Hunt and Repatriation Commission
[2001] AATA 224
•22 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/633
VETERANS' APPEALS DIVISION )
Re Douglas William Hunt
Applicant
And Principal Member, Veterans' Review Board
First Respondent
And Repatriation Commission
Second Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date22 March 2001
PlaceSydney
Decision The decision under review is affirmed.
..................[sgnd]...................
Ms SM Bullock
Senior Member
Catchwords
VETERANS' AFFAIRS - Appeal to Veterans' Review Board - Power to Dismiss - Failure to Provide Written Reasons For Not Being Ready To Proceed
Legislation
Veterans' Entitlements Act 1986, ss 148, 155AA, 155AB, 155AC, 155A
Authorities
Re Roberts and Repatriation Commission (1992) 26 ALD 611
Roberts v Repatriation Commission (1992) 39 FCR 420
Adams and Veterans' Review Board (1992) 16 AAR 307
REASONS FOR DECISION
Ms SM Bullock, Senior Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Douglas William Hunt of a decision of the Veterans' Review Board ("the Board") made on 14 April 2000, that Mr Hunt's applications for review to the Board should be dismissed pursuant to subsection 155AB(5) of the Veterans' Entitlements Act 1986. Mr Hunt's applications for review to the Board related to Repatriation Commission decisions of 7 September 1996 refusing a claim in respect of asthma, and 3 May 1997, refusing a claim in respect of irritable bowel syndrome, nephrolithiasis of the right kidney, gastro-oesophageal reflux disease, post traumatic stress disorder and assessing pension at 40 per cent of the General rate. The Repatriation Commission ("the Commission") sought to be joined as Second Respondent in this matter to which the Tribunal agreed on 17 January 2001.
A hearing was held before the Tribunal in Sydney on 16 February 2001. Mr Hunt attended the hearing and provided oral evidence. He was represented by Pensions Review Advocate, Mr W Murphy of the Entrance-Long Jetty Returned and Services League (RSL) Sub-Branch. Mr Murphy also provided oral evidence to the Tribunal. The Board was represented by Mr B Topperwien of Counsel and the Commission was represented by Mr I Cahill, Director of Litigation in the Department of Veterans' Affairs National Office. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" T1-T19) in addition to the following exhibits:
Exhibit Description Date
T1-T19 T Documents Various
A1 Applicant's Statement of Facts and Contentions 14 February 2001
A2 Statements of Mr Hunt 12 May 2000 and 18 July 2000
A3 Statutory Declaration of Mr D W Hunt 9 February 2001
A4 Statutory Declaration of Mr W J Murphy Undated
R1 Respondent's Statement of Facts and Contentions and attachments 15 February 2001
R2 Statement of Mr J Yeo, then Acting Registrar of the Veterans' Review Board, New South Wales Registry 14 September 2000
R3 Chronology prepared by Mr I Cahill 16 February 2001
Issues
The issue to be determined in this matter is whether or not Mr Hunt's applications for review to the Board were properly dismissed under the provisions of subsection 155AB(5) of the Veterans' Entitlements Act 1986.
LegislationA determination of this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
As relevant, section 148 of the Act deals with procedures of the Board and of relevance specifically to this application for review is subsection 148(1) of the Act which states:
"148 Procedure of Board
(1)The Principal Member shall, upon receipt of the relevant documents relating to a review of a decision of the Commission, cause to be served on each party to the review a notice informing the party that the Board is to review the decision of the Commission and requesting the party to inform the Principal Member, in writing, within a reasonable time specified in the notice, whether the party wishes to appear on the hearing of the review and, if the party wishes so to appear, whether the party intends to appear on the hearing personally or by another person under section 147.
…"
Section 155AA of the Act deals with the power to dismiss an application for review in the first instance and as relevant states:
"155AA Power to dismiss application—initial consideration
(1) In this section:
standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia.
(2) This section applies to an application for review unless:
(a)the hearing of the review has finished within the standard review period; or
(b) as at the end of the standard review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.
(3)For the purposes of paragraph (2)(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.
(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.
(6) If:
(a)the applicant provides a written statement under paragraph (4)(d) within the 28 days; and
(b)the Principal Member considers that the statement contains a reasonable explanation for the applicant's failure to be ready to proceed at a hearing;
the Principal Member must notify the applicant and the Commission of this.
(7) If:
(a)the applicant provides a written statement under paragraph (4)(d) within the 28 days; and
(b)the Principal Member considers that the statement does not contain a reasonable explanation for the applicant's failure to be ready to proceed at a hearing;
the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal."
Section 155AB of the Act refers to the powers of the Principal Member and as relevant states:
"155AB Power to dismiss application—subsequent consideration
(1) In this section:
extended review period, in relation to an extension notice, means the period of 3 months after the day on which the Principal Member has given the extension notice to the applicant for review.
extension notice means a notice under subsection 155AA(6) or subsection (6) of this section.(2) If the Principal Member has given an applicant for review an extension notice, this section applies to that application unless:
(a) the hearing of the review has finished within the extended review period; or
(b) as at the end of the extended review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.
…
(4) If this section applies to an application for review at the end of the extended review period, 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:
(a) a written statement indicating that the applicant is ready to proceed at a hearing; or
(b) 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)(a) or (b) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.
(6) If:
(a) the applicant provides a written statement under paragraph (4)(b) within the 28 days; and
(b) the Principal Member considers that the statement contains a reasonable explanation for the applicant's failure to be ready to proceed at a hearing;
the Principal Member must notify the applicant and the Commission of this.
…"
Subsection 155AC of the Act as relevant allows an applicant for review to the Board to authorise another person to represent him or her where the outcome could be a dismissal of application.
Section 155A allows the Tribunal to review a decision of the Principal Member to dismiss an application under subsection 155AB(5).
BackgroundThe following information is provided by way of background and the facts contained within are not in dispute.
On 1 November 1996 and 11 July 1997, Mr Hunt made applications for review to the Board in relation to Commission decisions of 7 September 1996 refusing his claim for asthma and of 3 May 1997 refusing Mr Hunt's claim in respect of irritable bowel syndrome, nephrolithiasis of the right kidney, gastro-oesophageal reflux disease, post traumatic stress disorder and assessing pension for accepted disabilities at 40 per cent of the General rate (T3, T7).
On 29 January 1997 and 16 October 1997 respectively, the Board wrote to Mr Hunt pursuant to subsection 148(1) of the Act requesting advice within 28 days as to whether or not Mr Hunt wished to appear at hearing and if so in person or through a representative (T4, T8).
On 28 February 1997 and 18 December 1997, the Board wrote to Mr Hunt's representatives, Mr D Severn and subsequently Mr W Murphy, confirming their representation in relation to Mr Hunt's applications for review and requesting the completion of a Certificate of Readiness (T6, T11).
On 13 July 1999, Mr Hunt was sent a notice by the Board under subsection 155AA(4) of the Act requiring written advice within 28 days that he was ready to proceed to hearing or providing reasons why he was not so ready. This letter, signed by Mr P Studman, Registrar of the New South Wales Registry of the Board, noted that Mr Hunt's applications for review had been outstanding for more than two years. Mr Hunt was warned that if a statement was not provided by him and signed by him within 28 days or if Mr Studman considered his statement did not contain a reasonable explanation for his failure to be ready to proceed at hearing, then the applications for review could be dismissed (T12).
On 2 August 1999, Mr Hunt lodged written reasons explaining to the Board why he was not ready to proceed (T13) and on 3 August 1999, Mr P Studman, Registrar, wrote to Mr Hunt notifying him pursuant to subsection 155AA(6) of the Act that his explanation for failing to proceed was reasonable. Mr Studman wrote that under the legislation he was required to write to Mr Hunt again in three months time unless a date, time and place had been fixed for the commencement of the hearing and to ask Mr Hunt for a written statement as to the readiness of his applications. Again, if such a letter were issued to Mr Hunt, then he would be required to reply within 28 days. If Mr Hunt did not do so or, Mr Studman did not consider that the statement provided a reasonable explanation for not being ready to proceed at hearing, the applications could be dismissed (T14).
On 8 November 1999, as Mr Hunt had not proceeded in this matter, Mr Studman again wrote to him advising that he must provide a written statement within 28 days that he was ready to proceed or provide a reason why he was not. If the explanation was not considered satisfactory by the Registrar or there was no reply, the applications for review could be dismissed (T15).
By letter of 15 November 1999, Mr Hunt advised the Board that his representative had transferred to another RSL Sub-Branch (T16).
On 24 November 1999, Mr Studman again wrote to Mr Hunt and advised that his explanation for failure to proceed was satisfactory (T17). In this letter, Mr Hunt was once more informed that under the legislation, Mr Studman was required to write to Mr Hunt within three months unless a date, time and place had been fixed for the commencement of his hearing of review and further, Mr Hunt would be asked to provide a written statement as to his readiness for application which would require a reply within 28 days. Mr Studman would then consider the statement provided as to whether or not it contained a reasonable explanation for his not being ready to proceed at hearing (T17).
As Mr Hunt did not proceed with his applications for review within three months of the Board's last letter, Mr Studman sent a third notice to Mr Hunt on 8 March 2000 (T18). Mr Studman advised in this letter that as Mr Hunt had not proceeded within three months, he now required that under subsection 155AB(4) of the Act, Mr Hunt provide to the Registrar within 28 days a written statement that he was ready to proceed to hearing or provide a reason why he was not ready to proceed. Mr Hunt was warned that if a statement was not provided within 28 days after Mr Studman's notice or Mr Studman considered that the statement provided did not contain a reasonable explanation for failure to proceed to hearing, then the applications for review would be dismissed. Copies of Mr Studman's letter were sent to the Commission, the Department of Veterans' Affairs and Mr Hunt's representative, Mr W Murphy of the Entrance-Long Jetty RSL Sub-Branch.
On 14 April 2000, Mr Studman once more wrote to Mr Hunt and advised that as he had not received a written statement giving a reasonable explanation for Mr Hunt's failure to be ready to proceed to hearing, his applications for review were dismissed under subsection 155AB(5) of the Act (T19).
On 26 April 2000, the Tribunal received Mr Hunt's application for review to the Tribunal (T1) in relation to the Board's decision to dismiss his applications for review.
Evidence of Mr Warren James Murphy
Mr Murphy told the Tribunal that he had been an advocate for many years, most recently at the Entrance-Long Jetty RSL Sub-Branch but previously at Ettalong. Mr Murphy stated that he had been Mr Hunt's advocate for approximately two and a half years.
Mr Murphy explained that his work as an advocate involves him attending the Long Jetty RSL Club once or twice per week to pick up mail, interview clients and undertake any necessary paperwork. Sometimes he will visit the Gosford RSL Club to interview clients as it may be a more convenient location for them. Mr Murphy stated that he would have contact with the Board every six or eight weeks about various clients' applications for review. Mr Murphy advised the Tribunal that he is aware of the need to meet strict deadlines in relation to veterans' matters. Mr Murphy stated that he suffers from post traumatic stress disorder and this can cause him to be forgetful from time to time. He tries to minimise his memory problems by recording everything in his diary. Mr Murphy also wished the Tribunal to understand that at the time he transferred from the Ettalong RSL Club to Long Jetty, there had been difficulties with the receipt of correspondence concerning his cases.
In relation to the Board's decision that Mr Hunt had failed to provide an explanation in relation to his delay in proceeding to hearing, Mr Murphy told the Tribunal that he had received a phone call from Mr Hunt in March 2000, advising him that the Board had written on 8 March 2000, requesting his explanation for failure to proceed (T18). It was agreed that Mr Hunt and Mr Murphy should meet, which they did in mid March 2000. Mr Murphy and Mr Hunt met at a centrally convenient place for them to conduct their business, which was the car park of the Coles New World Supermarket. Here, Mr Murphy dictated a letter to Mr Hunt. Mr Murphy told the Tribunal that his usual procedure when he has completed writing an official letter is to copy it. In relation to the letter he and Mr Hunt wrote explaining Mr Hunt's failure to proceed, Mr Murphy informed the Tribunal that he did not have a copy of this letter - "there are a couple of copies missing", Mr Murphy stated.
Mr Murphy explained that the letter written by Mr Hunt and Mr Murphy advised the Board that there had been a delay in proceeding to hearing because Mr Hunt was waiting on a report from Dr Selwyn Smith, a Psychiatrist. This report was part of Mr Hunt's evidence required in support of his applications for review. Mr Murphy agreed that the letter was clearly addressed to the Department of Veterans' Affairs and not the Veterans' Review Board. It was Mr Murphy's practice, he told the Board, to use an address stamp and he sent his correspondence to the Department marked to the attention of "Jill Phillips", which he had done in this case. Mr Murphy stated that he had included the Board's reference number in the letter. Mr Murphy was unable to recall whether on this occasion he had sent one letter or a number of letters in the same envelope.
In answer to questions as to why Mr Murphy did not send Mr Hunt's letter of explanation to the Board's address as was required, Mr Murphy replied simply that he had an address stamp for the Department of Veterans' Affairs and having included the Board's reference in the letter, he expected that it would then have been forwarded to the Board.
Mr Murphy was questioned as to whether a handwritten letter date stamped 16 March 2000 by the Department of Veterans' Affairs, which requested that an account be paid and be reimbursed to Mr Hunt, was sent attached to another letter signed by Mr Hunt on 15 March 2000, authorising Mr Murphy to act as Mr Hunt's representative in relation to a letter from the Registrar of the Veterans' Review Board dated 8 March 2000. This authorisation had a handwritten notation, identified by Mr Murphy as his own writing, "att Jill Phillips" (attachment to Exhibit R1). Mr Murphy initially could not recall whether these letters were sent separately or together but later conceded that the request for reimbursement and the letter with authorisation and a report from Dr Selwyn Smith were probably sent at the same time. Mr Murphy was assisted in his recollection when Mr Cahill noted that the three documents, namely the request for reimbursement of an account, authorisation of Mr Murphy by Mr Hunt to be his representative and Dr Selwyn Smith's report, were stapled together.
Mr Murphy stated that prior to sending the letter explaining Mr Hunt's delay in progressing his matter at the Board, he had had a conversation with Dr Selwyn Smith's receptionist and had been advised that Dr Smith's psychiatric report had been sent. Further, Mr Murphy stated that in February 2000, he had attended the Board's offices to check if Dr Smith's report had been received. A female officer at the Board checked the file and informed Mr Murphy that the psychiatric report had not been received. Mr Murphy stated that he told the officer that he and Mr Hunt were still waiting for the report. Mr Murphy later recalled that before speaking to the female officer in February 2000, he had in fact spoken to Mr Yeo, Deputy Registrar, and on another occasion had spoken to a male officer. Mr Cahill pointed out to Mr Murphy that Dr Smith's report had been received by the Department, but Mr Murphy reiterated that he had not received the report at that time.
Evidence of Mr HuntMr Hunt agreed that he had received a letter form the Board dated 8 March 2000, requiring him to advise the Board within 28 days in writing that he was ready to proceed or reasons why he was not ready to proceed to hearing (T18). At that point, Mr Hunt phoned Mr Murphy and they arranged to meet.
Mr Hunt told the Tribunal that Mr Murphy dictated a letter to him in the Coles New World Supermarket Car Park which Mr Hunt then signed. Mr Hunt recalled the letter requested a stay or delay in the hearing of his applications for review until a report from Dr Smith had been received. Dr Smith's report was very important to his case, he told the Tribunal. Mr Hunt recalled that the letter requesting the delay and the reason for it was not very long. The letter was addressed to the Department of Veterans' Affairs. It was addressed in this way, Mr Hunt explained, acting on Mr Murphy's advice.
Mr Hunt told the Tribunal that he thought that Mr Murphy had been representing him for about ten months and prior to that, he had been represented by another advocate.
Referring to the request for reimbursement of an account, Mr Hunt noted that this was not his writing and he was nor sure when this letter was sent. Mr Hunt was asked whether his authorisation for Mr Murphy to be his advocate in relation to a Board letter of 8 March 2000, was sent separately or with the request for reimbursement. Mr Hunt was not sure whether these letters were sent together. He noted, however, that he and Mr Murphy posted the letter, which they had written together, explaining the reason for delay and requesting a further postponement. Mr Hunt confirmed that only one envelope was posted to the Department Veterans' Affairs following the letter of explanation being written.
Other Evidence
Statement of Mr James Yeo, Deputy Registrar of the Veterans' Review Board (New South Wales Registry)A statement of 14 September 2000, was provided by Mr James Yeo, JP, who at the time was Acting Registrar of the Board's New South Wales Registry. Mr Yeo's substantive position is as Deputy Registrar of the Board's New South Wales Registry, a position he has held since late 1989. Mr Yeo explained that from time to time he acts as the New South Wales Registrar when the Registrar is on leave.
Mr Yeo noted that when an applicant has been sent a notice requesting that the applicant provide a statement in writing as to failure to proceed and explaining the possibility of the dismissal of an application for review, the Board's computer record shows the particular application is currently in the "dismissal action" stage. This computer notation alerts any member of the Board's staff that any action on that application should not proceed. Further, all inquiries relating to applications in the dismissal stage are directed to either the Registrar or Mr Yeo. Staff are aware of this practice and, if they are unable to direct the inquiry to either Mr Studman or Mr Yeo, staff have been instructed that telephone advice of either readiness to proceed at hearing or not being ready to proceed does not comply with the requirements of the legislation. Applicants and/or their representatives are advised that a written statement in response to a notice under either subsection 155AA(4) or 155AB(4) of the Act is required.
Noting claims by Mr Murphy that he had spoken with Mr Yeo in about mid March 2000 and a female member of staff a week later, Mr Yeo stated that he did not recall speaking with Mr Murphy in relation to Mr Hunt's applications. If he had spoken with Mr Murphy, Mr Yeo advised that he would have reminded Mr Murphy of the need to provide a written statement and would have made a file note at the time to that effect. Mr Yeo noted that the Registry practice is to ensure that a record is noted of any telephone discussion that might have a bearing on processing of a particular case, especially in relation to an application currently under dismissal action. Any record taken is then written and placed on the Board's file or by way of entry in the Board's computer records in the "notes maintenance" window. Mr Yeo concluded that he had examined the Board's paper file relating to Mr Hunt's applications for review and there were no records of any conversations with Mr Murphy in relation to Mr Hunt's applications. Further, Mr Yeo had examined the Board's computer records in relation to the applications and similarly, there was no entry indicating any discussions with Mr Murphy (Exhibit R2).
SubmissionsMr Murphy submitted that Mr Hunt was a very honest and reliable man. While there may have been a breakdown in communication, however, between the Ettalong and Entrance RSL Clubs, Mr Murphy submitted that Mr Hunt still had replied to all correspondence required of him, addressing his replies to the Department of Veterans' Affairs. Despite Mr Hunt's March 2000 statement of reasons for delay being addressed to the Department of Veterans' Affairs, Mr Murphy submitted that there was a Board reference on Mr Hunt's correspondence and this should have caused the correspondence to be sent to the Board's office by the Department. Mr Murphy contended that a letter had been sent explaining Mr Hunt's delay in progressing the matter and it was not Mr Murphy's or Mr Hunt's fault that it was not received.
Mr Cahill for the Repatriation Commission noted the chronology of this matter. The notice of 8 March 2000 sent to Mr Hunt was the third notice advising of possible dismissal action. Previous notices had been sent to Mr Hunt by the Registrar of the Board on 13 July 1999 and 8 November 1999. There were satisfactory reasons provided by Mr Hunt to the Board for the first two notices. On the third occasion, however, no statement was received by the Board as is required by the legislation and in such circumstances, Mr Hunt's applications for review to the Board were properly dismissed, Mr Cahill contended.
An examination of the Departmental file revealed the only correspondence received by the Department at the relevant time was that of 16 March 2000, Mr Cahill submitted. The correspondence contained a request for Mr Hunt to be reimbursed for an account and an authorisation under section 155AC of the Act, authorising Mr Murphy to represent Mr Hunt in relation to the notice in the form of a letter 8 March 2000 (Exhibit R1).
Mr Cahill submitted that any discussions held between Mr Yeo, the then Acting Registrar of the New South Wales Board Registry, and Mr Murphy, on Mr Murphy's evidence to the Tribunal, took place in January or February 2000. Such discussions, if they did take place, are not relevant to the notice of 8 March 2000, Mr Cahill further submitted (T18).
Mr Cahill noted Mr Murphy's submission that there was a large flaw in the system which allowed Mr Hunt's letter to "float in the system" and not reach the Board as it should. Mr Cahill submitted that the Department of Veterans' Affairs was not the messenger or agent of the Board and had no obligation to redirect any incorrectly addressed mail to the Board, if indeed such mail was ever received.
Mr Cahill submitted that the Tribunal had very limited scope in this matter as the provisions of section 155AB are very strict. Even if a letter had been written and contained in the envelope which was received by the Department on 16 March 2000, the letter had not been sent to the Board and there was no written statement to the Board.
The Tribunal was referred to Re Roberts and Repatriation Commission (1992) 26 ALD 611, which was upheld in the Federal Court in Roberts v Repatriation Commission (1992) 39 FCR 420. In that case, it was held that Mr Robert's application had not been sent to the Board in time. The application had in fact been sent to the Department and was not forwarded to the Board until after the passing of the relevant time limit. The strict time limits were seen by the Federal Court to be mandatory and the Department was also found not to be an agent of the Board. The Tribunal was further referred to Re Adams and The Veterans' Review Board (1992) 16 AAR 307, in which it was held that the legislation was mandatory, both in form and in substance, and further that a record by an officer of oral statements by the Applicant's representative was not a compliance with the legislative requirement to "provide a written statement".
Mr Cahill further submitted that the dismissal powers are to be strictly construed and Mr Hunt or his representative had to write to the Board and not to the Department of Veterans' Affairs within 28 days of having received the notice of 8 March 2000. It was with regret and noting the detriment to Mr Hunt's applications for review to the Board, that Mr Cahill contended that the Tribunal had no alternative on the evidence before it but to affirm the decision to dismiss Mr Hunt's applications for review to the Board.
Mr Topperwien did not wish to make any further submissions at hearing.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal found Mr Hunt to be very honest and a credible witness. Mr Murphy was cooperative in the provision of his evidence. There were some inconsistencies in Mr Murphy's evidence and the Tribunal noted Mr Murphy's explanation that he had some difficulty remembering past details. This difficulty may, in part, be explained by his post traumatic stress disorder.
The facts of this matter are that a letter dated 8 March 2000, was sent to Mr Hunt by the Board requiring that within 28 days of receipt of the notice he must provide a written explanation to the Board as to why he had not proceeded with his applications for review within strict legislative time frames. The letter was sent to the correct address and Mr Hunt received it. Indeed, receipt of this letter caused a meeting to be arranged between Mr Hunt and his representative, Mr Murphy, in a mutually convenient meeting place of the Coles New World Supermarket carpark. Both Mr Hunt and Mr Murphy maintain that Mr Murphy dictated a letter to Mr Hunt which Mr Hunt subsequently signed. The letter contained a statement that the reason for delay in proceeding with Mr Hunt's applications for review related to him waiting for a report from Psychiatrist, Dr Selwyn Smith. Mr Hunt considered this report as most pertinent to his applications for review. The Tribunal was provided with evidence that there had been difficulty in arranging for the receipt of Dr Selwyn Smith's report. The Tribunal noted Mr Murphy's evidence that he had spoken to officers at the Board's office about waiting for this report and explaining that this was causing some delay in Mr Hunt progressing his applications for review. The Tribunal notes, however, that Mr Murphy's evidence at hearing was that these conversations took place in January and February 2000, before the notice of 8 March 2000 was sent to Mr Hunt.
There is no dispute and the Tribunal finds that were letters received by the Department of Veterans' Affairs on 16 March 2000 which contained a request for reimbursement of an account for Mr Hunt, an authorisation for Mr Murphy to act as Mr Hunt's representative in relation to the Board's notice of 8 March 2000 and a report of Dr Selwyn Smith. This correspondence was addressed to the Department of Veterans' Affairs, marked to the attention of "Jill Phillips". Mr Murphy maintains that this correspondence also contained a written explanation of the reasons for the delay in progressing Mr Hunt's matter to hearing. It is surprising to the Tribunal that the letter containing Mr Hunt's statement as to his delay in progressing his applications for review was addressed to the Department of Veterans' Affairs. On previous occasions, when Mr Hunt was providing explanations to the Board as to his failure to progress to hearing, he had addressed such correspondence directly to the Board's address. Mr Hunt stated that on the occasion, the subject of this review, he had relied on Mr Murphy addressing his written explanation to the Department of Veterans' Affairs.
What is also clear, is that no letter was received by either the Department of Veterans' Affairs nor the Board in the form of a written explanation for Mr Hunt's failure to progress his applications for review to hearing as required by the Board's notice of 8 March 2000. It may be that there was a separate letter that has never been received by the Department containing the written explanation. Inexplicably, while Mr Murphy has copies of other correspondence, he does not have a copy of the letter claimed to have been signed by Mr Hunt notifying of the explanation for his delay.
Whether or not an explanatory statement was written, in the terms described by Mr Hunt and Mr Murphy, the Tribunal is unable to make a finding one way or another. Even if a written explanation was prepared, the Tribunal finds that it was not provided to the Board. Considering the provisions of section 155AB of the Act, the letter from Mr Hunt, or Mr Murphy on his behalf, must have been sent to the Board. No such letter was ever received by the Board. Even if there had been a letter sent in the terms required, it is not sufficient, the Tribunal finds, for Mr Murphy to rely on the good will of the Department of Veterans' Affairs to forward on letters sent to it which are meant to have been addressed to the Board. Clearly, the Department is neither the agent nor an office for the Board. They are separate statutory and independent authorities. Administratively, there may be occasions when either body will readdress incorrectly addressed correspondence but there is no requirement to do so and as the Tribunal notes, section 155AB is strictly construed that the written advise must be to the Board.
In all the circumstances and for the reasons set out above, the Tribunal has decided that there is no evidence nor case law to allow it to refrain from applying the clear statutory obligation to dismiss Mr Hunt's applications for review to the Board in circumstances where neither Mr Hunt, nor Mr Murphy on his behalf, provided to the Board within 28 days a written statement as to Mr Hunt's readiness to proceed or reasons why he was not ready to proceed to hearing. In such circumstances, the decision under review is affirmed.
The Tribunal sincerely regrets the hardship this decision may cause Mr Hunt but concludes that the circumstances of this case highlight the careful attention to detail that applicants and their representatives must have to strict legislative requirements. These requirements, be they time limits or notification details are not arbitrarily arrived at but are statute based to ensure effective administration, fairness to all and the progression of matters to finality. Representatives hold particular responsibility for ensuring that amongst their many duties, there is compliance with statutory deadlines and requirements. In so concluding, the Tribunal is aware that advocates and representatives have huge and complex caseloads with many competing priorities. Case management in these circumstances is often difficult but this should not excuse inattention to strict legislative requirements. Those responsible for the training of representatives and advocates must also take steps to reinforce knowledge of the statutory obligations in the Veterans' Affairs jurisdiction in order that the provision of an effective service for clients is maximised.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: ...........[sgnd]...................................................................
Rikka Cullen, AssociateDate of Hearing 16 February 2001
Date of Decision 22 March 2001Representative for the Applicant Mr W Murphy, Advocate from the Entrance/Long Jetty Returned and Services League Sub-Branch
Counsel for the First Respondent, Mr B Topperwien, Instructed by the Veterans the Review Board Mr R A Kennedy, Director, Legal and
Information Services, Veterans' Review Board
Representative for Second Respondent, Mr Ivan Cahill, Director of Litigation, the Repatriation Commission Department of Veterans' Affairs
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