Mrs Bastiani claimed a war widow's pension in 1966. The claim was subsequently rejected by a Repatriation Board, the Commission, and a War Pensions Entitlement Appeal Tribunal. In 1983, she applied to the Commission for a review of its earlier decision. In 1984, the Commission granted a war widow's pension to Mrs Bastiani with effect from 9 December 1981.

In applying for special leave to appeal to the High Court, counsel for Mrs Bastiani submitted that the Full Court of the Federal Court erred in the construction it placed on the legislation. It was submitted that the discretion contained in s�27 is constrained by the provisions of s�101, which creates the liability in the Commonwealth from the date of death and that other than the provisions of s�101, there is no statutory restriction on the date from which the pension is to operate with regard to a review under s�31.

Counsel for Mrs Bastiani submitted that a determination based on matter unrelated to the Act (the date of acceptance of a medical hypothesis by the Administrative Appeals Tribunal) leads to an absurd result that cannot be maintained and that it was necessary for the High Court to make it clear that, in fixing dates for pensions, regard should be had only to those matters which are relevant under the Act.

Judgment: The Acting Chief Justice, in delivering the judgment refusing special leave to appeal, suggested that the discretion to set an effective date was more or less unfettered except by reference to the scope and purpose of the legislation. There are no criteria prescribed in the legislation and that makes it all the more difficult for a Court to say that the exercise of a discretion is vitiated by reference to the consideration of particular matters, or a failure to consider particular matters.

The Court agreed with the conclusion of the Full Court of the Federal Court that the delegate had a discretion under para 27(1)(d) to determine the date of commencement of the pension and that this discretion was not constrained by ss�101, 29, or 31 of the Act. The Court found that the delegate's exercise of discretion did not miscarry by reason of her taking into account irrelevant considerations or failing to take into account relevant considerations.

-Bruce Topperwien

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Mrs Bastiani was represented by Mr R J Meadows, instructed by Freehill, Hollingdale & Page.

The Commission was represented by Mr R S French and Miss C Bahemia, instructed by the Australian Government Solicitor.

The application for special leave to appeal to the High Court was refused with costs.