Greenhow and Commonwealth Superannuation Corporation

Case [2016] AATA 791

Greenhow and Commonwealth Superannuation Corporation   [2016] AATA 791 (7 October 2016)

Division

GENERAL DIVISION

File Number

2016/0775

Re

Stephen Greenhow

APPLICANT

And

Commonwealth Superannuation Corporation

RESPONDENT

DECISION

Tribunal

Brigadier A G Warner, Member
Date 7 October 2016
Place Perth

The applicant’s application for an extension of time to lodge an application for review of a decision of the Defence Force Retirement & Death Benefits Scheme (as it was then known) dated 11 March 1988 is refused.

...........[Sgd].............................................................

Brigadier A G Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time for review of decision of Defence Force Retirement & Death Benefits Scheme of 11 March 1988 – length of delay excessive – explanation not satisfactory – poor prospects of success for applicant’s application for review – prejudice to respondent – potential for inequitable treatment of other applicants - Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 29(2) – s 29(7) – s 29(8)

Defence Force Retirement & Death Benefits Act 1973 – s 26 – s 30 – s 99(6)

Safety, Rehabilitation and Compensation Act 1988 – s 14

CASES

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Re Johnson and Commonwealth of Australia [1990] AATA 1

Tran v Minister for Immigration and Border Protection [2014] FCA 533

REASONS FOR DECISION

Brigadier A G Warner, Member

7 October 2016

INTRODUCTION

  1. Mr Greenhow seeks an extension of time to lodge an application for review of a decision made by the Defence Force Retirement & Death Benefits Scheme (DFRDB), as it was then known, on 11 March 1988 regarding Mr Greenhow’s entitlements on his retirement from the Royal Australian Navy (RAN) on 12 November 1985.

  2. The jurisdiction of the Tribunal to review decisions of this nature is conferred by s 99(6) of the Defence Force Retirement & Death Benefits Act 1973 (DFRDB Act).

  3. An interlocutory hearing was conducted on 18 August 2016.  Mr Greenhow attended the hearing and was represented by Mr F Beer of The Returned & Services League of Australia.

    BACKGROUND

  4. Mr Greenhow was born in 1957 and served in the RAN from 9 October 1972 until his retirement on medical grounds on 12 November 1985 (Exhibit 3 att 2).

  5. During his RAN service Mr Greenhow sustained injuries that caused impairment including lower back pain and sensorineural deafness.

  6. On 28 October 1986, a delegate of the DFRDB determined pursuant to ss 26 and 30 of the DFRDB Act that:

    ·In accordance with s 26, Mr Greenhow was entitled to an invalidity benefit in accordance with Part V of the DFRDB Act; and

    ·In accordance with s 30,…

Details
AGLC
Greenhow and Commonwealth Superannuation Corporation [2016] AATA 791
Case
[2016] AATA 791
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Greenhow for an extension of time to seek a review of a decision made by the Defence Force Retirement & Death Benefits Scheme (DFRDB) on 11 March 1988. The application was heard by Brigadier A G Warner, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Greenhow an extension of time to lodge his application for review, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975. In determining this, the Tribunal was guided by established principles, including consideration of the applicant's actions, any prejudice to the respondent, wider public prejudice, the merits of the substantial application, and fairness between the applicant and others in a like position.

The Tribunal considered the extensive delay since the DFRDB's reconsideration decision in 1988, noting that Mr Greenhow only formally sought review forms in January 2016, some 28 years later. While Mr Greenhow had been diagnosed with PTSD around 1998 and had made enquiries about his entitlements in 2002 and received advice regarding review rights on multiple occasions thereafter, the Tribunal found his explanation for the significant delay unsatisfactory. The Tribunal also considered the potential prejudice to the respondent and the inequitable treatment of other applicants if an extension were granted, alongside the prospects of success of the substantive application. Weighing these factors, the Tribunal concluded that it was not reasonable in all the circumstances to grant the extension.

Consequently, the Tribunal refused Mr Greenhow's application for an extension of time to lodge an application for review of the DFRDB's 11 March 1988 decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

An interlocutory hearing was conducted on 18 August 2016. Mr Greenhow attended the hearing and was represented by Mr F Beer of The Returned & Services League of Australia.BACKGROUND Mr Greenhow was born in 1957 and served in the RAN from 9 October 1972 until his retirement on medical grounds on 12 November 1985 (Exhibit 3 att 2). During his RAN service Mr Greenhow sustained injuries that caused impairment including lower back pain and sensorineural deafness. On 28 October 1986, a delegate of the DFRDB determined pursuant to ss 26 and 30 of the DFRDB Act that:·In accordance with s 26, Mr Greenhow was entitled to an invalidity benefit in accordance with Part V of the DFRDB Act; and·In accordance with s 30, Mr Greenhow’s percentage of incapacity in relation to civil employment and classification is 20% Class C. On 11 March 1988, the DFRDB reviewed the original decision and decided:·That the kind of civil employment which a person with Mr Greenhow’s vocational, trade and professional skills, qualifications and expertise might reasonably undertake (disregarding all physical and mental impairments) was as a clerical office assistant;·To redescribe Mr Greenhow’s retirement impairments as soft tissue and possible facet joint injury to low lumbar spine causing low back pain and sensorineural hearing loss; and·To confirm the delegate’s 28 October 1986 decision that the percentage of Mr Greenhow’s capacity in relation to civil employment was 20% and that his classification was Class C on and from 13 November 1985 (reconsideration decision) (Exhibit 3 att 7). The DFRDB advised Mr Greenhow of the reconsideration decision by letter dated 6 April 1986 (Exhibit 3 att 8). Mr Greenhow was diagnosed with post-traumatic stress disorder (PTSD) around 1998. On 7 January 2002, he wrote to the respondent advising his PTSD diagnosis and enquiring whether he had further entitlements under the DFRDB Act (Exhibit 3 att 9). By letter dated 16 January 2002, the respondent advised Mr Greenhow that he could seek an extension of time to apply to the Tribunal for review of the reconsideration decision (Exhibit 3 att 10). On 12 February 2004, the Tribunal determined in W2001/139 that Mr Greenhow was entitled to compensation in relation to PTSD under s 14 of the Safety, Rehabilitation and Compensation Act 1988. On 3 February 2009, 20 February 2009 and 25 February 2009, officers of the respondent advised Mr Greenhow by telephone of his option of seeking an extension of time to make an application to the Tribunal (Exhibit 3 att 11). On 2 March 2009, the respondent wrote to Mr Greenhow explaining his review rights and that, for the purposes of the DFRDB Act, it is only possible to take into account physical or mental impairments which caused the incapacity that was the reason for the person’s discharge from the Defence Force (Exhibit 3 att 12). On 28 January 2016, Mr Greenhow requested forms from the respondent so that he could make an application to the reconsideration team (Exhibit 3 att 13). On 8 February 2016, the respondent advised Mr Greenhow that he had exhausted his review rights but could make an application to the Tribunal (Exhibit 3 att 14).

Evidence

Evidence Before The Court

The Tribunal’s power to extend the time for the making of an application for review is conferred by subsections (7) and (8) of s 29 of the Act as follows: (7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired. EVIDENCE The Tribunal had before it the following evidence:·Application for Review of Decision (Individual) lodged 12 February 2016 (Exhibit 1);·Application for Extension of Time dated 25 February 2016 (Exhibit 2);·Submissions of the Respondent Opposing Extension of Time Application dated 15 April 2016, including attached documents 1-14 (Exhibit 3);·Response to Opposing Application for Extension of Time dated 9 April 2016 (Exhibit 4);·Statutory Declaration by Commander KA Walters dated 20 July 2016 (Exhibit 5);·Report by Associate Professor Russ Schedlich dated 8 August 2016 (Exhibit 6);·Undated Statement by Gary Booth (Exhibit 7);·DFRDB N113076 dated 2 March 2009 (Exhibit 8); and ·The oral evidence of the applicant. CONSIDERATION Section 29(7) of the Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:(i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.(ii) Consideration is to be given to the action taken by the applicant. Did he or she “rest on his or her rights” so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.

Decision

Reasons for decision

The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.DECISION For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the Act, the applicant’s application for an extension of time to lodge an application for review of a decision by the Defence Force Death & Retirement Benefits Scheme on 11 March 1988.

Ratio Decidendi

Legal Principle Established

On 11 March 1988, the DFRDB reviewed the original decision and decided:·That the kind of civil employment which a person with Mr Greenhow’s vocational, trade and professional skills, qualifications and expertise might reasonably undertake (disregarding all physical and mental impairments) was as a clerical office assistant;·To redescribe Mr Greenhow’s retirement impairments as soft tissue and possible facet joint injury to low lumbar spine causing low back pain and sensorineural hearing loss; and·To confirm the delegate’s 28 October 1986 decision that the percentage of Mr Greenhow’s capacity in relation to civil employment was 20% and that his classification was Class C on and from 13 November 1985 (reconsideration decision) (Exhibit 3 att 7). The DFRDB advised Mr Greenhow of the reconsideration decision by letter dated 6 April 1986 (Exhibit 3 att 8). Mr Greenhow was diagnosed with post-traumatic stress disorder (PTSD) around 1998. On 7 January 2002, he wrote to the respondent advising his PTSD diagnosis and enquiring whether he had further entitlements under the DFRDB Act (Exhibit 3 att 9). By letter dated 16 January 2002, the respondent advised Mr Greenhow that he could seek an extension of time to apply to the Tribunal for review of the reconsideration decision (Exhibit 3 att 10). On 12 February 2004, the Tribunal determined in W2001/139 that Mr Greenhow was entitled to compensation in relation to PTSD under s 14 of the Safety, Rehabilitation and Compensation Act 1988. On 3 February 2009, 20 February 2009 and 25 February 2009, officers of the respondent advised Mr Greenhow by telephone of his option of seeking an extension of time to make an application to the Tribunal (Exhibit 3 att 11). On 2 March 2009, the respondent wrote to Mr Greenhow explaining his review rights and that, for the purposes of the DFRDB Act, it is only possible to take into account physical or mental impairments which caused the incapacity that was the reason for the person’s discharge from the Defence Force (Exhibit 3 att 12). On 28 January 2016, Mr Greenhow requested forms from the respondent so that he could make an application to the reconsideration team (Exhibit 3 att 13). On 8 February 2016, the respondent advised Mr Greenhow that he had exhausted his review rights but could make an application to the Tribunal (Exhibit 3 att 14). On 25 February 2016, Mr Greenhow lodged an application for an extension of time with the Tribunal.ISSUE Mr Greenhow has applied for an extension of time within which his application for review may be lodged. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made. RELEVANT LEGISLATION Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the Act) relevantly states: … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty- eighth day after: (a) if the decision sets out the findings on material questions of fact and the reasons for the decision-the day on which a document setting out the terms of the decision is given to the applicant;