Davies and Repatriation Commission
[2005] AATA 935
•27 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 935
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/238
VETERANS' APPEALS DIVISION ) Re BERYL AUDREY DAVIES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date27 September 2005
PlaceMelbourne
Decision The ambit of the remittal of this application from the Federal Magistrates’ Court (the Court) is confined to the issues contained within a statement exchanged between the parties and lodged with the Court with signed Consent Orders on 20 January 2005. (Sgd) John Handley
Senior Member
PRACTICE –remittal of application by Consent to Tribunal from a Federal Magistrate – Consent Orders signed by representatives – agreed errors of Tribunal contained within a statement – statement not signed – statement attached to Consent Order when filed with Magistrates’ Court – contents of statement not referred to in the Order of the Magistrate –whether ambiguity – preceding and surrounding circumstances examined to determine the ambit of the remission
Re Lees and Repatriation Commission [2004] AATA 583
Repatriation Commission v Nation (1995) 21 AAR 351
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Repatriation Commission v Parr [2003] FCA 970
REASONS FOR DECISION
27 September 2005 Mr John Handley, Senior Member 1. In application V2002/797, Mrs Davies sought a review of a decision made by the Veterans’ Review Board (“VRB”) (which affirmed the decision made by the Respondent) to refuse her claim for widows’ pension.
2. The hearing of that review occurred on 4 July and 12 August 2003 and on 23 January 2004, I published written reasons for decision affirming the decision then under review.
3. Mr De Marchi, the solicitor for Mrs Davies subsequently lodged a Notice of Appeal in the Federal Court reciting eight grounds of appeal.
4. Weinberg J in the Federal Court directed that the appeal be heard in the Federal Magistrates’ Court (PMLG 326/2004). The matter was listed for hearing on 24 January 2005 but in the week immediately prior to that date, negotiations occurred between the representatives of the parties. On 20 January 2005, Federal Magistrate O’Dwyer, made an Order by Consent “That the appeal be allowed and the matter remitted to the Administrative Appeals Tribunal to be determined according to law” (the remainder of the Order concerned the payment of costs by the respondent to the applicant which, for reasons that follow, have no relevance to the issue currently being adjudicated).
5. When the Tribunal learnt of the Order made by the Magistrate, an officer of the Tribunal within Principal Registry requested that both parties file and serve “an agreed statement identifying the errors of law upon which the remittal was based”.
6. On 4 April 2005, the Australian Government Solicitor on behalf of the respondent forwarded a letter to Principal Registry of the Tribunal attaching “the agreed statement that was attached to Consent Orders filed with the Federal Court outlining the error of law made by the Tribunal in its decision dated 23 January 2004”. The letter records that a copy of it was forwarded to the Melbourne Registry of the Tribunal and to Mr De Marchi.
7. On 11 April 2005, Mr De Marchi lodged a “Statement of Facts and Contentions” which clearly referred to the decision made by me on 23 January 2004.
8. I subsequently became concerned that the Statement of Facts and Contentions lodged on 11 April 2005 referred to matters which – at least on the face of the document – were beyond the ambit of the “agreed statement” that was attached to the Consent Order filed with the Federal Magistrates’ Court.
9. Accordingly I directed that the matter be listed for a Directions Hearing to hear argument upon these matters. There was preliminary argument on 7 June 2005 but it became clear that there were considerable legal issues to be canvassed. The parties requested the opportunity to make submissions upon relevant case law and the matter was adjourned and argument was heard from both representatives on 26 July 2005. On that occasion Mr De Marchi appeared on behalf of Mrs Davies and Ms McDonnell appeared on behalf of the respondent.
10. At the Directions Hearing on 26 July 2005 a number of documents (and attachments) were received into evidence and may relevantly be described as follows:
(i)On 19 January 2005, at 10.41 am, AGS forwarded a letter by facsimile to Mr De Marchi (apparently referring to earlier discussions) and enclosing “the consent orders and statement to be attached to consent orders remitting this matter to the AAT for determination according to law”. (The remainder of this letter and parts of the other correspondence referred to below, refer to discussions between the parties concerning payment of costs. That issue was not relevant to the argument on 26 July 2005 and those parts of the letters referrable to the negotiation concerning costs, are not referred to in the following summary of the correspondence). The letter notes that the hearing in the Magistrates’ Court was scheduled for 24 January 2005 and a request was made to “return the signed consent order and statement at the earliest opportunity . . .”. The “consent order” relevantly records
We consent for the purposes of Part 13 Division 13.2 of the Federal Magistrates’ Court Rules 2001 to the making of an order in accordance with the following terms –
1.That the appeal be allowed and the matter remitted to the Administrative Appeals Tribunal to be determined according to law.
2.. . .
The “statement” has five numbered paragraphs and is reproduced as follows:
1.The applicant contended before the Administrative Appeals Tribunal (the AAT) that her deceased husband, who was a veteran within the meaning of the Veterans’ Entitlements Act 1986 (the VE Act), had died of cirrhosis of the liver and that his cirrhosis of the liver was caused by consumption of alcohol which arose out of or was attributable to his eligible service with the Navy
2.Under s 196B of the VE Act, Statements of Principle [sic] are determined by the Repatriation Medical Authority if it is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to eligible war service (or to other specified forms of service) rendered by veterans.
3.The Statement [sic] of Principles No 36 of 1998 concerning cirrhosis of the liver, included “consuming at least 220kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver” as a factor which could connect cirrhosis of the liver with the circumstances of a veteran’s service. (There was no dispute that the veteran met that factor in so far as he had consumed that quantity of alcohol in a 10 year period. What was in issue was the connection between the factor and his eligible service.)
4.The AAT made findings, in paragraphs 59 and 60 of its reasons for its decision, to the effect that whether the veteran’s “consuming of at least 220kg of alcohol (contained within alcoholic drinks) within any 10 [sic] period” was connected to his eligible service was to be determined by reference to the factors in Statement [sic] of Principles No 77 of 1998 concerning alcohol dependence or alcohol abuse.
5.The parties agree that the AAT erred in limiting its fact finding, as to whether there was a connection between the veteran’s service and his consumption of the requisite amount of alcohol over any 10 year period prior to the clinical onset of cirrhosis of the liver, to the factors in the Statement [sic] of Principles concerning alcohol dependence or alcohol abuse.
(ii)On 19 January 2005 at 4.15 pm Mr De Marchi faxed a letter to AGS referring to the proposal to have the matter remitted to the Tribunal and recorded “We do not have a difficulty with the matter being remitted to the Tribunal . . .”.
(iii)At 5.16 pm on 19 January 2005, AGS faxed a reply to Mr De Marchi in terms which almost entirely concerned the issue of costs, but concluded that in the event that costs were not resolved by the following day, “we propose that parties sign the attached consent agreement referring the costs issue for taxation at a later stage”.
(iv)On 19 January 2005 at 5.25 pm, Mr De Marchi faxed another letter to AGS. The letter contained some references to the payment of costs and a further offer was made by way of negotiation. However in relation to the issues presently under dispute, the letter contained the following paragraphs:
We note that the respondent had conceded at the Administrative Appeals Tribunal that the SoP for cirrhosis of the liver was met by the amount of alcohol consumed by the late veteran.
Under the circumstances, we believe there is nothing more for the Tribunal to do than to apply that concession to the relevant SoP.
Again, without prejudice, we would be prepared to recommend to our client that the Court make an Order that the Tribunal’s decision be set aside, and that the matter be remitted to the Repatriation Commission for payment of the war-widow’s pension to the applicant.
(v)At 5.58 pm on 19 January 2005, AGS replied to Mr De Marchi referring to the issue of costs and a further offer was made in an attempt to settle that issue. In anticipation that the offer then made as to costs would resolve that issue, AGS forwarded a Consent Order in identical terms to the Consent Orders forwarded on two occasions earlier on that day, but different only as to the reference to the quantum of costs. The statement was again attached to the letter of 5.58 pm and was in identical terms to the statement forwarded by letter at 10.41 am on 19 January 2005.
(vi)On 20 January 2005, Mr De Marchi wrote to AGS referring to the letter faxed at 5.58 pm on 19 January 2005. The letter of 20 January 2005, except for the issue of costs, records:
We have received our client’s instructions to consent to the Court making the following Orders:
1.That the appeal be allowed and the matter remitted to the Administrative Appeals Tribunal to be determined according to law;
2.. . .
We enclose signed Consent Order.
(vii)On 20 January 2005 at 9.50 am, at a time after receipt of the letter from Mr De Marchi referred to above, AGS wrote to the Registrar of the Federal Magistrates’ Court in the following terms (omitting irrelevant and formal parts):
1.Enclosed are original signed minutes of proposed consent orders and attached Statement of reasons.
The Consent Order attached to that letter was signed by a solicitor of AGS and by Mr De Marchi. It is in identical terms to the draft Consent Order attached to the letter of AGS to Mr De Marchi’s office at 5.58 pm on 19 January 2005. Also attached to the letter of 20 January 2005 is the statement again in identical terms to that which had previously been forwarded to Mr De Marchi on two occasions.
11. Mr De Marchi submitted that the matter that was remitted to this Tribunal was the whole of the applicant’s case that had been presented to the Tribunal at first instance.
12. Ms McDonnell on behalf of the respondent submitted – orally and by written submissions – that the basis for remission of the application to the Tribunal was confined to the issues within the statement. She submitted that the applicant was attempting to re-litigate, upon the remission, an issue of whether the deceased was engaged in operational service. She said no agreement was reached on that issue, nor is there any reference to it within the statement. Ms McDonnell referred to the letter from Mr De Marchi’s office at 5.25 pm on 19 January 2005 (refer earlier) which acknowledged that the respondent had conceded that the SOP with respect to cirrhosis of the liver had been satisfied. The letter then stated “Under the circumstances we believe there is nothing more for the Tribunal to do than to apply that concession to the relevant Statement of Principles”. The expression “that concession” found within that letter was clearly referrable, on her submissions, to the concession by the respondent that the SOP for cirrhosis of the liver had been satisfied. It was submitted that it was only that issue which was the subject of remission to the Tribunal.
13. Ms McDonnell referred to the Notice of Appeal lodged by Mr De Marchi which contained eight grounds of appeal. She submitted that the respondent only conceded ground 6.1, being an error of law by the application of a sub-hypothesis. She submitted that the Federal Magistrate agreed to make the Order remitting the application to the Tribunal upon the basis of the contents of the attached statement.
14. Ms McDonnell then drew attention to the language adopted by the Federal Magistrate in the Order made on 20 January 2005. It was noted that the Order referred to the “matter” being remitted to the Administrative Appeals Tribunal whereas the language of s 44 (5) of the Administrative Appeals Tribunal Act 1975 refers to a “case” being remitted. It was submitted that the distinction between the word “matter” and the word “case” had been the subject of a decision of the Tribunal in Re Lees and Repatriation Commission [2004] AATA 583 (“Lees”). In that decision the Tribunal referred to a Full Federal Court decision of Repatriation Commission v Nation (1995) 21 AAR 351 (“Nation”). On the basis of these authorities it was submitted that if there is ambiguity in an Order or a decision of a Court or Tribunal, evidence may be obtained from “surrounding circumstances” to assist in interpretation. Ms McDonnell asserted that the Order to remit the matter to the Tribunal by the Federal Magistrate was ambiguous but the ambiguity was capable of resolution having regard to the surrounding circumstances, principally, the statement lodged with the Court at the time the Consent Order was lodged.
15. In reply, Mr De Marchi submitted that there were two principle issues that required consideration namely;
(i) identification of the agreement between the parties (if any) and,
(ii)interpretation of the Order made by the Federal Magistrate.
16. With respect to the alleged agreement between the parties, Mr De Marchi referred to his letter of 19 January 2005 forwarded to AGS by facsimile at 5.25 pm. He said the letter should be interpreted as conveying a belief on behalf of he and his client, that the respondent had conceded that a SOP with respect to cirrhosis of the liver had been satisfied and there was nothing more for the Tribunal to do other than to have the decision of January 2004 set aside and the matter be remitted to the respondent for payment of pension. It was submitted that that proposal for resolution was different to the proposal contained in earlier correspondence, and it therefore followed that at no stage was agreement reached between the parties. It was submitted that there is no document in existence which points to, or constitutes, an agreement existing between both parties adopting the statement which was ultimately lodged with the Federal Magistrates’ Court.
17. Additionally, Mr De Marchi relied on his letter of 20 January 2005 which records that the “signed consent order” was enclosed. It was submitted that there was no mention by that letter of him enclosing or returning the statement.
18. In these circumstances, he submitted the Order of the Federal Magistrates’ Court was not ambiguous and it was clear that the whole of the matter should be remitted to the Tribunal. Further he argued that if there was ambiguity, the Tribunal has no power to determine the extent of the matter under remittal, and the respondent should return to the Federal Magistrates’ Court and apply to amend the Order that was made.
19. At the end of his oral submissions, Mr De Marchi requested the opportunity to provide some written submissions upon the authorities referred to by Ms McDonnell in her submissions. The written submissions ultimately were received and it was submitted that upon the authority of Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374, all of the issues that were before the Federal Court were remitted to this Tribunal. It was submitted that there was no ambiguity in the construction of the correspondence and documents generated between the parties, and the Order that was made by the Court was “immediately plain and no construction is required”. It followed upon these submissions that Nation was not relevant, there was no ambiguity and the Order made by the Magistrate should be given its literal meaning.
20. In written reply, Ms McDonnell submitted that it was not the practice of the Federal Magistrates’ Court to make Orders by consent without requiring an agreement statement completed by the parties “explaining the error of law made by the Tribunal”. It followed that the statement attached to the draft Order did contain a statement of the error of law as agreed between the parties. It was submitted that if there was any ambiguity, it arose by reference to the use of the word “matter” by the Magistrate in the Order that was made. This is consistent with the language of s 44 (4) of the AAT Act (and the amending provisions by s 44AA of the AAT Act empowering Magistrates to remit appeals to the Tribunal).
21. It was submitted that the assertion of the applicant that “all matters” before the Court were remitted to the Tribunal was in error. Despite remitting “the matter”, the Order made by the Magistrate ought to be read as remitting the matter confined to the contents of the statement that was attached to the draft Order. That statement referred only to one error of the Tribunal.
22. Ms McDonnell further submitted that the Federal Court decision of Repatriation Commission v Parr [2003] FCA 970 was applicable, the Court then deciding that the Tribunal could determine the scope of the matter upon remission by regard to the terms of the remitting Order.
conclusion and reasons for decision
23. It is hardly satisfactory that this Tribunal should have to determine the ambit of the rehearing of an application which has been remitted. A determination as to the ambit of the appeal upon remission is now necessary because of the issues that have emerged in argument between both parties.
24. The applicant’s representative has submitted that the matter remitted is the whole of the application that was before the Tribunal at first instance. The respondent’s representative has submitted that the only matter to be remitted is the issue apparent from the statement which was attached to the Consent Order.
25. In order to determine the ambit of the application as remitted, it is necessary to examine the circumstances immediately preceding the filing of the Consent Order with the Federal Magistrates’ Court.
26. At this stage I should pause to consider the issue that emerged – principally in the submissions of Ms McDonnell – that the language of the Order made by the learned Magistrate was incorrect, to the extent that “the matter” was remitted when “the case” should have been remitted. Section 44 (5) of the AAT Act clearly refers to remittal of “the case”. The recent amendments to the AAT Act at s 44AA (9) empower Federal Magistrates to remit applications in the same manner in which remissions were within the powers of Federal Court Judges.
27. In Nation the Full Federal Court of Black CJ, Jenkinson and Beaumont JJ decided at paragraph 43:
43. In my opinion, the language of the order of remitter was susceptible of more than one meaning. The word "matter" could have meant the whole question being the determination of the respondent's claim for a further pension. But it could also have meant the specific dispute then agitated before the Court, that is, the sequela issue. Although, "matter" is sometimes used, in the constitutional sense, to describe the whole of a dispute dealt with by the judicial process, the language of the Veterans' Act indicates that, in other contexts, "matter" can have a narrower meaning. For instance, as has been noted, by s.18(1), it is provided that it is the duty of the Commission, inter alia, to determine all "matters" relevant to the determination. By s.18(2), certain provisions are made where the Board, the Tribunal or a court makes a decision remitting to the Commission "a matter" being the assessment of the rate of the pension, or the fixing of the date from which a decision is to operate.
28. The Court also decided (paragraphs 42 and 44) that “evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a “plain meaning”.”
29. For reasons which follow I am satisfied that the language of the Order made by the Magistrate was susceptible of more than one meaning and I propose to discuss the circumstances giving rise to the making of the Order.
30. The letter from AGS to the applicant’s solicitor on 19 January at 10.41 am enclosed the proposed Consent Orders “and statement to be attached to Consent Orders remitting this matter to the AAT for determination according to law”. By way of reply Mr De Marchi recorded “We refer to your proposal to have this matter remitted to the Tribunal. We do not have a difficulty with the matter being remitted to the Tribunal . . .” (the remainder of that letter dealt with negotiations as to costs). In an apparent reference to the attached statement, Mr De Marchi, by his facsimile letter at 5.25 pm on 19 January, suggested that the Tribunal, upon remission, should apply what he understood to be a concession to a Statement of Principle with respect to cirrhosis of the liver. The letter from AGS to Mr De Marchi at 5.58 pm on 19 January, alluded to a difference between the representatives of the parties concerning the basis for remission. However, Mr De Marchi was again asked to sign a draft Order of Consent which was in terms identical to the Draft Order forwarded in the initiating correspondence on 19 January. Additionally, the statement was again forwarded in terms identical to that which had been forwarded earlier that day. Mr De Marchi responded on 20 January by reciting the terms of the Consent for an Order of the Magistrate, which was in identical terms to that contained in the draft Consent Order forwarded by AGS at 5.58 pm on 19 January. His letter confirms that the Consent Order had been signed and was enclosed. That letter specifically refers to the letter from AGS of 5.58 pm, which records that upon the signing of the Consent Order “we will forward it along with the attached statement to the Federal Magistrates’ Court immediately”.
31. Upon receipt of the letter of 20 January and the Consent Order, signed by Mr De Marchi, Ms Stratos at AGS, forwarded a letter to the Registrar of the Federal Magistrates’ Court enclosing the Minutes of the proposed Consent Order and the statement. The Magistrate made an Order on the same day in terms identical to the draft Consent which had been prepared by AGS and forwarded to Mr De Marchi. The Order of the Magistrate does not make any reference to the statement nor does the Consent Order embody the five paragraphs, or any of the paragraphs that were within the statement.
32. It would have been preferable that the draft Consent Order specifically noted the statement as an annexure or contained the five paragraphs. If it had, perhaps this argument would not have occurred. However, I am satisfied that the letter of Mr De Marchi of 20 January 2005 is either expressly, or by obvious implication, an agreement that the Magistrate make an Order in the terms suggested by the draft forwarded to him, and the remittal be confined to the issues found within the statement. I base this finding on the correspondence between the representatives especially the letter of 20 January, which contains an acknowledgement of the letter sent by AGS on 19 January at 5.58 pm, which refers to the statement being forwarded to the Magistrate upon the Consent Orders being signed. The concluding paragraph of the letter of Mr De Marchi of 20 January refers to the settlement in the quantum of costs and requests that a cheque for same be forwarded within 14 days. The issues between the parties could not have resolved unless there was an adoption of the statement as the basis of remittal. That there was a request made for payment of costs points to the issues between the parties being resolved. That is to say, I am satisfied that Mr De Marchi understood that the issues between the parties had resolved concerning the appeal which was to be heard by the Magistrate, and that the Magistrate would make an Order in the terms agreed between the parties, upon the basis of the statement which was at all times attached to the draft Order forwarded to him. It was in those circumstances that Mr De Marchi requested that his costs be paid. In my view, this points to a belief then held by him, that the matter had resolved and the matter was to be remitted to this Tribunal upon the basis of the contents of the statement.
33. I am satisfied that the matter is to be remitted, confined in ambit to the issues found within the statement. It would have been preferable for the Magistrate to be more expansive in his Order for remittal. On the face of the document it is unclear as to what is being remitted in the absence of Reasons for a Decision. In the Federal Court decisions, where the word “matter” has been used instead of the word “case” when an appeal has been upheld and the matter remitted, the terms of the Reasons for Decision would usually indicate – by the findings made – the issues to be reheard or reargued upon remittal. In the present circumstance the Magistrate has decided by Consent Order that the appeal be allowed and the matter remitted to the Administrative Appeals Tribunal. I cannot find that the Magistrate would have made an Order which was so vague as to intent, without having reference to the statement which was on the file of the Magistrates’ Court at the time the Order was made. The letter from AGS to the Registrar on 20 January enclosed the signed Minutes of Proposed Consent Orders and the statement. In the letter it is referred to as a “statement of reasons”. Perhaps AGS intended that the Magistrate would embody the statement within the Order that was to be made. In any event the Magistrate must have had the signed Consent Order because Regulation 13.04 of the Federal Magistrate Court Rules 2001 prohibits the making of an Order without a Consent Order signed by each party. That Consent Order, signed by both parties, was attached to the letter of 20 January which referred to the statement of reasons and which had the statement attached to it. In order for the Magistrate to make the Orders as he “considers appropriate in the circumstances” (refer Reg 13.04 (3)) he must have been satisfied in the exercise of his discretion that it would be appropriate in the circumstances to make the Order by Consent, having regard to the agreement between the parties which was contained within the statement.
34. Paragraph 5 of the statement is a reference to the agreement between the parties that the AAT had made an error and the error was recited. That error, in my view, is the only matter which is capable of being remitted as agreed between the parties. In the circumstances I am satisfied that the ambit of the remittal to this Tribunal is confined to the statement and more specifically to the matters contained within paragraph number 5.
35. Directions will issue to both parties to lodge a Statement of Facts and Contentions and the outline of evidence of witnesses and upon compliance the matter, as remitted, will be listed for hearing.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDate of Hearing 27 July 2005
Date of Decision 27 September 2005
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Ms J McDonnell
Solicitor for the Respondent Australian Government Solicitor
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