Re Donald Francis Mahon and Repatriation Commission [1991] AATA 227 (17 October 1991)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: DONALD FRANCIS MAHON
And: REPATRIATION COMMISSION
No. V90/898
AAT No. 7465
Veterans' Affairs

COURT

ADMINISTRATIVE APPEAL TRIBUNAL
VETERANS' APPEALS DIVISION
Miss W.J.F. Purcell(1) (Senior Member)

CATCHWORDS

Veterans' Affairs - Practice and Procedure - ruling on jurisdiction of Tribunal at Directions Hearing.

Veterans' Entitlements Act, 1986 ss. 14(5) and (7), 135(1), 174, and 175

Re Ward v Nicholls and Others (1988) 16 ALD 353

Re: Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167

HEARING

MELBOURNE
17:10:1991

ORDER

The Tribunal has jurisdiction to hear the application for review filed on 24 December 1990.

DECISION

At the conclusion of the hearing I indicated to counsel that I had reached my decision in this matter. I gave oral reasons for decision. Counsel requested that written reasons be provided.

2. The oral Reasons for Decision were recorded by the Commonwealth Reporting Service. I attach the extract of the transcript which, to the best of my recollection, records my extempore and unedited Reasons for Decision.

3. On 10 September 1987 the applicant (the veteran) lodged a claim in accordance with the provisions of the Veterans Entitlement Act 1986 (the Act) for acceptance of hypertension, gout, cervical and lumbar spondylosis and bi-lateral hallux vulgas as war caused disabilities. On 19 May 1988 the Repatriation Commission, (the Commission) rejected the claim. The decision was affirmed by the Veterans Review Board (the VRB) on 3 April 1989.

4. On 12 August 1988 (prior to the VRB determination of 3 April 1989) the veteran lodged a further claim for acceptance of hypertension and cervical and lumbar spondylosis as war caused. On 22 September 1989 the Commission rejected cervical and lumbar spondylosis but accepted essential hypertension as a war caused disability with effect from 12 May 1988. In relation to the veteran's application of 15 December 1988 for an increase in pension, pension was determined to continue to be payable at 75 per cent of the general rate.

5. The veteran applied for review of the decision pursuant to section 135(i) of the Act which provides:
Where a person (a) who has made a claim for a pension

in accordance with section 14; (b) who has made
application for a pension in accordance with section 15; or
(c) who has made an application for attendant allowance
under section 98 -
is dissatisfied with any decision of the commission in
respect of the claim or application (including a decision
under section 20 or 21 approving a date from which
payment of a pension, or payment of a pension at a higher
rate may be made, but not being a decision under
subsection 19A(1) the person may, subject to this Act,
make application to the board for a review of the decision
of the commission.

6. There were two hearings before the VRB on 29 June 1990. At the first hearing which considered the commission's rejection of cervical and lumbar spondylosis:

It was pointed out to the veteran and his representative
that the purported claim of 12 August 1988 appeared to be
invalid.

7. The VRB noted that sections, sub-sections 14(5)(7) of the act provide:

(5) Where (a) a veteran has made a claim for a pension
under this section in respect of incapacity from a particular
injury or
disease and (b) the claim has not been finally determined:
The veteran is not empowered to make another claim for a
pension under this section in respect of incapacity from that
injury or disease.
(7) For the purposes of this section, a claim is finally determined
when either (a) a decision that has been made in respect of the
claim is not subject to any form of appeal or review or (b) a
decision that has been made in respect of the claim was subject to
some form of appeal or review but the period within which such
an appeal or review could be instituted has ended without an
appeal or review having been instituted.

8. The board said:

The question arises as to how this matter should be dealt with by
the board. In Ward v Nicholls (1988) 16 ALD 353 Wilcox J said
at pages 360-361:
It was an incorrect choice of language to say that the
board had no jurisdiction on the matter. The board had
the jurisdiction given to it by section 139 of the Veterans
Entitlement Act ... The Veterans Review Board is always
in the position of having to decide whether to affirm, to
vary or to set aside the decision of the commission.

9. However, the court suggested that where there is a statutory bar:

It is correct to say that the board would have been bound
to have affirmed the decision under review for the reason
that it was not free to give effect to the claim (page 361).
Thus it is clear from Ward's case that the question is not one of
jurisdiction but whether there is a statutory bar on the board from
altering the decision under review. If there is a statutory bar
then the board must affirm the decision under the review on the
ground that the act prevents the board from making any other
decision. This does not mean that the board necessarily agrees
with the reasons given by the commission or even that it
necessarily agrees with the actual decision made but that as a
matter of law it has no choice but to affirm the decision.

10. On 24 December 1990 the veteran applied to this tribunal for review of that decision.

11. The second VRB hearing on 29 June 1990 related to the commission's decision to continue payment of pension at 75 per cent of the general rate following essential hypertension being determined to be war-caused. The VRB decided to set aside the decision and substituted a decision that pension be assessed at 100 per cent of the general rate to operate from and including 9 November 1988.

12. During consideration of the application before this tribunal the status of the veteran's claim of 12 August 1988 was questioned by the commission. On 17 May 1991 the commission's senior determining officer published a decision dealing with an outstanding application for increase and recording the fact that the claim of 12 August 1988 and the subsequent decision of 22 September 1989 were invalid. The tribunal and the applicant's representative were notified of these developments during a telephone directions hearing on 22 May 1991.

13. This matter came on for a directions hearing to enable the question of the tribunal's jurisdiction to be considered. The veteran was represented by Mr De Marchi and the commissioner by Mr Fletcher. The commission submits that the tribunal's jurisdiction to review decisions made by the commission arises from section 175 of the Act. This section empowers the tribunal to affirm, vary or set aside a commission decision which has been reviewed by the board upon a request made under section 135 and has been affirmed, varied or set aside. In this case the lodgment of a further claim for the same conditions which was lodged by the veteran clearly invoked section 14(5) of the act which resulted in the claim of 12 August 1988 being void. Therefore there was no valid claim before the delegate on 22 September 1989 or before the VRB on 29 June 1990. There is no valid reviewable decision therefore before this tribunal.

14. The applicant maintains that the act is beneficial legislation and should be interpreted liberally. In accordance with section 119 of the act the commission and therefore this tribunal is not bound by technicalities but can act according to substantial justice and the merits of the case. He argues that the VRB decision to increase the rate of pension to 100 per cent of the general rate altered his status but the commission did not apply for review of that decision and is estopped by its conduct therefore from submitting that the decision under review is a nullity.

15. The applicant argues further that the tribunal has jurisdiction pursuant to section 175 of the act to review a decision of the commission which has been reviewed by the VRB; the tribunal has jurisdiction therefore to hear this application.

16. The tribunal's jurisdiction to review decisions arises pursuant to sections 174 and 175 of the Act which as far as is relevant provides 174(1):

In this part, unless the contrary intention appears, "reviewable
decision" means a decision in respect of which application may
be made to the Administrative Appeals Tribunal under section
175.

Section 175(1):

Where a decision made by the commission is being 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 the application may be
made to the Administrative Appeals Tribunal for a review ...

17. The decision under review has been reviewed by the board pursuant to section 135 of the Act and I cannot accept the commission's argument that the tribunal does not have jurisdiction to review the decision. As Wilcox J said in Ward at page 361:

If as I have suggested the effect of what the second board did was
to affirm the decision of the commission, then it is plain that the
Administrative Appeals Tribunal had jurisdiction in the matter.
It would be a very odd situation if the position were as perceived
by Mr Bannon, that is to say, if the appointed first instance
reviewer, the Veterans Review Board, erroneously found that it
had no jurisdiction and the Administrative Appeals Tribunal
which is set up by statute to review on their merits decisions of
that board was then precluded from considering for itself
whether that board in fact had jurisdiction and if so what
decision it should have made. There would be a lacuna in
the system of administrative review disappointing to those
who had laboured to set up the comprehensive system
which appears to be provided by the system. I cannot
think that this is right. I think that the true position is that
the Veterans Review Board is always in the position of
having to decide whether to affirm, to vary or to set aside
a decision of the commission and that whatever decision
it makes that decision is subject to review by the
Administrative Appeals Tribunal...

18. In Re Brian Lawler Automotive Pty Ltd v Collector of Customs 1ALD 167, it was argued for the Collector of Customs that as the decision taken was without authority it should be treated as if it was a nullity and was therefore a decision "that could not be reviewed by the tribunal." The tribunal said, however, that a decision was a fact and it had to be distinguished from the legal consequences that flowed from it. Brennan J said at page 180:

Where a decision is made beyond power the legal effect
which the decision-maker seeks to achieve is denied. But
that says nothing as to whether the decision may be
reviewed, quashed or otherwise affected by order of a
court or of an appeal tribunal... Where
"decision" is used in the provisions of the Administrative Appeals
Tribunal Act relating to a right to apply for review it is referring
to a decision made in fact and not to the effect which the decision
may have under the power and the intended exercise of which it
was made.

19. The review of the commission's decision is a fact and I consider that in accordance with the principles outlined in Lawler and Ward the tribunal has jurisdiction to hear the application for review. For these reasons the tribunal decides it has jurisdiction to hear the application for review filed on 24 December 1990.