Mickleberg and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 2158

Mickleberg and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 2158 (1 July 2024)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/3909

2022/6977

Re:Raymond Mickelberg

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:1 July 2024

Place:Adelaide

The Tribunal refuses to dismiss the applications.

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

Senior Member George

CATCHWORDS

PRACTICE AND PROCEDURE – dismissal application – whether the application has no reasonable prospects of success – s 42B(1)(b) of the AAT Act – dismissal application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Veterans Entitlements Act 1986 (Cth)

REASONS FOR DECISION

Senior Member George

1 July 2024

1. Mr Mickelberg enlisted in the Australian Army in September 1967 and was discharged in September 1970. He served in Vietnam between February 1969 to February 1970. Mr Mickelberg was a member of 3 Squadron, Special Air Service Regiment.

2. The Respondent has made an application to the Tribunal to dismiss Mr Mickelberg’s applications. The Respondent has submitted that, pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), Mr Mickelberg’s applications have no reasonable prospects of success. In deciding this dismissal application, the parties have requested that the Tribunal determine a ‘preliminary question’ of whether Mr Mickelberg was an employee under s5(6) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (“DRCA”) prior to the substantive hearing.

3. The Respondent contends that Mr Mickelberg was not an employee under s5(6) of the DRCA. The Respondent contends that Mr Mickelberg was instead undertaking operational service in Vietnam and that his service, at material times, is covered by the provisions of the Veterans Entitlements Act 1986 (“the VEA”).

4. Mr Mickelberg centrally contends that he was an employee at material times under s5(6) of the DRCA and covered by the provisions of that Act.

5. It is unnecessary to detail Mr Mickelberg’s military service for the purposes of this decision. It is sufficient to note that Mr Mickelberg’s service in Vietnam is qualifying service and operational service under s 6C, s 7A and Schedule 2 of the VEA.

6. Mr Mickelberg lodged several claims arising from his various and serious medical conditions. These are outlined in a chronology attached to Mr Mickelberg’s submissions and departmental documents. They do not require full recital, in part to protect Mr Mickelberg’s privacy. It is sufficient to note that the following relevant determinations were made under the DRCA:

   (a)A determination accepting liability for adenocarcinoma of sigmoid colon from 1 August 2008.

   (b)A determination accepting liability for severe peripheral polyneuropathy from 9 March 2009.

7. Significant compensation was paid to Mr Mickelberg. It seems that Mr Mickelberg has also been in receipt of a pension under the VEA since August 1991, although the evidence detailing this is incomplete.

8. In approximately February 2023, a delegate concluded that a mistake had been made in the relevant determinations made under the DRCA. On 5 September 2023, a delegate revoked the relevant determinations under s 62 of the DRCA. The substance of the delegate’s decision was that s 5(6) of the DRCA excludes “liability for injuries and diseases solely due to Operational service prior to 7 April 1994”.

9. The Tribunal has examined the material before it, including multiple witness statements and medical reports. Mr Mickelberg submits that the evidence shows that he commenced smoking prior to serving in Vietnam and that he continued to smoke after returning from Vietnam.

10. Having assessed the material before it, the Tribunal does not regard the question of whether Mr Mickelberg was an employee under s5(6) of the DRCA as a preliminary question that can be decided in isolation of the wider evidence in this matter. It is a substantive question and must be treated as such. Evidence to support the parties’ contentions must be adduced properly and tested thoroughly at hearing. The Tribunal therefore declines to determine this question at this premature stage.

11. The Tribunal’s power under s 42B to dismiss an application is to be used carefully, cautiously, and sparingly. There is at least one substantive triable issue in this matter, which is whether Mr Mickelberg was an employee under s5(6) of the DRCA. Given the existence of this substantive issue, the Tribunal is not satisfied that this is a matter that should be disposed of on the papers and without the benefit of a substantive hearing. Indeed, the Tribunal is also not satisfied on the material before it that Mr Mickelberg’s applications are so without merit that they have no reasonable prospects of success.

12. Accordingly, the Tribunal refuses to dismiss the applications pursuant to s 42B(1)(b) of the AAT Act.

    DECISION

13. The Tribunal refuses to dismiss the applications.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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

Date of Decision:	1 July 2024
Date of Hearing:	On the papers
Advocate for the Applicant:	Self-Represented
Solicitor for the Respondent:	Ms Jones-Bolla Sparke Helmore Lawyers