Case: Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Outcome: referred to
The Tribunal is said to have erred in law by upsetting a finding of fact favourable to the late veteran and the applicant which had allegedly been made by the primary decision maker. In Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 Wilcox and Foster JJ held that the Tribunal was able to examine both the claim to entitlement and assessment of the rate of pension on a review by the Tribunal of a substituted decision by the Board under s 175(1)(b) (now subs (1)(c)) of the Act . However in Re Cotterell &amp; Repatriation Commission (2000) 31 AAR 184 Blow DP (as Blow J then was) said at [17]: "the structure of s 19 [of the Act ] makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused." 24 The applicant sought to distinguish Fitzmaurice 19 ALD 297, arguing that the present was a case not of review of a substituted decision, made by the Tribunal under s 175(1)(c) , but a review of an affirmed decision under s 175(1)(a). Section 175(1) provides: (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review: ... (c) of the decision made by the Board in substitution for the decision so set aside; 25 The respondent argued that the Tribunal had essentially affirmed the decision under review on the basis that it was not reasonably satisfied "that the [late veteran]'s loss of earnings on his own account was due to war-caused incapacity alone", and this was unquestionably supported by the evidence before the Tribunal. Indeed, the respondent submitted that the Tribunal could not lawfully disregard the diagnosed brain tumour when making an assessment of why the late veteran had been prevented from returning to work: see s 24(1)(c). 26 In any case, the respondent submitted, the applicant was wrong in contending that the Tribunal could not look behind the acceptance of epilepsy as war-caused, because the original decision of the delegate was in fact a decision with respect to whether the late veteran's epilepsy was war-caused and the rate of pension which the late veteran was entitled to receive. The respondent relied on Fitzmaurice 19 ALD 279 and suggested that the construction of the then s 175(1)(b) by Wilcox and Foster JJ offers a clear guide to the construction of the present s 175(1)(a). Adopting this construction, the phrase "the decision of the Commission that was so affirmed" in s 175(1)(a) of the Act means the decision of the Commission in relation to both entitlement and assessment. It may be noted that the phrase used in the current s 175(1)(b) is "the decision of the Commission as so varied", but, in the version of the Act considered in Fitzmaurice 19 ALD 297, the phrase "the decision made by the Board in substitution for the decision so set aside" (which now appears in s 175(1)(c)) , appeared in subs (1)(b). 27 The Tribunal gave an ex tempore decision and noted that its "oral reasons may reflect the inelegance" of such a decision. The transcribed reasons for decision should be reviewed respectfully and, to a degree, charitably. 28 It is first necessary to identify what the Tribunal did decide. In my opinion the respondent's suggested answer to this is correct. 36 In saying this, I assume that Blow DP was correct in Cotterell 31 AAR 184 in saying (at [17]): The structure of the Act is such that any claim to have a medical condition accepted as war-caused must be considered on its merits, free of the fetters of any earlier determination in respect of any related medical condition, whereas the structure of s.19 makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused. I am also prepared to assume that Blow DP's categorisation at [19] of Fitzmaurice 19 ALD 297 as "authority for the proposition that, on a review of a decision by [the] Tribunal, the whole of the decision can be reviewed", is correct and that such a conclusion need not detract from Blow DP's primary point in a case such as the present where all that was at issue was the quantum (and type) of pension payable.