Lamacraft and Repatriation Commission - [2001] AATA 127

DECISION AND REASONS FOR DECISION [2001] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/479

VETERANS' APPEALS DIVISION       )
           Re      RICHARD LAMACRAFT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date21 February 2001
PlaceCanberra

Decision      The application for an extension of time in which to lodge an application for review is granted.
  ....................(Sgd).....................
  Michael Sassella
  Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - application for an extension of time in which to apply for review of decision - in excess of 4 months out of time - consideration of merits of the applicant's case - circumstances of the applicant - role of applicant's representatives - exercise of discretion - application granted
Legislation
Administrative Appeals Tribunal Act 1975
Veterans' Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988
Authorities
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Repatriation Commission v Gordon (1990) 26 FCR 569
Repatriation Commission v Tuite (1992) 37 FCR 571
Comcare v A'hearn (1993) 45 FCR 441
Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520
Roberts and Repatriation Commission (1992) 27 ALD 408
Beard and Commissioner for Superannuation (1999) AATA 502

REASONS FOR DECISION

21 February 2001 Michael Sassella, Senior Member

This is an application by Mr Richard Lamacraft (the "applicant") for an extension of time in which to make an application for review of a decision by the Veterans' Review Board (the "VRB") dated 12 May 2000, which affirmed a decision made by a delegate of the respondent on 7 June 1999 refusing the applicant's claim for gastro-oesophageal reflux disease and gastritis with helicobacter.
The hearing took place by telephone on 5 February 2001. Mr Paul Crabb represented the applicant and Mr Jim Marsh represented the respondent. The tribunal had before it the following documents:

Veterans' Review Board Decision and Reasons VRB No: N99/1786; DVA No: SM20234, Richard Lamacraft, 12 May 2000;
Administrative Appeals Tribunal Application for Review of Decision received on 19 December 2000;
Administrative Appeals Tribunal Application for Extension of Time for Lodging Application for Review of Decision received on 20 December 2000;
Letter from the applicant to Mr Paul Crabb dated 31 January 2001(received by the tribunal at the end of the hearing); and
Letter from Mr Paul Ontong, Director Military Compensation and Rehabilitation Service to the applicant dated 10 January 2001 (received by the tribunal at the end of the hearing).

Background

The tribunal received the applicant's application for review on 19 December 2000 and received an application for extension of time from the applicant on 20 December 2000. The reasons for the application for extension of time were stated as "only recently received advice from RSL advocate & legal representative. On this advice, applicant decided to proceed".
By letter dated 21 December 2000, the tribunal requested that the respondent advise within 14 days whether or not it opposed the granting of an extension in time. The letter also stated that if the respondent opposed the application, written reasons would have to be lodged within the same period. If the application was not opposed, the respondent was asked to sign and return an attached form.
On 19 January 2001 the tribunal contacted the respondent's representative, Mr Marsh, in an attempt to ascertain the respondent's position on the application, as nothing had been received which indicated whether it objected or consented to the application. Mr Marsh stated that the respondent preferred to let the tribunal decide the matter on the basis that there was "no point" because the tribunal allowed a 12 month appeal period in any event. On 1 February 2001 the tribunal informed both parties that the extension of time application would be listed for hearing on 5 February 2001. On this occasion Mr Marsh again repeated the view that the tribunal "automatically" grants an extension of time if the relevant period is less than 12 months.
Legislation
The relevant provisions of the Administrative Appeals Tribunal Act 1975 (the "AAT Act") are as follows:
S29     Manner of applying for review
29(1)    An application to the Tribunal for review of a decision:
          (a)       shall be in writing; and
          (b)      may be made in accordance with the prescribed form; and
(c)except in paragraph (ca) or (cb) applies – must contain a statement of the reasons for the application; and
(ca)…
(cb)…
(d)if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) – shall be lodged with the Tribunal within the prescribed time.
…
29(2)Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after;
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is furnished to the applicant.
…
29(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
…

The relevant provisions of the Veterans' Entitlements Act 1986 (the "VEA Act") are as follows:

176 Application of Administrative Appeals Tribunal Act
…
(4)Section 29 of the Administrative Appeals Tribunal Act 1975 applies to and in relation to an application to the Administrative Appeals Tribunal for a review of a reviewable decision:
(a)as if "ending 3 months" were substituted for "ending on the twenty-eighth day" in subsection (2) of that section; and
(b)as if at the end of subsection (7) there were added "until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit.

Subsection 176(4) of the VEA Act thus substitutes a period of three months for the period of 28 days provided by the AAT Act for the time within which an application is to be made following the making of the decision. The applicant in this case applied for review of a decision dated 12 May 2000. Subsection 29(2) of the AAT Act states that the date from which the period within which an applicant may apply for review of a decision is the date on which the decision is "furnished to the applicant". The applicant's application for an extension of time states that he was "unable to answer" the question regarding which date he received the decision, other than that it was "shortly after decision posted". The tribunal finds that the decision was most likely received by the applicant within the normal course of post (section 29, Acts Interpretation Act 1901), the contrary not being shown or sought to be shown by either party (see also Repatriation Commission v Gordon (1990) 26 FCR 569). The three-month period allowed to the applicant in which to apply for review of the decision begins on or around the date 12 May 2000, ending on or around the date 12 August. The applicant seeks an extension of time to 20 December 2000, some four months after the expiration of the three-month period under section 176(4) of the VEA Act. The tribunal's general discretion to extend time under section 29(8) of the AAT Act is overridden by section 176(4)(b) of the VEA Act. That section imposes an absolute time limit of "not more than 12 months" after the decision within which time the tribunal may consider an application for extension of time.
Relevant considerations
In the decision Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J (at 348-349) set out a number of factors which can be considered in exercise of the discretion to extend time. Those factors were summarised by the tribunal as "six principles" in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302 (see also Beard and Commissioner for Superannuation (1999) AATA 502):
(a)It is a pre-condition to the exercise of the discretion 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.
(b)Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he contests the finality of the decision is relevant. If the applicant has "rested on his rights" this may operate against the exercise of the discretion.
(c)Prejudice to the respondent is a material factor militating against the grant of an extension.
(d)The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(f)Consideration of fairness as between the applicant and other persons in a like position are relevant.

It is necessary, then, to consider the applicant's case with regard to each of these principles to help determine whether an extension of time should be granted.
Explanation of the delay

The applicant lives some distance from Canberra on a farm, in New South Wales. It was submitted that there had been some "juggling" for the applicant to get to Canberra and speak with an RSL representative in order to organise his application for review. It was also pointed out by Mr Crabb that the relevant RSL representative has limited resources for progressing applications and that this may on occasion be a contributing factor to delay. There was very little further said with regard to an explanation for the applicant's delay.
A partial explanation for the delay may be that the applicant has of late focussed upon an application for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the "SRC Act") within the Military Compensation and Rehabilitation Service of the Department of Veterans' Affairs. By letters dated 19 July 1999 and 21 July 1999 the applicant requested a reconsideration of a decision dated 30 June 1999. The 30 June 1999 decision disallowed the applicant's claim for compensation on the basis that there was "insignificant medical evidence" to establish that the applicant's military service caused, aggravated or accelerated his claimed conditions of oesophagitus, gastritus and Barrett's metaplasia (letter from Mr Paul Ontong to applicant dated 10 January 2001). In a letter dated 10 January 2001, the original determination was affirmed (just why it took well over a year for this reconsideration to be finally determined is not explained).
Clearly the applicant has been seeking compensation for conditions which are also the subject of his application before the tribunal. The fact that he has been doing so in another forum could have contributed to his delay in applying for review of the decision of the respondent dated 12 May 2000.
Action taken by the applicant
The applicant contests the finality of the respondent's decision and there is no evidence to suggest that he is simply "resting on his rights".
Prejudice to the respondent
There was no issue in this matter as to any serious prejudice to the respondent, although the respondent's representative did not wish to "press the point" any further. The applicant's representative was of the view that any prejudice would be "on the applicant" and "of his own making".
Unsettling of other people or of established practices
There is no suggestion of any unsettling of other people or established practices in this matter.
Merits
The respondent did not point to any obvious weakness in the applicant's case or suggest that the applicant is unlikely to succeed (Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520). In considering an extension of time application the tribunal is not required to "enter into a full and final evaluation of the merits of the proposed substantive appeal" (Repatriation Commission v Tuite (1992) 37 FCR 571 at 577). As medical and other evidence, including documents to be lodged pursuant to section 37 of the AAT Act, are yet to be lodged the tribunal is not in a position to make a detailed assessment of the applicant's case. I am prepared to find that there are issues worth arguing based on the applicant's contention that the reviewable decision failed to give "appropriate weight" to certain evidence. The only conclusion that can be reached on the merits of the applicant's case, at this stage, is that the merits are not significantly lacking.
Fairness
The applicant has applied for an extension of time approximately four months out of time. There is unlikely to be any unfairness to the respondent if the application is granted, given that the actual length of time which has elapsed between the expiration of the three-month period and the applicant's application for review of a decision is not excessive. Further, if the application is granted by the tribunal it would not be unfair to other applicants who have exercised their rights within the time limits or who have "observed those limits and refrained from seeking an extension of time" (Beard and the Commissioner for Superannuation (1999) AATA 502 at paragraph 47). This is again because the actual time involved is not long and is reasonable given the circumstances of the applicant.
Conclusion
During the course of the hearing and, as discussed above, during telephone conversations with the respondent's representative, it became clear that the respondent had developed a view that extensions of time will automatically be granted if an application is made within the 12 month period specified in section 176(4)(b) of the VEA Act. During the hearing Mr Marsh stated that "it concerns me that there seems to be a culture evolving where 12 months is a matter of right". However, it is clear that the legislation does not provide any automatic extension of time if an application is made within 12 months. The scheme under the VEA Act for time limits was considered by O'Connor J in Roberts and Repatriation Commission (1992) 27 ALD 408 at 416:
The payment of pensions and benefits is not open-ended in that veterans must satisfy certain eligibility criteria. A system of review involving the Veterans' Review Board and the Administrative Appeals Tribunal has been set up under the Act. Time limits are set in s57A for internal reviews, s135 for review by the Veterans' Review Board and in s176 for review by the tribunal. At all levels of the review system then parliament has evinced an intention, based on public policy, that veterans should not have an unlimited time in which to pursue their claims. In recognition, however, that the class of persons to whom the Veterans' Entitlements Act applies may have difficulty the normal 28 day time limit under s29 of the Administrative Appeals Tribunal Act has been lengthened.
In this case the time limit for lodging applications with the tribunal is 3 months. If an application is not lodged within that time certain consequences flow, but an applicant is not deprived of all rights. An extension of time may be granted up to 12 months. This is a case where substantial compliance is not possible. Either an application is lodged within the prescribed time or it is not.
The tribunal must be able to find that "substantial compliance" was "not possible" in order to grant an extension of time up to 12 months following the expiration of the three-month time limit. This does not mean that applicants can assume the extension of time will be granted. Proving that compliance with the three -month time limit was not possible may be difficult to do. Although an "acceptable explanation" for delay is expected in these matters, it is not an "essential precondition" to granting an extension (Comcare v Ahearn (1993) 45 FCR 441 at 444). This is a matter that comes close to being described as without an "acceptable explanation" for the delay. It is also by no means clear that "substantial compliance" was simply "not possible" on the basis of the meagre facts presented to the tribunal by the applicant.
However, I am inclined to grant the application for an extension of time on the basis of three facts. First, it is understandable than an applicant living outside major metropolitan areas might have some difficulty communicating with their representatives (face-to-face communications being an important component of giving instructions). Second, the RSL representative in Canberra is understood to have minimal resources at his disposal in coordinating veterans' applications. Third, the applicant was clearly primarily focussed upon his SRC Act application throughout 2000. These facts make an application for review of the respondent's decision which is effectively, under the VEA Act, four months over the time limit a delay which is not unreasonable.
Decision
The application for an extension of time in which to lodge an application for review is granted.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member
Signed:         James Enderbury            .....................................................................................
  Associate
Date/s of Hearing  5 February 2001
Date of Decision  21 February 2001
Counsel for the Applicant        Mr Paul Crabb
Solicitor for the Applicant         Snedden Hall and Gallop
Counsel for the Respondent    Mr Jim Marsh
Solicitor for the Respondent    DVA Advocacy Section