Arnold and Veterans' Review Board
[2000] AATA 1010
•20 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1010
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/974
VETERANS' APPEALS DIVISION )
Re ROGER BURRETT ARNOLD
Applicant
And VETERANS' REVIEW BOARD
Respondent
DECISION
Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Date20 November 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(Sgd.) B.G. GIBBS
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Appeal to Veterans' Review Board – decision of delegate of Principal Member of Veterans' Review Board to dismiss application for review – whether procedural requirements met by delegate – whether veteran represented by Returned and Services League of Australia for purposes of dismissal action.
Words and Phrases
Veterans' Entitlements Act 1986, ss.155AA, 155AB, 155AC, 147, 148, 166
Re Adams and Veterans' Review Board (1992) 16 AAR 307
REASONS FOR DECISION
20 November 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Introduction
This is an application by Mr Roger Burrett Arnold, for review of a decision of a delegate of the Principal Member of the Veterans' Review Board ("VRB").
The decision of the delegate was to dismiss an application which Mr Arnold made to the VRB, for review of a determination made by a delegate of the Repatriation Commission, in respect of his claim to have lumbar spondylosis accepted as war-caused.
The IssueThe (only) issue before the Tribunal in these proceedings is whether Mr Arnold's application to the VRB for review was dismissed in accordance with the procedural requirements of the Veterans' Entitlements Act 1986 ("the Act").
Relevant LegislationThe Veterans' Review Board Operations Manual refers to the relevant dismissal sections of the Act and the processes involved, as follows:
"6.2.1 The dismissal provisions are contained in sections 155AA, 155AB and 155AC of the Veterans' Entitlements Act 1986. Sections 155AA and 155AB provide for the dismissal of applications in certain circumstances and the process involved. Section 155A also provides for applications to the Administrative Appeals Tribunal for review of decisions to dismiss VRB applications.
6.2.2Section 155AC allows an applicant to authorise a person to represent the applicant in relation to a notice under subsection 155AA(4) or under subsection 155AB(4) requesting a written statement. Such authorisation must be in writing and can only be given after the applicant has received the relevant notice. Any statement then received is to be treated according to the procedures in the same manner as if written by an applicant.
6.2.3An applicant may authorise a person who is the same as, or different from, his or her advocate/representative. Therefore, notices under subsections 155AA(4) and 155AB(4) must always be sent direct to the applicant and only a copy provided to the applicant's advocate/representative, if any. If an applicant has authorised a person under section 155AC, that person will be referred to in these procedures as the "authorised agent" to avoid any confusion with an advocate/representative under section 147. The prohibition of legal representation that applies to an advocate/representative under section 147 does not apply to an authorised agent under section 155AC.
6.2.4Subsection 166(1A) allows the Principal Member to delegate all, or any, of his powers under sections 155AA and 155AB to a Registrar or Deputy Registrar.
6.2.5The responsibilities and duties given to the Principal Member by the legislation have been delegated by him to Registrars. Decisions required under the legislation must therefore be taken by Registrars personally and they must personally sign the relevant notices and correspondence as "delegate of the Principal Member".
Notices under subsection 155AA(4)
6.2.6If after two years from the lodgement of the application for review the hearing of the review has not finished or a date, time and place has not been fixed for the commencement or resumption of the hearing of the review, and if the Registrar considers that the applicant should be ready for a hearing, a written notice is to be sent to the applicant requesting the applicant to provide, within 28 days, a written statement indicating that the applicant is ready to proceed at a hearing or explaining why the applicant is not so ready.
6.2.7In considering whether an applicant should be ready to proceed at a hearing, the history of the application is to be considered, including any action taken under the administrative screening process described earlier in this chapter.
Background
On 9 July 1997 Mr Arnold lodged a claim for Spinal Canal Stenosis (amended to Lumbar Spondylosis), as war-caused within the meaning of section 9 of the Act. On 10 February 1998 a delegate of the respondent refused the claim.
On 15 April 1998 Mr Arnold lodged an application with the VRB for review of the delegate's decision to refuse his claim (T4/11).
On 26 May 2000 a letter was sent to Mr Arnold by a delegate of the Principal Member of the VRB, requiring him to provide a written statement in accordance with section 155AA(4) of the Act, either indicating his readiness to proceed to hearing, or explaining why he was not so ready (T7/16).
A copy of the notice was not sent to Mr Arnold's representative (from the Returned and Services League of Australia) ("RSL").
In a Statement of Facts and Contentions dated 26 September 2000, the respondent states:
"4.The applicant was represented by the Returned and Services League of Australia at all relevant times for the purposes of s147 of the VEA, but not for the purposes of s155AC of the VEA (subsection 155AC(3) refers).
5.A written statement was not provided by either the applicant or a person authorised under s155AC within the required 28 days.
6.The application for review was dismissed by the delegate of the Principal Member on 18 July 2000. (T2, f7)
7.Consistent with R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at pp 35-36 in relation to the role of tribunals as parties to litigation, the respondent in this matter makes no contentions in respect of the substantive merits of the applicant's case.
8.The only issue in this case is whether the application for review was dismissed in accordance with the procedural requirements of the VEA: Re Kathleen Adams and Veterans' Review Board (1992) 16 AAR 307, per Deputy President McMahon."
Contentions – Mr Arnold
In a Statement of Facts and Contentions dated 22 September 2000 it was contended on behalf of Mr Arnold, as follows:
"1.There is evidence (T6), to suggest that the Veterans' Review Board was aware that the applicant was being represented by the Returned and Services League.
2.That a copy of the intention to dismiss notice (T7), was not sent to the appointed representative as outlined in the Veterans' Review Board, Operations Manual, Paragraph 6.2.3.
3.That the applicant has been denied substantial justice due to the failure of the Registrar to provide the applicant's appointed representative with a copy of the intention to dismiss letter.
4.That the application was wrongly dismissed as the standard review period, as described in Section 155AA, had not expired, as there were further submissions to be made to the Board."
The Tribunal's Jurisdiction
As indicated earlier, the (only) issue before the Tribunal is whether the dismissal of Mr Arnold's application to the VRB for review was in accordance with the procedural requirements of the Act. Those requirements are in my opinion correctly expressed and adequately explained in Chapter 6 of the VRB Manual of Operations.
In Re Adams and Veterans' Review Board (1992) 16 AAR 307, it was held (Deputy President McMahon) that in reviewing a decision to dismiss an application for review, the jurisdiction of this Tribunal is limited to deciding whether the power of dismissal was founded by fulfilment of the preconditions pursuant to the Act.
Whether Applicant Represented (By RSL) for Purposes of Section 155ACAs indicated in paragraph 9 above, the respondent asserts as a fact that Mr Arnold was represented by the RSL at all relevant times for the purposes of section 147 of the Act, which stipulates who may appear before the VRB upon review by that authority of a decision of the Repatriation Commission, but that he was not represented (by the RSL) for the purposes of section 155AC.
However, as indicated in paragraph 10 above, Mr Arnold asserts that:
"There is evidence (T6) to suggest that the Veterans' Review Board was aware that the applicant was being represented by the Returned and Services League."
Document T6 is a form used by the VRB to record the verbal advice of a veteran as to whether he wishes to attend the hearing of his application for review; whether he wishes to speak with the VRB by telephone during the hearing; and whether he wishes to be represented at the hearing. The form is headed:
"SUBJECT – SECTION 148 FOLLOW-UP. APPLICANT'S ADVICE FOR TELEPHONE RESPONSE."
The reference to section 148 is a reference to section 148 of the Act, which sets out the procedure of the VRB in respect of applications made to that authority for review of decisions made by the Repatriation Commission. It is clear that the advice to be recorded on the form has no relevance to the question of whether the application for review should be dismissed. Thus the entry on the form that: "Section 137 reports have been sent to RSL" is not relevant for the purposes of section 155AC of the Act, but rather is relevant to section 147, which deals with the question of who may appear before the VRB when hearing applications for review, and section 148, which as indicated deals with the procedure of the VRB in respect of such applications.
Whether Written Statement Provided Within 28 Days Pursuant to Subsection 155AA(4)
As indicated in paragraph 7 above, on 26 May 2000 a letter (T7) was sent to Mr Arnold by a delegate of the Principal Member of the VRB. The precise terms of the letter were as follows:
"I am writing regarding your application for review of the Repatriation Commission decision of 10 February 1998 concerning lumbar spondylosis.
Your application has been outstanding for more than two years and I consider that you should be ready by now to proceed at a hearing. Therefore, in accordance with subsection 155AA(4) of the Veterans' Entitlement Act 1986, I am giving you this written notice requesting you to provide within 28 days a written statement that you are ready to proceed at a hearing or reasons why you are not ready to proceed at a hearing.
The statement must be signed by you and sent to the above address. However, you may authorise another person to represent you in relation to this notice. Such authorisation must be in writing and on the enclosed form. If you wish to authorise another person you should not send this authorisation back to me. You should give it as quickly as possible to the person you have authorised so that he or she can send it to me together with the statement I have requested within the 28 days allowed.
If the required statement is not provided within 28 days after this notice was received at your postal address, or I consider that the statement provided does not contain a reasonable explanation for your failure to proceed at a hearing, your application will be dismissed. This means that the matter would then be finalised.
If you no longer wish to proceed with your application, you should notify me in writing and I will arrange for it to be withdrawn."Examination of the material before me confirms, however, that a written statement was not provided by either Mr Arnold or a person authorised under section 155AC, within the required 28 days.
In the absence of a written statement within the required period, the delegate of the Principal Member of the VRB dismissed Mr Arnold's application under subsection 155AA(5) of the Act. Mr Arnold was notified of this action by letter dated 18 July 2000 (T8).
On 19 July 2000 Mr Arnold's wife wrote to the delegate of the Principal Member of the VRB (T9), the purpose of which appears to have been to request reconsideration of the dismissal.
On 27 July 2000, the delegate replied to Mrs Arnold's letter, informing her that having dismissed her husband's application for review, he had no power to reconsider the decision.
FindingsFrom the material before me I find as follows:
(a)That Mr Arnold was represented by the RSL at all relevant times for the purposes of section 147 of the Act, but not for the purposes of section 155AC;
(b)That a written statement was not provided by either Mr Arnold or a person authorised under section 155AC of the Act, within the required 28 days;
(c)That pursuant to the provisions of subsection 155AA of the Act the delegate of the P`rincipal Member of the VRB properly dismissed the application as a mandatory requirement.
Decision
In view of the Tribunal's findings, the decision under review will be affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed: .....................................................................................
Personal AssistantDate/s of Hearing Decision on the papers
Date of Decision 20/11/00
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