Bruce Topperwien
Executive Officer
Veterans' Review Board

This paper discusses the scope, nature, and manner of exercise of the powers of the Board when reviewing a decision made by the Repatriation Commission on a claim for a pension or an application for increase in a pension. It particularly focuses on some difficult technical issues that face the Board on occasion, namely, the power to change diagnosis of an injury or disease, the component nature of decision-making within the composite determination of a claim or application, and decisions concerning jurisdiction.

The Board, being a creature of statute, only possesses those powers given to it, expressly or by necessary implication, by the Veterans' Entitlements Act 1986.^[1] Subsections 139(3) and (4) set out the powers of the Board to dispose of an application for review. The Federal Court has held that the Board does not even have the power to dispose of a matter by declaring it has "no jurisdiction". This is because no such power is given to it in section 139.^[2]

The Board's powers are also affected by common law doctrines such as functus officio and res judicata (unless excluded by legislation^[3]) and the Constitutional doctrine of separation of powers. The way in which the Board exercises its powers is affected by other common law doctrines such as procedural fairness and legitimate expectation.

The effect of subsections 139(1) and (2) of the Act is that the Board must decide matters de novo.^[4] The nature of the hearing is not that of an "appeal" in the strict sense, but a "review". The Board must decide all relevant matters to its satisfaction and arrive at the correct or preferable decision, not being confined in any way by the decision, findings, or reasoning of the primary decision-maker, but by the scope of the original claim or application and the scope of the application for review.^[5]

While the decision under review does not confine the consideration of the Board, the terms of that decision are the focus of attention when the Board comes to drafting the terms of its decision. Only if the terms of the decision under review exactly match the decision the Board considers is the correct or preferable decision that should be made in relation to the initiating claim or application, can the Board affirm the decision under review.

If the Board considers the decision should be different in any way, it can do one of two things: it can vary that decision; or it can set aside that decision and substitute the decision that the Board considers is the correct or preferable one.

The Board cannot vary a decision then affirm "the decision as varied" because it has no power to review its own decisions. Once the Board varies a decision, it is functus officio (that is, it has exhausted its powers) in relation to that decision. In any event, any affirmation of a decision as varied is obviously superfluous.

A number of cases have appeared where the Board has varied the decision under review by changing the diagnosis of the disease that had been rejected as being war-caused, and then has purported to affirm the decision as varied (presumably to indicate that the Board finds that the disease is not war-caused). If the text of the decision under review has been varied only by changing the diagnosis, that is the end of the matter. Making such a variation to the decision under review indicates that the Board has decided that the veteran's disease, given its proper diagnosis, is not war-caused. This is so because the Board has decided that the only change it would make to the text of the decision under review is the name of the disease. However, if such a variation decision is made, it would probably be useful, for the benefit of the applicant, to state, after the formal decision, something to the effect that, "This means the Board has decided that [the disease] is not war-caused".

It is always the text of the decision under review that is affected (if at all) by the Board's decision. If the end result of a review is merely to change the diagnosis of the disease that was determined not to be war-caused, then that is the only decision the Board can (and need) make. It can make that decision in two ways: it can vary the decision under review by changing the name of the disease; or it can set aside the decision and substitute a new decision that [the properly diagnosed disease] is not war-caused. (Note: "affirm" does not mean "not war-caused" and "set aside" does not mean "war-caused"-"affirm" and "set aside" are merely words stating what the Board is doing to the text of the decision under review.)

Subsection 139(3) indicates that "affirming", "varying" and "setting aside" are mutually exclusive alternatives. They are not capable of being used together or in series on the one decision. Once one of these powers has been exercised in relation to a particular decision under review, that is the end of the Board's powers in relation to that decision-it cannot affirm a decision that the Board, itself, has varied.

For similar reasons, a decision cannot be "varied by changing the diagnosis to [new name] and affirmed in all other respects". Additionally, there is no power to affirm part of a decision if that part is not a complete decision in its own right.

Subsection 135(1) indicates that there might be more than one decision capable of review within a "composite" decision disposing of a claim for pension.

For example, a veteran's claim for pension in respect of "difficulty in walking" might lead to a composite decision made up of the following component decisions:

• Osteoarthrosis of knees is war-caused;
• Ischaemic heart disease is not war-caused;
• Pension is assessed at 30% of the general rate; and
• The Commonwealth is liable to pay pension from 1 June 1998.

The composite decision is capable of review, as is each of its component decisions, but the Board is not bound to consider only those component decisions if it finds that there are other, or different, component decisions that should have been made.

Unless the veteran indicates that there is some aspect of the composite decision that he or she does not want reviewed, the Board has a duty to review the entire composite decision. This is done by reconsidering the original claim in the same manner as the Repatriation Commission could, and should, have done.^[6] That is:

• What are the injuries and/or diseases that give rise to the incapacity described by the veteran as "difficulty in walking"?
• Are they war-caused?
• If so, what is the operative date for acceptance of the injury(ies) or disease(s) as war-caused?
• What rate or rates of pension apply throughout, and beyond, the assessment period?

If the veteran chooses to restrict the Board's review by indicating satisfaction with one of the component decisions (for example the acceptance of osteoarthrosis of knees as being war-caused), the Board cannot review that aspect of the composite determination of the claim.^[7]

Additionally, the veteran can restrict the Board's review of the composite decision by indicating satisfaction that the only other disease for which the veteran seeks a pension in relation to "difficulty in walking" is the ischaemic heart disease. For example, the Board might find evidence that the veteran also suffers from osteoarthrosis of the ankles, which contributes to the veteran's "difficulty in walking". But if the veteran indicates that he or she does not want the Board to consider whether that condition is war-caused, the Board cannot make a decision on that matter (even though it was a decision open to have been made by the Repatriation Commission). However, the Board cannot ignore the existence of that disease when it comes to the assessment of the rate of pension in respect of the veteran's incapacity from war-caused injury or disease (see partially contributing impairment in Chapter 19 of GARP).

Unless there is an indication (either expressly or by necessary implication) that the veteran does not want the matter reviewed, the Board is entitled to, and should, consider any other injury or disease not considered by the Repatriation Commission that the Board considers goes towards answering the veteran's claim in respect of "difficulty in walking", and determine whether or not it is war-caused. To fail to do so is an abrogation of the duty required by s. 139(2) (that is, to review de novo the determination of the veteran's claim for pension).

Because each component decision is capable of review in its own right, each can be finalised without affecting any other decision that might be made at a later point. Occasionally, assessment applications have been adjourned pending the outcome of an entitlement matter (either at the primary or a review level). There is no logical, legal or moral reason for doing this. Indeed, it is nearly always to the applicant's advantage, and in the interests of justice, for a matter of any type to be finalised as soon as it can be finalised.

If the Board chooses to defer the assessment of pension in anticipation that the veteran might have another injury or disease accepted as war-caused, it means that the veteran might not be receiving the pension that he or she is entitled to receive for some time. If upon assessing pension the Board finds that, on the current accepted disabilities, pension is being paid at the proper rate, then the Board has no option but to affirm the decision under review. Such a decision cannot, in any way, affect the assessment that will follow if the other injury or disease is subsequently accepted as war-caused.^[8]

The existence of an outstanding entitlement matter is an irrelevant consideration when the Board is considering an assessment application and it would be an error of law for the Board to decide to adjourn the assessment case for that reason.^[9]

Another important matter concerning assessment decisions is that every assessment decision is an "up-to-date" assessment of pension. This means that the Board must assess the rate or rates of pension applicable throughout the assessment period from the application day (the day when the claim or application for increase in pension was made) until the date of its decision. Thus, if, between the time the Repatriation Commission made the assessment decision under review and the date of the Board's decision, a new disability has been accepted as war-caused, the Board has a duty to take that new disability into account in its assessment, even though that disability was not taken into account by the Commission in the decision under review.^[10]

It is often the case that, as an injury or disease progresses, the effects of that progression need to be taken into account in the way in which the injury or disease is described in order that it can properly be dealt with for both treatment and pension purposes. The Repatriation Commission has a power, in exercising its general administration of pensions under sections 180 and 181 of the Act, to amend a diagnosis to reflect more accurately the nature of the injury or disease which had previously been accepted. However, there is no power in the Act to expand the scope of a claim once it has been made, or to expand an application for increase in pension to include entitlement issues, or to change the diagnosis of an injury or disease determined in respect of a previous (and finally determined) claim to reflect a different injury or disease (not merely a change in nomenclature), without there being a new claim made for that injury or disease.

GARP recognises the law as declared in Owen v. Repatriation Commission^[11] and Langley v. Repatriation Commission^[12] that a sequela of an injury or disease can be assessed as part of the incapacity of an injury or disease only if it does not constitute a separate diagnosable injury or disease in its own right, but is merely part of the natural progression of an already accepted war-caused injury or disease.

If the war-caused injury or disease has the effect of causing a new injury or disease, a new claim must be made for that new injury or disease before it can be accepted as war-caused. The new injury or disease cannot be accepted as a mere formality just because it has been caused by an already accepted injury or disease. There must be a connection found (in accordance with the relevant Statement of Principles that is in force at the time of the determination) of that disease with the veteran's eligible service.^[13]

However, where there is no new disease or injury as such, but merely a worsening of the existing disease or injury to the extent that the current description might be misleading, then it is appropriate to alter the description of that disease to reflect more accurately the nature of the disease and the incapacity that has now arisen from that disease.

It is impermissible to change the diagnosis of an accepted injury or disease to a different injury or disease. If it is found that the veteran does not suffer from the accepted injury or disease, no incapacity can be said to arise from it, and the incapacity from that injury or disease must be assessed at nil. That injury or disease cannot be changed to another injury or disease, because to do so requires making a new decision as to war-causation-a matter not usually before the Board, because it can only arise through the review of an entitlement decision on a claim for pension.

However, where an assessment decision is one component decision in a composite decision that answered a claim for pension in which the doubtful injury or disease was accepted, unless the applicant has excluded the entitlement decision from review by the Board, the Board has the duty to deal with the entitlement issue as well. It will often be the case that the veteran has excluded the entitlement decision from the purview of the Board by applying only for a review of the assessment decision. But, if such an exclusion has not clearly been made (see Stafford's Case^[14]), the Board will have the duty to determine the entitlement issue.

As noted above, the Federal Court has held that the Board does not have the power to decide that it has "no jurisdiction".^[15] This means that if an application for review is out-of-time, the Board can only exercise those powers specified in section 139 to dispose of the matter, and so must affirm the decision under review on the grounds that there is a statutory bar to the Board doing anything else. The Act does not permit the Board to examine the merits of the matter if, upon examining the jurisdictional questions, it finds that the purported application is not an application that could be made because, for example, it was "out-of-time".

Obviously, without examining the merits, the Board cannot vary or set aside the decision sought to be reviewed, and so all that the Board can do is affirm it on the grounds that there is a statutory bar to it being changed by the Board.

While this might seem somewhat pedantic, it is an important distinction because it goes to the nature of the Board's powers. For the Board to finalise a matter by a declaration that it has "no jurisdiction", would be to finally determine a legal question, which would be an unconstitutional exercise of the judicial power of the Commonwealth. By saying that it affirms the decision because of a statutory bar is merely the application of the law to a fact found by the Board (namely, that the application was lodged out-of-time). This form of decision by the Board gives the applicant a right of review to the Administrative Appeals Tribunal under section 175 of the Act. The Tribunal then can review the merits of this jurisdictional fact question, and if it finds differently to the Board that the application for review was not out-of-time, it can go on to review the merits of the original decision.

Nevertheless, this is not to say that the Board cannot come to its own conclusion about the extent of its powers and the interpretation of the law in relation to a particular matter before it. It must do so if it is to apply the law to the facts. The Board must have the power to determine its own jurisdiction, but such a decision cannot be a substantive decision disposing of a purported application, it can only be a preliminary procedural step in that process.^[16] Once the Board has found that it does not have jurisdiction to decide the merits of a purported application for review, it must finalise the matter by affirming the decision sought to be reviewed on the ground that it has no power to review the merits of that decision.

There are circumstances where, even though the Board has no jurisdiction or power to review the merits of a decision, it can set it aside. This can arise where the Repatriation Commission has made a decision, which is sought to be reviewed, that it had no power to make. However, where that happens, because the Commission had no power to make a decision on the substantive matter, neither does the Board, and so no pension decision can be substituted for the decision that the Board has set aside, but the Board is able to exercise those powers that the Commission had, if any, in reviewing the "decision" sought to be reviewed.^[17]

Such a circumstance might arise if the veteran made an application for increase in pension while there was an application pending in the AAT concerning a previous application for increase,^[18] and through some oversight, the application for increase was treated as valid and pension was assessed. If the veteran applied to the Board for a review of that purported decision, the Board would have no choice but to dispose of the case by setting aside the decision, but it could not make a new decision assessing a rate of pension because it has no more power than the Commission had. All that the Commission could have done was to say that because the application was invalid, it had to be refused. Thus, the Board would substitute a decision "refusing the application for increase" on the grounds that it (and the Commission) had no power to make any pension decision, and was under a statutory obligation to refuse the purported application for increase in pension.

Such a decision would give the veteran a right of appeal to the AAT under section 175, but, like the Board, the Tribunal would have to consider the jurisdictional facts as a procedural matter preliminary to determining the extent of its powers to dispose of the application for review. It might be the case that there are factual issues regarding whether the time to apply for review had expired, concerning which the Tribunal might take a different view to that of the Board. In which case, if it were of the view that the application for increase in pension did not fall within the statutory bar in section 15, it would proceed to review the merits of the pension assessment de novo.

In summary, this paper suggests that:

• While the Board has limited powers, unless the applicant removes part of that composite decision from its purview, the Board can do whatever the Repatriation Commission could have done in respect of the original claim that gave rise to the review, including making decisions on disabilities that were not dealt with by the Commission.
• The Board cannot affirm a decision that it has already varied.
• Whatever matters are capable of immediate resolution should be finalised as soon as possible. In particular, assessment decisions are not dependant on unresolved entitlement matters, and should not be delayed for that reason.
• Assessment decisions must be made up-to-date, and include the assessment of newly accepted disabilities, even if those disabilities had not been assessed in the decision under review.
• Diagnoses of accepted injuries or diseases can be changed only if the nature of the change is to recognise an extension to incapacity rising from the disease. A diagnosis cannot be changed to a different disease unless the Board is reviewing an entitlement matter, and the new disease is accepted in accordance with the relevant Statement of Principles.
• The Board cannot dispose of a matter by declaring it has no jurisdiction, instead, it must do so by affirming the decision under review on the grounds that it has no power to review the merits of the decision.

 FOOTNOTES

1. Crompton v. Repatriation Commission (1993) 18 AAR 192; 30 ALD 45.

2. Ward v. Nicholls (1988) 20 FCR 18, 84 ALR 471, 9 AAR 411; and Meyza v. Repatriation Commission (1997) 73 FCR 18, 142 ALR 580, 24 AAR 363, 44 ALD 540. But if the Board purports so to do, such disposal must be treated, for the purposes of section 175 of the Act as if the Board had affirmed the challenged decision. Such cases are further discussed below.

3. An example of an implied exclusion of res judicata has been said to be found in section 14 of the Act, which permits a veteran to make a new claim for pension in respect of the same injury or disease that was previously rejected (see Re Cruise and Repatriation Commission (1992) 28 ALD 764). On one view (which I suggest is the better view), res judicata can still apply while permitting a veteran to make a new claim. A veteran could seek to rely on a different factual basis for the attribution to service than was relied upon previously. It has been held that cause of action estoppel (res judicata) applies to an administrative tribunal (Administrator of the Territory of Papua and New Guinea v. Daera Guba (1973) 130 CLR 353, and Re Quinn and Australian Postal Commission (1992) 15 AAR 519 at p. 526, but see Grimes v. Comcare (1994) 121 ALR 485, where Wilcox J took a different view) but issue estoppel does not (Midland Metals Overseas Ltd v. Comptroller-General of Customs (1991) 30 FCR 87). The cause of action in a case is the factual basis for the claim (eg, falling from a truck is said to have led to the injury), not the issue to be decided (ie, whether the injury is war-caused). If the veteran raises a new cause of action (eg, falling down a cliff leading to the same injury), the making of the claim is not precluded by cause of action estoppel or res judicata.

4. In Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Bowen CJ and Deane J said, at p. 589:
"The function of the Tribunal is an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him (sic). The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. … In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists, that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by law ought to be taken into consideration' must be ignored."

5. Repatriation Commission v. Stafford (1995) 56 FCR 132, 38 ALD 193.

6. Subsections 139(1) and (2).

7. Repatriation Commission v. Stafford (1995) 56 FCR 132, 38 ALD 193.

8. See for example, Repatriation Commission v. Maloney (1993) 117 ALR 622; 18 AAR 216.

9. Paragraph 5(2)(a), Administrative Decisions (Judicial Review) Act 1977.

10. Jebb v. Repatriation Commission (1987) 8 AAR 285, Repatriation Commission v. Maloney (1993) 117 ALR 622; 18 AAR 216.

11. (1995) 38 ALD 241.

12. (1993) 43 FCR 194.

13. Langley v. Repatriation Commission (1993) 43 FCR 194; Owen v. Repatriation Commission (1995) 38 ALD 241; Repatriation Commission v. McKenna (unreported 3 July 1998).

14. Repatriation Commission v. Stafford (1995) 56 FCR 132, 38 ALD 193.

15. Ward v. Nicholls (1988) 20 FCR 18, 84 ALR 471, 9 AAR 411; and Meyza v. Repatriation Commission (1997) 73 FCR 18, 142 ALR 580, 24 AAR 363, 44 ALD 540.

16. Crompton v. Repatriation Commission (1993) 18 AAR 192; 30 ALD 45.

17. This type of circumstance occurred in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.