Garton and Repatriation Commission (Veterans' entitlements) - [2022] AATA 647

Garton and Repatriation Commission (Veterans' entitlements) [2022] AATA 647 (18 January 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL ) No: 2016/6356
VETERANS' APPEALS DIVISION )
Re: Peter Garton
Applicant
And: Repatriation Commission
Respondent

DIRECTION
TRIBUNAL:               Senior Member Linda Kirk
Date:   18 January 2022
Place:   Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.The words ‘The reviewable decision dated 17 October 2016 is affirmed’ in the terms of the decision be replaced with the words ‘The application for reinstatement dated 20 October 2020 is dismissed’;
2.The date ’21 October 2016’ at paragraph 5 be replaced with the date ’17 October 2016’;
3.The date ’14 April 2021’ at paragraph 8 be replaced with the date ’12 April 2018’; and
4.The date ’12 April 2021’ at paragraph 34 be replaced with the date ’12 April 2018’.

………………[sgd]……………..
Senior Member Linda Kirk
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/6356
Re:Peter Garton
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:14 January 2022
Place:Canberra

The reviewable decision dated 17 October 2016 is affirmed under section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
...................[sgd].....................................................
Senior Member Linda Kirk
Catchwords
VETERAN’S AFFAIRS – calculation of service pension- functus officio- reinstatement of review application
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 42C
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11
Veterans’ Entitlements Act 1986 (Cth) ss 5C, 7A, 52Y, 85(4B)
Cases
Bogaards v McMahon (1988) 80 ALR 342.
Commonwealth of Australia v Snell [2019] FCAFC 57
Garton and Repatriation Commission [2021] AATA 1666
Goodricke and Comcare (Compensation) [2017] AATA 1249
Johnson v Veterans’ Review Board (2005) 41 AAR 120; [2005] FCA 1136
Kuchlmayr and Australian Capital Territory (Compensation) [2020] AATA 5072
Matusko and Australian Postal Corporation (1995) 21 AAR 9
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 67 ALD 615; [2002] HCA 11
Plumb v Comcare (1992) 39 FCR 236
Re Michael and Secretary, Department of Employment, Science and Training
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; 48 AAR 385; 104 ALD 595
Wiegand and Comcare [2014] AATA 413; 141 ALD 219
REASONS FOR DECISION
Senior Member Linda Kirk
14 January 2022
BACKGROUND

On 20 December 2012, a delegate of the Repatriation Commission (‘the Respondent’), determined that Peter Garton (‘the Applicant’) was a veteran as defined in section 5C of the Veterans’ Entitlements Act 1986 (Cth) (‘VEA’) and that he had rendered qualifying service as defined in section 7A of the VEA.
On 16 December 2015, the Applicant was issued with a Gold Card with effect from 25 May 2013 having met the requirements under section 85(4B) of the VEA.
On 3 February 2016 the Applicant and his wife were issued with service pension claim forms. On 17 August 2016 they lodged completed and signed service pension claim forms with the…

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: [2022] AATA 647
Decision Date: 18 January 2022

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning the applicant's request to reinstate a review application. The applicant sought to have a previous decision of the Tribunal reconsidered, arguing that an issue regarding an "unrealisable asset" remained unresolved. The Repatriation Commission was the respondent.

The primary legal issue before the Tribunal was whether it possessed the power to reinstate a previously determined review application, or if its jurisdiction was exhausted upon making the initial decision. This involved considering the principle of *functus officio*, which dictates that a decision-maker, having exercised their power, is functus officio and cannot re-exercise that power unless specifically authorised by statute.

The Tribunal reasoned that, in accordance with established authorities such as *Snell* and *Kuchlmayr*, a tribunal's power to review a decision is generally exercised only once. Once a review is conducted and a decision is made, the Tribunal is functus officio and its decision is final, subject only to limited exceptions such as obvious textual errors or remittal by a superior court. The Tribunal found that the applicant's case did not fall within any of these exceptions, and that the previous decision, which reflected an agreement between the parties, was not affected by jurisdictional error. Therefore, the Tribunal concluded it had no capacity to revisit or reinstate the application.

Consequently, the Tribunal dismissed the applicant's application, finding that its power to review the decision was exhausted and that the previous decision could not be re-opened or reinstated.

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

Full text does not contain this section.

Decision

Reasons for decision

On the basis of the evidence before it and the relevant authorities, the Tribunal finds that once exercised, the Tribunal’s power to review a decision is exhausted and it is functus officio. The Tribunal is satisfied that the Section 42C decision is not affected by jurisdictional error and accordingly it is a decision to which the functus officio rule applies. Accordingly, the Section 42C decision that reflected the terms of the Agreement between the parties, and which determined the Application for Review, cannot be re-opened or reinstated. This is not a case in which there has been a new determination by the Respondent, giving rise to another entitlement to merits review: Plumb v Comcare.[20] Nor is the Tribunal considering an application for review of a reviewable decision which is an apparent attempt to relitigate the same issues that were determined in an earlier Tribunal decision: Matusko and Australian Postal Corporation.[21] The Tribunal notes that the issue which the Applicant claims was ‘unresolved’ by the Section 42C decision, is that concerning the ‘unrealisable asset’. As he stated in his email to the Respondent dated 12 April 2021, he believes that under the hardship provisions they are entitled to have the superfund property disregarded as an unrealisable asset under VEA s 52Y. However, the Applicant had not then, nor has he since, made an application under this provision. Even if the Tribunal had determined that the Application for Review should be ‘reinstated’, the issue which the Applicant seeks to have resolved would not have been before the Tribunal for its consideration. The Tribunal’s conclusion that it is functus officio with respect to the Application for Review is respectfully the same as that reached by Senior Member Illingworth in Garton and Repatriation Commission.[22][20] (1992) 39 FCR 236 at 240.[21] (1995) 21 AAR 9 the Tribunal recognised that it should not generally allow re-litigation of issues already decided, but that this could occur if there is reason to do so, including where justice to the parties requires a departure from the general rule at [19].[22] [2021] AATA 1666.DECISION The application is dismissed.I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk………[sgd] ………………………………………AssociateDated 14 January 2022 Date of hearing: 14 October 2021 Applicant: Appeared by Microsoft Teams Solicitor for the Respondent: Mr Ben Dube, Sparke Helmore

Ratio Decidendi

Legal Principle Established

The cases referred to by the Applicant such as Snell, Wiegand, and Goodricke are not authority upon which the Tribunal can rely to grant the applicant’s request for reinstatement: Goodricke.[11][11] at [105].CONSIDERATION AND REASONS In Snell, the Full Court of the Federal Court explained that unless there is a statutory ability to re-exercise a power to determine a matter, a decision made in an exercise of power is final and conclusive and the repository of the power is functus officio:[12]In the ordinary course, absent some conferred statutory ability to re-exercise a power to determine a matter, once a power is exercised to determine the rights of a subject, the exercise is final and conclusive: Re 56 Denton Road, Twickenham [1953] Ch 51; Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, 289. Importantly, in respect of the power so exercised, the donee of the power is functus officio: Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [52].[12] at [71]. The Tribunal has recognised that its duty is to review the particular decision, and once this duty has been performed it is functus officio and its decision must be treated as final. In Re Rana and Military Rehabilitation and Compensation Commission, Deputy President Forgie stated:The duty that is imposed upon the Tribunal must be to review the particular decision of which review is sought and in relation to which the Tribunal is given jurisdiction. Once it has done so in accordance with its statutory authority and power, it seems to me that the Tribunal has done all that it can lawfully do. It is functus officio.[13][13] [2008] AATA 558; 48 AAR 385; 104 ALD 595 [99]. Reconsideration of such a decision is limited to an appeal for error of law. In Re Michael and Secretary, Department of Employment, Science and Training,[14] President Downes J said:… [I]t will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.[14] (2006) 90 ALD 457; [2006] AATA 227 at [17]. These principles were recently summarised by Deputy President Humphries in Kuchlmayr.[15] He stated:The power granted under a statute to undertake a review of a particular decision can, as a general rule, be exercised only once. It is the power to review a specific reviewable decision; once it has reviewed that decision and decided to affirm it, overturn it or remit it for fresh assessment to the decision-maker, its statutory power to review is exhausted. At that point it is functus officio [Latin: having performed his office], meaning that it no longer has any power to change or reconsider the decision it has made. That principle is the same whether the decision is one made on the merits after a full hearing or one produced as a result of the agreement of the parties (Novosel v Comcare [2017] FCA 722 at [103]). …There are confined exceptions to this rule. The Tribunal on occasions has set aside consent decisions where it has become apparent that a party had withdrawn their legal representative’s instructions prior to the Tribunal considering terms of agreement under s 42C. This is on the basis that the precondition – agreement between the parties – for the power to make a consent decision was absent, notwithstanding the appearance that it was present. Another exception is found in s 43AA: if a decision contains an obvious error in the text of the decision or in a written statement of reasons, the error may be corrected. Such errors are typically typographical, and must be obvious and uncontroversial. A third exception is where a decision is appealed to the Federal Court and the court determines that the Tribunal has not exercised its statutory power according to law, and the decision is remitted to the Tribunal to be made again.But in the absence of an exception such as these, there is no capacity for the Tribunal to revisit, at the request of a party or at its own behest, a decision already made. Quite apart from the lack of a statutory basis for doing so, this approach would contribute to uncertainty and undermine the principle that parties can expect finality from a decision of the Tribunal. The Moving Finger writes; and, having writ, Moves on, as Omar Khayyám pithily put it.[16][15] [2020] AATA 5072.[16] At [13]-[15].