Neumann and Repatriation Commission

[2007] AATA 1436

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1436

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1404

VETERANS' APPEALS DIVISION		)
Re		VIVIENNE NEUMANN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date18 June 2007

PlaceAdelaide

Decision The Tribunal extends the time for filing an application for review of a decision of the Veterans’ Review Board dated 6 December 2006 until 18 April 2007.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – delay less than 6 weeks – applicant for widow's pension relied on advisors – extension of time granted

Administrative Appeals Tribunal Act 1975 s 29

Outboard Marine Australia Pty Ltd v Byrnes; Bauknecht (Third Party) [1974] 1 NSWLR 27
Re State of Queensland and Australian National Parks and Wildlife Service (Australians for Animals, party joined) (1986) 13 ALD 158
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

18 June 2007   Mr J G Short (Member)

1. By decision dated 6 December 2006 the Veterans’ Review Board (VRB) affirmed a decision of the Repatriation Commission which determined that the death of Mrs Neumann’s husband, apparently caused through the agency of smoking, was not war-caused. I accept that a copy of the VRB decision was provided to Mrs Neumann shortly after the decision date and that an application for review by this Tribunal was not made until 17 April 2007. Section 29 of the Administrative Appeals Tribunal Act 1975 generally provides that appeals to this Tribunal should be lodged within 3 months of receipt of notification of the relevant decision.  Mrs Neumann’s application was not lodged until approximately 6 weeks after that date. 

2.      The applicant provided an affidavit (Exhibit A1) wherein she explained that she had met a substituted representative at the VRB hearing on the morning of that hearing.  She feels that the representative may not have understood her case.  She also indicated that after receipt of the VRB’s reasons for decision she contacted the Returned and Services League to convey her disappointment.  She anticipated a response to that contact, but had to wait some time before any further contact was made.  She indicated that she felt very disappointed and decided not to proceed with the application.  She later spoke with her legatee who put her in contact with a Legacy advocate.  Following that appointment, spoke to a number of witnesses to try and clarify the evidence.  She obtained statements from her husband’s sister-in-law and from her sister-in-law.  These statements were annexed to the affidavit.  She said that the Legacy representative then suggested that a second opinion be sought in light of the additional evidence obtained and that by the time all of these steps had been taken, her application for review was out of time.  Her advocate submitted that in these circumstances it cannot be suggested that she rested on her rights.  The advocate also referred to the observations of Reynolds, Hutley and Bowen JJA, in Outboard Marine Australia Pty Ltd v Byrnes; Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:

“It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”

These comments were cited with approval in Re State of Queensland and Australian National Parks and Wildlife Service (Australians for Animals, party joined) (1986) 13 ALD 158. In opposing the application the respondent’s advocate submitted that Mrs Neumann had made a decision not to proceed with an application for review and that this was the prime reason an application was not made within time. It was also submitted that the statements annexed to Exhibit A1 did not strengthen Mrs Neumann’s case and that the evidence has not materially changed since the VRB made its decision that a hypothesis was not raised by the evidence.

3.      In considering applications for extension of time I am required to consider factors described in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. In that decision the Federal Court listed six relevant factors. The decision requires me to note that no onus of proof is placed upon the applicant for an extension of time but that a court, or in this case the Tribunal, will not grant an extension unless positively satisfied that it is proper to do so. In this case I note that the application was made within about six weeks of the expiry, of the prescribed three month period within which time applications should be lodged. I also note that the respondent has not contended that there is any wider public interest in refusing the application or that any prejudice would be caused to the respondent in allowing the substantive merits of the application to be tested before this Tribunal. The respondent confined its submissions to suggestions that Mrs Neumann had not provided a valid reason for the delay in lodging her application and that the merits of the substantial application were not strong.

4.      I have considered all of the submissions made.  I accept that generally applications should be made within time.  In this case although late, the application was made with six weeks of the expiry of the prescribed application period.  The application involves a matter which I accept is very important to the applicant.  I also accept that the respondent will not be prejudiced in any way by the granting of the application. 

5.      In the light of all of the circumstances I consider that it is proper to grant the application.  I consider that a genuine issue exists and as mentioned, one which is very important to the applicant.  I consider that the applicant should have an opportunity to litigate that issue.  I believe that no prejudice will arise out of the relatively brief delay in lodging the application.  In these circumstances the application will be granted.

6.      The parties are at liberty to apply.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .............J Coulthard.........................................
  Associate

Date of Hearing  1 June 2007
Date of Decision  18 June 2007
Counsel for the Applicant         Mr G Hemsley
Solicitor for the Applicant          Graeme D Hemsley

Advocate for the Respondent   Mr A Crowe

DVA