Gregory and Veterans' Review Board and Repatriation Commission - [2000] AATA 448

DECISION AND REASONS FOR DECISION [2000] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/491

VETERANS' APPEALS DIVISION       )
           Re      KEVIN JAMES GREGORY
  Applicant
           And    VETERANS' REVIEW BOARD
  1st Respondent

And REPATRIATION COMMISSION

2nd Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date7 June 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – practice and procedure – notice from Veterans' Review Board dismissing application – whether constitutes "notice" – meaning of "notice" considered
Veterans' Entitlements Act 1986 s.155AA
Re Johnsonand Veterans' Review Board and Repatriation Commission [2000] AATA 282
Austin v Secretary, Department of Family and Community Services [1999] FCA 938
Goodyear Tyre & Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 3 All ER 7
Oastler, Exparte. In Re Friedlander (1883) 13 QBD 471

REASONS FOR DECISION

7 June 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Kevin James Gregory (the applicant) for review of a decision of the Registrar of the Veterans' Review Board (the Board), acting as a delegate for the Principal Member of the Board, dated 2 September 1999 (T17) which dismissed his application before the Board pursuant to sub-section 155AA(5) of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with four exhibits, two lodged by the applicant (Exhibits A1-A2) and two lodged by the respondents (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant. The applicant was represented by Mr G. Hemsley, the first respondent by Mr B. Topperwein and the second respondent by Ms S. Maharaj, all of counsel.
The issue before the Tribunal is whether the document dated 22 July 1999 (the purported notice) (T15) was a notice pursuant to sub-section 155AA(4) of the Act.
history of the application
The applicant was born on 7 January 1940 and served in the Royal Australian Army from 1962 to 1971, during which time he had operational service. He lodged a claim for various conditions with the second respondent on 26 March 1997 (T3). The claim was rejected by a determination dated 23 May 1997 (T4). The applicant sought review of that decision and the application for review was received by the first respondent on 23 June 1997 (T5).
The first respondent wrote to the applicant on 22 September 1997 (T8) and 19 December 1997 (T9) seeking advice (inter alia) on attendance and representation at hearing. The applicant responded on 7 January 1998 (T10) that Mr Hammal had been appointed as his representative, and that Mr Hammal would advise of readiness for hearing.
The first respondent enquired by letter dated 11 December 1998 (T11) of both Mr Hammal and Mr Gregory of their readiness for hearing. Mr Hammal advised the Board that he did not know of the applicant's whereabouts (T10). The applicant responded to the Board's letter on 22 January 1999 noting "I have authorised Mr Hammal to act fully on my behalf, and would appreciate it if you would advise him directly of a Hearing Date." (T12/33).
The Board spoke with Mr Hammal in March and April 1999 (T14) with Mr Hammal advising the Board that the matter was not ready to proceed.
The notice in dispute in these proceedings is that dated 22 July 1999 (T15). That notice provided (inter alia):
" …
The statement must be signed by you. However, you may authorise another person to represent you in relation to this notice. Such authorisation must be in writing and on the enclosed form. You should not send this authorisation back to me. You should give it as quickly as possible to the person you have authorised to that he or she can send it to me together with the statement I have requested within the 28 days allowed.
…"
The applicant sent a letter dated 4 August 1999 (Exhibit A2/attachment A) to Mr Hammal which stated (inter alia):
"Further to our telephone conversation I have enclosed the papers requested by the DVA Review Board.
…
I realise the difficulty in your representing me when I am not present and am willing to return if you think this will help. However my wife believes that I am not as volatile while living in our present mobile state and that she can cope better with the behavioural problems related to my PTSD.
I have recorded on the form that I am contactable by telephone during the hearing and I trust that they will also advise me of the date so that I can ensure I am in a mobile phone area on that date.
Please advise us of any costs/expenses that you may incur while doing this on my behalf."
The Board advised the applicant by letter dated 2 September 1999 (T17) that no response had been received and his application was accordingly dismissed.
legislation
Sub-sections 155AA(4) and (5) of the Act provide:
"155AA Power to dismiss application—initial consideration
…
(4) If, at the end of the standard review period:
(a) this section applies to an application for review; and
(b)the Principal Member considers that the applicant should be ready to proceed at a hearing;
the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;
(c)a written statement indicating that the applicant is ready to proceed at a hearing; or
(d)a written statement explaining why the applicant is not ready to proceed at a hearing.
(5)If the applicant does not provide a written statement under paragraph (4)(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.
…"

applicant's evidence

The applicant told the Tribunal that, in accordance with the instructions contained in the Board's letter of 22 July 1999, he contacted Mr Hammal by phone and sent him a copy of that letter together with his letter to Mr Hammal dated 4 August 1999 (Exhibit A2/attachment A).
applicant's submissions
Mr Hemsley submitted, on behalf of the applicant, that as the applicant had responded to Mr Hammal he had complied with what was required of him by the purported notice. He further submitted that the third paragraph therein lends the purported notice ambiguity as it tells the applicant not to forward the authorisation to the Board, and adds in the last sentence that the representative will then send both the authorisation and the statement to the Board. In his submission the fact that the Board did not receive the statement proves the deficiency of the purported notice because the applicant still failed to comply with the Act whilst complying with all aspects of the document.
He sought to distinguish Re Johnsonand Veterans' Review Board and Repatriation Commission [2000] AATA 282 on its facts and because the applicant in this case understood and relied upon the purported notice. In his submission, it was the fault of the ambiguous nature of the purported notice that the application was ultimately dismissed.
He submitted that there was a greater onus upon the Board to give clear and unambiguous advice due to the fact that there was no alternative means by which an application could be reinstated. In his submission, the finality of the section lends it a character equivalent to the penal sanctions in other legislation, which have been interpreted strictly in the various authorities he referred the Tribunal to.
respondents' submissions
Ms Maharaj made submissions on behalf of the second respondent (with Mr Topperwein concurring) that if a veteran is represented, then it is for the representative to indicate readiness (or not) for hearing. In her submission, the purported notice exceeds the procedural requirements of sub-section 155AA(4) of the Act and that a "wholesome" approach should be taken to the letter instead of an overly pedantic paragraph by paragraph approach.
She submitted that paragraph three of the purported notice deals separately with the authorisation and the statement and that the two documents were quite distinct in their requirements.
discussion and findings
The Tribunal has only briefly set out the submissions put to it, but takes all the evidence and submissions into account in coming to its decision. It also takes into account the authorities referred to by both parties.
In Re Johnson this Tribunal canvassed the requirements for something to be considered a "notice", and adopts the approach outlined at paragraphs 22 to 24 therein. The Tribunal also notes approvingly Justice Drummond's discussion of "notice" at paragraphs 26 to 29 of Austin v Secretary, Department of Family and Community Services [1999] FCA 938 and in particular the reference therein to the oft quoted passage from Goodyear Tyre & Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 3 All ER 7 (at p12 per Evershed MR (inter alia)):
"It means, no doubt, that the thing of which a man must have notice must be brought clearly to his attention"
The finality of sub-section 155AA(5) of the Act means that the notices must be strictly scrutinised as to whether they convey the average veteran to the procedural and substantive steps and effect of the application of section 155AA. Whilst the Tribunal would not necessarily concur with Mr Hemsley that the strictness required accords with that attached to sections with penal sanctions, it is nevertheless a high standard, and rightly so. As the Tribunal noted in Re Johnson the notices must be of sufficient clarity so that it can reasonably be expected to convey the relevant information to the average veteran (on an objective test).
This case is clearly distinct from Re Johnson in that it involves application of the stated legal test to a completely different factual matrix. It is worth noting however, that when one compares the purported notice in this case with the notice in Re Johnson there is an additional sentence in the Re Johnson notice which is missing in this case, notably (paragraph two of the notice set out in Re Johnson at paragraph 10):
"… If you are not being represented the statement must be signed by you and forwarded to this office.
…"
It would appear sensible to this Tribunal to have included such a sentence in the purported notice in this case as an unequivocal statement of what is required of unrepresented veterans. Nothing turns on its absence in this case however.
The facts of this case indicate that the veteran was clearly represented as at the time he received the notice. It is clear from his evidence and the documents before the Tribunal that the veteran did all that the notice required of a represented veteran, in so far as he sent his representative both a statement and the authorisation.
No reason was offered to the Tribunal as to why the Board was not furnished with any response once the authorisation and statement were in the hands of the applicant's representative. Mr Hemsley submits that it must be the purported notice that is deficient since the applicant did all that was required of him, and yet failed to comply with the purported notice, but this is not necessarily logical.
The applicant did do all that the purported notice required of a represented veteran, in that he forwarded both a statement, the purported notice and the authorisation to his representative. It is clear from his evidence and the statement (Exhibit A2/attachment A) that the veteran understood (at the very least) that the purported notice required some response from him within 28 days. The statement specifically defines that he expected Mr Hammal to make some representation to the Board on his behalf. The applicant's representative, armed with the notice and the authorisation, (the latter of which specifically authorises the said representative to respond on the veteran's behalf) could not have been left with any other impression from the documentation sent by the Board than that some response had to be received by the Board within 28 days. His failure is not the failure of the purported notice itself. Indeed if the last sentence of paragraph five of the purported notice is correct, one could argue that the applicant was not in fact required to do anything, as he had already authorised his representative to respond ("act fully") on his behalf (T12/33) and upon direct receipt of such a purported notice (T15) the applicant's representative should have responded in such a representative capacity.
Whilst not perfect by any stretch of the imagination, the purported notice sets out that a statement must be provided to the Registrar (acting as delegate of the Board). It says so in the last sentence of paragraph three. To take a "wholesome" approach as advocated by Ms Maharaj, it is clear at the very least, given the tenor of the letter and that it is from the Board, that some response needs to be provided to the Board within a prescribed time. It sets out the consequences of failing to so respond to the Board.
Sub-section 155AA(4) of the Act requires a notice to clearly indicate to a veteran that he or she must provide a written statement within 28 days that he or she is ready for hearing, or reasons why not. The purported notice in this case is sufficiently clear in its terminology and wording in this regard, that upon application of a strict and objective test, the Tribunal is satisfied that it is a notice within the requirements of sub-section 155AA(4) of the Act.
As the Tribunal has noted, at the very least it explicitly states that a statement must be forthcoming to the Board within 28 days as to readiness or not, and details the consequences. Whilst this applicant did all that was required of him by the notice, he did so within the context of being represented. By virtue of the notice and the authorisation (and the applicant's statement in this case) the representative was also in the position of having been made very aware of the need for the provision of a response within 28 days. Whatever caused the applicant's representative to fail to respond to the notice cannot be said to be as a result of a deficiency in the notice itself. In this case, fault must be said to lie otherwise than with the notice, which has sufficient clarity so as to be a notice pursuant to sub-section 155AA(4) of the Act.
In the Tribunal's opinion, whilst the notice would be helped by specifying from when the 28 days is to run, by making more explicit that a response is to be sent to the Board, by treating the authorisation of a representative as a completely separate subject and by revising the general manner of expression and tone of the letter, it nevertheless remains sufficiently clear that unrepresented veterans, represented veterans and the latter's representatives will have had the requirements of sub-section 155AA(4) of the Act brought "clearly, formally and deliberately" to their attention (Goodyear Tyre & Rubber Co and also Oastler, Exparte. In Re Friedlander (1883) 13 QBD 471) by virtue of the notice.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  11 May 2000
Date of Decision  7 June 2000
Counsel for the Applicant              Mr G. Hemsley
Solicitor for the Applicant              -
Counsel for the 1st Respondent   Mr B. Topperwein
Solicitor for the 1st Respondent    VRB
Counsel for the 2nd Respondent Ms S. Maharaj
Solicitor for the 2nd Respondent AGS