Elridge and Repatriation Commission - [2000] AATA 266

DECISION AND REASONS FOR DECISION [2000] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/503 &

VETERANS'     APPEALS     DIVISION     )          V1999/1316
           Re      ALAN ELDRIDGE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Date6 April 2000
PlaceMelbourne

Decision The Tribunal decides as follows: (a) That in respect of application V1999/503 the Tribunal does not have jurisdiction to review the decision of the Veterans' Review Board No. V97/1861 dated 13 October 1998, affirming the decision of the respondent made on 21 August 1997, that post traumatic stress disorder is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986. (b) That accordingly in respect of application V1999/1316 the application for an extension of time in which to lodge an application for review of the decision of the Veterans' Review Board No. V97/1861 dated 13 October 1998 is refused.

(Sgd.) B.G. GIBBS
Senior Member
CATCHWORDS
VETERANS' APPEALS – jurisdiction – whether applications to Tribunal were in respect of Veterans' Review Board decision dated 13 October 1998 or decision dated 10 March 1999
Words and Phrases
Veterans' Entitlements Act 1986, s. 175
Administrative Appeals Tribunal Act 1975, s. 29

REASONS FOR DECISION

6 April 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

This matter is presently before the Tribunal for determination of a preliminary issue concerning jurisdiction.
On 20 January 1997 Mr Alan Eldridge, the applicant in these proceedings, made a claim for the conditions of chronic solar skin damage to neck and back, peptic ulcer disease, gastro-oesophageal reflux disease, bilateral sensorineural hearing loss, post traumatic stress disorder ("PTSD"), hypertension, breathing problems and tinnitus.
On 21 August 1997 the claims for PTDS, hypertension, breathing problems and tinnitus were refused. The other claimed conditions were accepted with effect from 20 October 1996. Pension was assessed at 40 per cent of the General Rate with effect from 20 October 1996.
On 8 September 1997 Mr Eldridge applied to the Veterans' Review Board ("VRB") for review of the decision in respect of PTSD, hypertension, breathing problems, tinnitus and assessment of rate of pension.
On 13 October 1998 the VRB affirmed the decision in respect of PTSD. The VRB further consented to the withdrawal of Mr Eldridge's claim insofar as it related to hypertension and adjourned the hearing of the claim for breathing problems. The VRB assessed pension at 50 per cent of the General Rate with effect from 20 October 1996.
A copy of the decision of the VRB was sent to Mr Eldridge under cover of a letter dated 20 November 1998 from Ms Julia Stringer, a VRB Review Officer. Enclosed with that letter was a copy of the formal decision of the VRB and its reasons for the decision. In her letter the Review Officer stated that should Mr Eldridge not be satisfied with some aspect of the VRB's decisions in respect of PTSD and pension assessment, then he had a right to apply to this Tribunal for review of the VRB decision.
On 10 March 1999 the VRB resumed the hearing relating to breathing problems. The VRB amended the diagnosis of breathing problems to ischaemic heart disease and decided that the disease was war-caused with effect from 20 October 1996. Pension was assessed at 50 per cent of the General Rate with effect from 20 October 1996 and at 70 per cent with effect from 13 July 1998.
On 7 May 1999 Mr Eldridge applied to this Tribunal for review of the VRB decision dated 10 March 1999. The application was signed by Mr Eldridge's solicitor on his behalf. The reasons for the application were stated as follows:
"The Veterans' Review Board erred in fact and in law, by setting aside the decision in relation to assessment and substituted this decision so that pension be assessed at only fifty per cent of the General Rate from 20.10.1996 and at only seventy per cent of the General Rate from 13.07.1998."
On 5 August 1999 the solicitor acting for Mr Eldridge lodged an "Amended Application for Review of Decision" with this Tribunal, the reasons for the amended application being stated as follows:
"The Veterans' Review Board erred in fact and in law in setting aside the decision in relation to assessment and substituted this decision so that pension be assessed at only 50% of the General Rate from 20/10/96 and at only 70% of the General Rate from 13/7/98, AND IN NOT DEALING WITH THE ENTITLEMENT OF POST TRAUMATIC STRESS DISORDER."
On 18 August 1999 the respondent wrote to Mr De Marchi, the solicitor acting for Mr Eldridge, informing him that because the claim for PTSD had been dealt with by the earlier decision of the VRB dated 13 October 1998, the claim in respect of that disability was therefore not before this Tribunal. The respondent enclosed copies of the VRB Review Officer's letter dated 20 November 1998; the VRB decision of 13 October 1998 and a copy of a letter dated 20 November 1998 from Ms D.A. Fitzgerald (Senior Member, VRB) to the Secretary, Department of Veterans' Affairs.
On 22 November 1999 Mr Eldridge applied to this Tribunal for review of the VRB decision dated 10 March 1999. The reasons for the application were stated as follows:
"Further to the decision made on 10 March 1999, the Veterans' Review Board erred in fact and in law in not dealing with the entitlement of Post Traumatic Stress Disorder."
Also on 22 November 1999 Mr Eldridge applied to this Tribunal for an extension of time in which to lodge an application for review of the decision of the VRB made on 10 March 1999. The reasons for making the application were stated as follows:
"The Veterans' Review Board failed to address the entitlement issue of Post Traumatic Stress Disorder, and it was therefore omitted from the Applicant's initial Application for Review."
On 1 December 1999 the respondent informed this Tribunal that it could not consent to an extension of time.
The respondent's contentions in this matter are set out in a submission dated 25 January 2000, as follows:
"12.     The respondent submits that the Tribunal has no jurisdiction to review the entitlement issue of post traumatic stress disorder.
13.      The Tribunal has jurisdiction to review all entitlement and assessment issues which were reviewed by the Veterans' Review Board.
14.      In addition, where an issue was properly brought before the Board, but the Board failed to deal with it, the Tribunal would have jurisdiction to review the issue.
15.      In the present case the applicant seeks review of the Board's alleged failure on 10 March 1999 to deal with post traumatic stress disorder. It is submitted that there had been no failure to deal with post traumatic stress disorder as it had already been dealt with by the Board on 13 October 1998. The Board had no jurisdiction to review post traumatic stress disorder on 10 March 1999. After the decision of 13 October 1998 it was functus officio.
16.      It is submitted that, as the Board had no jurisdiction to review post traumatic stress disorder on 10 March 1999, the Tribunal likewise has no jurisdiction.
17.      The respondent submits that the applicant has made no application to review the Veterans' Review Board decision of 13 October 1998. In referring to the "failure" of the Board to deal with post traumatic stress disorder, the applicant seeks to raise a Stafford jurisdictional issue in relation to the Board's decision of 10 March 1999. It is not to the point to contend that applications for review were within time to review a particular decision, if an application has never been made to review that decision."
Mr Eldridge was examined and gave oral evidence in respect of this matter.
It was Mr Eldridge's evidence that he received the letter from Ms Stringer dated 20 November 1998, together with the two enclosures to which reference has already been made.
Mr Eldridge stated that he discussed the content of Ms Stringer's letter with Mr E. Richards. It is understood that Mr Richards is an advocate employed by the RSL and that he appeared for Mr Eldridge before the VRB on 13 October 1998. As a result of the discussion it was Mr Eldridge's understanding that the decision of the VRB dated 13 October 1998 would be appealed by Mr Richards on his behalf. It is noted that Mr Richards also represented Mr Eldridge at the VRB hearing conducted on 10 March 1999. Although not of particular relevance to the issue of jurisdiction, it is nevertheless convenient to note that, whereas the VRB decision dated 10 March 1999 records that Mr Eldridge's wife appeared with him at the hearing by the VRB, it was Mr Eldridge's evidence that this was not so.
Mr Eldridge confirmed in evidence that he duly received a copy of the VRB decision made on 10 March 1999 and that he did so under cover of a letter (from a VRB Review Officer) dated 9 April 1999.
Mr Eldridge confirmed that following the VRB decision dated 10 March 1999, he requested Mr De Marchi to lodge an application for review with this Tribunal. As earlier indicated, an application was made on 7 May 1999.
Mr Eldridge stated that it was his belief that although he did not himself see the application, nevertheless it was his understanding that the VRB decision in respect of PTSD was to be part of the review. He further confirmed that on 2 August 1999 he received a letter from Mr De Marchi, advising him that an amended application for review had been lodged on his behalf. He said it was his understanding that this action meant the claim for PTSD would be reviewed by this Tribunal.
It was submitted by Mr De Marchi that on 27 July 1999 a Preliminary Conference ("PC") was conducted in respect of his application for review and that during the PC the respondent was informed that appointments had been made for Mr Eldridge to be seen by Dr Stone (an Occupational Physician), and Dr Syme (a Psychiatrist). It was after this PC that the amended application for review to include PTSD was lodged, a copy of which was forwarded to the respondent under cover of a letter dated 2 August 1999. On 20 August 1999 Mr De Marchi lodged a Statement of Issues with this Tribunal. That statement lists, as an issue, the question of whether Mr Eldridge is entitled to have PTSD and Tinnitus accepted as war-caused.
A second PC was conducted on 16 November 1999. While an amended application for review had been lodged, to include the claim for PTSD, the respondent apparently informed Mr De Marchi that because the VRB in its decision of 13 October 1998 had determined the claim in respect of PTSD, it was therefore necessary for Mr Eldridge, should he wish to have PTSD accepted as war-caused, to lodge a fresh claim. Mr De Marchi asserted, however, that at the second PC the Tribunal Conference Registrar conducting the PC stated that Mr Eldridge needed to lodge another Form 1 (Application for review) and another Form 2 (Application for Extension of Time) in respect of PTSD. Mr De Marchi took action accordingly, with both forms being lodged with the Tribunal under cover of a letter received on 27 November 1999.
Mr Eldridge was examined by a Consultant Forensic Psychologist, Dr Watson-Munro, on 27 October 1999, in lieu of an examination by Dr Syme. The doctor's report, which he prepared on the same date, was later lodged with this Tribunal by Mr De Marchi on 23 November 1999, with a copy being sent to the respondent.
A further PC was held on 14 December 1999. An examination of the reports compiled by the parties in respect of the PC reveals that the possible need for a jurisdiction hearing in respect of PTSD was discussed during the PC, with the respondent taking the view that a review of the decision in respect of Mr Eldridge's claim for PTSD had already been conducted by the VRB on 13 October 1998.
It was the respondent's submission that the starting point for applications for review by this Tribunal is section 29 of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), which requires that applications be in writing; that they may be made in accordance with the prescribed form and that, except in respect of applications made under the Australian Security Intelligence Organisation Act 1979, they must contain a statement of reasons for the application.
In its decision dated 13 October 1998 the VRB provided two reference numbers. The first number is V97/1861, which is a reference to entitlement. The second number is V97/1862, which is a reference to assessment. These two numbers were used by the VRB, for the same purposes, in its decision dated 10 March 1999.
As noted earlier, there is no reference to PTSD in the decision of the VRB dated 10 March 1999. As the respondent correctly observed, the Form 1 lodged on behalf of Mr Eldridge on 7 May 1999 refers to the VRB decision dated 10 March 1999.
As to the amended Form 1 which as stated earlier was lodged on 5 August 1999, it is noted that, like the Form 1 lodged on 7 May 1999, the form refers to the VRB decision dated 10 March 1999, with the VRB decision reference being recorded on the form as V1997/1862.
It was the respondent's submission that the words "and in not dealing with the entitlement of Post Traumatic Stress Disorder" included in the reasons for the amended application for review lodged on 5 August 1999 (see paragraph 9 above), are important in that the reference to the VRB not dealing with PTSD must be a reference to the VRB decision dated 10 March 1999. This is so because the VRB dealt with the claim for PTSD on 13 October 1998.
As I have stated at paragraph 11 above, on 22 November 1999, Mr Eldridge applied for review of the VRB decision dated 10 March 1999. As with the earlier applications for review, the application form recorded the relevant VRB reference as V97/1862.
In its final submission the respondent stated as follows:
"In the respondent's submission, these documents clearly seek to review 10 March '99 decision and one could not construe them, in accordance with section 29 of the Administrative Appeals Tribunal Act, as documents which purport to seek review of the earlier VRB decision of 13 October 1998. As I said earlier on, throughout the proceeding there has been this ongoing debate about the jurisdictional question – through PCs – and the applicant's PC reports do reflect the debate about the jurisdictional question. Also the respondent, on 18 August '99, sent a copy of the Veterans' Review Board decision of 13 October 1998 to the Tribunal and to the applicant.
So, the material was put before the applicant to consider the decision of 13 October 1998, but on those three occasions when review was sought, it was sought only in respect of the decision of 10 March '99. In our submission, it can be construed in no other way than applications for review of the second VRB decision."
Mr De Marchi submitted as follows:

That at all times Mr Eldridge intended to apply for review of the VRB decision in respect of his PTSD;
That, like other veterans, he relied upon other people not to make the "errors of judgments and mistakes that have clearly been made in this particular application"'
That the legislative intent of the Veterans' Entitlements Act 1986 ("the Act") is that the respondent in circumstances such as these should not "take a strict technical point";
That from the material before it the respondent must have been aware that Mr Eldridge was seeking to have the VRB decision in respect of his PTSD reviewed;
That there was an unwarranted delay in the respondent making available a copy of the VRB decision dated 13 October 1998. A copy of that decision was not included in the documents made available by the respondent pursuant to section 37 of the Act. It was Mr De Marchi's contention that a copy should have been made available immediately after the "statement of issues" had been filed;
That by virtue of section 119 of the Act this Tribunal is required to "act according to the substantial justice and substantial merits of this case, without regard to legal form and technicalities";
That this Tribunal is not bound by the strict rules of evidence.

Having considered the material and events relevant to this matter I find that each of the three documents to which reference has been made in paragraphs 27, 28, 29 and 30 above, can not be treated as documents seeking review of the VRB decision made on 13 October 1998, but rather they are documents which seek review of the decision made on 10 March 1999.
It is appropriate to record that the position in which Mr Eldridge finds himself appears not to be so much one of his own making, but rather that, according to his evidence, he relied upon others to take the action necessary to ensure that the VRB decision dated 13 October 1998 was appealed.
While it is agreed that a beneficial approach should be taken in respect of the Act, the issues involved in this matter are not seen as minor "technical points". Nor does the evidence suggest that there was an unwarranted delay in the respondent making available a copy of the VRB decision dated 13 October 1998.
In the circumstances the Tribunal is not able to determine an application for an extension of time in respect of the VRB decision dated 13 October 1998.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  2/3/2000
Date of Decision  6/4/2000
Counsel for the Applicant        Mr D. De Marchi
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr K. Rudge
Solicitor for the Respondent    Department of Veterans' Affairs