Medlow and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 932

Medlow and Repatriation Commission (Veterans’ entitlements) [2015] AATA 932 (12 November 2015)

Division	GENERAL DIVISION
File Number	2015/2693
Re	Kevin Medlow
APPLICANT
And	Repatriation Commission
RESPONDENT
File Number	2015/3546
Re	Cheryl Medlow
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	12 November 2015
Date of written reasons	3 December 2015
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of the preliminary question, the Tribunal decides that it ought not to refuse to consider the merits of the Applicants’ applications to this Tribunal on the basis that the Applicants’ application for review to the Repatriation Commission under section 57 of the Veterans’ Entitlements Act 1986 was incompetent for failure to comply with sections 57A(1)(d) and 5T thereof.

.........................[Sgd]...............................................

Senior Member N A Manetta

CATCHWORDS

VETERANS’ ENTITLEMENTS - Veterans’ Entitlements Act - preliminary question - application lodged electronically but in an unapproved way - whether s 5T(4) required the Tribunal to reject applicants’ application for review - held s 119(1)(g) required Commission and Tribunal to ignore informality of electronic lodgement as mere technicality

LEGISLATION

Veterans' Entitlements Act 1986 (Cth), ss 5T, 57, 57A, and 119

Australian Soldiers’ Repatriation Act 1920 (Cth), s 45(w)(2)

Migration Act 1958 (Cth), s123(2)

CASES

Tanner v Repatriation Commission [1939] ALR 492

Clough and the Repatriation Commission (1997) 44 ALD 457
Kumar v Immigration Review Tribunal (1992) 28 ALD 201
Collins v Repatriation Commission (1980) 48 FLR 198
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26

REASONS FOR DECISION

Senior Member N A Manetta

3 December 2015

1. After delivery of my decision and oral reasons, I received a request for written reasons, which I now publish.

2. A preliminary question was set down for hearing by the Tribunal in respect of two applications before it: that of Mr Kevin Medlow and the Repatriation Commission (No 2015/2693) and that of Ms Cheryl Medlow and the Repatriation Commission (No 2015/3546).  I note Ms Medlow has also applied for an extension of time within which to make her application.  At the hearing, Mr Medlow appeared for himself as well as for Ms Medlow; Mr Crowe appeared for the Commission.

   BACKGROUND FACTS

3. It is convenient if I set out the background facts before stating the preliminary question.  Mr and Ms Medlow, a married couple, lodged a joint claim for service pensions under the Veterans’ Entitlements Act, 1986 (the VE Act).  They were granted pensions in respect of that application and were advised of the decision by letter dated 17 July 2014 together with the amount proposed to be paid.[1]  As I understand matters, Mr and Ms Medlow maintain they ought to receive their pensions at a higher rate and should receive a higher Pension Bonus Scheme Entitlement payment. 

   [1] Exhibit R1, T3, pp 29-31.

4. The letter of 17 July 2014 was signed by Ms Margarete Mumme, a delegate of the Secretary of the Department of Veterans’ Affairs.  It advised Mr and Ms Medlow of their right to seek a review.  Under the heading “Your Right of Review” the letter said:

   “Your Right of Review

   If you do not agree with this decision, you may apply to have it reviewed by a Review Officer at this office.  If you decide to apply for a review, you must do so within three months of being advised of this decision.  A request for review must be in writing and set out your reasons for seeking this review.  Your application for review may also be lodged online through MyAccount or the DVA website ( Exhibit R1, T3, p 31.

There was no warning in the letter of any consequences should an application be transmitted electronically in another way.  On 25 September 2014, Mr Medlow emailed Ms Mumme in the following terms:

“Hi Margarete

Thanks for your time on the phone.

As discussed, my accountant has provided the appended email and attachments for reconsideration of my wife’s pension and my pension, including reassessment of my Pension Bonus scheme entitlement.

Your original assessment was provided on 17 July 2014.

Please reconsider your original assessment, based on this more precise information, with particular regard to the wages paid to me of a total of $1,000/quarter for each of the last 3 quarters of the last financial year, as described in the attached email.  My wife received zero income from our company in this period.

If anything further is required, please advise.

Thank you.

Kevin Medlow.”[3]

[3] Exhibit R1, T4, p 41.

Ms Mumme did not apparently treat this email as an application for review under the VE Act.  She did not take the point that the email was lodged otherwise than as advised in the letter of 17 July 2014.  Rather, it would appear she simply did not understand the email to be an application for review.  In a file note dated 14 October 2014, Ms Mumme records that in a telephone conversation she had had with Mr Medlow, she advised him to “appeal”.[4]

[4] Exhibit R1, T5, p 43.

It would also appear that Mr and Ms Medlow did email a further application for review to Ms Mumme on 12 November 2014. This fell outside the three months allowed for applications for review under s 57A(1)(a) of the VE Act.

Nevertheless, Mr Kelly, a delegate of the Commission, decided to accept the application dated 12 November 2014 “as a valid request”.[5] He did this because he considered Mr Medlow “was not fully advised of the requirements of s 57A” during his phone conversations and email correspondence with departmental staff. He proceeded to rule on the merits of the application, but decided the matter against Mr and Ms Medlow.

[5] Exhibit R1, T8, p 49.

As I have said, Mr Medlow has applied to this Tribunal in respect of Mr Kelly’s decision.  Ms Medlow was not formally included in the application notice filed by Mr Medlow.  She has since made an application for an extension of time in which to file her own application.  Mr Crowe has indicated that the Commission does not oppose the granting of an extension of time to her if the preliminary question before the Tribunal is answered adversely to it. 

PRELIMINARY QUESTION

I now come to that preliminary question, which is as follows. The Commission now argues that, even assuming in Mr and Ms Medlow’s favour that their applications for review would succeed on the merits if heard by this Tribunal – and I believe this is an assumption I should make for the purposes of determining the preliminary question – the Tribunal ought to affirm the decision under review in Mr Medlow’s case, and refuse in Ms Medlow’s case the application for an extension of time, without any further hearing because no s 57 application for review was lodged properly in accordance with the requirements of ss 57A and 5T of the VE Act.

RESPONDENT’S SUBMISSIONS

The Commission accepts that the email to Ms Mumme constituted a valid application for review so far as its contents are concerned and that she was wrong not to recognise it as such. It was also made within time. The Commission, however, made two submissions to support its contention that I am bound to reject the email to Ms Mumme as a competent application for review duly lodged with the Commission under ss 57A and 5T of the VE Act.

The two submissions advanced by the Commission are as follows. First – and I acknowledge this submission was ultimately withdrawn but I mention it for completeness’ sake – the email to Ms Mumme was not “in writing”. Applications for review must be in writing: see s 57A(1)(c).

Secondly, it was put that the email could not qualify as a valid application for review because it had not been transmitted to an electronic address approved by the Commission as required by ss 57A(1)(d) and 5T(3)(a)(ii). Section 57A(1)(d) requires applications for review to be lodged in accordance with s 5T. Section 5T(3) requires electronic lodgement to occur in a manner and at an address approved by the Commission. Section 5T(4) then specifically provides that applications transmitted electronically other than in a manner approved by the Commission or to an electronic address other than an electronic address approved by the Commission “are not to be treated as having been validly lodged”.

First submission

So far as the first submission is concerned, I have already noted that it was formally withdrawn by Mr Crowe. That concession was properly made in my opinion. Section 57A(1)(c) does require an application to be “in writing” but paragraph (d) also requires the lodgement of the application in accordance with s 5T. Section 5T(3) clearly envisages the lodging of an application electronically in a manner approved by the Commission. In my opinion, the meaning of the expression “in writing” in paragraph (c) must be discerned from a consideration of all of s 57A. Since paragraph (d) of subsection (1) clearly envisages the lodgement of applications in accordance with s 5T, and since s 5T clearly envisages electronic lodgement in a way approved by the Commission, an interpretation confining the meaning of the expression “in writing” to hard copy applications is not sustainable in my opinion.

Second submission

I turn now to the second submission advanced by the Commission, which is that the application was not lodged in an approved way and that s 5T(4), to which I have made reference, requires the application to be treated as not having been validly made. Section 5T(4) is not the only relevant section, however. Section 119(1) provides relevantly that:

“In considering, hearing or determining, and in making a decision in relation to [an application for review]

(a).

…

the Commission:

(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such a manner as it thinks just,

(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h)… .”

I received written submissions from the parties in respect of s 119(1)(f) and (g).  Mr Crowe submitted that the paragraphs I have quoted “reduced the requirement for formality for the Commission and therefore the Tribunal in the process of gathering and interpreting evidence only.”  Mr Crowe referred me to the High Court’s decision in Tanner v Repatriation Commission[6] and quoted certain dicta in that case in support of his submission that s 119(1) does not permit or require me to “contravene”, as he put it, s 5T(4).

[6] [1939] ALR 492.

Tanner’s case

In Tanner’s case, s 45(w)(2) of the then applicable Australian Soldiers’ Repatriation Act 1920 (ASR Act) provided as follows:

“Subject to this Act an Appeal Tribunal and an Assessment Appeal Tribunal shall not in the hearing of appeals be bound by any rules of evidence but shall act according to substantial justice and the merits of the case and shall give to an appellant the benefit of the doubt …”

The High Court in this case was dealing with an argument that as jurisdiction under s 45(w)(2) had already been invoked once, it could no longer be re-invoked. The Court rejected this argument as “based on a misunderstanding”[7] and continued:

“Section 45(w) is not an independent source of authority.  It is a general direction as to procedure which is applicable in the hearing of all appeals.  It does not itself confer any power upon an Appeal Tribunal to hear and determine appeals.”[8]

[7] [1939] ALR 492, at 493.

[8] Ibid.

These dicta must be read in light of the provision under consideration, which expressly relieved the tribunals in question of the obligation to apply the rules of evidence in the hearing of appeals. Instead, they were to act according to the substantial justice and merits of the case and to give the appellant the benefit of the doubt. The High Court’s description of s 45(w)(2) as “a general direction as to procedure only which is applicable in the hearing of all appeals”, reflects the statutory wording under consideration in that case.

Section 119(1)(f) and (g) are cast in different terms, however.  These paragraphs apply not simply to the hearing of claims and review applications, but also to the Commission’s functions of considering, determining and making decisions in relation to them.  The injunction to act according to substantial justice and the substantial merits of the case is not simply drafted as the logical “obverse”- if I may use that expression- of not applying the rules of evidence and proof. 

Under s 119(1), the Tribunal, standing in the shoes of the Commission, must ensure, when determining or making a decision in relation to Mr Medlow’s application, that its determination or decision reflects substantial justice and the substantial merits of the case without regard to legal form and technicalities. The drafting of s 119(1)(f) and (g) of the VE Act is wider in my view than the drafting of s 45(w)(2) of the ASR Act which the High Court had to consider.

Kumar’s case

In my opinion, more assistance is to be gained from the Federal Court’s decision in Kumar v Immigration Review Tribunal[9].  In that case, the Immigration Review Tribunal was under a statutory obligation under s 123(2) of the Migration Act 1958 (Migration Act) as follows:

“(2) The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)shall act according to substantial justice and the merits of the case.”[10]

[9] (1992) 28 ALD 201.

[10] Quoted at p 202

His Honour Justice Wilcox of the Federal Court accepted[11] that this subsection was not concerned only with procedural matters. I acknowledge that His Honour went on to hold that the subsection would not justify the Tribunal in departing from clear prescriptions in the Migration Act governing visa categories. His Honour’s acceptance of the proposition that an equivalent of s 119(1)(f) and (g) of the VE Act was not confined to procedural matters only is of significance, however. Such provisions can have a wider application. I would apply his Honour’s observation to the construction of s 119(1)(f) and (g), and particularly to paragraph (g).

[11] At p 209.

Application of s 119(1)(g)

In my opinion, s 5T(4) and s 119(1)(g) must be read together. As a matter of construction, neither one has precedence over the other. Applying s 5T(4) to reject an applicant’s claim or application is not necessarily to act according to a “technicality” or to fail to render substantial justice or to fail to act according to the substantial merits of the case. There are many cases where s 5T(4) will operate, fairly and reasonably, to defeat an applicant’s claim or application for review. For example, a claim or application may be sent to an electronic address which is not monitored, or which is no longer active; or the recipient may not be a person with whom the sender has had any dealings; or the sender may simply have misaddressed the e-mail so that it is not received at all by the Department. These would be examples where s 5T(4) would operate otherwise than as a “technicality” and where “substantial justice and the substantial merits of the case” would require a conclusion that the claim was not validly lodged.

Equally, however, there will be cases where the application of s 5T(4) to reject a claim or application for review would amount to the application of a “technicality” and to deciding the claim or application otherwise than in accordance with substantial justice and the substantial merits of the case. I think rejection of Mr Medlow’s application to Ms Mumme dated 25 September 2014 solely on the basis that it was not addressed to an approved electronic address would fall into this latter category.

The email to Ms Mumme is admitted to have been received by her.  She had had prior dealings with Mr Medlow as the original decision maker and received queries from him.  Her letter set out a way of lodging applications but did not advise the consequences of failing to lodge in the specified way.  The Commission accepts that if Mr Medlow’s email to Ms Mumme had been sent to an approved electronic address, or if it had been sent as a hard-copy letter to an office of the Commission, it ought to have been accepted by the Commission as a valid application for review.  The application’s sole defect is said to lie in its manner of lodgement. 

It seems to me that this one defect is a “technicality” only in the particular circumstances of this case.  A “technicality” should be read in the context of all of s 119(1)(g) and includes a legal provision which, if applied strictly, would operate in a manifestly unfair way, that is, contrary to substantial justice and the substantial merits of the case. 

I appreciate there is an immediate tension or uncertainty as to when a statutory provision may be said in the circumstances of a particular case to operate purely as a technicality and contrary to substantial justice and the substantial merits of the case.  I do not read s 119(1)(f) and (g) as authorising the Commission to depart from all rules of law.[12]  I accept, for example, that s 119(1)(f) and (g) cannot operate to override the entitlement limitations and application criteria set out in the VE Act.  These may be “technical” but they are not merely technicalities[13]. 

[12] Cf Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, at 30; and see Collins v Repatriation Commission (1980) 48 FLR 198, at 207ff.

[13] See Kumar at pp 209-210, quoting from Collins v. Repatriation Commission (1980) 48 FLR 198.

The tension or uncertainty arises from the fact that deciding a claim or application according to substantial justice and the substantial merits of the case will generally require the application of the provisions in the VE Act given there is no overarching power to decide an application otherwise than in accordance with the law.  Nevertheless, since paragraph (g) of s 119(1) is not confined to procedural matters only, it will require the Commission (and this Tribunal) in an appropriate case to depart from a strict application of a provision in the Act that would operate unfairly to defeat an otherwise meritorious claim.

I note that s 5T(4), as it applies in this case, does not affect any limitation on a benefit, or qualification for a benefit, under the VE Act. In this case, s 5T(4) would operate to override the substantial merits of Mr Medlow’s application (on the assumption I have made that he could make good his claim). It would do so, in my opinion, in a particularly technical and, I might add, unmeritorious way.

Mr Crowe also referred me to Clough and the Repatriation Commission[14].  That case supports, in my view, the distinction to which I have referred.  I have already indicated that s 119(1)(f) and (g) do not authorise the Commission or Tribunal to override a central plank, so to speak, of the regulatory regime under the VE Act.  One such plank is that a claim should be in writing and filed, not merely oral.  That is a limitation of substance in the VE Act, a key provision on which the entitlements system depends. This was recognised by Deputy President McMahon in his decision[15]. 

[14] (1997) 44 ALD 457.

[15] (1997) 44 ALD 457, at [19] - [20].

Section 5T(4) cannot be said, in my opinion, to operate in the circumstances of this case in that way, however. Mr Medlow’s application for review to Ms Mumme was in writing and was received.

CONCLUSION

Had the Commission decided in this case to reject Mr and Ms Medlow’s emailed application for review dated 25 September 2014 on the basis of its receipt by the Commission at the wrong electronic address notwithstanding its receipt by the original decision maker, it would have failed, in my opinion, to act in accordance with substantial justice and the substantial merits of the case.  It would, rather, have decided the application for review on the basis of a technicality.  It would have acted contrary to s 119(1)(g). 

1. Similarly, standing in the shoes of the Commission, I believe I would act contrary to s 119(1)(g) if I rejected Mr Medlow’s application to the Tribunal and Ms Medlow’s application for an extension of time on this basis.

2. Accordingly, in my opinion, Mr Medlow’s application for review should proceed to be considered on its merits by the Tribunal. I decline to affirm the decision under review on the basis that s 5T(4) applies to render incompetent Mr and Ms Medlow’s s 57A application of 25 September 2014.

3. I note again that Mr Crowe did not oppose an extension of time to Ms Medlow if I ruled against the Commission on the preliminary question.  I shall, therefore, grant an extension of time to her in which her application for review may be made.  Her application, too, should be considered on its merits. 

4. Formal decisions reflecting these conclusions will be drawn up in both matters.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

...................[Sgd].....................................................

Administrative Assistant

Dated 3 December 2015

Date(s) of hearing	28 August, 2 October and 12 November 2015
Applicant	In person
Counsel for the Respondent	Mr A Crowe
Solicitors for the Respondent	Department of Veterans' Affairs