Owen, I.C. v Repatriation Commission [1995] FCA 607

CATCHWORDS VETERAN'S AFFAIRS - Disability pension - back and hip injuries claimed as and determined by Administrative Appeals Tribunal to be war-caused - application for special rate - veteran prevented from continuing to undertake remunerative work by reason of shoulder injury - whether Tribunal had jurisdiction to determine whether the shoulder injury was war-caused ADMINISTRATIVE LAW - Tribunal's jurisdiction - scope of Tribunal's power of review Veterans' Entitlements Act 1986 ss 6, 7, 14, 17, 18, 24, 175 Administrative Appeals Tribunal Act 1975 ss 25(3), 42C, 43(1) Secretary to the Department of Social Security v Riley (1988) 17 FCR 99 Banovich v Repatriation Commission (1986) 69 ALR 395 IAN CHARLES OWEN v REPATRIATION COMMISSION No VG 435 of 1993 FINN J MELBOURNE 4 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No VG 435 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM THE VETERANS' AFFAIRS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: IAN CHARLES OWEN Applicant AND: REPATRIATION COMMISSION Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 2. The decision of the Tribunal be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No VG 435 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM THE VETERANS' AFFAIRS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: IAN CHARLES OWEN Applicant AND: REPATRIATION COMMISSION Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 AUGUST 1995

REASONS FOR JUDGMENT Ian Charles Owen (the "applicant") has rendered both "operational" and "eligible" war service for the purposes of the Veterans' Entitlements Act 1986 ("the Act"), sections 6 and 7. Though originally denied, it is now conceded by the Repatriation Commission (the "Commission") that the applicant has suffered war caused injuries. His claim for a pension under the Act, s14 was lodged on 26 February, 1991. Two designated injuries and a specified disease were nominated in the claim form as having been war-caused. The precise nature of the injuries founding the claim will be detailed later in these reasons. It is a matter of no little importance in this appeal. The Commission considered and rejected the claim on two occasions - 12 December 1991 and 30 March 1992 - on the ground that neither of the claimed injuries nor the disease were war-caused. On 17 September 1992 the Veterans' Review Board (the "Board") affirmed the Commission's decisions. An application to review the decisions as affirmed was then made to the Administrative Appeals Tribunal (the "Tribunal") under s175(1) of the Act. In the course of the proceedings in the Tribunal the Commission conceded that the two injuries claimed, but not the disease, were war-caused. The parties in consequence were able to reach agreement concerning the applicant's entitlement to a pension, the Tribunal making a decision in accordance with the agreement under the Administrative Appeals Tribunal Act, 1975 s42C. The rate of pension was not the subject of agreement. The Tribunal determined that the applicant, while entitled to a general rate of pension, had not satisfied the requirements of the Act s24(1) as to entitle him to a special rate of pension. That determination provides the focus of the applicant's attack on the decision of the Tribunal in his appeal to this Court. To oversimplify somewhat, the fate of this appeal turns on the answer given to a question which is basic to the review jurisdiction of the Tribunal: what were the "decisions" of the Commission as affirmed by the Board? I put the question in these simple terms for the reason that under the provisions of the Administrative Appeals Tribunal Act, 1975 sections 25(3) and 43(1) the Tribunal's power of review is limited to the review of the decision in respect of which application is made to it: see Secretary to the Department of Social Security v Riley (1988) 17 FCR 99. To explain how this question emerges in this case, it is necessary to describe the precise nature of both the injuries claimed by the applicant to be war-caused and the manner in which they were raised in the course of making this pension claim. The Applicant's Disabilities and his Claim for Pension In the claim form for a disability pension lodged with the Commission in February 1991 the applicant was asked to indicate in the space provided what was the "Disability(ies) now claimed as war or defence caused". He responded by noting three: (i) "Back condition (3 crushed vertebrae)"; (ii) "Osteoarthritis in hip"; and (iii) "Skin condition". As required, he noted on the form the symptoms of these disabilities and the time at which the symptoms were first noticed. The back and hip injuries were attributed to a motor cycle accident in 1944 and the symptoms resulting from these appeared in the late 1960s. Though these were the three conditions (or disabilities) relied upon in the claim form, they were not the only conditions from which the applicant was suffering at the time of making the claim. In 1984 the applicant suffered an injury to his right shoulder while at work. He was replacing a wheel on a car with a wheel brace and, so it is said, because of pain he was having as a result of his back condition and of the posture he was forced to assume in consequence, he put excessive pressure on his right shoulder which resulted in an injury. This required operative treatment and it rendered him able to perform only light duties. His employer being unable to provide him with work of this character, his employment was terminated. This was in 1986. He has since remained unemployed. He is now 69 years of age. As I have noted, no mention was made of this particular injury in the claim form for a pension. However, in the personal details form of 30 April 1991 prepared for the purposes of his claim-related medical examination, the applicant, after giving a number of answers to specific questions in that part of the form concerned with how his disabilities affected his employment and domestic activities, answered the final question of that part in this way: "28.Do you wish to make any further comments about how your disability/ies affects your employment? Due to inability to use correct posture excess pressure placed on shoulders." Much was made of this question and answer in this appeal. Where a s14(1) pension claim is made, the Act, s17(1) requires the Secretary to the Department to "cause an investigation to be made into the matters to which the claim ... relates". The series of medical examinations and assessments made of the applicant in furtherance of this obligation focussed for quite understandable reasons on the three disabilities relied upon in the claim form. The shoulder injury as such was not the subject of examination and assessment for the purposes of the claim. The documentation associated with those examinations and assessments were submitted to the Commission along with the claim. The provisions of the Act, s18(1) make it: "the duty of the Commission in considering a claim ... 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 ... "