Arnold and Veterans' Review Board - [2000] AATA 1010

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 Issue
The (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 Legislation
The 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 1010
Decision Date: 20 November 2000

CaseChat Overview and Summary

The case of Arnold and Veterans' Review Board involved a veteran seeking to appeal a decision of the Veterans' Review Board. The veteran's application for review was dismissed by a delegate of the Principal Member of the Board, leading to the veteran challenging the validity of the dismissal process. The central issue before the court was whether the procedural requirements set out in the Veterans' Entitlements Act 1986 were met by the delegate during the dismissal of the veteran's application. Additionally, the court had to determine if the veteran was adequately represented by the Returned and Services League of Australia for the purposes of the dismissal action.

The court examined the statutory provisions and considered the case of Re Adams and Veterans' Review Board, where similar issues of procedural compliance and representation were addressed. The court found that the delegate had not strictly adhered to the procedural requirements stipulated by the Act. Specifically, the court noted that the delegate did not provide the veteran with a written notice of the reasons for the dismissal, as required by section 155AA of the Act. Furthermore, the court ruled that the veteran's representation by the Returned and Services League of Australia was not sufficient to meet the statutory criteria for the dismissal of the application.

As a result of these findings, the court concluded that the delegate's decision to dismiss the veteran's application for review was not valid. The court ordered that the decision be quashed and remitted the matter back to the Veterans' Review Board for reconsideration. The court emphasized the importance of adhering to the statutory procedural requirements to ensure fairness and due process in the review process.

Orders