Hopkins and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 571
•6 July 2015
Hopkins and Repatriation Commission (Veterans’ entitlements) [2015] AATA 571 (6 July 2015)
Division VETERANS' APPEALS DIVISION File Number
2015/1493
Re
Francis Hopkins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 6 July 2015 Date of written reasons 6 August 2015 Place Adelaide For the reasons given orally at the conclusion of the hearing on 6 July 2015, the Tribunal decides that the Applicant’s application for review dated 27 March 2015 does not raise a matter within its jurisdiction and therefore refuses the Applicant’s application for an extension of time within which to make the said application.
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Senior Member N A Manetta
CATCHWORDS
PRACTICE AND PROCEDURE – whether Tribunal has jurisdiction to review one of its own decisions - applicant seeking in 2015 to have Tribunal review one of its own decisions from 2009 and filing associated application for an extension of time - whether application for review competent - application held to be incompetent - application for an extension of time within which to make the application for review refused.
LEGISLATION
Veterans' Entitlements Act 1986
Administrative Appeals Tribunal Act 1975
CASES
Re Hopkins and Repatriation Commission [2009] AATA 339
Hopkins v Repatriation Commission [2009] FCA 1037
Hopkins v Repatriation Commission [2011] FCA 386
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80;
55 AAR 300
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597WRITTEN REASONS FOR DECISION
Senior Member N A Manetta
6 August 2015
After delivery of my oral decision and reasons, I received a request for written reasons, which I now publish.
JURISDICTIONAL QUESTION
This is an application by Mr Francis Hopkins seeking a review of a decision of this Tribunal dated 14 May 2009. A Deputy President has listed a preliminary question for decision; namely, whether the Tribunal has jurisdiction to hear the application. Mr Hopkins represented himself at the hearing of the preliminary question and gave evidence; Mr Crowe appeared for the respondent.
I sought confirmation from Mr Hopkins that he wished to have the 2009 decision reviewed. He was clear that this was, indeed, the case. His application for review is explicit in this regard, and he has filed an application for an extension of time in support of the application for review.
In my opinion, the Tribunal’s jurisdiction, which is conferred by statute, does not extend to reviewing its earlier decision of 14 May 2009. I set out briefly the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
Mr Hopkins gave evidence that he served in the Navy from 1976 to 1994. As a result of his service, Mr Hopkins claimed to be entitled to a pension under the Veterans’ Entitlements Act 1986. So far as is relevant to his application, it is sufficient to note that the Repatriation Commission awarded Mr Hopkins 100 per cent, but no more than 100 per cent, of the so-called “general rate” of pension. Mr Hopkins had applied for a higher rate. On appeal to the Veterans Review Board (VRB) the decision was upheld. These decisions were made on 15 June 2007 and 25 October 2007 respectively.
Mr Hopkins made application to the Tribunal in respect of these adverse decisions. His application for review was determined and the Tribunal delivered a decision on 14 May 2009 affirming the decision under review.[1]
[1] [2009] AATA 339.
Mr Hopkins gave evidence that he appealed the Tribunal’s decision to the Federal Court unsuccessfully in 2009 (before Justice Mansfield).[2] According to Mr Hopkins, there were further proceedings before Justice Lander of the Federal Court[3] which did not lead to a setting aside of the Tribunal’s decision. (I have since ascertained that these proceedings related to an application for an extension of time within which to appeal Justice Mansfield’s decision to the Full Court.)
[2] [2009] FCA 1037.
[3] [2011] FCA 386.
As I have noted, Mr Hopkins seeks to have the 2009 Tribunal decision set aside by this Tribunal, and he has also lodged an application for an extension of time within which to make that application. His application was lodged some five years and ten months after the Tribunal delivered its decision.
REASONS
The Tribunal has only those review functions that are given to it under statute. There is no statutory provision of which I am aware that permits the Tribunal to review and set aside a decision it has reached in earlier proceedings. The prescribed appeal is to the Federal Court, on a question of law[4], a right, I note, he has exercised. In my opinion, Mr Hopkins’ application for review dated 27 March 2015 is incompetent: the Tribunal lacks jurisdiction to hear it.
[4] Section 44 of the Administrative Appeals Tribunal Act, 1975.
Mr Hopkins referred to the Federal Court’s decision in Rana v Military Rehabilitation and Compensation Commission[5] and, in particular, to paragraphs [26] to [28]; but I am satisfied that neither these paragraphs nor anything else in the decision assists his argument in favour of jurisdiction. I accept that the Tribunal, having before it an application for review that it has jurisdiction to hear, is not bound in law to follow the findings of fact made in earlier proceedings between the same parties. This point is made clearly at paragraphs [27] – [28], for example. These dicta do not support, however, Mr Hopkins’ submission that the Tribunal has jurisdiction to hear an application for review of one of its own decisions. The paragraphs in Rana’s case to which Mr Hopkins referred concern fact-finding by the Tribunal, not the question of when it has jurisdiction to hear an application. I accept Mr Crowe’s submissions in this regard.
[5] [2011] FCAFC 80; 55 AAR 300.
RESUMPTION OF THE 2009 HEARING
As the Tribunal has no statutory jurisdiction to consider the matter, it follows, in my opinion, that Mr Hopkins’ application could only be accepted as competent, if at all, were it to be treated as an application to the Tribunal to reopen its decision of 2009 (because the Tribunal had failed on that earlier occasion properly to exercise its jurisdiction and discharge its statutory functions). There is authority for the proposition that, subject to a proper consideration of the particular statutory provisions in question, a tribunal such as the AAT may have jurisdiction to reopen its own decisions to cure a jurisdictional error it has made in the course its proceedings, at least in limited circumstances. The authority in question is Minister for Immigration and Multicultural Affairs v Bhardwaj.[6]
[6] (2002) 209 CLR 597
There are self-evident difficulties in applying this case to the facts here, however.[7] First, it would appear that any such application, assuming it could be made, would have to be addressed to, and considered by, the same Tribunal that arrived at the allegedly defective decision.[8]
[7] Apart from the obvious difficulty in applying the principle where an appeal right has been exercised.
[8] Subject perhaps to any order by the President reconstituting the Tribunal.
Secondly, any application to the Tribunal to resume a hearing would have to be made promptly after the allegedly defective decision was finalised. In my opinion, it cannot be the case that a power to resume a defective hearing with a view to curing a jurisdictional fault may be exercised at any time. In Bhardwaj, the Immigration Review Tribunal acted to remedy its error soon after it had reached its decision. I do not think the High Court’s reasoning in that case extends to a tribunal having power to correct jurisdictional errors at any time, and in any event not after almost six years have elapsed, as is the case here. A court order setting aside the Tribunal’s decision would be a necessary preliminary to the Tribunal reopening the matter. It is irrelevant for these purposes that critical information has only recently come to Mr Hopkins’ attention.
Finally, I am not satisfied that even if the alleged error had been raised promptly by Mr Hopkins in the 2009 matter, it would have been open to the Tribunal to reconsider its decision. The Tribunal would have had to be satisfied that the alleged error was one that affected the course of proceedings so substantially that the Tribunal had failed to discharge its statutory obligation to consider Mr Hopkins’ application for review.
In the circumstances of this case, Mr Hopkins maintains certain documents ought to have been placed before the Tribunal by the respondent. According to Mr Hopkins, these documents show that Mr Hopkins does not suffer from chronic obstructive airways disease (COAD). He submitted that had he been able to present this evidence to the Tribunal in 2009, it would not have made a critical finding that he was not a credible witness.
It seems clear, however, from the Tribunal’s reasons ([2009] AATA 339 at [34] - [37]) that the conclusion in respect of Mr Hopkins’ lack of credibility did not depend on a finding that Mr Hopkins suffers from COAD. It is clear that the Tribunal based its conclusion concerning Mr Hopkins’ lack of credibility on other factors. In particular, it would appear the Tribunal based itself on Mr Hopkins’ admission of having made a knowingly false statement to the VRB.
In light of its published reasons, I do not see a reasonable basis for asserting that the Tribunal’s conclusion in respect of Mr Hopkins’ lack of credibility would have been any different if the documents in question had been before it.
For these reasons, therefore, even if Mr Hopkins’ application is treated as one requesting the Tribunal to resume a partially heard matter – I say “partially heard” because of an alleged jurisdictional error that caused the Tribunal to fail in its statutory duty to render a lawful decision – the application is, in my opinion, bound to fail. I might add that I have considered the applicability of Bhardwaj’s case in some detail as Mr Hopkins was self-represented and, understandably, did not appreciate fully the extent of the Tribunal’s jurisdiction. It is not an argument he raised, but it is the only argument that might have justified an application.
CONCLUSION
In my opinion, the Tribunal has no jurisdiction to hear Mr Hopkins’ application for review dated 27 March 2015. In the circumstances of this case, it is appropriate to make an order refusing Mr Hopkins’ application for an extension of time within which to make his application to the Tribunal. The order will have the effect of bringing Mr Hopkins’ proceedings in this matter to an end. I shall make an order accordingly.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .......................[Sgd].................................................
Administrative Assistant
Dated 6 August 2015
Date(s) of hearing 29 June 2015 and 6 July 2015 Applicant In person Counsel for the Respondent Mr A Crowe Solicitors for the Respondent Department of Veterans' Affairs
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