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No.13 July 2008

Godwin v Repatriation Commission

[2008] FCA 576

COURT Federal Court, Sydney
DATE OF DECISION 30 April 2008
DECISION Appeal dismissed
ISSUES Decision of AAT – subsequent section 31 review decision – section 31 review not beyond power – no misuse of section 31 decision


Mr Godwin rendered operational service in Vietnamese Waters on board HMAS Sydney. He lodged a claim for disability pension in respect of post traumatic stress disorder (PTSD). A delegate of the Repatriation Commission (Commission) refused his claim. The decision was affirmed on review by the Veterans’ Review Board (VRB). Mr Riley sought further review by the Administrative Appeals Tribunal (Tribunal).

The Tribunal concluded that Mr Godwin’s PTSD was war caused, accepting that he had witnessed in Vung Tau harbour the destruction of a civilian sampan by a United States patrol boat. The claim was remitted to the Commission to assess the rate of pension payable.

The Commission determined the rate of pension and Mr Godwin appealed to the VRB. The VRB affirmed the decision and Mr Godwin sought further review by the Tribunal. The Tribunal decided that Mr Godwin was entitled to pension at the Special Rate.

Immediately subsequent to the decision of the Tribunal, a delegate of the Commission made a decision that Mr Godwin’s PTSD was not war caused and assessed pension at 10% of the General Rate. This decision was a product of a review undertaken pursuant to section 31(4), (6) and (7) of the Veterans’ Entitlements Act 1986 (VEA).

Mr Godwin sought to challenge the Commission’s review decision in the Federal Court via the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

The applicant’s position

The applicant contended that:

Section 31(4)

Section 31(6)

Res Judicata and estoppel

Conduct of the Commission in undertaking the s 31 review

A breach of section 178

The Court’s consideration

Section 31(4)

Justice Flick considered that section 31(4) conferred a power to review a decision after a decision of the Tribunal. His Honour noted that a statutory provision which permits further administrative reconsideration subsequent to a Tribunal decision is not surprising: see eg Hanna v Australian Postal Corporation (1990) 12 AAR 511.

Secondly, Justice Flick considered that the meaning of the term “false” in the context of section 31(4), is considered to mean “objectively incorrect”. His Honour noted that the conclusion of the delegate could not be construed as anything other than a conclusion that the account given by the applicant regarding the destruction of a civilian sampan was “objectively incorrect”. As such, it was open to the Commission to exercise the power of s31(4) as there was material upon which the delegate could be “satisfied” that the evidence previously before the Commission was “false” in a material particular.

Section 31(6)

Justice Flick considered that a “matter” can include new evidence relevant to the manner in which the prior decision was made. His Honour noted that section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the review power where new evidence or other material becomes available which had not been considered. In addition, it does not matter if that new material was available at the time when the Tribunal made its decision. His Honour said:

[32] Section 31(6) should not be constructed as excluding from the term “matter” new evidence, albeit evidence in relation to an area of factual dispute already resolved.

Res Judicata and estoppel

Firstly, his Honour noted that, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel: WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294 at 315.

Secondly, Justice Flick considered that the conclusiveness of any administrative determination must be dictated by reference to the statutory regime pursuant to which the decisions are made. His Honour noted that the VEA expressly reserves the right for the Commission to conduct a review, even after a decision has been made by the Tribunal. His Honour said:

[38]…The power conferred by s31 to undertake a review is an answer to any submission as to res Judicata or estoppel.

Conduct of the Commission in undertaking the s 31 review

Justice Flick considered that there had been no “misuse” of the discretionary power conferred by s31. Nor did his Honour consider it “contrary to the public interest” to exercise that statutory power in the present case. Further, his Honour said:

[47] In the present case there is no basis for concluding – as submitted on behalf of Mr Godwin – that the delegate was “off on a frolic to disprove the Applicant’s entitlement.”…even if the solicitor’s account of the conversations with the advocate prevail, those conversations do not support any conclusion that there had been an unreasonable exercise of power in bad faith.

A breach of section 178

Justice Flick noted that the Tribunal had granted the applicant pension at the Special Rate from 5 May 2005 – and said nothing as to the period prior. Further, that the delegate conducting the s 31 review concluded that pension was assessed at 10% of the General Rate with effect from 2 August 2000. His Honour considered that the decision of the delegate did not purport to diminish the effect of the Tribunal’s decision, and in any event, the six month period referred to in s 178(1) had expired.

Formal decision

Justice Flick did not consider that any of Mr Godwin’s grounds of appeal had been made out. As such, his appeal to the Federal Court was dismissed with costs.

Editorial Note

The case of Godwin considered the scope of the power contained in s.31 of the VEA with respect to reviewing decisions previously made by the Tribunal. The general tenor of the Court’s decision is that s.31 of the VEA is very broad.

The Court considered that both s 31(4) and (6) conferred a power to review decisions previously made by the Tribunal.

Specifically, subsection 31(4) allows the Commission to review a decision, including one made by the Tribunal, where it was based on evidence that was “false in a material particular”. The Court held that false means ‘objectively incorrect’. However, it should be noted that use of the words ‘in a material particular’ in this section means that the Commission can only use s 31(4) where the objectively incorrect evidence has had a material influence on the outcome of the decision. This point was not at issue in the Godwin case.

Further, the Court held that s 31(6) also allows the Commission to review a decision, including one made by the Tribunal where:

Finally, the Court noted that if a review under s 31 is made within six months of a Tribunal decision, and it leads the Commission to vary pension assessment, that variation can only affect the period before the assessment period relevant to the Tribunal’s decision. However, once the six month period expires, the Commission is not restricted in such a way.

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