Rana and Repatriation Commission

[2008] AATA 236

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200500033

VETERANS' APPEALS DIVISION		)
Re		RANJIT RANA

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date27 March 2008

PlaceAdelaide

Decision

The tribunal directs that:

(1)     the respondent may disclose the documents (or copies thereof) provided or to be provided to it in relation to the within proceedings to the Military Rehabilitation and Compensation Commission, the Commonwealth of Australia and Brigadier Orme, for the purpose of those parties using such documents or copies in order to investigate and, if so advised, defending the claims respectively made against them by the applicant in proceedings numbered S 200600223 and 2007/1885 in this tribunal and in action number SAD 111 of 2007 in the Federal Court of Australia;

(2)     except as provided for in paragraph (1) above, the respondent is not released from its implied undertaking not to use such documents for any collateral purpose, and not to communicate such documents to any third party; and

(3)     the parties are at liberty to apply.

..............................................

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – implied undertaking not to use documents obtained in connection with proceedings for collateral purpose – claims made by applicant against other Commonwealth agencies arising out of similar events – application by respondent for release from implied undertaking – matters relevant to exercise of discretion – direction made to release respondent from implied undertaking – no release to enable documents to be used in respect of any possible future proceedings.

REASONS FOR DECISION

27 March 2008   Deputy President D G Jarvis

1.      The applicant, Ranjit Rana, served with the Australian Army from October 1980 to July 1982.  He has claimed a pension under the Veterans’ Entitlements Act 1986 (Cth) in respect of asserted conditions of paranoid schizophrenia and diabetes. The respondent, the Repatriation Commission, decided to reject the claim on the grounds that Mr Rana was not a “member of the Forces” for the purposes of s 69 of the VE Act, because he had not served with the Army for three years, and the Commission did not accept that he had been discharged by reason of physical or mental incapacity to perform duties.

2.      The above decision was affirmed by the Veterans’ Review Board following an application by Mr Rana for review by that Board.  Mr Rana then applied to this tribunal for review of the Commission’s decision.

3.      By a letter dated 7 December 2007, the Commission advised this tribunal that it had requested the Military Rehabilitation and Compensation Commission (MRCC) to provide to it material filed, tendered or otherwise obtained in certain earlier proceedings brought by Mr Rana against Comcare, namely matter number S 200100378 in this tribunal (the SAN proceedings), and matter no. 2007/1885 in this tribunal (the MRCC proceedings).  The request was apparently directed to the MRCC because the MRCC has taken the place of Comcare in relation to the claim that gave rise to the SAN proceedings, following amendments in 2004 to the applicable legislation.

4.      The above letter further advised that the Commonwealth of Australia and the Chief of Army had requested the Commission to provide to them material filed, tendered or otherwise obtained with respect to the SAN proceedings, the within proceedings and the MRCC proceedings for use (where relevant) in certain other proceedings brought by Mr Rana in the Federal Court against the Commonwealth and the Chief of Army, namely action number SAD 111 of 2007 (the Federal Court proceedings).

5.      The Commission has requested that it be released from its implied undertaking with respect to material obtained in connection with the within proceedings against it, so that it will be permitted to release that material “to other Commonwealth government agencies for the purposes of legal proceedings involving Mr Rana and in compliance with any applicable law.”

6.      The Commission’s application was heard at the same time as an application by the MRCC in the SAN proceedings.  I have today directed in the SAN proceedings that the MRCC should be released from its implied undertaking in relation to certain material obtained by it in the SAN proceedings.  My reasons for decision in that matter should be read in conjunction with these reasons for decision.  I will not repeat in these reasons my narration of the relevant background facts or the considerations that led me to reach my conclusion in the SAN proceedings.

7.      The Commission’s application for relief from the implied undertaking asserts in paragraph 7 as follows:

“It is also foreseeable that other legal proceedings may be brought in the future by Mr Rana against the (Commission), the MRCC, the Commonwealth of Australia, the Chief of Army and/or other Commonwealth agencies regarding Mr Rana’s Army service in the early 1980s.”

8.      Mr Rana has already made a number of claims and has instituted various proceedings against Commonwealth agencies arising out of his Army service in the early 1980s.  I have referred in my related decision of today in the SAN proceedings to the various proceedings that are now current.  The direction I have made today in the SAN proceedings will enable the respondents in the SAN proceedings to make available to the respondents in the other current proceedings a considerable volume of material which, on the face of it, will be relevant to the investigation of the other current claims being made by Mr Rana.

9.      I think it inappropriate to endeavour to estimate the likelihood or otherwise of Mr Rana bringing future claims.  Further, the tribunal is not in a position at present to determine the basis of any such possible future claims or the possible relevance to those possible claims of the material which the Commission might obtain in the current proceedings.  If any future claims are made, the Commission could apply at that stage for release from its implied undertaking to enable it to provide material to parties to any such future proceedings, if it is requested to do so.  This tribunal can then consider any such application after taking into account the nature of any such future proceedings, and the issues that might arise in relation to them.

Decision

10.     The tribunal directs that:

(1)the respondent may disclose the documents (or copies thereof) provided or to be provided to it in relation to the within proceedings to the Military Rehabilitation and Compensation Commission, the Commonwealth of Australia and Brigadier Orme, for the purpose of those parties using such documents or copies in order to investigate and, if so advised, defending the claims respectively made against them by the applicant in proceedings numbered S 200600223 and 2007/1885 in this tribunal and in action number SAD 111 of 2007 in the Federal Court of Australia;

(2)except as provided for in paragraph (1) above, the respondent is not released from its implied undertaking not to use such documents for any collateral purpose, and not to communicate such documents to any third party; and

(3)      the parties are at liberty to apply.

I certify that the 10 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Wunderer  Associate

Date/s of Hearing  1 February 2008

Date of Decision  27 March 2008
Counsel for the Applicant         In Person
Solicitor for the Applicant          In Person
Counsel for the Respondent     Dr C Bleby
Solicitor for the Respondent     Australian Government Solicitor