FEDERAL COURT OF AUSTRALIA VETERANS – war widow's claim for pension – appeal from the AAT – finding by Tribunal that deceased had not rendered operational service - whether Tribunal could review or depart from findings of Repatriation Commission affirmed by Veterans' Review Board – nature of hearing before Tribunal – whether respondent estopped from raising before Tribunal a finding previously conceded by it – test for determining whether operational service rendered – standard of proof to be applied. Veterans' Entitlement Act 1986 ss 5Q, 6, 8, 13, 14(3), 17, 19, 120, 135, 175 Administrative Appeals Tribunal Act 1975 ss 25, 43, 44 Judiciary Act 1903 s 39B(1A) Bushell v Repatriation Commission (1992) 175 CLR 408 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Canberra Tradesmen's Union Club Inc v Minister for the Environment Land and Planning (unreported, Full Court, Federal Court, 18 September 1998). Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Meenahan v Repatriation Commission (unreported, Administrative Appeals Tribunal, Purvis J, 23 December 1992) Repatriation Commission v Stafford(1995) 56 FCR 132 Fitzmaurice v Repatriation Commission(1989) 19 ALD 297 Stafford v Repatriation Commission (1995) 56 FCR 121 The Commonwealth v Verwayen(1990) 170 CLR 394 Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 Commonwealth v Sciacca(1988) 17 FCR 476 Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Wiest v Director of Public Prosecutions (1988) 86 ALR 464. Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 Roberts v Repatriation Commission (1992) 39 FCR 420 Grassby v The Queen (1989) 168 CLR 1 Papazoglou v Republic of the Philippines (1997) 74 FCR 108 Repatriation Commission v Smith (1987) 15 FCR 327 HENRIETTA RUBY BRAMWELL v repatriation commission vg 80 of 1997 weinberg j melbourne 9 OCTOBER 1998 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY vg 80 of 1997 BETWEEN: HENRIETTA RUBY BRAMWELL Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: WEINBERG J DATE OF ORDER: 9 october 1998 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 vg 80 of 1997 BETWEEN: HENRIETTA RUBY BRAMWELL Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: WEINBERG J DATE: 9 october 1998 PLACE: MELBOURNE REASONS FOR JUDGMENT This is an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("the Tribunal") given on 3 February 1997. The Tribunal affirmed an earlier decision of the Veterans' Review Board of 17 May 1995 which had, in turn, affirmed a decision of the Repatriation Commission of 7 July 1994. The applicant, Henrietta Ruby Bramwell, has failed throughout in her claim to be entitled pursuant to the Veterans' Entitlement Act 1986 ("the Act") to a war widow's pension. Her claim arises out of the death of her husband, Christopher Bramwell, who died on 21 February 1982, at the age of sixty-four years. The appeal to this Court is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ("the AATAct"). Though the word "appeal" is used in the AAT Act, the proceedings lie in the original jurisdiction of the Court. The applicant is confined by s 44 to raising questions of law. The Legislative Background Before turning to the issues which arise in this case it is necessary to refer to some of the provisions of the Veterans' Entitlement Act 1986 which are of particular relevance. The Act provides for the payment inter alia of pensions and other benefits to veterans and their spouses and dependants. It is drafted in complex terms. It provides a highly structured mechanism by which claims to such pensions or benefits are to be made, assessed, and if appropriate, granted. A convenient starting point is s 13 of the Act. That section sets out the criteria for eligibility for pension arising out of the death or incapacity of veterans. Section 14 deals with claims by veterans, or their dependants, for pensions. Subsection 14(3) provides: "14(3)A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b)." It can be seen therefore that a claim is made in the first instance to the Department. Section 17 requires the Secretary of the Department to investigate the matters to which the claim relates, and upon completion of that investigation to cause the claim to be submitted to the Repatriation Commission for its consideration and determination. Section 19 provides for the determination of such claims by the Commission. It should be noted that a determination by the Commission is deemed by s 5Q to be a decision for the purposes of the Act. In determining whether or not to grant a pension, one of the matters to be taken into account in the case of a veteran who served during either of the world wars is whether he rendered operational service during any period during which he was rendering continuous full-time service. "Operational service" is now dealt with in s 6A so far as the world wars are concerned, but when the present claim was submitted, was relevantly defined as follows: "6(1) For the purposes of this Act – … (b) a person who had rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) during the period from and including 19 February 1942 to and including 12 November 1943 shall be taken to have been rendering operational service while the person was so rendering continuous full-time service." It should be noted that 19 February 1942, which is the first date specified in s 6(1)(b) is the date when Darwin was first bombed. It should also be noted that Darwin is north of the parallel 14 degrees 30 minutes south latitude, but that Alice Springs is not. The significance of this excursus into the geography of the Northern Territory will emerge later in this judgment. Section 8 provides, in part: "(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if: (a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service." There is therefore a link between the expression "operational service" as defined in s 6(1)(b), and the expression "war-caused" as defined in s 8. Those concepts lead directly into certain critical provisions of the Act so far as this application is concerned. Section 120 of the Act bears the legislative heading "Standard of Proof". It provides in part: "120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. … (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." These provisions have given rise to many difficulties, and have been the source of much litigation. Their meaning has, to some extent, been elucidated by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 412-3 per Mason CJ, Deane and McHugh JJ and 425-6 per Brennan J. It is sufficient for present purposes to note that it is advantageous to a claimant to have his or her claim dealt with pursuant to ss 120(1) and 120(3) rather than s 120(4) of the Act. The claimant must point to some material which raises the relevant causal hypothesis, and if that is achieved, the claim is then dealt with in accordance with s 120(1). In order to qualify for the more benevolent standard of proof set out in those earlier provisions, in a case such as the present, the requirements set out in s 6(1)(b) must first be met. In other words the deceased must have rendered "operational service", as defined in that provision. Failing that, the matter will be determined upon the basis of "reasonable satisfaction". The scheme of the Act is to provide elaborate mechanisms for review after a claim to a pension is made. Once the Commission has made a decision in respect of such a claim, a person who pursuant to s 135(1) is dissatisfied "with any decision of the Commission in respect of the claim" may make an application to the Veterans' Review Board for review of that decision. That subsection relevantly provides: "135 Review of decisions in respect of pensions and attendant allowances (1) Where a person: (a) 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, subject to this Act, make application to the Board for a review of the decision of the Commission." The powers and duties of the Veteran's Review Board upon such a review are set out in s 139. That section provides, in part: "(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." "(2) 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." It is plain from these provisions that a review by the Board takes the form of a hearing de novo. A further avenue of review is contained in Pt X of the Act. This further avenue is from the Board to the Tribunal. Section 175(1) of the Act provides as follows: 175 Applications for review (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review: (a) of the decision of the Commission that was so affirmed; (b) of the decision of the Commission as so varied, or (c) of the decision made by the Board in substitution for the decision to be set aside; as the case may be." Section 176 of the Act deals with the interrelationship between the Veterans' Entitlements Act 1986, and the Administrative Appeals Tribunal Act 1975. That section renders applicable to review proceedings conducted under s 175 of the Act certain of the provisions of the AAT Act. It is clear that the Tribunal, when it conducts review proceedings pursuant to s 175(1) of the Act, does so in accordance with the provisions of the AAT Act which govern review of decisions generally, save to the extent that s 176 of the Act otherwise provides. A review by the Tribunal, is, therefore, a hearing de novo. The Tribunal stands in the shoes of the Commission, performing the function assigned by the Veterans' Entitlement Act to the Commission. The question for the Tribunal is, as in all cases determined by it, what is the correct or preferable decision based upon the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. The background to the application The applicant first lodged a claim for a pension as the widow of the deceased on 25 March 1982, about a month after his death. That claim was rejected by a Repatriation Board upon the basis that her husband's death was not related to his service in the Army. The cause of death had been certified as being "Malignant frontal glioma – 1 year". Translated loosely, that means he died of a brain tumour. The applicant contended that the head injuries which her husband had sustained while driving an Army truck in February 1942, during active service, were related to, or had caused, the brain tumour. The Repatriation Board rejected that contention. It expressed itself to be satisfied beyond reasonable doubt that the death of the deceased was not related to or caused by the injuries which he had sustained in that accident. On 25 November 1993 the applicant made a fresh claim for a war widow's pension. This claim was based upon the deceased's having taken up smoking during his war service, and also upon his exposure to petroleum products in his capacity as an Army driver. Each of those occurrences were said to have been related to, or to have caused, his brain tumour. On 7 July 1994, the Repatriation Commission refused this new claim. It found that the death of the deceased was not "war-caused", and was not therefore compensable under the Act. It is important to note that the Commission accepted that the deceased had rendered operational service as defined in s 6(1)(b) of the Act, as it then stood. It proceeded upon the assumption that it was required to allow the applicant's claim unless satisfied beyond reasonable doubt that there were insufficient grounds for so doing. It went on to find, however, that upon a consideration of the whole of the evidence there had not been raised, within the meaning of s 120(3), a reasonable hypothesis connecting the death of the deceased with the circumstances of his war service. On 15 November 1994 the applicant applied for a review of the Commission's decision by the Veterans' Review Board ("the Board"). On 17 May 1995 the Board affirmed that decision. The Board accepted the finding by the Commission that the deceased had rendered operational service as defined in s 6(1)(b) of the Act. In its reasons for decision, it stated: "In the absence of any evidence challenging the finding of the delegate, the Board accepts that the whole of the veteran's Army service was eligible war service including operational service as defined in the Act." Notwithstanding that finding, the Board concluded that the material before it did not, within the meaning of s 120(3) of the Act, raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the particular service which he had rendered. It followed that the Board was satisfied beyond reasonable doubt, in accordance with s 120(1), that there was no sufficient ground for determining that the death of the deceased was war-caused. On 18 July 1995 the applicant applied to the Tribunal to review the decision of the Board. At the hearing before the Tribunal, the applicant was represented by her solicitor, Mr De Marchi. The Commission was represented by an officer of the Department of Veterans' Affairs. On this occasion, oral evidence was adduced from an immunologist, Dr I R Mackay of the Department of Biochemistry and Molecular Biology at Monash University. Dr Mackay provided a report dated 15 July 1996. That report rejected any link between the deceased's smoking and the form of tumour which he had sustained. However, it suggested that based upon certain medical literature which Dr Mackay had studied, exposure to petroleum products was an apparent factor in some cases of glioblastoma. Dr Mackay acknowledged, however, that he lacked professional experience in the field of epidemiological oncology, and also in neuro oncology. He acknowledged too that it was not within his capacity or expertise, or within his knowledge of the background to the present case, to form any definitive view about the relationship between the death of the deceased, and his wartime experience as an Army driver. The respondent tendered in evidence medical reports from two experts. These reports expressed doubt as to the extent of any causal relationship between exposure to benzene, or to diesel fuel, and brain tumours. Each of these reports, therefore, cast doubt upon whether the death of the deceased in 1982 had in any way been related to the conditions of his wartime service. What is significant for present purposes, however, is that, contrary to the views of both the Commission and the Board, the Tribunal found that the deceased had not rendered operational service as defined in s 6(1)(b). As a consequence, the relevant standard of proof to be applied in determining whether his death was war-caused was that of "reasonable satisfaction" as set out in s 120(4), rather than that "beyond reasonable doubt" as set out in ss 120(1) and 120(3). The importance of this finding by the Tribunal in the present case is emphasised by the concession made before me on behalf of the applicant that if the correct standard of proof be that of reasonable satisfaction, the applicant must inevitably have failed in her claim, as her case was not of sufficient strength to meet that standard. If, on the other hand, the applicant was required merely to demonstrate the existence of a reasonable hypothesis connecting the death of the deceased with the circumstances of his wartime service, the outcome might have been different, or at least so it was contended. The Tribunal noted that the delegate of the respondent, in his statement of reasons for his determination made on 7 July 1994, had without explanation accepted that the deceased had rendered operational service as defined in s 6(1)(b) of the Act. Similarly, the Board in its reasons for decision of 17 May 1995 simply accepted this finding, without elaboration. The Tribunal observed that the deceased had served in the Australian Army from 19 December 1939 to 11 December 1945. He had not, however, served outside Australia. The applicant was obliged therefore, to rely upon s 6(1)(b) to establish that he had rendered operational service. The Tribunal was, of course, well aware of the fact that his having rendered operational service would bring into play the definition of war-caused death in s 8. This, in turn, would bring into play the more benevolent standard of proof in ss 120(1) and 120(3) of the Act, rather than that required by s 120(4). The respondent, however, raised for the first time before the Tribunal the question whether the deceased fell within the terms of s 6(1)(b). It would appear that this issue arose as a result of certain new material having become available to the respondent which it had not previously considered. Nor, indeed, had the Board. This new material tended to suggest that the deceased had not rendered operational service, as defined. The consequence of a finding to that effect was that the more onerous reasonable satisfaction standard set out in s 120(4) was applicable when considering the applicant's case. The applicant relied heavily upon a copy of a Service and Casualty form which recorded the deceased as having served within 7 Military District from 5 October 1942 to 10 January 1943. It appears to be common ground that 7 Military District covered the Northern Territory. However, a medical history sheet, produced for the first time before the Tribunal, recorded that the deceased had undergone a medical examination in Alice Springs on 30 October 1942. Alice Springs, as was noted earlier, is south of the parallel 14 degrees 30 minutes south latitude. That medical history sheet, if accurate, made it impossible for the deceased to have accumulated three months' continuous full-time service north of the relevant parallel during the period specified as service in the Northern Territory in his Service and Casualty form, ie, between 5 October 1942 and 10 January 1943. In addition, the Tribunal also had before it a Central Army Records Office letter which had not previously come to light, dated 16 July 1981. The letter was addressed to the Department of Veterans' Affairs. It stated in part: "No record is held at our Office of Mr Bramwell having served in the prescribed operational area of the Northern Territory, North of parallel 14.5° South latitude." Faced with this additional material, the applicant sought to advance an alternative submission before the Tribunal. This alternative submission was that the deceased had rendered operational service within the terms of s 6(1)(n) of the Act, as it then stood. That alternative submission was rejected by the Tribunal. This particular finding by the Tribunal is not challenged before me. I need not therefore say any more about it. The applicant's contentions Although the applicant identified at least seven separate grounds of appeal in her supplementary notice of appeal, the argument advanced by Mr De Marchi raised for consideration just four questions of law. In substance these were as follows: 1. Whether it had been open to the Tribunal to find that the deceased had not rendered operational service, given the manner in which that question had been determined by the delegate, and by the Board, and the constraints of subs 175(1) of the Act? 2. Whether the respondent was estopped from contending before the Tribunal that the deceased had not rendered operational service? 3. Whether the Tribunal had erred in law in failing to determine the question whether the deceased had rendered operational service in accordance with the standard of proof provided for in ss 120(1) and 120(3) rather than that provided for in s 120(4) of the Act? 4. Whether the Tribunal erred in law in finding that the deceased had not rendered operational service? I shall deal with each of these contentions in the order set out above. Section 175 of the Act and the question of jurisdiction Mr De Marchi contended that the Tribunal was not empowered, pursuant to subs 175(1) of the Act, to review the decision of the Commission, which was affirmed by the Board, that the deceased had rendered operational service. His argument was that the respondent had not formally challenged that decision before the Tribunal. It was the applicant who sought review of the decision by the Commission, affirmed by the Board, that the death of the deceased was not related to or caused by his wartime service. This was the only decision, therefore, which the Tribunal was entitled to review. The earlier "decision" relating to "operational service" (which had been arrived at as a preliminary finding along the way to the ultimate decision relating to causation) was not, in any relevant sense, before the Tribunal for reconsideration. I am unable to accept Mr De Marchi's contention that by reason of s 175(1) of the Act, it was not open to the Tribunal to review, or to depart from, the finding by the Commission, affirmed by the Board, that the deceased had rendered "operational service". The "decision of the Commission that was so affirmed" within the meaning of s 175(1)(a) was the decision which had been described by the delegate, in his reasons for decision, as "Determination". A decision includes a determination – s 5Q. That determination was in the following terms: "The death of the Veteran is determined not be to war caused within the meaning of section 8 of the Veterans' Entitlements Act 1986. The claim for pension is refused." When the Board gave its reasons for decision it too identified the decision under review in the following terms: "A Repatriation Commission decision of 7 July 1994 that the death of the veteran was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986, and which refused the claim for widow's pension." The decision of the Board was itself described in the following terms: "On 17 May 1995 the Veteran's Review Board decided to affirm the decision under review. This means that the Repatriation Commission's decision is unchanged." The fact that the delegate was prepared to treat the deceased as having rendered operational service while working towards the determination that his death was not war-related did not, in my opinion, quarantine that finding, and exclude it from the parameters of "the decision of the Commission that was so affirmed", which decision formed the subject of review. In a case of merit review there is a distinction to be drawn between the decision of the Commission, as affirmed by the Board, and its reasons for decision. The Tribunal is given the task of reviewing "the decision of the Commission that was so affirmed" by the Board – s 175(1)(a). It is the whole of that decision which is to be reviewed. In merit review that must include a capacity to depart from the process of reasoning which led to that ultimate decision. In carrying out its statutory responsibility, the Tribunal is in no way inhibited by the language of s 175(1) from reasoning to a conclusion upon a basis which differs from that which found favour with the Commission, and with the Board. It is of course clearly established that when it comes to non merit review, preliminary rulings or findings, even if they render the content of the consequent decision inevitable, are not themselves "decisions" within the meaning of provisions such as s 44(1) of the AAT Act. The term "decision" in that section is given a restrictive meaning, and refers to a final decision or determination – Canberra Tradesmen's Union Club Inc v Minister for the Environment Land and Planning (unreported, Full Court, Federal Court, 18 September 1998). In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 the High Court held that the making of a "finding" does not constitute a reviewable decision pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 save in the limited sense reflected in the following passage from the judgment of Mason CJ (which whom Brennan and Deane JJ agreed) at 337: "… a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." The fact that the Tribunal found that the deceased had not rendered "operational service" within the meaning of that expression in s 6(1)(b) led it to conclude that the standard of proof to be applied in considering the question of causation was that embodied within s 120(4), and not the more benevolent standard contained within ss 120(1) and 120(3). The determination of which standard of proof was to apply to the resolution of the question before the Tribunal was an integral part of its task of review. It was the function of the Tribunal in reviewing the decision of the Commission, as affirmed by the Board, to consider the matter afresh. It was, in other words, its task to conduct a merit review. It was obliged to review that decision upon the material before it, together with the material which had been before the Commission and before the Board. Its responsibility was to arrive at the correct and preferable decision. This responsibility could not be discharged if the Tribunal were prevented from considering what standard of proof should govern the resolution of the issue before it. It would be peculiar indeed if s 175(1) of the Act, in conjunction with the AAT Act, required the Tribunal to conduct a hearing de novo, but in a restricted form, preventing it from departing from ancillary findings of fact made by the Commission or the Board, absent some notice of contention, or its equivalent (for which in any event no provision is made in the statute). In principle, there is no warrant for the Tribunal to adopt any such hybrid role. There is either a hearing de novo, or there is not. Mr De Marchi, for the applicant, relied primarily upon two decisions in support of his contention that, because the respondent had not made formal application to the Tribunal to challenge the decision recognising the deceased's operational service, it was not open to the Tribunal to revisit that issue. He referred first to Meenahan v Repatriation Commission, a decision of the Administrative Appeals Tribunal delivered by Purvis J, on 23 December 1992. In that case the Commission had heard and determined both a claim for entitlement and an application for an assessment. The claimant had raised before the Board a review of the assessment only. When the matter came before the Tribunal, the question was whether it was competent for the Tribunal to consider and determine also the issue of entitlement. Purvis J noted that the Act empowered the Commission to make decisions referable to the entitlement of a veteran, or his dependant, to a pension and, if satisfied as to entitlement, to conduct an assessment of the rate of pension payable. He noted further that an application to the Board to review a decision concerning an assessment had to be made within three months of the decision of the Commission. An application to review a decision as to entitlement could, however, be made within twelve months of that decision. It was hardly surprising, therefore, that Purvis J concluded that decisions as to claims for entitlement and decisions upon applications for assessment were to be regarded as separate and distinct. In the event that a claimant sought review by the Board of entitlement only, or of assessment only, then the Board was required to consider and reach a decision on the matter of entitlement only, or the matter of assessment only, as the case may be. Likewise, s 175(1) of the Act precluded the Tribunal from considering the question of entitlement if the question of assessment only had been before the Board, and the question of assessment only was now before the Tribunal. Meenahan, properly understood, does not support the wider submission advanced by Mr De Marchi to the effect that part of a decision with which the claimant is content may be hived off, and quarantined from review, when the decision ultimately arrived at is challenged before the Tribunal. Mr De Marchi also sought to rely upon a decision of the Full Court of the Federal Court in Repatriation Commission v Stafford (1995) 56 FCR 132. There the Full Court held that the phrase "any decision of the Commission in respect of the claim or application" in s 135(1) of the Act (which, as was noted earlier, deals with review of the Commission's decision by the Board) comprehended each determination as to whether a condition of entitlement stated in the Act had been satisfied, as well as the ultimate decision as to whether the entitlement which was the subject of the claim or the application existed. Thus, in an application to the Board one or more of the determinations of the Commission as to whether conditions of entitlement had been satisfied might be excepted from the decision in relation to which review was sought, leaving for review only the ultimate decision as to entitlement, and the determinations not excepted. The Full Court in Stafford held that the particular application to the Board had the effect of imposing on the Board the obligation to review each decision and determination concerning each condition of entitlement which on the material before the Commission the claim for pension suggested. Only a clear, and unambiguous withdrawal by the veteran of a condition from the scope of the review could relieve the Board of that duty. It was the possibility, raised in Stafford, that part of the Commission's decision could, in appropriate circumstances, be quarantined from review by the Board that was seized upon by Mr De Marchi as support for the applicant's case. Mr De Marchi submitted that a similar interpretation to that given by the Full Court in Stafford to s 135(1) should be given to s 175(1)(a) though that deals with review by the Tribunal of decisions by the Commission (which are affirmed by the Board), and not review by the Board. It is important to note that the judgment in Stafford turned upon the construction of s 135 of the Act and the particular formulation "any decision of the Commission in respect of the claim or application" set out therein. The Court observed at 136-7: "6. The phrase "any decision of the Commission in respect of the claim or application" in s 135(1) should in our opinion be construed as comprehending each determination as to whether a condition of entitlement stated in the Act has been satisfied, as well as the ultimate decision as to whether the entitlement which was the subject of the claim or the application exists. The language of the subsection admits of such a construction and the subject-matter of claims under Pt II make it convenient to adopt the construction." Stafford was not concerned with the construction of s 175(1) of the Act as such. There the relevant phrase is different in several important respects from that adopted in s 135(1). Section 175(1) was, moreover, the subject of consideration by the Full Court of the Federal Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297. There the applicant applied to the Tribunal for review of a decision of the Board. The Board had set aside earlier rejections by the Commission of his claim to a pension. The Board found that he was entitled to a pension and that it should be paid at the rate of 100% of the general rate. The applicant was satisfied with the Board's finding of entitlement. He was not, however, satisfied with its finding as to the rate of pension. He sought to have the Tribunal confine its review to the rate of his pension, and not to reopen the question of entitlement. It was contended before the Tribunal, contrary to the applicant's submission, that the application for review necessarily conferred jurisdiction upon the Tribunal to determine not merely the question of the appropriate rate of pension, but also the question of entitlement. That result was said to flow directly from the construction of s 175 of the Act. The Tribunal stated a special case, posing the question of law for the Court as follows: "Whether, in hearing and determining the application lodged with the Administrative Appeals Tribunal by the applicant, it is within the jurisdiction or authority of the Tribunal, to review the Veterans' Review Board's findings that the Commonwealth is liable to pay the applicant pension in respect of his incapacity from dyspepsia and anxiety state." A majority of the Full Court, Wilcox and Foster JJ, held that the language of s 175(1) led intractably to the conclusion that, once the jurisdiction of the Tribunal had been invoked pursuant to s 175(1)(b) – ("of the decision made by the Board in substitution for the decision so set aside" – now s 175(1)(c)), the review had to embrace the totality of the decision or decisions made by the Board in place of the decision which it had set aside. Though Fitzmaurice did not in terms deal with s 175(1)(a) of the Act as it presently stands, it is difficult to see why there should be adopted a different construction of the phrase "the decision of the Commission that was so affirmed" in that paragraph to that applied by the majority in that case to the expression found in the legislative precursor to s 175(1)(c). Fitzmaurice was considered, but not doubted, by the Full Court in Stafford (supra). There are passages in the judgments of Wilcox and Foster JJ in Fitzmaurice which, though perhaps not directly in point, nevertheless support the contention that the Tribunal should be at large when considering, pursuant to s 175(1)(a), a decision of the Commission which has been affirmed by the Board. I note that Davies J dissented in Fitzmaurice. However, the views of Wilcox and Foster JJ seem to me to lend cogent support to the respondent's contentions as to the relevant principles which govern this matter. If there be conflict between the views of the majority in Fitzmaurice, and the heavily qualified dicta in Stafford, I regard the former as stating the relevant principles correctly. I note that the judgment at first instance of Northrop J in Stafford v Repatriation Commission (1995) 56 FCR 121 is entirely consistent with the views of Wilcox and Foster JJ in Fitzmaurice, and with my own views on this point. In my opinion it was open to the Tribunal to consider for itself whether or not the material before it disclosed that the deceased had rendered "operational service" within the meaning of s 6(1)(b) of the Act. This was so notwithstanding the fact that this had not been an issue before either the Commission or the Board. This conclusion is supported by s 25(4) of the AAT Act. That sub-section gives the Tribunal "power to review any decision in respect of which application is made to it under any enactment". Taken together with s 43(1) of the same Act (which provides that for the purposes of reviewing the delegate's decision, the Tribunal is given all the powers and discretions conferred upon the Commission by the Veteran's Entitlement Act) it was not only open to the Tribunal to consider for itself the question whether the deceased had rendered operational service, but necessary that it do so. Mr Hanks, for the respondent, contended correctly, I believe: "Where the jurisdiction of the AAT in enlivened by an application for review, it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do – Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 40; see also Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453. In the present case that must include considering "all matters that … are relevant to the claim": see para 19(1)(a) of the …Act. In conducting a review, the question for the AAT is not whether the decision under review was the correct or preferable decision on the material before the primary decision-maker, but whether that decision is the correct or preferable decision on the matter before the AAT – Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589." The issue whether the deceased had rendered operational service was properly before the Tribunal because it was relevant to, and formed part of, the decision under review – that decision being that the death of the deceased was not war-caused. The Tribunal could not be prevented from conducting a complete review "of the decision of the Commission that was so affirmed" by the Board by the delegate's earlier finding that the deceased had rendered operational service, and the Board's decision affirming that finding. The absence of any formal challenge to that finding by the respondent before the Tribunal commenced its review of the Commission's decision as affirmed by the Board did not mean that the Tribunal was required, or permitted, to come to a decision which it regarded, on the material before it, as being a decision which was not that which was correct and preferable. The estoppel/abuse of process contention Mr De Marchi contended that the respondent was estopped from raising before the Tribunal a challenge to the earlier finding that the deceased had rendered operational service. The correctness of that finding had, he submitted, been tacitly conceded by the respondent in the proceedings below. He submitted that there operated therefore a form of estoppel by conduct, of the type considered by the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394, and that it would be unconscionable to permit the respondent to change the position which it had adopted at the outset, and maintained throughout, before the Tribunal. Alternatively, Mr De Marchi contended, the respondent's conduct amounted to an abuse of process which the Tribunal ought not to have countenanced, and against which this Court ought to grant relief. There is a substantial body of authority against each of these contentions. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 the Full Court of the Federal Court held that the doctrine of issue estoppel did not have any place in proceedings of the Tribunal. See also Commonwealth v Sciacca (1988) 17 FCR 476 at 480 where the Full Court of the Federal Court had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." See also Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87 at 97-98 per Hill J; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 219 per Gummow J and his Honour's reference to Wiest v Director of Public Prosecutions (1988) 86 ALR 464. Moving from issue estoppel, the question whether an estoppel by conduct can be raised against the donee of a statutory power has also been the subject of a good deal of consideration. In Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 Davies and Gummow JJ, in a joint judgment, dealt with the question of estoppel at 695-696. Their Honours concluded that estoppel has no role to play where the issues to be determined involve rights and obligations rather than the exercise of administrative discretions. The authority of a decision-maker cannot be extended beyond that given by the statute through the mechanism of an estoppel. The question whether the deceased rendered operational service so as to bring into play the provisions of s 8, and ss 120(1) and 120(3) seems to me to involve the determination of rights and obligations rather than the exercise of any administrative discretions. The principles laid down in Formosa are, therefore, strongly against this particular contention by the applicant. Moreover, in Roberts v Repatriation Commission (1992) 39 FCR 420 the Full Court of the Federal Court held that the doctrine of estoppel did not operate to authorise the Tribunal to vary the date upon which payment of a pension could be made under the Act on the basis of an assumption being made which denied the true date on which the application had been lodged with the Tribunal. In that case the Department had induced the applicant to assume that his application had been lodged with the Tribunal at or about a particular date. In reliance on that assumption the applicant did not lodge another application before the expiration of the three month limitation period prescribed by the Act. After referring to the joint judgment of Davies and Gummow JJ in Formosa (supra) the Court in Roberts stated at 425: "It is not open to this Court to erect, on the foundation suggested by counsel for the applicant, a general principle, of uncertain application, based upon a balancing of elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by the Parliament and also appropriate public money without the authority of the Parliament." As regards Mr De Marchi's alternative contention that the Tribunal should not have countenanced an abuse of process, it is sufficient to note that the High Court in Grassby v The Queen (1989) 168 CLR 1 determined that this doctrine could not be invoked to enable a magistrate engaged in the conduct of committal proceedings, involving as they do the exercise of administrative and not judicial functions, to stay those proceedings as an abuse of process. In Papazoglou v Republic of the Philippines (1997) 74 FCR 108 the Full Court of the Federal Court applied like reasoning to the administrative functions performed by a Magistrate conducting extradition proceedings under the provisions of the Extradition Act 1988. These cases seem to me to suggest not only that the Tribunal lacks any inherent power to stay proceedings before it as an abuse of process, (a matter which is self-evident) but also lacks any implied power under the AAT Act to prevent there being an abuse of process. As to the contention that this Court should grant the relief sought because what had occurred before the Tribunal amounted to an abuse of process, it may be that there is power to grant some form of relief in an appropriate case in any matter which involves the exercise of powers under a federal enactment – see s 39B(1A) of the Judiciary Act 1903. The existence of such a power would not, however, justify its exercise in the present circumstances. The Tribunal is required to arrive at the correct and preferable decision. The only basis upon which it is said that there has been an abuse of process is that the respondent changed its position in relation to a particular question of fact which it had earlier conceded in favour of the applicant. That change of position was based upon the discovery of new material not previously considered by the respondent. A change of position in these circumstances seems to me to fall a long way short of an abuse of process. It may almost be said to be an abuse of language to describe it as such. The test for determining whether the deceased had rendered operational service Mr De Marchi contended that the Tribunal had erred in law in failing to apply the more benevolent reverse criminal standard test mandated by ss 120(1) and 120(3) of the Act rather than the reasonable satisfaction test provided for in s 120(4). In my view, this contention must be rejected. It involves circular reasoning. Sub-sections 120(1) and 120(3) of the Act do not operate unless, and until, it has been determined that the deceased rendered operational service pursuant to s 6(1)(b) and s 8(1). Nothing in the structure or text of the Act suggests that the question whether the deceased rendered operational service should be answered by applying to that question a standard of proof which comes into play only once that question has been determined in a manner favourable to the applicant. As Mr Hanks submitted, the language of s 120(4), given its ordinary and natural meaning, makes it plain that the Commission, in making any determination or decision in respect of a matter arising under the Act, is required to decide that matter to its reasonable satisfaction. That must include a determination or decision as to operational service. The expression "reasonable satisfaction" in s 120(4) of the Act has been construed as meaning, in effect, the civil standard of proof – see Repatriation Commission v Smith (1987) 15 FCR 327. The Tribunal held that it was that standard of proof which applied when determining the question whether the deceased had rendered operational service. It was correct in so holding. The contention that the deceased had rendered operational service Mr De Marchi contended that the Tribunal had erred in law in failing to hold that the deceased had rendered operational service within the meaning of s 6(1)(b) of the Act. In order to make good the contention that this argument involves a question of law (so as to render it amenable to review in this Court), it is necessary that it be formulated, in effect, upon the basis that the facts do not reasonably admit of any other conclusion. The argument advanced by Mr De Marchi, however, seems to me to have attacked the Tribunal's conclusion merely upon the basis that it was against the weight of the evidence. Such a contention does not raise for consideration a question of law. It is sufficient I think to deal with this argument by noting that there was ample evidence before the Tribunal to suggest that the deceased had not rendered continuous full-time service for a continuous period of not less than three months in that part of the Northern Territory north of the parallel 14 degrees 30 minutes south latitude during the period in question. It must be recalled that taken at their highest, the deceased's service records show him to have been in the Northern Territory from 5 October 1942 to 10 January 1943, a period only slightly longer than three months. His medical records disclose that on 30 October 1942 the deceased underwent a medical examination at Alice Springs. While there are some instances where the word "continuous" has been construed as meaning "continual", the ordinary meaning given to that word in the Oxford English Dictionary is "uninterrupted in time, sequence, or essence; going on without interruption; connected, unbroken". Manifestly the deceased's time north of the particular parallel during the period specified in his service records did not meet the requisite three months' continuous service. Moreover, there was other material before the Tribunal which casts doubt upon whether the deceased rendered the requisite three months' continuous service north of the particular parallel. In a letter which was tended before the Tribunal, the deceased's co-driver for some years during the war, Mr LE Kee wrote: "Chris Bramwell was posted to my unit late in 1941 and was my co-driver for the next four and a half years, we did over fifty trips up and down "the track"." The trips to which Mr Kee referred were between Darwin and Alice Springs. It would have been open to the Tribunal, had it chosen to do so, to treat this material as supporting its conclusion that the deceased had not continuously remained north of the relevant parallel for the requisite period of three months during his wartime service. I can discern no error in the Tribunal's reasoning in arriving at the conclusion that the deceased had not rendered the requisite period of operational service. I doubt that the point as formulated in argument raises a question of law. If it does, however, no error of law has been demonstrated. Conclusion It follows that the appeal, brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975, must be dismissed, with costs. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg Associate: Dated: 9 October 1998 Counsel for the Applicant: Mr D De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: Mr P J Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 August 1998 Date of Judgment: 9 October 1998