Jebb, E.K. v Repatriation Commission [1988] FCA 170

Federal Court of Australia|1988-04-15|Before: Davies J

This is an appeal from a decision of an Administrative Appeals Tribunal ("the Tribunal") which affirmed a decision of the Repatriation Commission ("the Commission") given on 21 May 1986, refusing to increase Mr Jebb's existing pension entitlement, being 100% of the general rate, by adding thereto

either the intermediate rate or the special rate of pension.

Mr Jebb's medical conditions which had been accepted as attributable to war service were bilateral nerve deafness,

degeneration in the left and right shoulders and an anxiety state. Other disabilities which had not been accepted as attributable to war service were vestibular neuronitis, osteoarthritis of the hands and cervical and lumbar spondylosis. The most significant of Mr Jebb's accepted disabilities were his anxiety state, of which there had been symptoms during his period of service, and rotator cuff degeneration in his left and right shoulders, to the development of which the disability resulting

Mr Jebb had had only limited education but a considerable potential. In late 1949, he joined Boots Company (Australia) Pty Limited ("Boots") as a storeman. Subsequently, he was promoted to stock controller and later to office manager in New South Wales. Later, he became an agricultural representative for Boots and later still he joined its Research Department. In 1968, when a research farm was acquired, Mr Jebb played a major part in the selection of the farm. He was appointed farm manager or farm steward in charge of the day-to-day operations of the farm and held that appointment until his resignation from Boots on 4 July 1980, just after he had turned 60 years of age. Mr Jebb's accepted disabilities played a large part in his decision to retire. He was suffering pain and discomfort in his shoulders and was finding it increasingly difficult to carry out the physical work which was required of him. He felt depressed, slept badly and was tense. He found increasing difficulty in coping with the responsibilities of his position. On retirement, he purchased a new home and applied for

and received a service pension. Prior to his retirement, he had

had in mind that, on retirement, he would seek work as a farm consultant and thus exploit his many years experience in farm Management, particularly in the development and maintenance of orchards. He did not, however, undertake this or any other

On 8 November 1982, Mr Jebb, who was then receiving a disability pension based on the gunshot wound, his deafness and tinnitus, lodged a claim for the acceptance of cervical spondylosis and osteoarthritis and rotator cuff degeneration in the right and left shoulders. On 8 November 1963, a Repatriation Board rejected the claim for spondylosis and osteoarthritis but accepted the disabilities of rotator cuff degeneration, left and right shoulders. Subsequently, on 4 June 1984, the Repatriation Commission increased the rate of pension to 100% of the general rate with effect as from 5 August 1982. An appeal was lodged to the new Repatriation Review Tribunal. This appeal was heard by the new appeal body, the Veterans' Review Board, on 23 July 1986. The decision under appeal was affirmed. Application was then made to the Administrative Appeals Tribunal which, on 23 June 1987, made the decision which is now under appeal. In the meantime, application had been made on 2 May 1985 for the acceptance of lumbar spondylosis and chronic dyspepsia. It was on the latter claim that a decision was made by an officer of the Repatriation Commission on 2 May 1986 accepting Mr Jebb's anxiety state as attributable to war service with effect from 2 February

The Tribunal took the view that it had to consider Mr Jebb's incapacity for work as at 8 November 1982, the date on which he lodged the claim which became the subject of the decision of the Commission which was reviewed by the Veterans Review Board and by the Administrative Appeals Tribunal. In its decision, the Tribunal did not refer to the above sequence of events but treated the matter as 1f the anxiety state had been one of the accepted disabilities as at the date of the lodgment

On the facts, the Tribunal adopted the view expressed by Dr M.G. Baz, a specialist in occupational medicine, that in November 1982 Mr Jebb would have been able to work more than 20 hours per week but that his condition subsequently deteriorated.

"His accepted war caused disabilities stop him from working more than 20 hours per week. (In 1982 they would not have stopped him from working 20 hours per week.) His rejected war-caused disorders do not preclude him from working more than 20 hours per week. (In 1982 they would not have precluded him from working more than 20 hours per week.) There are no other disabilities noted which would currently preclude him from working more than 20 hours per week, nor which would have precluded him in 1982." The significance of the reference to 20 hours 1s that s.24(1) of the Veterans' Entitlements Act 1986 (Cth), which applied when the matter considered by the Administrative Appeals Tribunal, precluded the grant of the special rate unless the veteran was "incapable of undertaking remunerative work for periods

aggregating more than 8 hours per week", and s.23, which

provided for the intermediate rate, specified a like period of 20 or more hours per week. Thus, the Tribunal's acceptance of Dr Baz's view had the consequence that Mr Jebb was not entitled to either the special or the intermediate rate of pension as at 8

Mr Matthew Smith, counsel for Mr Jebb, criticised Dr

The day perimeter watchman or a watchman in a car-park; would a man with Mr Jebb's anxiety state - and you have heard his evidence in respect of that this morning - do you think he would have been capable of that sort of work? --- I thought he would. The thing 1s, the work I am describing there would be the sort of person who is going to be walking which is something that he can do. The one thing that he is able to do in a fairly unrestricted way is to walk - 5 or 6 miles he can go. So the sort of work where someone is going to walk around an area and keep an eye on things and be reporting back to somebody else who is going to take action. It is a kind of job I was talking about.

I appreciate that you - although you have some experience in respect of the labour market, etcetera, and that sort of thing - you probably cannot tell us what sort of work would have been available for him in 1982 as a day perimeter watchman, can you? --- No. Certainly not at Tumbi Umbi anyway? --- No. As you Say, I am not expert in that but I would assume that there would be limited opportunities. It is quite possible that there just was not that sort of work available? -~- Yes." There would seem to have been slight foundation for Dr Baz's conclusion that Mr Jebb had a capacity to obtain remunerated employment for five half days a week, that is 20 hours or more per week. However, I am not satisfied that there was any error

of law in Dr Baz's approach. The issue of fact was one for her

"It is only Dr. Baz's evidence which greatly assists us. We have her very full report and we have had the benefit of oral evidence from her. She is categoric that the applicant's war-caused disabilities would not have stopped him in 1982 from working more than 20 hours per week. Although Dr. Baz, when she heard at the hearing what the consultancy considered by Mr. Jebb entailed, doubted a capacity by him to undertake some aspects of such work, we judge that her doubt in this respect does not materially change the position she took in her report. In our view, assistance could have been provided by a hired driver/secretary to address Mr.

Jebb's emerging limitations in writing and in driving for more than short periods."

Mr Smith criticised this conclusion, particularly the Tribunal's reference to "a hired driver/secretary" as to which there was no evidence. Certainly, the Tribunal's conclusion that Mr Jebb had a capacity to obtain employment which would support the engagement of a driver/secretary seems surprising. However, the Tribunal was the judge of the facts and no error of law in its

I turn to the matter that was the main ground of challenge by Mr Smith. The Tribunal looked at Mr Jebb's entitlement to a pension only as at 8 November 1982. It did so in purported reliance on the decision of the Federal Court of

Australia in Banovich v. Repatriation Commission (1986) 69 A.L.R.

For this reason, it did not turn its attention to Mr Jebb's entitlement to a pension between that date and the date of the decision by the Tribunal. During that period, Mr Jebb's

condition deteriorated markedly. Dr Baz gave evidence that, at a

point in 1984, Mr Jebb would have been able to work more than 8 hours per week but certainly less than 20 hours per week. On her view, therefore, Mr Jebb would then have qualified for a pension under s.23 of the Act. It is not necessary for me to discuss the point that Dr Baz treated the anxiety state as attributable to war service throughout the whole of the period whereas it was

Some decisions of the Administrative Appeals Tribunal have taken a like view of the decision in Banovich. See Re Ireland and Repatriation Commission (W86/210, 24 April 1987), Re Morris and Repatriation Commission (086/267, 22 April 1987) and Re Dooley and Repatriation Commission (N87/192, 6 October 1987). However, the general approach of the Administrative Appeals Tribunal has been to regard the administrative decision-making process as a continuum and to look upon the tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision. That function was enunciated in Re Tiknaz and Director-General of Social Services (1981) 4 A.L.N. N44. The approach there taken has since been generally adopted. In the

Repatriation jurisdiction, it was applied after Banovich in Re

Easton and Repatriation Commission (1987) 6 A.A.R. 558, where at pp.561-2, the Tribunal discussed the decisions 1n Banovich, Re Delkou and Repatriation Commission (1986) 69 A.L.R. 406 and Re Lucas and Repatriation Commission (1986) 69 A.L.R. 415 and said:-

"The ambit of a review by the AAT is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the AAT is to review a decision. But provided that the matter 1s within the ambit of its jurisdiction as a review authority, the general practice of the Tribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) expressly states,

'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 ...'

I do not read the decision in Banovich v Repatriation Commission, (supra), as suggesting the contrary. That issue was not before the Court. The Court was similarly constituted in Delkou v Repatriation Commission, (supra), and in Lucas v Repatriation Commission, (supra), and all three judgments were given on the same day. In Delkou, the Court considered relevant the situation up to the date of hearing. At 131-132 the Court said:

'The Tribunal considered the position between March 1977 and the date of hearing before it. It held that, although there may have been some variation in the contributions to Mr Delkou's incapacity, made respectively by his anxiety state and his spondylosis, there has been no time since March 1977 at which it might be said that, by reason of incapacity from his anxiety state alone, he has suffered a loss of salary or wages or of earnings on his own account which he would not have suffered if he were free of that incapacity. It follows that, at no such time, was Mr Delkou able to satisfy the requirements imposed by s(1)(b)(i11) and that the Tribunal rightly held that his application for special rate pension ought to be refused.' [The emphasis is mine. ]

Likewise, in Lucas v Repatriation Commission (1986) (supra), at 122, the Court said:

'On this evidence the Tribunal made a number of findings. It was reasonably satisfied that the applicant's incapacity from his accepted disabilities was, both at the date of his application and the date of the hearing, of such a Mature as, of itself alone, to render him incapable of undertaking remunerative work except on a part-time or intermittent basis ....' [The emphasis is mine.]

',.. As the Tribunal said '...there 1s no evidence to establish that Mr Lucas is prevented from continuing to undertake any such work that he was undertaking in the past'. The applicant does not suggest that there was any such evidence.' [The emphasis is mine. ]

These passages do not suggest that the Court intended to

say that the Tribunal ought not to be concerned with the ongoing situation up to its date of the decision.

Of course, the facts to be considered must be relevant to the Tribunal's jurisdiction but, 1f£ relevant, there is no reason why facts occurring up to the date of the decision should not be taken into account in the formulation of the Tribunal's decision in the review. Section 43(1) empowers the Tribunal to set aside a decision under review and to make a decision in substitution for the decision so set aside. In doing so, the Tribunal may, provided that the matter is within its jurisdiction, deal with the situation up to the date of the decision. Note that s 43(5A) provides that ordinarily a decision of the Tribunal comes into operation forthwith upon the giving of the decision, terms which are quite appropriate to a decision which relates to a period of time up to the date of the decision.'"

See also Re Baker and Repatriation Commission (N87/299, 18

December 1987) in which, 1f that view had not been taken, the applicant would not have received a pension for he had lodged his application while on sick leave 19 days before he actually retired and, therefore, 19 days before he met the conditions specified by s.24. To the same effect 1s Re McCartney and Repatriation Commission (1986) 9 A.L.D. 441 in which the Tribunal concluded that the special rate should be granted to the applicant as from the date of the decision of the Repatriation Board rather than the date of application because the material before the Tribunal satisfied the Tribunal that the conditions for the special rate were met as from the date of the Repatriation Board's decision but 1t was not so satisfied with

Banovich, Delkou and Lucas 1s supported by the later decision in

McGuire v. Repatriation Commission (1987) 7 A.A.R. at 31-2.

Beaumont J. was a member of that court as he was in the earlier

decisions. In McGuire v. Repatriation Commission, at p.32, his

"Confining one's attention for the moment to the period until the applicant attained sixty-five years, that is, his assumed continuing employment with Australia Post, the applicant's argument should, I think, be accepted. In other words, 1n respect of the period between December 1983 (three months before his application) and November 1986 (his sixty-fifth birthday), it is inappropriate to consider the applicant's prospects of employment outside of Australia Post. Assuming good health, there is no reason to suppose that the ordinary presumption of continuance did not apply. It follows that the applicant was eligible for the special rate in that period. To this extent, the case may be distinguished from Smith and Wright."

Northrop and Spender JJ. concurred. The Court looked at entitlement not only at the date of the application but from that date back to the date to which the pension could be given retrospective effect and forward to the date of the decision. I

shall later discuss the reference to the age of sixty-five years.

Mr Smith submitted that the view expressed in Re Easton was correct and he referred to the many provisions in the Veterans' Entitlements Act which point to the ongoing nature of the administrative process. He pointed out that it 1s not necessary for a veteran to make a specific application for the grant of a pension under s.23 or s.24. He submitted that the consideration of the rate of pension, including the grant of rate

of pension under ss.23 or 24, may be initiated by a general claim

for an increase in pension or by a claim for the acceptance of a disability not previously accepted or by a reconsideration by the Repatriation Commission either of its own motion or on request of either a question of entitlement or a question as to the appropriate rate of pension. Mr Smith pointed to the provisions for review by the Veterans' Review Board and by the Administrative Appeals Tribunal. Mr Smith pointed to provisions such as s.21(1) which provides that:-

"The Commission may, subject to this Act, approve payment of the pension at the increased rate, or payment of pension, from and including the date on which the application ... was received at an office of the Department in Australia."

See also s.19(6). Those provisions allow the Commission to make a determination which is appropriate having regard to the facts as found at the date of the lodging of the application, as they stand at the date of the determination, and having regard to any material changes which may have occurred between those dates. To like effect are the provisions respecting review by the Veterans' Review Board. A decision of the Veterans' Review Board speaks in futuro. Section 139(4) uses the expression "the rate at which the pension is to be paid". Sections 156 and 157 then require the Veterans' Review Board to specify a date from which the decision is to operate and s.157, which puts a limit upon the extent to which the decision may be given retrospective

operation, confers discretions upon the Veterans' Review Board

with respect to the date to be chosen. The relevant provisions

in the Administrative Appeals Tribunal Act 1975 (Cth) have similar effect. Section 43 of the Administrative Appeals

"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 the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(5A) Subject to sub-section (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later

date specified in the decision and, where a later date

is so specified, the decision comes into operation on that date.

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals to the Australian Industrial Court), be deemed to be a decision of that person and, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."

These provisions apply to a decision by the Administrative

Appeals Tribunal under the Veterans' Entitlements Act, for s.177

of that Act confers additional discretions upon the Administrative Appeals Tribunal and specifically provides that the section has operation in addition to and not in substitution

for the provisions of s.43 of the Administrative Appeals Tribunal

Mr Smith also pointed to ss.154 and 178 of the Veterans' Entitlements Act which remove any doubt that a decision of the Veterans' Review Board and a decision of the Administrative Appeals Tribunal operate in futuro as well as retrospectively.

"178(1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or ain effect -

(a) assesses a rate of pension or increased rate of pension;

(b) refuses to grant a pension, on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of such a pension;

that decision of the Administrative Appeals Tribunal shall, subject to sub-section (2), be binding on the parties to the proceedings before that Tribunal for a period of 6 months commencing on the day on which that Tribunal makes the decision.

(2) If, during the period referred to in sub-section (1), the person to whom the pension is payable, or who was refused a pension, is of the opinion that his or her incapacity has increased, sub-section (1) does not prevent -

(a) the person from making application for an increased pension or for a pension; or

(b) the grant of increased pension or of a pension,

from a date within that period, by the Commission upon its consideration of such an application or by

the Board on a review of the decision of the Commission on such an application. (3) In this section, 'pension' does not include service pension." It would be inconsistent with these provisions to regard a

decision of the Veterans' Review Board or of the Administrative

Appeals Tribunal as looking only at the question of entitlement

as at the date of application or other proper commencing date.

In my opinion, the decisions in Banovich, Delkou and

Lucas do not justify the conclusion drawn by the Tribunal in the

present case, indeed they did not even consider the point. Those cases were concerned with the situation where claims for increases in pension had been made by persons who had reached the ordinary retiring age. As at the date of the lodgment of their applications they did not meet the statutory criteria for, apart from their accepted disabilities, they would not then have been in remunerated employment but would have been retired. The case put in their favour was that had they applied for a pension or an increase in the rate of pension at an earlier date and had the special rate then been granted, their entitlement to the pension would have continued after they had reached the age of 65 because 1t was then accepted practice that any entitlement to an intermediate rate pension or a special rate pension was not revoked when the veteran reached normal retiring age. This argument was rejected by the Administrative Appeals Tribunal in

the Banovich, Delkou and Lucas cases and the decisions were

upheld on appeal. I read the comments in those cases in the context of the issues with which they dealt. The Court made it plain, as the Administrative Appeals Tribunal had held, that an applicant could not succeed by showing any entitlement existing at a date earlier than the date of the lodgment of the application, for the question of entitlement at the prior date was a matter outside the jurisdiction of the Administrative Appeals Tribunal save to the extent that the decision could be

I therefore accept Mr Smith's submissions and reject the submissions which were put by Mr A. Robertson, counsel for the respondent, on this point. It follows that there was an error of law in the Tribunal's approach to its task. The Tribunal did not consider Mr Jebb's entitlement to a pension during the whole of

the period within the ambit of the Tribunal's jurisdiction. However, Mr Robertson submitted that, because of legislative changes, no purpose would be served by remitting the

In Repatriation Commission v. Smith (1987) 7 A.A.R. 17

to which like decisions in Repatriation Commission v. Wright and

McGuire v. Repatriation Commission are noted, the Court had to

consider a case where the Tribunal had directed that the special rate be granted to a person of 69 years of age on the ground that, but for his war disabilities, he would have been able to undertake part-time employment as a plumber. One ground on which the Administrative Appeals Tribunal was held to be in error related to the standard of proof and we are not concerned with that. However, the Court also expressed the view that the practice of continuing to pay the special rate of pension after normal retiring age had been reached was incorrect. At p.24,

Beaumont J., with whom Northrop and Spender JJ. agreed, said:-

"Although a person is not automatically disentitled to a special rate pension on attaining sixty-five years, eligibility will only be established if, on the facts, the member was prevented from working by the service-related disabilities alone (Banovich at 121; Delkou at 131-132; Lucas at 123)."

McGuire, the Veterans' Entitlements Act was amended by the Social

Security and Veterans' Entitlements Amendment Act (No 2) 1987.

The particular amendments with which we are concerned will apply

if the present matter is remitted to the Administrative Appeals

Tribunal for rehearing. Mr Robertson submitted that the new

Provisions adopt the same approach to entitlement at the date of

application as was taken by the Tribunal in the present case with

the result that no purpose would be served by remitting the

Section 12 of the Principal Act is repealed and the

'application day', in relation to a veteran who has made

a claim for a pension or an application for an increase in the rate of a pension or a veteran on whose behalf such a claim or application has been made, means the day on which the claim or application was received at an office of the Department in Australia or, if subsection 20(2) or 21(2) applies to the veteran, the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received;

by omitting from subsection (2) 'Where' and substituting 'Subject to subsection (2A), where'; and

by inserting after subsection (2) the following subsection:

"(2A) In determining whether the rate of pension payable to a veteran should be the rate applicable under section 23 or 24, the only relevant

consideration is whether the veteran was a veteran to whom that section applied on the application day un relation to the veteran.'.

After section 24 of the Principal Act the following section is inserted:

''24A. Where the Commonwealth 1s or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

(a) the decision to apply that rate of pension to the veteran would not have been made but for a false

(b) in the case of a veteran to whom section 23 applies:

(i) the veteran 1s undertaking or is capable of undertaking remunerative work of a pacticular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or

(ii) in a case where subparagraph (i) 15s inapplicable to the work which the veteran is undertaking or 1s capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

the veteran is undertaking or 1s capable of undertaking remunerative work for periods aggregating more than 8 hours per week.'

Mr Robertson submitted that, because of the new sub-section 19(2A), the Commission, the Veterans' Review Board and the Administrative Appeals Tribunal could consider entitlement only as at the application date and that, once a determination was made as to the rate of pension payable as at

the application date, no further decision was needed for the

Commonwealth was thereafter liable under s.24A to pay that rate

save in the circumstances provided by that section.

decisions of the Administrative Appeals Tribunal. See eg. Re

Webster and Repatriation Commission (No. 387/58, 22 January

In my opinion, however, the new provisions should be limited in their effect to overturning the aspect of the

reasoning in Smith, Wright and McGuire to which I have referred.

The new provisions provide legislatively for the practice which had been applied by the Repatriation Commission and followed by the Veterans' Review Board and the Administrative Appeals Tribunal. It does too much damage to the structure of decision-making to interpret the provisions in any other way. Take, for example, the facts in Re Easton. That case had arisen from a reconsideration by the Repatriation Commission of decisions taken in relation to Mr Easton over many years. The Repatriation Commission finally accepted in 1984 a condition of anxiety state which had been claimed by Mr Easton in 1960. The Repatriation Commission backdated its decision to December 1980. If, on facts such as those, Mr Robertson's literal interpretation of s.19(2A) were accepted, Mr Easton could not have been granted the special rate of pension for, at the time of his application for a pension in relation to his anxiety state, he did not

Because of the ambiguity, it is appropriate to take note

of the second reading speech of the Minister for Veterans'

"The Bill also gives legislative effect to the Government's major decision not to allow the adverse interpretations given in three recent Federal Court decisions to the provisions of the Veterans' Entitlements Act relating to eligibility for the totally and permanently incapacitated rate (TPI) and intermediate rate of pension to stand. The Federal Court took the view that the eligibility criteria must be met by a veteran on a continuing basis and that such a pension was not payable after attaining normal retirement age or indefinitely. In order to overcome this interpretation, the Bill provides two related changes. The first will ensure that initial eligibility for the grant of T & PI or intermediate rate pension is not to be determined on a continuing basis. Eligibility is to be determined by reference to whether a veteran meets the requirements of section 23 or 24 on the date of lodgment of a pension claim or application.

The amendment will prevent account being taken of alterations in the veteran's circumstances, subsequent to lodging the claim or application, which might adversely affect eligibility. This will avoid the possibility of a grant of T & PI or intermediate rate pension that is made being limited by the determining body to a specified period, up to say retirement age, as was adverted to by the Federal Court in the McGuire case.

The second change is to insert a new section 24A in the Veterans' Entitlements Act. This will ensure that persons who are eligible to receive and are receiving a TPI or intermediate rate pension will not ordinarily lose payment of the pension at such a rate in their lifetime.

The only exceptions are where the grant of pension would not have been made but for a false statement or misrepresentation or, where the veteran's war-caused incapacity improves to the extent that he or she is undertaking, or becomes capable of undertaking, remunerative work for periods greater than specified in the existing law.

The amendments to be made in respect of TPI and intermediate rate pension do not otherwise affect the changes to eligibility for these pensions made by Repatriation Legislation Amendment Act 1985 and carried through in the Veterans' Entitlements Act and the interpretations given to the relevant provisions by the courts; nor do the amendments affect the powers of the Veterans' Review Board or the Administrative Appeals Tribunal to review whether the initial grant of TPI or intermediate rate pension was made properly."

Those passages make it clear that the amendments were designed

solely to overcome the interpretation enunciated in Smith, Wright

and McGuire. They were intended to overcome the interpretation which adversely affected veterans' eligibility for a pension and were not intended otherwise to affect changes to the effect of

the Veterans' Entitlements Act including the powers of the

Veterans' Review Board and of the Administrative Appeals Tribunal

It may also be noted that the legislative provisions which now appear in s.158 of the Social Security Act 1947 and which were, perhaps, introduced to overcome the effect of the decision in Re Tiknaz, were not adopted. Indeed, as I have mentioned, no specific application need be made for either the intermediate or the special rate of pension and the grant of such a rate can be made on an application for the acceptance of a disability or for an increase in pension, or on reconsideration by the Repatriation Commission of any such application or on reconsideration by the Veterans' Review Board or by the

I read the new s.19(2A) as dealing solely with the question of entitlement as at the date of application and therefore as, inferentially, adopting the approach taken in

Banovich, Delkou and Lucas. I do not read s.19(2A) as dealing

with the question of entitlement during the period prior to the date during which the decision may be back dated or during the

Nor do I read s.24A as dispensing with the requirement imposed by s.19 and like provisions of the Act that a pension be payable under a determination of the Commission or a decision of a Veterans' Review Board or an Administrative Appeals Tribunal. It is not the effect of the new provisions that a determination of the Commission or a decision of a review tribunal speaks only as to entitlement as at the date of the lodgment of the application and that entitlement thereafter arises from s.24A, Rather, the provisions of s.24A overcome the interpretation

enunciated in Smith, Wright and McGuire and are provisions which

must be applied by the Commission and the review tribunals when entitlement is considered for the period after the date of the lodgment of the application to the date of the Commission's or

The Administrative Appeals Tribunal will not be precluded from considering the matter upon the basis I have outlined if the matter is remitted to it for reconsideration. I therefore think that the proper order to make 1s that the decision under appeal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again

So that there shall be no misunderstanding, I make it clear that, in its reconsideration, 1t will be open to the Administrative Appeals Tribunal to approach the factual issues in whatever way it considers appropriate. No comments made in this

decision as to the facts should affect that consideration.

Moreover, there may be two issues to be considered that were not considered in the decision under appeal. The first 1s that Mr Jebb's anxiety state was not accepted as a war-attributable disability until 2 May 1985 as from 2 February 1985. The other 1s that if, in considering what employment Mr Jebb would have been undertaking but for his war accepted disabilities, the tribunal considers that, but for those disabilities, Mr Jebb would have continued in his employment with Boots, then it will be necessary for the tribunal to consider a fact which was not mentioned in the decision under appeal, namely that the research farm on which Mr Jebb had been employed was shut down in about 1982 and the employment of all employees thereon was terminated. I make no comment or inference as to the effect of that

As the appeal has succeeded, I shall order that the respondent pay the applicant's costs thereof. I certify that this and the 21 preceding pages are a true copy of

the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Counsel for the appellant: Mr Smith Solicitors for the appellant: Blessington Judd & Co. Counsel for the respondent: Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Legislation Cited (2)