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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 932
Decision Date: 12 November 2015

CaseChat Overview and Summary

The Tribunal was called upon to consider a preliminary question in two related matters concerning Mr Kevin Medlow and Ms Cheryl Medlow, who sought a review of decisions regarding their veterans' pensions. They were represented by Mr Medlow, while the Repatriation Commission was represented by Mr Crowe. The question before the Tribunal was whether it should reject the applicants' applications for review due to an informal electronic lodgement, or whether it should consider the applications on their merits. This issue was crucial as it determined whether the Tribunal could proceed to hear the substantive claims or whether it would dismiss them on procedural grounds.

The central legal issue revolved around the interpretation of sections 57A(1)(d), 5T, and 119(1)(g) of the Veterans' Entitlements Act 1986. Section 5T(4) suggested that non-compliance with the prescribed procedures for lodging an application for review might render the application incompetent. However, the Tribunal had to consider whether the informal electronic lodgement should be treated as a mere technicality under section 119(1)(g), which mandates that informalities in applications should be disregarded if they do not prejudice the opposing party. The Tribunal had to balance the strict procedural requirements with the principle of not dismissing applications on minor technical grounds when the opposing party was not prejudiced.

In resolving this issue, the Tribunal found that the informal electronic lodgement did not prejudice the Repatriation Commission, and thus, the applications should proceed to be considered on their merits. The Tribunal noted that rejecting the applications on the basis of the procedural irregularity would contravene the directive in section 119(1)(g) to disregard such informalities. Consequently, the Tribunal ruled that it should not refuse to consider the merits of the applicants' applications to the Tribunal on the basis of the alleged procedural non-compliance. As a result, both Mr Medlow's and Ms Medlow's applications for review would be considered on their merits.

The Tribunal ultimately decided that it should not dismiss the applicants' applications to the Tribunal on the basis that the applications for review to the Repatriation Commission were incompetent due to failure to comply with sections 57A(1)(d) and 5T of the Veterans' Entitlements Act 1986. Consequently, both applications were to be considered on their merits, and formal decisions to this effect would be issued.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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