Re Alfred Thomas Ridyard v the Repatriation Commission [1990] FCA 479 (30 November 1990)

FEDERAL COURT OF AUSTRALIA

Re: ALFRED THOMAS RIDYARD
And: THE REPATRIATION COMMISSION
No. G508 of 1990
FED No. 772
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Veterans' Entitlements Act 1986 (Cth) - mandamus sought against Repatriation Commission to hear and determine alleged undetermined claim - whether claim has been determined - discretionary nature of mandamus.

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s.7

Veterans' Entitlements Act 1986 (Cth) - ss.19, 24

HEARING

SYDNEY
30:11:1990

Counsel for the applicant: Mr M.B. Smith

Solicitor for the applicant: Legal Aid Commission

Counsel for the respondent: Miss R. Henderson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

DECISION

This is an application under s.7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") seeking an order in the nature of a mandamus directed to the Repatriation Commission to hear and determine what is alleged to be an undetermined claim lodged with the Repatriation Commission on 21 February 1979.

2. In that claim the applicant, Mr Alfred Thomas Ridyard, sought a determination attributing his back condition to war service and the assessment of a pension accordingly. Mr Ridyard is seeking a pension at the special rate under s.24 of the Veterans' Entitlements Act 1986 (Cth) ("the VET Act"). It is an established principle which is now enshrined in the definition of "assessment period" and "application day" and other provisions of s.19 of the VET Act as amended by Act No. 134 of 1988 that compliance with the specified criteria must be established as at the date of the lodgment of the claim or during a relevant time in the assessment period thereafter. If Mr Ridyard founds his claim upon the application lodged on 14 September 1987, he may fail for, having turned 65 in 1981, he may be unable to satisfy the criterion as to loss of salary, wages or earnings as at 14 September 1987 or any subsequent date. Accordingly, it is desired to resurrect the earlier claim and to proceed from it to the grant of a pension at the special rate.

3. The Repatriation Commission, for its part, takes the view that the 1979 claim was dealt with, in substance at least, in 1979 and that events have passed it by and that it ought not now to be activated even if it has not formally been disposed of.

4. Mr Ridyard served overseas in the 1939-1945 war and suffered injuries at El Alamein. In 1943, a gunshot wound to his left thigh was accepted as a war disability. In 1966, meralgia paraesthetica and haemorrhoids were accepted as disabilities. On 20 July 1976, Mr Ridyard lodged a claim for a "back injury". On 25 January 1977, a Repatriation Board, then the first instance decision-maker, rejected the claim on the diagnosis of "spondylolisthesis" and Mr Ridyard was so advised. He did not appeal to the Repatriation Commission from that determination as he was entitled to do.

5. On 21 February 1979, Mr Ridyard lodged a further claim for "back". This is the claim with which we are now concerned. On 12 March 1979, an officer of the Commission wrote to Mr Ridyard as follows:-

"I refer to your application for Repatriation benefits in
respect of Back Condition.
I wish to advise that this condition is considered to refer
to your Spondylolisthesis which was determined by a
Repatriation Board on 25 January 1977 as being not related
to your service.
You have a right of appeal to the Repatriation Commission
against this decision. Such an appeal should be lodged in
writing and should set out the grounds on which it is based,
together with any fresh evidence you desire to submit."

Thus, the Repatriation Commission dealt with the matter promptly. The letter implied that the matter would not be forwarded to a Repatriation Board and stated that, if Mr Ridyard wished to appeal to the Repatriation Commission against the earlier decision, he could do so. No further action was taken on that 1979 claim.

6. On 3 August 1981, Mr Ridyard made application for an increased rate of benefit and this was increased to 100% of the general rate. On 11 May 1983, Mr Ridyard lodged a further application for an increased rate and enclosed a letter dealing with his back condition. This application was treated not only as an application for an increased rate but also as an appeal under s.28 of the Repatriation Act 1920 (Cth) ("the Repatriation Act") against the decision of the Repatriation Board of 1977. On 16 July 1984, the Repatriation Commission rejected the appeal and confirmed the rate of pension at 100% of the general rate. Mr Ridyard was so advised by letter dated 11 August 1984.

7. From that decision of the Repatriation Commission, Mr Ridyard lodged an appeal relating only to the rate of pension. On 6 August 1985, a Veterans' Review Board affirmed the decision of the Repatriation Commission. The matter was taken further by Mr Ridyard to the Administrative Appeals Tribunal and, on 18 July 1986, that Tribunal affirmed the decision under review. The presiding member, Davies J., held in substance that, as at the date of the application, Mr Ridyard was over the age of 65 and that, as Mr Ridyard was over the age of 65 and as it was unlikely that he would have worked beyond that age, he did not satisfy the criterion that there be a loss of salary, wages or of earnings as at the date of application. The two other members of the Tribunal, Sir William Prentice and Dr Max Thorpe, held in substance that, as Mr Ridyard's back condition contributed to his incapacity for work, he could not show that it was by reason of war-caused disabilities alone that he was unable to work and earn. An appeal to the Federal Court from that decision was discontinued in November 1987.

8. On 14 September 1987, a further claim in relation to Mr Ridyard's back condition was lodged. The Repatriation Commission rejected the claim on 20 October 1987. An appeal to the Veterans' Review Board was lodged and, on 17 November 1988, the Veterans' Review Board accepted Mr Ridyard's back condition as a war-caused disability. However, the Veterans' Review Board continued the pension at 100% of the general rate. On 2 March 1989, a further application was lodged with the Administrative Appeals Tribunal. That application has not been determined as the representatives for Mr Ridyard, realising the difficulty of establishing the criteria under s.24 of the VET Act on a claim lodged in September 1987, have sought to reactivate the 1979 claim.

9. On these facts, the question is whether the Court should make an order directing the Repatriation Commission to consider the 1979 claim. It is established that the Repatriation Commission did not remit the 1979 claim to a Repatriation Board for consideration and that, if the claim should now be considered, the Repatriation Commission is the appropriate body to do so. But the mere fact that the claim was not forwarded to a Repatriation Board in 1979 does not require the Court to make the order sought.

10. An order in the nature of a mandamus is a discretionary order and it must be considered in that light. One element going to discretion is the time that has elapsed. The ADJR Act expresses a policy against delay. The ordinary period for making an application for bringing an application in respect of a decision is 28 days after the decision or reasons for the decision were furnished. Where no other time is prescribed, the application is to be made within a reasonable time after the decision was made. Those provisions do not precisely cover the present case. Still, the policy of the ADJR Act is that applications will be made within a reasonable time. In respect of the 1979 decision, that time has long since passed.

11. Moreover, the application seeks an order that the Repatriation Commission do that which has already been done, namely that it consider the merits of Mr Ridyard's claim to have his back condition accepted as a war-caused disability. After the lodgment of the 1979 claim, the Repatriation Commission considered precisely that matter on 16 July 1984 and rejected the claim. The Repatriation Commission considered the matter again on 20 October 1987 and again rejected it. The Veterans' Review Board considered the matter on 6 August 1985 and again on 12 March 1988, the last decision being favourable to Mr Ridyard's claim. Mr Ridyard's claim was thus considered twice by the Repatriation Commission in the years subsequent to 1979 and twice by a Veterans' Review Board.

12. That leads to the point that the VET Act should be applied having regard to the facts as they have occurred, not by creating an artificial situation designed to subvert the ordinary operation of the Act. The claim which led to the view by the Veterans' Review Board and which was the initiating claim for the purposes of the Administrative Appeals Tribunal proceedings is the claim lodged on 14 September 1987. Applying the Act to that circumstance, the operative date for the consideration of the application of s.24 of the VET Act is 14 September 1987. It would be to avoid the operation of the Act, not to give effect to it, to now reactivate a claim made in 1979 which has long since been overtaken by other claims and events. The operative date for the claim which is current is 14 September 1987.

13. Were I of the contrary view, I would not accept the submission put on behalf of the respondent that reliance on the 1979 claim would be futile. But I need say no more about that.

14. For these reasons, I am of the view that the order sought should not be made. The application will be dismissed with costs.