Servos, M. v Repatriation Commission [1995] FCA 150

CATCHWORDS

EVIDENCE - fresh evidence - appeal to Federal Court of Australia from the Administrative Appeals Tribunal on a question of law pursuant to s. 44 of the Administrative Appeals Tribunal Act (1975) - whether jurisdiction of the court permits the reception of fresh evidence.

VETERANS' AFFAIRS - pension - special rate - appeal from decision of AAT - whether finding of the AAT that there is no entitlement to the special rate is supported by the evidence.

INTERPRETATION OF STATUTES - s. 24(1) of the Veterans' Entitlements Act (1986) - whether sub-sections (1)(a), (b) and (c) are to be read cumulatively or disjunctively.

Administrative Appeals Tribunal Act (1975) s. 44

Veterans' Entitlements Act (1986) s. 24(1)

Federal Court of Australia Act 1976 ss. 19 and 27

MICHAEL SERVOS v REPATRIATION COMMISSION

No. QG 69 of 1994

SPENDER J

BRISBANE

17 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) No. QG 69 of 1994

GENERAL DIVISION )

BETWEEN : MICHAEL SERVOS

Applicant

AND : REPATRIATION COMMISSION

Respondent

CORAM: Spender J

PLACE: Brisbane

DATE: 17 March 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

(i) the appeal be dismissed;

(ii)the applicant pay the respondent's costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) No. QG 69 of 1994

GENERAL DIVISION )

BETWEEN : MICHAEL SERVOS

Applicant

AND : REPATRIATION COMMISSION

Respondent

CORAM: Spender J

PLACE: Brisbane

DATE: 17 March 1995

REASONS FOR JUDGMENT

This is an appeal pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ('the Act') from a decision of the Veterans' Affairs Division of the Administrative Appeals Tribunal ('the AAT') which was constituted by Mr D. W. Muller, Senior Member, Captain E. T. Keane and Associate Professor B. A. Smithurst given on 27 April 1994 whereby the Tribunal affirmed a decision by the Veterans' Review Board refusing Mr Michael Servos ('Servos') a disability pension at the special rate pursuant to s. 24 of the Veterans' Entitlements Act 1986.

The legislative scheme with which this appeal is concerned is that which existed as a consequence of the amendments to the Veterans' Entitlements Act 1986 by Act No. 134 of 1988 which came into effect on 15 December 1988. The Act was subsequently amended by Act No. 98 of 1994 which

produced changes having effect from 1 June 1994. The entitlement of Mr Servos to a pension at the special disability rate depends on the provisions of the Act as they existed from 15 December 1988 but prior to those changes introduced on 1 June 1994.

The applicant in the present proceedings claims to be entitled to pension at the special rate; this claim is disputed by the Repatriation Commission. While there are other important questions raised by Mr Servos's appeal, the essential question is whether at the time of the determination by the AAT on 27 April 1994 the circumstances of Mr Servos satisfied the provisions of s. 24(1)(c) of the Act.

At the relevant time, that section provided as follows:

" 24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if:

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate;

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

..."

So far as is presently relevant, it appears that on 8 October 1991 Mr Servos applied for an increase in the general rate of pension payable to him. By a decision on 7 February 1992 the Commission determined that Mr Servos's pension should be at 90% of the general rate effective from 8 October 1991, but refused a pension at the special rate. On 25 June 1992 Mr Servos applied for an increase in the general rate of pension payable to him. On 4 August 1992 a delegate refused that application, although the reasons refer to an application on a different date. On 10 September 1992 Mr Servos applied for a review of that decision.

On 2 February 1993 the Veterans' Review Board granted to Mr Servos a pension of 100% of the general rate to apply as from 1 June 1992, but refused a pension to Mr Servos at the special rate referred to in s. 24 of the Act. The applicant sought review of that decision and the AAT heard that appeal on 30 March 1994. On 27 April 1994 it affirmed the decision of 2 February 1993 by the Veterans' Review Board, granting pension at 100% of the general rate and also affirmed the decision by the Veterans' Review Board refusing pension at the special rate. On 24 May 1994 an appeal was lodged against the decision of the A.A.T.

Section 44 of the Administrative Appeals Tribunal Act 1975 provides as follows:

" 44. (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

(2) Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal. "

What are said to be the questions of law raised on the appeal are as follows:

" (a) whether the applicant Michael Servos who was born on 16th April, 1926, was entitled to a pension at the Special Rate under Section 24 of the Veterans' Entitlements Act, 1986, on and from 15th December, 1988;

(b) whether the applicant Michael Servos who was born on 16th April, 1926, was entitled to a pension at the Special Rate under Section 24 of the Veterans' Entitlements Act, 1986, on and from 12th July, 1990, when he ceased full time employment;

(c) whether a veteran whose degree of incapacity from war-caused injury or war-caused disease, or both, had been determined by a determination that was in force to be at least 70% was entitled to a pension at the Special Rate under Section 24 of the Veterans' Entitlements Act, 1986. "

As argued, there are three important questions to be decided, the first two being questions of general importance. The first is whether, and to what extent, an applicant for review pursuant to s. 44 of the Administrative Appeals Tribunal Act can adduce evidence which was not before the Tribunal at the time of its decision.

The second question involves the interpretation of s. 24 as it then existed, it being asserted on behalf of the applicant that the provisions of s. 24(1)(a) and the provisions of s. 24(1)(b) and (c) were to be read disjunctively.

The third question, which is limited to the parties, is whether in the circumstances of this case, Mr Servos was within s. 24(1)(c) of the Act and therefore entitled to pension at the special rate.

Michael Servos was born on 16 April 1926 and served in the RAAF from 1944-1946 and then in the army from 1946-1976. He saw service in Korea and Malaya and subsequently was an instructor at Duntroon. Upon his retirement from the army in 1976, he received a DFRDB pension.

During his military service, Mr Servos acquired accountancy skills. In 1976 he joined the Australian Taxation Office, initially employed as an inspector and later as an auditor. Since 2 August 1967, the applicant has received disability pension at the following rates:

2. 8.67 20% of General Rate for Duodenal Ulcer

21. 8.67 40% of General Rate for Duodenal Ulcer

11. 3.69 60% of General Rate for Duodenal Ulcer plus Left Chronic Otitis Media and Bilateral Sensori-neural Deafness.

21. 5.70 70% for the said disabilities plus Hysteria

7. 2.92 90% for the said disabilities plus Cervical Spondylosis

2. 2.93 100% for the above-mentioned disabilities.

On 12 July 1990, the applicant ceased working with the Australian Taxation Office. He was then just over 64 years. He was entitled to continue working with the Australian Taxation Office until 16 April 1991. The application by Mr Servos for an increase in the general rate of pension payable to him was made on 25 June 1992 when he was 65 years of age.

The case for Mr Servos before the AAT was that he had intended to work for many years after ceasing his work with the Australian Taxation Office, but that his service related disabilities caused him not only to retire from the Australian Taxation Office earlier than he wanted, but also prevented him from working after retirement from the Australian Taxation Office.

The crucial findings by the AAT were expressed in paragraphs 9 and 10 of its decision:

" The Tribunal is satisfied that Mr Servos ceased working for ATO for many reasons. One of those reasons was his state of deteriorating health but it was by no means the sole reason. There were other factors such as age, office restructuring, the completion of a project, the opportunity to start with ITP and a desire to leave ATO. Similarly, the Tribunal is satisfied that the failure of Mr Servos to work for ITP was to some extent affected by his health but there were also the factors of his age and the compulsory fourteen week course which had an impact on his decision. The business of operating the courier truck did not get started because of the reluctance of Mr Servos' son to assist with that type of work.

The Tribunal finds that Mr Servos was not prevented from continuing to undertake remunerative work that he was undertaking, or intended to undertake, by reason of incapacity from war-caused injury or war-caused disease, or both, alone. There were many other factors. Consequently his circumstances do not satisfy the provisions of subsection 24(1)(c) of the said Act. He is not entitled to receive pension at the special Rate. "

On this appeal to the Federal Court, the applicant sought to introduce into evidence two bodies of additional material. The first concerned the extent to which applicants for a special rate of pension had been granted that rate; the effect of the material was to suggest that of those satisfying the requirement in s. 24(1)(a), namely, a disability in excess of 70%, only a small percentage, said to be 5.48%, had been granted a pension at the special rate. The second body of evidence which was sought to be put before the court concerned medical reports and statements by lay witnesses concerning Mr Servos and his medical condition. Each of the medical reports was dated at a time subsequent to the decision by the AAT on 27 April 1994, although it is fair to acknowledge that much of those medical reports related to his condition at times earlier than the decision by the Tribunal on 27 April 1994. There were, in addition, statements sought to be relied on by non-medical persons concerning the medical condition of Mr Servos at various times both preceding and subsequent to the determination by the Tribunal. The question arises whether the court should receive that material.

Section 44 of the Administrative Appeals Tribunal Act 1975 makes plain that appeals to this court are only on questions of law. In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs, New South Wales (No. 2) (1980) 3 ALD 38, Fisher J said at 48:

" Unless there is no evidence upon which the Tribunal can reasonably support its finding, it will not be in error on a question of law. It follows that if there is some evidence upon which the Tribunal can rely, the question whether the Tribunal has correctly determined that the vehicles were imported in an incomplete or unfinished state is a question of fact upon which there is no appeal to this court. As Diplock LJ (as he then was) said in R v. Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488:

' If it [the evidence] is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. '

It is my firm view that this court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. This does not mean that when an error of law is identified, the court should be reluctant to intervene. In fact, it is under a duty to do so. Rather it should heed the comments of Davies LJ (as he then was) in R v. Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No. 2) [1966] 2 QB 31 at 50:

' I should like to echo the words of my Lord, Lord Denning MR, in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946. '

As Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 38:

' ...by the system that has been set up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first. ' "

In my opinion there is no power in the Federal Court to receive what is said to be the 'fresh evidence' relied on by the applicant.

Section 19 of the Federal Court of Australia Act 1976 provides as follows:

" 19. (1) The Court has such original jurisdiction as is invested in it by laws made by the Parliament.

(2) The original jurisdiction of the Court includes any jurisdiction invested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. "

Section 24 of the Act provides for the appellate jurisdiction of the Court. It provides that the court has jurisdiction to hear and determine appeals from judgments of the Federal Court of Australia constituted by a single judge, appeals from judgments of the Supreme Court of a territory and, in such cases as are provided by any other Act, appeals from judgments of a court of a state other than a full court of the Supreme Court of a state, exercising federal jurisdiction.

Section 27 provides:

" 27. (1) In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a) on affidavit; or

(b) by video link, telephone or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c) by oral examination before the Court or a Judge; or

(d) otherwise in accordance with section 46. "

In the present case, the court is exercising the jurisdiction conferred by s. 19 of the Federal Court of Australia Act.

In Waterford v The Commonwealth of Australia (1987) 163 CLR 54, Brennan J said at 77-8:

" The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. As the purpose for which a document is brought into existence is a question of fact (per Jacobs J in Grant v Downs (1976) 135 CLR at p. 692), the contents of document 29 are immaterial to the question whether the A.A.T. has made an error of law on the material before it. "

In Brown v Repatriation Commission (1985) 7 FCR 302, the Full Court (Bowen CJ, Fisher and Lockhart JJ) said at 303:

" Counsel for the appellant submitted that, as the jurisdiction that the Federal Court exercises on appeal from decisions of the Tribunal is within its original, not its appellate, jurisdiction (see Federal Court of Australia Act (Cth), s 19(2)) the parties are not limited to the material which was before the Tribunal, but are entitled to adduce before this Court fresh evidence in support of or in answer to the appeal.

In our opinion there is a fundamental difference between appeals brought from decisions of Boards of Review to Supreme Courts pursuant to s. 196 of the Assessment Act and appeals brought from decisions of the Tribunal to the Federal Court under the Act pursuant to s. 107VZZH. "

And at 305 said:

" A more apt analogy to appeals pursuant to s. 107VZZH of the Act than appeals pursuant to s 196 of the Assessment Act is to be found in appeals to this Court from decisions of the Administrative Appeals Tribunal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:

' A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. '

That subsection is cast in substantially the same language as s 107VZZH(1) of the Act.

It has been held that appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 are more limited in scope than those under s 196(1) of the Assessment Act: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131; 3 ALD 38; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457; 2 ALD 561 per Northrop J at 446-468 and 568-570 respectively.

Accordingly, in our opinion the appeal to this Court from the decision of the Tribunal which was heard by the primary judge is limited to questions of law and did not extend to a general rehearing of the matter. "

In Minister for Immigration and Ethnic Affairs v. Gungor (1982) 63 FLR 441, Sheppard J at 453 said:

" ...it is appropriate to note certain matters that are self-evident, the first being that the jurisdiction of the court is limited to appeals on questions of law arising in the Tribunal's decision and to the determining of such questions of law. Such jurisdiction contrasts sharply with the jurisdiction of the Supreme Courts under s. 196(1) of the Income Tax Assessment Act 1936 where, provided the decision of the Board of Review involves a question of law, the Supreme Court 'may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment'. It is also axiomatic that, although styled 'an appeal' in the A.A.T. Act, this Court is acting in its original jurisdiction under s. 19 of the Federal Court of Australia Act 1976 and not pursuant to its appellate jurisdiction conferred by s. 24 of that Act. Such is the case notwithstanding the fact that this Court is, by virtue of s. 44(3) of the A.A.T. Act, of necessity constituted in this matter as a Full Court because only a presidential member of the Tribunal can exercise its jurisdiction in matters of deportation. "

In Mickelberg v The Queen (1989) 167 CLR 259, in which the nature of the appeal is quite different from the present, Mason CJ said at 265:

" Section 73 of the Constitution confers upon the High Court jurisdiction 'to hear and determine appeals from all judgments, decrees, orders, and sentences' of the persons and bodies referred to in that provision. The applicants contended that this power should be widely construed, that it contains no fetter preventing the Court from considering fresh evidence and that prima facie, apart from policy considerations, the Court is empowered to receive fresh evidence for the general purpose of doing justice.

True it is that the powers of the Court 'are of the widest character which true appellate jurisdiction may possess' (Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v. Dignan (1931) 46 CLR 73, at p. 87) and that s. 73 contains no express fetter preventing the Court from considering fresh evidence. But unless the reception of fresh evidence is truly a part of the Court's appellate jurisdiction, then the absence of such a fetter is irrelevant.

The authorities of this Court stand clearly for the proposition that the reception of fresh evidence is not a part of the appellate jurisdiction of the Court. "

At 267 he said:

" Since Ronald v. Harper, this Court has consistently maintained that it lacks power to receive fresh evidence, whether due to constitutional limitation or to the absence of express statutory authority: see Victorian Stevedoring (1931) 46 C.L.R. at p. 85, per Gavan Duffy C.J. and Starke J.; (1931) 46 C.L.R., at p. 87, per Rich J.; (1931) 46 C.L.R., at pp. 109-111, per Dixon J.; (1931) 46 C.L.R., at p. 113, per Evatt J.; Davies and Cody v. The King (1937) 57 C.L.R. 170, at p. 172, per Latham C.J.; Grosglik v. Grant [No. 2] (1947) 74 C.L.R. 355, at pp. 356-357, per Latham C.J., Rich, Dixon, McTiernan and Williams JJ.; Crouch v. Hudson (1970) 44 A.L.J.R. 312, per Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

Underlying this uninterrupted stream of authority are two propositions. The first is that an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below. It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing. Then the court of appeal is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters which have taken place subsequent to that decision. "

At 269 his Honour said:

" The second basic proposition underlying the stream of authority already mentioned is that s. 73, in conferring appellate jurisdiction on this Court, contains nothing to suggest that the Court is 'to go beyond the jurisdiction or capacity of the Court appealed from', to quote the words of Dixon J. in Victorian Stevedoring (1931) 46 C.L.R., at p. 109. Indeed, by differentiating between original and appellate jurisdiction and by making different provisions for their exercise, CH. III of the Constitution reinforces the notion that, when it refers to the appellate jurisdiction, it is speaking of appeals in their true or proper sense. "

At 298, Toohey and Gaudron JJ said:

" Ordinarily, an appeal raises the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question. However, some appellate courts are empowered to determine matters decided by a lower court by reference to evidence as it is before the appeal court: see Lloyd v. Wallach (1915) 20 C.L.R. 299, at p. 307, where Isaacs J. distinguished between a general Court of Appeal and a Court of Error. See also Ronald v. Harper (1910) 11 C.L.R., at pp. 77-78, per Griffith C.J. referring to the statutory jurisdiction of the Judicial Committee of the Privy Council.

Proceedings before an appellate court involving a determination by reference to evidence called for the first time in that court are commonly referred to as appeals. However, the function which is then embarked upon is discernibly different from the ordinary appellate function of determining whether or not the court appealed from ought to have arrived at the decision in question. It involves the appellate court itself reaching a decision on material which is, to the extent of fresh evidence adduced, different from that considered by the lower court and, if that decision is different from the earlier decision, substituting that decision for the earlier decision. That function, involving the making of an independent and original decision, is properly to be characterized as the exercise of original jurisdiction. It was so characterized by Isaacs J. in Werribee Council v. Kerr (1928) 42 C.L.R. 1, at p. 20, and by Dixon J. in Victorian Stevedoring & General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 C.L.R. 73, at p. 109. "

As s. 44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the court on an application pursuant to s. 44 of the Act, the object of which is to invite the court to disagree with a factual conclusion reached by that Tribunal.

In my opinion, consistent with the authorities to which I have already referred, the jurisdiction of the Federal Court of Australia pursuant to s. 44 of the Administrative
Appeals Tribunal Act does not permit the reception of further evidence which was not before the Administrative Appeals Tribunal.

In the present case, the evidence sought to be relied on would not satisfy the ordinary requirements of "fresh evidence". The test is expressed in Orr v. Holmes (1948) 76 CLR 632 at 635 and 640. This test has been applied with respect to s. 27 of the Federal Court of Australia Act in Florance v. Andrew (1985) 58 ALR 377 where the court said at 381:

" ...that before the further evidence could be received by the court, it was necessary for the trustee to establish that it must be reasonably clear that if the evidence had been available at the trial and had been adduced an opposite result would have been produced or, if it is not reasonably clear that such a result would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Also reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the trial. Fresh evidence will not be received unless it produces such a different complexion on the case that a reversal of the former result ought certainly to ensue: Orr v. Holmes (1948) 76 CLR 632; Commissioner for Government Tram and Omnibus Services v. Vickery (1952) 85 CLR 635; McCann v Parsons (1954) 93 CLR 418; Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. "

See also Arnotts Limited v. Trade Practices Commission (1990) 24 FCR 313.

Pursuant to the test as to whether "fresh evidence" ought to be received, it is clear that the requirements have not been met in the present case. The evidence sought to be relied on has not been shown to be such that no reasonable diligence would have enabled the evidence to have been adduced before the Tribunal. It is also moot whether that evidence has the quality that, had it been adduced, an opposite result would have been achieved.

The "fresh evidence" appears to be directed at the question of the capacity of Mr Servos to engage in remunerative work subsequent to his leaving the Australian Taxation Office in 1990. That evidence appears to have been available, in the relevant sense, to the applicant prior to the hearing and determination by the Administrative Appeals Tribunal. It would not satisfy the tests for the reception of "fresh evidence".

In my opinion, the jurisdiction of the court does not permit the reception of fresh evidence but that, even if it did, in the present case the evidence does not satisfy the requirements for the reception of such evidence.

The second, and important, question raised by this appeal concerns the interpretation of s. 24(1)(c) as it existed at the time relevant to the application by Mr Servos. It was advanced on behalf of the applicant that an assessment of a 70% incapacity from war-caused injury or disease was of itself sufficient to entitle a veteran to the special rate of pension under s. 24. In my opinion, this is not a proper construction of the section. That requirement is a necessary but not a sufficient condition for an entitlement to a pension at the special rate. In support of the contention on behalf of the applicant, attention was drawn to the changes introduced by the amending Act in 1994, by which in between s. 24(1)(a) and s. 24(1)(b) the word "and" was specifically inserted. It was claimed on behalf of the applicant that in the absence of a conjunctive "and" between s. 24(1)(a) and 24(1)(b) as it then appeared in the legislation, the requirements of s. 24(1)(a), 24(1)(b) and 24(1)(c) were not to be read as cumulative requirements.

I reject this suggestion. As a matter of language, where a veteran is entitled to a special rate of pension if (a), (b) and (c) exists, it is necessary that each of the requirements be demonstrated.

In the legislation as it then stood, where the parliament intended that an alternative be available, it used the word "or" : see s. 24(1)(a)(i) and 24(1)(a)(ii).

In my opinion, on a proper construction of s. 24 of the Act, before a veteran is entitled to a special rate of pension, it had to be demonstrated that either of the requirements in s. 24(1)(a) existed and, in addition, both s. 24(1)(b) and 24(1)(c) were met by the veteran.

The third question in the present case is whether it was open to the Tribunal to conclude, as it did, that Mr Servos did not come within s. 24(1)(c). The conclusion of the Tribunal in this respect is set out earlier.

As is made plain in Hall v. Repatriation Commission (1994) 33 ALD 454, the entitlement of a veteran to pension at the special rate, or at any rate for that matter, has to be determined at any time up until the determination of the Administrative Appeals Tribunal. The Tribunal stands in the shoes of the decision maker and it has to address its determination on the facts as they exist at the time of its determination. If it was the case that at some earlier time an applicant for a special rate of pension did not satisfy the requirements for the grant of such a pension, but that the evidence before the Tribunal had demonstrated that before the time for its decision those conditions had been satisfied, then it was necessary for the Tribunal to so determine.

The case as conducted before the Tribunal focussed on the reasons for Mr Servos ceasing working for the Australian Taxation Office, and also as to the reasons why he did not undertake work for Income Tax Professionals, and also for the reason why he did not undertake the courier business which had been referred to by him as one of the possibilities of his post-Australian Taxation Office employment.

In my opinion, it was open for the Tribunal to conclude on the material before it that the reason for his ceasing working for the Australian Taxation Office was not solely caused by his health. I think also that it was open to the Tribunal to conclude that the failure by Mr Servos to commence employment with Income Tax Professionals was due in part to factors of his age and the requirement for a longish course of instruction. The courier trucking business did not eventuate because of the reluctance of the son of Mr Servos to supply his driving skills to that business.

It is not irrelevant to note that in a statement dated 11 November 1991, in answer to the question "Why did you stop working?", Mr Servos, who was asked to mark one box only, marked of the four boxes 'Age', 'Ill Health', 'Age and Ill Health' and 'Other', the 'Age and Ill Health' box. To the question "Did your disability/ies stop you working in any way?", Mr Servos ticked the "Yes" box. To the statement "If 'yes', please describe", he wrote "Work strain and entering 65th year of age and war nerves indicated to me to cease work".

On 27 August 1990, in an employment report in respect of his service pension claim, Mr Servos, in response to the question "Why did you stop work?", wrote "Entered 65th year of age/stress".

It may be the case that, had the proceedings before the Tribunal been conducted in a different manner, the Tribunal might have had a different view of the circumstances, but the fact is that the Tribunal was entrusted with
determining questions of fact which it has to do on submissions both as to fact and law made to it by the parties. In this particular case, each of the conclusions to which the Tribunal came was open to it on the evidence, although, had the Tribunal arrived at a contrary view, that conclusion may not have been able to be attacked.

Criticism can be directed to the way in which the Tribunal expressed its conclusion in paragraphs 9 and 10 of its reasons. In Lennell v. Repatriation Commission (1982) 4 ALN 29, Northrop and Sheppard JJ said:

" A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the Tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply. "

Consistent with what is expressed in Hall v. Repatriation Commission (supra), the court during the hearing of this application, was concerned whether the relevant question had been addressed by the Tribunal; that is to say, the entitlement by a veteran to a pension at the special rate at any time up until the date of the Tribunal's decision. However, having regard to the whole of the material before the Tribunal and the way in which the case was presented before it, I am not satisfied that there has been a failure by the Tribunal to address the relevant question for its determination, nor am I satisfied that the Tribunal's conclusion, which was -

" ...Mr Servos was not prevented from continuing to undertake remunerative work that he was undertaking, or intended to undertake, by reason of incapacity from war-caused injury or war-caused disease, or both, alone",

was infected with legal error.

For these reasons the appeal should be dismissed, with costs. It is, of course, a question for the Commission whether it wishes to pursue its order for costs.

I certify that this and the preceding twenty-one (21) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:

Counsel for the applicant: Mr K. J. McGhee

instructed by: Michell Sillar Nicholsons

Counsel for the respondent: Mr S. L. Doyle

instructed by: Australian Government Solicitor

Date of Hearing: 13 March 1995

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