Kirk and Repatriation Commission

[2007] AATA 1364

Administrative Appeals Tribunal

DECISION AND REASONS FOR INTERLOCUTORY DECISION [2007] AATA 1364

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2007/15

VETERANS' APPEALS  DIVISION		)
Re		ROBERT PETER KIRK

Applicant

And REPATRIATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal The Hon R J Groom (Deputy President)

Date25 May 2007  

PlaceHobart

Decision

1. Application No. T2007/15 is dismissed pursuant to Section 42B of the Administrative Appeals Tribunal Act 1975.

2. The applicant must not without leave of the Tribunal make any further application to the Tribunal in respect to any claim that he has rendered qualifying service pursuant to Section 7A of the Veterans' Entitlements Act 1986 in relation to his service with the Royal Australian Air Force between 27 February 1964 and 31 August 1964.

..............................................

Deputy President

CATCHWORDS

Practice and Procedure - application to dismiss under Section 42B of the Administrative Appeals Tribunal Act 1975 - two previous decisions of Tribunal rejecting same claim - attempt to re-litigate matters previously determined - claim untenable - whether application "vexatious" - application dismissed - Direction that no further applications of the same kind be made without Leave

Administrative Appeals Tribunal Act 1975 Section 42B

Veterans’ Entitlements Act 1986 Section 5B and Schedule 2

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125

Williams v Australian Electoral Commission (1995) 21 AAR 407

Rana v Military Rehabilitation & Compensation Commission [2005] AATA 1069

Singh v Secretary Department of Employment and Workplace Relations [2006] AATA 584

REASONS FOR INTERLOCUTORY DECISION

25 May 2007   The Hon R J Groom (Deputy President)

1. The Repatriation Commission has applied, pursuant to Section 42B of the Administrative Appeals Tribunal Act 1975 ("the Act"), for the dismissal of Mr Kirk’s application for review No. T2007/15 lodged on 25 January 2007.

2.              From this point in these Reasons for Decision Mr Kirk will be referred to as "the applicant" and the Repatriation Commission as "the respondent".

3. In addition to the dismissal of the substantive application the respondent asks the Tribunal to give a direction under Section 42B(1)(b) of the Act.

4. The dismissal application was heard in Hobart on 27 March 2007. Mr Castle appeared for the respondent. The applicant appeared in person and gave oral evidence. The “T Documents“ lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 and several other documentary exhibits were received into evidence.

5.              The respondent's dismissal application is in the following terms:

“Application pursuant to Section 42B

Pursuant to Section 42B of the Administrative Appeals Tribunal Act 1975 the Respondent requests that the Tribunal:-

(a) dismiss this application and

(b) direct that the Applicant must not without leave of the Tribunal make any subsequent application in respect of recognition by the Respondent pursuant to Section 7A of the Veterans’ Entitlements Act 19876 in relation to his service with the Royal Australian Air Force between the 28th of February 1964 and the 28th of August 1964.

In support of this application the Respondent says that this claim has previously been dealt with by two decisions of the Tribunal in matters T 00/025 (sic) and T 02/293 and that the Applicant has not lodged any fresh material in respect of this claim”.

6. Section 42B of the Act provides as follows:

"(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a) dismiss the application; and

(b) if the Tribunal considers it appropriate, on the application of a party to the       proceedings, direct that the person who made the application must not,   without leave of the Tribunal, make a subsequent application to the Tribunal         of a kind or kinds specified in the direction.

(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

(3) The Tribunal may discharge or vary such a direction".

The Issues

7.              (a)         Taking into account two previous decisions by the Tribunal on the    same issues between the same parties, and other relevant matters, whether       the substantive application should be dismissed as vexatious.

(b)      Whether in all the circumstances it is appropriate to require that the            applicant obtain leave of the Tribunal before lodging any further application    relating to the same claim.

Background

8.              The applicant served in the Royal Australian Air Force from 4 February 1963 until 21 March 1967.  From 28 February 1964 until 28 August 1964 he served with the base squadron at Ubon in Thailand.  On 28 August 1964 he flew by military aircraft direct to the Butterworth Air Force Base in Malaysia ("Butterworth") arriving there on that day.  The applicant remained at Butterworth until 30 August 1964 when he departed, again by military aircraft, to return to Australia. 

9.              In application No T2007/15 (the current application), and in two earlier applications, Nos T2001/25 and T2002/293, the applicant has contended that he had rendered “qualifying service” during the period of his service overseas as set out above.  If the applicant did indeed render “qualifying service” it would entitle him to certain benefits under the Veterans’ Entitlements Act 1986.

10.            The applicant first claimed “qualifying service” on 24 January 2001.  The grounds of that initial claim included his period of service at Ubon, the flight from Ubon to Butterworth, "whether he incurred danger from hostile forces of the enemy" and also the time he spent at Butterworth.  This first application was rejected by the Repatriation Commission.  The applicant then applied to this Tribunal on 27 February 2001 for a review of the Commission’s decision. (Application No. T2001/25)

11.            In a written decision dated 27 July 2001, Tribunal Member Associate Professor B W Davis AM, affirmed the Repatriation Commission’s decision and determined that on the evidence before the Tribunal the applicant had not rendered “qualifying service”.

12.            The applicant then made a further application on 19 August 2002 once again claiming “qualifying service”.  That particular claim was made in respect to his service in Ubon and the period spent at Butterworth.  Again, that claim was rejected by the Repatriation Commission.  The applicant then applied to the Tribunal for a review of the decision. 

13.            That application (No T2002/293) was heard by Deputy President Wright QC.  In a written decision dated 30 May 2006 Deputy President Wright determined that the applicant had not rendered qualifying service and affirmed the decision then under review.

14.            The Tribunal concludes from the evidence and submissions at the hearing on 27 March 2007 that there is nothing of any significance in the current application which had not been previously considered and determined in the decisions of Member Davis and/or Deputy President Wright.  The applicant’s service at Ubon, the question of whether he “incurred danger from hostile forces of the enemy” and his period at Butterworth were all considered and determined by Member Davis in his 2001 decision.  The issues before Deputy President Wright narrowed in the course of the 2006 hearing and became confined to the period the applicant was at Butterworth.  That particular issue had been decided by Member Davis but was again considered and determined by Deputy President Wright.

The Period of Time at Butterworth

15.            The main contention advanced by the applicant in his current application for review dated 25 January 2007 is that the period spent at Butterworth was “qualifying service”.  He did refer briefly to the dangers he believed he incurred during the flight to Butterworth.  As was mentioned above that particular issue was previously decided by Member Davis and no new evidence or contentions are now being advance by the applicant.  The Tribunal is satisfied that particular element of the claim is plainly untenable and cannot succeed.

16.            In their decisions of 27 July 2001 and 30 May 2006 both Member Davis and Deputy President Wright explained, correctly in my view, that the only basis upon which the applicant’s period of service at Butterworth could be “qualifying service” was if he had been “allotted for duty” during that period.

17. As both Member Davis and Deputy President Wright stated in their respective decisions an “allotment for duty” must be by a “written instrument” of the kind referred to in the definition of “allotted for duty” in Section 5B of the Veterans’ Entitlements Act 1986.

Absence of Written Instrument

18. It is not in dispute that the applicant was present in an "operational area" when he was at Butterworth in late August 1964. Malaysia is described as an operational area during the period 17 August 1964 until 30 September 1967 (see Item 7 of Schedule 2 of the Veterans' Entitlements Act 1986). The applicant's presence in Malaysia at the specified time is obviously at the heart of his continuing sense of grievance and the reason he seeks to re-litigate his claim once again. However in order to render "qualifying service" the person concerned must not only be present but actually be "allotted for duty" in that area at the specified time.

19.            The applicant acknowledged that his service record did not record that he was allotted for duty at Butterworth.  However he said in evidence:

"How can I be at Butterworth for two days and two nights, not being under some chain of command;  and to be under a chain of command you have got to be allotted, attached or posted to some unit that is there.  Now, when I arrived at Butterworth I arrived on an Air Force C130 Hercules plane.  I was on their manifest.  So before I could get on that plane, I had to be put on their manifest to say I was on the flight.

Now, that flight took me from Ubon to RAAF Butterworth.  When I got off the plane at Butterworth I had to be signed off the aircraft manifest to say that I had arrived.  Then, after such, Deputy President, I had to present myself to Headquarters Butterworth to get checked that I had arrived and was booked in.  Like, you go to a hotel, you get booked in.  So they knew I was coming, certifiably recorded that I had arrived and was there.  Now, while I was there, I had to be - being a lowly rank airman, or LSE.

I had to be answerable to some chain of command in order even to get a meal.  I can't walk into a mess and get a meal unless I am on their manifest of that mess sheet, because the cooks have to cater for so many meals for so many personnel"  (Transcript page 12)

20.            It was submitted by the applicant that the failure to record his allotment for duty at Butterworth resulted from an error or oversight by the responsible personnel. He pointed to several errors in the official defence records relating to himself and said those errors showed that "the Air Force was not infallible".  The applicant argued that if defence personnel could make those errors then equally it should be accepted that they erred in failing to properly record that he was allotted for duty at Butterworth:  He said:

"Did someone forget to record it?  Did someone forget to mention it?  Did someone forget to file it?  Or What"   (Transcript page 18)

21.            The applicant emphasised his own abilities as confirmed in his Certificate of Discharge dated 13 July 1967.  He said:

"So I can speak authoritatively on the matter on how the Air Force operated in the administration field.  Also, on my discharge certificate, which is page 16, as you notice, it says my trade proficiency in my trade skill was clerk administrator, and my proficiency was superior.  Not good, not very good, not excellent - superior".

22.            There is, however, persuasive written material before the Tribunal confirming that allotment for duty is an important formal process and that not all members of the defence force who are present at a particular military base are necessarily allotted for duty there.

23.            Mr R Quinn, a delegate of the Repatriation Commission in a letter dated 16 February 2000 (T Documents page 37) referred to part of the Explanatory Memorandum to legislation amending the Veterans' Entitlements Act 1986:

"The Explanatory Memorandum to the bill noted that the relevant amending clause would amend relevant parts of sections 5, 6 and 36 of the Principal Act to overcome the Federal Court's decisions in Davis and Doessel where the court construed the phrase "allotted for duty" as being equivalent to "posted for duty". Such a construction, if not reversed, would result in an unintended extension of the benefits under the Act to all service personnel who were in an operational area during a relevant period irrespective of the duration of that service, of the purpose of their presence in the area, of the actual duties undertaken during that period and of the fact that the Defence Force, apart from posting them to that area, had not formally allotted them for service in that area.

The concept of "allotment for duty" is a special one which was developed to cater for and identify service which attracted Repatriation benefits".

24.            Ms C Craven of the Department of Veterans' Affairs said in a letter dated 12 October 2006 (T Documents page 5):

"In relation  to your contention that as you were given food and lodgings at Butterworth and were required to attend medicals and debriefings it must have been a clerical oversight that your service record was not amended to show an attachment to a unit at that Base, my response is:  members of the Defence Force are routinely provided with board and lodgings at Bases distant to their postings to engage in activities such as sports carnivals etc and these do not require those members to be attached to a unit at that Base.  And secondly, members of the Defence Force are routinely required to attend medicals, briefings, have vaccinations etc at Bases en route to or from postings overseas and this does not require them to be either posted or attached to the Base or unit at which these activities occur".

25.      The Department of Veterans’ Affairs states that the applicant’s service record “... shows no attachment to a unit at Butterworth ... “ and that he was “... not allotted for duty in the operational areas described ...” (see T Documents pages 5 and 6).  I accept those statements as correct statements.  The Tribunal is satisfied that the reason there is no mention in the applicant's service records of his allotment for duty at Butterworth is because he was not formally allotted for duty whilst there.

26.      I note that the applicant has made a relatively recent Freedom of Information application seeking Departmental records.  I say 'relatively recent' because the applicant has known since at least July 2001 that the absence of a written instrument would be fatal to any claim that he rendered "qualifying service" whilst at Butterworth.  After considering all of the evidence the Tribunal is satisfied that it would be quite unrealistic to expect that the FOI application will result in the production of a written instrument of the kind required. 

The Law

27.      The Courts have frequently expressed the view the power to dismiss proceedings prior to a normal hearing must be exercised with caution.  (See for example the judgements of Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and of Barwick CJ in General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125).

28.      In General Steel at page 128 Barwick CJ said:

"The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

29. Of the two key words in Section 42B "frivolous" or "vexatious" the latter is the more appropriate to consider in this case. It has been given a technical legal meaning by the Courts. In Attorney General v Wentworth (1988) 14 NSWLR 481 Roden J said at page 491:

"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1.        Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person again whom they are brought.

2.        They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.        They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless".

That decision was cited as good authority in a joint decision of three Presidential members of this Tribunal (Mathews, Hill and Beaumont JJ) in Williams v Australian Electoral Commission (1995) 21 AAR 407.

30.      Although the applicant is critical of both of the earlier decisions of the Tribunal I do not believe that he has brought these proceedings to annoy or embarrass anyone or for any collateral or ulterior purpose.  In his mind he has an entitlement and that is why he is pursuing his claim and seeking to re-litigate it.  The first two parts of the above test therefore do not apply in this matter however the third part of the test does.  This claim is obviously untenable. 

Conclusion

31. It is in the public interest that proceedings have finality. It should not be open to an applicant to simply re-litigate matters previously decided. The Act provides an appeal process but the current application is not an appeal against the two earlier Tribunal decisions. On those two earlier occasions the same issues present in this application were fully considered and determined as between the applicant and the respondent. Not only did the applicant have the opportunity to argue his case at the two previous hearings, but he also had the opportunity to produce any new evidence or arguments at the dismissal application hearing on the 27 March 2007. Nothing new of any significance was advanced at the most recent hearing. (For examples of the application by the Tribunal of Section 42B of the Act in circumstances where there has been an attempt to re-litigate matters see Rana v Military Rehabilitation & Compensation Commission [2005] AATA 1069 and Singh v Secretary, Department of Employment & Workplace Relations [2006] AATA 584).

32. It seems to the Tribunal that the maxim res judicata and the question of jurisdiction to rehear a previously decided claim could well have application here. Neither matter was specifically advanced by the respondent although Mr Castle submitted that Section 42B covered both. However the principal issue is simply whether the current application is so untenable that it can properly be considered vexatious.

33.      In the Tribunal's view this application is plainly untenable.  That view is arrived at on a fresh examination of the law and all of the evidence.  There is no evidence that a written instrument of the kind required actually exists.  It is reinforced by the reality that on two previous occasions this Tribunal, differently constituted, has determined that the same claim could not succeed.

34.      It is not good justice to unnecessarily prolong a proceeding which is clearly bound to eventually fail thereby causing a pointless waste of significant time and expense for all concerned.

35. As the applicant has sought to re-litigate matters previously decided by the Tribunal I consider that it is appropriate to give a direction under Section 42(1)(b) of the Act.

Decision

36. 1. Application No. T2007/15 is dismissed pursuant to Section 42B of the Administrative Appeals Tribunal Act 1975.

2. The applicant must not without leave of the Tribunal make any further application to the Tribunal in respect to any claim that he has rendered qualifying service pursuant to Section 7A of the Veterans' Entitlements Act       1986 in relation to his service with the Royal Australian Air Force between 27 February 1964 and 31 August 1964.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  27 March 2007
Date of Decision  25 May 2007
Counsel for the Applicant         Applicant appeared on his own behalf
Counsel for the Respondent     Mr Michael Castle
Solicitor for the Respondent     Repatriation Commission