Linwood and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 407
•20 June 2016
Linwood and Repatriation Commission (Veterans’ entitlements) [2016] AATA 407 (20 June 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2014/2037
Re
Mark Linwood
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Bernard McCabe
Date 20 June 2016 Place Brisbane Pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review with respect to the applicant’s psychiatric condition is remitted to the respondent for reconsideration in accordance with these reasons. The Tribunal does not have jurisdiction to review the decision insofar as it relates to the applicant’s asthma condition, and it does not have jurisdiction to review a claim with respect to the applicant’s ankle condition.
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Deputy President Bernard McCabe
Catchwords
VETERANS’ ENTITLEMENTS – remittal from Federal Court – ankle condition withdrawn before review – no reference to asthma in notice of appeal – psychiatric condition remitted to Tribunal for reconsideration according to law – respondent conceded psychiatric condition – decision under review remitted to the respondent for reconsideration
Legislation
Veterans’ Entitlements Act 1986 (Cth) s 70(9)Administrative Appeals Tribunal Act 1975 (Cth) ss 42D, 44
Cases
Linwood v Repatriation Commission [2016] FCA 90; (2016) 148 ALD 542REASONS FOR DECISION
Deputy President Bernard McCabe
20 June 2016
Mark Linwood served in the military. He claimed a pension under the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) on the basis of three medical conditions that he says are attributable to the circumstances of his service. Those conditions are:
a) a psychiatric condition;
b) asthma, and
c) an ankle condition.
Mr Linwood withdrew his claim in respect of an ankle injury before the delegate’s decision was made in relation to that condition. His letter of withdrawal is reproduced in exhibit one at p 188. The other claims were rejected by the respondent. Those decisions were subsequently considered by the Veterans’ Review Board (the VRB). The VRB affirmed the decisions to refuse liability. The dispute subsequently came before this Tribunal. I was the presiding member at the hearing. Following the hearing, on 11 September 2015, I affirmed the decision and published reasons in which I found:
(a)the applicant was unable to satisfy the requirements of the relevant statements of principles with respect to the psychiatric condition. In particular, I explained I was not satisfied there was sufficient evidence to make a finding that the applicant experienced a category 2 stressor connected with his workplace in the six months preceding his diagnosis of depression; and
(b)the applicant was unable to satisfy the requirements of the statement of principles with respect to asthma.
The applicant appealed to the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). I have been provided with copies of the Notice of Appeal and an amended notice of appeal, together with a copy of a letter from the Australian Government Solicitor to the applicant and a transcript of the hearing before the Federal Court. I was also provided with a copy of an affidavit that Mr Linwood wanted to tender in the course of the Federal Court appeal, but which was not received into evidence.
The notices of appeal do not refer to or dispute my decision with respect to the asthma condition. They focus on the decision with respect to the psychiatric condition. The absence of any reference to asthma in the first notice of appeal was mentioned in the letter from the Australian Government Solicitor dated 27 November 2015. The letter noted:
There does not appear to be any mention of asthma in your notice of appeal, so we assume you are not seeking review of the Tribunal’s findings in respect of this condition.
I understand the applicant did not respond to that letter but nor did he make any amendments to the notice of appeal to put the matter in issue. When the matter came on for hearing before Logan J, the discussion concentrated on the psychiatric condition. There was no discussion of the Tribunal’s findings or any dispute in relation to the reasoning process for the asthma condition.
The applicant’s appeal to the Federal Court was successful: see Linwood v Repatriation Commission [2016] FCA 90; (2016) 148 ALD 542. But his Honour’s judgment dealt only with the psychiatric condition. Whereas the Tribunal had found there was not sufficient evidence to be satisfied Mr Linwood experienced a service-related category 2 stressor within a closed period before he was diagnosed with depression, the Court held there was evidence which was potentially capable of providing a basis for a finding that a category 2 stressor occurred. The Court ordered:
1.The respondent’s objection to competency is dismissed.
2.The appeal is allowed.
3.The decision of the Administrative Appeals Tribunal (the tribunal) dated 11 September 2015 is set aside.
4.The matter is remitted to the Tribunal for further hearing and determination according to law.
5.The respondent pay the applicant’s travel expenses related to the applicant’s appearance at Court which are fixed in the sum of $60.00 for return rail travel and car travel.
While the orders setting aside and remitting the decision are cast in general terms, his Honour did not discuss, much less criticise, the Tribunal’s reasons in relation to the asthma condition.
I note Logan J expressly invited the respondent to reconsider its position in relation to the matter: at [60]. It is apparent from the transcript that his Honour believed it would be desirable for the respondent to take into account the fresh evidence which Mr Linwood had tendered at the appeal hearing but which Logan J was unable to consider for that purpose.
There were several directions hearings held by telephone in the Tribunal after his Honour’s decision was handed down. The matter came on for a hearing on 14 June 2016. Mr Linwood was present. He was represented by Mr Wise, the lay advocate who had represented the applicant at the original hearing. At the beginning of the hearing, I discussed how the review should proceed. I thought it was appropriate to do that to ensure the process of review conformed to the Tribunal’s objectives in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth), but also in light of Mr Linwood’s evident anger and frustration. That discussion was useful and has informed the views I express below.
Dealing with the three claims made by the applicant
I turn firstly to the ankle condition. The applicant says that is still a live issue, but it is not. The Tribunal only has jurisdiction to deal with reviewable decisions. In this context, that means (a) the respondent makes a primary determination with respect to a claim that is potentially reviewable; (b) the VRB completes a fresh review in which it affirms, varies or sets aside the respondent’s decision, and (c) the unsuccessful party may seek a fresh review before this Tribunal. The respondent has not made a reviewable decision with respect to the ankle because the applicant withdrew his claim for that condition: see exhibit one at p 188. There has been no original determination and no review by the VRB. That means there is no reviewable decision for this Tribunal to consider. Mr Linwood said he was acting on bad advice from the respondent when the claim was withdrawn. He said he submitted evidence at the hearing with respect to the ankle in any event but it was not considered. I am unable to comment on any advice given to Mr Linwood about his claim but that does not change anything: I simply have no power to consider the ankle claim. His successful appeal to the Federal Court does not change anything because there is no decision to set aside.
I next consider the asthma condition. The applicant says the orders of Logan J are clear enough: the Tribunal’s decision was affected by legal error, and the decision is set aside. The applicant says that means everything I decided following the earlier hearing is of no effect even though only some aspects of the decision were challenged on appeal. If Logan J had intended to limit the remittal to the psychiatric condition, it might be argued, his Honour could have done so in express terms.
The respondent says that is not the way to approach his Honour’s judgment. I have already noted the applicant did not challenge the Tribunal’s decision with respect to asthma in his notices of appeal. There was no substantive discussion of that aspect of the Tribunal’s decision before Logan J, and his Honour did not refer to it in his judgment. The applicant suggested that the omission in the notice of appeal was an oversight because he did not understand the process, but the fact remains there was no challenge to the Tribunal’s reasoning or conclusions with respect to the asthma condition. The respondent says the remittal must be read in that light.
The Tribunal’s decision on review in this case, under this legislation is actually comprised of two separate decisions. One decision relates to the psychiatric condition and its connection to service, while the other relates to the asthma condition and its connection to service. Only one of those decisions was addressed on the appeal. The second decision – the one in relation to asthma - was not contested or considered and was therefore undisturbed by the orders of Logan J. I reach that conclusion having regard to the provisions of the VE Act. The legislation contemplates the Repatriation Commission making a determination about entitlement to a pension having regard to a separate evaluative process that must be carried out in relation to each individual injury or condition. Liability for each injury or condition is assessed with reference to the relevant statement of principles. Many veterans present with a number of conditions, and the Commission (or the VRB, or the Tribunal) may accept some as being service-related and reject others after investigation. Each of those decisions is a discrete decision.
The answer may be different if the decisions were inextricably linked in a practical sense so that a determination in relation to one necessarily affected the other. In such a case, the orders and the terms of the remittal would, by implication, extend to both decisions. But that is not the case here. There is no suggestion the asthma was caused by the psychiatric condition. The claim with respect to asthma stood on its own, and the decision made in relation to asthma is not linked to or affected by the evidence in relation to the psychiatric condition. The outcome of the psychiatric claim does not turn on the decision with respect to the asthma condition, although I acknowledge that was how the case was argued at the original hearing. There is no reason to suppose Logan J wished to disturb the findings in relation to asthma; no basis was identified for him doing so.
I am satisfied the decision in relation to asthma has not been remitted to me for reconsideration alongside the decision in relation to the psychiatric condition. If a decision is not before me, I am not permitted to consider (nor reconsider) it because the Tribunal is functus officio: it has exercised its jurisdiction by making a decision, and its role is now complete. The only way in which I could revisit the matter would be if the applicant were to successfully appeal the decision I already made in relation to asthma and obtain a remittal.
That leaves the question of the psychiatric condition. The applicant initially protested against the Tribunal having any further involvement in the proceedings following the remittal. He argued the Repatriation Commission should accept what Mr Linwood understood was the clear direction of Logan J. As I explained to the applicant, the Tribunal was still dealing with the matter and the respondent could not simply make a decision in his favour without reference to the Tribunal. It was therefore necessary to prepare for a fresh hearing if the matter could not otherwise be resolved.
There were several directions hearings while the respondent considered its position and then negotiated with Mr Linwood in relation to the psychiatric claim. A number of offers were made to settle the matter. Mr Linwood and Mr Wise insisted those offers be made on an open basis. They refused to entertain settlement offers made on a ‘Without Prejudice’ basis. In due course, I was told the respondent was prepared to concede with respect to the psychiatric condition. It acknowledged there was evidence that was capable of supporting a finding that the applicant experienced a category 2 stressor in accordance with the relevant statement of principles. At the hearing, Ms Dempsey, on behalf of the respondent, pointed out the concession was premised on the evidence provided by Mr Linwood in his affidavit that was tendered but not accepted as evidence in the Federal Court. In that affidavit, Mr Linwood high-lighted other incidents within the relevant timeframe that might qualify as category 2 stressors. Ms Dempsey said I should accept the assertions in the affidavit and rely upon them to accept the concession. She said it was necessary to refer to the additional evidence because s 70(9) of the VE Act excludes liability in respect of injuries sustained as a consequence of breaches of discipline. She said there may be an issue under s 70(9) in relation to some of the evidence Logan J cited on appeal.
Mr Linwood refused to tender his affidavit. He insisted I should rely on the material already provided. He wanted to proceed with the hearing, although he did not indicate he would introduce any new evidence. He was unable to clearly explain why he thought that was a good idea, although he indicated he did not trust the respondent to treat him fairly.
Proceeding to hear the substance of the matter has little value in circumstances where the respondent was able to refer me to cogent evidence that would support its concession – a concession that would deliver the substantive outcome sought by the applicant without the cost, delay and stress associated with re-agitating the evidence. A further difficulty arose when Mr Wise indicated he had to return to Bundaberg to be with his wife. That meant Mr Linwood would be forced to present his own case – and he was refusing to present evidence that supported the outcome he said he wanted to achieve.
I decided the best course was to remit the matter to the respondent for reconsideration under s 42D of the AAT Act. An order under s 42D would empower the respondent to change its decision to one that was favourable to the applicant without further involving the Tribunal – albeit that if the applicant were somehow dissatisfied with that decision, he could return to the Tribunal and resume the review. In the course of reconsidering its decision, the respondent would refer to the judgment of Logan J and the affidavit material provided (but not filed) by Mr Linwood. Once the reconsideration was complete and (I assume) the psychiatric condition was accepted, the respondent would be able to assess the rate at which Mr Linwood’s pension would be paid.
Mr Linwood did not agree to the remittal under s 42D, but I am satisfied that is the better course having regard to the objectives of the VE Act, the objectives of the AAT Act, and the interests of Mr Linwood.
Conclusion
The decision with respect to the applicant’s psychiatric condition is remitted to the respondent for reconsideration pursuant to s 42D of the AAT Act in accordance with these reasons. The Tribunal does not have jurisdiction to review the claim with respect to the applicant’s ankle, or to further review the claim with respect to asthma.
23. I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.
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Associate
Dated 20 June 2016
Date of hearing
14 June 2016
Advocate for the Applicant
Mr S Wise
Solicitor for the Respondent
Ms F Dempsey, Australian Government Solicitor
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