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

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.
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.
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.
On 26 February…

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: [2015] AATA 488
Decision Date: 8 July 2015

CaseChat Overview and Summary

In the case of Boyle and Repatriation Commission (Veterans’ entitlements), the central issue was whether the Repatriation Commission's discretion to extend the period for Mr Boyle to register for the Pension Bonus Scheme could be exercised, despite the delay in his application and the repeal of relevant provisions. The court was tasked with determining the principles governing the exercise of this broad discretion, weighing the fairness between Mr Boyle and other applicants, and assessing the adequacy of Mr Boyle's explanation for the delay.

The court considered various factors, including the length of the delay, the anomalous effect of allowing registration after such a significant delay, and Mr Boyle's limited efforts to inform himself about the Scheme. It found that Mr Boyle's explanation for the delay was inadequate and that permitting his registration would disrupt the fairness and consistency of the Scheme. The court concluded that the Tribunal should apply the current law, which mandates the denial of Mr Boyle's application for registration and, consequently, his application for a Pension Bonus.

In reaching its decision, the court highlighted the importance of adhering to the statutory provisions and the principles of fairness and consistency in the administration of the Scheme. It found that the repealing Act did not intend to preserve the discretion to extend the registration period, and thus, Mr Boyle's application for an extension was denied. The decision under review was affirmed, resulting in Mr Boyle's application for a Pension Bonus being rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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? For completeness, I note that neither party sought to adduce further evidence directed to the application of the Hunter Valley principles.OVERALL CONCLUSION 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 The decision under review is affirmed.

Decision

Reasons for decision

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? 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]. 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.

Ratio Decidendi

Legal Principle Established

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 registrationSpecial 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). 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).

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

Tribunal	Deputy President K Bean
Date	8 July 2015
Place	Adelaide