Stewart v Repatriation Commission [2002] FCA 316

FEDERAL COURT OF AUSTRALIA

Stewart v Repatriation Commission [2002] FCA 316

VETERANS' AFFAIRS – pension claim– review by Administrative Appeals Tribunal – whether Tribunal could depart from findings affirmed by Veterans' Review Board – whether review confined to assessment of pension rate – whole of decision to be reviewed. Veterans' Entitlements Act 1986, ss 29(4) and 175(1)(a)

Re Anderson and Repatriation Commission (1998) 53 ALD 467 followed Bramwell v Repatriation Commission (1998) 158 ALR 623 followed Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 applied

PRUDENCE CHRISTINE STEWART v REPATRIATION COMMISSION

N 1360 of 2000 JUDGE: WHITLAM J DATE: 21 MARCH 2002 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1360 of 2000

On appeal from the Veterans' Appeals Division

of the Administrative Appeals Tribunal

BETWEEN: PRUDENCE CHRISTINE STEWART

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 21 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1360 of 2000

On appeal from the Veterans' Appeals Division

of the Administrative Appeals Tribunal

BETWEEN: PRUDENCE CHRISTINE STEWART

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: WHITLAM J

DATE: 21 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") made under the Veterans' Entitlements Act 1986 ("the Act"). 2 The applicant is the widow of a deceased veteran who rendered operational service during World War 2. In June 1942, during his service, the veteran suffered an episode of cerebro-spinal meningitis. In February 1989 the veteran suffered a grand mal seizure for the first time. He suffered further such seizures in April 1989 and March 1992. 3 On 27 April 1993 the veteran lodged a claim for a pension under s 14 of the Act in respect of incapacity from what were described as "grand mal seizures", "essential thrombocytosis" and "arthritis right knee". On 23 October 1993 a delegate of the respondent determined that the veteran suffered post-meningitic epilepsy, essential thrombocytosis and osteoarthritis right knee, but that only the post-meningitic epilepsy was war-caused. The delegate assessed the rate at which the pension was payable as 10% of the general rate. 4 The veteran applied for a review of the delegate's decision. On 2 May 1994 the Veterans' Review Board ("the Board") affirmed the delegate's decision in respect of essential thrombocytosis and osteoarthritis right knee and adjourned pursuant to s 152(2) of the Act the hearing of the review with respect to pension assessment. On 11 December 1994 the Board affirmed the delegate's pension assessment. The Board recorded its decision in the following terms: "On 11 November 1994, the Veterans' Review Board decided to affirm the decision of the Repatriation Commission dated 22 October 1993, the subject of the review." 5 On 3 February 1995 the veteran applied to the Tribunal for review of the Board's decision. The hearing of the proceeding before the Tribunal commenced on 22 May 1996 and was then adjourned. On 21 July 1997 the veteran died. An autopsy was conducted, and it was discovered that the veteran's brain showed no indications of post-meningitic scarring. On 29 May 1998 the applicant was approved under s 126(1) of the Act to pursue the veteran's application for review. 6 In due course the proceeding resumed, and on 22 November 2000 the Tribunal made its decision. It varied the delegate's decision (1) by deleting the adjective "post-meningitic" from the description of the war-caused disease so that it read simply "epilepsy", and (2) by increasing to 20 per cent of the general rate the pension payable for the period ending on the date of the veteran's death. 7 The grounds relied upon by the applicant in support of her appeal are stated in the notice of appeal as follows: "(a) That the Tribunal erred in law in holding that it had jurisdiction to review that part of the primary decision that the late veteran's post-meningitic epilepsy was war-caused. (b) That the Tribunal erred in law in finding that the late veteran's depression was a separate condition which could not be assessed as part of the accepted disability of epilepsy. (c) That the Tribunal erred in law in applying GARP V to the assessment of the late veteran's disabilities given that GARP IV was the applicable assessment standard at the date of death of the veteran. (d) That the Tribunal erred in law in disallowing the assessment under GARP V of an expert medical practitioner called by the Applicant." 8 The parties are agreed that the jurisdiction of the Tribunal is conferred by s 175(1) of the Act, which provides: "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 so set aside; as the case may be." 9 Counsel for the applicant submits that the application to the Tribunal does not "give rise to a reconsideration of the … acceptance of the disability of post-meningitic epilepsy". He says that the acceptance of that disability by the delegate was not reviewed by the Board and thus it was not part of its decision so as to be reviewable under s 175 of the Act. Counsel submits that, had it been the Board which accepted that disability, the application to the Tribunal "would necessarily re-open all the findings of the [Board] for review." 10 The respondent, on the other hand, submits that the expression "the decision of the Commission that was so affirmed" in s 175(1)(a) encompasses the whole of that decision. I accept that submission. It is clearly correct and is supported by the principles stated by the majority in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297. Weinberg J thought so too in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 631-635, and I respectfully agree with that view. It follows that ground (a) fails. 11 In any event, the finding by the Tribunal that the veteran suffered epilepsy rather than post-meningitic epilepsy made no difference. The Tribunal still found that that condition was war-caused, and the evidence of the medical witnesses about the veteran's incapacity was unaffected by that finding. 12 Ground (c) was next addressed by counsel for the applicant. GARP is the acronym for a document known as the "Guide to the Assessment of Rates of Veterans' Pensions" prepared by the respondent. Section 29(4) of the Act provides that, where the Tribunal is required to review the assessment of the extent of the incapacity of a veteran resulting from a war-caused disease, the provisions of the approved Guide are binding on it. The Tribunal rejected submissions that it was "illogical" to apply a Guide approved after the veteran's death and that his beneficiaries had "a right to have his claim determined in accordance with the law as it was at the date of his death". The Tribunal followed the decision of Mathews P in Re Anderson and Repatriation Commission (1998) 53 ALD 467. The bald submissions to the Tribunal by counsel for the applicant were not elaborated in this appeal. 13 GARP V is a reference to the Guide approved by the Minister for Veterans' Affairs under s 29(3) of the Act to commence on 18 April 1998. This was the Guide applied by the Tribunal. The language of s 29(4) is clear and admits of no doubt as to its meaning. The review of the extent of the veteran's incapacity made by the Tribunal was required to "be in accordance with the relevant provisions" of that Guide. Mathews P explains why that is so by reference to the definition in s 5Q(1) of the Act. I respectfully agree with her Honour's view. The fact that the veteran had died by the time of the Tribunal's decision is not to the point. This ground of appeal is also not made out. 14 The remaining grounds were conflated and argued together by counsel for the applicant who, in effect, conceded that their prospects depended on the success of either or both of grounds (a) and (c). The expert referred to in ground (d) is Dr Martha Baz, an occupational physician, who gave evidence of her opinion about the veteran's incapacity. That question was complicated by the veteran's depression, which the Tribunal found was a significant factor in his medical impairment and incapacity for work. Dr Baz took this condition into account in her assessment. The Tribunal explained quite clearly why it thought that approach was not warranted. There can be no suggestion that the Tribunal misconstrued the provisions of GARP V. The depression was a distinct morbid condition in respect of which no claim for a pension had been made and thus no entitlement existed. The generous back-dating facility in s 20 of the Act requires that a claim actually be made in respect of incapacity from a particular disease. These grounds are also not sustained.