The plaintiff, Mr Tanner, brought an action in the High Court against the Repatriation Commission and the Commonwealth for the recovery of �66 18s arrears of war pension. On 22 March 1938, a War Pensions Entitlement Appeal Tribunal granted the plaintiff pension at the rate of �4 4s per fortnight. Upon an appeal by the Repatriation Commission to the same tribunal, brought under subsection 45K(9) of the Australian Soldiers' Repatriation Act 1920, the tribunal set aside the decision to grant pension. The plaintiff disputed the validity of that decision. The arrears claimed were in respect of the subsequent period. The Commission demurred to the whole of the Statement of Claim on the ground, inter alia, that the decision of the tribunal setting aside the grant of pension was final and conclusive and no appeal lay to any court.

LATHAM CJ. The plaintiff, William Ernest Tanner, sued the Repatriation Commission, and by amendment the Commonwealth of Australia, for �66 18s, claimed to be due to him for arrears in respect of a war pension which had been granted to him. The case came before the Full Court upon a demurrer, alleging that the Statement of Claim disclosed no cause of action.

The plaintiff was qualified, as a returned soldier or a member of the forces, to receive a pension under the Australian Soldiers' Repatriation Act 1920-1936, s.23. He applied for a pension, but his application was rejected. Upon appeal by him to a War pensions Entitlement Appeal Tribunal, a pension was granted to him on 22 March 1938, as from 31 May 1937. The pension was then paid to him until it was cancelled as hereinafter stated. In April 1938, the Commission informed the plaintiff that it was contemplating an appeal under s.45K(9) of the Act. The Commission then requested the plaintiff to attend a doctor for medical examination. The plaintiff complied with the request, and was examined. The Commission then lodged an appeal to the tribunal, and informed the plaintiff that it was appealing. The chairman of the tribunal gave to the plaintiff notice of further evidence upon which the Commission relied and of the date of the hearing of the appeal. The appeal was heard, and the decision was in favour of the Commission. The grant of pension made on 22 March 1938, was set aside.

The defendant [sic] claims that the original grant to him of the pension was valid and effective, but that the subsequent cancellation of the pension by the Appeal Tribunal was invalid and ineffective, so that the original grant remains in full force and effect. The Act provided in s.23 for the liability of the Commonwealth to pay pensions in accordance with the Act, and in s.26 for the grant of a pension by a board which can act for the Commission under s.12. The original grant of a pension to the plaintiff is not challenged by the defendant, and he is entitled to the continuance of the pension unless the decision of the Appeal Tribunal upon the Commission's appeal can be shown to be devoid of legal effect.

Section 45K of the Act deals with appeals to Appeal Tribunals against determinations of the Commission, and in sub-s.(9) provides for an appeal by the Commission to an Appeal Tribunal. Subsection (9) is as follows:-

The sub-sections mentioned in sub-s. (9), namely, sub-ss.(3), (6) and (7), relate to appeals by a soldier to an Appeal Tribunal against a determination of the Commission in a case where no further evidence is tendered upon the appeal-sub-s.(3): or where further evidence is then tendered-sub-s.(6): or where further evidence is tendered to the Commission, and the soldier's claim is refused by the Commission. In the present case the Appeal Tribunal made the original grant of the pension upon an appeal which was made under sub-s.(3) or under sub-s.(6). The Commission then appealed within six months, as required by sub-s.(9).

Any pension which is granted under the Act is granted subject to the conditions imposed by the Act. One of those conditions is that a determination of an Appeal Tribunal may be set aside upon appeal to that tribunal under s.45K(9). Although the words "shall decide the appeal" which appear in earlier sub-sections of s.45K are not repeated in sub-s.(9), it is quite clear that the intention of the Legislature is that upon an appeal under sub-s.(9) the Appeal Tribunal should have power to cancel a pension previously granted. This Court has no jurisdiction to inquire into the merits of the plaintiff's claim. The statute entrusts decisions upon merits to the Commission, a Board and an Appeal Tribunal. We can only inquire whether the Appeal Tribunal acted within its powers in cancelling the pension which had previously been granted.

The plaintiff contends that the effect of s.45W(2) is to prevent any effective appeal by the Commission to a tribunal. Section 45W(2) is as follows:-

The argument is that the Appeal Tribunal, in its earlier decision acted under this section, and that when this provision has once been applied, there is an end of the matter. This objection is based upon a misunderstanding. Section 45W is not an independent source of authority. It is a general direction as to procedure which is applicable in the hearing of all appeals. It does not itself confer any power upon an Appeal Tribunal to hear and determine appeals. The plaintiff next contends that, when the Commission, on 14 April 1938, informed the plaintiff that it was contemplating an appeal, it did not have in its possession the further evidence obtained as a result of the medical examination made on 28 April 1938, upon which it relied upon the hearing of the appeal at a later date. There is no substance in this objection. The Commission did not appeal until in fact it was in possession of the further evidence, and in any case it would be for the Appeal Tribunal to consider upon the hearing of the appeal whether or not there was in fact further evidence relating to the appeal which it was authorised to consider under sub-s.(9).

The plaintiff objects to the action of the Commission in notifying him of its intention to appeal in other than a formal manner and in requesting him to attend for medical examination. These objections cannot possibly affect the validity of the decision of the Appeal Tribunal.

Other objections are that there was no evidence or no proper evidence upon which the Appeal Tribunal could act in cancelling the pension. This is not an objection which a court can consider. As was decided in the case of R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, an Appeal Tribunal is not a court of law, but a statutory body set up to carry out the functions described by the Act. There is no appeal from the tribunal to this Court or to any other court.

Another objection was based upon the fact that the Appeal Tribunal did not give the plaintiff notice of its decision in a particular prescribed form. The prescribed form in question evidently applies only to a case where a soldier is the appellant and not where the Commission is the appellant. But regulation 19 of the Statutory Rule No.136 of 1935 provides that strict compliance with the forms in the schedule shall not be required, and that substantial compliance therewith shall suffice for the purposes of the Regulations. The Appeal Tribunal did give notice of the decision to the plaintiff. But a failure to give notice of a decision otherwise validly reached would not vitiate the decision.

It must be held that the Statement of Claim discloses no cause of action. The demurrer, therefore, should be allowed. As the demurrer goes to the whole cause of action of the plaintiff, there should be judgment for the defendant in the action-see Rules of Court, Order XXIV, rule 10.

STARKE J. I agree.

DIXON J. I agree.

 

 

 

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