Garton and Repatriation Commission (Veterans' entitlements)
[2022] AATA 647
•18 January 2022
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, 42CAdministrative 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 595Wiegand 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 Department of Veterans’ Affairs (‘the Department’).
In a decision dated 28 September 2016, the Respondent determined that the Applicant and his wife be granted less than maximum rate service pension (‘SP’) at the partnered rate with effect from 17 August 2016. The asset value of Abilita Services Pty Ltd, the private company of the Applicant, was recorded as $343.66 and the assessable income was $1,558.14 per fortnight based on the financial statements provided for the financial year ended 30 June 2016.
On 21 October 2016 the Applicant requested a review of the Respondent’s decision.
In a Reviewable Decision dated 4 November 2016, the Respondent affirmed its original decision dated 28 September 2016
Application for Review
On 21 November 2016 the Applicant lodged an application for review of the Reviewable Decision with the Tribunal (‘Application for Review’).
In an email to the Respondent dated 12 April 2021 concerning discussions in relation to settlement of the proceedings, the Applicant wrote:
Under the hardship provisions, we believe we would be entitled to apply to have our superfund property disregarded as an unrealisable asset under VEA s 52Y. It has been on the market since August 2016 and has still not sold and could not be used as collateral for a loan as it was in the Superfund. We would then have been entitled to a full pension and therefore not needed the Pension Loan Scheme.
Under the Pension Loan Scheme we have incurred a debt of $23,407.12 including top-up payments and interest. In addition we have incurred the cost of having a statutory charge registered on our property and there will be a cost associated with having that statutory charge removed.
We would therefore expect the Respondent to agree to cancel the $23,407.12 debt in the Pension Loan in the name of [the Applicant] and pay the Australian Government Solicitor’s cost for registering and withdrawing the statutory charge.
In an email of the same date in response to the Applicant, the Respondent’s solicitor wrote:
Regarding the Pension Loan Scheme, that is not an issue which the Tribunal would have any power to make a decision over if the matter had proceeded to hearing, but given as you note the circumstances which led to you accessing that scheme are because of the decision before the Tribunal we appreciate that the issues are related from a practical perspective. We will seek some instructions as to how the Dept would propose to address those issues.
On 30 April 2018, the matter was finalised by an agreement reached between the parties (‘the Agreement’) which was the subject of a written application pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), signed by the parties, advising that an agreement had been reached, the terms of the Agreement and inviting the Tribunal to make an order in those terms. On 3 May 2018, Deputy President Bean made a decision in accordance with the Agreement contained within the section 42C application and consent orders (‘Section 42C decision’).
Following the Tribunal’s decision, the Applicant’s SP entitlement was recalculated pursuant to the relevant provisions of the VEA:
(a)the Applicant’s SP commenced from 11 April 2016;
(b)the Applicant’s SP was calculated on the basis of the assets test;
(c)arrears of SP were calculated; and
(d)the Applicant chose not to close the Pension Loan Scheme (‘PLS’) and have the caveat discharged.
Request for waiver of PLS loan debt
In a decision dated 20 October 2020 a delegate of the Respondent denied the Applicant’s request for waiver of the PLS loan debt pursuant to the VEA as his circumstances did not meet the criteria under ‘extreme or unusual circumstances’, or any other criteria, which would make it unreasonable for the Respondent to recover the debt. The Applicant was advised of his review rights under the Administrative Decisions (Judicial Review) Act 1977 Cth) (‘ADJR Act’) and that pursuant to section 11 of the ADJR Act such application for review must be made within 28 days from the day of that decision.
On 20 October 2020 the Applicant lodged with the Tribunal an application for review of the Respondent’s decision. In the application, the Applicant contended that the Respondent failed to correctly apply the provisions of the VEA in relation to an application to cancel the PLS loan debt.
By letter dated 22 October 2020, the Tribunal wrote to the Applicant and advised that the VEA did not provide for a review to the Tribunal in respect of the decision.
In a decision dated 19 May 2021, the Tribunal determined that it has no jurisdiction with respect to the PLS debt: Garton and Repatriation Commission.[1] The Tribunal noted that the Application for Review was finalised by an agreement reached between the parties which was incorporated in the Section 42C decision. Senior Member Illingworth stated:
[The Section 42C decision] brought to an end that application and the jurisdiction of the Tribunal. That application, on its face, cannot be reopened. The Respondent correctly submits that the Tribunal is, at the moment, functus officio in respect of that matter and it cannot be reopened as an avenue to which the Applicant can seek review of the decision made pursuant to section 206 of the VEA.[2]
[1] [2021] AATA 1666.
[2] At [9].
The Tribunal concluded that the Respondent’s decision dated 20 October 2020 was not a reviewable decision, and dismissed the application for review pursuant to section 42A(4) of the AAT Act.
APPLICATION FOR ‘REINSTATEMENT’
On 31 May 2021, the Applicant sought ‘reinstatement’ of the Application for Review to allow him to make further submissions on the calculation of his SP so it can be correctly determined, and so any consequences of an incorrect calculation can be remedied.
The review application was heard at an interlocutory hearing of the Tribunal on 14 October 2021. The parties appeared by video-conference and the Applicant was self-represented.
Applicant’s submissions
The Applicant filed written submissions on 30 June 2021 and 11 October 2021 and provided further oral submissions at the interlocutory hearing.
In his written submissions dated 30 June 2021 and 11 October 2021, the Applicant claimed that the Application for Review involved three issues (i) add-back of superfund expenses; (ii) date of commencement of pension; and (iii) failure to consider whether superfund was an unrealisable asset. Issues (i) and (ii) were the subject of the Agreement and the Section 42C decision. The Applicant seeks to have issue (iii) considered by the Tribunal. The Applicant claims that he had a reasonable expectation that the matter of the possible application of the ‘unrealisable asset’ in calculation of their SP would be considered at a later date. He emailed the Respondent on 12 April 2018 after items (i) and (ii) were conceded, but before the Agreement was signed, and sought its assurances in that regard.
The Applicant claims that the Tribunal has the jurisdiction to reconsider the terms of the Agreement. There are circumstances where the Tribunal may reinstate its jurisdiction and, in the interests of justice, it is bound to exercise that jurisdiction: Kuchlmayr and Australian Capital Territory (Compensation)[3] (‘Kuchlmayr’). The requirements of fairness may establish a case for reopening matters already determined by the Tribunal: Goodricke and Comcare (Compensation)[4] (‘Goodricke’). A reasonably persuasive case is before the Tribunal to ground the exercise of the undoubted discretion: Wiegand and Comcare[5] (‘Wiegand’).
[3] [2020] AATA 5072 [14].
[4] [2017] AATA 1249 at [105]-[108]. at para 88 and 89; Applicant’s submissions [4] - [5].
[5] [2014] AATA 413; 141 ALD 219 at [47].
In Commonwealth of Australia v Snell,[6] (‘Snell’) the Full Court of the Federal Court made it very clear that the Tribunal is not a court and therefore is not bound by the same doctrines which apply to courts, such as estoppel, when the Tribunal is asked to reconsider a previous decision of its own in relation to the same parties and on the same facts.[7] The same can be said about any supposed rule or principle that the Tribunal is functus officio. Clearly, if the Tribunal is not bound by the doctrine of issue estoppel and can review its own earlier decisions between the same parties, it is not functus officio either.[8]
[6] [2019] FCAFC 57 at [4], [51].
[7] Applicant’s submissions [7] - [8].
[8] Applicant’s submissions [9].
Respondent’s submissions
In his written submissions dated 30 June 2021 and 11 October 2021 the Applicant identified the ‘unresolved’ issue as the unrealisable asset. The Applicant has not made an application under the relevant hardship rules under s 52Y VEA to give rise to consideration of that issue. In any event, it was not an issue within the Tribunal’s jurisdiction in the Application for Review which he seeks to have reinstated. Accordingly, for the purpose of the reinstatement application it is not an ‘unresolved’ issue warranting reinstatement.
Regarding the Application for Review, an Agreement was reached as to the terms of a decision of the Tribunal, and the Tribunal made the Section 42C decision on 3 May 2018 in accordance with those terms. The Tribunal is therefore functus officio with respect to the Section 42C decision and lacks the jurisdiction to review the decision.
The power granted under an Act 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 meaning that it no longer has any power to change or reconsider the decision it has made: Kuchlmayr[9] and Goodricke.[10]
[9] [2020] AATA 5072 at [13].
[10] [2017] AATA 1249 at [105]-[108].
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].
In his earlier decision in Goodricke and Comcare (Compensation), Deputy President Humphries referred to the following passage in the judgment of Pincus J in Bogaards v McMahon in which his Honour emphasised that the principles of functus officio apply equally to consent decisions of the Tribunal under section 42C of the Act:[17]
It would seem easy enough to conclude that, to the extent that the tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member. The same result must follow where the tribunal’s decision is made by consent; at least as a general rule, a consent order can support a plea of res judicata. (citations omitted)
[17] (1988) 80 ALR 342, at 350.
The Federal Court has stated that if the Tribunal has dealt with all the issues involved in the case and has not made a jurisdictional error, the functus officio rule applies and it is not at liberty to review its earlier decision: Johnson v Veterans’ Review Board.[18] As the High Court recognised in Minister for Immigration and Multicultural Affairs v Bhardwaj,[19] a decision involving a jurisdictional error is properly to be regarded as no decision at all. Where a decision is affected by jurisdictional error the Tribunal is not functus officio as the duty to make the decision remains unperformed and the Tribunal can act to remedy this deficiency.
[18] (2005) 41 AAR 120; [2005] FCA 1136.
[19] (2002) 209 CLR 597; 67 ALD 615; [2002] HCA 11.
The Tribunal is satisfied on the basis of the evidence before it that neither party had withdrawn their legal representative’s instructions prior to the Tribunal considering the terms of agreement under s 42C, nor does the Section 42C decision contain an obvious error in the text of the decision. Accordingly, neither of these ‘confined exceptions’ to the functus officio rule identified by DP Humphries in Kuchlmayr are applicable in this matter.
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] ………………………………………
Associate
Dated 14 January 2022
Date of hearing: 14 October 2021
Applicant: Appeared by Microsoft Teams
Solicitor for the Respondent: Mr Ben Dube, Sparke Helmore
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