Johnson and Veterans' Review Board and Anor - [2000] AATA 282

DECISION AND REASONS FOR DECISION [2000] AATA 282

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/234

VETERANS' APPEALS DIVISION       )
           Re      KEITH DOUGLAS JOHNSON
  Applicant
           And    VETERANS' REVIEW BOARD 1st Respondent REPATRIATION COMMISSION 2nd Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date12 April 2000
PlaceAdelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS MBE
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – practice and procedure – notice from Veterans' Review Board dismissing application – whether constitutes "notice" – meaning of "notice" considered – whether applicant responded to notice – consideration of response
Veterans' Entitlements Act 1986 ss.119, 147, 155AB
Re Johnson and Veterans' Review Board and Repatriation Commission [1999] AATA 745
R v Secretary of State for the Home Department; Ex Parte Tolba [1988] Imm AR 78
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311
Goodyear Tyre & Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 3 All ER 7
Cresta Holdings Ltd v Karlin [1959] 3 All ER 656

REASONS FOR DECISION

12 April 2000 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application for review of a decision of the registrar of the Veterans' Review Board (the Board) acting as a delegate for the Principal Member of the Board dated 11 March 1999 (T20) which dismissed his application before the Board pursuant to sub-section 155AB(5) of the Veteran's Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with six exhibits, three lodged by the applicant (Exhibits A1-A3) and three lodged by the respondent (Exhibits R1-R3). The applicant was represented by Mr P. Broderick, the Veterans' Review Board by Mr B. Topperwein and the Commission by Mr P. Hanks QC, all of counsel.
The issues before the Tribunal are whether or not the document prepared by the delegate dated 4 February 1999 (T16/26) was a notice pursuant to the Act, and if so; whether the applicant provided a written response to that letter.
legislation
Section 155AB of the Act provides as follows:
"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.
(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 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.
(7)     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 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."

history of the application

The facts of this matter are generally not in dispute and the Tribunal summarises them only briefly herein.
The applicant lodged a claim with the Department of Veterans' Affairs on 20 March 1996 for "vertigo, epilepsy", which was refused by a delegate of the Repatriation Commission in a decision dated 28 March 1996 (T3).
On 26 April 1996 the applicant appealed that decision to the Board (T4). By letter dated 24 June 1996 (T7), the Board wrote to the applicant asking him how he wanted the Board to deal with his application. Following further oral communication delaying the matter, the Board sent a letter dated 29 May 1997 (T9) requesting the completion of an "applicant's advice" form (T10). In this form, the applicant advised that he "will arranged [sic] to be represented by … Still collating evidence".
The Board sent a further letter dated 19 October 1998 (T12) requiring the applicant to provide written reasons within 28 days as to why he was not ready to proceed to a hearing. In a letter dated 22 October 1998 (T14) the applicant responded:
"I am writing to ask for the 3 months deferment as discussed in our conversation. As a claim for a motor vehicle accident is about to hopefully be resolved and their [sic] is some dispute as to my neurobehavioural disorder origin a deferment/extension of time would be appreciated."
In a letter dated 2 November 1998 (T15), the Registrar of the Board granted the extension and also stated (inter alia):
"…
However, under the legislation I am required to write to you in 3 months time unless a date, time and place is fixed for the commencement or resumption of the hearing of your review and again ask you to provide a written statement as to the readiness of your application. If you fail to reply within 28 days or I then consider that the statement provided does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, your application must be dismissed."
In a letter dated 4 February 1999 (T16), the Registrar of the Board stated:
"In my letter of 2 November 1998 I let you know that I considered the statement provided by you contained a reasonable explanation for your failure to be ready to proceed at a hearing. I also advised that I would be writing to you again after the expiration of 3 months unless a date, time and place had been fixed for the commencement or resumption of the hearing of your review.
In accordance with section 155AB(4) of the Veterans' Entitlements Act, therefore, I am giving you this written notice requesting you to provide within 28 days a written statement that you are now ready to proceed at a hearing or reasons why you are not so ready. If you are not being represented the statement must be signed by you and forwarded to this office.
If you wish, you may (once again) authorise another person to represent you in relation to this notice. Such authorisation must be in writing and on the enclosed form. You should not send this authorisation back to me. You should give it as quickly as possible to the person you have authorised so that he or she can send it to me together with the statement I have requested within the 28 days allowed.
If the required statement is not provided within 28 days after you receive this notice, or I consider that the statement provided does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, your application will be dismissed. This means that the matter is then finalised.
If you no longer wish to proceed with your application, you should notify me in writing and I will arrange for it to be withdrawn."
The attached authorisation notice was returned to the Board on or about 8 February 1999, and received on 10 February 1999 (T18). That notice stated:
"…
On 5/2/99 I received a notice in the form of a letter dated 4/2/99 from the Registrar of the Veterans' Review Board concerning my outstanding application for review in respect of neurobehavioural disorder.
The notice requested me to provide, within 28 days after receipt of the notice, a written statement that I am ready to proceed at a hearing or reasons why I am not so ready.
I hereby authorise Ron Coxon
of VVAA (SA)
to represent me in relation to that notice, and to respond in writing on my behalf.
Dated this 8 day of FEB 1999
…"
The Registrar, in his capacity as delegate of the Principal Member of the Board, dismissed the applicant's application in accordance with sub-section 155AB(5) of the Act on 11 March 1999 (T20) stating (inter alia):
"…
As you have not provided the written statement that I requested from you in that notice, I have dismissed your application in accordance with section 155AB(5) of the Veterans' Entitlements Act. Enclosed are the reasons for my decision
…"

In an attached notice (T20), it was explained that an applicant may appeal to this Tribunal.

The applicant lodged an appeal with this Tribunal on 11 June 1999, outside the 28 days provided, and the Tribunal, constituted by Senior Member Kiosoglous sitting alone, granted an extension of time in which to lodge such application on 8 October 1999 (see Re Johnson and Veterans' Review Board and Repatriation Commission [1999] AATA 745.
applicant's submissions
Mr Broderick submitted, on behalf of the applicant, that the letter dated 4 February 1999 (T16) was unclear and did not set out the consequences of failing to respond. He further criticised the notice in that it did not specify what a person should take to their representative, and that the word "should" in paragraph 3 was not as definite as previous notices.
He further submitted that when the applicant returned the authorisation dated 8 February 1999 (T18) to the Board it was indicative of his readiness to proceed to hearing. Alternatively it was a reason why he was not ready to proceed to hearing (namely, that he had appointed a representative). He also submitted that the Board was aware that the applicant erroneously sent this authorisation back to the Board, and should have therefore instituted some enquiry.
In his submission, the notices are not reasonably understandable by non-legal people, and the content of the notices is not in accordance with procedural fairness given the context in which it is received by non-legally qualified veterans. He further submitted that the Tribunal should take into account the fact that the legislation is intended as beneficial and to be informal by way of process (referring to sections 119 and 147 of the Act in particular).
respondent's submissions
Mr Hanks QC submitted, on behalf of the second respondent, (with Mr Topperwein concurring) that when considering if the document dated 4 February 1999 (T16) ("the document") is a "notice", it is irrelevant whether or not an individual understands a notice, and that the Tribunal must instead make an objective assessment taking into account the purpose of the document and the class of recipients to whom it is addressed. He further submitted that the legislation does not require reasons to be given, and that the consequences of failing to respond are clearly set out in paragraph 4 of the document.
He further submitted that the notice clearly sets out that if a representative is appointed, it is for the clear purpose of responding to the notice, not that such appointment is a response of itself.
He contended that the applicant's provision to the Board of the response dated 8 February 1999 (T18) is not a written statement pursuant to the legislation, and gives no indication that the applicant is ready, or why he is not ready for hearing.
discussion and findings
The Tribunal has only briefly set out the submissions put to it, but takes all the evidence and submissions into account in coming to its decision. It also takes into account the authorities referred to by both parties.
The central issue for the Tribunal is whether or not the document is a "notice" pursuant to section 155AB of the Act. The Tribunal notes that there is no prescribed form for notices pursuant to this section, but that the wording of the document appears to be consistent with that used in previous notices put before the Tribunal.
In order to be a notice, the Tribunal must be objectively satisfied that the document can reasonably be considered to convey the relevant information to the mind of the average person of the class to whom the veteran belongs (R v Secretary of State for the Home Department; Ex Parte Tolba [1988] Imm AR 78 at p81). It is obviously difficult to imagine an "average" veteran, but the Tribunal accepts that the test is objective, and does not depend upon whether or not this particular applicant comprehended the notice or not.
"Notice" does not amount to full knowledge on the part of the recipient, and notice may be given notwithstanding that the decision does not in fact come to the attention of the recipient (Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at p320, referencing Goodyear Tyre & Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 3 All ER 7 and Cresta Holdings Ltd v Karlin [1959] 3 All ER 656).
The Tribunal must therefore consider the content of the document, as to whether it reasonably alerts the average veteran to the procedural and substantive steps and effect of the application of section 155AB of the Act.
The Tribunal considers the document to be convoluted, confusing and not clearly worded. When the Tribunal considers the class of persons to whom such notice is intended, it cannot be said that the document is as clear as it should be. It needs drastic attention in order to make it far clearer. The Tribunal appreciates Mr Broderick's concern as to the word "should" in paragraph four, and indeed, given the serious consequences flowing from the notice, its loose and imprecise language cause obvious comprehension problems. The main problem the Tribunal sees with the document is in the way it runs together a number of ideas within the same paragraph. For a veteran who is contemplating representation, the process is not entirely clear from the notice, nor is it spelled out that the notice itself should be forwarded to a representative. One might well expect however, that it would be reasonable for a veterans' advocate to understand the nature of their responsibility having received the attached acknowledgment form from their client.
Although the Tribunal has concerns as to the form and content of the document, it concludes that the document does satisfy the procedural requirements of section 155AB and can be said to be a 'notice' pursuant to that section. At the very least, it alerts the veteran to the need to take some action to respond to the Board. It sets out the need to provide a response as to readiness to proceed to hearing (or reasons why not) as required by sub-section 155AB(4) of the Act. It also explicitly sets out the consequences of failing to respond to the notice within the prescribed time. It is sufficiently clear in these regards, that despite some reservations, the Tribunal considers that viewed objectively, taking into account the class of persons to whom it is directed, it satisfies the procedural requirements of section 155AB of the Act and can be said to be a notice pursuant to that section.
The second question before the Tribunal is whether or not the applicant can be said to have responded to that notice. Two grounds were advanced in this regard by Mr Broderick, namely that the return of the attached form on or about 8 February 1999 (T18) alerted the Board of the applicant's readiness to proceed to hearing, or gave a reason as to why the applicant was not ready.
The Tribunal does not consider that the return to the Board of that authorisation form can be taken to have either of the meanings advanced by the applicant. It does not provide a reason as to why the applicant is not ready to proceed to hearing. The fact that a representative is being authorised to respond is not a reason of itself. It can only be taken to reasonably advise that the Board may expect a reason to be forthcoming from that representative.
Further, it does not indicate a readiness to proceed to hearing. The Board could in no way accept that form as an indication that the applicant was ready to proceed to hearing, as it is neither explicit or implicit in the terms of that form. Although the applicant clearly misunderstood what was required of him, in that he returned that form to the Board and not his representative, the Tribunal repeats what it said in the decision regarding the extension of time in this matter (at paragraph 43 (inter alia)):
"…
… Similarly, the mere provision of the representation slip (Exhibit 1, T18/27) did not place any additional burden upon the Board to make further enquires. The mere addition of a representative should not necessarily cause alarm bells to ring in the Board's ears!!! …"
It cannot be said on any reasonable reading of the evidence that the applicant responded to the notice and the Tribunal so finds.
The Tribunal is sympathetic to the situation the applicant has found himself in, essentially through no fault of his own, but this of itself does not mean that the Board has not met its statutory obligations. The Tribunal has concerns as to the form and substance of the notices sent by the Board, and as mentioned in its decision in relation to the extension of time at paragraph 30 therein, has real concerns as to the training and effectiveness of those holding themselves out to be veterans' advocates. These are issues it would urge the relevant bodies to take under consideration.
The Tribunal being satisfied that the document dated 4 February 1999 (T16) satisfies the procedural requirements of section 155AB of the Act, and that the applicant did not respond to the document (notice) affirms the decision under review.
decision
For the reasons given and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  10 March 2000
Date of Decision  12 April 2000
Counsel for the Applicant              Mr P. Broderick
Solicitor for the Applicant              Lempriere Abbott McLeod
Counsel for the 1st Respondent   Mr B. Topperwein
Solicitor for the lst Respondent                VRB
Counsel for the 2nd Respondent Mr P. Hanks QC
Solicitor for the 2nd Respondent AGS