Aldridge and Repatriation Commission
[2012] AATA 571
•29 August 2012
[2012] AATA 571
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4021
Re
LESLIE ALDRIDGE
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
INTERLOCUTORY DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 29 August 2012 Place Canberra The application for reinstatement is not granted under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth).
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PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
Practice and procedure — Applications — Reinstatement —Jurisdiction to reinstate - no error of Tribunal - reinstatement only for dismissal - statutory interpretation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10) Legislation
CASES
Re Sanchez and Comcare (1997) 48 ALD 787
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
REASONS FOR INTERLOCUTORY DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
BACKGROUND
Mr Leslie Aldridge is a veteran from the Vietnam conflict. He seeks reinstatement of a matter which had been decided by consent by the Tribunal on 7 June 2012.
That consent decision under the Administrative Appeals Tribunal Act 1975 (Cth) (Act) s 42C(2) was that Mr Aldridge’s claim for:
·tendonitis right shoulder and supraspinatus tear left should be varied to rotator cuff syndrome of both shoulders, and the refusal of that claim should be affirmed; and
·his claim for osteoarthosis left shoulder and osteoarthrosis of the right acromioclavicular joint should be accepted with effect from 19 March 2008.
On 23 July 2012, Mr Aldridge sought to reinstate his application to the Tribunal on the ground that it had been consented to in error. On 24 August 2012, an interlocutory hearing was held to consider the matter.
LEGISLATION
Section 42A(10) of the Act provides:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appears to it to be appropriate in the circumstances.
CONSIDERATION
Jurisdiction
A preliminary matter is whether the Tribunal had jurisdiction to consider a reinstatement application.
The application under consideration was not dismissed. The consent order varied the decision under review in that it affirmed part of the decision and set aside a part of the decision and substituted a decision for that part. The representative for the Repatriation Commission (Commission) argued: ‘I am not aware of any power the Tribunal has to reopen the matter’.
In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, French J considered the argument that the Tribunal had ‘inherent jurisdiction’ or an ‘implied incidental power’ under s 43 to vary or revoke an action that it had taken, including presumably a consent decision. He said:
‘There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken’.[1]
Further, his Honour said: ‘The convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures’[2] may justify such a re-opening.
[1] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 (French J)
[2] Ibid.
However, his Honour had also noted that:
The question is one of statutory construction. It is not without difficulty and is attended by policy considerations which are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances.[3]
French J’s reference to there being a need to consider the issue in its statutory context was relied on in Re Sanchez and Comcare (1997) 48 ALD 787 to counter the more flexible approach suggested as a possibility in Sloane. That argument, which this Tribunal accepts, is that:
There are however specific provisions in the Act which confer a power on the tribunal to vary a decision it has made: see s 42A(10) and s 43AA [the slip rule]. Having regard to these provisions, it would not be proper to imply into s 43 a general power to revoke or vary a decision made by the tribunal.[4]
[3] Ibid.
[4] Re Sanchez and Comcare (1997) 48 ALD 787at 788
In other words, as a matter of statutory construction, the legislation of the Tribunal has exclusively decided when reinstatement is possible, subject only the law’s general exceptions for example, for fraud[5].
[5] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Accordingly, the Tribunal considers it was misconceived, in the circumstances, for it to have agreed to reopen the consent decision as it was not a ‘dismissal’. Nonetheless, having undertaken an interlocutory hearing on the matter and having put both parties and their representatives to the trouble of preparing submissions to it on the reinstatement question, in fairness, the Tribunal should consider the arguments raised.
Contentions and responses
The substantive argument for Mr Aldridge was that Mr Wade Cox, who had represented Mr Aldridge in his claims for disability pension over a considerable period, had requested that a barrister used by the Vietnam Veterans’ Association (VVA) represent Mr Aldridge at the Tribunal. Mr Cox made the request partly because he was not a lawyer, his only legal qualification being a post-graduate diploma in law, and partly because Mr Cox was unavailable from August 2011 and was then ill until the early part of 2012.
Unbeknownst to Mr Cox, the VVA nominated someone other than the barrister to represent Mr Aldridge. A signed facsimile from the VVA representative that he was to be support for Mr Aldridge in his AAT application was received by the Tribunal on 11 November 2011. Mr Cox said at the hearing that he ‘gave no permission for any other person to settle this matter and I expected that were it to be settled without a hearing I would be consulted’. However, since neither the barrister, nor the VVA representative was called as a witness at the interlocutory hearing, the Tribunal only has Mr Cox’s word concerning this understanding. In any event, his absence and subsequent illness would have created practical difficulties in him continuing in any support role during this period.
Mr Aldridge said he had not queried the absence of the barrister at the preliminary conferences at the Tribunal (of which there were three), nor had he asked whether the barrister was in fact advising the VVA representative. Mr Aldridge had attended the first two preliminary conferences and had been advised that he was not needed at the final preliminary conference, advice which he had accepted. Mr Aldridge said that when the VVA representative told him it would be ‘a lot of hassle and expensive to go to a hearing, I decided well I can’t afford a barrister, so I thought the only option for me was to accede’. He said that the VVA representative had asked him what he wanted to do and ‘I said OK well we won’t go to a hearing’ and he agreed to the consent decision.
In relation to the consent decision he said he did not sign anything. However, he conceded that he had accepted that the VVA representative was acting for him at the preliminary conferences and was, in effect, his agent for this purpose. Mr Aldridge had opportunities to challenge the status of the VVA representative when he attended the first two preliminary conferences but he did not do so. Accordingly, the Tribunal, which had received an authorisation for the VVA representative and accepted that authorisation in good faith, was entitled to rely on it.
There was no suggestion from these facts that either the Tribunal conference registrar conducting the preliminary conference, nor the representative for the Commission or the VVA representative put undue pressure on Mr Aldridge to agree to the consent orders. Mr Aldridge also conceded that he had agreed to the consent decision in the face of advice as to the cost of a hearing and the need for legal representation at that hearing. So, in light of the signed authorisation sent to the Tribunal and Mr Aldridge’s statement that he had accepted that the VVA representative was acting for him and that Mr Aldridge had said he would accept the consent agreement, the Tribunal finds that the Tribunal did not fall into error in accepting that Mr Aldridge, through his agent, had freely accepted the terms of the agreement.
It should be noted that Mr Aldridge did not need to be represented by a legally qualified practitioner at any hearing, but that it is for an applicant to decide whether he can be adequately represented by someone who is not a practitioner. However, as the Tribunal did not proffer this advice it cannot be held to have influenced Mr Aldridge in respect of this matter. Mr Aldridge also said the ‘hassle’ of a hearing also inhibited his willingness to agree to a hearing, and his agreement to accept the consent decision. That also is not a consideration for which the Tribunal can be held responsible.
Nor could the Tribunal be said to be in error in accepting that the consent order had properly been entered into because Mr Cox did not know that the barrister had not been advising the VVA representative. That was a matter for Mr Aldridge to manage and the Tribunal was not responsible for the quality of his advice or representation. The VVA is a well-recognised body a function of which is the representation of veterans involved in the Vietnam conflict, and there was nothing to indicate to the contrary in the circumstance, known to the Tribunal, in relation to Mr Aldridge’s claim.
Mr Cox argued that the VVA representative had not adequately represented the interests of Mr Aldridge. That is a matter of opinion and there is nothing in the facts relating to the way the matter was handled during the preliminary conferences to indicate that this was a problem which could or should have been identified by the Tribunal. The Repatriation Commission representative noted at the interlocutory hearing that the VVA representative had argued quite strongly on behalf of Mr Aldridge at the preliminary conferences.
In addition, the legal framework within which the consent order was made supports the outcome reached in the consent decision. The Tribunal notes that the statement of principles for rotator cuff syndrome (Instrument No 39 of 2006) includes as a factor (clause 6(a)) that the veteran must establish that he had an ‘injury to his affected shoulder within 30 days before the clinical onset’ of the rotator cuff syndrome. There is a paucity of information both in relation to whether Mr Aldridge’s shoulders were injured in 1969, and whether he developed rotator cuff syndrome within 30 days of the incident.
His service records simply record ‘fell off APC [Armoured Patrol Carrier]. Short period of pretraumatic and retrograde amnesia’, and examination revealed no localising signs. There was no history of right shoulder injury apart from Mr Aldridge’s later claim that post service he could not lift his arms above his head without pain. On discharge his medical examination on 21 April 1970 recorded that his upper extremities were normal and that the veteran had reported no joint injury on service.
There is more recent medical evidence on possible causation of his shoulder conditions but it is equivocal. Dr Andrew Brooks, rheumatologist had said in a report dated 21 October 2010 only that it was ‘a reasonable assumption that the initial tearing [of Mr Aldridge’s shoulders] took place during his active service’ and that ‘it would certainly be in keeping to have an injury of one shoulder and perhaps both in the fall’. Neither comment is a firm opinion that the events on service were causative of the shoulder conditions.
The report of Dr Anthony Smith, orthopaedic surgeon, dated 21 February 2012, noted that his established acromioclavicular joint arthritis and rotator cuff disease were constitutional maladies’ and ‘both conditions are degenerative conditions and become temporary [sic] worse in certain age groups’, particularly after the age of 30. Dr smith said that as Mr Aldridge had left the military aged 23, it was unlikely that he had the condition during service. His report did note that ‘it is not impossible for his current shoulder conditions to be consequent to the activities described when he was in the military’ but again this was not a firm endorsement of the fact that the fall on service was related to Mr Aldridge’s condition.
Mr Cox argued that Dr Smith had ignored the facts of the injury and the symptoms reported by Mr Aldridge immediately post return to Australia which was a failure to take relevant matters into account and he had relied on two irrelevant considerations, namely that rotator cuff syndrome was a frequent disease in the population and that it decreases in pain as it usually becomes almost asymptomatic even though the tears are still there as with Mr Aldridge.
Apart from these views of the medical practitioners and Mr Aldridge’s assertions, made first in 2008, provided in 2010, that is, some 40 years after the falls, there was no other evidence during or after service in support of Mr Aldridge’s claim that his shoulder injury was due to these incidents. In the face of this absence of information, and the equivocal medical evidence the recommendation made by the Tribunal and by the VVA representative at the preliminary conferences that instead of a claim for rotator cuff syndrome Mr Aldridge should agree to change his claim to one for osteoarthritis, the statement of principles for which contains no factor requiring establishment of evidence of the condition within 30 days of an injury on service, was reasonable. The compromise was presumably made in order that his claim for a shoulder injury would not be defeated. Mr Aldridge had agreed to this change which is reflected in the consent decision. There was no error by the Tribunal in making that suggestion, nor in accepting that the final consent order reflected that agreement by Mr Aldridge to do so.
Finally Mr Cox had argued that as there was an obligation on the Department of Veterans’ Affairs to investigate each claim, it should have sought a supplementary report from Dr Brooks as well as from Dr Smith and presumably that the Tribunal should have required that this be done. It is not for the Tribunal to do other than suggest the kinds of evidence that may be absent or helpful in an application. The conference registrar had done so and the report of Dr Smith obtained as a consequence was an adequate response, and no legal error by the Tribunal was made accordingly.
The Tribunal also pointed out that Mr Aldridge could put in a new application for rotator cuff syndrome if he was dissatisfied with the outcome of the consent process. Mr Cox argued that Mr Aldridge also stood ‘to lose a great deal’ if he had to put in a new claim since he would not be entitled to disability pension at the special rate since he was over 65 years of age. The Tribunal notes that this information is incorrect. Mr Aldridge remains in employment at some 16 hours a week and hence he is not disqualified by age from receipt of a disability pension payable at the special rate. His age and his employment status should be no bar to his seeking afresh to have rotator cuff syndrome accepted as service-related. At the same time, the Tribunal notes that Mr Aldridge would still have to meet the factors in the statement of principles for that condition. As has been pointed out earlier the evidence of injury to Mr Aldridge’s shoulders arising from the APC incident is absent and may be difficult to obtain over 40 years after the events.
In conclusion the Tribunal finds that there was no fraud, nor negligence on its part, nor did the Tribunal make legal errors in its acceptance of a consent order entered into on behalf of Mr Aldridge by his authorised agent. In these circumstances, even had it had the jurisdiction to make such an order, the Tribunal would not have agreed to reinstate the application following the consent order on 11 June 2012.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of ...........................[sgd].............................................
Associate
Dated 29 August 2012
Date(s) of hearing 24 August 2012 Date final submissions received 24 August 2012 Advocate for the Applicant Wade Cox Advocate for the Respondent Nigel Bunn Solicitors for the Respondent Department of Veterans' Affairs
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