PAULINE FRANKS and and REPATRIATION COMMISSION
[2009] AATA 247
•16 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 247
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3353
VETERANS’ APPEALS DIVISION ) Re
PAULINE FRANKS
Applicant
And
PRINCIPAL MEMBER OF THE VETERANS' REVIEW BOARD
Respondent
And
REPATRIATION COMMISSION
Joined Party
DECISION
Tribunal Deputy President D G Jarvis Date16 April 2009
PlaceAdelaide
Decision The Tribunal refuses to grant an extension of the time for making the application to review the decision therein referred to.
(Signed)
D G Jarvis
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - appeal to Veterans' Review Board from decision of Repatriation Commission - hearing not finished within two years - notice requiring statement as to readiness to proceed - failure to respond to notice - summary dismissal by delegate of Principal Registrar - held that application properly dismissed.
PRACTICE AND PROCEDURE - extension of time - decision by Principal Registrar of Veterans’ Review Board to summarily dismiss application to review decision of Repatriation Commission - application to AAT for review of decision by Principal Registrar had no prospects of success - extension of time refused.
Veterans' Entitlements Act 1986 (Cth), ss 1155AA(4), 155AA(5), and 155A(1)
Administrative Appeals Tribunal Act 1975 (Cth), s 29(7)
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Johnson v Veterans’ Review Board (2002) 71 ALD 16
Johnson v Veterans’ Review Board (2005) 88 ALD 652
Re Adams and Veterans’ Review Board (1992) 16 AAR 307
Re Andrews and Principal Member, Veterans’ Review Board [2005] AATA 656
Re Arnold and Veterans’ Review Board [2000] AATA 1010
Re Clubb, ex parte Clubb v Westpac (1990) 93 ALR 123
Re Gregory and Veterans’ Review Board and Repatriation Commission [2000] AATA 448
Re Hunt and Veterans’ Review Board [2001] AATA 224
Re Johnson and Veterans’ Review Board [2000] AATA 282
Re Lamers and Veterans’ Review Board [2001] AATA 542
Rodda v Repatriation Commission (2006) 156 FCR 227
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 69
REASONS FOR DECISION
16 April 2009 Deputy President D G Jarvis 1. The applicant, Pauline Franks, claimed a war widow’s pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (VE Act). The Repatriation Commission rejected her claim, and on 15 May 2006, she applied to the Veterans’ Review Board (VRB) for review of the Commission’s decision.
2. On 16 May 2008, the Registrar of the South Australian Registry of the VRB, as delegate of the Principal Member of the VRB, sent Mrs Franks a notice under s 155AA(4) of the VE Act requesting her to provide to the delegate, within 28 days after she had received the notice, a written statement that she was ready to proceed, or reasons why she was not ready to proceed at a hearing. Mrs Franks has acknowledged that she received the notice at her correct address on 19 May 2008.
3. In circumstances to which I will refer below, Mrs Franks failed to respond to the notice under s 155AA(4) within 28 days of receiving it, and on 20 June 2008, the delegate dismissed the application on that ground, and sent a copy of his decision and the reasons for it to Mrs Franks, notifying her of the decision and of her right of review to this tribunal.
4. On 23 July 2008, Mrs Franks’ advocate, a Mr Horan, lodged with this tribunal an application for review of the decision by the delegate to dismiss her application to the VRB. The application to this tribunal was not lodged within 28 days of the receipt by Mrs Franks of the delegate’s advice that her application to the VRB had been dismissed, as required by s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Mrs Franks accordingly applied for an extension of time to apply to this tribunal for review of the delegate’s decision. The Principal Member objected to her application on the grounds that Mrs Franks’ application for review by this tribunal had no prospects of success, since as there had been no response to the s 155AA notice within the requisite time, the Principal Member was required by s 155AA(5) to dismiss the application to the VRB. The Commission applied to be joined as a party to the proceedings in this tribunal as a person whose interests are affected, and I made an order under s 30(1A) of the AAT Act making the Commission a party. The Commission also opposed the application for an extension of time.
Issue before the Tribunal
5. The primary issue before me is whether I should exercise my discretion to grant an extension of time for the institution of the proceedings in this tribunal. For reasons referred to below, this issue will in turn depend on whether the delegate was required by the VE Act to dismiss Mrs Franks’ application to the VRB, or whether the delegate had a discretion not to do so, notwithstanding that the response to the notice under s 155AA(4) had not been received within the requisite period.
Background facts
6. The application for an extension of time came on for hearing before the relevant documents had been provided to the tribunal as required by s 27 of the AAT Act. However, at my request, the VRB lodged and served copies of certain relevant documents as follows:
(a) a letter dated 16 May 2008 from the delegate of the Principal Registrar to Mrs Franks requesting her, pursuant to s 155AA(4) of the VE Act, to provide, within 28 days of receipt of the letter, a written statement of readiness to proceed, or reasons why she was not ready to proceed at a hearing, and also the documents enclosed with that letter;
(b) a Form 1 dated 16 June 2008, being the Response to s 155AA Notice, which is signed by the applicant’s advocate, Mr Horan, is stamped as having been received by the VRB Adelaide on 20 June 2008, and states that Mr Horan is ready to proceed at a hearing;
(c) a Certificate of Readiness for Hearing dated 16 June 2008, which is signed by Mr Horan, and stamped as having been received by the VRB Adelaide on 20 June 2008;
(d) a Form 2, being an Authorisation under Section 155AC, in which Mrs Franks authorises Mr Horan to represent her, which is stamped as having been received by the VRB Adelaide on 20 June 2008, and which incorporates a Response to Notice signed by Mr Horan and dated 16 June 2008, indicating that the applicant is ready to proceed at a hearing; and
(e) a letter dated 20 June 2008 from the delegate to Mrs Franks advising her of the decision to dismiss her application to the VRB under s 155AA(5), and a statement of reasons enclosed with that letter.
7. In addition, the VRB lodged and served copies of earlier letters from the VRB to Mrs Franks dated 3 January, 2 July and 30 November 2007 seeking information as to readiness to proceed, and a copy of a further such letter dated 25 March 2008. The VRB also lodged and served a copy of a letter from Mrs Franks dated 4 December 2007, in which she advised that she had instructed Mr Horan to act on her behalf in place of her previous advocate, and an affidavit by a former employee of the VRB’s South Australian Registry to the effect that the letter to Mrs Franks would have been posted on the day that it was dated.
8. At an earlier hearing of the application to this tribunal, Mr Horan represented Mrs Franks. I asked him to obtain further information from Mrs Franks, including the date when she received the letter dated May 2008 sent to her by the delegate pursuant to s 155AA(4), and what action she took after receiving that letter.
9. Mr Horan subsequently provided to the tribunal a copy of a letter to Mrs Franks in which he communicated to her the requests for information that I had made. Later a solicitor, Mr de Marchi, was instructed to act for Mrs Franks. He lodged and served a copy of a letter from Mrs Franks to Mr Horan dated 13 October 2008. Mrs Franks’ letter reads in part:
“The relevant letter dated 16 May 2008 was received by me at the correct address on the 19 May 2008. I contacted my advocate Mr John Horan by telephone the night of the 19th and he informed me that he would organise to proceed with the hearing. The letter did not confuse me and I filled out the ‘Authorisation under Section 155AC’ as requested and posted it to the David Smith, Registrar. I also filled out form 2 and sent it to Mr Horan. I was overseas on holiday from the 13 June 2008 until the 28 June 2008 and I assumed that the matter had been taken care of. I had no way of contacting Mr Horan while I was away and I did not really think that it was necessary to do so. Mr Horan contacted me after I arrived home to inform me that the application had been rejected as the paperwork was received at your office four days late. I did understand the relevance of the contents of your letter but I did not know that by law that these matters can be dismissed after the 28 days, everyone does not know the written law in all subjects, and this should be taken into account.”
10. The letter went on to say that in the latter part of 2006 an authorisation and Form 2 were filled out by Mrs Franks and sent to the Department of Veterans’ Affairs and to her previous advocate. It also referred to other matters, including her late husband’s service for 20 years in the RAN including service during the Vietnam War, her own service in the RAN, and her husband’s belief that she was entitled to the pension she was claiming. I infer that whilst the above letter was sent to Mr Horan, it was in the form of a submission by Mrs Franks that she intended to be placed before the Principal Member and this tribunal in support of the application for an extension of time.
11. It appears likely from the copy Form 2 (Authorisation under Section 155AC) that Mrs Franks was mistaken when she said in her letter of 13 October 2008 that she had sent that authorisation to the delegate. In the first section of that form Mrs Franks nominates Mr Horan to represent her, and this section is signed by her and dated 20 May 2008. It seems more likely that Mrs Franks then sent the form not to the delegate as she says in her letter to Mr Horan, but to Mr Horan, because the second section of the form is signed by him and dated 16 June 2008, and the form is stamped as having been received by the VRB on 20 June 2008. I also note that the letter of 16 May 2008 from the delegate to Mrs Franks states expressly that the Form 2 should not be sent back to the delegate, but should be given to the person who had been authorised to represent her.
Legislation
12. The VE Act provides for applications to be made to the VRB to review decisions of the Repatriation Commission. Section 155AA(1) of the VE Act refers to a “standard review period”, being the period of two years after the day on which an application was received by the VRB.
13. Section 155AA(4), empowers the Principal Registrar, where hearings have not been finished within the standard review period, to give a written notice requesting the applicant to provide, within 28 days, a written statement either indicating that the applicant is ready to proceed at a hearing, or explaining why the applicant is not ready to proceed. It provides as follows:
“(4) If, at the end of the standard review period:
(a) this section applies to an application for review; and
(b)the Principal Member considers that the applicant should be ready to proceed at a hearing;
the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;
(c)a written statement indicating that the applicant is ready to proceed at a hearing; or
(d)a written statement explaining why the applicant is not ready to proceed at a hearing.”
14. Section 155AA(5) then provides:
“(5)If the applicant does not provide a written statement under paragraph 4(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.”
15. Section 155AA goes on to deal with the eventuality that the applicant provides a written statement under s 155AA(4)(d) within 28 days, and with the Principal Member’s obligations, again expressed in mandatory terms, which depend on whether the Principal Member considers that the statement contains a reasonable explanation for a failure to be ready to proceed, or alternatively does not contain such a reasonable explanation.
16. Section 155AB deals with circumstances where the Principal Member has given an extension notice to extend the period within which the hearing of a review must have finished. It is not relevant to the present proceedings.
17. Section 155AC provides for an applicant for review to authorise another person to represent the applicant in relation to a notice under (relevantly) s 155AA(4).
18. Section 155A provides that an application may be made to this tribunal, subject to s 29 of the AAT Act, for review of decisions of the Principal Member under s 155AA and 155AB. Section 155A(1) provides relevantly as follows:
“(1)Application may be made to the Administrative Appeals Tribunal, subject to section 29 of the Administrative Appeals Tribunal Act 1975, for review of the following decisions of the Principal Member:
(a)the decision to dismiss an application under subsection 155AA(5) or 155AB(5);
(b)the decision under paragraph 155AA(6)(b) or 155AB(6)(b) that an applicant has provided a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;
(c)the decision under paragraph 155AA(7)(b) or 155AB(7)(b) that an applicant has provided no reasonable explanation for the applicant’s failure to be ready to proceed at a hearing.”
19. Section 29 of the AAT Act provides for the manner of making application to this tribunal for review of a reviewable decision, and provides, subject to exceptions not now relevant, that applications must be made within 28 days after the day on which the reviewable decision has been given to the applicant.
20. Under s 29(7) of the AAT Act, the tribunal may, upon application in writing by a person, extend the time for the making of an application to the tribunal for review “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
Consideration
21. The discretion in s 29(7) of the AAT Act to allow an extension of time to request reconsideration of a determination is conferred in general terms and does not incorporate any criteria by reference to which the discretion should be exercised.
22. An unrestricted discretion conferred upon the Federal Court to extend the time for an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) was considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. His Honour distilled from earlier authorities the following principles (omitting citations):
“1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of twenty-eight days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time …
2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights” …) and a case where the decision-maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the “need for finality in disputes” … but also the “fading from memory” problem …
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension …
4. However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude … A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion. …”
He went on to refer to the diversity of decisions to which review might be sought under the ADJR Act, and contrasted cases which might be decided upon considerations which affected only the immediate parties with cases where wider considerations of the public interest would be involved.
23. In Comcare v A’Hearn (1993) 45 FCR 441 a Full Court of the Federal Court said at page 444 that there is no rule that an explanation for an applicant’s delay in instituting proceedings in this tribunal is an essential precondition for success of an application for an extension of time.
24. In Jackamarra v Krakouer (1998) 195 CLR 516 Kirby J also summarised principles that should be applied to procedural time defaults. His Honour’s first principle was there are no rigid rules, and “it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time.” His Honour said that each case must depend upon particular circumstances. He went on to say at [66], omitting citations:
“2. Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. … But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application … Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred.
…
4. The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused … However, this is basically because to grant it would be futile.” (emphasis added)
25. Under s 155AA(5) of the VE Act, the Principal Member “must” dismiss the application to the VRB if the requisite written statement has not been provided within the 28 day period provided for in s 155AA(4). In Johnson v Veterans’ Review Board (2005) 88ALD 652 at [66] Lander J decided that the power in s 155AB(5) (which is in terms identical for present purposes with s 155AA(5)), is mandatory and must be exercised when the circumstances giving rise to it exist. A similar conclusion was reached by Madgwick J in Rodda v Repatriation Commission (2006) 156 FCR 227 at [55], where his Honour accepted the Commission’s argument that a requirement in s 155AC(2) for an authorisation of another person to represent an applicant “must” be in writing was a mandatory obligation, as was the obligation on the Principal Member to dismiss the application for review if a response had not been received within 28 days. His Honour further accepted that s 155AC(2) did not permit substantial compliance.
26. In a number of earlier decisions of this tribunal, s 155AA(5) or its predecessor has also been interpreted as imposing a mandatory obligation by virtue of which the Principal Registrar does not have a discretion not to dismiss the application. These decisions include Re Adams and Veterans’ Review Board (1992) 16 AAR 307, Re Arnold and Veterans’ Review Board [2000] AATA 1010 at [20], Re Hunt and Veterans’ Review Board [2001] AATA 224 at [40], Re Lamers and Veterans’ Review Board [2001] AATA 542 at [36], and Re Andrews and Principal Member, Veterans’ Review Board [2005] AATA 656 at [26].
27. On the face of it, it is curious that the VE Act confers jurisdiction on this tribunal to review decisions made under s 155AA(5) (and also corresponding decisions made under s 155AB(5)) having regard to the mandatory obligation of the Principal Member to dismiss the relevant application if the requisite response is not received within 28 days, since rights of review by this tribunal are commonly conferred where the reviewable decision has involved an exercise of some judgment, opinion or discretion by the decision-maker. I also note, however, that s 155A(1)(b) and (c) confer jurisdiction to review the actions of the Principal Registrar in more traditional circumstances, since under those paragraphs this tribunal is empowered to review a decision by the Principal Member as to whether or not there has been a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing.
28. In Re Adams (supra), Deputy President McMahon reviewed the history of the amendments to the VE Act that have resulted in the present sections 155AA – 155AAC. He also referred to the explanatory memorandum that accompanied the Bill to enact those sections. This indicates that the purpose of the amending sections was to ensure that matters were completed within the standard review period of two years, thereby freeing up the resources of the VRB so that it can deal with applications by veterans that await determination. After concluding that the word “must” indicated that the provisions were mandatory and not directory, the Deputy President said that “full meaning must be given to the repeated use of the word ‘must’ in s 155AA”, and concluded that the jurisdiction of this tribunal under the predecessor of s 155A(1)(a) is limited to deciding whether the power of dismissal was founded by fulfilment of the statutory preconditions (that is, whether the necessary procedural steps leading up to a dismissal have in fact been taken).
29. Two of the contentions made by Mrs Frank’s solicitor, Mr de Marchi, in support of her application for an extension of time amount to contentions that the preconditions to the dismissal of the application under s 155AA(5) had not been fulfilled. His first contention was that in the circumstances of this case, where there had been a change of advocates, and the applicant’s preparation had been delayed by the change, it was not possible for the delegate to have formed the requisite opinion required by s 155AA(4)(b).
30. In Re Adams (supra) Deputy President McMahon pointed out that the tribunal has power to review “the decision to dismiss an application”, and that what was required to constitute a decision must be more than “a mere stepping stone” that might lead ultimately to the making of a decision, but did not affect a person’s position. He decided that the Principal Member’s view that the applicant should be ready to proceed at a hearing was merely a step along the way, but that the substantive decision was that the application should be dismissed, and it was that decision that this tribunal had power to review.
31. I agree with the Deputy President’s conclusion, although with respect, I would have analysed the issue a little differently. It seems to me that the only issue raised by s 155AA(4)(b) that is relevant for present purposes is whether the Principal Member, by his delegate, had in fact formed the opinion that the applicant should have been ready to proceed at a hearing, and I agree that for the reasons referred to by Deputy President McMahon in Re Adams, it is not competent for this tribunal to review the reasonableness or otherwise of that opinion. In the present matter, the letter of the delegate to Mrs Franks of 16 May 2008 expressly says: “… I consider that you should be ready to proceed at a hearing”. There is therefore evidence before me that the delegate had formed the requisite opinion before giving written notice to the applicant under s 155AA(4).
32. Further, even if (contrary to my view) the reasonableness of the delegate’s opinion could be challenged, there is no basis in the present matter for any such challenge. There is no suggestion that the opinion was formed in bad faith. The change of advocates had been advised to the Registry by Mrs Franks’ letter of 4 December 2007, and was followed by a letter dated 25 March 2008 from the VRB seeking information as to readiness to proceed, that being the fourth such letter sent to the applicant since 3 January 2007; and by 16 May 2008, two years had elapsed since the date when the application to the VRB had been lodged.
33. The second challenge to the conditions precedent made by Mr de Marchi was that the notice was defective on the grounds that it had not been given, as required, at the end of the standard review period of two years, because 2008 was a leap year and the applicant should have been given the benefit of an additional day. He relied in support of this contention on Re Clubb, ex parte Clubb v Westpac (1990) 93 ALR 123. This case discussed the meaning of the word “year” in various contexts and under various statutes. However, it is clearly distinguishable from the present matter, because it related to the correct calculation of interest for portion of a year that was a leap year, where counting in the correct number of days for the purposes of the interest calculation was essential to the correctness of that calculation. In s 155AA(1), the period is defined by reference to “years”, and in that context means in my opinion a period of years determined by reference to the calendar. On that basis, the “end of the standard review period” within the meaning of s 155AA(4), was 16 May 2008, being the date of the delegate’s letter to Mrs Franks giving her notice pursuant to that subsection.
34. In any event, by 16 May 2008, the applicant had had the benefit of the additional day, 29 February 2008, because 2008 was a bissextile, or a leap year.
35. Quite apart from these matters, Mr de Marchi’s argument assumes that the notice was given on 16 May 2008. In fact, however, the notice was “given” to Mrs Franks on the day that she received it, namely 19 May 2008. In my opinion, the word “give” in s 155AA(4) refers to the physical delivery of the notice from the Principal Member; in this case, it is acknowledged that that date was 19 May 2008, and it is unnecessary to refer to the deeming provisions of s 29 of the Acts Interpretation Act 1901 (Cth): see WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 69 at [37], where the High Court of Australia interpreted the word “give”, in the context of a section requiring the Refugee Review Tribunal to “give” a copy of a written statement to the applicant, to mean the physical delivery of the written statement, and not some act of constructive delivery of possession which, at general law, might be sufficient to transfer property in a chattel. It has been established that delay in giving of a notice under s 155AA(4) of the VE Act does not invalidate the notice : Johnson v Veterans’ Review Board (2002) 71 ALD 16.
36. Mr de Marchi also contended that Mrs Franks provided a response in the Form 2, which she signed and dated on 20 May 2008, and then forwarded it to the delegate, appointing Mr Horan to represent her and to respond on her behalf, and that this should fairly be regarded as an indication that she was not ready to proceed to a hearing and a sufficient response to s 155AA(1)(4)(d).
37. I referred to the contents of the Form 2 in paragraph 11 above. It does not expressly contain a written statement explaining why Mrs Franks was not ready to proceed at a hearing, and on a proper interpretation of the form, no such statement can be implied. The tribunal reached this conclusion in Re Johnson and Veterans’ Review Board [2000] AATA 282 in response to a virtually identical argument, and the tribunal’s conclusion was not questioned in subsequent litigation between the parties arising from the dismissal of Mr Johnson’s application to the VRB. The fact that Mr Horan failed to respond to the s 155AA(4) notice within the prescribed time, notwithstanding Mrs Franks’ communication to him on 19 May 2008, did not of course constitute a response to the notice, and such a failure by a representative was held not to affect the mandatory operation of s 155AA(5) in Re Gregory and Veterans’ Review Board and Repatriation Commission [2000] AATA 448. The conditions precedent to the Principal Registrar’s duty to dismiss the application to the VRB pursuant to s 155AA(5) therefore existed, and the delegate proceeded to dismiss the application as he was obliged to do under that subsection.
38. In any event, for the reasons referred to in paragraph 11 above, it appears that Mrs Franks was mistaken when she said in her letter of 13 October 2008 to Mr Horan that she had posted the Form 2 to the Registrar.
39. Finally, Mr de Marchi contended that the dismissal was rendered defective by the failure of the delegate to provide, in the statement of reasons given for the dismissal, a statement that the delegate considered that the application should have been ready, in breach of s 155AA(4)(b). I do not accept this submission. Whilst the requirements of that paragraph are a prerequisite to the issue of the notice under s 155AA(4), the letter from the delegate is sufficient evidence that that precondition had been fulfilled, because as mentioned above, the letter expressly records that the delegate had formed the requisite opinion (see paragraph 31 above). There is no requirement for the Principal Registrar, or in this case, the delegate, to refer to that matter when providing reasons for giving effect to his or her statutory duty under s 155AA(5).
40. For all of the above reasons, I have concluded that Mrs Franks does not have an arguable case to challenge the delegate’s action in dismissing her application to the VRB pursuant to s 155AA. In those circumstances, it would be futile to grant an extension of time for applying to this tribunal for review of the delegate’s decision. I accordingly refuse the application for an extension of time.
41. I have reached the above conclusion with some reluctance since it appears that Mrs Franks had done everything that she could have done in the circumstances. She rang her advocate on the same day that she received the letter of 16 May 2008. She immediately sent the notice on to Mr Horan, and he was only one day late in returning the notice to the registry. Mr Horan advised me at a directions hearing that he had been affected by ill health.
42. I also note that Mrs Franks will be potentially disadvantaged by the dismissal of her application to the VRB, because if her claim for a widow’s pension ultimately succeeds, then under s 20(1) of the VE Act, there would be a discretion to specify, as the date when that determination takes effect, a date not earlier than three months before the date on which the relevant claim was received at the office of the Department of Veterans’ Affairs, namely 15 May 2006. I understand that following the dismissal of her application to the VRB, Mrs Franks has made a further application for widow’s pension, but in supplementary submissions dated 10 October 2008, the Principal Registrar contends that that claim is invalid by virtue of s 146(6) of the VE Act on the grounds that her application to this tribunal had not been determined. No doubt Mr de Marchi will consider this issue and advise Mrs Franks as to her position. In any event, even if this is not the position, there would be prejudice to Mrs Franks, because any favourable determination of any fresh application could only potentially be backdated to three months before the lodgement of that fresh application. For this reason, and for the reasons referred to in paragraph 41, if (contrary to my view) Mrs Franks had an arguable case to set aside the delegate’s action in dismissing her application to the VRB, this would be a clear case for granting an extension of time for the lodgement of the application to this tribunal.
43. I add for the sake of completeness that I have not overlooked the dicta of Madgwick J in Rodda (supra), where he said at [59]:
“However, I should note that this is not a case of a review applicant who has done everything that he could do in the circumstances. The case, for example, of a veteran who had authorised the representative in writing but, through infirmity, had been unable to get the written authorisation back to the Board in time might possibly stand in a different position. Such a case may be decided if and when it arises.”
44. However, his Honour had earlier in his judgment interpreted the provisions of s 155AA(5) as mandatory, and he did not explain how this position would not obtain in the circumstances to which he referred. I think that I should give effect to the clear language of s 155AA(5), and follow the consistent line of earlier authorities in the Federal Court and in this tribunal on the effect of that section, notwithstanding his Honour’s dicta. In view of my conclusion that the application to this tribunal would be futile, it would not be reasonable to grant an extension of time for the making of the application for review. On the contrary, to do so would be a waste of this tribunal’s resources, and it would put the parties to unnecessary legal costs.
Decision
45. The tribunal refuses to grant an extension of the time for making the application to review the decision therein referred to.
I certify that the 45 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 4 and 25 September 2008, 10 December 2008, and 12 March 2009
Date of Decision 16 April 2009
Solicitor for the Applicant Mr de Marchi
de Marchi & AssociatesAdvocate for the Veterans’ Ms K Harry
Review BoardSolicitor for the Repatriation Mr B Topperwien
Commission
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