Repatriation Commission v Stafford, M.I. [1995] FCA 537

CATCHWORDS Defence And War - Defence Forces - Ex-Servicemen (Veterans) - Pensions, allowances and other benefits - Review - By Administrative Appeals Tribunal - Veterans' Review Board reviewed only some of the decisions of the Repatriation Commission in respect of a claim because of a mistaken impression that review of the other decisions had not been sought - Administrative Appeals Tribunal's refusal to review the other decisions because of the same mistaken impression an error of law.

Veterans' Entitlement Act 1986 - ss. 5(1), 14, 18, 19, 135, 136, 139, 155, 175. REPATRIATION COMMISSION v. MAVIS IRENE STAFFORD VG129 of 1995 Jenkinson, Ryan and Lee JJ. Melbourne 28 July, 1995

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG129 of 1995 GENERAL DIVISION ) BETWEEN: REPATRIATION COMMISSION Appellant AND: MAVIS IRENE STAFFORD Respondent CORAM: Jenkinson, Ryan and Lee JJ. PLACE: Melbourne DATE: 28 July, 1995 MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The respondent's costs of the appeal (including reserved costs) be paid by the appellant. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) No. VG129 of 1995 GENERAL DIVISION )

On appeal from a single Judge of the Federal Court of Australia BETWEEN: REPATRIATION COMMISSION Appellant AND: MAVIS IRENE STAFFORD Respondent CORAM: Jenkinson, Ryan and Lee JJ. PLACE: Melbourne DATE: 28 July, 1995 REASONS FOR JUDGMENT THE COURT 1. Appeal from orders made by Northrop J. in disposition of an appeal from decisions of the Administrative Appeals Tribunal. 2. The respondent is the widow of William Arthur Stafford. He was the applicant for review by the Tribunal of decisions of the respondent Commission that had been affirmed by the Veterans' Review Board. Mr. Stafford having died after the Tribunal had given its decision, his widow was approved by the Commission for the purposes contemplated by s.126(1) of the Veterans' Entitlement Act 1986 ("the Act"), which provides: "On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant." Sub-section 126(4) provides: "In this section, `claim' means a claim in accordance with section 14 or 43, an application in accordance with section 15, and an application for review under section 59, 135 or 175, and `claimant' has a corresponding meaning." Mr. Stafford had in December 1989 made a claim in accordance with s.14 of the Act for a pension under Part II of the Act. Where a "veteran" has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is, subject to the Act, liable to pay pension to the veteran in accordance with the Act : s.13(1). "Veteran" means, in the Act, a person who is, by virtue of s.7, to be taken to have rendered eligible war service. Mr. Stafford was a veteran because he had rendered continuous full-time service as a member of the Air Force of the Commonwealth between February 1943 and February 1946 : see s.7(1)(c). The injuries, or diseases, proposed by Mr. Stafford as war-caused for the purposes of his claim were osteoarthritis of his knees and hips, otitis externa, hypertension and chronic obstructive airways disease. The delegate of the Commission who determined his claim decided that Mr. Stafford had not rendered "operational service" as described in s.6. Any injury or disease would in that case be taken to be war-caused only if the injury were suffered or the disease were contracted in circumstances described in one of the four paragraphs of sub-section 9(1) which follow sub-paragraph 9(1)(a) and if none of the provisions of the sub-sections which follow sub-section 9(2) precluded the conclusion that the injury or disease was war-caused. The delegate determined, in performance of the function conferred on him by sub-paragraph 19(3)(a)(i), that the osteoarthritis and the otitis externa were not war-caused, and that no incapacity was being caused by chronic obstructive airways disease or by hypertension, and that the claim be accordingly refused. 3. Section 135 provides that "[w]here a person ... who has made a claim for a pension in accordance with section 14 ... is dissatisfied with any decision of the Commission in respect of the claim ... the person may make application to the [Veterans' Review] Board for a review of the decision of the Commission". One of the questions which arise in this appeal to the court is whether in the circumstances of this case the decision or decisions of which review might have been sought by Mr. Stafford was only the determination that his claim be refused or each or some of the determinations the delegate made in reaching the determination that the claim be refused as well as that ultimate determination. Another question which arises is whether Mr. Stafford applied for review of all those determinations or of only some of them. A third question is whether, if application was made by Mr. Stafford to the Veterans' Review Board for review of only some of the determinations I have identified, those determinations which were not subjects of his application to the Board may be subjects of subsequent review by the Administrative Appeals Tribunal. It is convenient to consider the first two questions before turning to the last. 4. Section 5(1) provides that in the Act, unless the contrary intention appears, "`decision' includes a determination and an assessment". Section 14 provides for the making of claims for pensions, except "[w]here a determination under this Act is in force determining that any incapacity from which a veteran is suffering resulted from war-caused injury or war-caused disease, or both, but a pension was not granted to the veteran on the ground that the extent of the incapacity was insufficient to justify the grant of a pension". In those circumstances, and where a veteran is in receipt of a pension in respect of the incapacity of the veteran but desires an increase in the rate of the pension, s.15 provides for the making of an application for a pension, or for an increase in the rate of the pension, on the ground that the incapacity of the veteran has increased. Where a "claim" or an "application" has been made but not finally determined, no other claim in respect of incapacity or death nor any other application under s.15 may be made : see ss. 14(5), 14(6), 15(5). Final determination occurs when either "a decision that has been made in respect of" the claim or the application (as the case may be) "is not subject to any form of appeal or review ... or ... a decision that has been made ... was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted" : see ss. 14(7), 15(6). Sub-section 18(1) provides: "It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application." Sub-sections 19(1), 19(3), 19(4) and 19(5) provide: (1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall: (a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and (b) subject to this section, determine the claim as provided by subsection (3) or the application as provided by subsection (4). ............................................... (3) The Commission shall determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of: (i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or (ii) the death of a veteran that was war-caused; (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5). (4) The Commission shall determine an application for a pension at an increased rate in accordance with subsection (5). (5) Where paragraph (3)(b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess, in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable: (a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and (b) subject to subsection (6), the rate at which the pension is payable from the date of the determination; and shall make a determination approving the payment of pension in accordance with that assessment." Sub-section 135(1) provides, in part, thus: "Where a person: (a) who has made a claim for a pension in accordance with section 14; (b) who has made application for a pension, or for an increased pension, in accordance with section 15; .... ............................................... is dissatisfied with any decision of the Commission in respect of the claim or application .... the person may, subject to this Act, make application to the Board for a review of the decision of the Commission. (2) Where the Commission, upon a review under section 31 of a decision in relation to a pension or attendant allowance, has made a further decision revoking or varying that decision, the veteran, or the dependant of a deceased veteran, as the case may be, affected by that further decision may make application to the Board for a review." Section 139 provides: "(1)On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review. (1) It is the duty of the Board, in reviewing a decision of the Commission, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review. (3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and making a decision in substitution for the decision so set aside. (4) Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate or rates at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate or rates at which the pension is to be paid to the person."