Davenport, Peter John & Ors v Repatriation Commission [1995] FCA 930

Pursuant to s.17 of the Act the Secretary to the Department must cause an investigation to be made into the matters to which the claim for a pension relates and then cause the claim to be submitted to the Repatriation Commission ("the Commission") for consideration and determination, together with any evidence furnished by the claimant and relevant documents under the control of the Department. The claim was determined by the Commission and a statement of reasons provided pursuant to s.34 of the Act on 4 May 1993. The Commission determined that it was satisfied beyond reasonable doubt that there was "no sufficient ground for determining that cerebrovascular accident or bilateral sensori-neural hearing loss (was) war-caused". In respect of the claim of disability related to war-caused stress the Commission determined that the "disability claimed as stress...(was)...not considered to be an injury or disease as defined in s.5 of the Act." On 4 February 1994 the applicant lodged with the Department an Application for Review by the Board of the Commission's decision pursuant to s.135 of the Act. The application, signed by the applicant, nominated a Mr Dilba "of the State Branch of the R.S.L." to represent the applicant on the hearing of the Application for Review. It did not appear that the handwritten details set out on the form of Application for Review were in the handwriting of the applicant. In the box under the printed words: "I would like the Veterans' Review Board to review the following decision:" was inserted the following handwritten detail: "(Entitlement) Bilateral Sensori-Neural Hearing loss is determined not to be war caused."

An election requires the electing party to be cognisant of the rights to be foregone by the act of election (see: Khoury v. G.I.O. New South Wales (1984) 165 C.L.R. 622 at 633-644 where it was held in the context of an election in respect of contractual rights that a party must at least have been aware of the facts giving rise to the right to avoid the contract). In the present case the applicant would have had to have been aware that he was foregoing his right to have determined some of the issues that had been decided against him by the decision of the Commission. Whether there had been such an election would be a question of fact, but the terms of the conversation held between the applicant and the departmental officer on 18 March 1994 suggest that the applicant had not turned his mind to such an election and that the terms of the form of Application for Review were not to be taken as notification of such an election. No question of the withdrawal of an election would arise. If there were no election by the applicant it would follow that the application as made was an application to the Board to review the whole of the decision made by the Commission. The failure of the Board to undertake such a review, although it occurred in good faith, would result in the Board not performing the function required of it by the Act. Under s.138 of the Act the Board in conducting, hearing or making a decision on a review is not bound by technicalities and is to act according to substantial justice and the merits and all the circumstances of the case. By sub-s.138(2) the Commission may make available to the Board such other material as the Commission considers may be of assistance to the Board in the performance of its functions under the Act. By virtue of such a provision the Commission would be expected to see that the Board was properly informed in carrying out its functions. Having regard to the importance of an absence of such an election upon the function to be performed by the Board, the Commission should have brought to the notice of the Board the applicant's contention that no election had been made by the applicant to abandon any rights of review. It is understandable that the departmental officer thought it was sufficient to advise the applicant to raise the matter with the Board but that step fell short of the expectation of the Act under sub-s.138(2). As a consequence of the foregoing it follows that the function of the Board to review the decision of the Commission has not been completed. Whether the Court should make an order directing that the terms of the Act be followed, the decision of the Board be set aside and the matter returned to the Board for re-hearing is a question of discretion to be exercised according to the utility of such an order. Having regard to the beneficial provisions of the Act intended to facilitate a veteran's application for a pension, the Court should be reluctant to refuse to make such an order. Unless it can be said to be patent that an application for review has no prospect of success the order sought should be made. There is material to which counsel for the applicant has referred that indicates that if upon the hearing of the review opportunity is taken to support it with other material the applicant's Application for Review of the decision of the Commission will warrant the attention of the Board. In those circumstances there will be an order that the decision of the Board be set aside and that the matter be returned to the Board for hearing according to law. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date:

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Decision date

Before

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Judgment (4 paragraphs)

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