Lucy Margaret Morrow v Repatriation Commission [1997] FCA 64 (14 February 1997)

CATCHWORDS

ADMINISTRATIVE LAW - administrative appeals - whether a document is capable of being characterized as a claim for a pension in writing but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a) within the meaning of s20(2) of the Veterans' Entitlements Act 1986 (Cth).

Veterans' Entitlements Act 1986 (Cth) ss. 14, 17, 18, 20, 34(2), 119(1), 135(4), 136, 137

Administrative Appeals Tribunal Act 1975 (Cth)

Pilkington (Australia) Limited v Anti-Dumping Authority & Anor (1995) 56 FCR 424

Comcare v Willems (unreported, Federal Court, 26 June 1996)

Comcare v Willems (unreported, Full Federal Court, 13 November 1996)

LUCY MARGARET MORROW v REPATRIATION COMMISSION

No. NG 31 of 1996

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 31 of 1996

GENERAL DIVISION )

BETWEEN: LUCY MARGARET MORROW

Applicant

AND: REPATRIATION COMMISSION

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision of the Administrative Appeals Tribunal is affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 31 of 1996

GENERAL DIVISION )

BETWEEN: LUCY MARGARET MORROW

Applicant

AND: REPATRIATION COMMISSION

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

REASONS FOR JUDGMENT

This is an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal given on 21 December 1995. Such decision affirmed a decision of the respondent refusing to assess the applicant as entitled under the Veterans' Entitlements Act 1986 (Cth) ("the Act") to a war widow's pension from 18 July 1991. The applicant has been in receipt of a war widow's pension from 22 March 1994.

FACTUAL BACKGROUND

On 26 April 1990 William Charles Morrow ("Mr Morrow"), the husband of the applicant, died. On 13 June 1990 the applicant lodged a claim for a war widow's pension in the form approved by the Repatriation Commission as required by s14(3) of the Act. The medical evidence before the delegate of the Repatriation Commission who determined the applicant's claim of 13 June 1990 was that the cause of death of Mr Morrow was not related to the conditions of his war service. The applicant's claim of 13 June 1990 was refused on 5 October 1990.

The applicant received written advice as to the determination of her claim of 13 June 1990 by letter dated 5 October 1990. A written statement of the delegate's reasons for the determination were provided to her under cover of the letter of 5 October 1990. The letter of 5 October 1990 contained the following paragraphs:

"The determination and statement of reasons are set out in the attachment and you should read this carefully. If you are dissatisfied with any aspect of my decision, you may apply to the Veterans' Review Board to have the decision reviewed. An application for review must be in writing, and a form designed for this purpose can be obtained from the nearest office of this Department.

Should you wish to apply for a review, your application must be lodged at any office of the Department within 12 months of being notified of the decision. However, as the date of effect of a Veterans' Review Board decision is related to the date of lodgement of the application, lodgment within three months would enable any resulting benefits to be paid from the earliest date possible."

On 18 October 1991 the applicant lodged with the Department of Veterans' Affairs ("the Department") a completed form dated 1 October 1991. The form itself was apparently produced by Sydney Legacy. It is directed to "The Secretary, Department of Veterans' Affairs, 500 Elizabeth Street, SYDNEY 2000". Its opening paragraph, as completed, reads as follows:

"I wish to appeal to the Veterans' Review Board against the decision of the Repatriation Commission, dated 5 Oct 90 rejecting my claim for acceptance of my husband's death."

The form provides for the specification of grounds of appeal and the completed form gives grounds of appeal. The completed form is signed by the applicant.

It was not until 22 September 1993 that the Veterans' Review Board conducted a hearing with respect to the application lodged on 18 October 1991. On that day the Veterans' Review Board decided to affirm the decision of the delegate of the Repatriation Commission of 5 October 1990. It did so on the basis that the application for review of the decision of the Repatriation Commission did not satisfy the requirement of s135(4) of the Act that it be "made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise".

The decision of the Veterans' Review Board of 22 September 1993 has not been challenged. Its validity has been accepted by the applicant.

On 5 November 1993 the applicant's legal representative wrote to "The Deputy Commissioner, Department of Veterans' Affairs" making reference to the invalidity of the application lodged by the applicant on 18 October 1991. The letter goes on -

"Accordingly I would request that Mrs Morrow's correspondence, which was received by the Department in October 1991, be treated as a new application seeking entitlement to a War Widows pension. I would appreciate it if the matter could be redetermined and my client advised of the result."

The above request was repeated by letter from the applicant's legal representative to the Deputy Commissioner dated 31 December 1993. The applicant did not, earlier than June 1994, complete a second claim for a pension in the form approved by the Repatriation Commission as required by s14(3) of the Act.

On 2 February 1994 an officer of the Department writing for the Deputy Commissioner wrote to the applicant's legal representative in the following terms:

"I refer to your letter of 31 December 1993 on behalf of Mrs Morrow.

Because of the peculiar circumstances involved in this case, I referred the matter to a Senior Determining Officer for his opinion. The Assistant Director (Determinations) considered the available evidence and, on 20 January 1994, stated that, in his opinion, it is not possible to construe the application form for review of the Delegate's decision of 5 October 1990 and lodged on 18 October 1991 as a claim under Section 14 of the Act (copy enclosed).

It would appear in the circumstances that the only option open to Mrs Morrow and yourself is to lodge another application for the war widow's pension and refer to the evidence submitted with the application for review of the Veterans' Review Board.

I am sorry that I do not have better news to convey."

On 22 June 1994 the applicant lodged with the Department a fresh claim for a war widow's pension in the form approved by the Repatriation Commission as required by s14(3) of the Act.

On 5 October 1994 the applicant received advice from the delegate of the Repatriation Commission and of the Secretary, Department of Veterans' Affairs that a decision had been taken to grant to her a war widow's pension with effect from 22 March 1994. This date was determined by reference to the date upon which the applicant's second claim for a war widow's pension in the form required by s14(3) of the Act had been lodged, namely 22 June 1994 (s20(1) of the Act).

By an application for review dated 19 October 1994 the applicant sought review by the Veterans' Review Board of the decision to grant her a war widow's pension payable from 22 March 1994. She contended by such application that her pension should have been payable from 18 July 1991 "being a date three months prior to the lodgment of my informal application on 18.10.91".

On 8 May 1995 the Veterans' Review Board affirmed the decision that the applicant's pension was payable from 22 March 1994. On 21 December 1995 the Administrative Appeals Tribunal affirmed the decision of the Veterans' Review Board. It is this decision of the Administrative Appeals Tribunal which is the subject of this appeal.

STATUTORY BACKGROUND

Division 3 of Part II of the Act is headed "Claims for pensions and applications for increases in pensions". Sections 13A - 21 of the Act appear in this Division of the Act. Section 14(1) provides, so far as is here relevant, that a dependant of a deceased veteran may make a claim for a pension in accordance with subsection (3). Section 14(3) provides as follows:

"(3) A claim for a pension:

(a) shall be in writing and in accordance with a form approved by the Commission;

(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b)."

Section 14(6) and (7) contain provisions concerning the right of a claimant to make more than one claim for a pension in respect of the death of a veteran. The subsections provide as follows:

"(6) Where:

(a) a person has made a claim for a pension under this section in respect of the death of a veteran; and

(b) the claim has not been finally determined;

the person is not empowered to make another claim for a pension under this section in respect of the death of that veteran.

(7) For the purposes of this section, a claim is finally determined when either:

(a) a decision that has been made in respect of the claim is not subject to any form of appeal or review; or

(b) a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted."

Section 20 of the Act is concerned with the date from which a pension is payable. It provides as follows:

"(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

(2) Where:

(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14 (3) (a));

(b) the person subsequently makes a claim for the pension in accordance with a form so approved:

(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or

(ii) within 3 months after the person had been so notified; and

(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved;

the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.

(3) Nothing in this section empowers the Commission to approve payment of a pension to a person from a date before the person became eligible to be granted the pension".

Section 119(1) of the Act, so far as is here relevant, provides as follows:

"(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application;

...

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities ..."

DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

Before the Administrative Appeals Tribunal it was contended on behalf of the applicant that the document lodged by the applicant with the Department on 18 October 1991 ("the document") ought to have been treated by the Department as an informal application for a war widow's pension so as to bring into operation s20(2) of the Act. As to this the Administrative Appeals Tribunal stated in its written reasons:

"The department was entitled to treat it as what it purported to be, namely an appeal to the Veterans Review Board, and that being so I see no warrant nor have I been referred to any authority as to why I should exercise a discretion and treat it as an informal application. Clearly it is not, was not and cannot be regarded as being so."

ISSUES ON APPEAL

The principal issue sought on this appeal to be agitated before the Court is whether the document is capable of being characterized as "a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a)" within the meaning of s20(2) of the Act. Such issue raises, in my view, a question of law within the meaning of s44 of the Administrative Appeals Tribunal Act 1975 (Cth). In Pilkington (Australia) Limited v Anti-Dumping Authority & Anor (1995) 56 FCR 424 at 427-428, Lockhart and Beazley JJ, with whom Lee J agreed on this point, stated:

"The question of whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law subject to the qualification stated by Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) in these terms [(1956) 94 CLR 509]:

'... whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words [of the statute] so determined ... is a question of law; see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Commissioner of Taxation (Cth) [1923] HCA 69; (1923) 33 CLR 416 at 419. If difference conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in Commissioner of Taxation (Cth) v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150 at 160.'"

It was conceded on behalf of the applicant that the document was not intended as at the date when it was lodged with the Department, to be a claim for a pension. The contention made on behalf of the applicant was that it was erroneous to inquire as to the intention of the applicant at the time that the document was lodged. Reliance was placed upon the decision of Finn J in Comcare v Willems (unreported, Federal Court, 26 June 1996) which decision was upheld on appeal in Comcare v Willems (unreported, Full Federal Court, 13 November 1996).

Comcare v Willems was concerned with the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). The issue which the Court was required to consider was whether a letter which in terms made a claim for compensation could, in the circumstances of that case, be characterized as a request for reconsideration of a determination rejecting an earlier claim for compensation. An important circumstance in that case was that it was not open to Mr Willems to make a fresh claim under the SRC Act for the particular injury in respect of which he was seeking to have compensation payments reinstated. The only proper course open to him was to request a reconsideration. Comcare was aware of this circumstance. Finn J characterized the letter in question in that case as an attempt to secure for Mr Willems such reconsideration of his position as the SRC Act envisaged.

Counsel for the respondent contended that both the statutory framework against which Comcare v Willems was decided and the circumstances of that case were distinguishable from those prevailing in this case. She drew attention to the different functions and duties under the Act of the Secretary of the Department, the Repatriation Commission and the Veterans' Review Board.

Under the Act, a claim for a pension is to be in accordance with a form approved by the Repatriation Commission (s14(3)(a)). It is to be forwarded to or delivered at an office of the Department (s14(3)(c)) whereupon the Secretary of the Department is required to cause an investigation to be made into the matters to which the claim relates (s17(1)). Upon completion of such investigation the Secretary is required to cause the claim to be submitted to the Repatriation Commission for its consideration along with relevant documents under the control of the Department and any relevant evidence or documents obtained in the course of the investigation (s17(2) and (3)). Section 18 of the Act places a duty on the Repatriation Commission to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim.

Where a claim for a pension is granted, the Repatriation Commission can approve payment of the pension from a date not earlier than three months before the date on which the formal application in accordance with the requirements of s14 of the Act was made (s20(1)). However, s20(2), which is set out above, provides in effect that where an informal claim for a pension precedes a formal claim, the period of three months can be calculated back from the date of the informal claim.

The s20 provisions as to the date of operation of a grant of a claim for a pension are presumably designed to protect the revenue from hidden liabilities arising from unformulated claims for pensions whilst providing protection for those who, presumably ignorant of the formal requirements of the Act, make initial requests for a pension without utilizing the approved form.

Where an applicant for a pension seeks review by the Veterans' Review Board of a decision of the Repatriation Commission, s136 of the Act requires an application to be made to the Veterans' Review Board in writing by the forwarding to, or the delivery at, an office of the Department of such application. Within six weeks after the receipt by the Department of such application, the Secretary of the Department is required to cause to be prepared a report referring to the evidence under the control of the Department that is relevant to the review and, subject to issues of confidentiality, cause a copy of the report to be served on the applicant. The Secretary must thereafter forward to the Principal Member of the Veterans' Review Board all relevant documents including any comments made by the applicant concerning the report served on him or her (s137).

The document in issue in this case by its terms plainly sought to invoke the jurisdiction of the Veterans' Review Board to review the decision of the Repatriation Commission of 5 October 1990. Section 135(4) of the Act requires such jurisdiction to be invoked within twelve months after service of the person to whom the decision relates of a copy of that decision. As at the date which the document bears, the applicant was plainly entitled to invoke the jurisdiction of the Veterans' Review Board. For this reason she was not then entitled to make another claim for a war widow's pension (s14(6) and (7)). As at the date that the document was forwarded to or delivered at the Department the question of whether the applicant was entitled to invoke the jurisdiction of the Veterans' Review Board was dependent upon a determination of the date upon which a copy of the decision of the Repatriation Commission with respect to her first claim was served upon her (s135(4)). Only if she was not then entitled to invoke the jurisdiction of the Veterans' Review Board was she entitled under the Act to make a fresh claim for a pension. At a time at which she was not entitled to make a claim for a pension, she was equally unable, in my view, to make an informal claim for such a pension for the purposes of s20(2) of the Act. The document may fairly be understood, in my view, as asserting an entitlement to invoke the jurisdiction of the Veterans' Review Board. No explanation has been provided as to the delay between the signing of the document and its receipt by the Department.

I accept the submission of Ms Henderson, counsel for the respondent, that both the statutory background to, and the factual circumstances of, this case are distinguishable from those considered in Comcare v Willems. It could not, in my view, be suggested in this case that it ought reasonably to have been apparent to any of the Department, the Repatriation Commission or the Veterans' Review Board that what the applicant was attempting to achieve by the document was, in effect, consideration by the Repatriation Commission of a fresh claim by her for a war widow's pension. Unlike the situation in Comcare v Williams it was not apparent as at either the date of the document or the date of its receipt by the Department that the only course open to the applicant under the Act was to make a fresh claim for a pension. Indeed, both the applicant and her representative subsequently took part in a review hearing by the Veterans's Review Board based upon the application explicitly made by her by the document.

The obligation of the Repatriation Commission to "act according to substantial justice and the substantial merits of the case without regard to legal form and technicalities" cannot, in my view, be called in aid to give the document a character which is not fairly open having regard to its terms and the circumstances in which it was brought into existence.

In my view, the Administrative Appeals Tribunal rightly concluded that the document was not capable of being characterized as "a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a)" within the meaning of s20(2) of the Act.

Counsel for the applicant, Mr Robinson, suggested a denial of natural justice to the applicant by the Administrative Appeals Tribunal in that the applicant's case was conducted before the Administrative Appeals Tribunal on the basis that the document was capable of being construed as a claim for a pension under the Act and the Senior member who constituted the Tribunal did not indicate a provisional view that the document was not capable of being so construed.

In my view this suggestion is without merit. First, even if it be assumed that the Senior Member was under a duty to indicate his provisional view, a reading of the transcript of the hearing before the Administrative Appeals Tribunal makes it plain that the Senior Member put the applicant's representative on notice that he required to be satisfied as to why he should regard the document as an informal claim for a pension. Secondly, the case for the respondent before the Administrative Appeals Tribunal was that the document was not capable of being so characterized. In any event, the procedural injustice asserted to have been suffered by the applicant is the loss of an opportunity to adduce evidence, assuming it to have been available, of a practice in the Department to accept letters such as the document as informal claims for pensions. Counsel before me freely conceded that he could not suggest that the Department did regularly accept documents such as the document as informal claims and no issue of estoppel was, or could be, asserted against the Department.

In such circumstances, it follows from my conclusion that the document was not capable as a matter of law of being characterized as an informal claim for a pension for the purposes of s20(2) of the Act that the applicant necessarily suffered no procedural injustice by reason of the course which the hearing before the Administrative Appeals Tribunal took.

Before me, but not before the Administrative Appeals Tribunal, discussion arose as to whether the letter dated 5 November 1993 signed by the applicant's representative was capable of being characterized as an informal claim for a pension for the purposes of s20(2) of the Act. In view of the course which the proceeding before the Administrative Appeals Tribunal took, it is not now open to the applicant to seek to advance on this appeal a case based on the letter dated 5 November 1993.

The decision of the Administrative Appeals Tribunal is affirmed.

I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Associate:

Date:

Counsel for the applicant: Mr M. Robinson

Solicitor for the applicant: Legal Aid Commission

of N.S.W.

Counsel for the respondent: Ms R.M. Henderson

Solicitor for the respondent: Australian Government

Solicitor

Hearing date: 4 December 1996