Johnson and Veterans' Review Board
[2004] AATA 242
•10 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/647
VETERANS' APPEALS DIVISION ) Re KEITH DOUGLAS JOHNSON Applicant
And
VETERANS' REVIEW BOARD
Respondent
DECISION
Tribunal Deputy President Jarvis Date10 March 2004
PlaceAdelaide
Decision The Tribunal dismisses the application under s 42B of the Administrative Appeals Tribunal Act1975, and further directs that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind that would seek to have the effect of:
(a) reinstating the application to the Tribunal in matter number S1999/234;
(b) seeking a review by this Tribunal of the action taken by the Registrar of the Veterans’ Review Board on 11 March 1999, pursuant to s 155AB(5) of the Veterans’ Entitlement Act 1986, in dismissing the application previously made by the applicant to that Board.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – practice and procedure – dismissal by Registrar for want of prosecution of application to Veterans’ Review Board – construction of instrument of delegation – previous determination of AAT to affirm Registrar’s dismissal – AAT thereupon functus officio – refusal by Veterans’ Review Board to reinstate application - further application for review dismissed under s 42B of AAT Act.
Veterans’ Entitlements Act 1986 s 155AA, s 155AB, and ss 166(1) and 166(1A)
Administrative Appeals Tribunal Act 1975 s 42A(4) and s 42B
Acts Interpretation Act 1901 s 20
Johnson v Veterans’ Review Board & Anor (2002) 71 ALD 16
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Chandler v Alberta Association of Architects (1989) 2 SCR 848
Re Williams and Australian Electoral Commission & The Greens (1995) 38 ALD 366
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
REASONS FOR DECISION
10 March 2004 Deputy President Jarvis Introduction
1. On 11 March 1999 the Registrar of the Veterans’ Review Board (“VRB”) dismissed an application made by the applicant to review the rejection of his claim for a pension in respect of incapacity from “vertigo : epilepsy”, which symptoms were subsequently diagnosed as “neuro-behavioural disorder”. The Registrar acted under s 155AB(5) of the Veterans’ Entitlements Act (“VE Act”). This section in effect empowers the Principal Member of the VRB to dismiss an application for want of prosecution. It provides that the Principal Member must dismiss an application where the hearing of the review has not finished within the “extended review period”, or where the matter has not been set down for hearing within the extended review period. The extended review period applies where the Principal Member has granted an extension of time beyond the standard review period, being two years after the date of lodgement of an application for review (see ss 155AA(1) and 155AB(1) of the VE Act).
2. The Principal Member delegated his powers under s 155AB(5) of the VE Act to the Registrar pursuant to a power of delegation in s 166(1A) of the VE Act. The applicant asserts that the actions of the Registrar were not authorised by the terms of the instrument of delegation pursuant to which the Registrar purported to act.
3. The applicant was unrepresented. Mr Bruce Topperwien, an executive officer of the VRB, appeared for the respondent. The Tribunal received in evidence the Instrument of Delegation pursuant to s 166(1A) of the VE Act dated 17 December 1992 issued by Mr Gallagher (exhibit A1), and a copy of a bundle of documents prepared by the respondent (exhibit R1).
Issue
4. The respondent moved for the dismissal of the applicant’s application:
(a)on the grounds that this Tribunal has no jurisdiction in relation to the matter the applicant seeks to have reviewed;
(b)under s 42B of the Administrative Appeals Tribunal Act (the “AAT Act”) on the grounds that the application is frivolous or vexatious; or
(c)under s 42A(4) of the AAT Act “if the Deputy Registrar has issued a notice under s 42A(4) and the 14 day period under Regulation 8A has expired”.
The issue for determination is whether this motion should be granted, and this will in turn involve an examination of each of the above contentions and the terms and effect of the instrument of delegation under which the Registrar acted in dismissing the 1996 application.
Background
5. The facts which have given rise to the present application are conveniently summarised in the very helpful written submission lodged by Mr Topperwien in support of the respondent’s motion to dismiss the present application. This summary of facts is based on the documentary material in exhibit R1. The summary was not disputed by the applicant, and the application before me was argued on the basis that it is correct. The relevant facts as appearing from the summary are as follows.
5.1On 20 March 1996 the applicant made a claim for pension in respect of incapacity from “vertigo : epilepsy”. This condition was subsequently diagnosed as “neurobehavioural disorder”.
5.2On 28 March 1996 a delegate of the Repatriation Commission rejected that claim (exhibit R1, page 22).
5.3The applicant applied for a review by the VRB of that decision by letter dated 26 April 1996, received on 29 April 1996 (exhibit R1, page 25).
5.4On 19 October 1998, a Registrar of the Board (a delegate of the Principal Member) sent a notice to the applicant under s 155AA(4) of the VE Act (exhibit R1, page 26), and on 22 October 1998, the applicant sent a response to that notice.
5.5On 2 November 1998, the Registrar of the Board sent an “extension notice” (see s 155AA(6) of the VE Act) to the applicant (exhibit R1, page 27).
5.6On 4 February 1999, the Registrar of the Board sent a notice to the applicant under s 155AB(4) of the VE Act asking the applicant to provide, within 28 days, a written statement indicating that he was ready to proceed at a hearing, or explain why he was not so ready (exhibit R1, page 28).
5.7No valid response was received to the notice of 4 February 1999, and on 11 March 1999, the Registrar dismissed the application for review under s 155AB(5), being a section which empowers the Principal Member of the VRB, in effect, to dismiss an application for want of prosecution (exhibit R1, page 33).
5.8On 9 June 1999, the applicant made a claim for pension in respect of post traumatic stress disorder (“PTSD”), and a further claim in respect of vertigo and epilepsy. On 30 September 1999, a delegate of the Commission accepted post traumatic stress disorder as war-caused with effect from 9 March 1999. On 8 September 2000, a delegate of the Commission accepted epilepsy as defence-caused with effect from 9 March 1999. On 27 April 2001, by consent, this Tribunal accepted vertigo as war-caused and increased pension to the special rate with effect from 9 March 1999 (exhibit R1, page 70).
5.9On 11 June 1999, the applicant applied to this Tribunal for an extension of time for review of the Registrar’s decision to dismiss his 1996 application. The application for an extension of time was granted on 8 October 1999 (see Re Johnson and Veterans’ Review Board & Anor [1999] AATA 745) (exhibit R1, page 37)).
5.10On 12 April 2000, this Tribunal affirmed the decision under review (i.e. the Registrar’s decision to dismiss the 1996 application) (see Re Johnson and Veterans’ Review Board & Anor (2000) 31 AAR 121) (exhibit R1, page 54).
5.11On 1 May 2000, the applicant commenced an action in the Federal Court of Australia under s 44 of the AAT Act (exhibit R1, page 64). In June 2000 this was discontinued.
5.12On 23 August 2002, the applicant commenced an action in the Federal Court of Australia seeking, in effect, to set aside the decision of the Registrar on 11 March 1999 dismissing the applicant’s 1996 application for review, and the decision of this Tribunal on 12 April 2000 affirming the dismissal by the Registrar, so that the applicant’s original application for review of the rejection of his 1996 claim could be reinstated. On 13 December 2002, Mansfield J in the Federal Court dismissed the action (Johnson v Veterans’ Review Board & Anor (2002) 71 ALD 16) (exhibit R1, page 75), and subsequently awarded costs against the applicant (Johnson v Veterans’ Review Board & Anor (No.2) [2003] FCA 39). On 15 January 2003, the applicant lodged an appeal to the Full Federal Court (exhibit R1, page 95). On 9 May 2003, the Full Federal Court dismissed the applicant’s appeal against the judgment of Mansfield J, and awarded costs against the applicant (Johnson v Veterans’ Review Board & Anor (2003) 74 ALD 61) (exhibit R1, page 100).
5.13On 11 November 2003, the applicant wrote to the Principal Member of the Board seeking reinstatement of his 1996 application (exhibit R1, page 111). On 14 November 2003, the Principal Member replied, through the Executive Officer of the Board, informing the applicant that he had no power to reinstate the application and that the reason the applicant gave for reinstatement had already been considered and rejected by Mansfield J in the Federal Court at paragraphs 31 to 34 of his judgment in Johnson v Veterans’ Review Board & Anor (supra) (exhibit R1, page 112).
5.14On 30 December 2003 the Tribunal received from the applicant a document headed “Appeal against Illegal Correspondence”. This document comprised an affidavit sworn by the applicant on 25 December 2003, and includes the following paragraphs (exhibit R1, page 113).
“1.In a Letter Dated 14 November 2003, the Veterans’ Review Board (VRB), states that Mr Smith Registrar SA had the necessary delegation and authority to sign as Delegate of the Principle Member.
2. In a letter Dated 12 December 2003, In answer to my application under the Freedom of Information Act 1982, the (VRB), contends that a Delegation of Principal Member Gallagher dated 17 December 1992, covers the Operation Manual dated 1 March 1999, purported to be issued by Principal Member Brigadier Rolfe.
3. My contention is that a delegation of Principal Member Gallagher of 17 December 1992, he States “provided that such powers shall only be exercised by persons in accordance with directions issued by me from time to time.”. It is inconceivable that that delegation could be used to cover an operation manual issued on 1 March 1999, nearly two years after he Retired as Principal Member of (VRB).
4. I contend that the (VRB), at My AAT hearings of 8 October 1999, S1999/234 and 12 April 2000, S1999/234, by stating that the Registrar in his capacity as delegate of the Principal Member, for which no delegation or authority existed on 11 March 1999, mislead the AAT.
5. I therefore request that this matter be bought (sic) before the AAT to make an informed decision as to the validity of the two prior hearings.”
6. The “appeal” lodged by the applicant to this Tribunal accordingly contains a request to “make an informed decision as to the validity” of the two prior hearings of this Tribunal on 8 October 1999 and 12 April 2000 (exhibit R1, page 113, paragraph 5). The first “hearing” referred to is presumably the decision of this Tribunal referred to in paragraph 5.9 above, in which the Tribunal granted the extension of time sought by the applicant. No suggestion was made by either party in the hearing before me that this decision should be re-opened, and as the decision was favourable to the applicant, I see no basis for any request by the applicant to review this decision or to re-open this aspect.
7. The second of the two prior “hearings” in this Tribunal referred to in paragraph 5 of the applicant’s “appeal” apparently refers to the hearing which gave rise to the decision on 12 April 2000 in which the Tribunal affirmed the decision of the Registrar to dismiss the 1996 application for review under s 155AB(5) of the VE Act. (See paragraph 5.10 above). It is, of course, not competent for an applicant to this Tribunal to apply for review of an earlier Tribunal decision, but the applicant’s “appeal” appears to have been intended to seek a review of the action of the Registrar on 11 March 1999 to dismiss the application for review, or alternatively to seek a review of the action of the VRB on 14 November 2003 in refusing the application to reinstate the applicant’s application before the VRB (see paragraph 5.13 above).
8. As mentioned in paragraph 2 above, the applicant’s challenge to the Registrar’s dismissal of his 1996 application is based on his assertion that the Registrar was not authorised by the terms of the relevant instrument of delegation to take the action he did. It was accepted by both parties that the relevant instrument of delegation was a delegation dated 17 December 1992, being exhibit A1. Under this instrument, the then Principal Member, a Mr Gallagher, delegated to “those persons who, from time to time, hold a position designated as Registrar of the Veterans’ Review Board, my powers under sections 155AA and 155AB of that Act, provided that such powers shall only be exercised by those persons in accordance with directions issued by me from time to time” (emphasis added). Mr Gallagher ceased to be the Principal Member of the Board on 8 April 1997 and Brigadier Rolfe then took up that position.
9. Mr Gallagher had issued “dismissal of applications procedures” on 21 July 1992 (pages 15 - 21 of exhibit R1), but on 1 March 1999 these procedures were replaced with a new operations manual issued by Brigadier Rolfe (pages 29 - 32 of R1). Brigadier Rolfe did not, however, issue a new delegation to registrars at that time, and in fact did not do so until 15 January 2001 (exhibit R1, page 69). The applicant pointed out that under paragraph 6.2.5 of the new policy manual, registrars were required to sign relevant notices and correspondence as “delegate of the Principal Member”, whereas there was no such requirement under the previous procedures, and in earlier letters issued under s 155AA and s 155AB of the VE Act, the Registrar signed as “Registrar” rather than as “delegate of Principal Member”. The applicant further pointed out that the Registrar signed the letter of 11 March 1999 as “Delegate of the Principal Member of the Board” (exhibit R1, page 33). The applicant therefore submitted that when the Registrar dismissed his application for review under s 155AB(5), the Registrar was acting pursuant to the new policy manual, and this was in breach of the proviso to the delegation by Mr Gallagher that the Registrar’s delegated powers could only be exercised in accordance with directions “issued by me from time to time” (emphasis added). The applicant argued that because the Registrar had not exercised his powers pursuant to the superseded directions issued by Mr Gallagher (from whom the Registrar’s delegated powers were derived), the action by the Registrar was invalid. The Registrar was not called to give evidence in the proceedings before me, and I am not convinced that the inference sought to be drawn by the applicant follows just because of the description added after the Registrar’s signature. He was, after all, acting, and could only act, as the delegate of the Principal Member. However, the respondent did not dispute the applicant’s argument that this was a correct inference, and I will determine this matter on the basis that the Registrar acted pursuant to the new policy manual when dismissing the applicant’s 1996 application pursuant to s 155AB(5) of the VE Act.
Legislation
10. Section 155AB of the VE Act applied to the applicant’s 1996 application for review because the hearing of the review had not been completed within the extended review period, and at the end of the extended review period, a date, time and place had not been fixed for the commencement or resumption of the hearing of the review (s 155AB(2)).
11. Under s 155AB(4) of the VE Act, if s 155AB applies, 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 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.
12. Section 155AB(5) of the VE Act provides as follows:
“(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.”
13. Under s 155A of the VE Act, an application may be made to this Tribunal for review of a decision to dismiss an application under s 155AB(5) of that Act.
Consideration
14. I refer first to the applicant’s complaint that the VRB failed to reinstate the 1996 application. There appears to be no power in the VE Act pursuant to which the VRB could have reinstated the application. Further, there is no provisions in the VE Act which would empower the AAT to review any refusal to reinstate the application. I accordingly find that there is no jurisdiction for this Tribunal to review the VRB’s failure to reinstate the 1996 application.
15. I now refer to the application to review the Registrar’s decision on 11 March 1999 to dismiss the 1996 application. As mentioned in paragraph 5.10 above, on 12 April 2000 this Tribunal affirmed the decision of the Registrar to dismiss the 1996 application, and whilst the applicant appealed against this decision, the appeal was subsequently discontinued (see paragraph 5.11 above). The applicant is effectively seeking in the present proceedings to re-open the determination of his previous application for review. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the High Court of Australia considered whether the Immigration Review Tribunal could re-open a decision where the Tribunal in the earlier decision had proceeded in error, in that the Tribunal was not made aware that the applicant was unable to attend the scheduled hearing and was seeking a later hearing date. The High Court decided, with Kirby J dissenting, that in the circumstances of that matter it was competent for the Tribunal to reconsider the matter after it had become aware of its earlier error. Whilst the judgments of the members of the High Court reveal differing reasons for the decision reached, it is clear that the particular circumstances in which the Tribunal re-opened that matter, that is to say the existence of the error made by the Tribunal when it conducted its first hearing, was a central factor in the decision ultimately reached by the High Court.
16. For present purposes, the importance of Bhardwaj (above) is the members of the Court appeared to accept that the scheme of the Migration Act was such that if there had not been an error of the kind there in question, the Tribunal would not have been empowered to re-open its earlier decision. Kirby J decided that the Tribunal could not re-open the earlier decision notwithstanding the error made by the Tribunal which led to its first decision. The features of the Migration Act that led to this result are also present in the AAT Act. If this Tribunal were at liberty to re-open applications for review which had previously been validly determined in accordance with the relevant legislation, the position of the parties to the proceedings would remain uncertain, and this would be most unsatisfactory and disruptive of the orderly administration of the VE Act. I therefore consider that it is not competent for me in the present proceedings to re-open the determination made by the Tribunal on 12 April 2000.
17. I have noted from the Tribunal’s reasons for decision on 12 April 2000 that the issues raised in the earlier proceedings concerned the adequacy of the prior notice issued by the Registrar, and the proper construction of a response which was sent to the Registrar by the applicant’s agent. In the present matter, Mr Topperwien, for the respondent, conceded that the applicant’s argument to the effect that the Registrar was not authorised to dismiss the application because of the terms of the instrument of delegation was not raised or determined by the Tribunal in the hearing which gave rise to the decision on 12 April 2000. However, the effect of the previous decision was to dismiss the applicant’s application for review of the action by the Registrar in dismissing the 1996 application pursuant to s 155AB(5) of the VE Act. In my opinion, it is not permissible for that decision by the Tribunal to be re-opened on the grounds that a party to the previous application for review has thought of some new argument which was not addressed to the Tribunal during the earlier proceedings before it where the new argument does not impugn the jurisdiction of the Tribunal, or the legal efficacy of its conduct of the hearing. I refer in this respect to the decision of the Supreme Court of Canada in Chandler v Alberta Association of Architects (1989) 2 SCR 848 where Sopinka J said at page 862:
“As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstance …”.
This statement was cited with approval by Gleeson CJ and Gaudron and Gummow JJ (with whom McHugh J concurred) in Bhardwaj (although their Honours also noted that the above general proposition should not be strictly applied if a tribunal had failed to discharge its statutory function or lacked jurisdiction to make the determination in issue, and the express language or implied operation of the enabling statute indicated that the determination could be re-opened) (see paragraphs 7, 52 and 160 of Bhardwaj).
18. I have concluded that, in any event, it would be futile to set aside the decision by the Registrar to dismiss the application under s 155AB(5) of the VE Act. This is because whatever deficiencies there may have been in the authority of the Registrar as a delegate of the Principal Member when he dismissed the application on 11 March 1999, those deficiencies have since been cured. Brigadier Rolfe issued a replacement delegation on 15 January 2001 (exhibit R1, page 69), and the applicant has not suggested that this new delegation is invalid. If the Registrar’s dismissal on 11 March 1999 of the 1996 application were now to be set aside, then the Registrar as the delegate authorised under the later instrument of delegation from Brigadier Rolfe would still be obliged by s 155AB(5) of the VE Act to dismiss the application because of the non-compliance with the prior notice dated 4 February 1999. The Registrar has no discretion in the matter under s 155AB(5). The outcome would therefore be no different from the applicant’s point of view. In these circumstances, I consider that the present application for review is futile, and should accordingly be dismissed under s42B of the AAT Act. This was the course adopted by this Tribunal in Re Williams and Australian Electoral Commission & The Greens (1995) 38 ALD 366, where a member of a political party lost his standing to challenge the entry of a person as the registered officer of the party on the Electoral Act register when that person later ceased to be the registered officer.
19. Mr Topperwien further argued that the matter should be dismissed under s 42B of the AAT Act on the grounds that the Commonwealth should not be put to undue expense in defending utterly hopeless litigation, such as the present matter where the applicant had had ample opportunity for both judicial and merits reviews, but merely seeks to continue time and again to attack the adverse decision by novel but fruitless argument. He relies again on Re Williams and Australian Electoral Commission and The Greens (supra). This argument entails a consideration of the merits of the applicant’s argument in the present application. I have reached the conclusion that the applicant’s argument is without merit. Whilst the delegation of 17 December 1992 was expressed to be subject to the proviso that the relevant powers should only be exercised in accordance with directions issued by the then Principal Member from time to time, there is nothing to suggest that the guidelines issued by the former Principal Member were relevant to the exercise of the power under s 155AB(5) of the VE Act to dismiss the application. This was not a matter where the Registrar had a discretion which should be exercised by reference to the relevant guidelines; the delegate was obliged by the terms of s 155AB(5) to act as he did, that is to dismiss the application for non-compliance with the notice issued under s 155AB(4). Indeed, in view of the mandatory provisions of s 155AB(5), it would not have been competent for the former Principal Member to have included anything in the guidelines which would have conflicted with the Principal Member’s obligations under that sub-section.
20. The conclusion referred to in the preceding paragraph makes it unnecessary for me to consider Mr Topperwien’s further argument that the words “by me” in the expression “directions issued by me from time to time” refer to directions issued by the Principal Member for the time being rather than to directions issued by the former Principal Member personally. Whilst Mansfield J in Johnson v Veterans’ Review Board (supra) dealt at paragraphs 28 to 34 with the consequences of a change in the identity of the Principal Member on the power of the Registrar to act under the 1992 delegation, His Honour did not deal with the issue of the construction of the instrument of delegation, as this particular argument was not apparently raised before him. Section 20 of the Acts Interpretation Act 1901 provides:
“Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position.”
And under s 46 of the Acts Interpretation Act 1901, the instrument of delegation under the VE Act should be interpreted in accordance with this section of that Act. However, on the face of it, the natural meaning of the words “by me” would refer to the Principal Member who issued the instrument of delegation, and not to the person holding office as the Principal Member for the time being. It would have been simple to have referred in the instrument of delegation to directions issued “by me or my successors” or to directions issued “by the Principal Member for the time being”. It seems to me, therefore, that there is some force in the applicant’s argument as to the proper interpretation of the instrument of delegation. As against this, it might also be open for the respondent to argue that the proviso itself was not authorised, having regard to the difference in language between s 166(1) and s 166(1A) of the VE Act, since s 166(1) contemplates that the delegation may be general or as otherwise provided by the instrument of delegation, whereas these qualifying words do not appear in s 166(1A). However, it is not necessary for me to decide these issues, in view of my conclusions in paragraphs 16 to 19 above.
21. It was further argued on behalf of the respondent that the applicant was prevented from re-opening his earlier application by operation of the doctrine of res judicata, in consequence of the decision of Mansfield J in Johnson v Veterans’ Review Board & Anor (above), and he referred in particular to paragraphs 28 to 34 of His Honour’s judgment. Mr Topperwien also referred to the doctrine of estoppel laid down in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. He argued that the applicant could have raised the present arguments in the proceedings before Justice Mansfield and should not now be permitted to re-open the issue in the present proceedings. In the alternative, Mr Topperwien argued that the Tribunal should not re-open the earlier proceedings as a matter of public policy, on the grounds that the applicant had discontinued the appeal to the Federal Court. He also submitted that the applicant had sought unsuccessfully to attack the decision by collateral means by instituting the proceedings in the Federal Court and did not at that time apply for an extension of time to reinstate the appeal under s 44 of the AAT Act.
22. It seems to me that there is considerable force in all of the arguments referred to in the preceding paragraph. However, the issue of whether and to what extent the doctrines of res judicata and issue estoppel apply to proceedings in this Tribunal is a vexed question: see the cases discussed in D C Pearce : Administrative Appeals Tribunal, LexisNexis Butterworths, Australia 2003 at paragraph 9.30. In view of my conclusions in paragraphs 16 to 19 above, it is once again not necessary for me to decide this point, or the respondent’s further argument based on public policy.
23. I now refer to the final ground of the respondent’s application, being the ground referred to in paragraph 4(c) above. There is no evidence before me that the Deputy Registrar of the Tribunal issued a notice which complied with the terms of s 42A(4) of the AAT Act, and there is therefore no basis for me to refuse the applicant’s application for review under that section.
24. The respondent also pointed out that in any event, the applicant’s 1996 claim for PTSD was not accepted as a war-caused disease until June 1999, and commented that as a result, the applicant may not have been able to demonstrate in 1996 that he was, by reason of incapacity from accepted war-caused injuries or diseases or both alone, prevented from continuing to undertake the relevant remunerative work. It is not possible for me to express any view about this comment, as the fate of the 1996 claim would, of course, have depended on the evidence submitted to the respondent in support of the claim, and I am unaware of what that evidence might have been. I also note that it appears from the documents before me that the notice issued to the applicant on 4 February 1999 was not answered within the 28 day period because of a failure by the applicant’s agent to respond to the notice. Once again, in the absence of evidence as to all of the circumstances, I cannot comment on this failure, other than to say that it was regrettable as it meant that the applicant’s 1996 application has never been dealt with by the VRB on its merits. However, these considerations are not relevant to the reasons which have led me to my conclusion that this Tribunal has no jurisdiction in the present matter.
25. For the above reasons, I dismiss the application under s 42B of the AAT Act. As the Registrar’s dismissal of the 1996 application was reviewed by this Tribunal in the proceedings which resulted in the decision of 12 April 2000, and the validity of that dismissal was also determined in the Federal Court proceedings referred to in paragraph 5.12 above, I further direct pursuant to s 42B of the AAT Act that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind that would seek to have the effect of:
(a)reinstating either the application to the Tribunal in matter number S1999/234; or
(b)seeking a review by this Tribunal of the action taken by the Registrar on 11 March 1999 pursuant to s 155AB(5) of the VE Act, in dismissing the application previously made by the applicant to the VRB.
I certify that the 25 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President JarvisSigned: .....................................................................................
N. Quirke AssociateDate/s of Hearing 26 February 2004
Date of Decision 10 March 2004
Counsel for the Applicant In Person
Solicitor for the Applicant -
Officer for the Respondent Mr B Topperwien