Keys and Repatriation Commission (Veterans' entitlements)
[2023] AATA 2605
•26 July 2023
Keys and Repatriation Commission (Veterans' entitlements) [2023] AATA 2605 (26 July 2023)
Division:GENERAL DIVISION
File Number: 2019/1310
Re:Ian Arthur Knox Keys
APPLICANT
AndRepatriation Commission
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 July 2023
Date of written reasons: 18 August 2023
Place:Melbourne
The application for reinstatement is not granted.
........................[sgd]................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE - interlocutory application – reinstatement of application – where
application finalised in March 2020 by consent of the parties – consideration of Tribunal’s
consent, remittal, and reinstatement powers - relevant law and circumstances considered –
whether application dismissed in error - reinstatement application declined
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Aldridge and Repatriation Commission [2012] AATA 571
Keys and Repatriation Commission [2023] AATA 1796
Negri v Secretary, Department of Social Services [2016] FCA 879
Novosel v Comcare (2017) 72 AAR 269
Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 42
SECONDARY MATERIALS
Pearce, Dennis, Administrative Appeals Tribunal (5th ed, LexisNexis Butterworths, 2020)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
18 August 2023
INTRODUCTION.
The Applicant, Mr Ian Keys, has asked the Tribunal to reinstate an application that was finalised by consent of the parties approximately three-and-a-half years ago on 12 March 2020 (“2020 consent agreement”).
The reinstatement hearing was held on 21 July 2023. The Applicant was represented by Ms Rae Coates-Kelly, who informed the Tribunal she is a ‘veteran advocate - not an Australian legal practitioner’. The Respondent was represented by Ms Lindsay Cooper, a lawyer from the Australian Government Solicitor (“AGS”).
The matter was adjourned about an hour after the reinstatement hearing commenced, so the Respondent could file additional documents regarding the basis upon which the 2020 consent agreement was concluded. The adjournment also enabled Ms Coates-Kelly to review the Respondent’s submissions, which were lodged 40 minutes prior to the hearing commencing. The hearing resumed on 26 July 2023, during which further documentary and oral submissions were made. This included documents relating to how the 2020 consent agreement was concluded and a nine-page document from Ms Coates-Kelly dated 25 July 2023, titled: ‘Applicant’s submissions on the question of law relating to s.42C and 42D’.
At the conclusion of the hearing and following an adjournment, the Tribunal declined the reinstatement application and gave ex tempore reasons. Ms Coates Kelly requested written reasons. These are now provided, consistent with the reasoning of Justice Bromberg in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
BACKGROUND
The Applicant served in the Australian Army from 1971 to 1992. During his eligible service he sustained several injuries, including to his back. Reference is made in medical records to him experiencing back pain, including from activities such as playing squash and ‘Hurt back moving office at work’. The Applicant’s 2016 claim for lumbosacral pain was refused. On 2 July 2018, this decision was affirmed by the Veterans’ Review Board (“VRB”).
Under the 2020 consent agreement, the VRB’s decision relating to lumbar spondylosis was set aside. This meant the condition was accepted as Defence caused pursuant to s 70(5) of the Veterans’ Entitlements Act 1986 (Cth). The agreed date of effect was 11 September 2018. The decision was otherwise remitted to assess the Applicant’s pension entitlement.
Documents relating to the 2020 consent agreement are summarised as follows:
DATE
CORRESPONDENCE
17 February 2020
Email from AGS to Ms Coates-Kelly stating that instructions were received to accept lumbar spondylosis as defence caused. Reference is also made to an attached draft consent order, premised on s 34D of the Act.
21 February 2020
Ms Coates-Kelly emailed the Respondent with a signed copy of the agreement and asked that any summonsed medical records be destroyed.
24 February 2020
The signed consent agreement was sent to the Tribunal by AGS.
11 March 2020
AGS sought an update about when the Tribunal would finalise the 2020 consent agreement.
12 March 2020
Former Deputy President, Ms Stephanie Forgie, signed the consent order.
16 March 2020
The Tribunal wrote to parties advising that the 2020 consent agreement was finalised, and the file closed
18 March 2020
Ms Coates-Kelly emailed the Tribunal acknowledging the consent agreement. She also referred to the Respondent’s purported unsatisfactory approach regarding material obtained under summons. Ms Coates-Kelly asked for documents obtained under summons to “be destroyed forthwith”. No other issue was raised in this correspondence.
27 April 2020
Ms McGowan of AGS contacted the Tribunal to disagree with Ms Coates-Kelly’s characterisation of the Respondent’s purported conduct regarding summons material. No other issue was raised in this correspondence.
On 31 March 2020, following the 2020 consent order, the Applicant’s disability pension was increased from 60% to 90% of the General Rate. In June 2020, this was further increased to 100% of the General Rate.
The March 2020 letter from the Tribunal advising parties that the 2020 consent agreement was finalised, stated the following in accordance with what is commonly referred to as the ‘slip rule’ at s 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”):
‘I enclose a copy of the section 42C(2) decision which gives effect to the agreement reached by the parties.
If you notice any mistake in the agreement (for example, a typographical error), please contact me within 28 days of the date of this letter so that I can arrange the corrections.
Do you want to know more?
If you want more information or assistance, call us on…’
The Applicant has since pursued several other claims.[1] During the hearing, Ms Coates-Kelly referred to an application submitted in 2022 to the Tribunal’s Brisbane Registry,
[1] Keys and Repatriation Commission [2023] AATA 1796.
CONSIDERATION
Legislation
Reinstatement
Reinstatement provisions at ss 42A(8)-(10) of the Act reflect a quite narrow basis upon which a finalised application may be resumed. The Tribunal has a discretion to reinstate if it ‘considers it appropriate to do so’ or the application was dismissed in error. ‘Error’ has been construed to have a relatively broad meaning. Section 42A(11) of the Act provides that reinstatement applications must be made within 28 days of a party receiving notification that the application is dismissed, unless leave is granted by the Tribunal for a longer period.
Consent agreements
Section 42C of the Act enables the Tribunal to give effect to an acceptable agreement reached between parties at any stage of a proceeding. The terms must be reduced to writing, signed, and the Tribunal must be satisfied about the lawfulness and propriety of the consent.[2] The Tribunal can give force to a consent agreement, according to its terms, without holding a hearing or completing an already commenced hearing. Provision is also made at s 42C(3) for agreements reached in respect of part of a proceeding or a matter arising out of the proceeding.
[2] Dennis Pearce, Administrative Appeals Tribunal (5th ed, LexisNexis Butterworths, 2020), 15.28 [347].
The courts have held that several factors inform the Tribunal’s consideration of a request from parties to give effect to an acceptable agreement. These include that the agreement is self-explanatory and ‘complete so that it discloses to the public and to the decision-maker what the parties agreed should be its content’.[3] Although amendments in 2005 made it possible for the s 42C consent power to be applied to part of a proceeding, this must be clear from the express terms and is not lightly inferred. This is particularly so if considerable time has passed since the agreement was finalised and there has been no suggestion a mistake had occurred. In judicial settings, properly authorised consent agreements have been found to have the ‘same force and validity as if…made after a hearing by the judge’.[4]
[3] Ibid.
[4] Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [11]; [14]-[15]; [19] (French J), as his Honour then was.
Section 34D of the Act is an exception to the consent power under s 42C of the Act. This power can be used to dispense with an application without a hearing if parties reach agreement during an Alternative Dispute Resolution process. The terms of the agreement must be reduced to writing, signed, and lodged with the Tribunal. Seven days must pass after lodgment without either party notifying the Tribunal in writing they wish to withdraw from the agreement. If satisfied that the agreement is within the powers of the Tribunal, a decision can then be made in accordance with the agreed terms without holding a hearing. Provision is also made at s 34D(3) for agreements reached in respect of part of a proceeding or a matter arising out of the proceeding.
An exercise of the Tribunal’s power under either ss 34D or 42C of the Act does not require the same evidentiary foundation that occurs during a substantive hearing, which leads to a decision under s 43 of the Act. The consent pathways available in the Tribunal convert agreed outcomes into enforceable undertakings. This is consistent with the Tribunal’s objective at s 2A of the Act to provide a a mechanism of review that is amongst other things, informal and quick. Once a consent agreement is authorised, it is formally closed off by the Tribunal, which differs from the use of other powers like s 42D of the Act, under which the application can resume.
Remittal power under s 42D of the Act
Section 42D of the Act enables the Tribunal, at any stage of a proceeding, other than in the Social Services and Child Support Division, to remit a decision to the Respondent for reconsideration. It has a preservation effect regarding an applicant’s right to resume the application if they consider the Respondent’s reconsideration unfavourable. The Respondent has 28 days to undertake the reconsideration unless another period is specified. If the Respondent affirms the decision, the proceeding resumes in the Tribunal. If a decision is not made within the applicable period to affirm, vary, or the decision is set aside, it is taken to have been affirmed by operation of law and the proceeding resumes in the Tribunal. If the Respondent varies the decision or sets it aside and makes a new decision in substitution, that becomes the reviewable decision, and the Applicant can choose whether to proceed with their application or withdraw it. There seems little purpose in exercising the remittal power of the Act, for example, in circumstances where parties decide to resolve the substantive matter themselves. Failure to agree would similarly be an inadequate reason to remit prior to a hearing because any disagreement can be addressed through the Tribunal’s case management procedural powers or ultimately via a hearing and one of the decisional avenues at s 43(1) of the Act.
Contentions and responses
Ms Coates-Kelly’s submissions invoked purported ambiguity between the Tribunal’s consent and remittal powers. She claimed that engagement with extrinsic materials like Second Reading Speeches was needed to resolve this ambiguity and contended that the following legal question deserved referral by the Tribunal President to the Federal Court:
‘The question of law is: where the parties have reached consent that a decision be remitted, without agreeing that the proceedings would thereby come to an end, and where the consent order makes no such reference (to the proceedings thereby coming to an end), is it open to the Applicant to proceed with his application for review of the decision as varied/substituted in accordance with s.42D(3) or (4)?’
A summary of Ms Coates-Kelly’s submissions on behalf of the Applicant follow:
(a)The chronology presented by the Tribunal to the parties was not contested, except for the following submission from Ms Coates-Kelly:
‘There’s no dispute. Except it should be noted, that the Tribunal’s characterisation under what I’ve recorded in your chronology as step 7, of this being a finalisation by consent of the parties under 42C or34D, rather than 43, or 42(D), that’s not within our knowledge, of course, and the applicant has had no input into that characterisation. So that should be clear from the record, that’s an internal matter for the tribunal which was not disclosed at the time to the parties.’
(b)Because the draft 2020 consent agreement was initially referred to as a s 34D consent in the draft between the parties but was subsequently finalised as a s 42C consent by the Tribunal, Ms Coates-Kelly claimed this was a mistake with implications for the 2020 consent agreement. She stated: ‘The section that is mentioned in the documents is 34D and 34D was clearly an error, and it is notable that Ms Forgie did not translate that error into her order’.
(c)Ms Coates-Kelly said it is unreasonable to rely on the statutory provision under which the 2020 consent agreement was finalised, because it is not ‘a reliable indicator’ of what the Applicant consented to. To avoid mischaracterising what Ms Coates-Kelly submitted, she stated the following:
‘What we were not consenting to was that was necessarily the end of the Tribunal’s jurisdiction once and for all, as under the remittal power, that I believe we were operating under…under 42D we retained the capacity to bring the matter back if it was mucked up by the delegate. As I said, it wasn’t brought back in this proceeding as there was another proceeding between the same two parties and it was only in June this year that it was determined that that expansive view of that proceeding was opposed by the commission and it was ruled that the narrower view should prevail, so within days of that occurring, my letter came to the Tribunal in this proceeding’.
(d)Ms Coates-Kelly contends that insofar as the 2020 agreement did constitute a consent, it was only ‘a partial consent’ solely limited to resolving the ‘liability point’ of lumbar spondylosis as being defence caused.
(e)Ms Coates-Kelly said the Tribunal should infer that former Deputy President Forgie’s intention when remitting the matter for assessment of the Applicant’s pension entitlement was to invoke s 42D of the Act. She contends this means the ‘entire proceeding’ was not disposed of and ‘the remittal was for the purpose…of determining the quantum of the entitlement’, which is what the Applicant now seeks to reinstate. Again, to avoid mischaracterising what Ms Coates-Kelly intended to convey, her oral submission about this follows:
‘When it’s remitted for the consequence of that issue, to be determined by a delegate, it’s got to have necessarily been remitted under 42D, as 42D is the remittal power of the Tribunal. And 42C and 42D are not mutually exclusive. Why do they have to be mutually exclusive? Where 42D expressly reserves the right for the Applicant to come back and continue with the application if the delegate stuffs it up, which she did…The fact that someone would have assumed that on remittal that was the end of the story, why would they assume that?...That the Tribunal was somehow disempowered by the fact that it had been remitted. It was somehow disempowered in maintaining control of its jurisdiction and being able to relist the matter, of course not. Why would the Tribunal and the Applicant place themselves at the hand of some delegate to whom a remittal was made…how on earth can that be consistent with the Tribunals objectives to be speedy, fair, efficient, how on earth can that be the proper reading of this legislation to read a remittal as being a final step when 42D expressly notes that a remittal is not a final step.’
(f)Ms Coates-Kelly said the Tribunal should not be ‘disempowered from exercising its own jurisdiction over the dispute that was originally brought in 2019’, because it is the ‘ultimate arbiter of the dispute’ and is therefore able to rely on s 42D of the Act irrespective of whether an ‘application is withdrawn or not’.
(g)Ms Coates-Kelly contends that absent an express term spelling out the Applicant’s agreement to discontinue his application under s 42D, which he never did, his right to continue with the application was preserved until any later date he chose. The following exchange occurred between the Tribunal and Ms Coates-Kelly:
Ms Coates-Kelly: ‘I don’t argue that 42D may not be displaced by agreement, where that agreement makes clear that the applicant is pre-electing, if you like, to not proceed with the application, or to withdraw the application as part of that consent. Now that’s not the circumstance here, all that we’ve got in the circumstance here is the agreement to settle the liability question, and nothing has been said which would enable to the tribunal to conclude that the applicant was disavowing his right plainly established under section 42D(3) or (4) either to proceed with the application or withdraw it.’
Senior Member: ‘Ms Coates-Kelly, just to confirm, are you saying that section 42D is a discretion open to an applicant rather than a power of the Tribunal, did I understand you to say that?’
Ms Coates-Kelly: ‘Yes, certainly, The tribunal has the power under section 42D to decide whether to remit or not, that’s not in issue, no one’s suggesting that - - -
Senior Member: So when did the Tribunal remit this matter to the respondent under section 42D?
Ms Coates-Kelly: By the consent order made by Stephanie Forgie on 20 March…the agreement which enlivened that decision, that consent order, was certainly an agreement that had been reached under 42C. And then the Tribunal operated the power under 42D to remit, and that’s the exact circumstance under which the Attorney General in 1993 introduced this piece of legislation of 42D, that is the exact scenario where the parties agree that a matter should be remitted’.
(h)Ms Coates-Kelly submitted that the Applicant’s decision to ‘to re-enliven this proceeding’ relates to another delegate of the Respondent purportedly making an ‘obvious error in their understanding of the historical fact of when this bloke retired’. This error has purportedly caused the Applicant to lodge a new application in 2022 with the Tribunal’s Brisbane Registry.
(i)Ms Coates-Kelly contends the Tribunal was not functus officio when advising the parties on 16 March 2020 that the 2020 consent agreement had been authorised by former Deputy President Forgie. Again, to avoid mischaracterising what Ms Coates-Kelly intended to convey, her oral submissions about this follow:
‘…functus officio doesn’t occur until there has been a finality. And the finality under 42D which had been remitted under 42D(3) that part is expressly reserved and remains in the Tribunal…Well, I’m understanding you to say that where there is a consent, for any part of the matters in issue before the Tribunal, where there is a consent under 42C, that renders the entire dispute complete such as to have the effect of functus officio. But that is clearly, with respect, not what 42C contemplates. I’m saying 42C(3) applies. If the agreement relates to a part of a proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing et cetera. So we say, that 42C(3) is operative as it was as to the liability issue to the Tribunal, that was the subject of that agreement’.
Ms Cooper made the following submissions on behalf of the Respondent:
‘…the applicant’s characterisation of 42D is simply not provided for on the text or context of the statute, and it’s enabling statute… There’s a clear path provided for subsequent decision making on remittals. The Applicant really mischaracterises …42D as a right of the Applicant. It is…not a right of the Applicant - it is a discretionary power of the Tribunal. And, as a matter of fact, that power was not exercised in this proceeding.
In terms of the submissions made about the agreement between the parties and what it did and did not do, it’s clearly a factual contest between the parties. We would say that it is entirely unnecessary to imply anything [from the 2020 consent agreement]. They are plainly, on their face, terms bringing the matter, in full, to an end. There is no reference to any partial dispensation of it, and clearly whether it’s section 34D or section 42C that the terms were originally proposed under, by our records, the decision was made pursuant to section 42C, which was indicated to us in communication from the Tribunal in delivering that decision. That decision is no less final than any other decision made under section 43 of the Tribunal, and the rights to correct that decision, or appeal it, were not exercised in this matter.’
Ms Cooper’s other submissions on behalf of the Respondent are summarised as follows.
(a)The Tribunal’s finalisation of the 2020 consent agreement was made under s 42C of the Act and reflected the entire concluded agreement between the parties.
(b)A consent agreement under s 42C of the Act has no less force, nor is any less final than a decision made after a substantive hearing.[5]
(c)Although the Tribunal has the power to vary or revoke a 42C decision pursuant to s 42C(5) of the Act, the Respondent does not consent to a variation or revocation of the 2020 consent agreement, absent which the Tribunal does not have the power to revoke its own consent decision and reinstate the proceeding. The respondent further submitted that:
‘…the 42C decision has been superseded by further administrative decision making, that implemented the Tribunal’s orders that gave rise to their own appeal rights, such that it would be an absurd administrative outcome to revoke the Tribunal’s decision.
…
The applicant in Keys and Repatriation Commission [2023] AATA 1796 again submitted that the request for review dated 23 June 2020 had the effect of also requesting a review of the decision made on remittal (dated 31 March 2020). Although it should be acknowledged that the applicant conceded that the request did not directly seek review of that decision: [61]. The Tribunal there was satisfied that in providing the decision of 31 March 2020, the delegate clearly outlined the applicant’s review rights ([63]-[64]) and it was open to the applicant to have sought review of the decision dated 31 March 2020 ([72]).’
[5] Novosel v Comcare (2017) 72 AAR 269, 103 was cited in the Respondent’s documentary submissions.
Resolution
The Tribunal finds that:
(a)There is no evidence the 2020 consent agreement was made in error. No contact was made with the Tribunal by either party within 28 days after the agreement was authorised, nor during the almost three-and-a-half years since.
(b)The Tribunal rejects the contention that it is ‘not reasonable to rely upon’ the statutory provision under which a consent document is finalised, because it is an incomplete or unreliable indicator of what an applicant consents to. This contention is unsupported by authority and conflicts with the plain statutory language enlivening the Tribunal’s consent powers.
(c)Not much turns on Ms Coates-Kelly’s submissions regarding the consent path under which the 2020 consent agreement was first drafted and eventually concluded. That is because both paths lead to the same destination. The key difference is that consent agreements under s 34D of the Act occur during an Alternative Dispute Resolution and seven days must pass after the consent is lodged with the Tribunal before they can be finalised. This represents something of a ‘cooling off period’ during which either party can inform the Tribunal they wish to withdraw from the agreement. The chronology of this matter discloses that 16 days passed between lodgement of the consent agreement on 24 February 2020, and it being authorised on 12 March 2020. Neither party advised the Tribunal during this interregnum of any intention to withdraw. In contrast to consent agreements under s 34D of the Act, finalisation of a matter under s 42C can occur at any stage under a signed terms of agreement without waiting seven days.
(d)It is not accepted that the 2020 consent agreement was in any way a ‘partial consent’ or conditioned by matters yet to be negotiated or resolved. This is unsupported by any of the available documents. The 2020 consent agreement is in brief, straightforward terms with no mention of partial resolution or unconcluded matters.
(e)The Tribunal rejects the submission that it should infer from the handling of the 2020 consent agreement, that the former Deputy President did not intend to dispose of the entire proceeding and had in mind to preserve some future right for the applicant regarding ‘the quantum’ of his application by exercising the revocation power under s 42D of the Act. Section 42D of the Act is a different power for a different purpose. There is no mention of s 42D of the Act in any document relating to the 2020 consent agreement, nor is there any evidence this was ever contemplated by the former Deputy President. Instead, she was entitled to rely on Ms Coates-Kelly’s signature, as the Applicant’s authorised agent, to the terms agreed. Upon putting the conclusion of the consent order beyond recall by communicating it to the parties, the Tribunal was functus officio.[6] Any dissatisfaction the Applicant may experience more than three years later does not impact persuasively on this reinstatement request.
(f)The Tribunal does not accept Ms Coates-Kelly’s characterisation of the 2020 consent agreement as one where the parties did not agree the ‘proceedings would thereby come to an end’. There is also no basis to draw the inference Ms Coates-Kelly invites at [6]-[7] of her documentary submissions, that if dissatisfied with the 2020 consent agreement, the Applicant could rely on a purportedly symbiotic relationship between ss 42C and s 42D of the Act. As discussed earlier, the remittal power at s 42D of the Act differ in purpose and character to consent powers.
(g)If it were accepted, as Ms Coates-Kelly submits, that applicants retain a right in perpetuity to resume their application, unless expressly abrogated and pursuant to an implied right under s 42D of the Act, there would never be a defined end to applications. Emerita Professor Robyn Creyke AO, while a member of this Tribunal, cited French J in Sloane,[7] as his Honour then was, to highlight the potential difficulties of this, which the Tribunal respectfully adopts:
‘It is not without difficulty and is attended by policy considerations which are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances.’
(h)The Act specifies narrow circumstances where reinstatement may be granted. Decisions in this regard do not turn on whether an applicant has expressly withdrawn their application in a consent agreement, as the only way of abrogating a purported preserved right to continue it at any later time.
(i)It is not accepted the Tribunal needs to consult extrinsic materials or principles of statutory interpretation to resolve any ambiguity or obscurity regarding the plain meanings of its consent and remittal powers.
[6] Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240, [11] (Spender, Higgins, Madgwick JJ).
[7] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, [30] (French J), cited in Aldridge and Repatriation Commission [2012] AATA 571, [8] (Creyke SM).
It follows there is no proper basis to reinstate the application, nor to recommend a referral to the Federal Court of Australia about the question of law advanced by Ms Coates-Kelly.
DECISION
The application for reinstatement is not granted pursuant to s 42A(10) of the Act.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision of Senior Member A.A. Nikolic, AM CSC ............................[Sgd].......................................
Associate
Dated: 18 August 2023
Advocate for the Applicant: | Mrs Rae Coates-Kelly |
Advocate for the Respondent: | Ms Lindsay Cooper |
Solicitors for the Respondent: | Australian Government Solicitors |
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