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[1988] FCA 428
Federal Court of Australia
1988-08-05
Woodward J
Original judgment source is linked above.
This 1S an appeal on questions of law from a decision of the Administrative Appeals Tribunal ('the Tribunal') constituted by Mrs Rosemary Balmford, Senior Member. It relates to the pension payable to the applicant
under the Veterans' Entitlements Act 1986 ('the Act').
The decision which the applicant had taken on appeal to the Tribunal was one in which the Veterans' Review
aed to set aside a decision of a Repatriation Board; and
a veteran's pension was summarized by the Tribunal in the
"Mr. Williams, who was born on 19 September 1925, served in the Royal Australian Navy from 2 December 1942 to 29 March 1946, some of that service being outside territorial waters. He is thus a 'veteran' within the meaning of paragraph (a) of the definition in sub-section 5(1) of the Veterans' Entitlements Act 1986 ('the Act').
Mr. Williams has had the following disabilities accepted as being war-caused within the meaning of the Act:-
Disability With effect from Buerger's disease 27/8/46 Hypermetropic Astigmatism 30/5/49 Basal cell carcinoma 19/7/84 Bronchitis and Emphysema 13/8/84 Postural dizziness 13/8/84
He has been in receipt of a disability pension since 6 May 1947 and the rate of that pension was increased from ten per cent to sixty per cent of the general rate by a decision of the Repatriation Commission on 17 September 1985 with effect from 13 August 1984. The decision of a Repatriation Board which was set aside by the VRB was a decision, made on 11 June 1973, rejecting (inter alia) Mr. Williams' claim for incapacity resulting from left central retinal artery thrombosis. Mr. Williams did not lodge any document which could be characterised as an application for review of that decision until 19 October 1984, when he lodged a formal claim in respect of "loss of vision left eye'."
"ls. Me. Williams is entitled, pursuant to Table 1, to a pension at a rate of fifty per cent from 19 April 1984 until 13 August 1984, when the decision of the Repatriation Commission increasing his pension to sixty per cent took effect; and to an additional payment under Section 27, over and above his
percentage assessment, from 19 April 1984 onwards." [The additional payment under s.27
The Tribunal's decision that 50% of the general rate was appropriate for the applicant was arrived at by assessing his impairment rating from chronic bronchitis and emphysema at 15%, his impairment from loss of visual acuity un one eye at 20%, the combined impairment rating as 32%, rounded down to 30%, and his lifestyle rating as 2. Applying the appropriate table to these ratings gave a pension
assessment of 50% of the general rate, backdated to 19 April
The Tribunal also found that the same result of 50% was reached by applying a rate for specific disabilities
However the applicant was held entitled to a 60% pension rate from 13 August 1984, because that figure had been awarded under the legislation and assessment system which had obtained before the Act was passed, and there was provision that such an assessment would not be reduced except
in special circumstances which did not apply 1n the present
The applicant has challenged the Tribunal's decision on a number of different grounds, which touch on most of the steps described in the last three paragraphs. The task of following his submissions has not been made easier by the fact that he set out his grounds of appeal in 9 paragraphs, lettered (b) to (j), but developed his arguments under 8 headings, numbered 2-9, which did not necessarily co-incide with any ground of appeal. He did not develop grounds of appeal (c)({d) or (g); mor did he proceed with his
It was agreed before the Tribunal, and again before this Court, that the assessment of Mr William's incapacity arising from his war-caused disabilities should be based on the provisions of the Guide to the Assessment of the Rates of Veterans' Pensions ('the Guide'), which was prepared and
with the full application of Table 1 of [the Guide] from rar without inclusion of other impairment ratings.
Ground (e) Mrs Balmford erred in her interpretation of Table 1 of "the Guide" in that she included other disabilities and lifestyle and impairment ratings in her 50 per cent assessment when indeed the 50 per cent of the General Rate allowable for loss of vision in one eye has been drawn from Schedule 4 of the Repatriation Act 1920 and was not arrived at by using the concepts of "the Guide".
Ground (j) Because I have been denied natural justice I also require determinations by this honourable Court in respect of the rule of estoppel in an application for T&PI rating and the rule of contra proferentem in respect of Table 1 of the Guide.
Under this heading, the applicant argued that the special payment of a pension at 50% of the general rate for the loss of vision in one eye, provided for in Table 1 of the Guide, should be seen as a base payment, on which other
payments for related or unrelated disabilities can be built.
The respondent, on the other hand, argued that Table 1 is incompatible with other provisions in the Guide. Its intention is to provide ''a rate of last resort', which cannot be added to by other provisions. Counsel pointed out that the table is expressed to give a percentage of the general rate. It does not speak in terms of a percentage degree of disability, and so cannot be added to other degrees of disability. The very fact that most of the injuries listed attract 100% of the general rate, serves to show that this provision was not intended to be built upon, but stood
alone as an alternative way of assessing entitlement.
"These are Minimum final assessments regardless of the outcome of an assessment of the Veteran's impairment and lifestyle effects. If a Veteran suffers from an impairment listed in Column 1 above, the minimum assessment is that appearing in Column 2.
Application of these assessments is the responsibility of the Determining Authority.
The percentages of the General Rate Pension ascribed to the specific disabilities listed above are drawn from Schedule 4 of the Repatriation Act 1920 and have not been arrived at by using the concepts in this Guide."
think the use of the words "minimum final assessments"
(underlining supplied) produces the clear result that the concepts of the Guide are to be followed through, and only if they produce a lower result than that set out in Table 1 does that table come into operation. Of course, in those cases where the table provides for 100% of the General Rate to be paid, there will be no need for any General Rate assessment
Here the applicant's complaint is that the Tribunal misused Table 9 of the Guide to allow him a rating of 20 for his loss of sight 1n one eye, when it should have been 25.
"6/60 20 3/60 20 NPL 25" (NPL stands for "no perceived light")
categorised the applicant's sight in that eye as "less than
6/60", some had said "less than 6/120" (equivalent to 3/60) and the applicant himself had claimed "less than 1/60".
This is a finding of fact by the Tribunal. There is no provision for a rating between 20 and 25. There was no medical evidence that "no perceived light" was the appropriate description of the applicant's vision in that eye, and in these circumstances a finding that 20 was the
appropriate rating was clearly open to the Tribunal.
The applicant claims that the Tribunal should have assessed his impairment rating as 25% under Table 4.1 of the Guide, "Respiratory Impairment," to make allowance for "mucus production and cough". However the note to Table 4.1 reads:
"Symptoms such as cough, mucus production and recurrent infection attract an assessment only if they interfere with activities of daily living. Refer Activities of Daily Living Table if necessary ...."
The Tribunal's relevant finding on this matter was:
"He described the effects of the condition diagnosed as "chronic bronchitis and emphysema" at more length. Exercise causes ham shortness of breath, he snores, coughs, wheezes and showed a ventilatory function greater than 70% of normal: a report of 14 November 1986 showed little change since the earlier date. I note Mr. Williams' evidence at the hearing that he smokes 60 cigarettes a day, from which I assume that the inconvenience caused to him by this condition is not so great as to motivate him to give up
smoking. No effects of the condition were apparent at the hearing. I find from Table 4.1 an impairment rating of 15%."
Under the heading of 'Lifestyle effects' the Tribunal made an assessment which 1t considered appropriate for "intermittent interference" with personal relationships. This would seem quite clearly to cover coughing and the
Tribunal. I can detect no error of law in this connexion.
Ground (h) Mrs Balmford failed to take into account my written submission and in so doing denied me natural justice. She erred in this because in the submission there was the copy of an application referred to as exhibit "M" which was for T&PI rating and which was dealt with by the Veterans' Review Board. Mrs Balmford therefore incorrectly dealt with this question and also the section which deals with veterans who retire under the age of 65 years.
This heading represents the most complex part of the applicant's submission, but I do not find it necessary to
Mr Williams claims that he is entitled to a special
(or 'T&PI') rate, rather than the general rate, of pension
because he was forced to retire from work before reaching the age of 65. He says that his application to this effect was before the Tribunal because he handed up a copy of his written submissions, which had attached to them a copy of an application, which seems to have been dated 6 August 1986 and lodged on 20 August 1986, which sought a special rate pension and asked that it be considered along with the then pending appeal to the VRB. It was common ground between the parties that this was Mr Williams' first application for a special rate pension. The Tribunal explained clearly why the special rate could not be granted on the application which was properly before it. Mr Williams did not challenge this and
Although the VRB did, as it apparently always does, consider all the applicant's disabilities, it did not purport to deal with the August 1986 application, which had not been
The Tribunal was pressed by Mr Williams to rule on this application and said, in the final paragraph of its
"Finally, Mc. Johannes [appearing for the respondent] referred to a further application lodged by Mr. Williams in November 1986 and medical reports obtained in connection therewith. That matter is not before this Tribunal, and it does not appear to me that I can make any order in respect of that application, which 1s a matter for separate consideration by the respondent."
The reference to November rather than August 1986 appears to be a slip. A medical report arising from the application was dated November. Further, it is clear that the Tribunal meant that the application was not before it as
a matter of law - not that it was not physically in its
This was clearly right, and the Court was informed that the application has since been dealt with by the
Commission and a pension at or about 90% of the general rate
Fac from being a denial of natural justice, it would, in my view, have been wrong for the Tribunal to attempt to deal with the complex issue raised by the 1986 application when 1t had not even been ruled on by the
Ground ({b) Mrs Balmford erred in her assessment under Table 9 of the Guide to the Assessment of Rates of Veterans' Pensions in that she did not include loss of stereopsis and double vision.
Under this heading Mr Williams informed the Court that he no longer needed to argue the question of stereopsis, but he did press his contention about diplopia, or double-vision. He argued that the effective use of his
comparatively sound right eye was reduced by double vision
resulting from his almost blind left eye. He conceded that there was no evidence before the Tribunal which would have enabled it to assess the degree of disability resulting from this factor, but said that the Tribunal should have ordered a
Counsel for the respondent argued that there was nothing in the Guide or in evidence before the Tribunal to suggest that additional disability points should be allowed for diplopia. It was something which should be taken into
The evidence on this subject relied on by both parties was contained in a report dated 4 August 1987 from an
eye specialist, Dr Robert Nave. Dr Nave summarized his
"In my opinion the ocular findings are consistent with Mr. Williams having sustained a branch artery occlusion in his left eye, which has left him with a relatively small central scotoma in that eye. He is legally blind on account of the fact that he has a visual acuity of less than 6/60, ie greater
With respect to his claim that the retention of peripheral vision in his left eye has interfered with his ability to adjust to a loss of binocular vision, I find his contention difficult to comprehend. Binocular visual function has three components, simultaneous macula perception, fusion and stereopsis. Certainly with the central scotoma in his left eye he has lost simultaneous macula perception but he should still retain peripheral fusion and the titmus stereo test showed that he does have some stereoscopic vision. In percentage terms he has 30% stereopsis, ie. 70% loss of stereopsis.
In my opinion it is an advantage for him to retain peripheral vision in his left eye rather than a disadvantage as he claims. He claims to occasionally experience diplopia, presumably due to the fact that his binocular visual functions are not as good as they were prior to the artery occlusion and occasionally his ability to fuse images tends to break down, causing him to become aware of double vision, which would interfere with his ability to judge distances and depth and account for the numerous accidents and misjudgements he has described in his letter, undated, but addressed to the Veterans Review Board.
In answer to your specific questions not already covered:
(C) His ocular condition alone should not prevent him from working a normal eight hour day but if he found the diplopia troublesome, he would eliminate this problem by covering his left eye.
His ocular condition has obviously been stable for many years and he managed to work successfully as a Chartered Loss Adjustor until last year, so I do not believe his ocular condition has been a major factor preventing him from continuing to work.
In the light of this evidence it cannot, in my view, be argued successfully that the Tribunal was guilty of
any error of law in failing to order some further medical
Ground (i) Mrs Balmford erred in that she did not deal with the submission regarding cetrospectivity of the claim for Central Retinal Branch Thrombosis to the date of the initial claim to 12
December 1972. This matter was also dealt with by the Veterans' Review Board and was similarly contained in the submission before Mrs Balmford.
Here Mr Williams argued that his pension, so far as it relates to his left eye, having been assessed at its
proper level, should then be backdated to 12 December 1972
He based this argument on a note which he has found on a departmental file of that time. The note is one apparently recommending that Mr William's medical expenses
should be paid in spite of the failure of his particular
"Recommend approval of payment Reg 64. oe © © © © © «© we ww . fOr reference re relationship thrombosis retinal artery and
Mr Williams says that this reveals an admission of some connexion between his Buerger's disease (which causes obstruction and clotting of the smaller arteries and veins), which has always been accepted as a war-related disability, and the damage to his eye. Had the Department informed him of this admission he would have pursued an appeal at the
time. He ought now, in fairness, have his pension backdated
Without attempting to deal with the significance of this cryptic note, counsel for the respondent has submitted that the legislation does not permit such a course to be taken. He referred to ss.177(2)(a) and 157(2)(a) of the Act. Those sub-sections and paragraphs read as follows:
"177.(2) Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension) or attendant allowance, or increases the rate at which a pension (not being a service pension) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board - from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or ...."
"157.(2) Where the Board, upon its review of a decision of the Commission sets aside that decision and substitutes another decision for it, or varies that decision: (a) aif the effect of the substituted decision, or the varied decision, as
date from which the Board's decision is to operate:
(i) if the person made application for the review within 3 months after service on the person of a copy of the Commission's decision - a date not earlier than the earliest date as from which the Commission could, if it had not refused to grant a pension or attendant allowance,
Those provisions show that the applicant received from the Tribunal the greatest degree of retrospectivity which the Act allows the VRB,
decree. Indeed Mr Williams based his argument on this issue
rather on the injustice he alleged than on any perceived
as the case may be, to the person, have approved payment of a pension or of attendant allowance to the person; or (ii) in any other case - a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia ..."
Under this heading the applicant claimed that his pension should not have been reduced by the Tribunal below
the 80% of the general rate allowed by the Veterans' Review
Mrs Balmford erred in her interpretation of sub-section 7(3) of the Transitional Act in that she did not allow retrospectivity of the decision of the Veterans' Review Board to be effective as from 14 May 1985, ie, prior to 22 May 1985, this being the commencing date of the Transitional Act. She incorrectly therefore made her assessment at 60 percent whereas it should have been 80 percent of the General Rate.
Entitlements (Transitional Provisions and Consequential
Amendments) Act 1986 ('the Transitional Provisions Act'),
"7(3) The Commission, the Board or the Administrative Appeals Tribunal shall not, in the course of re-assessing the rate at which a pension to which this sub-section applies, determine, as the degree of incapacity of the person to whom that pension is payable, a percentage that is less than the percentage of the maximum general rate of pension constituted by the rate at which that pension was, immediately before the commencing date, paid unless the Commission, the Board or the Administrative Appeals Tribunal as the case may be, is satisfied -
(a) that the incapacity of that person has decreased since the rate of that pension was previously assessed or last assessed; or
(b) that the previous assessment or last assessment would not have been made but for a false statement or misrepresentation of a person." It is not suggested that either of paragraphs (a) or (b)
17 September 1985 Commission increased pension rate to 60%
14 November 1985 Application lodged to review 1973 decision
28 November 1986 Decision by VRB increasing rate to 80%, to take effect as from 14 May 22 May 1986 Transitional Provisions Act comes
The applicant argues that the word 'paid' in sub-s.7(3) should be read as if it were 'payable', and that the retrospective operation of the VRB order meant that, at
the time the Transitional Provisions Act came into force, he
was entitled to a pension at the rate of 80% which could not
The Tribunal rejected this argument in the following terms:
"The decision of the VRB assessing Mr. Williams' pension at eighty per cent was made on 28 November 1986, that is, after the commencing date, albeit with effect from 14 May 1985, that is before the commencing date. However, I think that the effect of the word "paid" in sub-section 7(3) must be that the provision can only relate to what was actually happening immediately before the commencing date, and not to the potential effects of a later decision made with retrospective effect. Had Parliament intended that no pension under Part II of the Act should ever be reduced ona re-assessment except because of decrease in incapacity or false statement, it could have said so."
However, rather than rely upon the decision of the Tribunal on this point, counsel for the respondent argued the broader issue that sub-s.7(3) could not be taken as applying to a rate which has been made the subject of appeal to the Tribunal - which is required to hear the matter afresh and back-date its decision to that which the VRB fixed or ought to have fixed. Sub-s.7(3) is clearly designed to preserve pensions which had been properly assessed using earlier guidelines under a previous Act (such as the decision of 17
September 1985), not to prevent any existing pensions being
reduced as the result of an appellate process which applied
assessment principles appropriate to the time of the earlier decision when the Act was already in force and which, in this
case, were agreed to be those set out in the Guide.
I think this submission is clearly correct. Such an interpretation is consistent with the obvious purpose of the provision - to protect entitlements achieved under previous legislation - and does not do violence to the appeal
processes provided elsewhere in the legislative scheme.
I prefer not to express any view on the construction of the word "paid" adopted by the Tribunal in
the passage quoted above, since I have not heard any
For all the reasons I have given, I am unable to find any error of law in the decision of the Tribunal and the application must be dismissed with costs.
I certify that this and the seventeen (17) preceding pages
are a true and accurate copy of the Reasons for Judgment herein of
Solicitors for the Respondent: Australian Government Solicitor
DAVID GRANT WILLIAMS
REPATRIATION COMMISSION