Hunt and Repatriation Commission (Veterans' entitlements)

[2022] AATA 565

Hunt and Repatriation Commission (Veterans' entitlements) [2022] AATA 565 (29 March 2022)

Division: Veterans' Appeals Division

File Number(s):      2020/2176

Re:Gordon Hunt

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:29 March 2022

Place:Melbourne

The Tribunal decides that it has jurisdiction.

......................[sdg]..................................................

Dr Stewart Fenwick, Senior Member

Catchwords

PRACTICE AND PROCEDURE – jurisdiction of Tribunal under Veteran’s Entitlement Act 1986 – application for review of decision assessing rate of disability pension – whether Veteran’s Review Board failed to conduct review – scope of Tribunal review considered – Tribunal has jurisdiction

Legislation

Administrative Appeals Tribunal Act 1976
Veteran’s Entitlement Act 1986

Cases
Bramwell v Repatriation Commission [1998] 158 ALR 623
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Cotterell v Repatriation Commission [2000] AATA 444
Gordon Hunt and Repatriation Commission [2016] AATA 554
Gordon Hunt and Repatriation Commission [2017] AATA 697
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Oldmeadow v Repatriation Commission [2013] FCA 423
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Budworth [2001] 116 FCR 200

Secondary Materials

Guide to the Assessment of Rates of Veteran’s Pensions

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

BACKGROUND

1. Mr Hunt lodged an Application on 15 April 2020 for review of a decision of the Veteran’s Review Board (the Board) dated 2 April 2020. The Board set aside a decision of the Repatriation Commission dated 1 June 2017 assessing Mr Hunt’s disability pension at 50% of the General rate, and in substitution decided that the disability pension be assessed at 100% of the General rate from and including 21 September 2011 (the Board’s decision)

2. Mr Hunt contends that the Board was in error in not finding that he was entitled to a disability pension calculated at in excess of 100% of the General rate. The Respondent, in contrast, contends that the Administrative Appeals Tribunal (the Tribunal) does not have jurisdiction. This is on the basis that the Board impermissibly divided Mr Hunt’s condition of Hereditary Neuropathy with liability to Pressure Palsy (HNPP) into two separate conditions, hereditary neuropathy (HN) and pressure palsy (PP). Accordingly, the Respondent submits the decision is invalid, and the Tribunal should consider the Board failed to conduct a review at all.

3. As explained in the Board’s decision (at [1] and [2]), the history of Mr Hunt’s matter goes back to a claim made on 21 December 2011 in which a different neurological condition was asserted. Mr Hunt appealed his matter to the Tribunal, differently constituted, and in a decision dated 29 July 2016,  the Tribunal varied the diagnosis of tomacubus neuropathy to HNPP and affirmed the decision (Gordon Hunt and Repatriation Commission [2016] AATA 554).

4. Mr Hunt’s matter came to the Board once more following a further decision of the Tribunal on 18 May 2017 that Mr Hunt’s claimed condition of HNPP was war-caused diseases (Gordon Hunt and Repatriation Commission [2017] AATA 697). This decision followed remittal by consent from the Federal Court on 8 December 2016.

5. Having determined that Mr Hunt’s contention that HNPP should be considered to be two conditions was correct (at [10] and [17]), the Board made an impairment assessment using the Guide to the Assessment of Rates of Veteran’s Pensions (the Guide) allocating impairment points using Table 15.4 for HN and PP, separately (at [16]). The Board also allocated points to HNPP under Table 15.5 (at [17]). It went on to make a combined impairment assessment using Table 18.1 (at [18]).

6. Throughout consideration of Mr Hunt’s claim to date, HNPP has been understood as a single war-caused condition.

   SUMISSIONS

7. The Respondent provided two written submission on jurisdiction. The second addresses in some detail the use of the Guide by the Board. The Tribunal was also provided with a copy of the Guide following discussion of this issue in a telephone directions hearing held on 7 March 2022.

8. At that hearing the Respondent submitted, in essence, that the Respondent and the Board were bound by the prior finding of the Tribunal as to the existence of a war-caused condition. The effect of the Board’s approach was to have varied the nature of the relevant war-caused condition.

9. The result, it was contended, is that the decision under review had not in fact been reviewed at all, and therefore the jurisdiction of the Tribunal was not engaged. It is a precondition that there be a review before Mr Hunt can exercise his entitlement to seek review before the Tribunal under s 175 of the Veteran’s Entitlement Act 1986 (the VE Act).

10. Further, the Respondent contended that the Tribunal should remit the matter to the Board in order that a review may be conducted. When asked what mechanism this might take given that the premise of the application was lack of jurisdiction, the Respondent’s representative suggested it would not be in the form of a ’remittal with a capital R’.

11. In respect of what I will describe as the ‘Lawlor principle’ (which I return to below), the Respondent argued that there are instances in which the Tribunal may conduct a review despite some legal error, however this was not such a situation.

12. The Respondent’s written submissions refer to Cotterell v Repatriation Commission [2000] AATA 444 (at [17]) for the proposition that decision-makers may not ‘reconsider, ignore or reverse the determination that the condition is war caused’. Consequently, in dividing Mr Hunt’s HNPP the Board committed jurisdictional error, ‘as the Board misconceived its function to the extent of its powers in determining the rate of pension payable, which rendered the Board decision invalid’ (citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).

13. Mr Hunt’s representative provided written submissions, and a copy of the medical report relied upon by the Board in its decision. Principally, it was contended at the directions hearing that the Board had conducted its review pursuant to its power of review under s 135 of the VE Act. In doing so, the Board was exercising all of the powers and discretions conferred upon the Respondent under the VE Act, pursuant to s 139(3).

14. It was submitted that the Respondent’s contention as to jurisdiction is misconceived in that it is directed at the Board’s reasoning, rather than its decision (following Bramwell v Repatriation Commission [1998] 158 ALR 623 (Bramwell), cited in Oldmeadow v Repatriation Commission [2013] FCA 423). The Tribunal may, therefore, conduct a review and arrive at the correct or preferable decision in respect of the applicable pension rate; it is open to the Respondent to challenge the approach taken by the Board in a review.

15. With respect the Board’s use of the medical opinion, it was submitted that ‘the Board did no more than ensure its assessment had regard to the incapacity resulting from both components of the accepted condition’ (following Repatriation Commission v Budworth [2001] 116 FCR 200 and Repatriation Commission v Bawden [2012] FCAFC 176). The medical opinion had the effect of identifying multiple symptoms within the accepted condition.

16. Finally, it was contended that the Respondent’s proposal that the Tribunal remit Mr Hunt’s matter poses real problems. The Board had completed its work and a finding against Mr Hunt on jurisdiction would leave him without a legal avenue to pursue his matter further.

    CONSIDERATION

17. In Bramwell, Weinberg J (at 631) describes the role of the Tribunal in undertaking merits review of a decision of the Board as wide, stating that it permits departure from any previous reasoning. His Honour goes on to state the ‘clearly established’ position that any preliminary ruling or finding by the Tribunal is not a ‘decision’ within the terms of the Administrative Appeals Tribunal Act 1976 (the AAT Act).

18. This second point is relevant in the context of the Respondent’s submission about jurisdiction. This is because the Tribunal appears to be invited here to come to a decided view about the manner in which the Board performed its review, which task would be outside the Tribunal’s powers.

19. Moreover, the Respondent has not identified a solution to the contradiction inherent in its contention that the Tribunal should both find that it lacks jurisdiction, and also remit Mr Hunt’s matter for reconsideration. For this reason alone, the Respondent’s application must fail.

20. Whereas the nature of a decision of the Tribunal is narrowly defined, this is not the case with the interpretation of the kinds of decision from which an appeal may arise. In Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 (at [12]-[14]) Bowen CJ considered different interpretations of the Tribunal’s authority to deal with ‘decisions’. His Honour observes that the AAT Act was ‘clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against [a] decision on questions of fact and law’. Bowen CJ concludes that the Tribunal can deal with decisions made in the purported exercise of a statutory power (at [16]).

21. Accordingly, I am not persuaded by the Respondent’s contention that the nature of the error contained in the decision of the Board is other than one that can be appropriately addressed in the course of a hearing before the Tribunal.

22. For completeness, I note the Guide refers in the singular to ‘accepted condition’ (p 2): ‘an injury or disease that has been determined under the Act to be war-caused’. However it also states (p 5), in referring to the subject of assessment: ‘In making an assessment the clinical features of war-caused or defence-caused injuries or disease are to be taken into account’.

23. On its face, therefore, the Guide may well admit a process by which elements of a condition might be taken into consideration. However, given the finding made in respect of jurisdiction it is not necessary to consider this issue further; it would form part of a Tribunal review.

    DECISION

24. For the reasons given the Tribunal decides that it has jurisdiction.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...[sgd]....................................................................

Associate

Dated: 29 March 2022

Date of interlocutory hearing:	7 March 2022
Date final submissions received:	18 March 2022
Counsel for the Applicant:	Michael Jorgensen
Solicitors for the Applicant:	Williams Winter Solicitors
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor