Boyle and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 488

Boyle and Repatriation Commission (Veterans’ entitlements) [2015] AATA 488 (8 July 2015)

Division	VETERANS’ APPEALS DIVISION
File Number	2014/1016
Re	David Boyle
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	8 July 2015
Place	Adelaide

The decision under review is affirmed.

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

Deputy President K Bean

CATCHWORDS

VETERANS' AFFAIRS – Pension Bonus Scheme – Late application for registration – Whether discretion to extend period for lodgement can be exercised – Effect of repeal of relevant provisions – Consideration of principles relevant to exercise of broad discretion to extend time – Inadequate explanation for delay – Fairness as between applicant and others – Decision under review affirmed.

LEGISLATION

Acts Interpretation Act 1901, ss 2, 7, 15AB

Social Services and Other Legislation Amendment Act 2014, Schedule 8

Veterans’ Affairs and Other Legislation Amendment (Pension Reform) Act 2009, Schedule 8

Veterans' Entitlements Act 1986, ss 5QA, 45TB, 45TH, 45TN, 45UL

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

SECONDARY MATERIALS

Pearce DC and Geddes RS, Statutory Interpretation in Australia (8^th ed, LexisNexis Butterworths, 2014)

Social Services and Other Legislation Amendment Bill 2013 (Cth) Explanatory Memorandum

REASONS FOR DECISION

Deputy President K Bean

8 July 2015

1. The applicant, Mr Boyle, served in the Armed Forces between 28 September 1962 and 27 September 1968 including operational service in Vietnam between 5 December 1967 and 27 August 1968.[1] By reason of his war-caused conditions, he is in receipt of the special rate of pension.[2]

   [1]     Exhibit 1, T6/31.

   [2]     Mr Boyle lodged a claim for service pension on 25 October 2013 and was granted the special rate of pension on 16 December 2013 with effect from 23 November 2013: Exhibit 1, T2/5.

2. Being aware of the Pension Bonus Scheme applicable to veterans, he always intended to claim a bonus under the Scheme. However, although he turned 60 on 1 November 2004, Mr Boyle did not lodge an application to register with the Pension Bonus Scheme until 25 October 2013.[3] On the same day, he also lodged a claim for payment of a Pension Bonus.[4] Unfortunately, however, Mr Boyle’s delay in lodging an application to register with the Pension Bonus Scheme and making his claim for a Pension Bonus has given rise to an issue of whether he is eligible to receive the payment.

   [3]     Exhibit 1, T3/15.

   [4]     Exhibit 1, T10/69.

3. Mr Boyle’s applications were initially rejected by a delegate of the Repatriation Commission (the Commission) on 16 December 2013, and that decision was affirmed upon review by another delegate of the Commission on 9 January 2014. Essentially, the decision-makers considered that by reason of his late application, Mr Boyle was not eligible to register with the Pension Bonus Scheme or be paid a Pension Bonus.[5]

   [5]     Exhibit 1, T2/4 - 14 and T4/21 - 22.

4. On 26 February 2014, Mr Boyle lodged an application with this Tribunal seeking review of the decision to reject his applications in respect of the Pension Bonus Scheme.

   THE ISSUE

5. It follows that, in broad terms, the issue before me is whether Mr Boyle is in fact eligible to register with the Pension Bonus Scheme and potentially receive a Pension Bonus, notwithstanding his late application.

   THE STATUTORY FRAMEWORK

6. As to when an application for registration as a member of the Pension Bonus Scheme must be made, at the time Mr Boyle applied to register, s 45TH of the Veterans’ Entitlements Act 1986 (the Act) provided as follows:

   45TH  Timing of application and registration

   Special date of eligibility for designated pension on or after 1 July 1998

   (1)If a person’s special date of eligibility for a designated pension occurs on or after 1 July 1998:

   (a)the person must lodge an application during the period that begins 13 weeks before the person’s special date of eligibility for the designated pension and ends 13 weeks after that date; and

   (b)   if registration occurs as a result of an application lodged within that period—the registration takes effect on the person’s special date of eligibility for the designated pension.

   Note:The Commission may extend the period: see subsection (3).

   Special date of eligibility for designated pension before 1 July 1998

   (2)If a person’s special date of eligibility for a designated pension occurs before 1 July 1998:

   (a)   the person must lodge an application during the period that begins on the commencement of this section and ends 13 weeks after 1 July 1998; and

   (b)   if registration occurs as a result of an application lodged within that period—the registration takes effect on 1 July 1998.

   Note:  The Commission may extend the period: see subsection (3).

7. With respect to late applications, s 45TH provided at the relevant time [6] as follows:

   [6] Subsections 45TH(3)-(7) of the Act were repealed by item 11 of Schedule 8 to the Social Services and Other Legislation Amendment Act 2014 (No. 14, 2014), which commenced on 1 July 2014. However, item 12 provides that if an application for registration as a member of the Pension Bonus Scheme under s 45TD of the Act was lodged before 1 July 2014, and the application was lodged during an extended period referred to in subs 45TH(3) of the Act, then subs 45TH(3) continues to apply in relation to that application. The implications of this are discussed later in my Reasons.

   Late applications

   (3)The Commission may extend the period within which a person must lodge an application. If registration occurs as a result of an application lodged during an extended period, the registration takes effect:

   (a)   on the date on which the application is lodged; or

   (b)   if the Commission decides that it should take effect on another date—on that other date.

   (4)The Commission must not make a decision to extend the period within which a person must lodge an application unless, if it were assumed that the person had been a member of the pension bonus scheme throughout the pre‑application period:

   (a)   the person would have been a non‑accruing member for all of the pre‑application period; or

   (b)both:

   (i)the person would have been an accruing member for some or all of the pre‑application period; and

   (ii)the person would have passed the work test for each test period that is applicable to the person.

   Note 1:    Pre‑application period is defined by subsection (5).

   Note 2:    Test period is defined by subsection (6).

8. Section 45TH also contained the following provisions relating to the “pre-application period” and the “test period”:

   (5)For the purposes of this section, the pre‑application period is the period beginning on:

   (a)   in the case of a person whose special date of eligibility for a designated pension occurs on or after 1 July 1998—the person’s special date of eligibility for the designated pension; or

   (b)   in the case of a person whose special date of eligibility for a designated pension occurs before 1 July 1998—1 July 1998;

   and ending on the date on which the person lodged the application.

   (6)For the purposes of this section, to work out what is a test period:

   (a)   identify the overall accruing period, which is that part of the pre‑application period for which, if it were assumed that the person had been a member of the pension bonus scheme throughout the pre‑application period, the person would have been an accruing member of the scheme;

   (b)   if the overall accruing period is 365 days or less—the overall accruing period is the only test period;

   (c)   if the overall accruing period is longer than 365 days—each of the following periods is a test period:

   (i)the full‑year period beginning at the start of the overall accruing period;

   (ii)if 2 or more succeeding full‑year periods are included in the overall accruing period—each of those full‑year periods;

   (iii)the remainder (if any) of the overall accruing period.

   CONSIDERATION

9. In light of these provisions, the difficulty which has arisen for Mr Boyle is that as he turned 60 on 1 November 2004, this was his “special date of eligibility” as provided by subs 5QA(2) and s 45TB of the Act. However, he did not lodge an application to register as a member of the Pension Bonus Scheme within 13 weeks either side of the “special date of eligibility” as required by subs 45TH(1)(a) of the Act.

10. Notwithstanding this, the Act allows for extension of the period in particular circumstances. However, the effect of subs 45TH(4) before its repeal was to prevent the extension of the period unless the circumstances set out in subs 45TH(4) were established.

11. As it had been assumed that subs 45TH(4) continued to apply to Mr Boyle notwithstanding its repeal on 1 July 2014, the two hearings in this matter, on 30 September 2014 and 22 January this year, were accordingly focussed on the question of whether Mr Boyle fell within the terms of subs 45TH(4) of the Act.

12. However in the course of my deliberations following the resumed hearing in January, I identified a further issue which had not previously been addressed by the Tribunal or the parties in any detail. That issue concerned the implications of the amendments made by the Social Services and Other Legislation Amendment Act 2014 (the Amending Act), which commenced on 1 July 2014.[7]

    [7]     Referred to in footnote 6 above.

13. Items 11 and 12 of Schedule 8 to the Amending Act provide as follows:

    11 Subsections 45TH(3) to (7)

    Repeal the subsections.

    12 Saving provision

    Despite the amendments made by this Schedule, if:

    (a) before the commencement of this item, an application under section 45TD of the Veterans’ Entitlements Act 1986 was lodged; and

    (b)the application was lodged during an extended period referred to in subsection 45TH(3) of that Act;

    then that subsection, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to that application.

    I raised with the parties the possibility that the Amending Act saved only subs 45TH(3) of the Act for the purposes of applications made before 1 July 2014 and lodged during an ‘extended period’ referred to in that subsection. In other words, because of the repeal of subs 45TH(4) to (7), there would appear to be an argument that those subsections no longer apply to someone in Mr Boyle’s situation, but the discretion to extend time in subs 45TH(3) is still available.

14. At a directions hearing by telephone on 13 April 2015, I made directions requiring the respondent to file and serve further written submissions directed to the following issues:

    (a)Whether after 1 July 2014, only subsection 45TH(3) of the Veterans’ Entitlements Act 1986 (the Act) continues to apply to individuals who are in Mr Boyle’s situation, by virtue of item 12 of Schedule 8 to the Social Services and Other Legislation Amendment Act 2014?;

    (b)If subsection 45TH(4) of the Act does not apply, what are the relevant considerations for determining whether to exercise the discretion in subsection 45TH(3) of the Act to extend time?;

    (c)What conclusions should the Tribunal reach in respect of each of those relevant considerations in the circumstances of this matter?;

    (d)Is there a need for the Tribunal to receive further evidence directed to those considerations?; and

    (e)Should the Tribunal apply the law that is in force at the time of its decision or at the time of the reviewable decision?

    I also gave Mr Boyle an opportunity to make any submissions in reply.

15. I propose to deal with question (e) first, before proceeding to consider the other issues.

    Should the Tribunal apply the law that is in force at the time of its decision or at the time of the reviewable decision?

16. Mr Crowe contended that the Tribunal should apply the law that is in force at the time of its decision, unless the law as in force when the decision under review was made is more favourable to Mr Boyle.[8] His understanding, which is consistent with my analysis, is that the legislation as in force at the time of the Commission’s decisions “is not more favourable” to Mr Boyle. Accordingly, I am satisfied that the Tribunal should apply the law that is currently in force, at the time of this decision.

    Is it the case that only subsection 45TH(3) of the Act continues to apply to Mr Boyle, by virtue of the Amending Act?

    [8]     Respondent’s Submissions dated 5 May 2015, pp. 5 - 6. See also Gorton v Repatriation Commission (2001) 63 ALD 723 at [23].

17. With respect to this issue, Mr Crowe contended that:

    ... item 12(b) of Schedule 8 to the amending Act is not fulfilled. In the respondent’s submission there is no basis to “extend the period within which [the applicant] must [have] lodge[d] an application” (extract from subs 45TH(3) of the unamended Act and therefore the potentially preserved section). For the saving provision ... to be used as the basis for fulfilment of the second condition and thus an entitlement under item 12 of that Act would create a circular reference.

    ... if it had been the intention of the drafters of the amending Act and/or the legislators who passed that amending Act to leave subsection 45TH(3) in place but to remove the barriers represented by subsection 45TH(4) of the unamended Act, such an intention could and therefore would have been much more simply, directly and logically drafted in the amending Act.

    In the respondent’s submission, the intent of the amendment contained at Schedule 8 items 10-12 of the amending Act was to preserve the power of the Commission ... to apply section 45TH(3) ... to continue to rely upon any extension previously granted under that section ... . If the saving provision ... had not been included ... then it would be at least arguable that a person whose registration had previously been accepted under the provisions of section 45TH(3) ... before the amendment but who had not yet applied for or been granted payment of the bonus would be prevented by the repeal of subsection 45TH(3) from fulfilling subsection 45TC(1)(c) and would be prevented therefore from receiving the pension bonus because the extension granted under subsection 45TH(3) would no longer have effect after that amendment and repeal. Or, to put it another way, the repeal of subsection 45TH(3) would in the circumstances outlined above, absent item 12 of Schedule 8 to the amending Act, have the effect of leaving the registration without a date of effect and therefore without effect. The purpose of saving subsection 45TH(3) in place was therefore to enable existing registrations to remain in force.[9]

    For the reasons which follow, I do not accept the respondent’s submissions on this issue.

    [9]     Respondent’s Submissions dated 5 May 2015, pp. 1 - 2.

18. Item 12 provides that if an application was lodged before 1 July 2014 and “during an extended period referred to in subsection 45TH(3)” then that subsection, as in force immediately before 1 July 2014, continues to apply on or after that date in relation to that application. Two things can be noted: first, the reference to lodgement during an ‘extended period’; and secondly, the specific use of the phrase “that subsection”.

    What is meant by ‘extended period’?

19. To understand what is meant by an ‘extended period’, reference must be made to subs 45TH(3), which provides:

    Late applications

    (3)The Commission may extend the period within which a person must lodge an application. If registration occurs as a result of an application lodged during an extended period, the registration takes effect:

    (a)   on the date on which the application is lodged; or

    (b)if the Commission decides that it should take effect on another date—on that other date.

    It can be noted that the same phrase, “application lodged during an extended period”, is used both in item 12(b) and subs 45TH(3). On my analysis, that phrase could potentially mean either of the following:

    ·An application which was made after 13 weeks from the person’s special date of eligibility, or in other words, a ‘late’ application (as the heading to subs 45TH(3) indicates); or

    ·A ‘late’ application in respect of which the Commission has in fact exercised its discretion to extend the period within which the application must be lodged, in order to enable registration. In other words, the Commission determines what the ‘extended period’ is.

20. As I understand the position, Mr Crowe contends that it is the second meaning which applies. Therefore, as Mr Boyle has not been granted an extension, he does not satisfy item 12(b) of Schedule 8 to the Amending Act, and the ‘saved’ subs 45TH(3) therefore does not apply to him at all. I note that if that is the case, then applications lodged before 1 July 2014 which are processed by the Commission after that date would not be able to be processed under subs 45TH(3). In other words, those applicants would not be able to avail themselves of the discretion to extend the period for lodgement by virtue of the subsequent change in legislation.[10] On Mr Crowe’s construction, the purpose of saving that subsection is merely to enable existing registrations to continue to remain in force. Although I can see the analysis behind this approach, I find it difficult to see why Parliament would consider it necessary to ‘save’ a right which had already accrued under the previous version of the Act, i.e. registration in the Pension Bonus Scheme following the favourable exercise of the discretion in subs 45TH(3), absent any indication that the repeal of subs 45TH(3) would have retrospective effect. As I read subs 45TH(3), once the Commission has exercised the discretion and registration has taken effect either on the date the application was lodged or on another date determined by the Commission, that person’s registration has ‘crystallised’. Indeed, s 7 of the Acts Interpretation Act 1901 relevantly provides:

    (2)If an Act ... repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

    ...

    (b)   affect the previous operation of the affected Act or part ... or anything duly done or suffered under the affected Act or part; or

    (c)   affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; ...[11]

    The construction for which Mr Crowe contends presupposes that individuals who were granted an extension and registration prior to 1 July 2014 would otherwise cease to be registered as of 1 July 2014 by virtue of the repeal of subs 45TH(3) from that date. Although I accept that it is within the Parliament’s power to abrogate an accrued right with retrospective effect, the common law presumption is that “in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation.”[12] Pearce and Geddes also note that “[l]egislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation.”[13] With respect, it is not clear from the words of the Amending Act that the repeal of subs 45TH(3) to (7) is intended to have anything other than prospective operation.

    [10]    For the reasons which follow, I consider that that construction is also inconsistent with the relevant Explanatory Memorandum.

    [11]    The Acts Interpretation Act 1901 applies to all Acts subject to a contrary intention: s 2.

    [12]    Pearce DC and Geddes RS, Statutory Interpretation in Australia (8^th ed, LexisNexis Butterworths, 2014) p. 397. See also the discussion regarding the statutory presumption in the Acts Interpretation Act 1901 at pp. 267 - 270 and p. 424.

    [13] Ibid p. 399.

1. Further, the Explanatory Memorandum to the Social Services and Other Legislation Amendment Bill 2013 relevantly provides:

   From [1 July 2014][14], [Schedule 8] will end late registrations for the closed pension bonus scheme.

   [14]    The Explanatory Memorandum refers to 1 March 2014. However, the commencement date was changed to 1 July 2014: see Social Services and Other Legislation Amendment Bill 2013 (Cth) Supplementary Explanatory Memorandum.

   ...

   The scheme was closed from 2009, although people remained able to register for the scheme if they were qualified for it, but had not registered, at the time of its closure.

   ...

   Ending late registrations for the pension bonus scheme will help ensure the pension system is simpler and more sustainable for older Australians into the future.[15]

   ...

   By reference to the Social Security Pension Bonus Scheme, the Explanatory Memorandum continues:

   The pension bonus scheme was closed to new entrants whose date of qualification for age pension occurred on or after 20 September 2009 ... .[16] In general, an application for registration must be made within 13 weeks after the date of the person’s qualification for age pension ... . However, subsection 92H(3) permits the Secretary to extend the period within which a person must lodge their application. This has allowed a person to make a late application for registration in the pension bonus scheme and have their registration start date backdated.

   This Schedule prevents an application for registration in the scheme from being made on or after [1 July 2014]. It removes capacity for the Secretary to extend the period for an application for registration to be made on or after [1 July 2014]. As a result, it will no longer be possible for a person to apply for registration in the scheme if their application for such registration is not lodged before [1 July 2014]. A saving provision will allow registration applications lodged prior to [1 July 2014] to be processed after that date, and the person registered in the scheme if qualified. (emphasis added).[17]

   In respect of item 12, the Explanatory Memorandum provides:

   [Item 12] provides a saving provision. If an application for registration has been made prior to [1 July 2014], then, despite the repeal of subsection 45TH(3), concerning late applications, the Repatriation Commission may register the person in the scheme. The registration will take effect on a date determined under the repealed subsection 45TH(3). This provision enables the Repatriation Commission to continue to extend the application lodgement period for registrations lodged before [1 July 2014] in accordance with the legislation that was in effect immediately before the commencement of this Schedule. It will not be possible to lodge an application for registration in the scheme on or after [1 July 2014].[18]

   [15]    Social Services and Other Legislation Amendment Bill 2013 (Cth) Explanatory Memorandum, p. 59.

   [16]    Schedule 9 to the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009, which commenced on 29 June 2009; Schedule 8 to the Veterans’ Affairs and Other Legislation Amendment (Pension Reform) Act 2009, which commenced on 10 September 2009.

   [17]    Social Services and Other Legislation Amendment Bill 2013 (Cth) Explanatory Memorandum, pp. 59 - 60.

   [18]    Social Services and Other Legislation Amendment Bill 2013 (Cth) Explanatory Memorandum, p. 61.

2. In my view, the purpose of the saving provision is to capture those individuals who made a ‘late’ application prior to 1 July 2014 (noting that the Scheme was closed to individuals whose special date of eligibility was after 20 September 2009, i.e. who turned 60 after that date[19]) and who accordingly require an extension of time (up until 30 June 2014) in order to register for the Scheme. Presumably only a small number of individuals would be in this situation, which may also explain why the more onerous requirements of subs 45TH(4) to (7) appear not to have been saved, at least expressly. The Explanatory Memorandum also supports a conclusion that the purpose of saving subs 45TH(3) is to enable the Commission to extend the period for late applications that were lodged before the amendments commenced on 1 July 2014, even after the amendments came into effect on 1 July 2014.

   [19] Schedule 8 to the Veterans’ Affairs and Other Legislation Amendment (Pension Reform) Act 2009, which commenced on 10 September 2009.

   What is meant by “that subsection”?

3. In light of my conclusion above that subs 45TH(3) is ‘saved’ with respect to pending applications (as opposed to those which have at some time in the past resulted in registration), I will next consider whether it is only subs 45TH(3) that continues to apply, or whether subs 45TH(4) to (7) also continue to apply.

4. I note Mr Crowe’s submission that:

   ... if it had been the intention of the drafters of the amending Act and/or the legislators who passed that amending Act to leave subsection 45TH(3) in place but to remove the barriers represented by subsection 45TH(4) of the unamended Act, such an intention could and therefore would have been much more simply, directly and logically drafted in the amending Act.

   However, on my reading, the clear words of item 12 indicate that only subs 45TH(3) will continue to apply:

   (b) the application was lodged during an extended period referred to in subsection 45TH(3) of that Act;

   then that subsection, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to that application. (emphasis added)

   I have considered whether subs 45TH(3) necessarily imports subs 45TH(4) to (7). However, subs (3) does not make any reference to subs (4) to (7) and, when read in isolation, is not contingent upon those provisions. In other words, read in isolation, subs 45TH(3) provides a broad discretion to the Commission, which was previously qualified by subs 45TH(4). For all of those reasons, I have concluded that only subs 45TH(3) continues to apply to Mr Boyle. For completeness, I note that the Explanatory Memorandum is framed in broader terms, in the sense that it refers to “the legislation that was in effect immediately before the commencement of [Schedule 8]”. However, I consider that the ordinary meaning conveyed by the text of item 12 above is clear, and does not necessarily lead to a result that is “manifestly absurd or is unreasonable”.[20]

   What are the relevant considerations for determining whether to exercise the discretion in subsection 45TH(3) of the Act to extend time?

   [20]    Acts Interpretation Act 1901, s 15AB.

5. As I have found that subs 45TH(4) does not apply to fetter the discretion conferred by subs 45TH(3), I will next address the factors that are relevant in exercising that broad discretion.

6. Mr Crowe contended that the Tribunal should apply the principles outlined in Hunter Valley Developments Pty Lt v Cohen (1984) 3 FCR 344. In that case, Wilcox J set out the following criteria which may be relevant when considering whether an extension of time ought to be granted:

   Section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not set out any criteria by reference to which the court's decision to extend time for an application for review under s. 5 is to be exercised. Already there have been a number of decisions of judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:

   1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

   2.Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.

   3.Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

   4.However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

   5.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

   6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.[21]

   [21]    Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, at 348 - 349.

7. I also note that the principles outlined in Hunter Valley were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 by reference to an earlier decision of Federal Magistrate McInnis, wherein the principles were modified slightly so as to provide that:

   It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition.[22]

   Although the principles were formulated in the context of extensions of time in which to make applications for review, I am satisfied that they are also applicable in these circumstances.

   What conclusions should the Tribunal reach in respect of each of those relevant considerations in the circumstances of this matter?

   [22]    Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, citing Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109.

8. Mr Crowe contended that, in the event the Tribunal found it had a broad discretion to extend time, the Tribunal should not exercise that discretion in this case. Specifically, he said that “the default position should be not to extend” unless the applicant has shown “an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time”.

   Explanation for the delay

9. At the hearing, Mr Boyle explained that he postponed making an application in respect of the Pension Bonus Scheme until it “became necessary”. He said that he made inquiries with the Department of Veterans’ Affairs in 2010 and was given a bundle of forms, but was not informed of the 13-week time limit at any stage. He also explained that, despite his interactions with the Department, he was simply not aware of the need to register with the scheme before making a claim, until he made his claim in October 2013.

10. Mr Crowe contends that there is “no evidence that [Mr Boyle] made any effort to establish the requirements for a pension bonus at any time when such enquiry should have been made”, namely, within 13 weeks either side of his 60^th birthday. He drew my attention to a Fact Sheet in the T documents which would have been available to Mr Boyle had he sought that information.[23] In those circumstances, Mr Crowe submitted that a failure to inquire was not an acceptable reason for the delay.

    [23]    Exhibit 1, T14/93. The Fact Sheet provides: “To take full advantage of the scheme, you should register during the period that begins 13 weeks before and ends 13 weeks after you have reached the pension/qualifying age.”

11. I accept that Mr Boyle can be fairly criticised for not taking further steps to ensure he understood and complied with all of the requirements of the Scheme. I also accept that the requirement to register within the relevant period was not brought to his attention and he was genuinely unaware of this until he lodged his claim in 2013. However, he appears to have made assumptions about the requirements of the Scheme and proceeded on that basis, without seeking to test those assumptions with the Department.

12. It is worth noting in this context that, as the delegate pointed out, by the time he approached the Department in October 2010, Mr Boyle was already outside the timeframe within which he was required to lodge a claim for a bonus, unless an extension was granted under s 45UL.[24] By the time he lodged his claim form, this was approximately three and a half years late, and his claim for registration was late by approximately nine years, given that it should have been lodged in 2004 (or by 31 January 2005 at the latest).

    [24]    Exhibit 1, T2/13.

13. In these circumstances, whilst I am sympathetic to Mr Boyle, I have ultimately concluded that he has not provided an entirely adequate explanation for his delay of approximately nine years (2004 - 2013) in seeking to register with the Scheme.

    Fair and equitable

14. With respect to whether it would be fair and equitable to extend time, Mr Crowe noted the objectives behind requiring individuals to register for the Pension Bonus Scheme before they could become eligible for payment of a Pension Bonus. For example, he pointed to the fact that the respondent would be in a position to determine whether there had been a disposition of assets that would preclude accrual of the bonus in any given period. He submitted that “[t]o register nearly nine years after the period within which the accrual of pension bonus is to take effect ... prejudices the respondent’s capacity to determine whether such a disposal has occurred. Fairness and equitability therefore cannot be guaranteed.”

15. I note that it was not disputed by the respondent in the context of this matter that s 45TN (which provides in effect that a person’s membership of the Pension Bonus Scheme is non-accruing if the person is subject to a disposal preclusion period or a carer preclusion period) does not apply to Mr Boyle, which suggests that there is no real concern from the respondent’s point of view about disposition of assets by Mr Boyle since 2004. Nevertheless, I accept the respondent’s essential point that allowing Mr Boyle to register for the Scheme so late would tend to defeat the purpose of registration, and to some extent undermine the integrity of the Scheme. I also note that throughout the period from when he ceased work in December 2009 until 1 July 2014, Mr Boyle was not eligible to register for the Scheme because he did not meet the requirements of subs 45TH(4).[25] Whilst I accept that he is entitled to the benefit of the removal of that provision whilst his application to the Tribunal was on foot, I also accept Mr Crowe’s submission that considerations of fairness and equity tend to militate against granting an extension of time.

    [25] As Mr Boyle ceased work on 23 December 2009, he would not meet the ‘work test’ in ss 45TS and 45TT of the Act for all of the relevant test periods, as required by subs 45TH(4). Further, he could not be regarded as a ‘non-accruing member’ in the period after ceasing work, as he would not come within s 45TN, or the Veterans’ Entitlements (Pension Bonus Scheme – Non-accruing Members) Declaration 2007 made under s 45TO, on the evidence before me.

    Action taken by Mr Boyle

16. Mr Crowe conceded that the consideration of a “need for finality in disputes” does not apply in this matter, and I agree with that concession. Therefore this consideration does not militate against granting an extension of time.

    Prejudice to the respondent

17. With respect to prejudice to the respondent, the only prejudice relied upon by Mr Crowe is that referred to above, namely the difficulty in ensuring in the absence of registration that a person has complied with the requirements of the Scheme, and in particular that they have not impermissibly disposed of assets. Whilst I accept the validity of this argument, I also note that Mr Crowe has not pointed to anything to suggest a risk of that having occurred in this matter. Accordingly, I also do not consider that this consideration militates heavily against an extension of time being granted.

    Merits

18. Mr Crowe conceded that if Mr Boyle’s application for registration is accepted, Mr Boyle is likely to receive some amount of Pension Bonus. However, I note that even if his late registration is allowed, Mr Boyle will also require an extension to allow his late claim.[26] Further, in order for him to receive the full amount of potential bonus, as I understand it, his registration would need to be backdated to 2004. Therefore there are some remaining hurdles in the way of his claim, and some uncertainties surrounding the amount of any bonus which would be paid.

    [26]    See s 45UL.

    Fairness as between Mr Boyle and others in a like situation

19. With respect to this consideration, I note Mr Crowe’s submission that granting an extension of time would involve:

    … an element of unsettling other people who might have applied but were discouraged by learning they are out of time.  A grant of pension bonus despite the late application for registration in the present matter, if it were to become known, would inherently unsettle those who simply accepted that they were too late to apply.[27]

    However, I also note Mr Crowe’s very proper concession that:

    I do not press this aspect of my case strongly, and I note that this present matter does not have the potential to trigger a rush of late applications for registration as registration now is explicitly prevented.

    Nevertheless, I accept that there is a degree of unfairness in granting Mr Boyle an extension of time where his delay in seeking registration has been so lengthy, and it would probably not have been open to me to do so but for the repeal of subs 45TH(4). While the repeal of that provision has operated to Mr Boyle’s advantage, there are likely to have been many other applicants whose late claims have been denied because of non-compliance with subs 45TH(4), or who have not pursued claims for Pension Bonus upon learning that they were out of time to do so.

    [27]    Respondent’s Submissions dated 5 May 2015, p. 5.

1. Even assuming that the saving provision referred to above was intended to relax the requirements for extensions of time to be granted in respect of late applications for registration outstanding as at 1 July 2014, it is doubtful as to whether this was intended to advantage applicants whose applications for registration were as late as Mr Boyle’s. Although it must have been contemplated that extensions may be granted to applicants who became eligible for pension in 2009 or even earlier, it would be an odd result, in my view, for Mr Boyle to be granted an extension of time now, having been ineligible for an extension and therefore for registration between December 2009, when he ceased work, and July 2014, when s 45TH was amended. It seems more likely that the saving provision was intended to benefit veterans whose date of eligibility was later and who were still working or had ceased work relatively recently as at July 2014. Accordingly, whilst Mr Boyle stands to benefit from the repeal of subs 45TH(4), this appears to be something of a ‘windfall’ in his case, and, as I have indicated, it would be quite an anomalous outcome for him to be granted an extension of time to register notwithstanding having been ineligible between December 2009 and July 2014.

   Conclusion

2. The circumstances giving rise to this application are quite unusual. Notwithstanding his intention to apply for a Pension Bonus, Mr Boyle was not aware of the need to register for the Scheme (in his case, in 2004) and failed to do so. After ceasing work in December 2009, Mr Boyle first made enquiries about the Scheme in October 2010, by which time he was already outside the required time to make a claim, as well as register with the Scheme. In my view, he did not satisfy the preconditions for an extension of time to be granted contained in subs 45TH(4) to (6) of the Act as previously in force. However, on my analysis these provisions were repealed from 1 July 2014, effectively ‘unfettering’ the discretion to extend the time for registration contained in subs 45TH(3).

3. Mr Boyle has explained his delay in applying to register by reference to the fact that he was unaware of the requirement to do so. However, it is also clear that he took no steps to test his assumptions about the Scheme until October 2010, approximately 10 months after he ceased work. Further, whilst the specific requirements were not brought to his attention, he took minimal steps to ensure that the assumptions he had made about the Scheme were correct, and did not ultimately lodge a claim and seek to register until three years later.

4. Whilst the respondent has identified some prejudice which may arise if the extension is granted, I have not been directed to anything which suggests that allowing Mr Boyle to register for the Scheme late will lead to a clear injustice or a result at odds with the intention of the Scheme, and I also accept there appears to be merit in his substantive application, albeit he would also need an extension of time in which to lodge his claim.

5. Nevertheless, I am satisfied that it would, to some degree, be unfair to applicants who were not permitted to register late because of subs 45TH(4) if Mr Boyle is permitted to register late, partly because subs 45TH(4) had been repealed by the time his application came to be determined. In addition, the delay is lengthy, and I am not satisfied that Mr Boyle has given an entirely adequate explanation for that delay.

6. Whilst I am mindful that Mr Boyle feels aggrieved that the requirements of the Scheme were not brought to his attention earlier, having regard to the length of the delay involved, the unsettling and anomalous effect of allowing him to register after such a lengthy delay, and the limited steps Mr Boyle took to inform himself about the Scheme, I have decided on balance that I should not extend the time for him to register pursuant to subs 45TH(3).

   Is there a need for the Tribunal to receive further evidence directed to those considerations?

7. For completeness, I note that neither party sought to adduce further evidence directed to the application of the Hunter Valley principles.

   OVERALL CONCLUSION

8. For the reasons outlined above, I have decided not to grant Mr Boyle an extension of time under subs 45TH(3). Of course, it follows from my decision not to grant Mr Boyle an extension of time to register with the Scheme that his application for a Pension Bonus must also be denied, as registration is a prerequisite for payment of Pension Bonus.[28] Accordingly, I have concluded that I am obliged to affirm the decision under review.

   [28] See subs 45THC(1) of the Act.

   DECISION

9. The decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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

Associate

Dated 8 July 2015

Dates of hearing	30 September 2014 and 22 January 2015
Date final submissions received	6 May 2015
Applicant	In person
Advocate for the Respondent	Mr A Crowe
Department of Veterans' Affairs Advocacy Section