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[1995] FCA 930
Federal Court of Australia
1995-08-02
Lee J
Original judgment source is linked above.
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."
On 11 March 1994, pursuant to s.137 of the Act, an officer of the Department prepared a report in respect of the applicant's Application for Review. Copies of the report were forwarded to the Board and to the applicant on 15 March 1994. On the cover sheet of that report under the heading "Matter for Determination" was a handwritten insertion which reads as follows: "Decision for Review: S.J. Evans 4/5/93 Conditions for Review: Bi-Lateral Sensori-Neural Hearing Loss" On 18 March 1994 the applicant contacted the Department by telephone and spoke to the officer who had prepared the report. The applicant informed the officer that he was concerned that the report referred only to his hearing and he wished all other rejected disabilities to be considered by the Board. According to the Department's records the officer advised the applicant "he could ask for 'stress' and 'CVA' to be included when he returns the 137 report response form". On 29 March 1994 the Board received an unsigned "Section 137 Response Form" which indicated the applicant wished his claim to proceed immediately to the Board. The Board heard the Application for Review on 18 August 1994 and it made a determination that Bilateral Sensori-Neural Hearing Loss was not war-caused within the meaning of s.9 of the Act. The applicant was represented by Mr Dilba at the hearing and did not attend the hearing in person. The record of proceedings does not indicate that the Board was alerted by Mr Dilba to the applicant's wish to have the whole of the Commission's decision referred to the Board for review. On 21 September 1994 the applicant lodged an application with the Administrative Appeals Tribunal to review the Board's determination. At that time solicitors instructed by the applicant became aware of the applicant's contention that the whole of the decision of the Commission on 4 May 1993 was the subject of his Application for Review to the Board. Sub-section 139(2) of the Act imposes a duty on 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". In Repatriation Commission v. Stafford, Unreported (Federal Court of Australia Jenkinson, Ryan and Lee JJ, 28 July 1995 at p.20) the Court noted that a person seeking a review of the Commission's decision by the Board may withdraw from the consideration of the Board matters that had been considered and determined by the Commission. However, as the Court stated, only "a clear unambiguous withdrawal", the effect of which was understood by the applicant, could relieve the Board of the obligation imposed on it by sub-s.139(2). The Application for Review by the Board made by the applicant in February 1994 was expressed in terms which on its face may have indicated that there had been an election by the applicant to accept part of the decision made by the Commission leading to the decision to reject his claim. However, the terms of the conversation between the applicant and the departmental officer on 18 March 1994 made it clear that the applicant had not turned his mind to such an election and that the Application for Review was an application to review the entire decision of the Commission.
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:
APPEARANCES Counsel for the Applicant: R.M. Webster Solicitors for the Applicant: R.M. Webster Counsel for the First Respondent: J.P. Suter Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: P.J. Hanks Solicitors for the Second Respondent: Australian Government Solicitor Date of Hearing : 2 August 1995 Date of Judgment : 2 August 1995