Repatriation Commission v Stafford, M.I. [1995] FCA 537

5. The delegate's statement of the reasons for his determination of Mr. Stafford's claim shows that he found that Mr. Stafford had contracted the diseases of osteoarthritis of knees and hips and otitis externa, but that none of the circumstances, specified in s.9, had existed which enable either disease to be taken to be war-caused. Those reasons show that the delegate found that Mr. Stafford had not contracted the disease of hypertension or chronic obstructive airways disease. The reasons show further that the delegate considered whether Mr. Stafford had rendered operational service and decided that he had not. Where "a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied,beyond reasonable doubt, that there is no sufficient ground for making that determination" : s.120(1). Otherwise the Commission "in making any determination or decision arising under this Act" must "decide the matter to its reasonable satisfaction" : s.120(4).
6. The phrase "any decision of the Commission in respect of the claim or application" in s.135(1) should in our opinion be construed as comprehending each determination as to whether a condition of entitlement stated in the Act has been satisfied, as well as the ultimate decision as to whether the entitlement which was the subject of the claim or the application exists. The language of the sub-section admits of such a construction and the subject-matter of claims under Part II make it convenient to adopt the construction. Not infrequently evidence concerning the question as to whether a particular injury or disease is to be taken to be war-caused is expensive, and also difficult, to procure. And experience has shown that in some cases many years pass before the evolution of medical opinion makes available convincing evidence favouring an affirmative answer to such a question about a particular disease. In cases, such as this is, where several diseases are proposed to the Commission as war-caused, the investigation "into the matters to which the claim .... relates", which s.17 requires the Secretary to the Department of Veterans' Affairs to cause to be made, may show that the claim in respect one or more of the diseases proposed is much weaker than the claim in respect of another or others of them. And that state of affairs may be disclosed to the claimant by the "report referring to the evidence under the control of the Department that is relevant to the review" by the Veterans' Review Board, which report the Secretary is required by s.135(1) to cause to be prepared and served on the applicant for review within 6 weeks after the application for review is received at an office of the Department in Australia. An applicant "for review by the Board of a decision of the Commission" may withdraw the application at any time before the Veterans' Review Board has commenced the review and, with the consent of the Board, at any time after the Board has commenced the review : s.155. If the word "decision" in the phrase quoted from s.135 is understood as comprehending not only the decision as to the ultimate entitlement which was the subject of the claim or application but also each determination as to whether a condition of entitlement stated in the Act has been satisfied, withdrawal pursuant to s.155 of the application for review of one or more of those determinations may be effected. And in the written application to the Board for review one or more of the determinations of the Commission as to whether conditions of entitlement have been satisfied may be excepted from the decisions of which review is sought, leaving for review only the ultimate decision as to entitlement and the determinations not excepted.
7. The legislative context in which s.135 stands, the circumstance that it affords review only of administrative decisions adverse to a claimant or an applicant for pension or increased pension and the use of the word "any" distinguish the task of interpreting the word "decision" in that section from the task of interpreting the same word in s.175, which provides for review by the Administrative Appeals Tribunal. The assistance to be derived, in interpreting s.135, from a consideration of Fitzmaurice v. Repatriation Commission (1989) 19 A.L.D. 297 and of Ward v. Nicholls 1988 20 F.C.R. 18, both of which were concerned with s.175, is for that reason limited, in our opinion.
8. The first of the questions posed in paragraph 3 of these reasons having been answered, the question next to be considered is for review of what decision or decisions of the Commission in respect of his claim did Mr. Stafford make application. Section 136(1) provides: "An application to the Board for a review: (a) shall be in writing; and (b) shall be made by forwarding the application to, or delivering the application at, an office of the Department in Australia; and may set out a statement of the reasons for the application." Mr. Stafford's written application was made on a printed form supplied by the Department. At the top of the form the instructions for its use include this sentence: "The attached page explains more about how applications are made and how the Veterans' Review Board conducts a review." So far as appears the "attached page" was not part of the material considered by the Administrative Appeals Tribunal. The members of this court have not been shown a copy of it. No reference to it is found in the reasons for judgment of the primary judge. After provision on the form for the name of, and other information about, the applicant, the form has the following: "I would like the Veterans' Review Board to review the following decision: Decision:__________________________________ __________________________________________"

In the lined space provided after the word "Decision" are the handwritten words: "Rejection of claim for disability pension." If that were all there was written on the form, the conclusion would in our opinion be inescapable that the application was for review of all the decisions which performance of the functions conferred on the Veteran's Review Board by sub-sections (1), (2) and (3) of s.139 requires. An application for review in the terms we have quoted leaves the Board under the duty imposed by sub-sec. 139(2) "to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review". Those "matters" will comprehend every possible ground of entitlement to the pension which the application under s.14 raised or which, in the words of sub-sec. 139(1), "the evidence that was before the Commission when the decision was made" suggests. However, the lower part of the printed form contained this: "I am unhappy with the decision because:". Several centimetres of lined space on the form were provided for the applicant's response to those words. In that space the following handwritten statements appear: "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)." At the foot of the form was written Mr. Stafford's signature and the date "14.1.91". Section 137 provides, inter alia, that the Secretary cause to be prepared "a report referring to the evidence under the control of the Department that is relevant to the review", and that he cause a copy of the report to be served on the applicant for review. That section further provides that "the applicant may .... furnish to the Secretary in writing any comments the applicant wishes to make concerning the report," and that the Secretary shall include any such comments in the material to be placed before the Board. Mr. Stafford furnished in writing comments on a printed form of the respondent Commission, signed and dated 8 March 1991. In response to the printed words: "I have examined the report and make the following response

I wish my claim to proceed to the Veteran's Review Board", Mr. Stafford placed a tick in the box. He did not tick any of the other boxes, but he did make a response to the following printing on the form: "I wish to submit further evidence which ..............................................................................................

is shown below." Below, on lined space, was written the following: Having used pain tablets over years to offset pain in back hip and knees I am now taking carafate (? sic) for stomach ulcers. I do not agree with the Report, I believe to a (? sic) big part of my hip and knee trouble was caused by excesive (sic) weight lifting at an early age (PS ulcers were first discovered RMH."

Thereafter in letters from officers of the Commission to Mr. Stafford concerning preparation for the review reference was made to his application for review as "your application to the Board for review of the Repatriation Commission decision of 8 October 1990 in respect of osteoarthritis both hips and osteoarthritis both knees". There is no evidence as to whether Mr. Stafford noticed the omission of reference to hypertension, chronic obstructive airways disease and otitis externa. Neither Mr. Stafford nor a representative of the Commission appeared before the Board. Mr. Stafford had communicated his preference that he not attend the hearing before the Board. (He lived far from Melbourne and was unwilling to leave his wife alone.) The Board's formal statement of the decision it had reviewed and affirmed was expressed thus: "The Repatriation Commission decision of 8 October 1990 which determined that osteoarthritis hips and knees and otitis externa are not war-caused." The Board's reasons for its decision make no reference to any other injury or disease. 9. The decisions of the Administrative Appeals Tribunal which were the subject of appeal to this court are expressed thus: "(i) The applicant does not have operational service as defined in s.6(1)(a) of the Veterans' Entitlements Act 1986; and (ii)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." The reasons of the Tribunal for the latter decision include the following observations: "The parties have requested that the Tribunal determine two preliminary issues prior to the substantive hearing, namely, whether the applicant, hereinafter called the veteran': 1. had operational service as defined in s.6 of the Veterans' Entitlements Act 1986, the Act'; and 2. is able to seek review by the Tribunal of issues of entitlement, decided by the respondent Commission when a review of those issues was not sought before the Veterans' Review Board, VRB'. ............................................... Turning to the second question, the veteran made a claim to the Commission for disability pension on 28 December 1989 for the following disabilities: * Chronic obstructive airways disease (COAD) * Osteoarthritis knees and hips * Otitis externa * High blood pressure. On 8 October 1990 a delegate of the Commission made a determination in the following terms: I therefore determine that osteoarthritis hips and knees, and otitis externa are not war-caused as defined in section 9 of the Act. The disabilities claimed as chronic obstructive airways disease and high blood pressure are not considered to be an injury or disease as defined in section 5 of the Veterans' entitlements Act. The claim in respect of chronic obstructive airways disease and high blood pressure is therefore refused.' The veteran applied to the VRB on 30 January 1991 for a review of the delegate's decision. In his application to the VRB the veteran referred to problems with his knees, hips and ears only. The application was heard by the VRB on 8 August 1991 in the absence of the veteran, at his request. The Commission was not represented. The VRB proceeded to review the application on the papers. The decision under review was expressed in the VRB reasons for decision as follows: The Repatriation Commission decision of 8 October 1990 which determined that osteoarthritis hips and knees and otitis externa are not war-caused.' The VRB affirmed that decision and on 13 March 1992 the veteran, through his solicitor 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.' Mr De Marchi submitted the Tribunal has jurisdiction to review the whole of the decision of the delegate of the Repatriation Commission notwithstanding that the disabilities of COAD and high blood pressure, in the veteran's initial claim to the Commission for a pension, were not sought to be reviewed by the VRB.

............................................... In the present case there was no material before the Tribunal to suggest that the veteran had ever sought to have the Commission decision in relation to the disabilities of COAD and high blood pressure reviewed by the VRB. From the material before the Tribunal it appears the veteran was concerned to have reviewed only those disabilities which were in fact reviewed. Mr De Marchi could not point to any material to the contrary. The decision of the Commission in respect of the entitlement questions of COAD and high blood pressure were not considered by the VRB as it was not requested to do so. The VRB did not receive any evidence on those disabilities. They were not under active agitation; cf. Ward v Nicholls (supra). There had been no indication to the contrary at any stage of the review procedure before the VRB. This is not a case where the VRB had failed to consider a particular disability."

9. These passages suggest that the submissions advanced on Mr. Stafford's behalf to the Tribunal proceeded on the assumption that application for review by the Board of the Commission's decisions concerning chronic obstructive airways disease and hypertension had not been made. In evidence before the Tribunal Mr. Stafford swore that his was the writing on the written application to the Board for review, that he had indicated on the form some of the matters that he felt were in support of his application and that he had requested - as the form shows - representation before the Board by an advocate,but that he believed the nominated advocate had not appeared. He gave no evidence that he had not wished the Board to review the decision concerning chronic obstructive airways disease or the decision concerning hypertension. The application in writing for review by the Tribunal specified "The decision of the Veterans Review Board dated 08/08/91" as the decision to be reviewed. The following was stated on the written application to the Tribunal as "[t]he reasons for this application": "The Veterans' Review Board erred in fact and in law in affirming decision of the Repatriation Commission which determined that OST arthritis hips and knees and otitis externa are not war-caused." The material before this court does not disclose all that was said on behalf of Mr. Stafford by his solicitor to the Tribunal concerning the question whether there was before the Board an application for review of the Commission's decision concerning chronic obstructive airways disease and hypertension. But all the material relevant to a determination of that question was before the Tribunal and Mr. Stafford gave evidence before it. As a body exercising an administrative function the Tribunal was required to determine for itself what was the decision of the Commission that was affirmed. Section 175(1) provides: "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." In construing sub-sec. 175(1) as in force before the word "varied" and the paragraph now lettered "(b)" were inserted by Act No. 78 of 1987 a Full Court of this court assigned to the word "decision", where it first occurs in what is now paragraph (c) a meaning which comprehends everything decided by the Veterans' Review Board in substitution for the original decision of the Commission : Fitzmaurice v. Repatriation Commission, supra. The Tribunal's reasons for decision include a discussion of that and other authorities. The discussion concluded thus: "There is a fundamental difference on the facts in the present case from both Fitzmaurice and Ouonoey. Here the questions of entitlement now sought to be placed before the Tribunal were not before the VRB whereas in both Fitzmaurice and Ouonoey the issues sought to be considered by the Tribunal had been the subject of the VRB decision."

The context makes it plain that in that passage the "questions of entitlement now sought to be placed before the Tribunal" are the questions which a consideration of Mr. Stafford's suggested chronic obstructive airways disease and hypertension would raise. 10. Like the learned primary judge, we are of the opinion that the Tribunal's statement, that "there was no material before the Tribunal to suggest that the veteran had ever sought to have the Commission decision in relation to the disabilities of COAD and hypertension reviewed by the VRB", is wrong in law. The statement in the written application by Mr. Stafford for review by the Board of the decision "Rejection of claim for disability pension" in our opinion had in law the effect of imposing on the Board the obligation to review each decision and determination concerning each condition of entitlement which the claim for pension proposed or the evidence before the Commission suggested. In this case the claim proposed both of those conditions as war-caused diseases. That attracted, in relation to both conditions, the duty specified in s.139(2). Only a clear, unambiguous withdrawal by Mr. Stafford of either condition from the scope of the review, which the Board was satisfied was a withdrawal the effect of which Mr. Stafford understood, could relieve the Board of the duty. In this case the Tribunal, and perhaps the Board, based the conclusion that the two conditions were withdrawn from the Board's consideration on inferences they drew from what was, and what was not, contained in two documents in the response of an obviously unsophisticated man without any appearance of legal knowledge or, in respect of the two documents, of having had legal advice as to what the response should be, to two questions neither of which invites a statement about withdrawal of anything from review. In our opinion the inferences were not open in law. 11. There is a further consideration against taking Mr. Stafford to have withdrawn from review by the Board either of the two conditions. The formal statement by the Commission's delegate of his determination reads: "Osteoarthritis hips and knees, and otitis externa are determined not to be war-caused within the meaning of Section 9 of the Veterans' Entitlements Act, 1986. The claim for pension is refused. The disabilities claimed as chronic obstructive airways disease and high blood pressure are not considered to be an injury or disease as defined in section 5 of the Veterans' Entitlements Act 1986. The claim in respect of chronic obstructive airways disease and high blood pressure is therefore refused as the veteran is not suffering any incapacity." The first sentence of the second paragraph is an extraordinary statement. Each of the conditions is a "physical .... defect" and therefore within the defined meaning of "disease". The second sentence might be understood, considered alone, as accepting that Mr. Stafford had contracted each disease, but as concluding that neither was causing him incapacity. It is only by reference to the delegate's reasons for the determinations that one finds the real basis for rejecting the claims in respect of the two conditions, in this sentence:

"In determining this case, I find that: ............................................... there is no evidence of the veteran suffering a sustained elevated blood pressure so as to diagnose him suffering from hypertension and respiratory function tests revealed no evidence of chronic obstructive airways disease." There is no evidence as to what Mr. Stafford thought the passages quoted meant. It may be he thought that there was some legal obstacle to consideration of either condition. 12. The third question posed in paragraph 3 hereof does not therefore arise in this case. But the court was informed by counsel for the appellant Commission that one of the Commission's objectives in instituting this appeal was to obtain an answer to the question. If the Commission's delegate's decisions that Mr. Stafford did not suffer either chronic obstructive airways disease or hypertension had not been the subject of the application for review by the Board, or if those decisions had been withdrawn by Mr. Stafford from the Board's review, then those decisions would not in our opinion have been susceptible of review by the Tribunal. Neither in Fitzmaurice v. Repatriation Commission, supra nor in any other decision of this court to which we were referred was anything said which would stand in the way of understanding the word "decision" in paragraph 175(1)(a) as comprehending every decision of the Commission which was the subject of review by the Board, but as not comprehending a decision of the Commission which was not the subject of review, either because it was not a decision in respect of which application for review was made or because application to review it had been withdrawn. The right conferred by sub-sec. 175(1) to apply to the Tribunal for review arises only "[w]here a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed". What is not requested under s.135 is not reviewed by the Board. The "decision .... that was so affirmed" comprehends all the decisions of the Commission which the Board had to review in order to reach its conclusion that the ultimate decision of the Commission's delegate - as to whether or not the claimant is entitled to be granted a pension - should be affirmed. If in this case, for example, the Board had determined that Mr. Stafford had rendered operational service, but that no injury was suffered and no disease was contracted while he was rendering operational service, the Tribunal's review would include review of the decision that Mr. Stafford had rendered operational service and of the decisions that no injury was suffered and no disease was contracted during that period of operational service. 13. In Fitzmaurice v. Repatriation Commission supra the members of the Full Court found little or no assistance in policy considerations, and little indication of legislative intention, in construing the word "decision" in what is now paragraph 175(1)(c). But in respect of the same word in paragraph 175(1)(a) there is in our opinion an evident policy consideration in favour of excluding from review by the Tribunal decisions of the Commission which a claimant or an applicant under s.14 or s.15 has deliberately withheld from review by the Board. The legislature has been at pains to ordain an expeditious and comprehensive administrative review by an independent, expert Board of the decisions of the Commission which determine entitlements under the Veterans' Entitlement Act 1986, and to grant a right of further review only after the Board's review has been carried out. A construction of paragraph 175(1)(a) which would permit a claimant or an applicant to by-pass the Board's review would not be consonant with that legislative intention, in our opinion. 14. For substantially the reasons we have endeavoured to express, the learned primary judge concluded that the Board had erred in law in excluding consideration of chronic obstructive airways disease and of hypertension in its review of the Commission's decision, and that consideration of those claimed diseases by the Tribunal was required in its review of the Board's decision. The orders his Honour made were: "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." In our opinion those were the orders the law required. The appeal will be dismissed with costs. I certify that this and the 24 preceding pages are a true copy of the Reasons for Judgment of the Court.

Counsel for the Appellant : Mr. P.J. Hanks Counsel for the Respondent : Mr. M.J. O'Brien and Mr. D. De Marchi Solicitors for the Appellant : Australian Government Solicitor Solicitors for the Respondent : De Marchi & Associates Date of Hearing : 16 June, 1995