Peacock v Repatriation Commission [2007] FCAFC 156 | Case summary

3 On the rehearing in the Administrative Appeals Tribunal (Peacock v Repatriation Commission [2007] AATA 1208: Deputy President Hack SC and Dr G J Maynard), the parties tendered evidence and made submissions on the application of ss 23(1)(c), 24(1)(b) and 24(1)(c) of the Veterans' Entitlements Act. This was the first time the respondent had raised any issue relating to s 24(1)(b). In the original hearing in the Tribunal it was conceded that Mr Peacock met the requirements of s 24(1)(b), a concession which the Tribunal said had been properly made. 4 The Tribunal again affirmed the decision of the Commission. Mr Peacock now appeals pursuant to s 44(1) of the Tribunal Act. The application has been referred to a Full Court pursuant to s 44(3)(b). 5 The question raised in this appeal is whether the Tribunal reconsidering the matter erred in law by addressing the application of s 24(1)(b) of the Veterans' Entitlements Act. It is argued that the matter remitted to the Tribunal for further consideration excluded all questions arising under s 24(1)(b). Subsidiary questions arise as to whether it is open to the applicant to argue this ground, not having raised it before the Tribunal and whether the appeal must fail, in any event, because the Tribunal independently decided the case against Mr Peacock under s 24(1)(c), so that the result would have been the same had no error of law been made (see X v Commonwealth (1999) 206 CLR 177 at 210-11). 6 The appeal must fail on the principal ground. What was remitted was the whole matter. That was the question of Mr Peacock's entitlement to either the special rate or the intermediate rate. Once the prior decision of the Tribunal was set aside, in the absence of some express limitation, it was then for the Tribunal rehearing the matter to determine all questions of fact and law relevant to the applicant's claim. The task of the Tribunal remained the task of reconsidering the merits of the decision of the Commission, as affirmed by the Board. 7 Although the second and third issues do not strictly arise, we consider that the appeal must have failed in any event because the Tribunal's decision under ss 23(1)(c) and 24(1)(c) provided an independent basis for the same result. However, we do not think that the appeal would have failed because the matter before us was not argued below. If the applicant had made out his claim, then the Tribunal exceeded its jurisdiction. The consent of the parties could not render the decision within jurisdiction. Further facts 8 Mr Peacock was able to return successfully to the civilian workforce after his term in Vietnam. He obtained tertiary qualifications. He originally returned to the Kerang Shire Council where he had worked before he was conscripted. He became the Secretary of the Shire of Healesville and held that position from 1982 until 1993. In that year four areas, including the Shire of Healesville, were merged. Mr Peacock was appointed to a senior position in the merged Shire of Yarra Ranges. His service in Vietnam had, however, taken its toll. Mr Peacock experienced difficulty in coping and apparently found some solace in alcohol. He ceased work in January 2000. 9 Mr Peacock moved to Queensland where he continues to live. He was diagnosed with, and has been treated for, alcohol dependence and post traumatic stress disorder. The Repatriation Commission accepts that Mr Peacock has these conditions and others as well. The Commission accepts that the conditions are war-caused. He is in receipt of a pension at the general rate. The legislative scheme 10 In order for a veteran receiving a disability pension at the general rate to qualify for a disability pension at the special rate the veteran must satisfy each of six criteria in s 24(1) of the Veterans' Entitlements Act. The criteria in s 24(1)(b) and (c) are as follows: (1) This section applies to a veteran if: … (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity… Section 28 of the Act sets out matters which exclusively must be taken into account in considering s 24(1)(b). 11 A veteran who does not qualify for a special rate pension may qualify for a disability pension at the intermediate rate. Provisions in s 23 of the Veterans' Entitlements Act, which are similar to those in s 24, govern entitlement to a pension at the intermediate rate. The difference between the total and permanent incapacity required for the special rate and the incapacity required for the intermediate rate is that, in the former, the incapacity must render the veteran incapable of working for more than eight hours per week and, in the latter, of working otherwise than on a part-time basis or intermittently. The extent of the review on the remittal 12 The sole ground of appeal is that the Tribunal exceeded its jurisdiction by addressing issues that had not been remitted to it. It is appropriate to examine how this argument arises. Having noted that the respondent accepted that the applicant satisfied, inter alia, s 24(1)(b), Dowsett J said: The primary question for the Tribunal was whether the applicant satisfied para 24(1)(c). Thereafter his Honour addressed that section almost exclusively. He did refer to s 24(2) but that was because it impacted upon s 24(1)(c). He also referred to Flentjar v Repatriation Commission (1997) 48 ALD 1 but that case addressed the way s 24(1)(c) should be applied. The judgment concludes as follows: CONCLUSIONS I conclude that the Tribunal has misunderstood both par 24(1)(c) and the Flentjar decision. It follows that its decision must be set aside. ORDERS I order that: · The decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside; · The matter be remitted to the Tribunal for further consideration in accordance with law; and · The respondent pay the applicant's costs of this appeal. 13 The applicant says that because the sole issue raised in the previous appeal and the sole issue addressed by the Court related to s 24(1)(c), the remittal was confined to that issue. He says that the subject of the order that "the matter be remitted" was the matter constituted by the issue dealt with in the appeal. 14 Appeals from decisions of the Administrative Appeals Tribunal must be "on a question of law" (s 44(1) Tribunal Act). It is accordingly not surprising that the issue discussed in the appeal was limited. However, it does not follow that what was remitted was confined to the issues relating to that question of law. 15 Although ss 44(5) and (6) of the Tribunal Act contemplate that the Court may make an "order remitting the case to be heard and decided again", it is not unusual for remittals to the Tribunal to be couched in terms similar to those used by Dowsett J. 16 A similar order was made when this Court made a remittal order to the Refugee Review Tribunal in Wang v Minister for Immigration and Multicultural Affairs [No. 2] (2001) 108 FCR 167. On appeal from that decision, Gleeson CJ, in the majority, said this (Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 522): The Full Court ordered that the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be determined in accordance with law. The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent's claim to refugee status. The Chief Justice read the order as a remittal of the whole matter to be heard and decided again. 17 Another example is the order made by the High Court of Australia in Roncevich v Repatriation Commission (2005) 222 CLR 115 that "the matter be remitted to the Tribunal to be determined according to law". Prior to the further hearing of Roncevich the respondent sought to raise a factual issue which had previously been conceded. The applicant sought to have the issue excluded. Although the Tribunal made remarks relating to the propriety of the Commission raising a factual matter previously conceded in two hearings and on appeal, including an appeal to the High Court, it held that it was open to the Commission to raise the matter (Roncevich and Repatriation Commission (2006) 91 ALD 662 at 665-666: President Downes J, Deputy President Hack SC, Brigadier Ermert). The Tribunal reached its "conclusion by reference to the statutory task that the Tribunal performs and also by reference to the decision of the High Court in Wang". The crux of the High Court's finding in Wang was that findings of fact made in the first hearing did not carry over to the second hearing. Prior concessions cannot be in any different category. 18 We accept that Dowsett J might have limited the matter he was remitting for further consideration, but we think that it will be a rare case in which such a limitation can be inferred from reasons for judgment when the terms of the remittal itself are unqualified. Not only are we unable to see any qualification limiting the remittal in the present case, it seems to us that the terms of Dowsett J's reasons for judgment contain at least one indication to the contrary. When discussing the application of s 24(1)(c) his Honour said this: The respondent had conceded, and the Tribunal had found, that he satisfied the requirements of par 24(1)(b) of the Act. Although the questions are not identical, I cannot see how, on the present evidence, that finding can be reconciled with the Tribunal's conclusion that the applicant was not prevented by his conditions from performing clerical or administrative work during the claim period. One way of avoiding the problem of reconciliation would be a reconsideration of the concession. There is no reason to believe that his Honour intended to exclude that opportunity. 19 The respondent referred us to Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51, particularly at 63 and Repatriation Commission v Yates (1997) 46 ALD 487 at 492-494, in which orders remitting "the matter" were held to require that the whole matter must be heard and decided again. The applicant relied on Repatriation Commission v Nation (1995) 57 FCR 25. In that case the Full Federal Court held that a remittal of "the matter" was sufficiently ambiguous to permit resort to surrounding circumstances. The Court held that the terms of the reasons made it clear that the remittal was restricted. However, in that case it had been accepted since 1983 that the veteran's sinusitis condition had been war-caused. The only matter decided by the Commission to which the appeal and remittal related was whether another condition, anxiety neurosis, was also war-caused. Accordingly, the remittal did not permit the veteran's entitlement arising from his sinusitis to be reconsidered. This case is quite different. It is argued here that the remittal excludes matter that was before the Commission when it made its decision under review. 20 It follows that the claim that the remittal was limited has not been made out. Alternative ground 21 In our opinion, there is an alternative ground upon which the appeal must fail. The Tribunal concluded its consideration of s 24(1)(b) with "the applicant's conditions have not rendered him incapable of undertaking any remunerative work". It then went on to consider s 24(1)(c). After examining that paragraph and the Flentjar issues the Tribunal found that Mr Peacock intended to retire at age 55 before he was affected by his present disabilities. On the basis of its examination of the issues it concluded that the applicant did not satisfy s 24(1)(c). This finding did not depend upon the Tribunal's conclusion relating to s 24(1)(b) that concerned his capacity to undertake remunerative work. It did not address the issue of intention which, on the facts of this case, was the dominant matter to be addressed under s 24(1)(c). Since the application failed on an alternative and independent ground not separately challenged in this appeal, the appeal must have failed in any event. Point not raised below 22 We do not, however, accept that the applicant should be deprived of the opportunity to prosecute the appeal because the point raised was not agitated below. It is unusual for a party who presents evidence on an issue to successfully argue on appeal that the Tribunal should not have addressed that issue. Such a result may be especially unlikely in litigation. However, proceedings before the Tribunal are not litigation. The Tribunal is an administrative decision-maker. It exercises administrative power, not judicial power. It is not open to a party before the Tribunal to present an issue for determination which is otherwise not before the Tribunal. If the remittal excluded consideration of s 24(1)(c), the parties had no power to include it. Even though parties may induce the Tribunal to accept that a matter not remitted is actually before it, such conduct cannot alter the fact that it is not. 23 When Mr Peacock applied to the Tribunal to review the decision of the Veterans' Review Board, the Commission's decision, as affirmed by the Board, was removed to the Tribunal for reconsideration on its merits. When the matter was remitted to the Tribunal for further consideration, it was the matter remitted which the Tribunal had to reconsider. The parties had no power to extend the role of the Tribunal, as they might have done if the subject was litigation in a court, where the parties ultimately decide what the issues are. This is so even though the parties might have been able, in practical terms, to narrow the issues by concession. Nevertheless, even a concession does not permit the Tribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409 at 419) on all relevant aspects of the matter before it. It does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions (see Comcare v Fielder (2001) 115 FCR 328 at 337-338). It is to be noted that where parties reach agreement and invite the Tribunal to make a decision in accordance with that agreement under s 42C, the Tribunal is nevertheless required to satisfy itself that a decision in the agreed terms is within power and that it appears appropriate to act in accordance with the agreement. Form of remittals 24 The remittal order in this case was in a form frequently seen. A similar order remitting a matter to the Tribunal has recently been made by the High Court of Australia (Roncevich). However, it does seem to us that it may be appropriate, in any case in which ambiguity may arise, for the Court to specify whether it is remitting the whole case, or only part, and, if so, which part. Parties should routinely put submissions on the topic. 25 Section 44(5) is as follows: Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. That formulation is plainly not mandatory because subs (5) expressly preserves the generality of the governing power in subs (4) to "make such an order as [the Federal Court] thinks appropriate by reason of its decision". 26 This provision implies that the evidence already taken in the earlier hearing is to continue to be evidence before the Tribunal. Many cases remitted to the Tribunal for rehearing make no statement as to whether or not there is to be further evidence. Again, it seems to us that it would be helpful in appeals if parties put submissions on this issue and if, in an appropriate case, the Court made a determination. Conclusion 27 The appeal must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Downes, Lander and Buchanan.

Peacock v Repatriation Commission

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