Polglaze and Repatriation Commission (Veterans’ entitlements)

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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

  1. 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).

  2. The Tribunal conducted a hearing on 29 April 2016.  Mr Polglaze did not attend and was represented by his advocate, Mr Trevor Robbins.

    BACKGROUND

  3. Mr Polglaze was born in 1927.

  4. 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.

  5. Mr Polglaze ceased work in 1979.

  6. Mr Polglaze has been in receipt of the veterans’ Disability Pension at 100% of the general rate since 2010 (Exhibit 2 p1).

  7. On 29 January 2013 Mr Polglaze lodged a claim for lumbar spine condition and for an increase in his disability pension (T3/1-11).

  8. 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).

  9. 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).

  10. 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).

  11. On 7 August 2013, Mr Polglaze lodged an application with the VRB for review of the Repatriation Commission’s decision of 3 July…

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Details
Case
[2016] AATA 324
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Polglaze for review of a decision by the Veterans’ Review Board, which had affirmed a decision of the Repatriation Commission regarding his disability pension and entitlement to the Extreme Disablement Adjustment (EDA). The Repatriation Commission had determined that Mr Polglaze's lumbar spine condition was not war-caused, and his application for an increased disability pension was unsuccessful, though his pension was continued at 100% of the general rate. Following a remission from the Veterans’ Review Board, a delegate determined his pension based on an impairment rating of 50 points and a lifestyle rating of 5 points. The Veterans’ Review Board subsequently affirmed this decision, finding an impairment rating of 60 points and a lifestyle rating of 5 points, and crucially, that Mr Polglaze was not entitled to the EDA. Mr Polglaze then lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the Veterans’ Review Board's decision.

The primary legal issue before the Tribunal was whether Mr Polglaze's application for review should be dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975. This section allows the Tribunal to dismiss an application if it is satisfied that the application is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success, or is otherwise an abuse of the Tribunal's process. The substantive claim related to Mr Polglaze's eligibility for the Extreme Disablement Adjustment under section 22(4) of the Veterans’ Entitlement Act 1986, which requires, among other criteria, an impairment rating of at least 70 points and a lifestyle rating of at least 6 points.

The Tribunal reasoned that while the power to dismiss an application under section 42B should be exercised cautiously, it is appropriate to do so if proceedings have no reasonable prospect of success, to avoid futility and the misuse of tribunal resources. The Tribunal noted that Mr Polglaze's current impairment rating was 60 points and his lifestyle rating was 5 points, as determined by the Veterans’ Review Board. To qualify for the EDA, section 22(4) of the Veterans’ Entitlement Act 1986 requires an impairment rating of at least 70 points and a lifestyle rating of at least 6 points. As Mr Polglaze did not meet these minimum thresholds, the Tribunal concluded that his substantive application for the EDA had no reasonable prospect of success.

Consequently, the Tribunal dismissed Mr Polglaze's application for review pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 on the basis that it had no reasonable prospect of success.

Orders

Orders of the court

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.

Background

Background to the litigation

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; orb) has no reasonable prospect of success; orc) 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

Evidence

Evidence Before The Court

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)ANALYSISDismissal 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.