Federal Court of Australia
Dean v. Repatriation Commission
Appeal from the Administrative Appeals Tribunal
Before Pincus J
Heard - 14 April 1989 - Brisbane
Judgment - 14 April 1989 - Brisbane
Appeal dismissed
Mr Dean was represented by Mr JC Crowley QC with Mr KJ McGhee, instructed by Foley & Foley
The Commission was represented by Mr J Logan, instructed by the Australian Government Solicitor.
The following judgment was handed down in Brisbane on 14 April 1989 -
PINCUS J. This is an appeal under s.44 of the Administrative Appeals Tribunal Act 1975. It relates to a decision of the Tribunal affirming a decision of a Veterans' Review Board which, in turn, affirmed a decision of the Repatriation Commission as to the applicant's pension for service-related disabilities. The Commission increased the applicant's pension rate to 80% under the legislation in force at the time of its decision, namely 15 May 1985. The legal effect of fixing the rate does not require explanation.
The relevant part of the Commission's decision reads as follows:
"Disability pension increased to eighty persent of the General Rate with effect from 15 May 1983."
The Tribunal used what it referred to as the "old Guide" in determining the extent of incapacity, and its having done so was the principal criticism advanced on appeal. Mr Crowley QC, who led Mr McGhee for the applicant, contended that the "new Guide" also known as GARP, should have been used. These Guides, the legal status of which is explained below, set out criteria for assessing the pension rate, and the like.
The only other point taken was a criticism of the Tribunal's view of the facts, but it is convenient to defer discussion of that.
The point as to the new Guide depends for its resolution entirely on the dates of relevant decisions. As I have mentioed, the Commission's decision was given on 15 May 1985. The Veterans' Review Board decision is undated, but the hearing before that Board is noted as having occurred on 22 January 1986. The Tribunal heard the application to it on 5 December 1986 and 28 January 1987, and gave its decision on 27 July 1988. The appellant's contention was that these dates were such as to require the Tribunal to have regard, wholly or inpart, to the new Guide, GARP.
If the Tribunal was, as the applicant contends, obliged to apply GARP, that obligation was created by s.29(4) of the Veterans' Entitlements Act 1986, which reads as follows:
"Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in , and in connection with, the carying out by it, of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions."
Section 29(1) of the same Act empowered the Commission to prepare such a guide, but s.29(3) depreived it of effect unless and until approved by the relevant Minister. Approval of GARP was given on 22 May 1986.
Section 29(1) reads as follows:
"The Commission may, from time to time, prepare a written document, to be known as the 'Guide to the Assessment of the Rates of Veterans' Pensions' setting out -
(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum."
It will be seen that both the decision of the Commission and that of the Board were given before GARP was approved, but the Tribunal's decision was given later. Fortunately, the legislature did not overlook this sort of problem. The Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 as amended by the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Amendment Act 1986, both of which came into force on the very day on which GARP was approved, deal specifically with use of GARP in pending matters. Section 27 of the former Act as amended by the latter reads in part as follows:
"(1) Subject to sub-section (2) of this section, sub-sections 22(4) and 29(4) of the Veterans' Entitlements Act do not apply to a determination of the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, made by the Commisison before 1 November 1986.
…
"(2B) Subject to sub-section (2C) of this section, subsections 22(4) and 29(4) of the Veterans' Entitlements Act do not apply to a determination with respect to the degree of incapacity of a veteran from war-caused injury or war-caused disease or both -
(a) made by the Board upon a review of a decision of the Commission made by the Commission before 1 November 1986; or
(b) made by the Administrative Appeals Tribunal upon a review of a decision of the Board affirming or setting aside such a decision of the Commission."
Section 29(1) and s.29(4) of the Veterans' Entitlements Act speak of "extent" of incapacity, whereas s.27 of the transitional Act speaks of "degree" of incapacity, but so far as relevant they mean the same.
It will be noted that s.27(1) which has just been quoted, has effect subject to sub-s.(2) and that sub-s.(2B) has effect subject to sub-s.(2C). For reasons which do not require to be stated, neither sub-s.(2) nor sub-s.(2C) has any bearing on this case.
Sub-section (2B) does, however, cover the matter. It makes s.29(4) of the Veterans' Entitlements Act, the provision on which the applicant relies before this Court, inapplicable to such a determination as is in question, made by the Tribunal upon a review of a Board decision affirming "such a decision of the Commission". The word "such" is a reference back to decisions of the kind mentioned in para (a), ie, decisions made before 1 November 1986. Here, the Commission's decision was made in 1985.
Therefore, s.29(4) is inapplicable. Counsel referred to Donnelly v Repatriation Commission (1987) 73 ALR 350, where the Commission's decision was, as here, made in 1985, nevertheless, the Tribunal used GARP. The argument there was that the Tribunal had made an error in that it had believed itself to be bound to use GARP. The Full Court held that the Tribunal could use GARP if it wished to do so, and that the Tribunal had not regarded itslef bound by GARP. That problem does not arise here, for the Tribunal did not use GARP at all, but used the "old Guide".
Mr Crowley argued that nothing in s.27 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, the relevant part of which is quoted above, affected the application of s.29(4) of the Veterans' Entitlements Act to the case. I cannot agree and think the opposite view plainly to be correct. Some reliance was also placed on s.7 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, which deals with the rate of pension, but seems to me to have no relevance to the problem raised by the applicant's argument. Mr Crowley also argued that in s.27(1), quoted above, the word "determination" means "hearing" or "result of hearing". It does not matter which, for the Commission's decision was given in 1985 - ie, before 1 November 1986.
In my opinion, the contention that the Tribunal made a legal error in failing to regard itself as bound by s.29(4) of the Veterans' Entitlements Act to use GARP in performing its task is unsound; it is true that the Tribunal apparently did not think it was obliged to apply GARP, but its view on that subject is in accordance with the plain language of the transitional provisions which have been quoted.
The only other point taken was that the Tribunal was in error in expressing the following view:
"On the medical evidence before us from the various doctors whose reports we tendered, we found little ground to disagree with the assessment made by Dr Kirkpartick in relation to the first six disabilities set out in the 'Incapacity Assessment of Service Related Disabilities'."
This sentence, which is in para 12 of the Tribunal's reasons, was said to be erroneous in that the Tribunal should have accepted, as to psychiatric aspects of the case, the assessment of Dr McIlwrath. The contention was that Dr McIlwrath, as a psychiatrist, was better qualified to assess the degree of the applicant's anxiety state than Dr Kirkpatrick, who is not a psychiatrist. Counsel contended thatthe Court could entertain this ground of attack on the Tribunal's decision because, once seized of a case involving a question of law, the Court had wide enough powers under s.44(5) of the Administrative Appeals Tribunal Act 1975 to deal with factual points. In my opinion, that is not so. The appeal must be "on a question of law", in which expressions the singular includes the plural, and merely factual grounds of attack are beyond the Court's jurisdiction under s.44: Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 at p.60 (Full Court). The applicant relied in reply upon the decision in TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at p.182, perhaps for the proposition there stated that it is a question of law whether material before the Tribunal reasonably admits of a particular conclusion. Here, there was simply a conflict of opinion between two or more doctors and its resolution was a matter for the Tribunal. If, however, the applicant intended to raise before me the doubt expressed, at the same page of the report, as to the competence of Parliament to invest a federal court with jurisdiction to decide a question of law only, I must say that such doubt seems to me groundless.
The application must be dismissed.
THE COURT ORDERED THAT:
The application be dismissed.