Polglaze and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 324
•20 May 2016
Polglaze and Repatriation Commission (Veterans’ entitlements) [2016] AATA 324 (20 May 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/6275
Re
Ronald Polglaze
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 20 May 2016 Place Perth The Tribunal dismisses application 2015/6275 pursuant to section 42B(1) of the Administrative Appeals Act 1975 on the basis that it has no reasonable prospect of success.
.................[Sgd].......................................................
Brigadier AG Warner, Member
CATCHWORDS
VETERANS’ APPEALS – s 42B(1) dismissal application on the basis that application is frivolous or vexatious – alternative position that application has no reasonable prospect of success – whether criteria for Extreme Disablement Adjustment are satisfied – section 42B application successful – substantive application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 42B(1)
Veterans’ Entitlements Act 1986 – s 22(4)
CASES
Re Filsell and Comcare [2009] AATA 90; 109 ALD 198
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions
REASONS FOR DECISION
Brigadier AG Warner, Member
20 May 2016
INTRODUCTION
On 29 March 2016, the Repatriation Commission applied to the Tribunal for the dismissal of this application (Polglaze, 2015/6275) pursuant to section 42B(1) of the Administrative Appeals Act 1975 (“AAT Act”) on the basis that it is frivolous or vexatious. The respondent’s alternative position is that the application should be dismissed under s 42B(1) of the AAT Act because it has no reasonable prospect of success (Exhibit A1 p2).
The Tribunal conducted a hearing on 29 April 2016. Mr Polglaze did not attend and was represented by his advocate, Mr Trevor Robbins.
BACKGROUND
Mr Polglaze was born in 1927.
Mr Polglaze served in the Royal Australian Navy from 16 July 1946 to 25 February 1949, and in the Royal Australian Naval Reserve from 6 February 1962 to 5 February 1974.
Mr Polglaze ceased work in 1979.
Mr Polglaze has been in receipt of the veterans’ Disability Pension at 100% of the general rate since 2010 (Exhibit 2 p1).
On 29 January 2013 Mr Polglaze lodged a claim for lumbar spine condition and for an increase in his disability pension (T3/1-11).
On 11 March 2013 a delegate of the Repatriation Commission determined that the lumbar spine condition was not related to Mr Polglaze’s service, that his application for increased disability pension was unsuccessful, and that his disability pension was to be continued at 100% of the general rate (T5/27).
On 17 May 2013 the Veterans’ Review Board (“VRB”) set that decision aside, finding that Mr Polglaze’s lumbar condition was war-caused, and remitted the matter to the Repatriation Commission (T7/43).
On 3 July 2013, a delegate of the Repatriation Commission determined that Mr Polglaze’s pension was to be continued at 100% of the general rate, based on an impairment rating of 50 points and a lifestyle rating of 5 points (T8/49-52).
On 7 August 2013, Mr Polglaze lodged an application with the VRB for review of the Repatriation Commission’s decision of 3 July 2013 (T9/53). The VRB affirmed the decision on 4 September 2015. The VRB also determined Mr Polglaze’s impairment rating to be 60 points, his lifestyle rating to be 5, and that he was not entitled to the Extreme Disability Adjustment (“EDA”) (T2/B1-B9).
On 1 December 2015, Mr Polglaze lodged an application with this Tribunal for a review of the VRB decision of 4 September 2015 (T1/A1-A2).
On 29 March 2016, the Tribunal was asked to dismiss this application under s 42B of the AAT Act. This hearing is an interlocutory step in determining Mr Polglaze’s application.
LEGISLATION
Under section 42B(1) of the AAT Act, the Tribunal may dismiss an application for review if the Tribunal is satisfied that the application is:
a) frivolous, vexatious, misconceived or lacking in substance; or
b) has no reasonable prospect of success; or
c) is otherwise an abuse of the process of the Tribunal.
Subsection 22(4) of the Veterans’ Entitlement Act 1986 is the legislation relevant to the substantive claim. It states that the EDA is payable where:
a) either:
(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined that is in force; or
(ii) a veteran is, because he or she suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
b) the veteran has attained the age of 65;
c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
d) the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25.
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-T13, pp A1-74) (Exhibit 1)
·Respondent’s Application for Dismissal dated 29 March 2016, including attached email traffic and Claims for Disability Pension and/or Application for Increase in Disability Pension dated 28 July 2003 and 27 September 2007 respectively (Exhibit 2)
ANALYSIS
Dismissal considerations
The principles governing dismissal pursuant to s 42(B) of the AAT Act were set out by DP Jarvis in Filsell and Comcare [2009] AATA 90 and relevantly included that:
(c) The power of the Tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing…
(d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
The Tribunal also acknowledges the public interest in finality in Tribunal proceedings, and particularly so in a protracted matter such as that before the Tribunal in the present proceedings. In Re Quinn v Australian Postal Corporation (1992) 15 AAR 519, the Tribunal said at 526:
The Tribunal considers that there are strong reasons, both in case law and expressed in public policy, to limit the relitigation or continual review of substantively similar matters.
In his submission the respondent notes, in relation to the term “frivolous or vexatious”:
…that the use of the term “frivolous or vexatious” in the context of subsection 42B(1) of the AAT Act differs from what may be regarded as the general usage of those words and I indicate the respondent’s opinion that the applicant has not acted “frivolously” or “vexatiously” as those words are understood in general usage. The respondent is relying on the use of the terms frivolous and vexatious as interpreted by the High Court in Dey v Victorian Railways Commissioners (1949) HCA 1; (1949) 78 CLR 62; 23 ALJR 48.
The Tribunal noted the respondent’s comments regarding the words “frivolous” and “vexatious”, but expressed concern about the impact this terminology might have on a veteran aged 88. The respondent acknowledged this concern, and advised satisfaction should the Tribunal determine the dismissal application on the respondent’s alternative position that the substantive application has no reasonable prospect of success.
Substantive application
There is no dispute that the earnings-related rates of pension are not payable. This is because Mr Polglaze was aged 85 at the start of the assessment period and he ceased work in 1979. The only rate of pension above 100% of the general rate therefore available for consideration is EDA, under s 22(4) of the VEA.
Subsection 22(4)(c) of the VEA requires both an impairment rating of 70 points and a lifestyle rating of at least 6 points. Mr Polglaze’s latest impairment report in June 2015 determined an impairment rating of 60 points which does not satisfy the requirement for EDA (T13/61-74).
The Tribunal has reviewed all of the material before it and makes the following observations relevant to the merits of the substantive application:
·It seems to the Tribunal that the VRB has completed its assessments diligently and sympathetically and in accordance with the evidence and the relevant requirements of the “Guide to the Assessment of Rates of Veterans’ Pensions”.
·The VRB decision dated 4 September 2015 includes the following:
The Board noted that since that assessment, the veteran’s impairment ratings has been re-assessed by a departmental medical officer on the basis of revised medical impairment assessments. The Board also noted that the departmental medical officer had provided an interim medical impairment report (folios 69 to 73) which assessed the veteran’s accepted conditions at 60 impairment points. The Board noted that this assessment was not disputed by Mr Robbins or the veteran.
The Board has carefully considered the revised medical impairment assessments and the interim combined medical impairment report and finds that they are in accord with the available medical evidence and the relevant tables and criteria specified in the Guide. The Board also notes that Mr Robbins accepts that the impairment points assigned are correct and no challenge is made with respect to those points (T2/B6-B7).
·The respondent stated in the dismissal application that: “….the applicant indicated at a Preliminary Conference dated 15 February 2016 that he does not intend to provide evidence supporting a higher impairment rating”.
·The respondent is not seeking a reduction of Mr Polglaze’s current pension of 100% of the general rate (Exhibit 2 p2).
Respondent’s submission
The respondent submitted that:
As the applicant has submitted, and has indicated that he does not propose to submit, any further evidence and specifically no further evidence in respect of the first limb of subsection 22(4)(c), the respondent submits that there is no cause of action disclosed in the present application. The respondent therefore submits that the applicant’s application is frivolous or vexatious…
On the basis that the present application is frivolous or vexatious the respondent submits that it should be dismissed as provided for under paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The respondent’s alternative position is that the application should be dismissed under paragraph 42B(1)(b) because on the evidence available and in the absence of any proposed further evidence it has no reasonable prospect of success.
Advocate’s submissions
Mr Robbins told the Tribunal that he had been in contact with Mr Polglaze who advised that he had not sought further medical evidence and had no intention of doing so in the future. Mr Robbins confirmed that he had no further evidence to offer and no argument to put to the Tribunal.
Mr Robbins also told the Tribunal that he had discussed Mr Polglaze’s application with Dr S Roohi, Mr Polglaze’s doctor. Mr Robbins opined that Dr Roohi understood and had a sound working knowledge of the veterans’ impairment assessment process. He said that Dr Roohi had expressed the opinion that Mr Polglaze would not be able to attract higher impairment points.
CONCLUSION
Mr Polglaze currently receives the veterans’ Disability Pension at 100% of the general rate, based on a combined impairment rating of 60 points and a lifestyle rating of 5 points.
Eligibility for the EDA requires an impairment rating of at least 70 points and a lifestyle rating of at least 6 points.
Having regard to all the information before it, the Tribunal is reasonably satisfied that there is no evidence to support higher ratings, and that Mr Polglaze has no intention to seek such evidence.
That being so, Mr Polglaze cannot succeed in his substantive application.
DECISION
The respondent’s section 42B application is successful.
The Tribunal dismisses Mr Polglaze’s substantive application pursuant to section 42B of the AAT Act on the basis that the application has no reasonable prospect of success.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member .............[Sgd]...........................................................
Administrative Assistant
Dated 20 May 2016
Date of hearing 29 April 2016 Advocate for the Applicant Mr T Robbins Advocate for the Respondent Mr A Crowe (by telephone)
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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