Director-General of Social Services v Chaney

By application dated 14 January 1991, the veteran applied to the Veterans' Review Board to review the decision of the Delegate. The application was on a form provided by the Commission and filled in by the veteran. In the form the veteran described the decision sought to be reviewed as "Rejection of claim for disability pension", made by E.M. Roycroft (the Delegate) on 8 October 1990 notice of which was received by the veteran on 24 October 1990. This made it clear that the whole of the decision by the Delegate was made the subject of the application for review by the Veterans' Review Board. The form then contained the words "I am unhappy with the decision because:" leaving a space to be filled in. The veteran filled in this space with the following words: "Hips and knees I am sure were over taxed during my servis (sic). Constant heavy lifting caused swelling at the time, also causing pain at back of knees. The problem got out of hand and I was refered (sic) to a specialist 2 year (sic) ago and he removed a flat grissal (sic) like object from the left knee. I was aware all was not well with my knees. But being an NCO incharge (sic) I did not complain at the time. Ear trouble I consider started whilst I was on Melville Ists (sic)."

The Veterans' Review Board concluded its review on the documents before the Commission and in the absence of the veteran. This was done at the request of the veteran. The Commission did not appear to assist the Board. On 8 August 1991 the Board published its decision as follows: "Decision under review: The Repatriation Commission of 8 October 1990 which determined that osteoarthritis hips and knees and otitis externa are not war caused." "Decision of the Board: On 8 August 1991 the Veterans' Review Board decided to affirm the decision under review." On the same day, the Board published its reasons for decision. The reasons make no reference to that part of the decision of the Delegate which refused the claim by the veteran in respect of chronic obstructive airways disease and high blood pressure. It would appear that the statement by the Board of the decision under review may have been in error since the decision of the Delegate included the claims with respect to the diseases just mentioned. Part X of the Veterans' Entitlements Act makes provision for applications for a review of a decision to be made to the Administrative Appeals Tribunal. For present purposes, the right to such an application to review is contained in paragraph 175(1)(a) of the Veterans' Entitlements Act, but the whole of that subsection is set out: "175(1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review: (a) of the decision of the Commission that was so affirmed; (b) of the decision of the Commission as so varied; or (c) of the decision made by the Board in substitution for the decision so set aside; as the case may be."

Two matters are noted. Here, what is to be reviewed is "the decision of the Commission" being the decision of the Delegate made on 8 October 1990 since that decision was affirmed by the Board. But here, the Board, apparently, has misstated that decision with the result that the Board reviewed part only of the decision of the Commission. Finally, reference is made to section 25 of the Administrative Appeals Tribunal Act. Subsection 25(1) provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment and subsection 25(4) provides that the "Tribunal has power to review any decision in respect of which application is made to it under any enactment". I turn to consider the first ground of opposition raised by the Commission. This ground applies to each of the two issues referred to at the beginning of these reasons. In considering the first ground, I shall assume that the Tribunal has power to review the second issue. The nature of the power conferred upon the Tribunal when reviewing a decision of the Commission must be kept in mind. This is illustrated by what I said in Nation v Repatriation Commission (1993) 18 AAR 273 (Nation No 1) at 275-6: "In the present case, it having been accepted that the nasal operation performed on the applicant was a result of a war-caused disease, the issue was whether the obsessive compulsive neurosis resulted from that operation . For that reason, the normal type of material placed before the Commission (Tribunal) in cases of this kind was not present. The material was limited to the chain of causation from the nasal operation to the existing disease of obsessive compulsive neurosis, an obsession relating to cleanliness. In considering this, it is helpful to keep in mind the nature of the proceedings before the Tribunal when exercising powers of review of decisions of administrators. A very helpful opinion on this matter is contained in the judgment of Brennan J in Bushell, ((1992) 175 CLR 408). After setting out s120 of the Act (at 424-425) his Honour said: "The section is not concerned with an onus of proof. Subsection (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the AAT, as the case may be. Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s 120 create any presumption which has to be dispelled by the material before the decision-maker." The nature of the function of the AAT as so described puts clearly what was said in McDonald v Director-General of Social Security (1984) 1 FCR 354 per Woodward J at 356-358 and per Northrop J at 365-366 in relation to the function of the AAT."

Section 30 of the Administrative Appeals Tribunal Act makes reference to parties to a proceeding before the Tribunal but, in reviews under the Veterans' Entitlements Act, it must be remembered that the Tribunal is standing in the shoes of the Repatriation Commission, exercising all the powers of the Commission and, in a true sense, is the Commission. It is acting in an inquisitorial manner and must exercise its powers having regard to all the material properly before it. If the Commission appears before the Tribunal, it may be a party in one sense but is not a party in the sense of a litigant in proceedings before a court. In reality, the Commission appears before the Tribunal to assist the Tribunal in the exercise of the powers conferred upon the Tribunal. Subsection 33(1) of the Administrative Appeals Tribunal Act makes provisions for the procedures of the Tribunal when conducting a review. It is useful to set out the whole of the subsection: "33(1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

Subsection 43(1) of the Administrative Appeals Tribunal Act is of importance and is set out in full: "43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for he decision so set aside; or (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

Subsection 44(1) empowers a party to a proceeding before the Tribunal to "appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding". In Chaney, a Full Court of the Federal Court considered the meaning to be given to the word "decision" in the context of subsection 44(1). There the Tribunal constituted by its President, Brennan J, as a preliminary issue, held that the Tribunal had power to review a particular decision made by the Director-General of Social Services but had not entered into the hearing of the substantive matters of the review. The Director-General appealed to the Federal Court. By majority, Deane and Fisher JJ, Northrop J dissenting, held that the decision by the President that the Tribunal had power to review the decision of the Director-General was not a decision within the meaning of subsection 44(1) of the Administrative Appeals Tribunal Act. On this issue, Fisher J agreed with the opinion expressed by Deane J that, although there could be exceptions to the general principle, a "decision" was to be limited to a final decision. Deane J said at 593: "The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s43 of the Act. The qualifications referred to are an appeal pursuant to s44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given."

Fisher J said at 596: "Under the Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the Administrator or makes a decision in writing affirming, varying or setting aside the decision (s43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this court by s 44(1) a right to hear an appeal on a question of law "from any decision of the Tribunal in that proceeding". If a question of law arises in the proceedings before the Tribunal which the parties or a party see as fundamental to the determination of the review, the procedure in the Act (s45(1)) for reference of that question of law by the Tribunal to this court is available. In this way the jurisdictional issue in this matter could, if the Tribunal considered it appropriate, have been determined as a preliminary issue "so that many hours are not spent preparing a case that might not be accepted by the Tribunal"."

The Court as presently constituted is bound by Chaney. The processes are to be contrasted with the function of the Federal Court where, under Order 29 of the Federal Court Rules, questions may be heard before and separately from other questions. Unless the decision on any such question finally disposes of the action, the judgment of the Court is interlocutory and an appeal may be taken to a Full Court by leave only. This is a very useful procedure but no similar procedure applies with respect to procedures before the Tribunal. The possibility of a reference on a question of law mentioned by Fisher J, is not always practical. It seems fairly clear that if, on an application for review, the Tribunal held it did not have power to review the decision sought to be reviewed, it would not have power to make a decision of the kind mentioned in subsection 43(1) of the Administrative Appeals Tribunal Act. Nevertheless, the Tribunal would have made a "decision" within the meaning of that word, see the discussion on this issue in Chaney by Northrop J at 584-586 and Deane J at 590-593. In these circumstances the correctness of the decision could be tested by an application for mandamus in the High Court or in the Federal Court. In all probability, there could be an appeal to the Federal Court under subsection 44(1) of the Administrative Appeals Tribunal Act since the "decision" constituted "an effective determination of the application for review", see Chaney per Deane J at 593. In order to determine this question, it is necessary to consider what is the relevant decision or decisions the subject of the appeal to this Court. The notice of appeal states that the "Applicant appeals from the decision of" the Tribunal which is then described as the decision "whereby the Tribunal determined that the Applicant did not have operational service as determined by s6(1)(a) of the Veterans' Entitlements Act 1986 and that it does not have jurisdiction to review the decision of the Repatriation Commission on issues of entitlement which were not sought to be reviewed by the Veterans' Review Board". Administratively there is only one appeal from the one decision of the Tribunal. The determinations as so described in the notice of appeal are the two matters mentioned in the "DECISION" of the Tribunal published on 15 October 1993. The application by the veteran under section 135 of the Veterans' Entitlements Act is not before the Court. In its reasons published on 15 October 1993, the Tribunal said that the veteran applied "to the Tribunal for a review in the following terms: "The Veterans' Review Board erred in fact and in law in affirming the decision of the Repatriation Commission which determined that osteoarthritis hips and knees and otitis externa are not war-caused."." But this extract does not indicate what decision was to be reviewed. If, in fact, the application for review had been limited to a decision being the decision described to the first issue, the second issue would not have arisen and would not have been before the Tribunal. The Court is prepared to infer that the application for review was with respect to the one decision given by the Delegate which included the two issues. This is supported by a reference to the history of the matter as set out earlier in these reasons. The veteran sought a review of that one decision. The Veterans' Review Board, wrongly, reviewed part only of that decision and then affirmed the whole of the decision of the Delegate of the Repatriation Commission but in a way which perpetuated the earlier error. The application for review by the Tribunal, in all probability, was the decision made by the Delegate of the Repatriation Commission. This enabled the Tribunal to decide the second issue as a preliminary question. In these circumstances, the Court is prepared to accept that the application to the Tribunal was with respect to the "decision" made by the Delegate on 8 October 1990. It follows, therefore, that the "decision" of the Tribunal made on 15 October 1993 has two results. It permits part of the review to proceed. Chaney applies to that part. It brings to an end another part of the review. In this respect the second issue has been determined by the Tribunal against the interest of the applicant. This would allow this part of the decision to come within the dicta of Deane J in Chaney at 593, the passage cited above. If this was the only decision, it would come within the first paragraph of the passage in the judgment of Fisher J in Chaney at 596 in the first of the paragraphs cited above. In my opinion, it is undesirable that a "decision" on interlocutory matters shall be decided in such a way as to enable an appeal to be taken with respect to a part of the decision and not another part. The decision should be treated as one. This course avoids the possibility of a multiplicity of appeals as discussed by Deane J in Chaney. Accordingly, in my opinion Chaney is not binding on me having regard to the facts of this case. On any view, the appeal on the second issue is not prevented by Chaney. The whole of the decision of the Tribunal should be the subject of the appeal to prevent the possibility of two separate reviews being undertaken by the Tribunal when it is appropriate that all matters should be heard together. The second ground of opposition to jurisdiction arises from the characterization of the nature of the "decision" of the Delegate. This is illustrated by the way counsel for the Commission asserted that the Delegate, in substance, gave four decisions on 8 October 1990, one decision with respect to each of the four diseases. This was done despite the fact that there was but one claim and the one decision of the Delegate was to refuse the claim. The application to the Veterans' Review Board was for a review of one decision, namely the "rejection of claim for disability pension". The Review Board should have reviewed the one decision. It did not do so. It reviewed part only of that decision but in adopting that course, it is impermissible for the Commission to claim now that the Tribunal has no jurisdiction to review the decision of the Delegate of the Repatriation Commission because the Review Board had not reviewed part of the matters forming the basis of the decision of the Commission. It would be a strange result if a veteran could be deprived of a right of review by the Tribunal where the Review Board failed to consider parts of the decision being reviewed by it but nevertheless affirmed the decision of the Commission. A veteran should not be compelled to recommence the process seeking a pension in order to have that matter proceed from the Commission, to the Review Board and to the Tribunal. In reaching its decision on the second issue, the Tribunal concluded that the veteran had not sought to have the "decision" of the Delegate of the Commission in relation to the diseases of chronic obstructive airways disease and high blood pressure reviewed by the Review Board. The Tribunal concluded also that the veteran was concerned to have reviewed only the disabilities which were in fact reviewed and that the other disabilities were not considered by the Board as it was not requested to do so and that the Board did not receive any evidence on those disabilities. In coming to these conclusions, the Tribunal was in error. This is made clear by reference to the formal documents discussed at some length earlier in these reasons. Further, it must be remembered that the Board conducted the Review on the material before the Commission. Neither the veteran nor the Commission appeared before the Board so it is not surprising that the Board was not requested to receive other evidence. Under the provisions of the Veterans' Entitlements Act it was required to consider at least all the material that was before the Commission, see subsections 139(1) and (2). It did not do that. It was in error in not doing that. The whole of the decision of the Delegate was to be reviewed by the Board. It affirmed the decision under review, but wrongly attempted to limit the material it was required to review. This error cannot be used to support a submission that the whole or part of the decision of the Commission had not been affirmed by the Board in the terms of paragraph 175(1)(a) and thus to limit the scope of review by the Tribunal. The authorities relied on by counsel for the Commission, namely Ward v Nichols (1988) 16 ALD 353, Fitzmaurice v Repatriation Commission (1989) 10 AAR 170 and Duonoey v Repatriation a decision of the Tribunal No 6990 presided over by Gray J, do not assist the Commission. If anything they support the submissions made by counsel for the applicant. In the event, the decision of the Tribunal made on 15 October 1993 insofar as it decided that the Tribunal does not have jurisdiction to review the decision of the Repatriation Commission on the claim in respect of chronic obstructive airways disease and high blood pressure must be set aside. There remains for consideration the appeal from the decision of the Tribunal insofar as the decision related to the issue of whether the veteran had operational service as defined in section 6 of the Veterans' Entitlements Act. On this issue, the Tribunal received evidence. Although the veteran rendered continuous service in the Northern Territory and islands adjoining that Territory he is not to be taken to have rendered operational service under the provisions of paragraph 6(1)(b) of the Veterans' Entitlements Act since his service did not comply with the conditions prescribed in that subsection. This is made clear by a reference to the facts found by the Tribunal as set out in its reasons. The veteran sought to bring himself within the provisions of paragraph 6(1)(a) by evidence of a voyage in a vessel from Melville Island, an island adjoining the Northern Territory, and the return voyage when the vessel was struck by a storm and blown off course. In addition there was the fanciful suggestion that upon the vessel leaving Melville Island it was going to proceed to New Guinea and thus the veteran was "outside Australia" within the meaning of that phrase in paragraph 6(1)(a) of the Veterans' Entitlements Act and thus was taken to have been rendering operation service. The facts are set out in the reasons of the Tribunal. The Tribunal applied, correctly, the principles applicable to this type of case as expressed in Repatriation Commission v Khon (1989) 87 ALR 511 per Hill J at 524-5. There has been no error of law by the Tribunal on this issue. At the conclusion of the hearing, the counsel for the parties announced that by agreement and irrespective of the result of the appeal, there should be no order for costs.

For the reasons expressed, the following orders are made.

1. The appeal be allowed in part. 2. That part of the decision of the Tribunal which decides that the Tribunal does not have jurisdiction to review the decision of the Repatriation Commission on issues of entitlements which were not sought to be reviewed by the Veterans Review board be set aside, otherwise the decision of the Tribunal be affirmed. 3. The review by the Tribunal of the whole of the decision of the Repatriation Commission dated 8 October 1990, being the decision that was affirmed by the Veterans' Review Board by its decision dated 8 August 1991, be remitted to the Tribunal for hearing and determination according to law.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.

ATTACHMENT Counsel for the Applicant: Mr M.J. O'Brien Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: Mr P.J. Hanks Solicitor for the Respondent: Australian Government Solicitor