Case: Davis v Repatriation Commission (1997) 74 FCR 577
Outcome: followed
The construction of s 31(4) urged by Mr Godwin was also said to be implicitly supported by the administrative decision-making hierarchy proceeding from the Commission, thereafter to the Board, and finally to the Tribunal. It was understood that the submission advanced was that s 31(4) was to be confined to the initial repository of decision-making authority and not to be extended to decisions which had been exposed to further administrative review. Albeit in the context of s 31(6), the same argument has been rejected: Davis v Repatriation Commission (1997) 74 FCR 577. Sundberg J there observed: The applicant's alternative argument took as its starting point the hierarchy of decision-making established by the Act. The hierarchy consists of the Commission as primary decision-maker, the Board as the second tier decision-maker, and the AAT as the third tier decision-maker and ultimate forum of merits review. It was said that the review mechanisms provided by s135 and s175 were intended to result in the final disposition of claims. It was submitted that while the word "matter" standing alone would receive a wide construction, in the context of the review provisions as a whole it must be limited to a degree which is necessary to achieve finality in the disposition of claims. If s31(6) is not limited in this manner, the Commission could review decisions of the Board or the Tribunal again and again on any pretext in defiance of the review hierarchy. The limitation contended for was not more precisely formulated than this, but was said to lead to the conclusion that a medical report which merely repeats and endorses the conclusions in other reports based on documented observations, and which contains no new observation, fact, cause, circumstance, information, opinion or contention, is not capable of being a matter which was not before the Board when the decision to grant the pension was made. It was accepted that a medical report which was brought into existence to take into account some change in the facts and circumstances, or facts or circumstances not previously disclosed, might be in a different position. I see no reason to limit the ordinary meaning of the words "any matter that affects the payment of a pension ..., being a matter that was not before the ... Board ... when the decision to grant the pension ... was made" in the manner contended for. The "hierarchy" argument, which purports to be based on the structure of the review provisions of the Act, ignores the fact that s31 itself contains no less than seven exceptions to the simple three tier structure on which the submission is based. Far from supporting the contention that s31(6) would, unless narrowed, permit the Commission to review decisions of the Board or Tribunal in defiance of the review hierarchy, a reading of the relevant parts of the Act as a whole shows that the three tier review structure contended for is simplistic. Not only does s31 provide a number of additional grounds of review, but decisions made pursuant to the section are themselves subject to review under s135(3). ... The fact that s31(6) may be open to abuse (repeated reviews on any pretext), does not in my view require it to be read down. A capricious or unreasonable exercise of the power will be susceptible to review under s5 of the Administrative Decisions (Judicial Review) Act . For present purposes there is not considered to be any relevant distinction as between s 31(4) and s 31(6). 19 The alternative submission advanced on behalf of s 31(4) should also be rejected. This alternative argument assumed that s 31(4) did confer a power upon the Commission to undertake a review -- even after a Tribunal decision -- but contended that there was no power to do so in the present proceedings because there was no evidence which was " false in a material particular ". " False ", it was contended, should be interpreted as meaning " deliberately untruthful ". 20 There are at least two difficulties in acceding to this alternative submission. 27 The Applicant concedes that the power conferred by s 31(6) may be exercised after there has been a review by the Tribunal. Given both the terms of s 31(6) and the decision of Sundberg J in Davis , that concession was quite properly made. 28 The Applicant, however, contends that there is in the present proceedings no " matter " which was not before the Tribunal. Reliance is placed upon the following observations of Sundberg J in Davis : ... The power in s31(6)(a) is available to the Commission only if it is satisfied of the existence of a matter that affects the payment of a pension and which was not before the decision-maker. If the " new material " is no more than a repetition of material that was before the decision-maker, it would not be reasonably open to the Commission to be relevantly satisfied that the material " affects the payment of a pension ". 29 The Applicant has variously identified the " matter ". It is understood that the " matter ", as defined by the Applicant, was whether or not the sampan incident occurred. The contention sought to be advanced is that the material relied upon by the delegate was, presumably, " a repetition of material that was before the decision-maker ". 30 It is considered that this submission should also be rejected for at least two reasons. 31 First, the term " matter " can include new evidence relevant to the manner in which the prior decision was made. Section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the power of review where new evidence or other material becomes available which has not previously been considered. And it may not matter that that new material was available even at the time when the Tribunal made its decision. Thus, Sundberg J went on to conclude in Davis as follows: It was also submitted for Mrs Davis that because Professor Cade's report had been received in time for it to be used by the Commission in support of an application for review of the Board's decision by the AAT, it could not found an exercise of the Commission's power to review the Board's decision under s31(6)(a). A variation of this argument was that the Commission, having had a reasonable opportunity to put Professor Cade's report before the AAT, had not done so, and so was not able to use the report to found an exercise of power under s31(6). These assertions were not developed in argument, and in my view they have no substance. If material becomes available after the relevant decision is made, and it affects the payment of a pension, the power in s31(6)(a) is available to the Commission. It is simply irrelevant that it becomes available at a time when the Commission might seek a review by the AAT. The Commission may engage in conduct which disables it from taking a particular course, but in the absence of any such conduct, it can pursue whichever avenue it chooses. The second argument advanced has overtones of estoppel without any factual basis to support the estoppel. Further, in Repatriation Commission v Richardson [2001] FCA 1626 at [15] [18], [2001] FCA 1626 ; 115 FCR 220 Dowsett J concluded that it was open to the Commission pursuant to s 31(6) to have regard to material of which it was ignorant at the time the original decision was made to grant a pension. 32 Section 31(6) should not be construed as excluding from the term " matter " new evidence, albeit evidence in relation to an area of factual dispute previously resolved. In Davis, it may be noted, the new evidence which satisfied the requirements of s 31(6)(a) was a medical report which " contained an expression of opinion from a highly qualified medical specialist, based on contemporary clinical and laboratory evidence, that persuasively identified the cause of death to the exclusion of other possible causes ". 33 Second, there is the same difficulty as confronted the Applicant with respect to s 31(4), namely that the power conferred by s 31(6) is a power vested in the Commission if it is "satisfied " of the matters there set forth. The contents of the 2007 report provided a basis for reaching that state of " satisfaction ". 34 Section 31(6) was thus also a basis for review open to the delegate.