Lamers and Veterans' Review Board and Repatriation Commission - [2001] AATA 542

DECISION AND REASONS FOR DECISION [2001] AATA 542

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/992

VETERANS APPEALS DIVISION )
Re PETER LAMERS

Applicant

And And VETERANS' REVIEW BOARD Respondent REPATRIATION COMMISSION PARTY JOINED

DECISION

Tribunal Mr J. Handley, Senior Member

Date8 June 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
  ..........Sgd. Mr J. Handley...........
  Senior Member
CATCHWORDS
Veteran's Entitlements – Dismissal by VRB of application – Mandatory notice – failure to provide written statement – decision affirmed.
Veterans' Entitlements Act 1986 ss 126(1) 155AA 166(1A)

REASONS FOR DECISION

8 June 2001 Mr J. Handley, Senior Member

This is an application to review a decision made by the Veterans' Review Board ("VRB"), made on 18 July 2000, to dismiss an application pursuant to s.155AA(5) of the Veterans' Entitlements Act 1986 ("the Act").
Subsequent to the commencement of the proceedings in this Tribunal, an application was made by the Repatriation Commission to be joined as a party pursuant to s.30(1)(d) of the Administrative Appeals Tribunal Act 1975. There being no opposition to the joinder by the applicant's representative, an Order was made on 21 February 2001 that the Repatriation Commission be joined as a party.
The hearing of this application was convened in Melbourne on 9 May 2001. Mr De Marchi appeared on behalf of the applicant. Mr Topperwien appeared on behalf of the Principal Member of the VRB. Mr Hanks of Counsel appeared on behalf of the Repatriation Commission. A number of documents were received into evidence and will be referred to in these reasons. Mr Hoelzinger, the Registrar of the VRB gave evidence.
The Legislation
The relevant sections of the Act are s.126(1) & (4), 155AA and 166(1A). Those sections are reproduced as follows-
"126 Death of claimant
(1)On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant.
(4)In this section, claim means a claim in accordance with section 14, 35B, 36D, 37D, 38D, 39D or 45I, an application in accordance with section 15, and an application for review under Division 16 of Part IIIB, section 135 or 175, and claimant has a corresponding meaning.
155AA Power to dismiss application - initial consideration
(1)       In this section:
standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia.
(2)       This section applies to an application for review unless:
(a)the hearing of the review has finished within the standard review period; or
(b)as at the end of the standard 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, at the end of the standard review period:
(a)this section applies to an application for review; and
(b)the Principal Member considers that the applicant should be ready to proceed at a hearing;
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;
(c)a written statement indicating that the applicant is ready to proceed at a hearing; or
(d)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) (c) or (d) 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) (d) 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) (d) 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.
166 Delegation
(1)The Principal Member may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Principal Member, delegate to a Senior Member or to an acting Senior Member all or any of the Principal Member's powers under this Part, other than this power of delegation.
(1A)The Principal Member may, by writing signed by him or her, also delegate all or any of his or her powers under subsection 148(6A) or section 155AA or 155AB to a registrar or a deputy registrar.
(2)A power delegated under this section, when exercised by the delegate, shall, for the purposes of this Part, be deemed to have been exercised by the Principal Member.
(3)A delegation under this section does not prevent the exercise of a power by the Principal Member".

The Facts

The facts may be briefly summarised as follows-
On 3 April 1995, the late John Joseph Flentjar, lodged an appeal with the VRB against a decision the Repatriation Commission made on 30 March 1995. The VRB subsequently wrote to Mr Flentjar and notified him that documentation had been received from the Repatriation Commission. Arrangements were made to list the appeal for hearing, but an application was made to take Mr Flentjar's evidence by telephone because he was ill and his wife was also seriously ill. The Pascoe Vale RSL subsequently notified of the appointment of an advocate, however on 4 December 1998 Mr Richards, an advocate from the Pascoe Vale RSL, notified the VRB that Mr Flentjar had died.
The VRB subsequently learnt of the identity of the deceased's daughter in Western Australia and wrote to her and asked whether she intended to continue the proceedings. She subsequently notified the VRB that Mr Lamers (the applicant in these proceedings) was the trustee of her father's estate. Mr De Marchi subsequently forwarded a copy of the will of the late Mr Flentjar to the VRB on 27 May 1999.
On 4 June 1999 the VRB wrote to Mr Lamers advising him that he had been identified as the legal personal representative and was entitled to continue the application on behalf of the estate. The VRB also notified Mr Lamers that Mr Richards had been appointed by Mr Flentjar in his lifetime to represent him and it was suggested that Mr Lamers might wish to speak with Mr Richards about the proceedings.
On 28 August 1999 the VRB received notification from Mr Lamers, that he had instructed Mr De Marchi to represent him at any subsequent hearing.
On 17 May 2000 Mr Hoelzinger forwarded a letter to Mr De Marchi (and a copy to Mr Lamers). Omitting irrelevant and formal parts, the letter read as follows- (T-16 p.24)
"Dear Mr De Marchi
I am writing regarding the application for review, number V95/0977, of the Repatriation Commission decision of 30 March 1995 in respect of lumbar spondylosis, cervical spondylosis. This review was commenced by veteran John Joseph FLENTJAR (deceased) and passed to the current Legal Personal Representative, Mr Peter Lamars, solicitor, as the Executor and Trustee of Mr Flentjar's estate, upon Mr Flentjar's demise.
On 1st March 1999, the Board received advice from Mr Lamers indicating that he had requested De Marchi & Associates to proceed with the review of this matter. As you are aware, as a legally qualified practitioner, it would not be possible for you to represent Mr Lamers before a hearing of the Board and I am therefore seeking clarification as to how you would like to proceed with this matter.
You may be aware that I am required to review all cases before the Board that exceed two years from the date of appeal lodgement (ie Application for Review), to determine whether they should be dismissed. In this particular instance, it appears from the Board's file that no substantive action has been taken to progress the matter since the Application for Review was originally lodged with the Department on 21st June 1995, almost five years ago. Given the age of this case (the original Commission decision dates back to 30th March 1995), I would appreciate your assistance in bringing it to a conclusion and seek your advice as to how we might achieve this. Your advice will aid my consideration as to whether dismissal action is appropriate in the given circumstances and would therefore seek your comments within 14 days of the date of this letter".
On 29 May 2000 Mr De Marchi wrote to Mr Hoelzinger in the following terms- (T-17 p.25)
"Thank you for your letter of 17 May 2000.
This matter is now on appeal at the Federal Court.
We shall therefore be pleased if you will not list the matter for hearing.
We appreciate that we are not able to represent Mr Flentjar at the Veterans' Review Board, and ask that you put on record Mr Ted Richards of the Pascoe Vale RSL, . . . as the representative.
We have written to Mr Lamers, attaching a copy of your letter".
In the above letter Mr De Marchi referred to Federal Court proceedings. It is appropriate to digress slightly at this stage and indicate that there have been a number of appeals in this Tribunal, and in the Federal Court concerning applications made by Mr Flentjar for repatriation pension. On one occasion, a Special Leave application was made to the High Court. Those proceedings are unrelated to this appeal.
On 5 June 2000, Mr Hoelzinger again wrote to Mr De Marchi in the following terms- (T-18 p.26)
"I refer to your letter of 29th May 2000 (your ref. K1345(A)), in which you advised that the above matter is not ready to proceed to a hearing because there is a matter in the Federal Court concerning the late Mr Flentjar's pension assessment.
I do not regard that as a reasonable excuse for not proceeding at this time with the application before the Board. There is nothing before me that would suggest that the current application is dependent upon, or would prejudice the outcome of the other. The Federal Court matter and the Board application appear to concern quite independent legal factual questions.
Therefore, I have sent a notice to the applicant, Mr Lamers (executor of the estate of the late Mr Flentjar), under section 155AA of the Veterans' Entitlements Act 1986 seeking a written statement indicating that he is ready to proceed at a hearing, or a written statement explaining why he is not ready to proceed at a hearing.
A copy of that notice is enclosed and I have also forwarded a copy to the applicant's representative, Mr E Richards, Pascoe Vale RSL".
Whilst the above letter is undated, it would appear that it was forwarded on 5 June because the notice referred to in the above letter is dated 5 June. This letter was forwarded to Mr Lamers and to Mr Richards. The letter, and the notice were both signed by Mr Hoelzinger. The notice is reproduced as follows- (T-19 p.27)
"I am writing regarding your application for review of the Repatriation Commission decision of 30 March 1995 concerning lumbar spondylosis, cervical spondylosis (veteran Mr John Joseph FLENTJAR). I recently received correspondence from De Marchi & Associates regarding this matter and I have also attached a copy of my response to Mr De Marchi.
Your application has been outstanding for more than two years and I consider that you should be ready by now to proceed at a hearing. Therefore, in accordance with subsection 155AA(4) of the Veterans' Entitlement Act 1986, I am giving you this written notice requesting you to provide within 28 days a written statement that you are ready to proceed at a hearing or reasons why you are not ready to proceed at a hearing.
The statement must be signed by you and sent to the above address. However, you may authorise another person to represent you in relation to this notice. Such authorisation must be in writing and on the enclosed form. If you wish to authorise another person 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 this notice was received at your postal address, or I consider that the statement provided does not contain a reasonable explanation for your failure to proceed at a hearing, your application will be dismissed. This means that the matter would then be 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".
A copy of the VRB file was received into evidence in these proceedings. On 5 June 2000 there is a file note referring to the letter from Mr De Marchi of 29 May. The note also records the following-
"Bruce Topperwien was in the office when the response was received and suggested that another matter (possibly unrelated) was being pursued, but he thought at the AAT rather than the Federal Court. He asked me to forward the applicant's file to Canberra so he could investigate it more closely and draft a suggested response. Ray H."
On the same day, namely 5 June 2000, another file note records-
"I forwarded the file to Bruce Topperwien via the overnight bag on Monday 5 June 2000. Ray H"
Another note, recorded on 5 June states-
"Created the following standard letter; section 155AA(4) letter."
On 22 June the VRB file has the following memorandum recorded-
"Received a call this morning from son of original applicant Mr John Paul Flentjar (address and telephone number deleted). Spoke to Ray H about this matter. He telephoned Ted Richards (nominated rep) who is trying to clarify where this is heading, and what role Dino De Marchi and Peter Lamers are playing in this matter. Son stated he was keen to continue but there is a question as to whether or not this would be valid given that Mr Lamers is the LPR."
Also on 22 June the following file note is recorded-
"Ted Richards called, stated he had spoken to Mr Lamers and that family were considering withdrawal."
On 18 July 2000 Mr Hoelzinger wrote a letter to Mr Lamers in the following terms- (T-20 p.28)
"On 5th June 2000, I sent you a notice under subsection 155AA(4) of the Veterans' Entitlements Act 1986 (the Act) regarding your application for review of the Repatriation Commission decision of 30 March 1995 in respect of lumbar spondylosis, cervical spondylosis (veteran Mr John Joseph FLENTJAR).
I have not received a written statement giving a reasonable explanation for your failure to be ready to proceed at a hearing. Accordingly, I have dismissed your application under subsection 155AA(5) of the Act.
Enclosed are the reasons for my decision.
If you are dissatisfied with this decision, you have a right to apply to the Administrative Appeals Tribunal for a review of that decision. Advice on how to lodge an application is attached to this letter".
A copy of that letter was forwarded to the Repatriation Commission, the Department of Veterans' Affairs, Mr Richards and Mr De Marchi. Attached to the letter was a notice also signed by Mr Hoelzinger and dated 18 July 2000. The notice provides a chronology as depicted from the correspondence commencing with the lodgement of the application in 1995 and concluding with the letter of 5 June 2000. At the conclusion of the statement of reasons Mr Hoelzinger records the following-
"In accordance with sub-section 155AA(4), I wrote to the applicant on 5 June 2000 requesting, within 28 days, a written statement that the applicant was ready to proceed at a hearing or reasons why the applicant was not so ready. The applicant has failed to provide that statement within 28 days.
In these circumstance I must dismiss the application under section 155AA(5) of the Act."
On 20 July 2000, Mr De Marchi wrote to Mr Hoelzinger in the following terms- (T-21 p.29)
"We refer to your letter of 18th July 2000, received on the 19th July, and note that you have dismissed the application of the estate of Mr J.J. Flentjar.
We are instructed that approximately three weeks ago, the late Mr Flentjar's son telephoned the Registry and indicated that he wished the matter to proceed and that it be fixed for hearing.
We are further instructed that as there was some disbelief on the part of the Veteran's Review Board staff that Mr Flentjar was telephoned back and assumed that the matter would be fixed.
Could you please explain why the matter was not fixed, but rather dismissed?"
On 21 July Mr Hoelzinger wrote to Mr De Marchi in the following terms- (T-22 pgs.30-31)
"I refer to your letter of 20 July 2000, in which you have sought an explanation as to why I recently dismissed the above case under s 155AA(5) of the Veterans' Entitlements Act 1986 (VEA).
Clearly, you are aware of the recent correspondence between your office and me regarding this long outstanding case and I presume that you are acting for Mr Lamars in this matter. I will therefore now address only the most recent and pertinent matters which led to the final dismissal of the case by me on 18 July 2000.
On 5 June 2000, I provided a written notice to the Legal Personal Representative (LPR), Mr Peter Lamars, under s 155AA(4) of the VEA, advising that the matter was being considered for dismissal. In this notice, and in strict accordance with the requirements of the Act, I asked Mr Lamers to provide me, within 28 days, a written statement indicating he was ready to proceed to a hearing or reasons why he was not ready. (The form of this notice has been upheld on every occasion that it has been considered by the Administrative Appeals Tribunal.) The 28 day period for response would have expired shortly after Monday 2 July. In these matters I allow a further seven days before reconsidering next actions to allow for any reasonable delays in the course of post. Thus, my review date for this case was Monday 10 July 2000. However, I did not actually commence the dismissal action for a further 9 days, this having allowed a total of 44 days from the date of my first letter under s 155AA(4), ie, on 5 June 2000, to the dismissal date under s 155AA(5) of 18 July 2000.
The critical factor here is that the LPR simply failed to respond in accordance with my written notice to him. As he did not respond in writing (or, indeed, in any other manner), I had no discretion under the Act but to dismiss the matter: see Re Kathleen Adams and Veterans' Review Board (1992) 16 AAR 307, per Deputy President McMahon, and more recently, Re Johnson and Veterans' Review Board (2000) AATA 282 (12 April 2000) and Re Gregory and Veterans' Review Board (2000) AATA 448 (7 June 2000).
In your letter you make the point that the late Mr Flentjar's son contacted the Board some three weeks ago and indicated that he wished the matter to proceed to hearing. The Board generally keeps detailed file notes in the applicant's records of such contacts. In this instance, the file notes are relatively comprehensive and confirm that Mr Flentjar rang one of my Case Managers on 22 June 2000.
During that conversation, Mr Flentjar indicated an interest in pursuing the matter but said there was a question as to the validity of this, given that Mr Lamers was the LPR. There is no indication in the Board's records that the Board rang Mr Flentjar a second time, as indicated in your letter. However, our record indicates that following Mr Flentjar's discussion with my Case Manager, Mr Lamer's representative, Mr Richards, rang the same Board Case Manager to advise that he had spoken to Mr Lamars who had advised him (Mr Richards), that the family were considering withdrawing the matter.
I must stress that, regardless of the family's wishes, the Board was bound in law to deal with the LPR, Mr Lamars. If the family had wished to proceed with the matter, this could only be done by the LPR, on their behalf. It would appear from the Board's notes, that prior to the final dismissal action, the family had been in contact with the LPR, Mr Lamers, and that Mr Lamers had been in contact with his appointed representative, Mr Richards. However, none of these discussions, all of which were outside the Board's province, resulted in any action on the part of the LPR to respond to my notice of 5 June 2000.
As I have stated earlier, in the absence of any response from the LPR in relation to the 6 June s 155AA(4) notice, I had no choice but to dismiss the matter. I allowed more than sufficient time for the LPR to respond before taking such action.
Clearly, should the LPR be unhappy with the reason for my dismissing the matter, he has the right of appeal to the AAT, and details of the appeal process were set out in my letter notifying him of the dismissal.
I hope this clarifies the matter for you.
A copy of this letter has also been forwarded for information, to the applicant's representative, Mr E Richards, Pascoe Vale RSL".

Mr De Marchi lodged an application in this Tribunal on 15 August 2000 seeking a review of the decision made by Mr Hoelzinger on 18 July.
Raymond Hoelzinger
Prior to the hearing Mr Hoelzinger completed an Affidavit which was sworn on 23 April 2001. The Affidavit was received into evidence. It reads as follows-
"1.I am a delegate of the Principal Member in relation to matters arising under section 155AA of the Veterans' Entitlements Act 1986.
2.Attachment A is a true copy of the instrument of delegation relating to my exercise of powers under section 155AA of the Veterans' Entitlements Act 1986 in June and July 2000.
3.Attachment B is a true copy of the Principal Member's directions regarding dismissal procedures as referred to in the instrument of delegation (Attachment A).
4.On 5 June 2000, having formed the opinion that the applicant should be ready to proceed at a hearing, I sent a notice under the provisions of section 155AA(4) of the Veterans' Entitlements Act 1986 to Mr Peter John Lamers of . Enclosed with that notice was an authorisation form, which the applicant could use if he so wished to authorise a representative to respond, on his behalf. On that day I also sent a copy of the notice to Mr Richards of Pascoe Vale RSL and to De Marchi & Associates, Barristers and Solicitors.
5.On 18 July 2000, there being no record in the Victorian Registry of the Veterans' Review Board of any written response received from either Mr Lamers or an authorised representative, I dismissed the application to the Veterans' Review Board".
In cross-examination Mr Hoelzinger said that he took the view that the application should be dismissed pursuant to the requirements of the legislation. As a result of the "chronology of events" he agreed that he made the decision to initiate the dismissal proceedings. He also agreed that the file was transferred to Canberra, that he had discussed the file with Mr Topperwien, it was he (Mr Hoelzinger) who made the decision and he who was responsible for making it. Mr Hoelzinger thought that the file had been transferred to Canberra after the "dismissal action" but he was not confident that his recollection was accurate.
He said that the factors that he took into account in initiating the dismissal were that the application was in excess of two years old, that he had written to representatives of the parties but had not been given a response and in the absence of reasons given to him as to why the application could not be ready to proceed to a hearing he decided to dismiss it. He agreed that he did consider the "beneficiary's telephone call" (the telephone call from Mr Flentjar Junior) but he said that his obligation was to deal with the applicant's legal representative, who in this case, was Mr Lamers.
With respect to the file note concerning the telephone conversation initiated by Mr Flentjar of 22 June 2000, Mr Hoelzinger denied that Mr Flentjar had indicated that Mr Lamers did wish to proceed with the application and that he (Mr Flentjar) had wanted the application to be fixed.
Conclusion & Reasons For Decision
The provisions of section 155AA appear to me to be a form of case management imposed on the VRB Registrar by the legislation. Contemporary evidence within Courts and Tribunals in Australia indicates that Registrars have a responsibility for the administration and management of applications to ensure that there is no inordinate delay. Whilst the budgetary allocation to Courts and Tribunals does not necessarily increase commensurate with increased numbers of applications, the management of available resources dictates that unnecessary or unexplained delay can and will interfere with efficiency and sound administration. (Refer discussion in Re Adams and Veterans' Review Board (1992) 16 AAR 307 at 317).
The provisions of section 155AA are mandatory to the extent that the Principal Member must give a written notice to an applicant requesting a written statement as to readiness to proceed. The Principal Member then must dismiss the application if the written statement is not provided. However if the application has not been concluded within two years of its lodgement, the appellant has the opportunity to provide a written statement concerning a readiness to proceed or to provide a written statement explaining why the application is not ready to proceed.
In the present application I am satisfied that the District Registrar, Mr Hoelzinger, is properly delegated by the Principal Member pursuant to section 166(1)(A) of the Act. I am also satisfied that the document forwarded by Mr Hoelzinger to Mr Lamers on 5 June is a "written notice" within the meaning of section 155AA. I am also satisfied that it contains the information dictated by sub-section (4) (c) and (d).
I am also satisfied and find as a fact, that the notice of 5 June was forwarded to the legal personal representative and was properly addressed. I am also satisfied that there was no written response to that notice. It follows that Mr Hoelzinger was obliged as a matter of law, to dismiss the application pursuant to section 155AA(5) of the Act.
During the hearing the applicant's representative sought to impugn and to tarnish the reputation of Mr Hoelzinger. It was suggested that Mr Hoelzinger was "influenced" to make the decision that he did and or that "Canberra" was responsible for the decision made. Mr Hanks described these allegations as "fantasy". I would describe the allegations as absurd and ridiculous. The allegations made by Mr DeMarchi were unsupported by any evidence. Mr Topperwein sat beside Mr DeMarchi at the bar table yet no application was made to call him to give evidence.
What is beyond doubt in these proceedings is that the application was more than five years old when it was dismissed. While some delay can be explained by the unfortunate death of Mr Flentjar, there is little to explain why there was continued delay. I note that Mr Hoelzinger wrote to the applicant on 17 May, drawing to his attention that the file was more than two years old and that it was intended to issue a notice under section 155AA. That notice was eventually issued and when there was a failure to respond, the notice under section 155AA was issued. I note that all of the correspondence was forwarded to both the applicant, to the applicant's solicitor and to Mr Richards. There was no obligation for Mr Hoelzinger to write to any person other than Mr Lamers as the legal personal representative. I would consider in the circumstances that the correspondence was forwarded to all of the persons referred to above as a matter of courtesy.
Whilst not strictly relevant, I note that the period of 28 days from the notice of 5 June expired on or about 5 or 6 July, the actual dismissal did not occur until 18 July. Again whilst not strictly relevant there was a failure by the applicant or the applicant's representative prior to, or at the hearing, to explain why there was no response to the correspondence of Mr Hoelzinger.
Mr Hoelzinger had a statutory duty to act as he did. He gave the applicant and the applicant's representative and the RSL representative more than an adequate opportunity to respond to his correspondence. He was obliged to dismiss the application by reason of the failure to respond. The decision that he made in the circumstances must be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ......C. Irons .................................................
  Secretary
Date/s of Hearing  9 May 2001
Date of Decision  8 June 2001
Counsel for the Applicant        Mr D. DeMarchi
Solicitor for the Applicant
Counsel for the Respondent    Mr Topperwien
Solicitor for the Respondent

And – Party Joined Mr Hanks &
Ms J. Promos - AGS