Re Hopkins and Repatriation Commission - [2013] AATA 270

[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 533
Re 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 270
Decision Date: 3 May 2013

CaseChat Overview and Summary

This matter concerns an application by the Repatriation Commission to summarily dismiss a veteran's application for a pension at the special rate, on the basis that the application was frivolous or vexatious. The application was brought by Mr Hopkins, who had previously had his claim for a pension rejected. Mr Hopkins' current application was based on new medical evidence relating to a lung condition not previously accepted as war-related. The matter was heard by the Administrative Appeals Tribunal (AAT). The central legal issue in this case was whether the AAT had the power to summarily dismiss Mr Hopkins' application, and if so, whether it should exercise that power. The court considered whether the application was frivolous or vexatious within the meaning of section 42B of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT held that it did have the power to dismiss proceedings under section 42B, even if the application was not frivolous or vexatious in the ordinary sense. However, it found that the application was not frivolous or vexatious within the meaning of the Act, and therefore the application to dismiss should be refused. The AAT noted that the power to dismiss should be used cautiously, but if proceedings have no reasonable prospect of success, they should be dismissed. The AAT found that Mr Hopkins' application had a reasonable prospect of success, based on the new medical evidence and the fact that the tribunal was not bound by previous findings of fact.

The AAT concluded that it would be inappropriate to dismiss the application summarily, as it would be futile for the proceedings to continue and it would be inappropriate to use the tribunal's time and resources, or to put the respondent to the expense that would be involved in the matter proceeding to a hearing. The AAT also noted that there must be a limit to the ability of a disappointed party to repeatedly revisit findings once made, but that a party may be given an opportunity to re-agitate findings of fact if, for example, there was new evidence or the party was now represented. The AAT found that Mr Hopkins' application met these criteria, and therefore the application to dismiss should be refused. The AAT did not make any final orders in this matter, as it was an application to dismiss the proceedings and not a determination on the merits of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONRelevance 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].

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