Nicholas Kermode and Repatriation Commission

[2015] AATA 234

[2015] AATA 234

Division	Veterans' Appeals Division
File Number	2013/2193
Re	Nicholas Kermode
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	17 April 2015
Place	Adelaide

The Tribunal answers the preliminary question as follows:

The Tribunal has no power under s 20 of the Veterans’ Entitlements Act 1986 to backdate to 1996 or to 2002 any pension to which Mr Kermode is found to be entitled under the Act as a result of his 2012 claim. Under s 20, any pension to which Mr Kermode is found to be entitled as a result of his 2012 claim may not commence earlier than three months before that claim was received at an office of the Department of Veterans’ Affairs.

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

Senior Member N A Manetta

CATCHWORDS

VETERANS' ENTITLEMENTS - Veterans' Entitlements Act 1986 – preliminary question concerning date of payment of benefit - previous claims - no power to backdate pension to date of earlier finally determined claim

LEGISLATION

Veterans' Entitlements Act 1986, ss 14(1), (3), (5), (6) and (7), 20(1), 119(1)(f) and (g)

CASES

Ryde v Repatriation Commission [2004] FCA 1281; 85 ALD 586

Ryde v Repatriation Commission [2005] FCAFC 108; 143 FCR 293

REASONS FOR DECISION

Senior Member N A Manetta

17 April 2015

1. Mr Nicholas Kermode has applied to the Tribunal for a review of a decision of the respondent Repatriation Commission dated 15 May 2012, affirmed by the Veterans’ Review Board on 21 February 2013.  The Commission refused Mr Kermode’s claim dated 7 May 2012 for a pension under the Veterans’ Entitlements Act 1986 (the VE Act). The medical condition on which Mr Kermode bases his claim for a pension is Posttraumatic Stress Disorder (PTSD).

2. Mr Kermode has made three claims for a pension in respect of this condition:  the first in 1996, the second in 2002, and the third, as I have noted, in May 2012.  I note that the Tribunal’s jurisdiction arises from the application he has made in respect of the rejection of the third claim.  There is no outstanding application to the Tribunal in respect of either of the other unsuccessful claims.

   PRELIMINARY QUESTION

3. A Deputy President has listed a question for decision by the Tribunal by way of preliminary hearing. The question asks what the “date of effect” of any decision favourable to Mr Kermode should be. This expression refers to the power of the Commission under s 20(1) of the VE Act to specify the date on which its determination will operate. This commencement date may be up to three months before the date on which “the claim” was received in an office of the Department of Veterans’ Affairs, but no earlier. The question effectively asks whether, on the assumption Mr Kermode succeeds in his application for review and is found to be eligible to receive a benefit under the VE Act in respect of his 2012 claim,[1] payment of the benefit may be backdated under s 20 to 1996 or 2002 (that is, to the time of the first or second claim). 

   [1] I note the parties are at odds now (if they were not before) over whether Mr Kermode suffers from a compensable illness and is entitled to any benefit at all under the VE Act (including whether the respondent is bound by a concession it has allegedly made in this regard). A proper consideration of the preliminary question did not require me to hear evidence or argument on these issues.

4. I received written submissions and heard oral argument in respect of the question.  Mr Cameron appeared for Mr Kermode at the hearing (although Mr Miller was retained after the hearing in circumstances I shall describe); Mr Crowe appeared for the respondent. 

   CONCLUSION

5. I have decided that the Tribunal has no power under s 20 of the VE Act to backdate to either 1996 or 2002 any pension to which Mr Kermode is ultimately found to be entitled as a result of his 2012 claim.

   FACTUAL BACKGROUND AND COURSE OF THE HEARING

6. I now set out briefly the relevant factual background, including the course of the hearing before me, and then my reasons for this conclusion.

   Service

7. Mr Kermode gave evidence that he was serving with the Royal Australian Navy on HMAS Melbourne when it collided with HMAS Voyager in 1964.  He also gave evidence that he later saw between 21 and 28 days’ active service in Vietnam.  Mr Kermode maintains that he developed PTSD as a result of the collision in 1964 and that the condition was aggravated by his service in Vietnam.

   Claims and the statutory regime under the VE Act

8. Mr Kermode first made a claim for a benefit under the VE Act in respect of PTSD in 1996. This claim was rejected by the Repatriation Commission. Mr Kermode took the matter no further.

9. He made a second claim in respect of PTSD in 2002. This claim was rejected by the Commission, and his further appeal to the Veterans’ Review Board was unsuccessful. He lodged an application for review with this Tribunal. He retained solicitors (Tindall Gask Bentley) and counsel (Mr Hemsley). He gave evidence, led by Mr Cameron, that he was advised by Mr Hemsley on the day of the hearing to discontinue the proceedings. The discontinuance led to a formal dismissal of his application for review under s 42A of the Administrative Appeals Tribunal Act, 1975.  No action was taken in respect of the dismissal.

10. Both these claims are “finally determined” for the purposes of s 14 of the VE Act. As I have noted, it is Mr Kermode’s third claim, lodged in 2012, that has led to the present application to the Tribunal, and the Tribunal’s jurisdiction arises in respect of this claim.

11. For present purposes, the main relevant statutory provisions in the VE Act are sub-sections 14(1), (3), (5), (6) and (7), and sub-section 20(1), which I now set out:-

    “14  Claim for pension

    (1)   Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).

    Note 1:   Some dependants do not have to make a claim (see section 13A). 

    Note 2:   If it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)). 

    …. 

    (3)A claim for a pension: 

    (a) shall be in writing and in accordance with a form approved by the Commission; 

    (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and 

    (c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section. 

    .... 

    (5)Where: 

    (a) a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and

    (b) the claim has not been finally determined; 

    the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease. 

    (6)Where: 

    (a) a person has made a claim for a pension under this section in respect of the death of a veteran; and 

    (b) the claim has not been finally determined; 

    the person is not empowered to make another claim for a pension under this section in respect of the death of that veteran. 

    (7)For the purposes of this section, a claim is finally determined when either: 

    (a) a decision that has been made in respect of the claim is not subject to any form of appeal or review; or 

    (b) a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.”  

    “20 Dates of effect that may be specified in respect of grant of claim for pension

    (1)   Where a claim in accordance with section 14 for a pension is granted (other than a claim to which subsection (2A) applies), the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.

    ….”.

12. Late in his final address, after he had had an opportunity to consider the Federal Court’s decisions in Ryde v Repatriation Commission,[2] Mr Cameron conceded that the Tribunal was precluded from backdating Mr Kermode’s pension to 1996 or 2002.  Mr Crowe agreed with this concession. 

    [2] (2004) 85 ALD 586 (Sackville J) and, on appeal, (2005) 143 FCR 293 (Nicholson, Conti and Edmonds JJ)

13. I indicated that I would consider the decisions carefully as I was not bound by the concession, and I reserved my decision.  Following the hearing, I was informed by Mr Kermode’s solicitor that Mr Kermode wished to retain new counsel.  An opportunity to reargue the preliminary question was requested.  I gave leave to new counsel to file a further written submission on Ryde’s case, which was the leading authority, and any other authorities dealing with it.  I received a written submission from Mr Miller, who submitted that the Tribunal did have power to backdate Mr Kermode’s pension to 1996 or 2002.

    RYDE’S CASE

    Appropriateness of answering question

14. I have considered whether I ought to proceed to answer the preliminary question.  It would not be appropriate to answer the preliminary question adversely to Mr Kermode if facts might be established at the main hearing that could bear upon the conclusion. 

15. After reviewing Ryde’s case, I have concluded that the preliminary question must inevitably be answered against Mr Kermode despite assumptions in his favour that he suffers from PTSD, that he is eligible to receive a pension under the VE Act, and also that the earlier decisions of the Commission and the Board, to which I have referred, were erroneous. I have made these assumptions for the purposes of deciding the preliminary question. I have gone so far as to assume that the earlier decisions were erroneous on the material before the decision-maker and not merely erroneous given a subsequent and superior understanding of Mr Kermode’s circumstances. I have also assumed that all three claims are relevantly identical. In other words, I have made assumptions as favourable to Mr Kermode as I can. In my opinion, however, notwithstanding any favourable assumptions that may be made, his Honour Justice Sackville’s decision in Ryde and the decision of the Full Court on appeal preclude the Tribunal from backdating to 1996 or 2002 any pension to which Mr Kermode may be entitled as a result of his 2012 claim. 

    Consideration of Ryde’s case

16. In Ryde’s case, the issue of backdating squarely arose.  It arose in the context of an application for a widow’s pension, but that fact is immaterial to the reasoning.  Three claims had been made by Ms Ryde, only the third of which was successful.  His Honour Justice Sackville decided that the Act did not allow for backdating of her pension entitlement to either of the earlier unsuccessful claims. 

17. I acknowledge that Ms Ryde’s first and second claims were not in substance the same as her third claim.  Mr Miller sought to distinguish Mr Kermode’s circumstances on the basis that in Ryde’s case “it was never demonstrated that either of the earlier applications had been decided wrongly”.[3]  He submitted that as Mr Kermode had made earlier claims based on PTSD which had been wrongly rejected, any pension entitlement arising under the third claim could be backdated.  Mr Miller’s submission draws a distinction between cases where there is a substantial identity in the grounds of claim for a pension entitlement and those where there is no such identity.      

    [3] Applicant’s supplementary submissions at [3].

18. I accept that where a subsequent claim is successful but is based on grounds not raised in an earlier claim, it is hard to see why backdating to an earlier claim date would have been intended under the VE Act. I accept also that Sackville J expressly acknowledged that he thought there was “very considerable force”[4] in the Commission’s submission that Ms Ryde’s third claim was not in substance the same as either of the two earlier claims she had made. 

    [4] See 85 ALD 586 at paragraph [42].

19. Importantly, however, his Honour did not decide the case simply on this basis. Referring to the same distinction Mr Miller submits should be drawn, his Honour said (at 85 ALD 586, [43]):

    “43  This analysis suggests that the approach contended for by the applicant would lead to difficulties in practice.  When is a particular claim in substance the same as an earlier, rejected claim? If the claimant relies on fresh evidence, or advances a new theory as to the relationship between the veteran’s war service and his or her death, does that amount to a new claim?  Does it depend on the nature of the fresh evidence, or on the extent to which the new theory is linked to previous arguments put on behalf of the claimant?”

20. He continued at [44]ff:

    “44  The practical difficulties indicate that the applicant’s submissions face a more fundamental obstacle. The critical issue is the construction of s 20 of the VE Act, in particular the meaning of the word ‘claim’ in s 20(1). That issue cannot be resolved by considering the language of s 20 in isolation from the VE Act as a whole. It is trite law that in determining the ordinary meaning conveyed by the text of a statutory provision, it is necessary to have regard to the context and to the purpose of the legislation: Acts Interpretation Act 1901 (Cth) s 15AB(1)(a); Saraswati v R (1991) 172 CLR 1 at 21; 100 ALR 193 at 207 per McHugh J. (bold emphasis supplied)

    45 As both parties accepted, there is nothing in the VE Act to prevent a dependant of a deceased veteran making successive claims in respect of the veteran’s death. Indeed, s 14(6) of the VE Act implies that such claims may be brought. That provision prevents a claimant making ‘another claim’ for a pension in respect of the death of a veteran where an existing claim in respect of the veteran’s death has not been ’finally determined’. The language of s 14(6) implies that when the existing claim has been ‘finally determined’ (as that expression is defined in s 14(7)), a further claim may be brought. The reference to ‘another claim’ in s 14(6) suggests that a claim made after the final determination of an earlier claim is, a fortiori, to be regarded as ‘another claim’.

    46 The structure of the VE Act is very difficult to reconcile with the proposition, inherent in the applicant’s submissions, that a claim made after the final determination of an earlier claim somehow revives or constitutes part of the first claim. A claim must be made in accordance with the requirements of s 14(3). The claim must be on the approved form with requires, as one would expect, a statement of how the veteran’s service caused or contributed to his or her death. Moreover, the claim must be accompanied by relevant evidence.

    47 The making of a claim enlivens the obligation of the secretary to investigate the matters to which the claim relates s 17(1). Upon completion of the investigation, the claim must be submitted to the commission for determination: s 17(2). The commission is then obliged to consider all matters relevant to the claims and to determine the claim: ss 18(1), 19(1) and (3). It is also important to bear in mind that although the commission has power to review its own decision, it can do so only within the time limits and in the particular circumstances specified in s 31 of the VE Act.

    48 The making of a claim is therefore central to the decision-making processes contemplated by the VE Act. Ms Eastman accepted, correctly in my view, that if a claimant wishes to make a further application (to use a neutral word) for a pension after the final determination of an earlier claim, it is necessary to lodge a fresh claim. It is the lodging of a claim in accordance with the formal requirements of s 14 that sets in train the elaborate decision-making processes provided by the VE Act.

    49 Section 20(1) of the VE Act speaks of ‘a claim in accordance with section 14 for a pension’. The provision fixes the date from which a pension can take effect by reference to the date on which ‘the claim for a pension, in accordance with the form approved for the purposes of paragraph 14(3)(a) was received…’. In my view, this language refers to a current claim requiring determination by the commission (or, on review, by the Veterans’ Review Board or the AAT). It does not refer to a claim which has been finally determined. I accept Ms Henderson’s submission that the effect of the VE Act is that a claim for a pension, once finally determined, is spent. A claimant may lodge a fresh claim, but that commences the process afresh.” (bold emphasis supplied)

21. His Honour concluded at [51]:

    “51  This conclusion reflects an evident statutory purpose that claimants are permitted to make successive claims for a pension, but the success of a later claim is not to result in the backdating of the grant of a pension to the date of the first claim. If the applicant’s argument were accepted, a change in the law, or the introduction of a new Statement of Principles might result in the grant of a pension backdated to a date when there had been no entitlement to a pension. Parliament might wish to bring about such a generous result, but the terms of the VE Act make it clear, in my view, that this is not in accordance with the objects of the legislation as currently framed.” (bold emphasis supplied)

22. The Full Court approved this decision.  It noted that his Honour’s reasons were “informative on the law and circumstances relating to the appellant’s position”[5] and referred to his Honour’s finding that s 20 of the VE Act had a “decisive effect”.[6] 

    [5] 143 FCR 293 at [19].

    [6] Ibid.

23. The Court held that the scheme of the provisions “embodies the principle that each claim is entirely separate at law from claims made before or after it”.[7]  Accordingly, it held that Ms Ryde’s third claim could not be treated as part of a “continuity of claims”.[8] Reiterating what Sackville J had earlier put, the Court noted that “the structure of the VE Act is very difficult (we would say impossible) to reconcile with the proposition that a claim made after the final determination of an earlier claim somehow revives or constitutes part of the first claim”.[9] 

    [7] At [24].

    [8] At [25].

    [9] Ibid.

24. In my opinion, it is clear that both Sackville J and the Full Court on appeal approved a general proposition that there is no statutory authority under s 20 of the VE Act to backdate the payment of a pension to the date of an earlier, finally determined unsuccessful claim. This proposition was based on a construction of the legal effect of the relevant statutory provisions. It did not depend on a lack of identity between the successful claim in that case and the earlier unsuccessful claims.

25. Mr Cameron referred me to s 119(1)(f) and (g) of the VE Act.[10]  Under these provisions, the Commission (and this Tribunal hearing the matter afresh) are not bound to act in a formal matter but must, rather, act according to the substantial justice and merits of the case without regard to legal form and technicalities.   

    [10] See applicant’s outline of submissions, filed before the hearing, at paras [20]ff.

26. In my opinion, however, these provisions do not extend the Commission’s jurisdiction beyond the clear limitations set out in the VE Act. The Commission’s lack of power under s 20 to backdate a pension to the date of an earlier finally determined claim is not a matter of mere legal form or technicality. Rather, the VE Act, properly construed, imposes a limitation of substance on the Commission’s jurisdiction in this regard. When hearing the matter afresh, the Tribunal has no wider jurisdiction.

    ANSWER TO PRELIMINARY QUESTION

1. Accordingly, I conclude that in the exercise of its jurisdiction in respect of the 2012 claim, the Tribunal lacks power under s 20 of the VE Act to backdate to 1996 or 2002 any pension to which Mr Kermode may be found to be entitled. Under s 20, any pension to which Mr Kermode is found to be entitled as a result of his 2012 claim may not commence earlier than three months before that claim was received at an office of the Department of Veterans’ Affairs. I shall answer the preliminary question accordingly.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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

Administrative Assistant

Dated 17 April 2015

Date(s) of hearing	5 and 21 January 2015
Counsel for the Applicant	Mr Cameron & Mr Miller
Advocate for the Applicant	Ms A MacLeod
Solicitors for the Applicant	Astrid M MacLeod
Counsel for the Respondent	Mr A Crowe
Solicitors for the Respondent	Department of Veterans' Affairs Advocacy Section