Graham and Repatriation Commission - [2002] AATA 725

DECISION AND REASONS FOR DECISION [2002] AATA 725

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A 2002/271

VETERANS APPEALS DIVISION        )
           Re      COLIN GRAHAM
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell

Date23 August 2002
PlaceCanberra

Decision      The time for lodgement of an application for review of the reviewable decision dated 7 December 2001 is extended to 11 July 2002.
  ..............................................
  N Bell
  Member
CATCHWORDS
VETERANS' AFFAIRS – Extension of Time – whether qualifying service rendered –lack of accurate records - lack of understanding of process– no prejudice if extension granted – no presumptive right of discretion to extend time
Veterans' Entitlements Act 1986 – ss 7A(1)(a)(ii); 172; 176(4) (a), (b); 177(2)
Administrative Appeals Tribunal Act 1975 – ss 29(2), (7)
Re Roberts v Repatriation Commission 27 ALD 408
Brisbane South Regional Health Authority v Taylor (1996) 130 ALD 1
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

REASONS FOR DECISION

MS N BELL

This is an application by Mr Colin Graham ("the Applicant") for an extension of time to make an application for review by this Tribunal of a reviewable decision made by the Repatriation Commission ("the Respondent") on 7 December 2001 to refuse the Applicant's claim for a Gold Card on the ground that he did not render qualifying service in accordance with section 7A (1) (a) (ii) of the Veterans' Entitlements Act 1986 ("the VE Act"). The Tribunal heard oral evidence from the Applicant, who appeared without legal or other representation, and from his wife, Mrs E Graham, and had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The Respondent was represented by Mr Modder.
There is no dispute that the Respondent served a notice on the Applicant, of the decision and advice regarding the Applicant's appeal rights and time for appeal, by letter dated 10 December 2001 (document T3). There is also no dispute that the Applicant lodged an application for review to the Tribunal on 5 July 2002 (document T1).
The combined effect of section 176(4)(a) of the VE Act and section 29(2) of the AAT Act 1975 is that the Applicant had a period of 3 months after the decision was furnished to him to lodge his application for review. Section 29 (7) of the AAT Act confers on the Tribunal a discretion to extend the time for the making of an application to the Tribunal for review of a decision. However, section 176(4)(b) of the VE Act limits any extension of time granted to 12 months after the date on which the terms of the decision were furnished to the Applicant.
The issue at the heart of the reviewable decision, and the application sought to be made by the Applicant, is whether the Applicant rendered qualifying service as defined in section 7A of the VE Act, that is, whether he left Australia during World War II or whether he incurred danger from hostile forces of the enemy during his service. The issue to be determined by the Tribunal at present is whether the time for lodging an application to the Tribunal should be extended pursuant to section 29 of the AAT Act.
Applicant's evidence
The Applicant, who is 86 years old, told the Tribunal that he sent a letter, in his wife's hand, in February this year asking for "an extension of time" in order to get a Gold Card. He said he remembered receiving the letter from the Respondent at T3 and said that, given the intervention of Christmas and his holiday in January, it was not until February that he managed to write about the decision. When asked by the Tribunal who he wrote his letter to, he and his wife were unsure but said it was a letter and not the "Application for Review of Decision" form provided by this Tribunal to people who wish to lodge an application for review of a decision. The Applicant's wife said she thought she would have sent the letter to the Department of Veteran's Affairs. The Applicant could not recall having spoken by telephone to anyone at the Department of Veterans Affairs since receiving the decision in December 2001. The Applicant said he lodged his application for review with the Tribunal in July 2002 on the advice of his Local Member.
The Applicant said he is certain that he served out of Australia in either 1943 or 1944 on the hospital ship, Manunda, which did a trip to pick up wounded at Milne Bay, New Guinea, before being sent to Greenslopes Hospital in Brisbane. He said that while he was on the Manunda, it was alongside the Arunda when that ship was attacked by enemy fire. He said that when the Manunda was heading back to Australia, he became very seasick and had severe duodenal ulcers.
In cross examination, the Applicant disputed many entries in his Service and Casualty Form Records (B103), including the date of his enlistment which he said was 3 September 1939 and not 25 November 1940, that he had a fractured fibula and left ankle injury, that he had tonsillitis (given that his tonsils were removed when he was a child), that he reverted to corporal from sergeant, that he broke his arm or that he was discharged with a jarred arm. He did, however, confirm that some of the entries were correct, including that he had been evacuated to hospital with dyspepsia and was discharged as medically unfit after some time in hospital.
The Applicant said that there had been a Corporal Bob Grahame in his Unit with whom he had sometimes been confused and who had been prone to injury and mishap. He said that when he was transferred to the Manunda he was medically assessed but was not formally transferred from the Army to the Navy.
Respondent's evidence and submissions
The Respondent relied on the lack of records to show that the Applicant had been on board the Manunda at Milne Bay. Document T4 (the Applicant's B103) makes no mention of the Applicant having served at sea or of incurring danger from hostile forces of the enemy. Mr Modder did concede, however, that the Applicant's record does appear, in some respects, to refer to someone else.
Mr Modder advised the Tribunal that, as yet, no inquiries had been made of the Director, Australian War Memorial, who was recommended to the Department of Veterans' Affairs by the Australian Army Soldier Career Management Agency in document T4 as a possible source of further information. He was unable to advise the Tribunal whether the Department of Veterans' Affairs had undertaken a search for correspondence from the Applicant sent in February 2002.
Mr Modder referred the Tribunal to the decisions in Re Roberts v Repatriation Commission, 27 ALD 408, in support of his submission that veterans should not have unlimited time to pursue their claims for review and that the time limits set by the VE Act should be strictly complied with. He also referred the Tribunal to the decision in Brisbane South Regional Health Authority v Taylor (1996) 139 ALD 1 in which the High Court held that there is no presumptive right to exercise the discretion to extend time and that the party seeking the extension bears the onus of showing that the justice of the case requires the extension.
Mr Modder described the Applicant as having rested on his rights and having taken no action to make the Respondent aware that the decision would be contested. However, he told the Tribunal that no prejudice would accrue to the Respondent were the extension of time to be granted. He described the Applicant's case as weak on the basis of the records currently available but allowed that more information may be yielded by further research.
Consideration
I have had regard to the decision of the then President of the Tribunal in Re Roberts and Repatriation Commission (supra). In that case the issue for determination by the Tribunal was whether a pension should be paid to the applicant 3 months before the date on which the claim for pension was made. The applicant's application for review of the decision of the Veterans' Review Board had been received by the Tribunal more than 3 months after the date on which the Board's decision had been furnished to the applicant. This gave rise to issues concerning the operation of section 177(2) of the VE Act which provided that, if the application to the Tribunal was made between 3 and 12 months after notice of the decision was served on the applicant, then the earliest date from which the Tribunal can approve the payment of pension is not more than 6 months before the date on which the application was made to the Tribunal. The then President of the Tribunal said:
"(20) As noted above, s.29 of the Administrative Appeals Tribunal Act sets out the procedure for making of an application. The jurisdiction of the Tribunal to review a decision for which it has power to review thus only arises upon the making to it of an application for review. There is no doubt that in this case the tribunal has a valid application before it in relation to a decision which it has the power to review. As noted above, the provisions of the Veterans' Entitlement Act and the Administrative Appeals Tribunal Act are interrelated. The issue thus arises whether the procedure for the lodgement of applications as set out in those Acts must be complied with strictly or at all as a precursor to the tribunal making a decision as to the date of effect of pension."
The President said later in the decision:
"(26) In this case the time limit for lodging applications with the tribunal is 3 months. If an application is not lodged within that time certain consequences flow, but an applicant is not deprived of all rights. An extension of time may be granted up to 12 months. This is a case where substantial compliance is not possible. Either an application is lodged within the prescribed time limit or it is not."
In this matter section 172 of the VE Act is not the focus of the application sought to be made by the Applicant. The central issue in this application is that of qualification. I consider that the comments made by the President in Re Roberts (supra) to the effect that time limits in the VE Act should be strictly complied with refers to the main issue in that case, that is, the date from which payments should commence, rather than to the issue of whether the application should be entertained by the Tribunal at all. For these reasons, I consider that the decision in Re Roberts can be distinguished from the circumstances currently before the Tribunal.
The High Court in Brisbane South Regional Health Authority v Taylor (supra) held that there is no presumptive right to the exercise of the discretion to extend time and that it is the applicant for such an extension who bears the onus of showing that the justice of the case requires the extension. The Federal Court (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, in line with the High Court's decision, said:
"Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time."
His Honour also set out a number of other criteria to be considered when exercising the discretion to extend time to lodge. Similar principles were laid down by the Tribunal in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. In making my decision I have had regard to the principles set out in those decisions.
I note that the length of the delay in seeking review of the decision by this Tribunal is some four months, in the scheme of things a short time. I also note that the notice of the reviewable decision contained information about the Applicant's rights of appeal to this Tribunal and the time for exercising those rights. The Applicant's evidence was that he and his wife wrote a letter about the decision but they could not recall to whom the letter was written. Given the Applicant's evidence that he was prompted to make his July 2002 application to the Tribunal by his local member, it is unlikely that the correspondence he says he sent in February 2002 was an application for review to the Tribunal. It is more likely, if a letter was sent by the Applicant, that it was a letter to the Department of Veterans' Affairs. However, Mr Modder for the Respondent was unable to advise the Tribunal whether a search for such correspondence had been undertaken by the Department.
The Applicant's evidence to the Tribunal showed a lack of understanding of the requirements for the challenge of a reviewable decision. He appeared to be confused about and unable to recall dates and I consider that, notwithstanding the advice contained in the notification of the Respondent's decision, he did not understand the steps he needed to take in order to have the Tribunal review the decision. I consider that it was the assistance of his local member that remedied that lack of understanding to some extent. In support of that conclusion I refer to document T1 which has as attachments 2 letters to the Tribunal from Mr Gary Nairn, Federal Member for Eden-Monaro.
I consider that the Applicant's reason for failing to make an application to the Tribunal within 3 months is his lack of understanding of the process for review and that he received no advice about the steps needed to be taken by him, apart from the advice contained in the notification of the decision, until he attended his local member. As to whether the Applicant took any steps to make the Respondent aware that he contests the decision, the Tribunal has only his and his wife's evidence of having written to some body in February this year and no evidence as to whether such a letter was searched for by the Department.
Mr Modder's submission to the Tribunal, in answer to the Tribunal's question, was that the Respondent suffers no prejudice by the late lodgement of the application. This is understandable given that the lodgement was only four months outside the prescribed period and that the subject matter of the application concerns events in the 1940's.
A final matter for the Tribunal to consider is the merits of the application. The matter turns on whether the Applicant left Australia during World War II or whether he incurred danger from hostile forces of the enemy during his service. The Applicant insists that he was on the hospital ship Manunda at Milne Bay. His B103 makes no mention of that but does contain entries that are hotly disputed by the Applicant. Mr Modder conceded that it appears that the B103 contains entries that refer to someone other than the Applicant. Mr Modder also advised the Tribunal that as yet no inquiries have been made of the Director of the War Memorial. The matter remains something of a mystery. Although it could not be said that the Applicant's case is strong, given that he has only his own recollections to support his assertions, the apparent discrepancies on the Applicant's B103 record give rise to doubt as to its accuracy in other relevant respects. As was conceded by Mr Modder, further investigation may yield further information. Given the uncertainty surrounding the records currently available and the Applicant's firm insistence that he did serve on the Manunda, it cannot be said that his application is entirely without merit.
Taking all of these matters into account, I consider that, on balance, it is fair and equitable to extend the time for the making of the application.
Decision
The time for lodgement of an application for review of the reviewable decision dated 7 December 2001 is extended to 11 July 2002.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date of Hearing            20 August 2002
Date of Decision            23 August 2002
Representative for the Applicant              self
Advocate for the Respondent                   Mr S Modder, Department of Veterans' Affairs