King and Repatriation Commission

[2005] AATA 294

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 294

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No. N2002/555

VETERANS’ APPEALS DIVISION )

Re Keith king and Mary king

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 March 2005

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL       )  No.   N2002/555

)              

VETERANS’ APPEALS  DIVISION		)
Re		KEITH KING AND MARY KING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 March 2005

PlaceSydney

Decision FOR the reasons given orally at the conclusion of the hearing, the application for reinstatement is refused.

(Sgd M D ALLEN)
  ..............................................

Senior Member

CATCHWORDS

REINSTATEMENT – whether application was dismissed in error – merits of substantive application – application for reinstatement refused.

Administrative Appeals Tribunal Act 1975 – ss 42A(10)

Veteran's Entitlements Act 1986 – s 57A

Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Comcare v A’Hearn (1993) 45 FCR 441
Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care (2003) 76 ALD 773
Gallo v Dawson (1990) 93 ALR 479

REASONS FOR DECISION

15 March 2005   Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:          (E.Pope)
          ..................................................................................…………            Associate

Date of Hearing  15 March 2005  
Date of Decision  15 March 2005

Solicitor for Applicant  Self represented

Solicitor for Respondent                Australian Government Solicitor

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
N02/555
By MR M.D. ALLEN, Senior Member
KING v REPATRIATION COMMISSION
SYDNEY, TUESDAY, 15 MARCH 2005

MR ALLEN:   Pursuant to an application lodged on the twenty-fourth day of April 2002, the applicant together with his wife sought review of a decision of the respondent refusing to grant them a service pension on the basis of assets held by them.  The matter proceeded through the Tribunal and at that stage the applicants were represented by an advocate from the RSL.  The matter was duly set down for hearing and was to come on for hearing before the Tribunal on the first day of November 2002.

On the thirty-first day of October 2002 the applicants withdrew their application.  On the twenty-seventh day of January 2005, the applicants made a request to have their application for review reinstated.  In that application it is simply baldly stated that an appeal had previously been listed for hearing on 1 November 2002, but the application withdrawn on legal advice from an RSL advocate which was in error.  The particular error is not specified.  The respondent has opposed the application to reinstate the matter.

Subsection (10) of section 42A of the Administrative Appeals Tribunal Act 1975 states inter alia:

If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

So far as the dismissal in error is concerned, it was stated by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 that error can amount to error on the part of a solicitor and is not confined to administrative error.

Today, in a statement which became exhibit 1 in these proceedings, the applicant says:

The withdrawal was based on expert legal advice, (legal officer -  ex DVA legal branch), that extra time was needed to prepare our detailed submission.

and

Above legal officer had only become available on date of withdrawal, and advised that a later application to AAT was essentially a formality, and would be made before long.

All one can say is that - it is no doubt trite to say - that no application to reinstate a matter is a mere formality, at any time.  Although there is an allegation of error on behalf of the person acting at that stage, it seems to me that there was certainly an error in having the matter withdrawn as opposed to asking for an adjournment on the day so that further and better preparation could be undertaken.

Even so, whether that error led to withdrawal or not, I consider that the subsection provides that the Tribunal must exercise its discretion in deciding whether to reinstate the matter or not.  In applying that discretion it seems to me that there should be applied the non-exhaustive guiding principles stated by His Honour Mr Justice Wilcox in (1984)  Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. I state that even though Hunter Valley Developments Pty Ltd (supra) was a decision under the ADJR Act and referred to an extension of time, it seems to me, however, that similar principles apply here. The non-exhaustive principles are stated as follows:

1Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so.  It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.

2A distinction is to be made between the case of a person who, by non-curial means has continued to make the decision-maker aware that he contests the finality of the decision and a case where the decision-maker was allowed to believe that the matter was finally concluded.  The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem.

3Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

4However, the mere absence of prejudice is not enough to justify the grant of an extension.  In this context, public considerations often intrude.  A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

5The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

6Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion.

So far as the first of those principles is concerned, it has to be modified somewhat following the decision of the Full Court in Comcare v A’Hearn (1993) 45 FCR 441. Certainly, if the justice of the case so provides, an extension should be granted, notwithstanding that there has been no explanation for the delay.

In this matter, as also referred to principle number 2, the applicant states that he has continued to agitate his claim by means of direct representations to the Department of Veterans’ Affairs and also letters to the Veterans’ Affairs Minister and it would appear some letters to the Australian Government Solicitor.  He has given some explanation for the delay in any event, namely, that the RSL seemed to have dispensed with the services of its various advocates and he has been very much left to his own devices as to how to proceed in the matter.  I do not consider that any prejudice accrues to the respondent, it is purely a discussion as to company structures and the structures of the particular trust concerned.

What is more important in this case as I see it are the merits of the substantial application.  That the merits of the substantial application are important was made clear by his Honour Justice Merkel in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care (2003) 76 ALD 773. But more importantly, also by his Honour Mr Justice McHugh in Gallo v Dawson (1990) 93 ALR 479. I would simply pause to quote Mr Justice McHugh because the principles he stated there are I believe apposite here. Namely:

The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.  When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.

Now, in this matter there has also been given to me a chronology which shows that following the withdrawal of the application for review on 31 October 2002 the applicants on 22 July 2003 made a claim for income support pension.  On 12 September 2003 that claim was refused by the Commission as the attributable trust assets were in excess of the assets test limit.  On 1 October 2003 a review of the primary decision was requested pursuant to section 57A of the Veterans Entitlements Act 1986 and on 27 November 2003 that decision was affirmed.

The chronology does not state that any application for review was then lodged with this Tribunal.  I do take into account the fact that the application before this Tribunal was withdrawn in 2002 and it is not until 2005 that the applicants sought to resurrect it.  It seems to me that in the interim, the respondent would certainly have been entitled to believe that the proceedings in this Tribunal had been abandoned.  There is also before the Tribunal a document entitled Respondent's Statement of Facts and Contentions and I have been referred to that document today.  It seems to me, as an aside, that it should be an exhibit and I will mark it as exhibit R2.  That document sets out the case for the respondent.

I note that the applicants have urged that the bases of the original decision was incorrect inasmuch as their six children had become directors of the trustee company as and from the first day of July 2001.  Certainly that they were involved in the management of the trust was acknowledged in the Statement of Facts and Contentions and I refer to paragraphs 5 and 6 on page 3 of that document.  However, no changes have been made to the trust deed and the arguments in relation to that document are still valid.  Furthermore, given the definition of "associate" in section 52ZP of the Veterans Entitlements Act 1986, whether or not the children are directors of the trust company they are still associates.

As far as I can ascertain, the facts and law as set out in the respondent’s Statement of Facts and Contentions are entirely correct.  And even if the matter were to be reinstated the result would be inevitable, that is to say that the decision under review would still be affirmed.  In that circumstance, I see no point in having the matter reinstated.  Consequently, the application to reinstate is refused.