Re Hopkins and Repatriation Commission
[2013] AATA 270
•3 May 2013
[2013] AATA 270
Division VETERANS' APPEALS DIVISION File Number
2012/4471
Re
Francis Hopkins
APPLICANT
And
Repatriation Commission
RESPONDENT
Tribunal Deputy President D G Jarvis
Date of written reasons 3 May 2013 Place Adelaide WRITTEN STATEMENT OF REASONS FOR DECISION
…… [Sgd] ……
Deputy President D G Jarvis
CATCHWORDS
VETERANS' ENTITLEMENTS - application by veteran for pension at the special rate - earlier proceedings rejecting prior claim - further medical evidence re non-accepted lung condition - meaning of "cease to engage in remunerative work" - relevance of all surrounding circumstances - held that application to dismiss proceedings summarily be refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Veterans' Entitlements Act 1986 (Cth), s 24(2)(a)(i)
CASES
Re Hopkins and Repatriation Commission [2009] AATA 339
Hopkins v Repatriation Commission [2009] FCA 1037
Hopkins v Repatriation Commission [2011] FCA 386
Banovich v Repatriation Commission (1986) 69 ALR 395
Hall v Repatriation Commission (1994) 33 ALD 454
Re Filsell and Comcare (2009) 109 ALD 198
Re Rana and Military Rehabilitation and Compensation Commission [2011] FCAFC 80
Re Reilly and Repatriation Commission (1987) 12 ALD 533Re Smith and Repatriation Commission (2004) 85 ALD 389
WRITTEN STATEMENT OF REASONS FOR DECISION
Deputy President D G Jarvis
3 May 2013
BACKGROUND FACTS
On 5 March 2013, I made an oral decision to refuse an application by the respondent, the Repatriation Commission, to dismiss the application in these proceedings pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In order to assist the parties to define the issues raised by the current application, it is appropriate that I provide a statement in writing of my reasons for this decision, and I now do so.
Earlier proceedings
In support of its dismissal application, the Commission referred to early proceedings arising from a claim that the applicant, Francis Hopkins, had made in December 2006, for a pension and other benefits under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) in respect of a number of conditions. In June 2007, the Commission accepted that the conditions were war-caused within the meaning of the VE Act, and decided that Mr Hopkins was entitled to a pension at 100% of the general rate from and including 8 September 2006. That decision was affirmed by the Veterans’ Review Board (VRB) in October 2007.
Mr Hopkins then applied to this tribunal for review, claiming that he was entitled to pension at the special rate under s 24 of the VE Act, rather than pension at the general rate. On 14 May 2009, this tribunal (differently constituted) decided that Mr Hopkins was not entitled to pension at the special rate. The tribunal’s decision was based on two grounds, first that Mr Hopkins had been retrenched from his employment and therefore had ceased to engage in remunerative work for reasons other than his incapacity from his war-caused conditions, and so failed to satisfy the requirements of s 24(1)(c) of the VE Act, and second, the tribunal rejected Mr Hopkins’ evidence that he had been genuinely seeking to engage in remunerative work during the assessment period, and therefore decided that he could not rely upon the ameliorating provisions of s 24(2)(b) of the VE Act.
Mr Hopkins appealed to the Federal Court. The appeal was dismissed. The Court rejected Mr Hopkins’ argument that the tribunal failed to make the findings of fact required to determine his application. The Court held that the tribunal had decided Mr Hopkins had ceased to engage in remunerative work, and that it had rejected his evidence as to his endeavours to obtain remunerative work after he had been retrenched.[1] A subsequent application by Mr Hopkins for an extension of time in which to appeal against the Court’s decision was refused.[2]
[1] Hopkins v Repatriation Commission [2009] FCA 1037.
[2] Hopkins v Repatriation Commission [2011] FCA 386.
Current proceedings
In June 2011, Mr Hopkins made a further application that has resulted in the present proceedings in this tribunal. He applied for an increase in pension in respect of a number of conditions. The Commission decided that he was not entitled to pension at the special or intermediate rate, because he had ceased work in November 2003 in consequence of having been made redundant, and his evidence in the earlier proceedings that he had made genuine endeavours after that to obtain remunerative work had not been accepted in the previous proceedings. In July 2011, the VRB affirmed the Commission’s decision. Mr Hopkins later applied to this tribunal for review of the decision to continue his pension at 100% of the general rate.
The Commission then applied pursuant to s 42B of the AAT Act to dismiss the present proceedings in this tribunal, on the grounds that he was seeking to re-agitate issues that had been decided in the earlier proceedings in this tribunal, and in the two applications he had made to the Federal Court.
ISSUE BEFORE THE TRIBUNAL
The issue before the tribunal was whether I should grant the Commission’s application to dismiss the proceedings pursuant to s 42B(1) of the AAT Act on the grounds that they are “frivolous or vexatious” within the meaning of those words in that section.
LEGISLATIVE PROVISIONS
Entitlement to pension at the special rate is conferred by s 24(1) of the VE Act. The provisions of s 24 that are relevant in the present matter are as follows:
24 Special rate of pension
(1) This section applies to a veteran if:
…
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and …
The “alone” test in s 24(1)(c) is qualified by the ameliorating provisions of s 24(2)(b), which provides in effect that where a veteran under the age of 65 years satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to do and that that incapacity is the substantial cause of inability to obtain remunerative work, then the veteran shall be treated as having been prevented by reason of that incapacity from continuing to engage in remunerative work that he or she had been undertaking.
Section 42B of the AAT Act empowers this tribunal, at any stage of a proceeding, if it is satisfied that the application is “frivolous or vexatious” to dismiss the application. Section 42B(1) provides as follows:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
CONSIDERATION
Relevance of earlier proceedings
The question of whether a party can re-agitate issues that have been considered in earlier proceedings in this tribunal is a matter that has been the subject of considerable discussion in the past. I referred to a number of earlier authorities in Re Filsell and Comcare[3] in the context of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Similar considerations apply to proceedings under the VE Act. In ReFilsell[4] I concluded, in effect, that subject to any express legislative provisions to the contrary, the doctrines of issue estoppel and res judicata do not apply to proceedings in this tribunal, but the tribunal may exercise its statutory powers under ss 42B and 33 of the AAT Act to prevent parties revisiting issues that have been determined in earlier proceedings in the tribunal, or to limit the matters that may be raised in later proceedings.
[3] (2009) 109 ALD 198, at [52]–[61].
[4] (2009) 109 ALD 198.
I also said in Re Filsell that the power of the tribunal under s 42B to dismiss proceedings only applies in circumstances where there is no legal basis for the proceedings, or where the proceedings have no reasonable prospect of success.[5] That was the thrust of the submissions of the advocate for the Commission, Mr Crowe, in the present matter. The section is not confined to circumstances where an applicant has acted frivolously in bringing proceedings, or vexatiously, by bringing proceedings with the intention of annoying, embarrassing or harassing another party, and Mr Crowe certainly did not suggest that Mr Hopkins' applications were “frivolous” or “vexatious” within the ordinary meaning of those words.
[5] (2009) 109 ALD 198, at [33].
As I also said in Re Filsell, the authorities indicate that the power of dismissal under s 42B should be used cautiously, but if proceedings have no reasonable prospect 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 the tribunal, or to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
In Rana v Military Rehabilitation and Compensation Commission[6], a Full Court of the Federal Court considered whether it was appropriate for the tribunal to adopt in later proceedings findings made the tribunal in earlier proceedings, and noted that “(t)here must be a limit to the ability of a disappointed party repeatedly to revisit findings once made”.[7] The Full Court continued:
But the obligation to “ensure that every party … is given a reasonable opportunity to present his or her case…”, may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the “correct or preferable” finding is one different from that previously made.[8]
[6] [2011] FCAFC 80.
[7] [2011] FCAFC 80, per Marshall, Tracey and Flick JJ, at [27].
[8] [2011] FCAFC 80, at [28].
The second of the issues before the tribunal in the earlier proceedings, that is, whether Mr Hopkins could rely upon the ameliorating provisions of s 24(2)(b), does not arise in the present proceedings. That is because, as I understand it, there is no suggestion that Mr Hopkins has made any attempt to find remunerative work since the commencement of the current assessment period on 22 June 2011, being the date when he applied for an increase in pension, the refusal of which has given rise to the present proceedings.[9]
[9] See the definition of “assessment period” in s 19(9) of the VE Act.
However, the first issue determined adversely to Mr Hopkins in the previous proceedings remains relevant in the present proceedings, that is, the question of whether he ceased to engage in remunerative work for reasons other than his incapacity from his war-caused conditions, on the grounds that he was retrenched on 28 November 2003. This issue had been determined by the earlier proceedings, and so the Commission applied to dismiss the present proceedings pursuant to s 42B(1). Mr Crowe, very properly and fairly, advised Mr Hopkins, early on in the present proceedings, of the Commission’s intention to apply for dismissal, and of the basis on which the application would be made.
Because the earlier decision of the tribunal was based on findings of fact, including an adverse finding as to credibility in respect of the relevant aspect of Mr Hopkins’ evidence, and particularly in view of the judgments in the Federal Court proceedings, I was at first disposed to grant the Commission’s application. However, the right of appeal to the Federal Court is confined to an appeal on a question of law, and the Court cannot revisit findings of fact made by this tribunal, subject to certain well-established exceptions. As against this, as explained in Rana (supra), the circumstances in which the tribunal might permit a matter to be re-agitated following the making of a subsequent claim are somewhat broader.
In the present matter, in a rather discursive submission, Mr Hopkins made certain assertions in opposition to the dismissal application that might have affected the tribunal’s findings as to credibility in the earlier proceedings. He claimed that certain documents had not been included in the s 37 documents in the earlier proceedings. Those documents relate to an issue of whether he was suffering from a further condition, namely chronic obstructive airways disease (COAD), which was not one of the accepted conditions. He claimed that his former general practitioner, a Dr Scanlon, had formed an opinion that he was suffering from COAD, and had advised the Commission and Centrelink of that opinion, notwithstanding that she had not at that stage been able to obtain a copy of the documents in question. These documents contained the results of radiological and lung function tests, and of a bronchoscopy, and a report from a Dr David Muecke of the Department of Veterans’ Affairs. The documents make it clear that he is not suffering from COAD.
Mr Hopkins also referred in his submission to certain further historical documents relating to various medical examinations in 1993 and 1994, while he was still with the Navy, which appear to refer to the aftermath of bouts of pneumonia from which he had suffered in 1992 and 1993, and so potentially relevant to the diagnosis of any lung condition from which he may now be suffering, and perhaps also whether any such condition is war-caused. Reference was apparently made, in the applications to the Federal Court, to the documents referred to in the preceding paragraph, but not to these further historical documents.
It is not clear whether the documents on which Mr Hopkins now seeks to rely would have necessarily made a difference to the findings as to credibility made by the tribunal in the earlier proceedings. However, the tribunal did refer in its reasons for decision to certificates provided by Dr Scanlon to Centrelink to the effect that Mr Hopkins was suffering from COAD and shortness of breath, and it now appears, from the documents containing test results that had not been provided to her, that her opinion as to the diagnosis of COAD was flawed.
In the earlier proceedings the tribunal did not accept that Mr Hopkins had made reasonable endeavours to obtain employment after he was retrenched. In making this adverse finding as to his credibility, the tribunal appeared to have placed particular emphasis on an “admission” Mr Hopkins had made to the VRB in proceedings in 2005 in response to questions asked by the VRB relating to his respiratory function, apparently on the basis of documents provided by Dr Scanlon. The tribunal’s reference to this matter was taken from the VRB’s reasons for decision, but not by reference to a transcript of the proceedings before the VRB. In the dismissal hearing before me, Mr Hopkins provided a copy of a bundle of medical certificates issued by Dr Scanlon relating to various periods in 2004. These certificates record various diagnoses and symptoms that appear to be related to his accepted conditions, as well as to COAD. The certificates are consistent with his explanation in the dismissal proceedings that he felt compelled to make the “admission” to the VRB when he was confronted with the certificates, which include the diagnosis of COAD, since it appears that he was then not aware that that diagnosis was flawed. It would also appear that the “admission” would not in any event have advanced his cause, because as the condition in question was not an accepted condition, he would not have satisfied the “alone” test in s 24(1)(c) of the VE Act if his “admission” was correct.
There is a second aspect of the earlier tribunal decision that in my view warrants further consideration in the present proceedings, and made me disinclined to dismiss the proceedings summarily. This was the tribunal’s reference in the earlier proceedings to the date when Mr Hopkins ceased employment. This issue is important, because if the date of cessation of work was later than the date of retrenchment, there was evidence that his accepted conditions later prevented him from continuing to undertake remunerative work. In its reasons for decision the tribunal quoted a portion of a decision in Re Reilly and Repatriation Commission,[10] where in a case decided in 1987 the tribunal, in considering the date of cessation of employment, contrasted the position of persons employed by a third party with that of self-employed persons, and said in effect that in the former case it was easier to determine the date of cessation of employment, because there was either a resignation, retirement or dismissal. However, in that case the tribunal also said:
‘Ceased’ in para 24(2)(a) did not mean merely the short term cessation of work as occurs, eg, during a holiday, imprisonment or a temporary illness. Cessation must be the final termination of employment after which time the applicant no longer undertakes remunerative work for which he has suitable skills and experience for more than eight hours per week: see para 24(1)(b). The intention of para 24(2)(c)(sic) was not, however, to exclude an applicant who was dismissed from particular employment, eg, for a criminal offence, which meant he stopped engaging in remunerative work for reasons other than his war-caused injury, if at the time of his dismissal he was also suffering from a war-caused disability which would have rendered him incapacitated for that work at or about the time of his dismissal.
[10] (1987) 12 ALD 533. The tribunal was constituted by Deputy President RA Layton, Dr DA Dowie and Mr RB Rogers (Members).
The proposition that s 24(2)(a) would not exclude an applicant who was dismissed from employment because of a criminal offence suggests that the date of cessation of employment for the purpose of that section is not necessarily to be equated with the date when a veteran actually stops working, even where the veteran is an employee, rather than self-employed. In my opinion, the question of when a veteran could be said to have ceased to engage in remunerative work will be informed by all relevant surrounding circumstances, including (as well as the nature of the veteran’s status as an employee or self-employed) his or her age, whether the cessation of employment was voluntary or involuntary, whether the veteran intended to finally cease work, and the veteran’s actions after stopping work, including whether he or she attempted to obtain other work, or obtained any treatment that might have been necessary in order to overcome some disability impacting on capacity to work.
My above analysis is, I think, supported by Banovich v Repatriation Commission,[11] where Fisher, Beaumont and Wilcox JJ considered the predecessor of s 24(1)(c) of the VE Act, and said:
We accept that the loss referred to in para [1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member “continuing to undertake” remunerative work. But it is, in our opinion, erroneous to read the phrase “remunerative work that the member was undertaking” as referring to a particular job with a particular employer. … (t)he phrase “remunerative work which the respondent was undertaking” should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member’s loss of particular employment for a reason unrelated to a war disability would never destroy a member’s subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity — and by that incapacity alone — from continuing in that field of remunerative activity.
[11] (1986) 69 ALR 395.
In an earlier decision, Re Smith and Repatriation Commission,[12] I referred to Banovich and also to Hall v Repatriation Commission.[13] My comments in that case are, I think, apposite in the present case. I then said:
[42] In my view a veteran cannot necessarily be said to have ceased to engage in remunerative work for the purposes of s 24(2)(a)(i) at the time when the veteran stopped working in his or her last job, since a veteran may stop working in his or her last job in a variety of circumstances. For example, a veteran whose work consisted of a series of short-term contracts would stop working as each contract came to an end, and this would of course be a reason for ceasing work that would not be related to a war-caused incapacity. However, it would be inconsistent with the purpose of s 24(1)(c) of the VE Act for such a veteran not to be entitled to a pension at the special rate if after the end of a particular contract the veteran was prevented from continuing to undertake remunerative work in the form of a new contract because of his or her war-caused incapacity alone.”
[12] (2004) 85 ALD 389.
[13] (1994) 33 ALD 454.
After referring to Re Reilly (supra) I continued:
[43] I also refer to Hall v Repatriation Commission … where the veteran resigned his commission from the army in 1986, when he was 50, in order to maximise the superannuation benefits available to him by resigning before the effects of his war-caused condition forced him to resign. It was found that by 1990 he was prevented from continuing to undertake remunerative work of the kind he had once engaged in as a result of a war-caused condition. The tribunal decided that the veteran was not entitled to the special rate of pension, on the grounds that s 24(2)(a) of the VE Act applied to the veteran, and in addition he did not satisfy s 23(1)(c), because his decision to retire was motivated by financial considerations, namely his desire to maximise his pension benefits. Spender J allowed an appeal from this decision. His Honour referred to the proposition that the remunerative work referred to in s 24(1)(c) was not particular employment, and repeated the dictum from Banovich, above, to the effect that a veteran’s loss of particular employment for a reason unrelated to a war disability would never destroy a veteran’s subsequent entitlement to claim a special rate pension. He said that the applicant’s desire to maximise his superannuation benefits was a circumstance that applied in 1986, but the veterans’ inability to obtain remunerative work after March 1990 (when he was found to be totally disabled as a result of his accepted condition) could not “in any sensible way be attributed to any motivation concerning commutation of portion of the pension”. His Honour concluded:
In my view, the position that obtained prior to Mr Hall’s resignation from the army tainted the tribunal’s consideration of the position after Mr Hall’s health had significantly deteriorated in 1989, and the position at the time of Dr Sharwood’s assessment in March 1990.
Spender J appears in his judgment to focus on s 24(1)(c) of the Act, rather than the argument based on s 24(2)(a). However, the outcome in Hall is consistent with the analysis of s 24(2)(a) in Reilly, above, and in particular with the approach of the tribunal in that case to look at s 24(2)(a) in the context of the provisions of s 24(1)(c) from which it flows. Spender J looked at the position during the assessment period rather than the historical reason why the applicant’s previous employment had ceased, and he found, in effect, that that historical reason was not operative during the assessment period.[14]
[14] (2004) 85 ALD 389.
Mr Hopkins said during the dismissal hearing before me that after his retrenchment in November 2003 he had a fall at his parents’ house, in February 2004. In the earlier proceedings, the tribunal recorded that a few days before the fall he had received an offer of employment, but this was withdrawn when he told his potential employer about the fall. The tribunal did not reject this evidence, and (on the assumption that the offer would otherwise have been accepted) it is inconsistent with an intention on Mr Hopkins’ part to cease employment at the date of his retrenchment.
During the dismissal hearing Mr Hopkins also referred to an application he had made in December 2006 pursuant to the Veterans’ Vocational Rehabilitation Scheme, and to a resulting report of March 2007 to the effect that he was not suitable for employment. He claimed that the tribunal did not give this matter appropriate weight in the earlier proceedings. The tribunal did refer to this matter in its reasons for decision, but it is not clear that the tribunal considered this matter in the context of whether he had ceased to engage in remunerative work at the time of his retrenchment; the fact that he made the application to the Scheme suggests that he did not intend, at the date of his retrenchment, to stop working.
The determination of the various factual issues to which I have referred above will be potentially important to the determination of the present matter. It seemed to me that the issues arising from the flawed diagnosis in the medical certificates, and the omission from the tribunal’s reasons in the earlier decision of a sufficiently detailed discussion of the above issues relevant to the date of cessation of employment, made it inappropriate to dismiss the present proceedings summarily. I also note that the subsequent medical evidence that had not been provided to Dr Scanlon when she issued the medical certificates to Centrelink indicated that Mr Hopkins was not suffering from COAD, but at the most from some potential susceptibility to lung infections as a result of episodes of pneumonia in 1993 and 1994. It will be necessary in the present proceedings to determine whether that susceptibility was war-caused, and if not, whether it made a contribution to Mr Hopkins’ having been prevented from undertaking remunerative work during the relevant assessment period, and so prevented him from satisfying the alone test in s 24(1)(c).[15]
[15] As to this susceptibility, see report of Dr David Muecke dated 21 May 2004, section 37 documents, S130.
I did not regard it as appropriate for the above factual issues to be further explored at the hearing of the dismissal application under s 42B(1) of the AAT Act. I considered that the above issues that are relevant to s 24(2)(a)(i) should be further investigated as necessary and determined at the hearing of the proceedings (together with other factual issues that might be relevant to the proper application of the alone test in s 24(1)(c)). I accordingly decided, in the exercise of my discretion, to refuse the application to dismiss the present proceedings summarily.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis ....[Sgd]....
Associate
Dated 3 May 2013
Date of hearing 5 March 2013 Written reasons published 3 May 2013 Applicant In person Advocate for the Joined Party Mr A Crowe LL.B. Solicitors for the Joined Party Rehabilitation and Compensation Group Department of Veterans Affairs
3
4
2