Randall v Repatriation Commission [2002] FCA 1599

FEDERAL COURT OF AUSTRALIA

Randall v Repatriation Commission [2002] FCA 1599

DEFENCE AND WAR – Veterans' entitlements – disability pension – claim for adjustment disorder – appeal from Administrative Appeals Tribunal – submission that Tribunal should have found decision of Veterans' Review Board invalid because it it had no power to reduce rate of pension and breached rules of natural justice

Veterans' Entitlements Act 1986 (Cth) Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219 to 220 MICHAEL RICHARD RANDALL v REPATRIATION COMMISSION T10 of 2002 HEEREY J 11 DECEMBER 2002 HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIAN DISTRICT REGISTRY T10 OF 2002

BETWEEN: MICHAEL RICHARD RANDALL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 11 DECEMBER 2002

WHERE MADE: HOBART

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

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIAN DISTRICT REGISTRY T10 OF 2002

BETWEEN: MICHAEL RICHARD RANDALL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE: 11 DECEMBER 2002

PLACE: HOBART

REASONS FOR JUDGMENT 1 The applicant appeals from a decision of the Administrative Appeals Tribunal (the AAT) given on 20 August 2002. The essence of the applicant's argument on appeal was that the AAT wrongly failed to rule on two legal objections made as to the course of an earlier hearing by the Veterans' Review Board (the VRB). 2 For present purposes the starting point is 1 March 2001 when a delegate of the Repatriation Commission (the Commission) accepted the applicant's claim for adjustment disorder. It had earlier accepted that other conditions were defence caused. The Commission increased the disability pension to the Intermediate Rate with effect from 4 January 2000, that being a date three months before the relevant application was lodged: see s20(1) Veterans' Entitlements Act 1986 (Cth) ("the Act"). 3 The applicant applied to the VRB for a review of the Commission's decision. He did not attend and was not represented at the hearing. The VRB set aside the Commission's decision and substituted a decision that the pension be assessed at 100 per cent of the General Rate, that is to say at less than the Intermediate Rate. 4 The applicant then applied to the AAT for review of the VRB's decision. In a statement of facts and contentions lodged by his solicitor the applicant claimed that the VRB did not have the power to reduce the pension from the Intermediate Rate and its decision was therefore a nullity. Further, it was said that the applicant was denied natural justice in that he was not warned that his rate of pension might be reduced. The contentions went on to say: "8. The Applicant contends that he qualifies for the special rate of pension pursuant to section 24 of the Act in that: (a) On 4 April 2000 the Applicant lodged a claim under section 14 of the Act. (b) The Applicant has not yet turned 65 in that he was born on 29 July 1959. (c) The Applicant's degree of incapacity has been determined to be at least 70%. (d) The Applicant's incapacity from his accepted disabilities is such that by virtue of it alone he is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. (e) The Applicant, because he is prevented from continuing to undertake remunerative work is suffering a loss of salary or wages. (f) Alternatively for the purposes of the preceding subparagraph the Applicant has been genuinely seeking to engage in remunerative work and his incapacity to seek to so engage is the substantial cause of his inability to obtain remunerative work." 5 On 14 May 2002 the Commission filed a statement of facts and contentions. It asserted that the matters alleged as to incapacity to reduce the pension and breach of natural justice were not within the jurisdiction of the AAT. As to the claim for Special Rate of pension, it agreed with the facts set out in subpars (a), (b) and (c) of the applicant's par 8. However, the contentions stated that the Commission did not agree that the applicant's accepted disabilities: "(i) are of such a nature as to render him incapable of undertaking remunerative work for more than twenty hours per week; (ii) prevent him from undertaking remunerative work that he was undertaking, or are the cause of his suffering a loss of wages that he would otherwise not suffer; (iii) are the substantial cause of his inability to obtain such work, nor does (the Commission) agree that the applicant has been genuinely seeking to engage in remunerative work." 6 A hearing was conducted by the AAT on 17 July 2002. The applicant did not give evidence, nor was any other oral evidence called. Counsel for the applicant raised the question of the legal issues already mentioned. He said: "The hearing before the Tribunal is, of course, a hearing de novo and it is as though we are starting all over again, but the points I raise, I think would entitle to the Tribunal if either of my arguments is accepted to, in effect, set aside the decision of the Veterans Review Board and restore the intermediate rate. If that occurred it would then be for the applicant as he might be advised, whether he would want to pursue the special rate which is obviously what he was after when he sought a review of the Commission's decision." 7 The representative of the Commission submitted that the appropriate rate of pension for the applicant was a matter for the AAT and that what happened before the VRB was of "total irrelevance" as far as the AAT was concerned. He submitted that the AAT was to "start again on the original claim and assess the rate of pension that ought to be payable". 8 At the end of the hearing counsel for the applicant was asked whether his evidence was completed. Counsel said, "Well, that completes the submissions on those questions. We have - depending on your decision - will depend on whether or not there needs to be a further hearing with evidence." 9 In its decision the AAT noted the submissions on behalf of the applicant about the power of the VRB, or indeed the AAT, to reduce the pension and noted the submission of counsel for the respondent for the Commission that it was not necessary for the AAT to consider whether the VRB had acted appropriately or not. The AAT said: "14. The Tribunal's role is to stand in the shoes of the decision-maker and consider the evidence anew, giving due weight to statutory provisions, guiding principles and all relevant information. The Tribunal is not required to accept prior determinations." 10 The AAT then reviewed the evidence and set out the relevant provisions from the Act. It concluded: "25. Having weighed all evidence, the Tribunal is of a view that on the balance of probabilities he does not meet the criteria specified in section 23(c) of the Act and should be granted a disability pension at the Intermediate Rate. The Tribunal is reasonably satisfied that his disabilities prevent him working 20 hours or more per week, but it remains prospectively possible for him to seek employment for 8 hours of [sic] more per week. He is suffering some loss of income as a result of this situation. 26. The Tribunal has considered whether a Special Rate of pension should apply, but is not wholly convinced that the applicant's incapacity renders him incapable of undertaking work or actively seeking remunerative work." 11 In my opinion it is clear from the decision of the Full Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219 to 220 that an administrative tribunal in the position of the AAT when is undertaking a review of a decision by another administrative tribunal lower down in the statutory hierarchy does not have the function of reviewing the legal validity of that earlier decision. 12 The AAT was simply standing in the shoes of the original decision maker. It was no part of its function to embark on a consideration as to whether the decision of the VRB was legally effective. That being so, it seems that the issue of whether or not the applicant was entitled to a Special Rate of pension was squarely before the AAT. It gave consideration to that issue and I see no legal error in its reaching a decision on the evidence that the criteria had not been established. 13 The application will be dismissed. The applicant will pay the respondent's costs, including reserved costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.