Andrews and Principal Member, Veterans' Review Board and Anor

[2005] AATA 656

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 656

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/84

VETERANS’ APPEALS DIVISION		)
Re		EVELYN ANDREWS

Applicant

And PRINCIPAL MEMBER, VETERANS’ REVIEW BOARD

Respondent

REPATRIATION COMMISSION
  Joined Party

DECISION

Tribunal Ms N Bell, Senior Member

Date8 July 2005

PlaceSydney

Decision The decision under review is affirmed

....................................................

Ms N Bell
  Senior Member

VETERANS’ ENTITLEMENT – Application for Review Dismissed by Veterans’ Review Board – Matter Failed to Progress – Section 155AA Notice Issued – Veterans’ Review Board Was Required to Dismiss the Application.

Veterans’ Entitlements Act 1986 sections 155AA, 155AC

Repatriation Commission v Allen and Veterans’ Review Board (1995) 38 ALD 557

Johnson v Veterans’ Appeals Tribunal (2002) 71 ALD 16

Re Linnehan and Veterans’ Review Board and Repatriation Commission (1991) 24 ALD 376

Re Adams and Veterans’ Review Board (1992) 16 AAR 307

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Tasker v Fullwood [1978] 1 NSWLR 20

Repatriation Commission v Hawkins (1993) 45 FCR 205

Repatriation Commission v Hayes (1982) 43 ALR 216

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117

Hall v Minister for Immigration, Migration and Indigenous Affairs (2000) 59 ALD 458

REASONS FOR DECISION

8 July 2005 Ms N Bell, Senior Member

1.      This application concerns the decision by a delegate of the Principal Member of the Veterans’ Review Board to dismiss Mrs Andrews’ application for review by the Board.

2. The Repatriation Commission had decided, on 11 July 2002, to refuse Mrs Andrews’ claim for a war widow’s pension. On 30 August Mrs Andrews applied for a review by the Veteran’s Review Board of that decision. In summary, the Principal Member of the Board by his delegate, more than two years later on 11 January 2005, dismissed the application for review on the ground that no response had been received within 28 days from Mrs Andrews, or her properly authorised representative, to a notice from the Board requiring a written statement indicating readiness to proceed or an explanation for not being ready to proceed. The provisions of the Act relied on by the Principal Member are sections 155AA and 155AC of the Veterans’ Entitlements Act 1986 (the Act), set out and discussed below.

3. The background to this application is not in dispute. Mrs Andrews applied for review by the Board on 30 August 2002. On 26 November 2004 the Registrar of the Veterans' Review Board, as delegate of the Principal Member, sent a notice to Mrs Andrews under section 155AA of the Act requiring Mrs Andrews to provide a written statement indicating either her readiness to proceed to a hearing or explaining why she was not ready. Attached to the letter was a “Form 2” on which Mrs Andrews could authorise another person to respond to the notice.  A copy was also sent to Mr Woodcock who had earlier advised the Board that he was representing Mrs Andrews.  On 20 December 2004 Mr Woodcock faxed a response to the Board indicating that a “section 31 review” had been submitted and that the matter would be ready to proceed in February if required. On 20 December 2004 the Registrar sent a letter by fax and by post to Mr Woodcock explaining that sections 155AA and 155AC require the applicant to respond to notices under those sections unless he or she has properly authorised a representative to respond on their behalf for that purpose under section 155AC and that, in the absence of that authorisation, Mr Woodcock’s response is “not valid”. The Registrar also advised that unless he receives written notice from Mrs Andrews or from Mr Woodcock duly authorised under section 155AC he will dismiss the application after the statutory 28 day period has expired.

4. On 23 December a fax was received by the Board from Mr Woodcock but no authorisation was provided. On 11 January 2005 a delegate of the Principal Member dismissed the application for review on the basis that a written statement had not been provided by either the Applicant or a person authorised under section 155AC within the required 28 days.

5.      I have no reason to doubt the evidence of Mrs Andrews and Mr Woodcock that when Mrs Andrews received the notice she contacted Mr Woodcock and Mr Woodcock told Mrs Andrews that he would “take care of it”.  I also accept Mr Woodcock’s evidence that he has undertaken training, provided by the Department of Veterans’ Affairs, in the procedures relevant to an application to the Board.  I accept, as well, that he suffers from ill health.

issues

6.      Section 155AA provides for the Principal Member of the Board to require, by notice, a written explanation of a delay of two years or more in proceeding to a hearing before the Board:

Power to dismiss application—initial consideration

(1)

In this section:

standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia.

(2) This section applies to an application for review unless:

(a) the hearing of the review has finished within the standard review period; or

(b) as at the end of the standard review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.

(3) For the purposes of paragraph (2)(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.

(4) If, at the end of the standard review period:

(a) this section applies to an application for review; and

(b) the Principal Member considers that the applicant should be ready to proceed at a hearing; the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;

(c) a written statement indicating that the applicant is ready to proceed at a hearing; or

(d) a written statement explaining why the applicant is not ready to proceed at a hearing.

(5) If the applicant does not provide a written statement under paragraph (4)(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.

(6) If:

(a) the applicant provides a written statement under paragraph (4)(d) within the 28 days; and

(b) the Principal Member considers that the statement contains a reasonable explanation for the applicant's failure to be ready to proceed at a hearing; the Principal Member must notify the applicant and the Commission of this.

(7) If:

(a) the applicant provides a written statement under paragraph (4)(d) within the 28 days; and

(b) the Principal Member considers that the statement does not contain a reasonable explanation for the applicant's failure to be ready to proceed at a hearing; the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.

7. Section 155AC provides for a means by which a person may authorise a representative in relation to a notice under section 155AA:

Representation of applicant where outcome could be dismissal of

application

(1) An applicant for review may authorise another person to represent the applicant in relation to a notice under subsection 155AA(4) or 155AB(4).

(2) An authorisation under subsection (1) must be in writing.

(3) The applicant may authorise the representative only after the applicant has received the notice.

(4) If the Principal Member has approved a form for the purposes of subsection (1), the applicant must authorise the representative in that form.

(5) If the applicant does authorise a representative, the representation is to be at the applicant's own expense.

8. The central issue in this application is therefore whether Mrs Andrews’ application was properly dismissed under section 155AA. In reaching a view on this question, I must consider whether there was an effective and authorised response to the notice issued under section 155AA despite the failure to comply with the provisions of section 155AC. Counsel for Mrs Andrews also raised the issue of whether there is discretion in the Principal Member not to dismiss an application even though the criteria in section 155AA(5) are satisfied.

the applicant’s submissions

9. A lengthy written submission was made by counsel for Mrs Andrews. The central submission was that it was sufficient compliance that Mrs Andrews’ representative, Mr Woodcock, responded on her behalf and on that basis the preconditions for dismissal did not arise. Counsel for Mrs Andrews referred me to a number of decisions by the Tribunal and the Federal Court concerning dismissals under section 155AA (Repatriation Commission v Allen and Veterans' Review Board (1995) 38 ALD 557; Johnson v Veterans’ Appeals Tribunal (2002) 71 ALD 16 and Re Linnehan and Veterans' Review Board and Repatriation Commission (1991) 24 ALD 376) and in support of the proposition that a technical or narrow construction of the dismissal provisions should not be adopted. I note, however, that these decisions deal either with the reasonableness of an explanation provided in response to a notice under section 155AA or the validity of the notice itself – matters quite different from the matter under consideration here.

10.     Counsel for Mrs Andrews also referred me to the leading decision in this area, (Re Adams and Veterans' Review Board (1992) 16 AAR 307) in which an Applicant’s representative responded to a notice under section 155AA with verbal advice to a Board officer. The Tribunal in Adams concluded that there was no compliance with section 155AA because the response was not in writing as required. The Tribunal also held that once the preconditions for the dismissal are met, the Principal Member is obliged to dismiss the application. The Tribunal characterised the provisions as “mandatory”.  It is useful to set out a relevant extract from the decision:

“The use of the word “must” indicates that the provisions are mandatory and not directory. Words alone, of course, will not necessarily categorise statutory injunctions. The courts consider the true effect of the legislation in an endeavour to determine whether a provision is to be regarded as mandatory or obligatory on the one hand, or discretionary or directory on the other. Whilst this approach has led to conflicting decisions, in my view, the true effect of the legislation with which I am presently concerned leaves no room for any conclusion except that it is mandatory, both in form and substance.

The aim of the legislation is to free up resources of the Board so that it may consider applications by the many veterans whose cases await determination. The section is now to be found in the part of the Act dealing with powers of the Board, rather than in that part dealing with procedures of the Board. It is a legislative embodiment of what Rogers J calls “macro level management”. Appellate courts now countenance the possibility that it is permissible, indeed necessary, that the general public interest and the interests of litigants with cases awaiting hearing may properly be taken into account in exercising a judicial discretion: see Ketteman v Hansel Properties Ltd [1987] AC 189 and GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716. If this is acceptable in a judicial context, how much more desirable must it be in an administrative framework.

Prima facie, affirmative words impose a duty whereas permissive words indicate a discretion. Full meaning must be given to the repeated use of word “must” in s 155AA. Having regard to its new position in the Act, the inference of mandatory effect is even stronger: per Lord Diplock in Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655 at 690. The applicant carries the burden of showing that the word “must” has a meaning apparently contrary to its grammatical effect. In my view, it has not been demonstrated in this case. As “prima facie … permissive or facultative expressions operate according to their to their ordinary natural meaning: (Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106 at 138) so also the opposite inference applies where an element of obligation is imported into the statute by the words used.”

11.     Counsel for the Respondent submitted that the reasoning in Adams [supra] is no longer persuasive, having been overtaken by the decision of the High Court in Project Blue Sky Inc & Ors  v Australian Broadcasting Authority (1998) 194 CLR 355.

12.     In that decision the High Court expressed agreement with the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20, which criticised the use of a distinction between directory and mandatory requirements in legislation and embraced instead posing the question of whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. The High Court said that in identifying the purpose “regard must be held to ‘the language of the relevant provision and the scope and object of the whole statute.’”  The majority also held :

“The existence of purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding for it every act done in breach of the condition.”

13.     The Court then went on to note that there is no decisive principal that can be applied in this regard, nor even a ranking of the relevant factors.

14.     Counsel for Mrs Andrews urged me to give primary consideration to the consequences for Mrs Andrews of a strict interpretation and to have particular regard to the beneficial nature of the Act.

15.     Counsel also pointed to the possibility of instances where an Applicant is unable to reply to a notice or is unable to appoint a representative and noted that the Board’s case load comprises mainly people with injuries or diseases.

16.     As to the beneficial nature of the legislation, Counsel directed my attention to the Full Court’s decision in Repatriation Commission v Hawkins (1993) 45 FCR 205 to the effect that the provisions should be interpreted liberally. However, I note the passage, quoted in Hawkins, from Repatriation Commission v Hayes (1982) 43 ALR 216) in which Keely J said:

“The act is a remedial Act and ‘should be construed so as to give the fullest relief which the fair meaning of its language will allow”: per Isaacs J in Bull v Attorney- General (NSW) (1913) 17 CLR 370 at 384. However, that judgement made it clear in the preceeding words that it did not mean “that a true signification of the provision should be strained or exceeded “ .

17.     Counsel for Mrs Andrews also referred me to a number of decisions including the Full Federal Court’s decision in Formosa & Anor v Secretary, Department of Social Security (1988) 46 FCR 117 concerning substantial compliance with the requirement that a claim be in writing and an approved form (including the effect of section 25C of the Interpretation Act.), and Hall v Minister for Immigration, Migration and Indigenous Affairs (2000) 59 ALD 458, concerning the requirement that an application be accompanied by certain documents which, in any event, would readily be obtainable by the relevant Tribunal. I find these decisions to be of limited assistance in this matter, given its particular circumstances.

consideration

18.     I am mindful of the decision in Adams [supra] which has, as yet, not been disturbed by this Tribunal and which, if followed, would lead me to affirm the decision under review.

19.     However, the application of the principles in Tasker [supra] yields, in my view, a similar result.

20.     Turning first to the language of the provisions, the repeated use of the word “must” in both section 155AA and section 155AC cannot be ignored. In any hierarchy of terms available to be used, that word is the most affirmative. The word “must” has strong grammatical effect – an effect that is stronger than a range of other words that might have been used in the provisions – eg. shall, will.  I must be mindful of the “fair meaning of its language”.

21.     As to the subject matter and object of the statute, there can be no doubt that the Act is beneficial legislation. It is concerned with entitlements for veterans. However, within that context, sections 155AA and 155AC were introduced for a particular purpose, that is, to “free up the resources of the Board so that it may consider applications by the many veterans whose cases wait for determination.”   (Adams [supra]).  The repeal of formal sections 148(3)A (2,3E) and the insertion in their place of the provisions under consideration in this application was intended to clarify the earlier provisions and, to quote the Explanatory Memorandum, ”to remove any uncertainty about the scope of the dismissal provisions”.

22. In relation to s155AC the Explanatory Memorandum says:

“Given that action taken under dismissal provisions could result in the finalisation of the application without review of the decision with which the applicant is dissatisfied, it is important that the applicant should be fully aware of actions being taken on his or her behalf and that the representative should be specifically authorised to act on the applicant’s behalf in such matters. The amendments will provide that it is only after a notice has been given to an applicant under the dismissal provisions that a specific authority can be given for a person to act on the applicant’s behalf in such matters.”

23.     As was submitted by Counsel for the Repatriation Commission, Parliament deliberately gave solemnity to these matters and the requirement for authority in writing emphasizes the seriousness with which specific authorisation was regarded.

24. As to the consequences of dismissal, those consequences are, for Mrs Andrews, that, if she wishes to pursue a pension she will have to claim again and it appears that she will have lost entitlement to payment for the period from her initial claim to 3 months before any new claim, assuming she is eligible for payment in substance. Counsel for Mrs Andrews’ argument in respect of other claimants who may be prevented from responding in person to a notice under section 155AA or from authorising a representative to do so on their behalf, due to illness or other reasons, fails to recognise that a person may claim again after dismissal under s155AA.

25. It must be kept in mind that the provisions provide for a period of two years to lapse before a notice may be issued under section 155AA. That, in the context of litigation in Tribunals and in Courts is a lengthy and generous period.

26.     On balance, the strength and clarity of the language of the provisions, the purpose of the enactment, in general and as it pertains to the provision of administrative review of decisions, and the consequences of an interpretation that is in accordance with the grammatical effect of the provisions, lead me to the conclusion that the Principal Member had an obligation to dismiss the applications.

decision

27.     The decision under review is affirmed

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...........[Linda Blue]..................
  Associate

Date of Hearing  4 May 2005
Date of Decision  8 July 2005
Counsel for the Applicant         Mr C Colborne
Solicitor for the Applicant          Legal Aid
Counsel for the Respondent    Miss R Henderson