Case: Re Cotterell &amp; Repatriation Commission (2000) 31 AAR 184
Outcome: approved
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." 21 In the present case the Tribunal said of Re Cotterell 31 AAR 184: The learned Deputy President in that matter pointed out that when a matter of assessment is before this Tribunal it is not open to the respondent to challenge any prior decision which has determined that a condition is war caused. That is not to say, however, that that takes away from this Tribunal the responsibility to make its own decision standing in the shoes of the decision maker having regard to such medical reports as have been put before it. 22 The applicant submitted that it was not open to the Tribunal, as a matter of power or jurisdiction, to look behind the acceptance of epilepsy as war caused. 23 According to the applicant, the Tribunal was not at liberty to consider the acceptance of epilepsy afresh; the question of epilepsy being war-caused was not part of the "chain of review" before the Board and the Tribunal. All that was under review was the veteran's eligibility for the Special Rate of pension. Had the Tribunal approached the matter in the way suggested by the applicant then it might have concluded that the incapacity suffered by the late veteran could have been characterised as incapacity from war-caused injury or disease alone. 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.