Greenhow and Commonwealth Superannuation Corporation
[2016] AATA 791
•7 October 2016
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 1Tran v Minister for Immigration and Border Protection [2014] FCA 533
REASONS FOR DECISION
Brigadier A G Warner, Member
7 October 2016
INTRODUCTION
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.
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).
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).
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;
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.
Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of that explanation, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered…”
Length of delay
Section 29(2) of the Act requires that an application for review must be made within 28 days of receipt of the relevant decision. As Mr Greenhow was notified of the reconsideration decision by letter dated 6 April 1988 (Exhibit 3 att 8), his application for review by the Tribunal is almost 28 years late.
The length of the delay in this matter is clearly excessive and weighs against granting an extension of time.
The Tribunal also notes the relevant comments of Wigney J in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at (38):
In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time. (Emphasis added)
Explanation for the delay
In Exhibit 2, Mr Greenhow stated his reasons for applying for an extension of time as:
I would like the AAT to look at the reports I have from psychiatrists, DVA, MCRS that acknowledge that the PTSD and major depression I have is directly related to my military service and that I should be able to be paid a full DFRDB pension from the dates that the AAT, DVA & MCRS all accept. PTSD is not present at or immediately diagnosed at the time of explosion or incident. (Exhibit 2 sect 4)
Elements of Mr Greenhow’s explanation are also contained in an attachment to his application for an extension of time and in his written submission (Exhibit 4). The respondent submitted the following summary of Mr Greenhow’s explanation which was not disputed:
·He was not diagnosed with PTSD until 1998 and it was not possible to have a medical report until then;
·His advocate in a proceeding against Comcare (Department of Veterans’ Affairs) was intending to act on his behalf to apply to the respondent for review of the decision, but fell ill, separated from his partner and moved to NSW;
·He has attempted to commit suicide many times since his discharge and has spent time in Hollywood Clinic, Albany Hospital Intensive Care and Dwellingup Hospital;
·He was in no mental state to act on his own behalf, being medicated for PTSD and major depression and is now attempting to represent himself before the Tribunal because he has not been in Hollywood Clinic in the past 2 years;
·He previously approached Albany RSC for assistance but the advocate he spoke to was unwilling to assist with a claim against Comsuper as it was outside his area of training; and
·The TPI Association told him they did not have an advocate who could act on his behalf against Comsuper. (Exhibit 3 para 25)
Mr Greenhow’s explanation indicates that as his PTSD was not diagnosed until 1998, he considered that prior to that time he did not have a medical report that DFRDB would consider. However, the absence of the PTSD diagnosis until 1998 does not satisfactorily explain the further delay from 1998 until 2016.
In relation to Mr Greenhow’s explanation, the respondent states in Exhibit 3:
The respondent accepts that the applicant may have had medical issues throughout those years and that he may not have wanted to represent himself, but contends that this in itself, is not an adequate explanation for the delay. In any event, the medical evidence before the Tribunal does not confirm that the applicant would not have been capable of bringing an application at any point in the past 28 years (or even 18 years.) (Exhibit 3 para 27)
The Tribunal agrees, and notes that in the period since the DFRDB reconsideration decision in 1988, Mr Greenhow married in 1990, had periods of employment with Austal and in a nursery, bought and sold property, and engaged in applications with the Military Compensation and Rehabilitation Service, the Department of Veterans’ Affairs and this Tribunal. While accepting Mr Greenhow’s difficult medical and personal circumstances during this period, this history suggests that there were periods in which he would have been capable of lodging an application.
In Exhibit 4 and before the Tribunal, Mr Greenhow contended that he had difficulties in finding representation competent and willing to support him in this DFRDB matter. Relevantly, the respondent submitted that: “The lack of legal advice is not alone a sufficient excuse for failure to lodge an application in time (see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at (35) and the authorities there cited)” (Exhibit 3 para 28).
As stated in the background detailed above, and not disputed, Mr Greenhow enquired about his entitlements and review options in 2002 and 2009 and was advised by the respondent of his right to seek an extension of time. Mr Greenhow did not respond to that advice until the application for an extension of time presently before the Tribunal. Relevantly, the respondent submits: “In Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing”. (Exhibit 3 para 30)
Consideration of this factor weighs against an extension of time.
Prospects of success in substantive application
It is not necessary for the Tribunal to conduct a merits review of Mr Greenhow’s substantive application at this interlocutory stage. However, it is appropriate for the Tribunal to consider the merits of that application as part of the process of determining this application for an extension of time for lodging the substantive application: Hunter Valley Developments Pty Ltd; Re Johnson. (refer to paragraph 20 above)
Mr Greenhow’s substantive application seeks reconsideration of the DFRDB reconsideration decision that his percentage of incapacity in relation to civil employment was 20%, Class C.
At the relevant time, section 30 of the DFRDB Act provided:
1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:
Percentage of Incapacity Class
Sixty per centum or more A
Thirty per centum or more but less than sixty per centum B
Less than thirty per centum C
2) In determining, for the purposes of sub-section (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:
a)the vocational, trade and professional skills, qualifications and experience of the member;
b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
c)the degree to which the physical or mental impairment of the member that is the cause of the invalidity or physical or mental incapacity by reason of which he has been retired has diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);
d)such other matters (if any) as are prescribed for the purposes of this sub-section. (Emphasis added)
Mr Greenhow’s written submissions and oral evidence before the Tribunal sought to have taken into account his medical deterioration after his discharge from the RAN in 1985, and in particular his diagnosis of PTSD in 1998.
The respondent provided comprehensive consideration of Mr Greenhow’s submissions both in Exhibit 3 (at paragraphs 39-43) and before the Tribunal. It is not necessary to repeat that consideration here. Having carefully examined the relevant material before it, the Tribunal is reasonably satisfied that there is no evidence that Mr Greenhow’s PTSD was or should have been a reason for his retirement from the RAN on invalidity grounds in 1985, and so agrees with the respondent’s submissions.
The Tribunal notes advice provided to Mr Greenhow by DFRDB in its letter dated 2 March 2009 and which remains relevant to the current consideration:
For DFRDB purposes it is only possible to take into account a physical or mental impairment which caused the incapacity that was the reason for the person’s discharge from the Defence Force. The person may have been suffering other physical or mental impairments but if those impairments were not significantly contributing to the incapacity that was the reason for discharge then those other impairments are not relevant for DFRDB purposes. Similarly a physical or mental impairment may appear sometime after a person has been discharged and may be attributed to his or her service in the Defence Force or the underlying process of developing the impairment might have begun prior to the person’s discharge. However, unless it is shown that the impairment was contributing to the incapacity that was the reason for discharge then the impairment cannot be taken into account in determining the person’s percentage of incapacity for civil employment, that is, it is not relevant for DFRDB purposes. (Exhibit 1)
Having considered the material before the Tribunal, Mr Beer conceded that Mr Greenhow’s diagnosis of PTSD would be unlikely to result in success in Mr Greenhow’s substantive application. Mr Beer submitted that the impairments which caused Mr Greenhow’s discharge on medical grounds were insufficiently assessed at that time. There was no evidence before the Tribunal to support this proposition.
Having regard to all the information before it relevant to the merits of Mr Greenhow’s substantive application, the Tribunal is reasonably satisfied that the substantive application has very poor prospects of success. Consequently, this consideration weighs against granting an extension of time.
Prejudice and fairness
In Exhibit 3, the respondent contended that if the extension of time was granted to Mr Greenhow, the respondent would suffer prejudice on the following bases:
·Mr Greenhow’s entitlements were calculated and paid following the 1988 reconsideration decision, and the respondent was entitled to assume that the matter was finalised.
·Importantly, the respondent would have difficulty obtaining relevant evidence that would assist the Tribunal. Although the respondent has access to medical files held by the Department of Defence and the Department of Veterans’ Affairs, there could be a requirement for the production of medical records from other doctors who have treated Mr Greenhow and there is no guarantee that such records would still be available.
·Success in Mr Greenhow’s substantive application would prejudice the respondent’s ability to undertake any medical reviews of Mr Greenhow’s position in the period between his discharge from the RAN and today.
It seems to the Tribunal that consideration of fairness between Mr Greenhow and other persons otherwise in a like position warrants mention in this matter where the length of delay is so significant. There could be the potential for an inequitable situation to result from granting an extension of time to Mr Greenhow, while other applicants in similar situations have not been granted an extension because of the statutory time limitation.
The Tribunal does not need to take the consideration of prejudice and fairness further. It is sufficient to say this consideration weighs against the granting of an extension, but less heavily than the factors of length of delay, explanation for the delay and prospects of success of the substantive application considered above.
CONCLUSION
The Tribunal is sympathetic to Mr Greenhow and his circumstances since his discharge from the RAN in 1985. Mr Greenhow presented as an honourable and honest witness before the Tribunal.
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.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member ........[Sgd]................................................................
Administrative Assistant
Dated 7 October 2016
Date of hearing 19 August 2016 Advocate for the Applicant Mr F Beer
The Returned & Services League of AustraliaRepresentative for the
RespondentMs A Ladhams Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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