Donnelly, W. v Repatriation Commission [1987] FCA 224

= | { CATCHWORDS

VETERANS' ENTITLEMENTS ACT 1986 - transitional provisions - extent and

effect of s. 7 Veterans' Entitlements (Transitional Provisions and

Consequential Amendments) Act 1986 - use by Administrative Appeals

Tribunal of "Guide to the Assessment of Rates of Veterans' Pensions

1986" - whether denial of natural justice in so doing.

Administrative Appeals Tribunal Act 1975: ss. 33, 43. Repatriation Act: s. 107VC,, 107VZW.

Social Security and Veterans' Affairs (Miscellaneous Amendments)

Act 1986: ss. 2, 99. Veterans' Entitlements Act 1986: ss. 29, 175.

Veterans' Entitlements (Transitional Provisions and Consequential

Amendments) Act 1986: ss. 7, 19, 27.

Veterans' Entitlements (Transitional Provisions and Consequential

Amendments) Amendment Act 1986: s.

5.

WILLIAM DONNELLY v. REPATRIATION COMMISSION

G 484 of 1986

CORAM: LOCKHART, BURCHETT and JACKSON JJ.

13 MAY 1987

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN:

E b= o

JUDGES MAKING ORDER: DATE OF ORDER: WHERE ORDER MADE:

THE COURT ORDERS THAT:

No. G.484 of 1986

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL IN THE VETERANS'

APPEALS DIVISION

WILLIAM DONNELLY

Applicant

REPATRIATION COMMISSION

Respondent

LOCKHART, BURCHETT AND JACKSON JJ.

13 MAY 1987

SYDNEY

MINUTES OF ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of this appeal. 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. G.484 of 1986

GENERAL DIVISION

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL IN THE VETERANS'

APPEALS DIVISION

BETWEEN : WILLIAM DONNELLY Applicant AND: REPATRIATION COMMISSION

Respondent

CORAM: Lockhart, Burchett and Jackson JJ.

REASONS FOR JUDGMENT LOCKHART J.

I have had the benefit of reading the reasons for judgment of Burchett J. and Jackson J.. I agree with them, for the reasons which they have given, that the Administrative Appeals Tribunal ("the Tribunal") was entitled to take into account the document which is the "Guide to the Assessment of Rates of Veterans' Pensions". I agree with Burchett J. also, for the reasons which he has given, that the Tribunal's use of the Guide in the circumstances of this case did not involve a denial of natural justice. I am also in agreement with Burchett J. that the Tribunal did not misunderstand the effect of s. 7

of the Veterans' Entitlements (Transitional Provisions and

Consequential Amendments) Act 1986 (Act No. 28 of 1986). On this

question I will add a few comments of my own.

The Repatriation Act 1920 was replaced by the Veterans'

Entitlements Act 1986 (Act No. 27 of 1986) which came into operation

on 22 May 1986. There are two Acts which constitute the transitional

legislation, namely, Act No. 28 of 1986 and the Veterans' Entitlements

(Transitional Provisions and Consequential Amendments) Amendment Act 1986 (Act No. 29 of 1986). Act No. 29 of 1986 amended Act No. 28 of

1986 and each of them came into operation also on 22 May 1986.

Section 7 of Act No. 28 of 1986 originally provided as

follows:

7.(1) Where, after the commencing date -

(a) approval is given by the Commission, the Board, or the Administrative Appeals Tribunal ' for payment of a pension, or for payment of a pension at a higher or lower rate, to be made from a date before the commencing date; or

(b) the Commission, the Board or the Administrative Appeals Tribunal is reviewing the rate at which a pension was payable before the commencing date,

the rate at which that pension may be paid at any time before the commencing date shall be assessed by reference to the relevant provisions of the repealed Acts as in force at. that time but otherwise in accordance with the provisions of the Veterans' Entitlements Act and the principles applicable under that Act.

(2) Sub-section (3) applies to a pension to which Part II of the Veterans' Entitlements Act applies by virtue of sub-section 4(2) or 4(4) of this Act.

(3) The Commission, the Board or _ the Administrative Appeals Tribunal shall not, in the course of re-assessing the rate at which a pension to which this sub-section applies, determine, as the degree of incapacity of the person to whom that pension is payable, a percentage that is less than the percentage of the maximum general rate of pension constituted by the rate at which that

3.

pension was, immediately before the commencing date, paid unless the Commission, the Board or the Administrative Appeals Tribunal as the case may be, is satisfied -

(a) that the incapacity of that person has decreased since the rate of that pension was previously assessed or last assessed; or

(b) that the previous assessment or last assessment would not have been made but for a false statement or misrepresentation of a person."

Section 7 was amended by s. 99 of the Social Security and

Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Act No. 106 of

1986) by omitting from sub-s. (1) of s. 7 of Act No. 28 of 1986 the words "the relevant provisions of the repealed Acts as in force at that time" and substituting the words "the rate or maximum rate in the repealed Acts as in force at that time that corresponds with the

appropriate rate in the Veterans' Entitlement Act".

Act No. 106 of 1986 was assented to on 27 October 1986. The intertwining of all this legislation is made even more curious by sub-s. 2(2) of Act No. 106 of 1986 because it provides that s. 99 shall be deemed to have come into operation on 22 May 1986, i.e. the

same date as the Veterans' Entitlements Act 1986 and the two

transitional Acts themselves came into operation.

It was submitted by counsel for the appellant that the effect of s. 7 was to reinstate the Repatriation Act in the form in which it stood on 7 August 1984 (i.e. the date on which the appellant applied for his increase in pension beyond 80%) as the relevant Act under which his application fell to be determined, including' the determination of his substantive pension rights, not merely the rate

at which the pension should be paid before 22 May 1986.

Sub-section 19(2) of Act No. 28 of 1986 provides that applications made to the Tribunal under s. 107VZ2W of the Repatriation Act that had not been determined by the Tribunal before 22 May 1986 shall, on and after that date, be treated as if they were applications that had been made to the Tribunal under s. 175 of the Veterans' Entitlements Act and shall be heard and determined by the Tribunal accordingly. A similar provision is made by sub-s. 19(1) with respect to applications made or deemed to be made to the Veterans' Review Board under s. 107VC of the Repatriation Act that had not been

determined under that Act before 22 May 1986.

It is common ground that the application to the Tribunal in this case was made under s. 107VZW of the Repatriation Act and that sub-s. 19(2) of Act No. 28 of 1986 applied so as to vest the Tribunal

with jurisdiction to hear and determine the matter.

The purpose of s. 7 of Act No. 28 of 1986 is plain, namely, that the rate, and only the rate, at which a person is to he paid at any time before 22 May 1986 1s to be assessed by the Repatriation Commission, the Veterans' Review Board or the Tribunal, as the case may be, by reference to the relevant provisions of the repealed Act or Acts as in force at the time or times in question before 22 May 1986. Section 7 is not a provision intended to re-enliven the Repatriation Act as the basic determinant of the substantive pension rights in cases such as the present. It is directed solely to determining rates at which persons may be paid pensions at times before 22 May 1986; Otherwise the determination of the veteran's entitlements is to be

made in accordance with the Veterans' Entitlements Act.

If there were any room for doubt about this construction of s. 7 it was removed by s. 99 of Act No. 106 of 1986 which substituted in sub-s. 7(1) as from 22 May 1986 the words which I have already mentioned for the words previously there. I should add, that as the Tribunal's decision was made on 3 October 1986 and Act No. 106 of 1986 was not assented to until 27 October 1986, the Tribunal did not have the benefit of the amendment. Nevertheless the Tribunal rejected the argument of the appellant that s. 7 restored the Repatriation Act as in force on 7 August 1984 as the legislation under which the substance of his claim for increase in pension beyond 80% fell to be determined. The Tribunal's reasons appear to proceed on the basis that s. 7 entitled the Tribunal to have recourse to the Repatriation Act as in force at the relevant time before 22 May 1986 solely for the purpose of determining the particular rate to be applied before that date.

The Tribunal's approach was correct.

I would dismiss the appeal with costs.

| certly that this and the Looe CS) Precec.ng maces a-2 a true copy ef the

on. heran of jjistonour

li!

Associate

Dated: 1S MOA \AVt

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.484 of 1986 ) )

GENERAL DIVISION

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL IN THE VETERANS' APPEALS DIVISION

BETWEEN:

WILLIAM DONNELLY

Applicant

- REPATRIATION

COMMISSION

Respondent

CORAM: Lockhart, Burchett and Jackson JJ.

REASONS FOR JUDGMENT

BURCHETT J.

This is an appeal on a question of law under s.44 of the

Administrative Appeals Tribunal Act 1975.

The applicant, who served as a gunner in the Australian Army in World War II, was accepted as suffering a degree of deafness resulting from the explosion of a practice grenade during training in May 1945. Over the years, his hearing has deteriorated and the disability, initially confined to one ear, came to require him to wear a hearing aid in each ear. [In 1970 the diagnosis of the accepted disability was amended to a diagnosis of "Meniere's disease and sensori-neural deafness."

Also over the years, the rate of pension rose from ten percent of

2.

the General Rate for left-ear deafness to eighty percent of the

Geneval Rate as at 27 January 1982.

On 7 August 1984 the applicant sought a further increase, which the Repatriation Commission denied on 5 March 1985. On 20 September 1985 the Veterans' Review Board confirmed that decision, and on 3 October 1986 the Administrative Appeals

Tribunal confirmed the decision of the Veterans' Review Board.

The evidence put before the Administrative Appeals

Tribunal was clearly directed to the issue of the extent of the interference with the applicant's ability to earn by employment which the accepted condition caused. This of course was a question of fact, to be determined in the light of the available

material, including the evidence of the applicant himself and the

medical evidence.

There is no doubt that the material before the Tribunal showed the applicant had suffered a grave disadvantage in his work as a car salesman, both by reason of his deafness and by reason of attacks of vertigo which were sometimes severe. The Tribunal concluded that the applicant's hearing problems "would make it practically impossible for him to continue to work as a

used car salesman." But after referring, among other cases, to

Bowman v. Repatriation Commission (1981) 34 A.L.R. 556, the

Tribunal made it clear that in its view the applicant retained a

capacity, though diminished, to undertake work in valuing cars.

In my opinion, it cannot be said that the Tribunal's

view was not open to it. Although the applicant's case gained

3.

some support from a general practitioner called by the respondent, the highly qualified specialist called by the applicant himself, Dr. V. Bulteau, reported: "(H)e wears a hearing aid in each ear with good effect. The giddy attacks, he says, now occur about once or twice per month, which is noticeably less frequent than in the past. When they do occur he needs to sit or lie down for about one hour until the attack subsides." Asked in his oral evidence how the Meniere's disease would affect the ability of the applicant to work and also to find an employer who would or could employ him with his

difficulty, the doctor said:

"As Mr Donnelly told me, he said that he did still have giddy attacks but I think you will see in that report they were about once or twice per month which was noticeably less frequent than in the past. This is often a characteristic feature of Meniere's disease of many years duration. The attacks may tend and often do tend to become less severe and often with a longer interval in between the attacks. Then Mr Donnelly went on to say that he needed to sit down or lie down for

about an hour until the attack subsides. In the face of that, I considered that if that occurred only once or twice a month, he should be still capable of doing some sort of work. What type of work would be purely what he was capable of doing, what he was trained

for."

The doctor added that he had taken into account the applicant's hearing disability. That disability would not, in the doctor's

view, prevent him coping with the use of the telephone.

Although the general practitioner took a more pessimistic view of the employment consequences for the

applicant, he thought the episodes of acute vertigo appeared "to

' 4.

be occurring about once a month", and he considered the vertigo was "probably a somewhat bigger problem in his enjoyment of life

than his deafness."

The evidence also showed that the applicant had worked for significant periods since the date of the original application from which sprang the successive reviews. He had also worked in 1982, when his evidence suggested his vertigo was significantly worse than its improved state at the time of the hearing before the Tribunal. Dr. Bulteau rejected the suggestion that the improvement was attributable to the removal of the stress of employment. Such a conclusion would of course be inconsistent with the doctor's observation about the characteristic feature of Meniere's disease of many years duration. It would also be inconsistent with other material which was before the Tribunal in the form of a general medical article on the subject. That article under the heading "Prognosis" stated:

"The attacks tend to diminish in severity

spontaneously, and finally to cease as deafness increases. Exceptionally, in the

absence of radical treatment, the attacks continue for many years."

As I have said, the Tribunal referred expressly to

Bowman's case. I think it is therefore clear that it had in mind

that a theoretical ability to carry out work would be insufficient to prevent a finding of lack of earning capacity in the market. But the Tribunal considered the applicant could in fact work as a car valuer. There was evidence to support this

conclusion. The applicant himself considered he was capable of

ee

5.

undertaking car valuations professionally, though he thought he was "slightly out of touch with the market prices currently." Although his counsel argued before us that there was no evidence of the availability of work as a car valuer, as distinct from work as a car salesman, the applicant himself made no such suggestion in his evidence. Asked whether he could find an employer to employ him to "do valuation work on cars", he said: "Well, I have been pursuing that aspect for quite some time and I am finding it difficult because I have been out of the trade. You cannot get a start as a valuer unless you are right up to date with current prices." In answer to a question of the Deputy President: "Have you asked City Ford [a previous employer] for work as a car valuer?" he replied: "Well, not quite as directly as that. I have made myself available and I have asked whether there were any openings over the past six or seven months and they have been very nice because I know a lot of the boys there - they have been very nice about it but they have always declined." These answers imply a recognition of the existence of the relevant job category. Once that is accepted, I think it was clearly within the competence of the Tribunal to conclude that the applicant, though slightly out of touch with the current market prices, would be able to find employment of that kind if

he persisted in seeking it.

But the applicant relied on the following passages from

the Tribunal's reasons:

"The Tribunal has also taken into account the Guide to the Assessment of Rates of Veterans' Pensions, published by the Department of Veterans' Affairs, 1986, particularly Table 10, in considering what is an appropriate

6.

rate (see section 27(2) of the Transitional Act). we.

Bearing in mind the provisions of Table 10 and Dr. Bulteau's opinion that the applicant is capable of doing the sort of work for which he was trained ... the Tribunal is left with the opinion that the decision of the Veterans' Review Board is correct and that the proper rate to apply to the applicant is the 80% rate."

The argument was twofold: in the first place, it was said that the Tribunal had made an improper use of the guide to which it referred; and in the second place, it was said that, even if the guide was properly used, a denial of natural justice was involved

in the making of any reference at all to it.

As regards the first point, I am in agreement with the judgment of Jackson J., which I have had the advantage of reading in draft. On this aspect I will add only a few comments of my own. The guide referred to was prepared by the Repatriation Commission pursuant to s.29(1) of the Veterans' Entitlements Act 1986, and was approved by the Minister of State for Veterans'

Affairs in accordance with s.29(3) of that Act on 22 May 1986.

The preface to the guide states that "it attempts to provide rules of assessment which are clear and can be applied uniformly." In the formulation of those rules, concepts have been utilized which were taken from materials prepared by the American Medical Association and the World Health Organization. For the purposes of the present case, it is important to note

also that it is stated:

"Information for the hearing section has been taken from material supplied by the National

7.

Bid

Acoustic Laboratory ... .«

It will be observed that in the passage I have quoted from the reasons of the Tribunal Table 10 is twice referred to, but no other part of the guide is specifically mentioned. Table 10 is the table concerned with ear, nose and throat disorders, and it includes a table providing impairment ratings for conditions of vertigo of varying severity. A note to that part of the table indicates that a portion of the American Medical Association's guide "has been adapted by incorporation of criteria, tables, and procedures determined by the National Acoustic Laboratory, Commonwealth Department of Health, October

1974."

This Court has held that the Administrative Appeals Tribunal, which by s.33(1)(c) of its Act, is "not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate", is entitled to refer to medical dictionaries and medical texts not cited to it by the parties:

McMullen v. Commissioner for Superannuation (1985) 61 A.L.R. 189;

Kirkpatrick v. Commonwealth of Australia (1985) 9 F.C.R. 36 at

41-2. In my view, the Tribunal was similarly entitled to refer to Table 10 to assist it in understanding and applying the medical and accoustic concepts involved in the present case, even if the guide had no statutory status by virtue of the combined

operation of s.27(2) of the Veterans' Entitlements (Transitional

Provisions and Consequential Amendments) Act 1986 and s.43(1) of the Administrative Appeals Tribunal Act 1975.

8.

But the applicant then contends that the Tribunal's

reference to s.27(2) of the Veterans' Entitlements (Transitional

Provisions and Consequential Amendments) Act 1986, without noting

that this provision was amended by s.5 of the Veterans'

Entitlements (Transitional Provisions and Consequential

Amendments) Amendment Act 1986, shows that the Tribunal was

purporting to do much more than that, and to utilize the guide as the determinant of the appropriate decision. I do not think that this is so. It would have been, if not pedantic, at least unnecessary on the part of the Tribunal to have referred to the Amendment Act: a simple reference to a section which has been amended must be read as a reference to the section as amended. In the case of these Acts, the Amendment Act came into operation upon the same day upon which the Act it amended came into operation. Together, the two Acts constituted the charter for the transitional implementation of the new Veterans' Entitlements Act 1986. Both were referred to in written submissions to the Tribunal, and in any case it is impossible to suppose that the Tribunal was unaware of both, just as it is impossible to suppose that the Tribunal and the parties (who had the benefit of legal advice) were unaware of the guide which had been adopted as a central feature of the new legislative scheme to be ushered in by

these transitional provisions.

But if there be any doubt what use the Tribunal made of the guide, I think it is removed by considerations arising from the language of s.27(2) itself. It is only "if it is of the opinion that the material before it is sufficient to enable it to

do so" that the Commission "may make its decision according to

, 9.

the provisions of the approved Guide to the Assessment of Rates

of Veterans' Pensions." The Tribunal did not express that opinion, nor could it have reached that opinion, since such a use of the guide would have required the availability of documents (for example, the Lifestyle Questionnaire and medical comments thereon) for which the guide provided, and which were simply not available since the guide did not exist at the time the present Matter was initiated. I have not overlooked that there is provision in the guide for the contingency of an exceptional situation arising where some of this information is not available; but there is no sign in the Tribunal's reasons of any advertence to those exceptional provisions. Furthermore, what the Tribunal said it had done was that it had "taken into account" the guide, "particularly Table 10, in considering what is an appropriate race". Again, it said: "Bearing in mind the provisions of Table 10... ." This is not the language of s.27(2), which says the Commission "may make its decision according to the provisions of the approved guide". I do not think the reference to s.27(2) in the Tribunal's reasons can be pressed so far as to enable the conclusion to be drawn, in the face of the language in which the Tribunal expressed what it actually did, that it was purporting to apply s.27(2). I think rather the words relied upon ("see s.27(2)") were inserted to indicate the general relevance of the guide to the exercise being carried out. That part of the guide actually utilized appears

simply to have been Table 10, as was entirely appropriate.

Finally, on this aspect, the applicant urged that the

use of the guide for any purpose involved a denial of natural

10.

justice. I have already pointed out that the guide is an essential feature of the new dispensation for which the transitional provisions the Tribunal had to apply were designed to prepare the way. It was not a document the existence of which could have been unknown to either party, or the possible significance of which to the decision to be made either party could have imagined was hidden from the Tribunal. In fact the applicant's advisers were aware of the possibility that the Tribunal might utilize the guide; they availed themselves of their right to make submissions about it, commenting on its treatment of "lifestyle effects", and they submitted that it was not applicable in the circumstances. They argued the earlier 1973 guide prepared by the department should be utilized instead. The fact that the respondent also relied before the Tribunal on the 1973 guide is not to the point: the point is that the guide was not material used against the applicant without his submission upon it being heard - he had made his submission,

having chosen the issue on which he would rely in respect of it.

In McMullen's case and in Kirkpatrick's case reference

was made to the statement of Deane J. in Minister for Immigration

and Ethnic Affairs v. Pochi (1980) 44 F.L.R. 41 at 63, where he

said of the rules of natural justice:

"(T)he precise content of those rules will

vary according to the statutory framework of the particular proceedings and the particular circumstances of the individual case."

In the particular circumstances of this case, I do not

think the rules of natural justice forbad the Tribunal, once it

.

. ll.

had rejected the submission that the guide was not relevant, to have regard to the guide in considering the appropriate rate on

the basis of the evidence before it.

It remains to consider the applicant's submission that

the Tribunal misunderstood the effect of s.7 of the Veterans'

Entitlements (Transitional Provisions and Consequential

Amendments) Act 1986. Subsection (1) of that section originally

provided as follows:

"7.(1) Where, after the commencing date -

(a) approval is given by the Commission, the Board, or the Administrative Appeals Tribunal for payment of a pension, or for payment of a pension at a higher or lower rate, to be made from a date before the commencing date; or

(b) the Commission, the Board or the Administrative Appeals Tribunal is reviewing the rate at which a pension was payable before the commencing date,

the rate at which that pension may be paid at any time before the commencing date shall be assessed by reference to the relevant provisions of the repealed Acts as in force at that time but otherwise in accordance with the provisions of the Veterans' Entitlements Act and the principles applicable under that Act."

However, the section was amended by s.99 of the Social Security

and Veterans' Affairs (Miscellaneous Amendments) Act 1986 by the

omission from subsection (1) of the words "the relevant provisions of the repealed Acts as in force at that time" and the substitution of the words "the rate or maximum rate in the

repealed Acts as in force at that time that corresponds with the

12.

appropriate rate in the Veterans' Entitlements Act." The Social

Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 was assented to on 27 October 1986, that is after the

decision of the Administrative Appeals Tribunal in the present case. But s.2(2) provided that (inter alia) s.99 "shall be deemed to have come into operation on 22 May 1986." That was of

course the date on which the Veterans' Entitlements (Transitional

Provisions and Consequential Amendments) Act 1986 itself came

into effect.

In my view, even before the amendment to which I have referred, s.7 evinced a clear legislative intention that in a case such as the present, while the rate at which a pension might be paid at a time before 22 May 1986 was to be assessed by reference to the relevant repealed provisions in force at the time in question, the determination was otherwise to be made in

accordance with the provisions of the Veterans' Entitlements Act.

At all events the amendment makes it clear, retrospectively, that

this construction is required.

For these reasons the appeal must be dismissed with

costs.

I certify that this and the

preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of his

Honour Mr. Justice Burchett.

Chan Chat; Associate

Dated: (CM /7€7

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G484 of 1986

wee ew

GENERAL DIVISION

ON APPEAL from the Administrative Appeals' Tribunal in the Veterans' Appeals Division

BETWEEN ; WILLIAM DONNELLY

Applicant AND: REPATRIATION COMMISSION Respondent CORAM: LOCKHART, BURCHETT AND JACKSON JJ. DATE: 13th May 1987 PLACE: Sydney

REASONS FOR JUDGMENT

Jackson J.: The appellant appeals to the Court pursuant to s.44 of the Administrative Appeals Act 1975 from a decision of the Administrative Appeals Tribunal delivered on 3rd October 1986. The decision affirmed a decision of the Veterans' Review Board made on 20th September 1985 which itself affirmed a decision of the Repatriation Commission made on 5th March

1985.

The decision of the Repatriation Commission was that

the applicant was entitled to 80 percent of the "General Rate" of pension for a service-related disability of "Menieres

disease with sensori-neural deafness".

The appellant served in the Australian Army in World War II as a gunner. His hearing problems, apart from any deafness brought on by such service, appear to be the result

of the explosion close to him of a practice grenade at

Canungra in May 1945.

The history of the appellant's entitlement to pensions since then is conveniently summarised in the

Tribunal's Reasons for Decision in the following way:-

"The applicant, William Donnelly, served in the Armed Forces during World War II. In 1948 he was awarded a pension at the rate of 10 percent for left ear deafness. In 1970 his accepted disability was amended to the description given above and the pension rate increased to 30 percent and on 27th January 1982 the rate was increased to 80 percent.

On 7th August 1984 the applicant applied for a further increase in pension but this was rejected.

As mentioned above, on 20th September 1985, the Veterans' Review Board affirmed the original decision and refused to increase the pension beyond the 80 percent rate. The question for determination by this Tribunal is whether the applicant's war service

pension should be increased beyond the 80 percent rate,"

$.44(1) of the Administrative Appeals Tribunal Act

permits an "appeal" to this Court from a decision of the Tribunal on a question of law. Various questions of law were

argued before us on the hearing of these proceedings but it

"seems unnecessary to deal with them all. It is also, I think, undesirable to enter upon issues which it is strictly unnecessary to decide because the number of persons potentially affected is considerable and it is impossible to attempt to predict the numerous factual situations in which

questions may arise under this complicated legislation.

The issues upon which the appeal appears to me ultimately to turn relate to the question whether it was appropriate for the Tribunal to take into account, in the manner in which it did, a document which is the "Guide to the Assessment of Rates of Veterans' Pensions". It is convenient at this point to mention that the Tribunal referred to the

Guide in two places in its Reasons for Decision. First it

said:-

"The Tribunal has also taken into account the Guide to the Assessment of Rates of Veterans' Pensions, published by the Department of Veterans' Affairs, 1986, particularly table 10, in considering what is

an appropriate rate (see s.27(2) of the Transitional Act)."

and at a slightly later point:-

"Bearing in mind the provisions of Table 10 and Dr Bulteau's opinion that the applicant is capable of doing the sort of work for which he was trained and of doing some sort of work, even if the work of selling used cars is excluded but valuing used cars is included, the Tribunal is left with the opinion that the decision of the Veteran's Review Board is correct and that the proper rate to apply to the applicant is the 80% rate. Accordingly there is no need to consider questions arising under ss.23 and 24 of the Act. The Tribunal affirms the decision under review."

The "Guide" in question is one for the existence of which there is statutory authority, provided by s.29(1) of the Veterans' Entitlements Act 1986 which is as follows:-

"(1) The Commission may, from time to time, prepare a

written document, to be known as the "Guide to the

Assessment of Rates of Veterans' Pensions" setting

out -

(a) criteria by reference to the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and

(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum."

Power is given to the Commission by s.29(2) to vary or revoke that Guide from time to time by instrument in writing. The. Guide both in its original form and as varied from time to

time has no force and effect unless and until approved by the

Minister (3.29(3)).

The Guide to which reference was made by the Tribunal was approved by the Minister pursuant to s.29(3) on 22nd May 1986 and it provides for the assessment of incapacity by reference to the impairment of any body part, system or function and by any effects on the incapacitated individual's lifestyle. The application of the Guide produces a determination of incapacity which is to be a figure in the

range of 0-100 percent. The figure so determined must be a

multiple of 10 percent. See s.22(5).

An obligation to apply the Guide is to be found in $s.22(4) and 29(4) of the Veterans' Entitlement Act. In this

regard s.22(4) relates to the Repatriation Commission and

provides that:-

"(4) The Commission shall ... determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the

provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions."

$.29(4) deals with the position of the Commission, the Veterans' Review Board and the Administrative Appeals Tribunal. It provides, insofar as the Administrative Appeals

Tribunal is concerned, that:-

""(4) Where ... the Administrative Appeals Tribunal is required to ... review the assessment or reasessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on ... the Administrative Appeals Tribunal ... in, and in connection with, the carrying out by that ... review, and the ... review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions."

So far no particular difficulty arises. But the Veterans' Entitlement Act only came into force on 22nd May 1986 and the decisions of the Repatriation Commission and

Veterans' Review Board in this case were made prior to that

date. It is thus necessary to look at the transitional

provisions which were enacted to deal, inter alia, with such

cases.

The legislation which was replaced by the Veterans' Entitlements Act was the Repatriation Act 1920. The transitional legislation was the Veterans' Entitlements

(Transitional Provisions and Consequential Amendments) Act

1986 as amended by the Veterans' Entitlements (Transitional

Provisions and Consequential Amendments) Amendment Act 1986.

The last mentioned Act provided by s.2 that it was to Come into operation immediately after the former Act came into operation. In the event the two Acts also came into operation

on 22nd May 1986.

One feature of the Acts making transitional provision was that provision was made regulating the application of $5.22(4) and 29(4) of the Veterans' Entitlements Act to determinations made in the period after commencement of that

Act. That provision was made by s.27 of the Veterans'

Entitlements (Transitional Provisions and Consequential

Amendments) Act, as amended by the Veterans' Entitlements

(Transitional Provisions and Consequential Amendments)

Amendment Act.

The provisions of the relevant parts of s.27 as so

amended are as follows:-

"(1) Subject to sub-s.(2) of this section, sub-sections 22(4) and 29(4) of the Veterans' Entitlements Act do not apply to a determination of the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, made by the Commission before 1 November 1986.

(2) Where, on or after the commencing date and before 1 November 1986 the Commission is making a determination of the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, it shall make its determination having regard to the material before it and, if it is of opinion that the material before it is sufficient to

enable it to do so, it may make its decision according to the provisions of the approved Guide to

the Assessment of Rates of Veterans' Pensions.

(2A) Where, on or after the commencing date and before 1 November 1986, the Commission makes a decision determining the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions, it shall state in that decision that the degree of incapacity was determined according to the provisions of that Guide.

(2B) Subject to sub-section (2C) of this section, sub-sections 22(4) and 29(4) of the Veterans Entitlements Act do not apply to a determination with respect to the degree of incapacity of a veteran from war-caused injury or war-caused disease or both -

(a) made by the Board upon a review of a decision of the Commission made by the Commission before 1 November 1986; or

(b) made by the Administrative Appeals Tribunal upon a review of a decision of the Board affirming or setting aside such a decision of the Commission.

(2C) Where, on or after the commencing date and before 1 November 1986, the Commission makes a decision determining the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, and states in the decision that the degree eof incapacity was determined according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions -

(a) the Board shall, if it reviews that determination; or

(b) the Administrative Appeals Tribunal shall, if it reviews a decision of the Board affirming or setting aside that determination,

make its decision on the review with respect to that

degree of incapacity according to the provisions of

that Guide."

As is apparent from the terms of the section, s.27(1) provides that ss.22(4) and 29(4) of the Veterans' Entitlement Act do not apply of their own force to determinations made by the Commission before lst November 1986. $S.27(2)}, however, empowers (but does not compel) the Commission to make its decision according to the Guide if, on the material before the Commission, it is satisfied that the material before it is sufficient to empower it to do so. If the Commission does apply the Guide in such a case it must state in its decision that it has done so (s.27(2A)) and in such a case both the Veterans' Review Board and the Administrative Appeals Tribunal in subsequent proceedings in relation to that decision are also obliged to apply the provisions of the Guide (s.27(2C)). In all other cases the terms of ss.22(4) and 29(4) do not apply to a determination made by the Administrative Appeals Tribunal before the review of a decision of the Repatriation

Commission made before lst November 1986. See s.27(2B)(b).

The effect of s.27(2B)(b) is no doubt to negate the possible effect of that part of s.43(1) of the Administrative

Appeals Tribunal Act which provides that:-

"(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactments on the person who made the decision ...".

The question which then arises is whether the legislative intent to be found in the provisions to which I have referred is that not only is the requirement that the Guide be used not to apply to those reviews referred to in

s.27(2B)(b) but also that provisions of the Guide may not be

referred to at all by the Tribunal in such cases.

The terms of 3.27 do nat seem to require that the Tribunal necessarily exclude all the terms of the Guide from consideration when reviewing a decision to which s.27(2B(b)

applies. Much will depend on the terms of the Guide, of

course, and it may be that some of the matters contained in the Guide are of assistance to the Tribunal. The nature of the matters to be contained in the Guide (see 5.29(1) of the Veterans' Entitlements Act) is such that some of it may, not

necessarily will, provide some assistance to the Tribunal.

Accordingly I reject the view that the Tribunal could not look at the Guide, or any part of it, for any purpose

relevant to the present case.

The issue which arises, however, is whether the

Tribunal, in relying on the Guidelines, afforded natural

justice to the appellant.

wee eee

10.

In this regard, it is clear that the Tribunal is bound to apply the notion of "procedural fairness" referred to by Mason J. in Kioa v. West (1985) 60 A.L.J.R. 113 at 127.

See e.g. s.39 of the Administrative Appeals Tribunal Act which requires the Tribunal to ensure that every party toa proceeding before it is given "a reasonable opportunity to present his case" including in particular a reasonable opportunity "to make submissions in relation to" "any documents to which the Tribunal proposes to have regard in

reaching a decision in a proceeding".

As is apparent from the remarks of Mason J. in the passage to which I have referred and as is apparent from the term "reasonable opportunity" in s.39, the steps in practice necessary to comply with those concepts depend very much on

the particular circumstances of each case.

Here the significant factor relates to the submissions of the parties concerning the use to be made of the 1986 Guidelines. In this regard the proceedings before the Tribunal were proceedings in which the parties did not address the Tribunal orally at the conclusion of the evidence before it. Rather they provided written submissions. In the appellant's written submissions, it was contended that the Guidelines were not applicable to the review by the Tribunal.

The respondent's written submissions adopted a similar

ll.

approach, and neither, set of submissions canvassed the possible application of the Guidelines to the case.

In these circumstances my view is that if the

Tribunal intended to refer to the Guidelines as an aid to reaching its decision, the requirements of s.39, and of "procedural fairness", were such that it should have given the parties an opportunity to place before it their submissions on

the application of the Guidelines.

In my opinion, the failure of the Tribunal so to do was an error of law, and I would allow the appeal, set aside the Tribunal's decision and remit the matter to it to be dealt

with according to law.

I certify this and the /O preceding pages to be a true copy of

the Reasons for Judgment of his Honour Mr Justice Jackson.

Associate: Yuleam Hassuaer

Date: /3 Mow » 1987,

Counsel for the Appellant: G.B. Hall Q.C. and G. Miller Solicitors for the Appellant: Australian Legal Aid Office Counsel for the Respondent: D.K. Catterns Solicitors for the Respondent: Australian Government

Solicitor.