'S37 . € dm ee CATCHWORODS REPATRIATION - pension granted on review by Veterans' Review 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 transitional provision with retrospective effect has a substantive operation - specific provision dealing with date from which a decision to operate overriding general provision with respect to Board's exercise of discretion. Repatriation Act, 1920 ss.107VC, 107VZG(1) Repatriation Legislation Amendment Act, 1984 ss.19, 55(1) Mary Smith Vv. The Repatriation Commission QLD G10 of 1986 PINCUS J. BRISBANE 24 NOVEMBER 1986 2 5NOV 1986 \ FEDERAL COURT OF AUSTRALIA PAINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G10 of 1986 GENERAL DIVISION ) QN_APPEAL FROM THE QUEENSLAND DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL, CONSTITUTED BY THE HON. J.B.K. WILLIAMS, SENIOR MEMBER BETWEEN: MARY SMITH Applicant 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 dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G10 of 1986 GENERAL DIVISION ) ON APPEAL FROM THE QUEENSLAND DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL, CONSTITUTED BY THE HON. J.B.K. WILLIAMS, SENTOR MEMBER BETWEEN: MARY SMITH Applicant AND: THE REPATRIATION COMMISSION Respondent PINCUS J. 24 NOVEMBER 1986 REASONS FOR JUDGMENT This 1S an application concerning the date from which a pension granted under the Repatriation Act 1920 to the applicant, a war widow, should be paid. The application comes to this Court by way of appeal from the Administrative Appeals Tribunal, but its curial history goes back to 1960. The Repatriation Act has been repealed by the Veterans' Entitlement Act 1986, s.3, but will be spoken of in these reasons as if still in force.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 2. 1975 that an appeal was lodged against this decision by way of letter to the Repatriation Commission. This appeal was disallowed on 1 December 1975. An appeal was then instituted against the latter decision on3 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), including his widow, MARY SMITH the pensions payable in accordance with Divison 1 of Part ITI 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 pension. The new s.47 said, 1n effect, that the relevant body should allow an appeal] "unless it 1s satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim 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 receive 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 Leqislation 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 Repatriation Commission; the latter could review the former's decisions. Appeals from the Commission were then heard by a Repatriation Review Tribunal. The 1984 Amendment Act abolished that Tribunal and made the Commission the body which was to decide initial applications, subject to review by a Veterans' Review Board established under anew Part IIIA. The Act provided an appeal from the Veterans' Review Board to the Administrative Appeals Tribunal. The appeal lodged in 1975, to which reference is made above, was, of course, made under the older provisions just referred to. The appeal from the Commission was also made while the old provisions were in force, and in the normal course would have been heard by the Repatriation Review Tribunal. However, the appeal was not decided until after the commencement date of the Amendment Act. The relevant transitional provision 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." 4. 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 refusing a claim bya 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 dissatisfied with the decision. The requirement that an application to the former Repatriation Review Tribunal be treated, in cases of this sort, as if made to the Veterans' Review Board appears to me to apply to the fixation of the date of commencement of the pension. There is, of course, a presumption against retrospectivity applicable to all but procedural statutes: Maxwell v. Murphy (1957) 96 C.L.R. 261. In that case, a time limitation prescribed for institution of a Lord Campbell's Act suit was held not to be a procedural provision and, in my opinion, that case andthe line of the authority it follows support the view 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" im s.55(1) are strong enough to show an intention that, in all respects, substantive 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 5. February 1985, as being that from which liability to pay the pension arose was s.107VZB(1) reading as follows: "Where the Board, upon its review of a decision of the Commission refusing to grant a pension toa 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 which its decision 1s to operate - (a) if the person made application for the review within 3 months after service on him of a copy of the decision of the Commission - a date not earlier than the earliest date from which the Commission could, if it had not made that decision, have approved payment of a pension to the person; or (b) an any other case - a date not more than 6 months before the date on which the person's application for review of that decision was received at an address of the Department." Since para.(a) of this section does not apply, the Veterans' Review Board had no power to fix a date earlier than six months before the application for review was received. The date it in fact fixed was 6 July 1983, obviously on the basis that the application for review was received on6 January 1984 - as, according to the papers before me, it was. But even if the view expressed above as to retrospectivity 2S incorrect, the same result appears to follow. That is so because by the old s.107VZG(1)(d) and (e), time limits were set whose effect was precisely the same, in the instant case, as that of the new provisions; s.107VZG(1), subject to provisions which have no application here, required that a decision of the Repatriation Review Tribunal pursuant to an application under s.107VC: ",,.. shall not be expressed to operate from - 6. (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 107VF ..." The applicant's representative argued that the result produced by the application of the relevant provisions was grossly unfair and relied on s.107VF which reads as follows: "The Board, in conducting a review, in hearing a review or in making a decision on a review - (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits and all the circumstances of the case and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, ..." It is Mr. Quade-Smith's contention that the Board, in applying s.107VZB, was binding itself by a technicality and not acting in accordance with substantial justice and the merits of the case. Section 1lO7VF(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.107VF. The legislature contemplated that even in cases where it might be decided on review that a person was, after all, entitled 7. 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 reviewing the decision, exercised its power in accordance with these provisions and this Court cannot, therefore, interfere. The appeal will therefore be dismissed. tcertdy that acendthe © prece"ing pote cath scuny ctu cicce ns tor vent berain of His Honour . : 7 Aur Justice Pincus ar er are Associate Dated ™% Dleule fee. OK