Morgan and Repatriation Commission
[2000] AATA 503
•22 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 503
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/15
VETERANS' APPEALS DIVISION )
Re DOUGLAS STEWART MORGAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon Mr R N J Purvis, QC, Deputy President
Date22 June 2000
PlaceSydney
Decision The application made by Mr Morgan under date 11 November 1999 is without jurisdiction. It is accordingly dismissed.
(Sgd) R N J Purvis
..............................................
Deputy President
CATCHWORDS
Veteran's Affairs – jurisdiction – decision of Repatriation Commission – remitted to Commission by Veteran's Review Board – hierarchy of appeal – prerequisites to consideration by Administrative Appeals Tribunal - application dismissed
Veterans' Entitlements Act 1986
REASONS FOR DECISION
The Hon Mr R N J Purvis, QC, Deputy President
THE APPLICATION:
This is an application made by the Repatriation Commission ("the Commission") whereby it contends that the Tribunal is without jurisdiction to hear and determine a request for review made by Douglas Stewart Morgan ("Mr Morgan") in a letter under date 11 November 1999.
In his said letter Mr Morgan stated that he (T1/3):
"… appealed on the following grounds:
1. Commence payment from 3 August 1996
Mr Morgan's claim was first lodged 3 October 1996. Thus 100% disability pension should commence 3 August 1996.2. 100% Percent to be paid.
Mr Morgan again records that his serious problems were caused by his war service and sixty years of mismanagement and inadequate treatment by DVA.
…5. What does DVA dispute?
Mr Morgan again requests DVA detail explicitly what they dispute and what they still require for immediate payment of 100% disability pension from 3 August 1996.
…"
In a separate application (N1999/353) heard on 12 and 16 May 2000 and determined on 9 June 2000, the Tribunal found that the war-caused disabilities referred to in that application presently and for some time experienced by Mr Morgan were such as to warrant his entitlement to a 100% pension, the same to be payable as and from 3 August 1996.
On 19 November 1997 Mr Morgan lodged an application with the Commission claiming entitlement, under the provisions of the Veterans' Entitlements Act 1986 ("the Act"), to the disabilities of lumbar spondylolisthesis and hearing loss as war-caused disabilities. A delegate of the Commission on 22 November 1997 decided that the claim for hearing loss should be accepted as a war-caused disability, the claim referable to the lumbar spondylolisthesis be refused. Pension payable was assessed at 20% of the General Rate effective from 19 August 1997.
The latter decision was appealed to the Veterans' Review Board and, on 5 October 1999, the Board accepted the back condition as war-caused, determined that pension be payable from 19 August 1997 and remitted the matter to the Commission for assessment of the rate of pension that was to be paid. The Board specifically decided to (T2/5):
"SET ASIDE the decision under review and substitute its decision:
(i)that spondylolisthesis with lumbar spondylolysis was war-caused as defined in section 9 of the Veterans' Entitlements Act 1986 (the Act);
(ii)that the Commonwealth of Australia is liable pursuant to section 13 of the Act to pay pension for any incapacity arising from that condition from and including 19 August 1997; and
(iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid."
On 4 November 1999 the Commission decided to increase the disability pension to 70% of the General Rate with effect from 19 August 1997.
The application for review made by Mr Morgan in his letter dated 11 November 1999, received by the Tribunal on 15 November 1999, makes specific mention of the reference number of the decision of 4 November 1999 (VRB No N98/0943, DVA No X198008) and asks, as abovementioned, that the rate of disability pension and its commencement date be reviewed. It is now maintained by the Commission that Mr Morgan, by his letter, was seeking review by the Tribunal of the assessment matter which had been remitted by the Board to the Commission on 5 October 1999 and that this is beyond the jurisdiction of the Tribunal. Any appeal or application for review of the decision made by the Commission was, it is submitted, to be made to the Veterans' Review Board and not to the Administrative Appeals Tribunal.
THE HEARING:In this matter the Tribunal did not convene an oral hearing but rather sought written submissions from the Commission and Mr Morgan. The Commission made its written submissions. Mr Morgan communicated with the Tribunal by letter.
The Tribunal received into evidence the documents lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the same being marked T1-T10.
THE RELEVANT LEGISLATION:The only issue presently before the Tribunal is its competence to entertain the application of Mr Morgan to consider and review the decision of the Commission of 4 November 1999. The Board, in setting aside the decision of the Commission and remitting the matter to the Commission for assessment, was acting within the provisions of subsection 139(4) of the Act which subsection provides:
"Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate or rates at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate or rates at which the pension is to be paid to the person."
The matter was remitted to the Commission, the rate at which pension was to be paid to Mr Morgan being then determined by it as was the date from which it was to be payable. Review by the Veterans' Review Board of decisions of the Commission in respect of pensions and allowances is competent, pursuant to section 135 of the Act.
The Act makes provision for review of decisions by the Administrative Appeals Tribunal without which the Tribunal would not have the power to entertain a relevant application. The power to so review a reviewable decision is conferred by section 175 of the Act which, so far as is germane to this decision provides:
"Applications for review
(1)Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a) of the decision of the Commission that was so affirmed;
(b) of the decision of the Commission as so varied; or(c)of the decision made by the Board in substitution for the decision so set aside;
as the case may be.
…"
JURISDICTION DECISION:
The decision made by the Commission to assess the rate of pension at 70% of the General Rate effective from 19 August 1997 was made consequent upon the matter being referred back to it by the Veterans' Review Board. It was competent for the Commission to make its decision. Any appeal or application to review that decision is to be made in accord with the provisions of the Act and, in this regard, specifically section 135 thereof.
The Act creates a hierarchy of appeal mechanism, the intent being that a matter is to be appropriately considered by each stage of the process before the next stage is enlivened. In the present instance, the decision of the Commission as to rate of pension and date from which it was to be payable had not been considered by the Board, a prerequisite to it being considered by the Tribunal.
For the reasons above given, the application made by Mr Morgan under date 11 November 1999 is without jurisdiction. It is accordingly dismissed.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate of Hearing 12 May 2000
Date of Decision 22 June 2000
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