Brecht and Repatriation Commission
[2001] AATA 758
•4 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 758
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/271
VETERANS' APPEALS DIVISION )
Re ALAN HENRY RUPERT BRECHT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date4 September 2001
PlaceCanberra
Decision The Tribunal extends the time in which the Applicant can make an application to the Tribunal for review of the relevant decision so that the application must have been made by 29 June 2001.
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Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – application for extension of time – prejudice to the respondent
Administrative Appeals Tribunal Act 1975, s 29(2)(a), (7), (8)
Veterans' Entitlements Act 1986, s 176(4)
Re Roberts and Repatriation Commission (1992) 27 ALD 408
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
REASONS FOR DECISION
M J Sassella, Senior Member
History of application
On 20 August 1998 the Repatriation Commission ("the Respondent") decided that the ischaemic heart disease of Mr Alan Henry Rupert Brecht ("the Applicant") was not a war-caused disease or a defence-caused disease and so was not relevant to assessment of his rate of Disability Pension (Exhibit A1).
On 2 October 1998 the Applicant lodged with the Department of Veterans' Affairs ("the DVA") an application for review of the decision by the Veterans' Review Board ("the VRB") (Exhibit A1).
On 30 August 2000 the VRB affirmed the decision under review (Exhibit A1). On 18 October 2000 the VRB sent a notice of its decision to the Applicant (Exhibit R2).
On 29 June 2001 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the Respondent's decision as affirmed by the VRB (Exhibit A1). At the same time the Applicant lodged with the Tribunal an application for an extension of time for the lodging of the application for review of the decision (Exhibit A2).
Hearing and appearancesThe Tribunal convened a hearing on 20 August 2001 to consider the application for an extension of time. The hearing was held in Canberra, with the Respondent represented from Sydney by telephone link. Mr Paul Crabb from Snedden, Hall & Gallop, Solicitors, represented the Applicant. Mr Jim Marsh from the DVA represented the Respondent.
The Tribunal had before it the following documentary evidence:
Exhibit A1 – Application for review lodged with the Tribunal by the Applicant.
Exhibit A2 – Application for extension of time for lodging application for review of decision, lodged by Applicant.
Exhibit A3 – Statutory declaration of the Applicant dated 16 August 2001.
Exhibit A4 – Report by Dr D M Coles, cardiologist, 16 November 1999.
Exhibit R1 – Letter dated 25 July 2001 from DVA to the Tribunal opposing the grant of an extension of time.
Exhibit R2 – Letter dated 18 October 2000 from the VRB to the Applicant.
Relevant legislation
The relevant legislation in this matter is the Administrative Appeals Tribunal Act 1975 ("AAT Act") s 29(2)(a), (7), (8), and the Veterans' Entitlements Act 1986 ("VEA") s 176(4):
Administrative Appeals Tribunal Act 1975"29 Manner of applying for review
(1) An application to the Tribunal for a review of a decision:
(a) shall be in writing; and
(b) may be made in accordance with the prescribed form; and
(c) except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and
(ca) in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment - must be accompanied by:(i) a copy of the assessment as given to the applicant; and
(ii) a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb) in respect of an application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 - must be accompanied by a statement setting out the grounds on which the application is made;
(d) if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.
(1A) If, in an application, a person does not furnish an address at which documents in relation to the proceeding may be served, any address of the person shown in the application, or later notified to the Tribunal as an address for service, is taken to be an address furnished by the person at which such documents may be served.(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
…"
Veterans' Entitlements Act 1986
"176 Application of Administrative Appeals Tribunal Act
…(4) Section 29 of the Administrative Appeals Tribunal Act 1975 applies to and in relation to an application to the Administrative Appeals Tribunal for a review of a reviewable decision:
(a) as if "ending 3 months" were substituted for "ending on the twenty-eighth day" in subsection (2) of that section; and
(b) as if at the end of subsection (7) there were added "until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit."
Applicant's Argument
The Applicant made the following case for the grant of an extension of time.
In Exhibit A2 the following appeared as reasons for the application for an extension of time:
"The Applicant was disillusioned and confused by the decision of the Veterans' Review Board as it seemed to ignore his evidence completely. Further, he did not receive a follow-up from his advocate with the RSL. He had received advice that there would be costs involved with taking his matter on appeal to the AAT. Eventually, on 16 June 2001, the Applicant sought further clarification of his position with Mr Peter Kelly, RSL (ACT), who immediately arranged an appointment with Mr Paul Crabb, Snedden Hall & Gallop on 29 June 2001. On Mr Crabb's advice and assurance of costs, the Applicant gave instructions to file an appeal."
In Exhibit A3 the Applicant declared as follows (omitting unnecessary parts):
"When I appeared before the VRB, I gave evidence of my exposure to passive smoking from my time with the Royal Australian Navy. At no stage during these proceedings or afterwards was I advised either by the VRB or my RSL advocate of the strict requirements of 'eligible service' under the Statement of Principles for ischaemic heart disease and the factors involving passive smoking. When I then received a copy of the VRB decision sometime in October 2000, I thought the VRB had simply ignored what I had told them. I became very disillusioned by the whole process and confused by the independents [sic] of the VRB in the process in general.
"After I had received the VRB decision, I did not receive any advice from my RSL advocate about my right of appeal of this decision, or an explanation of the VRB's decision. I had heard that I may be entitled to appeal this decision of the VRB from my RSL advocate immediately after the hearing, but he went on to say words to the effect that 'the drawback is that you will be responsible for legal costs and medical report fees'. I regarded this is yet another stumbling block placed in my way. I am retired and cannot afford this expense.
"On or about 16 June 2001, I decided that I would not just sit back and take the decision of the VRB. I then spoke to Mr Peter Kelly, Pensions and Welfare Advicer [sic] RSL (ACT) about the VRB decision and the way it had ignored my evidence. Mr Kelly gave me some advice and immediately arranged an appointment with Mr Paul Crabb, Solicitor with Snedden Hall and Gallop.
"I met with Mr Crabb on 29 June 2001. I received certain advice from Mr Crabb. I then instructed Mr Crabb to immediately lodge an appeal to the Administrative Appeals Tribunal. I understand and verily believe that Mr Crabb has lodged an application for an extension of time for lodging application for a review of a decision with the Tribunal.
"In all the stages since receiving the VRB's decision, I have been in a state of ignorance, and have not received advice from people I have relied on for advice and support. Immediately advice was available to me, I took positive steps to notify the other parties involved that I would be appealing the decisions against me to the Administrative Appeals Tribunal."
In oral evidence before the Tribunal, the Applicant made the following points. He had received the decision of the VRB by mail. He had not brought the decision with him to the Tribunal hearing. He had read the covering pages of the decision only superficially. He concentrated on reading the decision itself. He does not recall any written advice that he had only three months within which to appeal. He recalls that after the VRB hearing the RSL advocate had said to him that he would have a right of appeal for up to 12 months.
The Applicant was shown Exhibit R2. That document was the notification by the VRB of its decision. Attached to the notification was a document entitled "appeals to the Administrative Appeals Tribunal". Paragraph 2 of that attachment reads, "An appeal to the Tribunal must be in writing and should be lodged within three months of service of a Board decision." The Applicant explained to his counsel that he took that advice to mean that it was desirable to lodge an appeal within three months but that it was not compulsory to do so.
The Applicant described his state of mind as follows. He had seen the attitude of the VRB as negative. In the Applicant's mind the issue was that he had had thousands of hours of exposure to passive smoking. This had been reduced to 1000 hours by the VRB. The Applicant had been deflated and disillusioned. He had felt that his evidence was rejected by the VRB. He revisited the papers and decided to see the RSL's Mr Kelly. He saw him on the 16 June 2001 and saw Mr Crabb, his Solicitor, the same day.
In relation to the merits of his case, the Applicant referred to Exhibit A4 in which Dr Coles had supported the Applicant's case. The Applicant had experienced heart attacks in 1972 and 1987.
The Applicant was asked if he had made claims in relation to the same condition with any other Commonwealth agency. He responded that he had not. For example, he has made no workers' compensation claim. He has made no application with the Military Compensation and Rehabilitation Service. The Applicant has a Disability Pension in respect of hearing and skin cancer. He has not contacted the DVA concerning his accepted disabilities since October 2000.
The Applicant was cross-examined by Mr Marsh from the DVA. Mr Marsh put to the Applicant that his RSL advocate, Mr Sinclair, was long experienced in this work. Further, he put to the Applicant that in his conversation with Mr Sinclair after the VRB hearing, Mr Sinclair may have told the Applicant that he had only three months in which to appeal to the AAT. The Applicant denied this.
The Applicant told Mr Marsh that he checks closely on papers that he receives from the VRB. Mr Marsh observed that the Applicant appeared to recall what Mr Sinclair had said but not what he had read in the letter from the VRB. He put to the Applicant that he had mistaken the advice given him by Mr Sinclair.
The Applicant agreed with Mr Marsh's proposition that he could have made the decision that he made in June 2001, that is the decision to appeal, at least six months earlier.
The Applicant confirmed that he was a Commodore on retirement from the Navy. The Applicant agreed that the clinical onset of his ischaemic heart disease occurred in 1972.
Mr Crabb re-examined the Applicant and ascertained that the Applicant did not particularly think that he had any period of less than 12 months in which to appeal when he took the steps that he took in June 2001.
The Applicant confirmed with Mr Crabb that in his Navy experience he had had no function involving any knowledge of benefits obtainable from the DVA. In submissions to the Tribunal, Mr Crabb, for the Applicant, made the following points.
First, the combination of s 29(7) of the AAT Act and s 176(4) of the VEA have the effect that an extension of time can be granted "as the Tribunal deems fit".
Second, the Respondent relies on authorities and cases decided under the Administrative Decisions (Judicial Review) Act where the extension of time in question is often for a period greater than 12 months. The test for an extension of time for a period of between three months and 12 months is less onerous then in some of the authorities presented in the Respondent's letter which was Exhibit R1.
Third, the Applicant never rested on his rights. The Applicant stewed on the issues for a time. It became too much. He saw the RSL. Mr Crabb pointed out that the VRB letter concerning the time limit for lodging an appeal to the Tribunal did not state that the three months time limit was compulsory.
Fourth, there is no prejudice to the Respondent in extending time. The same documents are still available to the Respondent now as were available in January 2001.
Fifth, there would be no disruption of established practices in providing the Applicant with an extension of time.
Respondent's ArgumentMr Marsh explained that the DVA had recently decided to take active steps in opposing or agreeing to extension of time applications because it understood that the Tribunal preferred it to do that. In earlier times for the Respondent had neither opposed nor agreed to the grant of an extension of time.
Mr Marsh pressed that timeframes had been set out and that the Applicant had delayed for more than five months in lodging his appeal with the Tribunal. Mr Marsh put to the Tribunal that the Applicant could have acted within time.
Mr Marsh described the Applicant's explanation for delay in appealing as weak and unconvincing. It was inconceivable that Mr Sinclair gave the wrong advice to the Applicant. The VRB's letter had indicated the correct appeal period. Mr Marsh said that the stewing in silence done by the Applicant did not amount to the agitation of the issue with the DVA or with anyone else.
Mr Marsh said that there was only prima facie prejudice to the Respondent. He conceded that there was no real prejudice.
As regards the merits of Mr Brecht's appeal, Mr Marsh observed that the Applicant had little operational service before the clinical onset of his ischaemic heart disease. In his view, Dr Coles' opinion did not add anything. The clinical worsening issue had not been put to the VRB and now it seems difficult to argue that there was any clinical worsening because the Applicant seems asymptomatic.
Mr Marsh suggested that the Applicant should lodge a fresh appeal. Mr Marsh addressed the case law and cited the authority of Re Roberts and Repatriation Commission (1992) 27 ALD 408. At page 46 of the decision, O'Connor J, President of the Tribunal, wrote, "The payment of pensions and benefits is not open-ended in that veterans must satisfy certain eligibility criteria. The system of review involving the Veterans' Review Board and the Administrative Appeals Tribunal has been set up under the Act. Time limits are set in s 57A for internal review, s 135 for review by the Veterans' Review Board and in s 176 for review by the Tribunal. At all levels of the review system then Parliament has evinced an intention, based on public policy, that veterans should not have an unlimited time in which to pursue their claims. In recognition, however, that the class of persons to whom the Veterans' Entitlements Act applies may have difficulty [with] the normal 28 time limit under s 29 of the Administrative Appeals Tribunal Act has been lengthened."
Mr Marsh referred also to the decision in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 in which, said Mr Marsh, the High Court held, in relation to similar extension provisions to those in the AAT Act, that there was no presumptive right to exercise of the discretion, and that the party seeking the extension bears the onus of showing that the justice of the case requires the extension. Mr Marsh went on to say that, in that case, two of the High Court judges held that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the Respondent, who would otherwise have had the benefit of the limitation.
Mr Marsh submitted that the advice given by Mr Sinclair would have been correct. He further submitted that any ignorance on the part of the Applicant would have been self-induced. He concluded by pointing out that the Applicant was otherwise an intelligent applicant.
Mr Crabb, for the Applicant, observed in response that Mr Marsh's opinion in relation to Mr Sinclair was, perhaps, not borne out by the facts. In Mr Crabb's view, Mr Sinclair had mishandled the Applicant's case before the VRB.
Findings on material questions of fact with reference to the evidence and other material in support of those findingsThe principles or requirements in the legislation for the grant of an extension of time are:
The person seeking the extension must apply in writing to the Tribunal (AAT Act s 29(7)). In the present case the Applicant did this on 29 June 2001 (Exhibit A2).
If the person is a veteran he or she must apply in writing no later than 12 months after the date on which the document setting out the terms of the decision was furnished to the Applicant (VEA s 176(4)(b)). In the present case this requirement is satisfied. The notice of the decision under review was furnished to the Applicant on or soon after 18 October 2000 (Exhibit A2, AAT Act s 3(4)(b)). The Applicant acted to seek an extension of time within 12 months of that date.
The Tribunal may, if the formal requirements above are met, extend the time available to the person to make application for review (AAT Act s 29(7)). The extension may be to such date as the Tribunal deems fit (VEA s 176(4)(b)).
The leading authorities as regards the accepted criteria for granting an extension of time are Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. At page 314 of the Mulheron case (supra) O'Connor J said:
"The principles to be applied in considering an application for extension of time under section 29(7) were considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990). Briefly, 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 another person a like position is relevant."
Paragraph (a) above has been regarded as requiring of an applicant a satisfactory explanation for the delay in bringing proceedings. In the present case the Applicant has advanced several reasons for delay. These are:
He understood the RSL advocate to say that he had up to 12 months in which to appeal.
When he received the VRB decision he was disillusioned with the VRB's handling of his evidence. He concentrated on the substance of the decision and not on the attached circular detailing appeal rights and time limits. In any event, for the Applicant it was argued that, as the VRB circular said only that an appeal to the Tribunal "should be lodged within three months of service of a Board decision" (Tribunal's emphasis), and not that it must be so lodged, he would have been no wiser had he absorbed that information.
He eventually pursued the issue of an appeal and acted promptly from then onwards.
In the Tribunal's view, the satisfactory or unsatisfactory nature of an applicant's explanation must be assessed having regard to the length of time taken by the applicant to lodge the application. In the present case the Applicant should have lodged his application with the Tribunal by about 18 January 2001. He was about five months late in his lodgement. In the overall scheme of applications of this type entertained by the Tribunal, the Applicant's delay is at the less extreme end of the spectrum. Of course, this must almost necessarily be so in veterans' cases where, unlike in other jurisdictions, there can be no extension beyond 12 months. However, the relative shortness of the extension of time required means that it should be easier for the veteran to provide a satisfactory explanation for his delay.
The Tribunal found the Applicant to be a straightforward witness and does not consider that it has any problem accepting his credibility. The Tribunal therefore accepts the Applicant's evidence as regards his understanding of the advice given him by Mr Sinclair. It is possible that Mr Sinclair did refer to the three months limitation but also mentioned the 12 months maximum limit and this latter period was the one picked up by the Applicant.
The Tribunal also accepts the Applicant's account that he stewed over an unwelcome VRB decision and took his time considering the next steps. Ms Marsh is, of course, correct in arguing that there was nothing to stop the Applicant from acting on the VRB decision as early as January 2001 (or even earlier). However, the fact remains that the Applicant did not act. He has explained why he did not. The explanation is reasonable, if perhaps close to the borderline between reasonable and unreasonable. The Tribunal therefore finds that the Applicant has a satisfactory explanation for his delay.
There was no suggestion, as regards paragraph (b) from Mulheron (supra), that the Applicant agitated his cause in any other forum. Had he done so he might find it easier to argue for the grant of an extension of time. In the present case, however, the Tribunal finds that this defect in the Applicant's case is of small moment in view of the relatively short delay in lodging the application for review.
As regards (c) in Mulheron (supra), it was common ground that the Respondent would suffer no prejudice, other than the prejudice of having to answer the Applicant's appeal, if an extension of time is granted. The Tribunal finds that this is the case and commends the Respondent for refraining from advancing unrealistic arguments suggesting that there could be prejudice.
As regards (d) in Mulheron (supra), the Tribunal doubts that this principle applies in the instant case. It is more likely to be a factor where a respondent is defending private property or similar rights than in a case such as this involving statutory entitlements. It might also be an issue if the grant of an extension of time in one case might markedly delay consideration of other cases which have been instituted in a timely fashion. In the present case this would not seem a substantial issue.
As regards (e) in Mulheron (supra), the Tribunal considers that the Applicant would seem to have an arguable case. That is about all that is required as regards a preliminary assessment of the likely merits of the applicant's case in an extension of time case (Brown v Commissioner of Taxation [1999] FCA 563, paragraphs 24 and 25) per Hill J.
As regards (f) in Mulheron (supra), the Tribunal sees little room for the application of that principle in the present case. In cases such as this, which deal with the entitlements of an individual pursuant to a statutory scheme, the position of the individual seeking the extension of time is most probably paramount. It will not disadvantage any other person in a position like to that of the Applicant if he is accorded an extension of time.
ConclusionThe Tribunal has concluded that the Applicant should be granted the requested extension of time. The Tribunal wishes to thank Messrs Crabb and Marsh for their relevant and helpful submissions.
DecisionThe Tribunal extends the time in which the Applicant can make an application to the Tribunal for review of the relevant decision so that the application must have been made by 29 June 2001.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed: .....................................................................................
AssociateDate/s of Hearing 20 August 2001
Date of Decision
Counsel for the Applicant Mr P Crabb
Representative for the Respondent Mr J Marsh
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