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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Repatriation Commission v Forrest and Grundman
Heerey J
20 October 1998
[Full Text]
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The Repatriation Commission applied to the Federal Court for an order of review of a decision of the Tribunal which reserved "liberty to apply" in relation to another pending application by Mr Grundman.
Background
On 20 July 1993, Mr Grundman lodged an application for increase in pension. On 29 July 1993, he lodged a claim for pension in respect of carcinoma of prostate. The Commission determined that his carcinoma of prostate was not war-caused and continued his pension at 50% of the General rate. The VRB subsequently affirmed both decisions of the Commission. It was submitted that the VRB could assess his incapacity from bilateral orchidectomy on the basis that this was performed because his irritable colon, which was accepted as war-caused, prevented normal ray treatment for the prostate cancer. The VRB rejected this submission but suggested that the application for increase should be treated as an informal claim for acceptance of bilateral orchidectomy.
On 26 August 1994, Mr Grundman applied to the AAT for review of the VRB's decisions (AAT No V94/787). His pension was subsequently increased to 60% of the General rate by the Commission and to 70% by the VRB. On 9 February 1996, he lodged a further application for review to the AAT (AAT No V96/157).
The AAT heard the first application (V94/787) on 21 June 1996. It accepted the veteran's argument that the existence of his irritable bowel was a contributing factor in the decision to perform the orchidectomy and that "it necessarily follows that the relationship between war service and the orchidectomy cannot be excluded beyond reasonable doubt". It did not accept the Commission's submission that treatment for a non war-caused disability could not itself be regarded as war-caused. For these reasons the AAT considered that "the condition of bilateral orchidectomy shall be taken to be war caused".
The AAT remitted the assessment of rate of pension to the Commission "for consideration with liberty to apply when application number V96/157 is heard."
On 28 July 1997, the AAT made a "direction" in the following terms:
"The Tribunal directs that when application No V96/157 is heard, it has jurisdiction to consider the assessment issue in relation to the claim made on 29 July 1993."
Commission's submissions
The Repatriation Commission submitted that the decision of the AAT on 21 June 1996 was final and operative (see Australian Broadcasting Tribunal v Bond (1990) 171 CLR 321 at 337) and not partial or interim. This was confirmed, it was said, by the fact that it had remitted assessment to the Commission which then made a further determination on 27 March 1997, which the veteran had not sought to review. Thus the AAT was functus officio; its statutory function had been performed and there was no further act or function for the person authorised under the statute to perform. It was said that it was not appropriate to reserve liberty to apply which was not "inherent in a judgment or order which is final in nature": (see Fylas Pty Ltd v Vinyl Pty Ltd [1992] Qd R 593 at 597-8).
Court's conclusions
Heerey J rejected the Commission's submission that the AAT was functus officio. He observed:
"It is clear that the assessment application and entitlement claim were separate and independent matters and were treated as such by the Commission, the VRB and the AAT. In particular, the reasons for the decision of the VRB deal with the two matters separately. When the AAT in 1996 decided in favour of the veteran in relation to the entitlement claim, the Act required that the rate of pension should be assessed having regard to that determination: s 19(3) and (5). The AAT, standing in the shoes of the Commission, could have done this itself, but it took the usual and appropriate course of remitting the question of assessment to the Commission, as it was empowered to do under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975.
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"It is plain from the AAT's 1996 decision that, unlike the VRB, it did not consider the merits of the assessment application. The AAT took the view that it was more appropriate to do this when the application for review in V96/157 came on for hearing."
Formal decision
Heerey J dismissed the Commission's appeal.
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