Re Rollins and Principal Member of the Veterans' Review Board

[2011] AATA 113

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4846

VETERANS’  APPEALS  DIVISION		)
Re		Martin Rollins

Applicant

And Principal Member of the Veterans’ Review Board

Respondent

And Repatriation Commission

Joined Party

DECISION

Tribunal J W Constance, Deputy President

Date25 January 2011

PlaceMelbourne

Decision For the reasons given orally at the hearing the application for an extension of time is refused.

…....(sgd J W Constance)..........

Deputy President

Extension of Time – Veterans’ Entitlement Act 1986 (Cth) – section 155A – pension entitlement – failure to lodge required statement – misunderstanding between applicant and representative – no reasonable prospect of success on merits – application refused.

Administrative Appeals Tribunal Act 1975 subsection 29(7)

Veterans’ Entitlements Act 1986 (Cth) subsections 155AA(4) and 155AA(5)

Adams and Veterans’ Review Board [1992] AATA 281; (1992) 16 AAR 307
Hunter Valley Developments Pty Limited v Cohen (1984) 58 ALR 305

Rodder v The Repatriation Commission and The Veterans’ Review Board (2006) 156 FCR at 227

REASONS FOR DECISION

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

25 January 2011   J W Constance, Deputy President

1. This is an application by Mr Rollins for an extension of time in which to make an application to this Tribunal to review a decision of the Principal Member of the Veterans’ Review Board, that decision having been made on 27 September, 2010. The Tribunal clearly has the power to extend time in this situation. That power is given by subsection 29(7) of the Administrative Appeals Tribunal Act 1975.  

2.      For the reasons which follow, the application for an extension of time will be refused. 

Facts

3.      On 28 July, 2008 Mr Rollins lodged an application to review a decision of the Repatriation Commission of 2 July, 2008 concerning pension assessment under the provisions of the Veterans’ Entitlements Act 1986. 

4.      On 2 August, 2010 in accordance with subsection 155AA(4) of the Act the delegate of the Principal Member wrote to Mr Rollins requesting that within 28 days he provide a written statement that he was ready to proceed to a hearing or alternatively to provide reasons why he was not so ready.  It is not in dispute that the Principal Member did not receive a written statement that the Applicant was ready to proceed nor did he receive reasons why the Applicant was not so ready. 

5.      On 2 August, 2010 the delegate wrote to Mr Rollins.  In part the letter said:

It is now over two years since your application was lodged and I consider that you should be ready to proceed at a hearing. Therefore in accordance with subsection 155AA(4) of the Veterans’ Entitlements Act 1986 I am writing to request that you provide within 28 days after you receive this notice a written statement that you’re ready to proceed or reasons why you are not ready to proceed at a hearing. Form 1 is enclosed for this purpose. The statement must be signed by you and sent to me at the above address or you may use the enclosed prepaid envelope. If a written statement is not provided within 28 days after you receive this notice or the statement does not provide a reasonable explanation as to why you are not ready to proceed at a hearing your application must be dismissed and cannot be reopened.

6.      The letter went on to refer to a Form 1 for advising that the Applicant did not wish to continue and a Form 2 which authorised a person to represent the Applicant in relation to the particular notice.  It was said in the letter that both those forms were attached though that is in dispute.  Nevertheless, by reason of some misunderstanding between Mr Rollins and the person who had been representing him up to that point there was no written statement provided in response to this notice and Mr Rollins did not authorise anyone to act on his behalf in relation to that notice. 

7.      In a letter of 27 September, 2010 the delegate wrote to Mr Rollins and included in that letter was the following:

I have not received a written statement giving a reasonable explanation for your failure to be ready to proceed at a hearing.  Accordingly I have dismissed your application under subsection 155AA(5) of the Act.  Enclosed are the reasons for my decision.

8.      Reasons were attached to that letter.  Mr Rollins acknowledges that that letter was received. 

9.      An application to review this decision was lodged with this Tribunal on 8 November, 2010 which was outside the 28 day period allowed for the lodgement of applications for review.  At the same time the Applicant properly lodged an application for an extension of this time which, as I have indicated, the Tribunal does have power to grant. 

Reasoning

10.     In considering applications of this kind it is necessary to look at a number of factors.  However the most important factor in this case is whether, if the application was granted, the Applicant would be likely to succeed in his application on the merits.  I refer to a decision of Hunter Valley Developments Pty Limited v Cohen[1].

[1] (1984) 58 ALR 305

11.     When one looks at the decision under review the power to dismiss the application in Mr Rollins’s case is given by section 155AA of the Act.  In that section there is a definition in subsection 1 of the standard review period which means a period of two years from the day on which the application was received at an office of the Department and, as I said, the two year period expired on 28 July, 2010.  The particular provision that is paramount in this matter is subsection 155AA(4) which reads:

If at the end of the standard review period:

(a)       this section applies to an application for review;  and

(b)       the principal member considers that the applicant should be ready to proceed at a hearing the principal member must give a written notice to the applicant requesting the applicant to provide to the principal member within 28 days after receiving the notice;

(c)       a written statement indicating that the applicant is ready to proceed at a hearing;  or

(d)       a written statement explaining why the applicant is not ready to proceed at a hearing. 

12.     Subsection 155AA(5) reads:

If the applicant does not provide a written statement under paragraph 4(c) or (d) within the 28 days the principal member must dismiss the application and must notify the applicant and the Commission of the dismissal.

13.     It has been argued on behalf of Mr Rollins:

…that the Tribunal has jurisdiction to consider issues with respect to the notice letter and the role, if any, his advocate has played in his representation to the respondent other than the decision of the respondent to dismiss the application and whether it was properly done in accordance with section 155A(1)(a) of the VEA.

It was further put:

That if the defect is that the respondent having had contact with the applicant’s nominated representative throughout the whole review period should have taken into account that the applicant had taken personal responsibility with respect to the notice letter received by ensuring that he contacted his nominated advocate, notwithstanding that a courtesy copy was sent to his advocate.  In turn the applicant believed that Mr Buchanan as his advocate would take all necessary steps to ensure his VRB application proceeded.  This involved completing the form 2 nomination to confirm that his case was ready to proceed to a hearing before the VRB.

And finally:

In accordance with the decision of Deputy President McMahon in the case of Re Adams v VRB referred to in paragraph 32 of the respondent’s submission clearly the Tribunal does have jurisdiction to review the “reasonableness of any explanation tendered”.

14.     I have no doubt that Mr Rollins did rely on Mr Buchanan and it is unfortunate that he finds himself in the position in which he now stands.  However, one has to look at exactly what it is that the Tribunal can review.  I do not agree with the submission on behalf of the Applicant that the Tribunal has some general review power based on the actions or lack of action by Mr Rollins’s representative and/or Mr Rollins.  I agree that according to the decision of Adams and Veterans’ Review Board[2], the Tribunal has power to review the reasonableness of any explanation tendered.  The difficulty for the Applicant here is that there was no explanation tendered, reasonable or otherwise.

[2] [1992] AATA 281; (1992) 16 AAR 307

15.     The terms of subsection 155AA(4) has been complied with.  There is no argument that the section applies to the application for review lodged by Mr Rollins.  There is no evidence before me to suggest that there is any argument that the Principal Member should not have considered that the Applicant should be ready to proceed.  In fact the evidence before me is that Mr Buchanan offered to file a Certificate of Readiness.  This indicates that in fact the Applicant not only should have been, but was, ready to proceed to a hearing.  Once those two elements are established, the section is then mandatory that the Principal Member must give a written notice and that he did.

16.     Having received that notice the Applicant then has 28 days to either provide the written statement indicating he is ready to proceed or a written statement explaining why the Applicant is not ready to proceed.  For reasons I have already mentioned this in fact did not happen.  Subsection 155AA(5) again is mandatory and if either of those written statements is not received the Principal Member must dismiss the application. 

17.     It is this decision which the Tribunal can review and whilst there is no doubt the Tribunal has that power, it appears to me on the evidence that there is no reasonable prospect that Mr Rollins would succeed on this application should it proceed further to be heard on the merits.

18.     While this may seem somewhat harsh to the Applicant, it does appear to be in accordance with the scheme of the Act.  The Act does not exclude Mr Rollins from making a further application, but of course what does have a very substantial effect is that his application then dates from the time of the new application and not the one lodged almost three years ago.  However, I am supported in this conclusion by what Madgwick J said in Rodder v The Repatriation Commission and The Veterans’ Review Board[3], and I quote paragraph 58 of that decision:

In many fields of legal entitlement to monetary benefit is a common consequence of a failure to comply with procedural steps which a claimant has a duty to comply that the entitlements may be lost.  General balance has here been made by the legislature.  Over two years to progress a review application, a minimal procedural responsibility is placed on a review applicant to avoid summary dismissal of his or her application after that time.  Provisions are aimed at both requiring the dismissal by the principal member of long outstanding claims not being duly prosecuted and avoiding such dismissal only where there is a clearly and reliably presented to the principal member a satisfactory response for which the applicant actually takes personal responsibility.  The means of assuring such reliability to the principal members is that the applicant must specifically authorise such a response, authorise it separately from instructing his general representative in relation to the claimed review and do so in writing.  Nevertheless, those responsibilities are actually placed on applicants.  There is insufficient reason to ascribe a Parliamentary intention to waive these responsibilities when they have not been met where it later emerges that the applicant was content to stand by what the representative had to say.

[3] (2006) 156 FCR at 227

19.     I am left with the conclusion, then, that the power to review the decision made in this matter is not a general review and that the Tribunal exercising the power which Mr Rollins seeks to have it exercise is limited to reviewing the procedural steps. 

20.     I note that there was considerable evidence in relation to whether or not the notices referred to in the letter of 2 October, 2010 were in fact attached.  I do not have the benefit of any cross-examination in relation to the statements provided, however I am certainly not satisfied that the notices were not enclosed.

21.     However, in my view, this makes no difference to the outcome in that the letter itself met the requirements of subsection 155AA(4) in any event, even without the notices.  The giving of the notice contained in the letter itself triggered the requirement for action by Mr Rollins.

22.     For these reasons the application for extension of time is refused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of

J W Constance, Deputy President

Signed:         ..(sgd D De Andrade)...........................
  Personal Assistant

Dates of Extension of Time Hearing    17 December 2010, 13 January 2011

and 25 January 2011
Date of Oral Decision  25 January 2011
Solicitor for the Applicant  Mr G Isolani, KCI Lawyers
Solicitor for the Respondent                Ms K Harry, C/- Veterans Review Board
For the Joined Party  Mr R Douglass, departmental advocate