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Oldmeadow v Repatriation Commission

[2012] FCA 1079

COURT Federal Court, Adelaide
JUDGE Mansfield J
DATE OF DECISION 10 May 2013
DECISION The appeal was dismissed
ISSUES Whether AAT review confined to matters considered by the VRB

Facts

The issue in this case was the rate of Mr Oldmeadow’s disability pension. On 30 May 2008 the Repatriation Commission decided Mr Oldmeadow met the criteria for payment of the Extreme Disablement Adjustment (EDA). It did not accept he was entitled to the Special Rate of pension.

This decision was affirmed by the Veterans’ Review Board (VRB). Mr Oldmeadow sought further review by the Administrative Appeals Tribunal (Tribunal), who affirmed the decision under review. Mr Oldmeadow appealed the decision of the Tribunal to the Federal Court.

Grounds of appeal and Court’s Consideration

Section 24(2A) was the relevant provision of the Veterans’ Entitlements’ Act 1986 (VEA), which prescribes six criteria for eligibility for the Special Rate of pension:

  1. turned 65 before the claim is made: s24(2A)(b);
  2. had a degree of incapacity from war-caused injury or war-caused disease of at least 70%: s24(2A)(c);
  3. because of incapacity from war-caused injury or war-caused disease, is unable to undertake the remunerative work that he was last undertaking: s24((2A)(d);
  4. is suffering a loss of earnings as a consequence: s24(2A)(e);
  5. was undertaking his last paid work after he turned 65: s24(2A)(f); and
  6. when the veteran stopped his last paid work, he had been working for a continuous period of at least 10 years: s24(2A)(g).

It was common ground that Mr Oldmeadow met the first three criteria. The Commission found he had not worked past the age of 65, therefore s24(2A)(f) was not satisfied.  It is now accepted by the Commission that Mr Oldmeadow did work past the age of 65.  The VRB addressed criteria 4, 5 and 6 and was not satisfied he met s24(2A)(e).  The Tribunal addressed the preliminary issue of whether Mr Oldmeadow met the 10 year requirement in s24(2A)(g), and found it was not met by a few months.  The Tribunal accepted evidence that he started work with the Australian Bureau of Statistics in September 1993, rather than May 1993 as accepted by the VRB.

In his application under s44 of the Administrative Appeals Tribunal Act 1975, Mr Oldmeadow raised the question of whether the AAT had the jurisdiction or power to consider and determine the “preliminary question”, as the Commission did not consider that question, and his application to the VRB and the Tribunal did not seek review “in relation to” that question.  The Federal Court took the view that the Tribunal was entitled to consider, on its review of the Commission’s decision, whether Mr Oldmeadow satisfied the 10-year criterion.  His Honour referred to Bramwell v Repatriation Commission (1998) 158 ALR 623 in which Weinburg J indicated “it is the decision of the Commission and not its reasons for decision which the AAT is to review.”  In the present case, His Honour stated:

The scope of the relief available to the AAT on a review of a decision supports the conclusion that it must consider the decision afresh, and may substitute the correct and preferable decision and not simply be confined to the particular issue addressed by the Commission.  If it were satisfied that the reason for the decision of the Commission was wrong (as was acknowledged), if it could not go beyond that issue, it could not substitute the correct or preferable decision.  It would need additionally to address the other criteria for qualifying for the special rate of pension.  As Weinburg J pithily said in Bramwell at 632, “There is either a hearing de novo, or there is not”.

Mr Oldmeadow’s application under s5 of the Administrative Decisions (Judical Review) Act 1976 was also considered by the Court.  The first ground was rejected, as it was the same error of law argued above under s44 of the AAT Act.  Regarding grounds 2(a), 3 and 4, the Court considered that the material relied upon by the Tribunal was capable of supporting its findings of fact, namely that Mr Oldmeadow commenced employment on 27 September 1993, so that the criterion in s24(2A)(g) was not satisfied.  Regarding the ground 2(b) - a failure to take into account relevant considerations - the Court did not consider this ground of review had been made out.  His Honour referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 in which Mason J said that ground is only made out if the decision maker fails to take into account a consideration which he or she is bound to take into account.  In the present case, the relevant consideration was whether the criterion in s24(2A)(g) was established, and clearly the Tribunal took that into account.  Secondly, there was no basis for concluding, due to its brief reasons, the Tribunal did not take relevant considerations into account.  In conclusion, the Court did not consider the Tribunal’s decision was so unreasonable that no reasonable person could have reached the decision it reached, citing McVeigh v Willarra Pty Ltd [1984] FCA 379; (1984) 6 FCR 587, and its critical finding of fact was not unsupported by evidence: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39.

The Court’s Decision

The Appeal was dismissed

Editorial note

In this case, the Tribunal review was not confined to matters considered by the VRB.  The Tribunal correctly reviewed the whole decision, even if that involves considering matters not considered by the original decision-maker.

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