Bannister, M.B. v. See, J. & Anor [1982] FCA 109

MAVIS BEATRICE BANNISTER v. JOHN SEE and ASHLEY COOK

) ) WESTERN AUSTRALIA DISTRICT REGISTRY } NO. WAG 7 of 1982 ) GENERAL DIVISION )

ORDER JUDGE MAKING ORDER. Toohey J. WHERE MADE: Darwin DATE: 26 May 1982

) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WAG NO. 7 of 1982 ) )

~ Applicant and JOHN SEE and ASHLEY COOK

• RespondentsCORAM: Toohey J. 26 May 1982 REASONS FOR DECISION y This is another journey along the tortuous paths of

the Repatriation Act 1920. The applicant Mrs. Bannister, relying

upon s.7(2) of the Administrative Decisions (Judicial Review) Act

1977, seeks orders against the respondents to implement the provisions of s.107VF of the Repatriation Act.

Mrs. Bannister's husband died on 21 March 1975. On 8 May she lodged a claim for acceptance of his death as being related to his war service. That claim was rejected by a Repatriation Board on 10 July. On 20 August she lodged an appeal to the Repatriation Commission which on 1 September dismissed the

At that time there existed War Pensions Entitlement Appeal Tribunals, bodies which were replaced by the Repatriation Review Tribunal

following the substantial amendments made by the Repatriation Acts

Amendment Act 1979. On 2 October 1975 Mrs. Bannister lodged an appeal

' to such a Tribunal, producing further evidence in support of her

claim, On 7 July 1976, in the light of the further evidence, the Tribunal referred the appeal to the Repatriation Commission for its reconsideration under s.64(4), a section since repealed. On 13 October 1976 the Repatriation Commission reconsidered Mrs. Bannister''s appeal but stood by its previous decision. On 2 May 1978 the War Pensions Entitlement Appeal Tribunal dismissed the appeal.

By reason of s.49(1)(a) of the 1979 legislation, on a review under s.107VC,a decision of a War Pensions Entitlement Appeal Tribunal is to be regarded as if it were a decision of a Repatriation Review Tribunal.

' Following the decision of the Full Court of the Federal Court in Repatriation Commission v. Law (1980) 31 ALR 140, Mrs. Bannister sought further consideration of her claim. She did this through a letter written by the Legacy advocate Mr. I.H. Davies on 1 July 1981. In response to that letter the Repatriation Commission wrote on 12 November 1981 to say "The Commission has decided that it will reconsider the case under section 31 of the Repatriation Act.". Sub-section (1) of that section reads

service pension) the Commission may review the assessment, decision or determination."

On 9 December 1981 the Commission delivered reasons in which it canvassed the evidence in the light of the principles in Law's case and concluded

"For these reasons, the Commission, having had fullregard to the judgment by the Full Court

of the Federal Court in the case of Repatriation Commission v. Nancy Law, does not consider that sufficient reason exists to warrant further

review under section 31 of the Repatriation -Act in respect of the widow's claim,".

On 22 December Mr. See, one of the respondents and Deputy Repatriation Commissioner, wrote to Mrs. Bannister with a copy of the Commission's reasons, adding

"However, your case may be re-opened at any time by the submission, in writing, of further evidence which would have been relevant to the Commission's decision".

On 11 January 1982 Mr. Davies wrote to the Repatriation

Review Tribunal, appealing against "the decision of the Repatriation

Commission as set out in the 'Reasons' dated 9th December, 1981 not

to review or grant this appeal". The letter was expressed to be an % application under s.107VC of the Repatriation Act. That section

reads in part "Where the Commission has made a decision refusing a claim by a person for a pension (other than a service pension) or other benefit under this Act ... that person May ... make application to the Tribunal for a review of the decision of the Commission.".

Where an application is made to the Tribunal for review of a decision under s.107VC, the Secretary to the Department of Veterans' Affairs is required, by reason of s.107VF, within 21 days

to notify the President of the Tribunal that the application has

been lodged and, as soon as practicable thereafter, to forward to the President the application and all relevant material. The Secretary declined to take either step as a result of which Mrs. Bannister brought the present application.

It emerged from the hearing before, this Court that the basis for declining to act pursuant to s.107VF was that in the

respondents' submission the action of the Commission in deciding to

make no change to earlier decisions that Mrs, Bannister had no claim

under the Repatriation Act was not "a decision refusing a claim by a

person for a pension" in the terms of s.107VC. That is the crux of the matter.

In the respondents' submission s.31 is not part of the chain of appellate procedures established by the Act. Section 24AB provides that when a claim for a pension is lodged with the Department the Secretary shall cause an investigation to be made and on completion of that investigation shall cause the claim to be submitted to a Board for its consideration and determination. From that determination an appeal lies to the Commission (s.28). In 1975 when Mrs, Bannister first lodged a claim, the appropriate step once

the Commission had dismissed her appeal from the determination of

the Board was to appeal to a War Pensions Entitlement Tribunal.

This she did. As mentioned earlier, the Act must now be read as if the decision by that Tribunal was a decision by the present Repatriation Review Tribunal.

This is by no means the totality of the appellate structure. The President of the Repatriation Review Tribunal may, pursuant to s.107VZZB, refer an application for review by that Tribunal of a

decision of the Commission to the President of the Administrative

Appeals Tribunal, with a request for a review by that body of the decision. The President of the Administrative Appeals Tribunal must direct a review by that Tribunal in accordance with the

Administrative Appeals Tribunal Act 1975. Similar action may be

taken at the instance of one of the parties during a hearing before the Repatriation Review Tribunal (s.107VZZB(3)). Again the Repatriation Revie Tribunal may of its own motion or at the request of one of the

parties refer a question of law arising in a proceeding before that Tribunal to the Federal Court, constituted by a single judge unless the Chief Judge of the Federal Court directs that by reason of the importance of the matter the Court shall be constituted by not less than three judges (s.107VZZG). There is as well a right of appeal

to the Federal Court on a question of law from any decision of the Tribunal (s.107VZZH).

Returning to s.107VC, where the Tribunal, following a review of a decision of the Commission, affirms that decision the President may thereafter notify the applicant that in his opinion further evidence submitted by the applicant under s.107VM would have been relevant to the decision made by the Commission and affirmed by the Tribunal. In that event the applicant may again make application to the Tribunal for a review of the Commission's decision (s.107VC(2)).

Although amended and re-numbered, s.3l1 has been part of

the Act since its inception as the Australian Soldiers' Repatriation

Act 1920. The section is expressed not to apply to a variety of decisions. They include a decision of the Repatriation Review Tribunal under s.107VZB (provision for the re-hearing within six

months of a decision under s.107VC favourable to the applicant

where further relevant evidence is forthcoming); a decision of the Administrative Appeals Tribunal in like circumstances (s.107VZZE operating to give such a decision the effect of one made by the Repatriation Review Tribunal); a decision of the Repatriation Review Tribunal under s.107VZC(1) (where binding on the Commission for a specified period, and that period has not expired); a decision of the Administrative Appeals Tribunal in like circumstances (deemed

to be a decision of the Repatriation Review Tribunal by s.107V2ZE).

Section 31 empowers the Commission to review an assess- ment, decision or determination, whenever it appears to the Commission that sufficient reason exists. It seems to permit the Commission to act of its own motion though the matter has to be brought to the attention of the Commission in some way.

The term "review'' is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grotmds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself. It may have the more limited meaning of reconsideration in the light of changed circumstances, as with workers' compensation payments. In such a case, if there has been no change of circumstance there

cannot be a review (Crossfield & Sons Ltd. v. Tanian (1900) 2 Q.B.

629), though the changed circumstances may be used to demonstrate that

the original decision was wrong (Sharman v. Holliday & Greenwood Limited (1904) 1 K.B. 235, Radcliffe v. Pacific Steam Navigation

In my opinion s.31 uses "review" in the second sense, that is it contemplates, not an appeal from the original assessment, decision or determination but a reconsideration of that assessment, decision or determination because of subsequent events. That is not to say that there must be shown some alteration in the position of the person benefitting or standing to benefit from a pension, it may be enough that later events have proved the assessment, decision or determination to have been wrong. Such an interpretation accords with the presence in the Act of a wide range of what are truly appellate procedures. It also explains the exclusion in s.31(3) of certain decisions where there has been already 'further evidence" (s.107VZB) or where the decision itself has been expressed to operate for a specified period with provision for reconsideration if there has been an increase in incapacity.

As a result of a review under s.31 the Commission may vary or revoke an assessment, decision or determination or of course it may leave that assessment, decision or determination stand. If, following a review under s.31 the Commission decides to leave unchanged an earlier determination refusing a claim for a pension, I do not think that is itself "a decision refusing a claim by a person for a pension" within s.107VC. That decision has already been made and was subject to appeal under Part III A of the Act; all that the Commission has done is to leave that decision unchanged.

It follows that when the Secretary was called upon by Mrs. Bannister to notify the President of the Repatriation Tribunal

of her application for a review under s.107VC and to forward to the

President that application together with the relevant records and

documents, the Secretary was being asked to do something which he had no power to do. There being no relevant "decision" under s.107VC(1), there was no scope for a review under that sub-section, hence no room forthe operation of s.1l07VF. In the absence of power it cannot be said that there was a duty upon the Secretary and accordingly it cannot be said that there was a failure on his part.

Section 7(2) of the Administrative Decisions (Judicial Review) Act

1977, upon which Mrs. Bannister relies, pre-supposes a duty to make a decision; for the reasons mentioned no such duty exists. It may be that if, following a review under s.31, the grant of a pension is revoked, there has been a decision refusing a claim within s.107VC. It may be too that any such review is susceptible to challenge under s.5 of the Judicial Review Act, I express no view on those matters for it is unnecessary to do so, But I accept the respondents' submission that this Court

may not order the respondents to do what the application seeks.

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