IAN GROUNDWATER and and REPATRIATION COMMISSION

[2009] AATA 233

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4692

VETERANS’ APPEALS DIVISION		)
Re		IAN GROUNDWATER

Applicant

And PRINCIPAL MEMBER OF THE VETERANS’ REVIEW BOARD

Respondent

And REPATRIATION COMMISSION

Joined Party

DECISION

Tribunal Deputy President P E Hack SC

Date8 April 2009  

PlaceBrisbane (heard in Maryborough)

Decision The Tribunal sets aside the decision under review.

.................[Sgd].......................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – veteran’s application for review by Veterans’ Review Board, of decision that impairments are non-service related, dismissed for failure to proceed – veteran awaiting outcome of parliamentary inquiry – reasonable excuse – decision under review set aside.

Veterans’ Entitlements Act 1986 (Cth) s 155AA(7)

Shi v Migration Agents’ Registration Authority (2008) 82 ALJR 1147

REASONS FOR DECISION

8 April 2009 Deputy President P E Hack SC    

Introduction

1.The applicant, Mr Ian Groundwater, seeks a review of a decision of the respondent, the Principal Member of the Veterans’ Review Board, made in reliance upon s 155AA(7) of the Veterans’ Entitlements Act 1986 (Cth), to dismiss an application made by Mr Groundwater to that Board for a review of a decision of the Repatriation Commission.

2.The Commission has been joined as a party and has acted as contradictor in the proceedings. The Principal Member, quite properly, has not taken an active role in the proceedings but has provided a helpful chronology and has drawn my attention to some authorities that have potential significance.

Factual background

3.There is no dispute about the background to the matter. The evidence in the case was entirely documentary and what follows is drawn from those documents. Mr Groundwater rendered “defence service”, as that term is used in the Act, between February 1991 and April 1994. Mr Groundwater was involved in what has become known as the F-111 deseal/reseal maintenance programme and says that when working within the fuel tanks of those aircraft he was exposed to toxic chemicals that have occasioned the health problems of which he now complains.

4.In August 2002 Mr Groundwater made a claim to the Commission for acceptance of conditions he described as “Anxiety/Depression”. His claim was rejected by the Commission in February 2006. The Commission considered that the appropriate medical diagnoses for his claim were dementia due to head trauma, alcohol abuse and substance abuse. Its delegate was reasonably satisfied, having regard to the Statements of Principles, that the conditions were not related to Mr Groundwater’s eligible service.

5.On 8 May 2006 Mr Groundwater lodged an application with the Board seeking a review of the Commission’s decision. In his application he nominated Mr Tom Jehn from the Vietnam Veterans’ Association, Hervey Bay Sub-Branch, to be his representative in matters involving the Board. On 22 June 2006 the Board wrote to Mr Jehn enclosing a “Certificate of Readiness for Hearing” which he was asked to return to the Board once all the material on which Mr Groundwater intended to rely had been forwarded to the Board and the matter was ready for hearing.

6.On 21 November 2006 the Board wrote to Mr Groundwater, with a copy to Mr Jehn, pointing out that no advice had been received about the readiness for hearing of the application and pointing out that the Board would like to deal with the matter as soon as possible. He was asked to contact his representative and have the certificate of readiness returned or, if the matter was not ready to proceed, to advise when it would be ready. The Board received no response to that letter or similar letters sent to Mr Groundwater (and Mr Jehn) on 7 February 2007, 11 May 2007, 6 August 2007, 19 November 2007 and 6 February 2008.

7.On 21 August 2008 the Acting Registrar of the Board, as the delegate of the Principal Member, wrote to Mr Groundwater (again with a copy to Mr Jehn) pointing out that more than two years had elapsed from the time of lodgement of the application form review. The letter requested Mr Groundwater, pursuant to s 155AA(4) of the Act, to provide to the Board a written statement that he was ready for hearing or reasons why he was not ready. He was informed that the written statement had to be received within 28 days after receipt of the letter and that if it was not received, or if the statement did not provide a reasonable explanation why the matter was not ready to proceed, “the application must be dismissed and cannot be reopened”.

8.Unfortunately Mr Jehn was absent on holidays when this letter was received and Mrs Groundwater was unable to contact him. She completed the Board’s Form 1, “Response to a s 155AA notice” saying that the matter was not ready to proceed “pending outcome of parliamentary enquiry [sic] into deseal/reseal”. The inquiry spoken of is one conducted by the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade into the RAAF’s F-111 Deseal/Reseal maintenance programme.

9.While the response was received from Mrs Groundwater within the time limit, the Acting Registrar (again as delegate of the Principal Member) determined that it did not constitute a reasonable excuse and on 25 September 2008 decided to dismiss Mr Groundwater’s application pursuant to s 155AA(7) of the Act. It is that decision that is the subject matter of the present application.

The legislation

10.The Act, in s 155AA, makes reference to a “standard review period”, that is the period of two years after receipt of an application for review. Where, as here, that period has expired and 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 that the applicant provide to the Principal Member, within 28 days after receiving the notice either a written statement indicating that the applicant is ready to proceed at a hearing or a written statement explaining why the applicant is not ready to proceed at a hearing. The letter to Mr Groundwater dated 21 August 2008 constituted that notice. Section 155AA deals with the consequences of such a notice in these terms:

“(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.”

The scope of the present proceedings

11.It seems to me important, at the outset, to emphasise the decision being reviewed. It is the decision to dismiss the application based upon a conclusion that the statement provided by Mr Groundwater did not contain a reasonable excuse for the failure to be ready to proceed. Because the legislation focuses upon the terms of the statement rather than the larger issue of whether an applicant can now demonstrate a reasonable excuse for not being ready, s 155AA(7) of the Act seems to me to fall within that limited category of cases where the Tribunal’s consideration is confined. The matter is somewhat analogous to that determined by the High Court in Shi v Migration Agents’ Registration Authority[1] where the Court considered the point of time at which a decision about fitness and propriety was to be made. Kirby J spoke of the need to consider the general provisions of the Administrative Appeals Tribunal Act 1976 (Cth) and the specific provisions of the particular statute creating the right of review so that a “correct decision [can] be arrived at as to the ambit of the review in question and the manner in which it should be conducted”[2].

[1]        (2008) 82 ALJR 1147.

[2]At [25]. See also at [101] per Hayne & Heydon JJ and at [142] per Kiefel J, with whom, on this point, Crennan J agreed.

12.Thus, in my view, I am limited to determining whether the fact of the Parliamentary enquiry and the potential for material helpful (or harmful) to Mr Groundwater’s case arising from it, provided a reasonable excuse for Mr Groundwater’s application to the Board not being ready to proceed in September 2008. The determination of the question is not limited to the materials before the delegate however, in my view, it is not open to me to consider, for example, whether there was further medical evidence that desirably should be obtained before the proceedings before the Board. I do not accept Mr Jehn’s argument to the contrary.

13.I do accept, as Mr Jehn submits, that I ought to have regard to medical reports that were available to the Commission and considered in January 2008 as part of the process of determining not to change the original decision in reliance on s 31 of the Act although in the result nothing turns on the contents of those reports.

The parliamentary inquiry  

14.In a media release of 30 May 2008 announcing the inquiry the Minister for Defence  referred to the inquiry examining:

·the adequacy of eligibility periods, ex-gratia payments and health benefits provided to date; and

·the decision-making process relating to ex gratia payments and compensation claims.

Given Mr Groundwater’s reliance upon the inquiry it is as well to set out the inquiry’s terms of reference in full. They are as follows:

“Terms of Reference for Parliamentary Inquiry into claims for compensation from former F-111 Deseal/Reseal workers and Government responses

The Committee will investigate and review claims for compensation from former F-111 deseal/reseal workers including the Commonwealth’s response to the health and support needs of former F-111 Deseal/Reseal workers and their families. The Committee should ascertain whether the response was adequate, whether it was consistent with the findings of the Study of Health Outcomes in Aircraft Maintenance Personnel (SHOAMP) and whether the overall administration and handling of the program was adequate.

Terms of Reference

The Inquiry will consider the adequacy and equity of the Health Care Scheme in meeting the health and support needs of participants and their families and whether this was consistent with the SHOAMP findings. Matters to be considered will include, but not be limited to:

·The differences, and transitional arrangements, between the interim health scheme and the final Health Care Scheme;

·The timing of cessation of access to the Health Care Scheme;

·The range of treatment and health benefits provided under the Health Care Scheme;

·Whether the current Health Care Scheme is consistent with the range of treatment and health benefits available to persons under other Health Care Schemes;

·The adequacy of arrangements under the Health Care Scheme affected family members (including widows) or serving members; and

·If the Health Care Scheme is not considered to be an adequate response to the health and support needs of participants and their families, consider and report on possible alternatives that are considered to be adequate in light of the findings of SHOAMP and other Health Care Schemes.

The Inquiry will consider the adequacy and equity of the financial element of the Ex Gratia Scheme and whether it was consistent with (i) the findings of SHOAMP, (ii) the Health Care Scheme response (iii) the Tier definitions, and (iv) one off payments to other veteran groups. The Inquiry will consider, but not be limited to:

·Whether the lump sums available under the ex gratia scheme were appropriate;

·Whether the lump sums available were appropriate given the findings of the SHOAMP;

·Whether the lump sums, when considered along with the benefits available under the Health Care Scheme, were appropriate;

·Whether the lump sums available under the ex gratia scheme were appropriate, when considered along with the full range of benefits and compensation available under other Commonwealth or State statutory schemes;

·Whether the lump sums were consistent with the definitions of Tiers of participants;

·Whether the lump sums were consistent with other one-off payments made to veteran groups;

·When assessing the question of adequate remedies whether regard should be given to the establishment of a dedicated administrative assessment and settlement scheme, and

·If the lump sum available under the ex gratia scheme are not considered to be financially adequate, discuss what compensatory payment would be appropriate in light of the SHOAMP findings, other one-off payments made to veteran groups, and the full range of benefits and compensation available under other Commonwealth and State statutory schemes or common law damages available under Australian law

The Inquiry will consider whether the overall handling and administration of ex gratia and compensation claims was appropriate, timely and transparent for both participants and their families. The Inquiry will consider whether, but not be limited to:

·Cross agency cooperation was effective;

·The documentation and records held by both Agencies as they relate to Deseal/Reseal activities was adequate;

·The standard of evidence required to substantiate a claim was reasonable and, if not, whether alternative standards of proof may be used when making an eligibility determination;

·There has been equitable treatment of service personnel, public servants, civilian employees and contractors involved in Deseal/Reseal activities;

·Staffing resources were adequate to produce a timely result;

·There were unreasonable delays in the process, taking into account the complex nature of issues; and

·The overall handling and administration of ex gratia and compensation claims was appropriate and timely.”

15.Mr Groundwater relied upon the recent statement of the inquiry chairperson, the Hon Arch Bevis, that it was intended to release “several secret Defence reports” that were said to reveal that health problems among mechanics in Mr Groundwater’s position were more widespread than had previously acknowledged. It was said that one report referred to “a previously unknown and toxic sealant that was used in the F-111’s.” Another report, it was said, “found high levels of clinical depression and anxiety among the families of RAAF workers”.

16.If the question to be addressed is whether it was reasonable to rely upon the pending parliamentary inquiry as a basis for deferring the proceedings before the Board then it seems to me that that question is to be approached by considering how that inquiry might affect the outcome of the Board’s proceedings. I say “might” advisedly because I consider that the matter is to be tested by reference to the possibility of an affect on the outcome rather than the probability of an affect. Even allowing for the requirements of speed and efficiency imposed on the Board by the statute it goes too far to require an applicant to demonstrate the probability of obtaining material as a basis of further deferring proceedings before the Board.

17.Mr Topperwien, for the Commission, submitted that the inquiry gave some hope to Mr Groundwater’s claim but was too speculative to provide a reasonable excuse for deferring the proceedings. Thus, he submitted, the decision to dismiss was correctly made and ought be affirmed as the Parliamentary inquiry, and the potential for Mr Groundwater to benefit from it, did not provide a reasonable explanation for the failure to be ready to proceed to hearing.

18.I consider, on balance, that that argument cannot be accepted.

19.It is no doubt right to say that there is a degree of speculation in Mr Groundwater’s case as it is right to say that the outcome of the inquiry cannot have any direct effect on Mr Groundwater’s case. But it nevertheless seems to me to be arguable, having regard to the inclusive nature of the inquiry’s terms of reference and the chairperson’s recent statements, that evidence may soon emerge from the Parliamentary inquiry that might more readily permit Mr Groundwater to demonstrate a link between his eligible service and his condition. Given that the recent report suggests that some previously undisclosed toxin was used it seems to me to be reasonable to permit Mr Groundwater to at least receive and consider the outcome of the inquiry before requiring him to present his case to the Board. Absent the recent press statement by the chairperson of the Inquiry I would have been minded to accept the Commission’s submission that the potential result of the inquiry was too speculative however that statement suggests that the inquiry’s results may have an adjectival relevance to Mr Groundwater’s proceedings.

20.Whether a further delay after that would be reasonable is not a question that arises at this juncture. The delegate will be required to consider the issue at three monthly intervals and delays beyond the handing down of the findings will be dependant upon whether the findings are capable of providing assistance to Mr Groundwater in his case before the Board.

Conclusion

21.It follows that I would set aside the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .........................[Sgd]...............................................
  Melissa Hamblin, Associate

Date of Hearing  3 March 2009
Date of Decision  8 April 2009
Advocate for the Applicant       Mr T Jehn
The Respondent made written submissions
Advocate for the Joined party   Mr B Topperwien