brian Lawlor Automotive Pty. Limited 24 ALR 307 in support of the proposition that even an invalid decision may ground jurisdiction in the Administrative Apppeals Tribunal. The difficulty with this submission is that the powers of the Administrative Appeals Tribunal, as set out in s. 43 of its Act, are dependent upon the "powers and discretions that are conferred by any relevant enactment upon the person who made the decision". It has been held that those powers include the power to declare that a matter is outside the scope of the empowerment, but this cannot enlarge the powers involved so as to enable anything else to be done. Apart from the absence of any capacity in Mr. Milligan to review the decision, Mrs. Flemming also relied on the absence of a right of review by the Administrative Appeals Tribunal in this case. Section 107V2W gives a right to apply to the wes eee re Tene of re! 6. Administrative Appeals Tribunal from an affirmation of a decision of the Commission made under s. 90A, or from a decision substituted for such a decision, in either case given under s. 90Cc. But since the original decision could not have been made under s. 90A, nor reviewed under s. 90C, both of which only came into force on 1] January 1985, this right cannot be applicable. No other provision conferring any right to seek a review by the Administrative Appeals Tribunal was relied upon. In the circumstances, I am compelled to uphold Mrs. Flemming's submission. I am glad to be able to add that the Commission has shown itself conscious of the unfortunate position which has been disclosed in this case, and has agreed to bear the appellant's costs in any event. I will make a declaration that the Administrative Appeals Tribunal had no power to review the decision purportedly made by Mr. Milligan as delegate of the Commission. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Ch. Kinelar o_o Associate Dated: 20 June, 1986.