Phillips and Repatriation Commission

[2001] AATA 943

DECISION AND REASONS FOR DECISION [2001] AATA 943

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2000/1526

VETERANS' APPEALS  DIVISION     )          
           Re      William Harry John Phillips        
  Applicant
           And    Repatriation Commission           
  Respondent

DECISION

Tribunal       M J Sassella, Senior Member       

Date15 November 2001 

PlaceSydney

Decision      The Tribunal decided not to reinstate the Applicant's application.     
  ..............................................
  Senior Member

CATCHWORDS
VETERANS' AFFAIRS – withdrawal of application – application for reinstatement – withdrawn in error – merits of case weak – reinstatement not granted

Administrative Appeals Tribunal Act 1975, s.42(1A), (1B), (6), (10)
Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123

REASONS FOR DECISION
Mr J M Sassella, Senior Member

History of application

1. On 4 October 2000 Mr William Harry John Phillips ("the Applicant") lodged with Administrative Appeals Tribunal ("the Tribunal") an application for review of a decision by the Veterans' Review Board dated 27 June 2000 (Ex A1).

2. On 12 June 2001 a notice of withdrawal signed by the Applicant on 6 June 2001 was received by the Tribunal (Ex A2).  The Applicant wrote that he had been forced to withdraw because of his wife's stroke and some negative responses by his RSL advocate.

3. On 12 June 2001 the Tribunal wrote to both parties to say that the application was taken to have been dismissed in accordance with s 42A(1B) of the Administrative Appeals Tribunal Act 1975 ("the Act") (Ex TD1).

4. On 15 October 2001 the Tribunal received a letter from the Applicant dated 10 October 2001 seeking the reinstatement of his application (Ex A3). 

5. On 22 October 2001 an officer from the Tribunal wrote to the Respondent seeking its views on the reinstatement application (Ex TD2).

6. On 24 October 2001 the Respondent wrote to the Tribunal opposing the reinstatement (Ex R1).  This was for the following reasons:

• The Applicant understood that the effect of withdrawing would be that he would lose the benefit of an earlier date of effect of any successful application but that he could still lodge a fresh claim albeit with the later date of effect.

• The Respondent at no time advised the Applicant to withdraw.

Hearing and appearances

1. The Tribunal convened a telephone hearing on 9 November 2001.  Mr Irwin Hoddington of the Coffs Harbour RSL represented the Applicant.  Mr J Marsh of the Department of Veterans' Affairs ("DVA") represented the Respondent.

2. The Tribunal had before it the following documents that were admitted as evidence:

• Exhibit A1 – Application for review, 4 October 2000.

• Exhibit A2 – Applicant's notice of withdrawal, 12 June 2001.

• Exhibit A3 – Applicants letter dated 10 October 2001 seeking reinstatement of application, 15 October 2001.

• Exhibit R1 – Respondent's submission, 24 October 2001.

• Exhibit TD1 – Letters dated 12 June 2001 from the Tribunal to the parties.

• Exhibit TD2 – Letter dated 22 October 2001 from the Tribunal to the Respondent.

Relevant legislation

1. Legislation relevant to the application for reinstatement is the Administrative Appeals Tribunal Act 1975 section 42A(1A), (1B), (6), (10):

   42A  Discontinuance, dismissal, reinstatement etc. of application
   …

   (1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

   (1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

   …

   (6)If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

   …

   (10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

1. The Tribunal finds that the Applicant's notice of withdrawal (Ex A2) was a valid notice of withdrawal under s 42A(1A) of the Act.

2. The Tribunal finds that that notice had the effect that the Tribunal was taken under s 42A(1B) of the Act to have dismissed the Applicant's application without proceeding to review the decision.

3. The Tribunal finds that, under s 42A(10) of the Act, if the application is to be reinstated :

4. There must be an application by the party for reinstatement.

1. The Tribunal must find that the application was dismissed in error.

1. The Tribunal must decide whether to exercise its discretion to reinstate the application.

1. The Tribunal may give such directions as appear appropriate in the circumstances.

1. The Tribunal finds that Ex A3 is a valid application for reinstatement.

2. The Tribunal considered arguments as to whether the application had been dismissed in error.  Mr Hoddington in the hearing made a general plea for compassion.  The withdrawal was because of circumstances in which Mr Phillips had more concern for his dying wife than for his personal well-being.  He also argued that Mr Phillips was unaware at the time when he withdrew that he could ask the Tribunal to suspend progress on the application pending a resolution of the situation with Mrs Phillips.  The previous RSL advocate had not advised the Applicant that he could request a suspension.

3. Mr Marsh said that there had been no error by the Applicant.  He had been aware of the consequences of a withdrawal and effectively went ahead with his eyes open.  He had received advice from the RSL (Mr Smith), the DVA and the Tribunal. 

4. Mr Marsh also submitted that, on the merits, the Applicant had a weak case.  The issue being the Applicant's lifestyle rating, the fact that the Applicant had been able to care for his wife means that he is somewhat able-bodied and unlikely to attract a lifestyle rating of 6 as necessary for the extreme disablement adjustment.  Dr M Burns's report also suggested that the Applicant's lifestyle rating was unlikely to rise to 6 following any Tribunal review.

5. The Tribunal considered these arguments and on the basis of authority in Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123 finds as follows:

6. The Applicant acted in error in withdrawing his application.  The error stemmed from the failure of the RSL advocate to advise the Applicant that he could ask that the proceedings be held in suspense.  Booth (supra) is authority for the proposition that the "error" required by s 42A(10) need not be a Tribunal error. It can be an error by the applicant.

1. The Tribunal finds that it should not exercise its discretion to direct that the application be reinstated because the merits of the Applicant's case are weak.  That this is a relevant criterion is consistent with the authority in Booth (supra).  The Tribunal accepts Mr Marsh's arguments as to the reasons why the merits of the case are weak.

1. There is no need for the making of any directions.
   Conclusion

1. The Tribunal has decided that the application for reinstatement should be rejected.
   Decision

1. The Tribunal decides not to reinstate the Applicant's application.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of 

Signed:         .....................................................................................
  Associate

Date/s of Hearing  9 November 2001
Date of Decision  15 November 2001
Counsel for the Applicant        Mr I Hoddington              
Counsel for the Respondent    Mr J Marsh