Applicant 5611 of 2013 and Military Rehabilitation and Compensation Commission
[2014] AATA 121
•6 March 2014
[2014] AATA 121
Division Veterans' Appeals Division File Number
2013/5611
Re
Applicant 5611 of 2013
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 6 March 2014 Place Perth The Tribunal does not have jurisdiction in respect of the application for review lodged by the applicant with the Tribunal on 4 November 2013.
..............................[sgd]..............................................
S D Hotop
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – military compensation – applicant made claim for acceptance of liability for medical conditions – respondent made determination declining claim – applicant applied to Veterans' Review Board (VRB) for review of respondent's determination – during hearing before VRB applicant made request to withdraw application for review – VRB consented to withdrawal of application for review – VRB did not make reviewable determination – Tribunal does not have jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 3 and s 25
Military Rehabilitation and Compensation Act 2004 (Cth), s 5(1), s 319, s 333, s 345, s 352, s 353, s 354, and s 355
Veterans' Entitlements Act 1986 (Cth), s 155
REASONS FOR DECISION
Deputy President S D Hotop
6 March 2014
Introduction
On 4 November 2013 the applicant lodged with the Tribunal a completed “Application for Review of Decision” form relating to a decision of the Veterans’ Review Board (“VRB”) dated 6 September 2013. A copy of the VRB’s decision was attached to the application for review.
The decision of the VRB, of which the applicant sought review by the Tribunal, is in the following terms:
“ Claimant: …
Determination under review:
The Military Rehabilitation and Compensation Commission (MRCC) determination, dated 14 December 2011, declining a claim lodged under the Military Rehabilitation & Compensation Act 2004 (MRCA) for liability in respect of post traumatic stress disorder and chronic fatigue syndrome.
Hearing by Board:
Heard: Perth on 6 September 2013
Before: G C Barrow Senior Member
G Mawkes Services Member
G Hourn MemberAppearances: The claimant by conference telephone and his advocate, Mr Ric Giblett.
Decision of the Board:
On 6 September 2013 the Veterans’ Review Board (the Board) decided to CONSENT TO WITHDRAW the application for review pursuant to Section 155(1) of the Veterans’ Entitlements Act 1986 (VEA), as applied by section 353 of the MRCA (the applied provisions).” (original emphasis)
By letter dated 5 November 2013 the Tribunal Registry notified the Military Rehabilitation and Compensation Commission (“the respondent”) of the lodgement of the abovementioned application for review.
By email dated 12 November 2013 an officer of the respondent raised the issue of the Tribunal’s jurisdiction to review the abovementioned decision of the VRB.
On 15 November 2013 a directions hearing was held and directions were made by the Tribunal for the filing and serving by the parties of written submissions addressing the issue of the Tribunal’s jurisdiction in this matter. An interlocutory hearing on the jurisdiction issue was subsequently listed for 5 February 2014.
On 26 November 2013 the respondent filed its written submissions.
On 28 January 2014 the applicant filed his written submissions.
Following receipt by the Tribunal on 4 February 2014 of a request by the applicant to vacate the interlocutory hearing listed for 5 February 2014 because of his inability to attend on that day, the Tribunal held a directions hearing (by telephone) in the afternoon of 4 February 2014 at which the Tribunal proposed that, the parties’ submissions having been filed, the jurisdictional issue be determined “on the papers” without holding a hearing. The parties consented to that course.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T44) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
The Relevant Factual Background
The applicant served in the Australian Army from 15 September 1998 to 28 June 2008. (T43)
On 31 August 2011 the applicant lodged with the Department of Veterans’ Affairs a claim for acceptance of liability under the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) in respect of post traumatic stress disorder and chronic fatigue syndrome. (T24)
On 14 December 2011 a delegate of the respondent made a determination under s 333 of the MRC Act declining the applicant’s abovementioned claim. (T28)
On 15 January 2012 the applicant made an application to the VRB for review of the abovementioned determination of 14 December 2011. (T29)
On 6 September 2013 the VRB, pursuant to s 155(1) of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) as applied by s 353 of the MRC Act, consented to the withdrawal of the applicant’s abovementioned application for review. (T39)
The Reasons for Decision of the VRB
In its “Reasons for Decision” dated 6 September 2013, the VRB:
·noted that the applicant “did not attend the hearing but discussed the matter by conference telephone” and was represented at the hearing by his advocate, Mr Giblett;
·referred to the documentation before it, the applicant’s service history, standards of proof and causation provisions in the MRC Act; and
·set out the applicant’s case, in the course of which it stated:
“ Advocate’s Submission at Hearing
19.Mr Giblett re-iterated Dr Fellows-Smith’s view that the stressors for the claimant’s PTSD were in 2003, while the claimant served in Iraq on warlike service. He said that the claimant’s chronic fatigue syndrome was most likely to be causally related to PTSD.
…
22.Mr Giblett acknowledged that the onset of PTSD was during a period of the claimant’s service covered under the VEA and that the matter before the Board was an application for review under MRCA. Under the circumstances, Mr Giblett agreed that one course of action would be to have the claimant withdraw the matter from review and make a new claim to the Department for consideration under the VEA.
Claimant’s Evidence
23.[The claimant] said, via conference telephone, that his anxiety and depression were previously diagnosed and he believed his PTSD and chronic fatigue syndrome were part of his overall psychiatric condition. He was asked to discuss the matter privately with Mr Giblett. A short adjournment was then taken to enable Mr Giblett to telephone [the claimant] in private.
24.On resumption of the hearing [the claimant] asked, via conference telephone, that his application for review of the matter be withdrawn.”
The VRB’s statement of reasons then concluded as follows:
“ BOARD’S CONSIDERATION AND DECISION
25.In response to questions from the Board, [the claimant] made it clear that he understood that a matter cannot be reinstated once it has been withdrawn from review.
26.In the circumstances, the Board has considered the interests of both parties to the review and accepts that it is proper for the matter to be withdrawn.
Conclusion
27.The Board consents to the matter under review being withdrawn, pursuant to section 155(1) of the VEA as applied by section 353 of the MRCA.” (T39)
The Issue
The issue for the Tribunal’s determination at this interlocutory stage of the proceeding is whether the Tribunal has jurisdiction to review the VRB’s decision of 6 September 2013.
The Relevant Legislation
The AAT Act
The AAT Act relevantly provides:
“ 3 Interpretation
(1) In this Act, unless the contrary intention appears:
…
enactment means:
(a)an Act;
(b)an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or
(c)an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment
…
Tribunal:
(a)means the Administrative Appeals Tribunal established by this Act; and
(b)in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c)includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.
…
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”
“ 25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
Tribunal’s power to review decisions
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…”
The MRC Act
Chapter 8 of the MRC Act contains provisions (ss 344–359) relating to “reconsideration and review of determinations”.
Section 345(1) contains definitions of the phrases “original determination” and “reviewable determination”. The phrase “original determination” is defined to mean (relevantly) a determination of the Military Rehabilitation and Compensation Commission (“MRCC”) under the MRC Act. The phrase “reviewable determination” is defined to mean (relevantly) “a determination under Part 4 by the [VRB] on review of an original determination …”.
Part 4 of Chapter 8 of the MRC Act contains provisions (ss 352–353A) relating to review by the VRB of “original determinations”.
Section 352 provides:
“(1) The claimant may make an application to the Board for review of an original determination.
…
(3) An application for review must:
(a) be in writing; and
(b) set out the reasons for the application; and
(c)be given to the Commission within 12 months after the day on which notice of the determination was given to the person making the application.”
The term “claimant” is defined in s 5(1) of the MRC Act to mean “a person who has made a claim under section 319”. Section 319 provides for the making of a claim for (inter alia) “acceptance of liability by the [MRCC] for a service injury sustained by a person or a service disease contracted by a person”, and s 333 authorises the MRCC to determine such a claim.
Section 353(1) provides that various provisions of the VE Act (including s 155 in Division 5 of Part IX) “apply for the purposes of a review by the [VRB] under [Part 4 of Chapter 8 of the MRC Act]”. Section 353(2) provides that the provisions referred to in subs (1) “apply subject to the modifications” set out in the table immediately following, including the following relevant modifications:
·references to the Repatriation Commission have effect as references to the MRCC;
·the reference, in s 155(2) of the VE Act, to “section 135” has effect as a reference to section 352 of the MRC Act.
Part 5 of Chapter 8 of the MRC Act contains provisions (ss 354–359) relating to review by the Tribunal.
Section 354(1) provides:
“ An application may be made to the Tribunal for review of a reviewable determination.
Note: Item 2 of the table in section 355 sets out who may make the application.”
Item 2 of the table in s 355 provides that an application may be made to the Tribunal under s 27 of the AAT Act by (relevantly) “the claimant”.
The VE Act
Section 155 of the VE Act provides:
“ 155 Withdrawal of application
(1) An applicant for review by the Board of a decision of the Commission may withdraw the application at any time before the Board has commenced the review and, with the consent of the Board, at any time after the Board has commenced the review.
(2) The withdrawal of an application to review a decision of the Commission does not prevent the applicant from subsequently making another application under section 135 to review that decision within the time allowed by that section.”
The Applicant’s Submissions
In his written submissions the applicant referred to various provisions of the MRC Act with which, he submitted, the VRB had failed to comply. The Tribunal notes, however, that the thrust of those submissions was that the VRB had failed to determine his application for review on the merits.
As regards paras 22, 23 and 25 of the VRB’s Reasons for Decision and its decision to consent to the withdrawal of the applicant’s application for review (see paragraph 15 above), the applicant submitted as follows:
“ … I note that in Par 22 the Board state ‘Mr Giblett Agreed that one course of action would be to have the claimant withdraw the matter from review and make a new claim to the department for consideration under the VEA.’ – This admits that the board actually suggested the withdrawal (stating that they couldn’t/wouldn’t accept this claim), enabling them to not give a negative/declined outcome, and the straightforward appeal process with the AAT.
… Par 23 – incorrect/incomplete and omitted key (and misleading) statements which were made to me, as well as comments/questions made by me.
... Par 25: ‘In response to questions from the Board, [the claimant] made it clear that he understood that a matter cannot be reinstated once it has been withdrawn from the review’ – This was on the basis of the information they had provided me with, albeit incomplete, and misleading. I made it clear, that given the VRB stated that they could/would not accept liability, my only other option was to withdraw, as per their suggestion. At no point during such discussion/s, did the Board inform me of my options/rights to an AAT appeal should a negative verdict be formally concluded.
The Board made it very clear that they would not under the current circumstances be able to accept this condition/claim, and my best (only) option was to do as they suggested, and withdraw the claim/case.
The Board did not at any time during the hearing, point out their obligations as mentioned above.
The Board do [sic] not at any time during the hearing, point out that one option I had was to receive a negative verdict, and therefore be able to escalate to the AAT.
Given so many instances of misleading and negligent conduct, it is very clear that the AAT do indeed have jurisdiction over this case/matter.” (original emphasis)
Analysis
Section 25(1) of the AAT Act relevantly provides:
“ An enactment may provide that applications may be made to the Tribunal … for review of decisions made in the exercise of powers conferred by that enactment.”
Section 25(4) of the AAT Act provides:
“ The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
Section 354(1) of the MRC Act provides:
“ An application may be made to the Tribunal for review of a reviewable determination.”
Pursuant to item 2 of the table in s 355, such an application may be made by “the claimant”.
The phrase “reviewable determination” is defined in s 345(1) of the MRC Act to mean (relevantly) “a determination under Part 4 by the [VRB] on review of an original determination …”.
In the present case an application has been made to the Tribunal by the applicant (being “the claimant” as defined in s 5(1) of the MRC Act) for review of the VRB’s decision of 6 September 2013.
The critical question, therefore, is whether the VRB’s decision of 6 September 2013 is a “reviewable determination” as defined in s 345(1) of the MRC Act.
Although the applicant had made an application to the VRB for review of an “original determination” of the MRCC, and the VRB, pursuant to s 352 of the MRC Act, had jurisdiction to make a “reviewable determination” under Part 4 of the MRC Act “on review of [that] original determination”, the VRB’s decision of 6 September 2013, in the Tribunal’s opinion, did not purport to be, and did not constitute, an exercise of that jurisdiction. Instead of making a determination under Part 4 of the MRC Act on review of the MRCC’s “original determination” of 14 December 2011, the VRB, in terms of its decision of 6 September 2013 and its reasons for that decision, pursuant to s 155(1) of the VE Act as applied by s 353(1) of the MRC Act, consented to the applicant’s withdrawing his application for review of the MRCC’s “original determination” after the VRB had commenced, but not completed, that review.
The Tribunal notes the applicant’s submissions (set out in paragraph 27 above) regarding his, and his advocate’s, communications with the VRB immediately prior to his withdrawal of his application for review (referred to in paras 22–25 of the VRB’s Reasons for Decision set out in paragraph 15 above). The Tribunal, however, does not doubt the accuracy of the VRB’s account of those communications in paras 22–25 of its Reasons for Decision. The Tribunal, furthermore, is satisfied that the applicant, who was represented before the VRB by an experienced advocate, made an informed request to the VRB to withdraw his application for review.
Conclusion
The Tribunal concludes as follows:
·pursuant to s 25(1) of the AAT Act and s 354(1) of the MRC Act, the Tribunal’s jurisdiction to determine the applicant’s application for review of the VRB’s decision of 6 September 2013 depends on that decision constituting a “reviewable determination” as defined in s 345(1) of the MRC Act;
·the VRB’s decision of 6 September 2013 constituted a consent by the VRB, pursuant to s 155(1) of the VE Act as applied by s 353(1) of the MRC Act, to the applicant’s withdrawing his application for review of the MRCC’s “original determination” of 14 December 2011 after the VRB had commenced, but not completed, that review;
·the VRB’s decision of 6 September 2013 did not constitute “a determination under Part 4 by the [VRB] on review of” the MRCC’s “original determination” of 14 December 2011, and, accordingly, does not constitute a “reviewable determination” as defined in s 345(1) of the MRC Act;
·pursuant to s 25(1) of the AAT Act and s 354(1) of the MRC Act, therefore, the Tribunal does not have jurisdiction to determine the applicant’s application for review of the VRB’s decision of 6 September 2013.
Decision
For the above reasons, the Tribunal does not have jurisdiction in respect of the application for review lodged by the applicant with the Tribunal on 4 November 2013.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop .............[sgd D Brodie].....................................................
Administrative Assistant
Dated 6 March 2014
Date of Hearing
27 February 2014 (on the papers)
Representative of the Applicant
In person (unrepresented)
Representative of the Respondent
Mr B Dube
Solicitors for the Respondent
Sparke Helmore
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