Hunt and Repatriation Commission - [2001] AATA 224

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunt and Repatriation Commission

Details

AGLC: Hunt and Repatriation Commission [2001] AATA 224
Case: [2001] AATA 224
Decision Date: 22 March 2001

CaseChat Overview and Summary

The case of Hunt and Repatriation Commission involved Mr Hunt, an applicant, and the Veterans' Review Board, an administrative tribunal. The central dispute was whether the Board had the authority to dismiss Mr Hunt's application for review under subsection 155AB(5) due to his failure to provide a written explanation for his delay in proceeding to the hearing. Mr Hunt's advocate, Mr Murphy, had attempted to explain the delay on Mr Hunt's behalf, but the explanation was not provided in writing as required by the legislation. The case was heard by the Federal Court of Australia.

The key legal issues addressed by the court were whether the Veterans' Review Board had the authority to dismiss Mr Hunt's application for review due to his failure to provide a written explanation for the delay, and whether the Board's procedural requirements were properly followed. Specifically, the court had to determine if the Board's requirement for a written explanation was lawful and whether Mr Hunt's advocate's efforts to communicate the reason for the delay were sufficient under the circumstances.

The Federal Court of Australia found that the Veterans' Review Board had the authority to dismiss Mr Hunt's application for review due to his failure to provide a written explanation for his delay. The court held that the Board's requirement for a written explanation was consistent with the statutory provisions and necessary to ensure proper procedural fairness. The court further found that Mr Murphy's efforts to explain the delay, while well-intentioned, did not satisfy the Board's requirement for a written explanation. The court emphasised the importance of strict adherence to procedural requirements in veterans' matters to ensure consistency and fairness in decision-making.

As a result of the court's decision, the appeal by Mr Hunt against the Board's decision to dismiss his application for review was dismissed. The court upheld the Board's decision, confirming that the Board had the authority to dismiss an application for failure to provide a written explanation for delay, and that Mr Hunt's advocate's efforts to explain the delay did not meet the Board's requirements.

Orders

Orders of the court

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Background

Background to the litigation

Section 155A allows the Tribunal to review a decision of the Principal Member to dismiss an application under subsection 155AB(5).Background The following information is provided by way of background and the facts contained within are not in dispute. 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.

Evidence

Evidence Before The Court

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 EvidenceStatement 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).Submissions

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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