Phillips and Repatriation Commission

[2002] AATA 986

DECISION AND REASONS FOR DECISION [2002] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1321

VETERANS' APPEALS DIVISION          )          
             Re     Catherine Phillips          
  Applicant
           And    Repatriation Commission           
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member   
Date              10 October 2002

PlaceSydney

Decision      For the reasons provided orally at hearing, an extension of time until 11 September 2002 to lodge an application for review from the decision of the Veterans' Review Board made on 18 September 2001, is granted, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975.

..............................................
  Ms SM Bullock     
   Senior Member            
CATCHWORDS

VETERANS' AFFAIRS – Application for extension of time to lodge application for review – Reasonable explanation for failing to proceed in a timely fashion

LEGISLATION

Veterans' Entitlements Act 1986 s176
Administrative Appeals Tribunal Act 1975 s29

AUTHORITIES

Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 7 ALD 315
ReRobertsandRepatriationCommission (1992) 27 ALD 408
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  The Applicant and the Respondent then requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.
Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  10 October 2002
Date of Decision  10 October 2002

Representative for Applicant             Mr R Davis, RSL Advocate
          Representative for Respondent  Mr S Modder, Departmental Advocate

DECISION   
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/1321
By MS S.M. BULLOCK, Senior Member
PHILLIPS and REPATRIATION COMMISSION
SYDNEY, 10 OCTOBER 2002

MS BULLOCK:   This is an application for an extension of time made by Mrs Catherine Phillips to the Administrative Appeals Tribunal ("the Tribunal") in relation to a decision that was made by the Veterans' Review Board ("the Board") on 18 September 2001.  That decision was that the death of Mr Phillips was not war-caused and accordingly Mrs Phillips was not qualified or eligible to receive a Widow's Pension.  The matter number of this application is N2002/1321 and the Respondent is, as would be obvious, the Repatriation Commission.

The background to this matter is that Mrs Phillips was in receipt of a decision from the Board on or around 28 September 2001, the decision having been despatched, as I understand it, on 24 September 2001.  This provided Mrs Phillips with a period until 28 December 2001 within which she could lodge an application for review to the Tribunal if she so wished to apply for a review of the Board's decision.  Mrs Phillips lodged an application for review to the Tribunal on 11 September 2002, which is nearly nine months after the time required. 

Turning to the evidence in this matter, Mrs Phillips told me that she had received the Board's decision in good time and understood it.  She was also advised in an accompanying letter of the appeal rights to the Tribunal and the time frames.  The evidence provided by Mrs Phillips was that she understood this decision and she also understood the appeal rights issues.  Mrs Phillips stated that she believed that the decision was wrong, that is, the decision of the Board.

Very soon after receiving the Board's decision Mrs Phillips attempted to contact her Returned Services League ("RSL") advocate who, I understand, was Mr Carey.  Mr Carey had been helping her and had in fact been in attendance at a number of the Board hearings in relation to her application to that Board.  Mrs Phillips was told that Mr Carey was not available and she did not then try to speak to anyone else. 

Mrs Phillips then went on to explain that she had been very ill prior to the Board hearing in September of 2001 and that this illness continued for some time.  She believed that the illness which caused her to feel very unwell and also to suffer from symptoms she likened to vertigo probably started in about August of 2001 although she was not sure.  She did attend her doctor on many occasions and was told that she was suffering from grief, her husband having died on 22 March 2000.

The problems continued with Mrs Phillips feeling unwell until she suffered two quite bad falls when she was at home.  She was taken by her son to the doctor.  Subsequently blood tests were undertaken and she was finally diagnosed, she thought in about April of 2002, as having late-onset diabetes mellitus, Type II.  Mrs Phillips stated that she has subsequently been informed that she has as a result of this condition kidney damage and damage to one eye.

The condition is controlled by diet and Mrs Phillips explained that she did notice some improvement under this treatment regime but it took some months for this to occur.  Mrs Phillips thought that she was well for some months but then noted that at the time of today's hearing, that is 10 October 2002, she has again for a short period been feeling quite unwell.  Mrs Phillips also explained her other health conditions.  These included severe asthma.  She takes four types of medication for this and some medication she takes twice a day for asthma.

Mrs Phillips also suffers from diverticulitis which causes her daily problems and is embarrassing.  This condition has been certainly longstanding.  Furthermore, Mrs Phillips noted that she has pain in both shoulders for which she receives what she described as nerve blocks or pain-killing injections which she thought was cortisone.  She also suffers from arthritis.  Mrs Phillips said that she had other health problems but at the time she was talking to us she was not able to remember them all.  Mrs Phillips receives help from the Home Care service in the form of being provided with housework and domestic assistance.  She prepares her own meals but has some time back received assistance through the Meals on Wheels service after having been hospitalised. 

Mrs Phillips explained that for the past 12 months her son has been undertaking most of her business-type activities, for example paying the rent and other bills, and also doing her shopping.  At the time that Mrs Phillips said that she received the decision from the Board she discussed this with her family which, as I understand it, includes two sons and a daughter-in-law who live in the area near her.  Mrs Phillips told us that the family did not agree with the decision and she noted that one son had told her that he thought that it was understood that Mr Phillips did not smoke before the war and then after the war he was smoking.  This was then linked into Mr Phillips' accepted condition of bronchitis.

Mrs Phillips told us that she did not ask her children to help her with pursuing the Board's decision by way of an application for review to the Tribunal.  She stated that this was something that she should do for herself.  Furthermore, Mrs Phillips stated that she would have liked to have pursued the matter at that time but was just not well enough.  She stated that she had not done anything like this before and she was not thinking properly.  She was unwell, she was old and she also explained that she was suffering from grief and still is.

In relation to Mr Phillips' death, Mrs Phillips noted that Dr Langford who provided two statements or reports to the Board only knew her husband for three weeks prior to his death.  Her husband's longstanding doctor was ill at the time of Mr Phillips' last illness and therefore was not present during this time.  The General Practitioner who had been long involved with Mr Phillips' care, Dr Feneley, is no longer in practice.  As I understand Mrs Phillips' evidence, her husband's clinical notes are still kept in the same practice where Dr Feneley conducted his surgery.  Mrs Phillips did not know whether or not the clinical notes from Dr Feneley were available to the Board.  She stated that the doctor currently involved in her care has looked at Dr Feneley's notes but was unable to read his writing.

In the hospital prior to Mr Phillips' death, Mrs Phillips noted that her husband was coughing and she had asked that a window in the vicinity of her husband should be closed.  The Tribunal also notes from Mrs Phillips' evidence that she did not provide any evidence to the Board although she waited for telephone calls, which she had expected.  Mrs Phillips later approached in about July of 2002, although there is no great certainty of this timing, a Mr Ellis who was attached to the Albion Park RSL and who is an advocate.  He then, as the evidence unfolded, contacted Mr Davis who is the representative of Mrs Phillips at today's extension of time hearing.  There was some contact between Mr Davis, Mrs Phillips and Mr Ellis but it was not until 11 September 2002 that in fact an application for review was lodged with this Tribunal.

Turning to the submissions, Mr Davis, as I have noted who represented Mrs Phillips, asked the Tribunal to consider that the Veterans' Entitlements Act 1986 is beneficial legislation and that this must be borne in mind when considering an application to the Tribunal for an extension of time. Mr Davis submitted that Mrs Phillips was very unwell before the Board hearing and subsequently. She was suffering from vertigo and the consequences of that, she was feeling very unwell and it took some months and two bad falls for eventually a diagnosis to be provided in about April 2002.

It was at that time it was discovered that Mrs Phillips was suffering from diabetes mellitus.  Mr Davis referred to the fact that Mrs Phillips is elderly, she is suffering from grief in addition to her physical problems.  This must be taken into account, Mr Davis submitted.  Mr Davis further referred the Tribunal to the decision of Re Roberts and Repatriation Commission (1992) 27 ALD 408, a Tribunal decision in which it was noted that factors such as age, health and particularly the beneficial nature of the Veterans' Entitlements Act 1986 should be taken into account.

Referring to the Respondent's submissions in relation to the High Court decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, a decision, as I mentioned, of the High Court, Mr Davis submitted that this was not considering beneficial legislation as in the case of the matter before me. In relation to the involvement of the RSL advocate at the time of the Board's hearing, that is Mr Carey, Mr Davis submitted that this advocate had been long suffering from post traumatic stress disorder. There was an exacerbation of this condition and in about December 2001 Mr Carey took leave on and off until he eventually retired in February 2002.

Mr Davis submitted that Mr Carey was not in any position because of his health to properly and ably assist Mrs Phillips with any application to the Tribunal.  When discussing the practice and procedures of RSL advocates in terms of pursuing matters once there has been a rejection from the Board, Mr Davis noted that each advocate has their own practice but he felt that at the very least Mr Carey would have contacted Mrs Phillips.  This did not occur.

In terms of the merits of the case Mr Davis submitted that the matters under consideration in terms of whether or not Mr Phillips had a war-caused death bears further investigation.  In this regard Mr Davis pointed to the fact that Dr Langford was not aware of bronchitis being an accepted condition and had only been involved with Mr Phillips for some short time.  Furthermore, the issue of the involvement of dementia in Mr Phillips' death also needed further exploration.  Mr Davis strongly submitted that there are merits present in this case.

Mr Modder provided written submissions to the Tribunal in relation to the extension of time.  Briefly those submissions were that Mrs Phillips provided no evidence of any extenuating circumstances which would justify the granting of an extension of time.  Having heard Mrs Phillips' evidence, Mr Modder was genuinely sympathetic to Mrs Phillips' health problems and the obvious grief that she has suffered as a result of her husband's death.  He submitted, however, that whilst those were sad circumstances they did not justify the delay in this matter being brought before the Tribunal.

In this regard Mr Modder also noted that Mrs Phillips still has capacity.  She is able to understand matters, she is able to read the paper and that despite her obvious health problems they were not significant enough to justify the granting of an extension of time or the delay in this matter occasioning nearly some nine months.  Mr Modder referred the Tribunal to the decision in Re Roberts and Repatriation Commission (supra) in which President O'Connor J held that it was the intention of parliament, based on public policy, that veterans should not have unlimited time to pursue their claims for review before the Tribunal.

Furthermore, Mr Modder noted that that case was authority for the principle that time limits set by the Administrative Appeals Tribunal Act 1975 should be complied with strictly. Furthermore, Mr Modder referred the Tribunal to the High Court decision in Brisbane South Regional Health Authority v Taylor (supra) which, in relation to similar extension provisions to those in the Administrative Appeals Tribunal Act 1975, he submitted, held there was no presumptive right to exercise the discretion and that the parties seeking the extension bear the onus of showing that the justice of the case requires the extension.

Mr Modder noted that two of the High Court Judges in that matter held that once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the Respondent who would otherwise have had the benefit of the limitation. In the written submission Mr Modder further contended that Mrs Phillips had rested on her rights and took no action to make the Respondent, the Repatriation Commission, aware that the Board decision would be contested.

There is little merit in the substantive matter, Mr Modder further submitted. He noted that the onus rests on Mrs Phillips, the Applicant, to show compelling reasons as to why an extension of time should be granted and to his mind no sufficient reason was provided.  It was also noted in the written submission that there is prima facie, however, no real prejudice to the Respondent.  The Tribunal was referred to other authority in relation to extension of time matters, that being the Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 7 ALD 315 decision and also a Tribunal decision, Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309.

In relation to specifically the oral submissions which developed Mr Modder's written submissions, he noted that in relation to the merits of the case that the Board had properly considered the medical evidence available. He noted that there were in fact adjournments to enable the Board to obtain more full and complete medical evidence.  The conclusions of the Board based on this additional medical evidence did not provide any sufficient merit to warrant an extension of time being granted.

I have come to a decision in this matter taking into account Mrs Phillips' evidence, the submissions of Mr Davis and of Mr Modder.  I have also obviously had reference and concern to the legislation.  In this case there is the Administrative Appeals Tribunal Act 1975 and the Veterans' Entitlements Act 1986. I have also had recourse to case law to ascertain whether or not I might be afforded some assistance by considerations of extension of time matters in the case law.

Let me say at the outset that whilst this has been a brief hearing I consider that Mrs Phillips provided evidence to the best of her ability and that she was a credible witness.  I believed what she had to tell me.  I find that Mrs Phillips was ill prior to the final Board hearing and that she was ill subsequent to receiving the Board decision dated 18 September 2001.  The illness that Mrs Phillips suffered prior to that hearing and subsequently included matters of asthma, diverticulitis and the more concerning problem at the time which was undiagnosed feelings of being unwell, suffering from vertigo.

This latter condition or symptoms of a condition went untreated although there was attendance by Mrs Phillips at her local doctors.  The condition was not treated nor diagnosed until about April 2002.  The diagnosis arose out of the increasing illness of Mrs Phillips leading up to or culminating in her having two falls at home which then some time later caused a blood test to be taken and the diagnosis made based on that blood test.

I am of the view that Mrs Phillips' health, of which I know about the asthma, arthritis, diverticulitis and diabetes mellitus, are significant problems for a person who is elderly to deal with.  I also accept her evidence that she was at that time and still is suffering from grief in relation to the death of her husband.  There are accordingly a combination of factors in this case which must be taken into account as explanations for Mrs Phillips not proceeding in a timely manner.

I also accept the information provided by Mr Davis concerning the fitness of Mrs Phillips' former advocate, Mr Carey.  While I have no evidence from Mr Carey himself and I am also not aware of the practices he might have employed in terms of dealing with matters which have been rejected by the Board, I feel certain that at the very least he would have contacted Mrs Phillips.  Mr Carey had been involved in this matter for some time and I think it unlikely, had he not had his illness, that he would not have at least discussed with Mrs Carey the decision and the implication for further pursuing the matter or not.

I also find that there was further delay once Mrs Phillips felt well enough to proceed with an application to the Tribunal, that once she contacted Mr Ellis in about July 2002 it was not until September 2002 that the RSL was in a position to submit an application for review to this Tribunal.  While this further delay may be well understandable in terms of work-loads, it is still a factor which I have to take into account.

In terms of the merits of this case I am satisfied that while there was careful consideration of the evidence by the members before the Board there seems to be some matters which may bear further investigation.  In this regard it may well be useful, and I am not aware as to whether or not this has already been done, but if it has not been done it may well be useful as to there being some investigation of the clinical notes from Dr Feneley's practice in terms of Dr Feneley's treatment of the late veteran.

I also find that the information provided by Dr Langford seems to have been provided without her being aware of some of the circumstances surrounding the late veteran's health and his demise.  Furthermore, there may be some further merit to investigation as to the influence of the dementia on Mr Phillips' death.  I also note and have accepted the evidence of Mrs Phillips that she has not at any time provided any direct oral evidence to the Board in terms of her presence leading up to Mr Phillips' death and the circumstances surrounding his demise.

For example, the evidence provided by Mrs Phillips concerning her presence in the hospital seems to have been before the Tribunal.  Though this may not be the case, I only have available to me the Board's decision of 18 September 2001.  I have looked at the case law and I have considered the matters arising out of the various cases put by Mr Davis and Mr Modder.  I must, while taking account of those matters, decide this matter on the facts that are before me, the circumstances which surround Mrs Phillips' failure to proceed with her application for review to the Tribunal in a timely manner.

Taking into account subsection 176(4)(b) of the Veterans' Entitlements Act 1986 and subsection 29(7) of the Administrative Appeals Tribunal Act 1975, it is my view that there is reasonable explanation provided today in terms of a combination of factors which prevented Mrs Phillips proceeding with her application for review to this Tribunal. It is my view that the combination of factors provide a reasonable explanation. Those factors include her health, her age, her unfamiliarity with the type of matter that she was dealing with and her advocate's illness. These are matters that affected her capacity at the time to proceed in a timely fashion.

It is my view that one cannot underestimate the combination of these factors.  Furthermore, in relation to the merits of the case, whilst the Board considered properly all of the matters before it, it would appear from the information that has been provided today that there may be further investigation required which provides some concern to myself that the merits of the case have not fully been explored.  In all of the circumstances therefore, I have decided to grant the extension of time to Mrs Phillips until 11 September 2002 in order for her to lodge an application for review to the Administrative Appeals Tribunal.