Blennerhassett and Defence Force Retirement and Death Benefit Authority
[2001] AATA 316
•20 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/797
GENERAL ADMINISTRATIVE DIVISION )
Re PETER BLENNERHASSETT
Applicant
And DEFENCE FORCE RETIREMENT AND DEATH BENEFIT AUTHORITY
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date20 April 2001
PlaceBrisbane
Decision The Tribunal refuses to grant an extension of time.
. (Sgd) K L Beddoe
Senior Member
Decision No: 316/2001
CATCHWORDS
RETIREMENT BENEFITS – application for review – extension of time limit - delay in application of six years – respondent's failure to advise - new medical opinion - no reasonable excuse for delay – experienced applicant - public interest in procedural time limits
Defence Force Retirement and Death Benefits Act 1973 s 30
Administrative Appeals Tribunal Act 1975 s 27(7), (8), 29(10), 42C
Re Mulheron and Australian Telecommunications Corporation, (1991) 23 ALD 309 at 314
REASONS FOR DECISION
Mr K L Beddoe (Senior Member)
On 13 September 1993 the respondent notified the applicant that his classification under the Defence Force Retirement and Death Benefits Act 1973 ("the Act") had been changed from class B to class A.
Following the applicant's request for reconsideration of the decision the Authority reviewed the decision and decided it should be varied so that the change from Class B to Class A (60%) took effect from 29 November 1991. As with the previous decision the Authority gave its reasons. That decision was notified by the Authority to the applicant's solicitors by letters dated 30 May 1994 and 30 June 1994.
In 1995 the applicant applied to this Tribunal for review of a Repatriation Commission decision resulting in a decision under section 42C of the Administrative Appeals Tribunal Act 1975 dated 16 January 1996.
On 30 May 1996 the applicant requested review of the date of effect for the level A pension approved by the respondent. The request for review concerned the date of effect of the decision. By letter dated 19 June 1996 the respondent's representative advised the applicant to the effect that the matter had been decided in 1994. Although advised of review of decision rights in this Tribunal and the need for an extension of time to lodge an application for review, the applicant did nothing in the context of an application to this Tribunal.
By letter dated 22 May 2000 the applicant again asked the respondent to assess the increased pension with effect from 1 July 1990. The respondent referred the applicant to its letter of 19 June 1996 and to the rights of review in this Tribunal in a letter dated 14 June 2000.
By an application lodged on 31 August 2000 the applicant sought an extension of time to lodge an application for review in this Tribunal. The applicant said that the date the decision was made was 27 May 1994 (the date of the Minutes of the Authority in relation to the decision notified on 30 May 1994).
The respondent Authority opposes the granting of an extension of time.
It will be apparent that the applicant is seeking review of a decision which took effect from 11 November 1991. That decision was made following a request for review of an earlier decision. The applicant says the decision should have taken effect from mid 1990 after he ceased employment with the Gold Coast City Council on 3 July 1990.
The essence of the applicant's case is that he now has medical reports that show that his unsuitability for civilian employment should have been assessed at the time he resigned his employment with the Gold Coast City Council.
The history of this matter commences in July 1973 when the applicant was severely injured by being crushed during attempts to recover a disabled Armoured Personnel Carrier of the 2nd Cavalry Regiment. The events surrounding the accident have been described as traumatic – including a delayed medical evacuation to 2 Military Hospital.
The applicant was subsequently discharged from the Army on 7 June 1974 being determined to be medically unfit for military service.
The applicant relies on medical reports not available to the respondent when the decision sought to be reviewed was made. They are a report by Dr Katz, consultant psychiatrist dated 18 January 2000 and earlier reports by Dr Chittenden, Specialist in Psychological Medicine, dated 27 March 1996 and 5 October 1995.
Dr Katz's report sets out a history apparently based on his questioning of the applicant in January 2000 and then discusses the applicant's medical condition as to both physical and psychiatric aspects. It includes the following:
"As a result of the injury (described as crushed legs and shattered right femur) and persisting symptoms of trauma Peter retired from work in 1990 around which time an old back injury relating to missing a step on a jetty ladder was causing chronic pain……….."
That is consistent with a report by Dr Arbuckle, General Practitioner, dated 17 June 1993, and a report by Dr Mugford extracted by the respondent in its Minutes of Meeting held on 10 September.
In fact, the respondent had access to a considerable number of medical reports including reports obtained from the Department of Veterans' Affairs when it was considering the applicant's circumstances in the early nineties. There is nothing in Dr Katz's report that suggests that the respondent was not fully informed as to the applicant's medical condition when it made the decisions culminating in the reviewable decision in 1994.
Dr Chittenden came to different conclusions in her reports to conclusions previously expressed by Dr Boulnois (Psychiatrist) in a report dated 21 December 1990 addressed to the Department of Veterans' Affairs. It seems Dr Boulnois made at least one other report (referred to by Dr Chittenden). Dr Chittenden's reports are addressed to the applicant's solicitors and seem to have been effective in persuading the Repatriation Commission to accept that the applicant was entitled to an intermediate rate disability pension from 29 November 1991 and subsequently a special rate disability pension from 29 April 1993.
ConsiderationSection 30 of the Defence Force Retirements and Death Benefits Act 1973 ("the Act") provides for determination of a member's physical and/or mental capacity to perform civil employment after discharge from the Defence Force. Incapacity is classified as follows:
(a) 60% or more: Class A
(b)30% or more but less than 60% Class B
(c)less than 30%: Class C
Entitlements depend upon classification with the maximum entitlement provided by the Act attributable to Class A (ie 76.5% of pay entitlement prior to retirement).
The applicant was classified at Class A incapacity, effective from 11 November 1991, on 27 May 1994.
That decision was a reviewable decision but the applicant did not seek review at that time but now seeks to have the decision reviewed. There is no dispute that the application has been made outside the time allowed.
Section 29(7) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may, upon application to the Tribunal extend the time for making an application for review. An application for extension of time may be made notwithstanding that the time for making the application for review has expired (s 29(8)). A hearing of the application for extension of time was necessary, in this case, both parties being given reasonable opportunity to present their cases (s 29(10)).
In Re Mulheron and Australian Telecommunications Corporation, (1991) 23 ALD 309 at 314, O'Connor J (President) set out the principles to be applied when considering an application for extension of time. These are:
(a)"Prima Facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e)The merits of the substantial application are relevant.
(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant."
Those principles are guide posts, not rigid delineations of rights and each case must be decided on the merits of the particular case.
I accept that at the relevant time the applicant had the advantage of the advice of a firm of solicitors acting for him in relation to his claims under the Veterans' Entitlements Act 1986 but also generally. As to what passed between the applicant and his solicitor is not clear to the Tribunal albeit it is suggested that the solicitor did not advise the applicant to pursue the matter now sought to be reviewed. Whatever that advice may have been it is apparent on the facts that the applicant rested on his rights for over six years without telling the respondent that he was dissatisfied with the decision. The respondent was, in my view, entitled to be satisfied that the reviewable decision had been accepted by the applicant and was not to be the subject of a review in this Tribunal.
Contrary to the assertion by the applicant this is not a case where material, not previously available, has come to light so as to suggest that the reviewable decision should be reconsidered. There was ample medical evidence available to the respondent in 1994. The mere fact that Dr Katz expresses a different view in 2000 to the opinion of Dr Boulnois in 1990 does not mean that Dr Katz's opinion is to be preferred to that of Dr Boulnois.
Furthermore the whole administrative process would be thrown into confusion if the benefit of more and more hindsight was accepted as a basis for reopening the decision-making process. This is even more so when the latter reporters, such as Dr Katz, merely rely on the history related by the claimant and without the benefit of contemporary examination and reports.
The applicant does not offer a reasonable explanation for the delay. There is a suggestion that the matter was deferred so that any retrospective payments could not be subject to a property settlement in the Family Court. I am uncertain as to whether there is any basis in fact for that assertion.
That the applicant was familiar with the review jurisdiction of this Tribunal is made evident by the proceedings Q1992/253 in which I made a consent decision dated 26 October 1993. The Repatriation Commission was the respondent in that case. The applicant sought a further review of a Repatriation Commission Determination in application Q1995/364 which was also resolved by a consent decision made by Senior Member Muller. Clearly the applicant knew about review in this Tribunal and he was advised that the respondent's decision was reviewable in this Tribunal.
The respondent failed to notify the applicant of his rights of review when it advised the outcome of the reconsideration on 27 May 1994. That is a matter that should be taken into account when considering an application for extension of time. In this case it deserves little weight because those rights had previously been advised to the applicant, the applicant had the services of a solicitor experienced in merits review before this Tribunal and the applicant, himself, had by then had the experience of another matter proceed through the Tribunal.
While I would always take failure to notify rights by the decision-maker as a matter to be taken into account in deciding whether to grant an extension of time I am satisfied that failure by the respondent is not determinative in this case.
This is a case where there is no reasonable explanation for the delay. This is not a case where prejudice to the respondent has been established but that does not overcome the fact of the delay and the lack of a reasonable explanation for that delay.
There is a public interest in procedural time limits being honoured so that matters are dealt with in a reasonable manner consistent with that interest.
I have considered the merits of the applicant's case and while it is not a case with no reasonable prospect of success, I am satisfied that it is a case with very limited prospects of success. There was extensive medical evidence available to the respondent at the time of making the reviewable decision. That evidence caused the respondent to vary the original decision in the applicant's favour. I am satisfied that any further variation in the applicant's favour is unlikely on the material before me.
I am satisfied that the correct decision in this matter is to refuse the application for an extension of time.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 6 October 2000
Date of Decision 20 April 2001
Applicant In Person
Respondent Mr Dube, Solicitor
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