Repatriation Commission and Iain Booth - [2014] AATA 322

[2014] AATA 322

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/6288

Re

Repatriation Commission

APPLICANT

And

Iain Booth

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member

Date 26 May 2014

Place Sydney
The Tribunal sets aside the decision under review and remits it to the Repatriation Commission with directions that, pursuant to section 14(5) of the Veterans’ Entitlements Act 1986, Mr Booth was not empowered to make his second claim on 9 November 2011.

...........[Sgd].............................................................
Ms N Bell, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – VETERANS' AFFAIRS – Veteran lodges two claims for disability pension with Repatriation Commission – what constitutes finally determined claim – finally determined – whether Veteran's second claim validly made – decision under review set aside and remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29(3), 29(7)

Veterans' Entitlement Act 1986 (Cth) ss 14(5), 14(7), 176(4), 176(4)(a), 176(4)(b)

CASES
Bramwell v Repatriation Commission (1998) 51 ALD 56

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Jebb and Repatriation Commission (2005) 86 ALD 182
Re Filsell and Comcare (2009) 109 ALD 198
Repatriation Commission v Bey (1997) 79 FCR 364
Roberts and Repatriation Commission (1992) 27 ALD 408

Roberts v Repatriation Commission (1992) 39 FCR 420

REASONS FOR DECISION
Ms N Bell, Senior Member
26 May 2014

In August 2009, Iain Booth lodged his first claim for disability pension with the Repatriation Commission for the conditions of PTSD, depressive disorder and alcohol abuse. The Commission refused his claim in December 2009. Mr Booth appealed the decision of the Commission to the Veterans’ Review Board and on 3 May 2011, the Board found he suffered from PTSD, major depression and alcohol dependence, and affirmed the decision of the Commission.
On 9 November 2011, Mr Booth lodged a second claim for disability pension and on 25 November 2011, the Commission refused his claim again.
In March 2012, Mr Booth applied for a review of the Commission’s decision with the Veterans’ Review Board. On 26 August 2013, the Board set aside the decision of the Commission and decided that Mr Booth should be paid a pension.
On 4 December 2013, the Repatriation Commission lodged an application in this Tribunal for review of the Veterans’ Review Board’s August 2013 decision.
There are particular time limits on veterans lodging applications for review by this Tribunal of decisions made by the Veterans’ Review Board. The starting point is that veterans may lodge an application for review no later than three months after the terms of the Board’s decision are given to the veteran (section 29(3) Administrative Appeals Tribunal Act 1975 as modified by section 176(4)(a) of the Veterans’ Entitlements Act 1986). However, under section 29(7) of the Administrative Appeals Tribunal Act, the Tribunal may extend the time for the making of an application for review of a decision if satisfied that it is reasonable in all the circumstances to do so. In the case of decisions made under the Veterans’ Entitlements Act, section 176(4)(b) of that…

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.

Continue reading Repatriation Commission and Iain Booth

Details

AGLC: Repatriation Commission and Iain Booth [2014] AATA 322
Case: [2014] AATA 322
Decision Date: 26 May 2014

CaseChat Overview and Summary

The case involves Iain Booth and the Repatriation Commission. Booth, a veteran, had lodged two claims for disability pension. The central dispute was whether his second claim was validly made, considering the first claim had been determined by the Veterans Review Board. The case was heard by the Administrative Appeals Tribunal. The legal issues revolved around the interpretation of the terms "finally determined" in the context of the first claim and whether Booth's second claim was made within the allowable timeframe post the first claim's determination. The court needed to determine if the second claim was valid or if it was made outside the permissible period as stipulated by the Veterans’ Entitlements Act 1986.

The Tribunal examined the timelines and statutory provisions governing the claims process. It concluded that Booth's first claim was finally determined 12 months after he received the document setting out the Veterans Review Board decision. The Tribunal found that the first claim was determined in May 2012, and thus, Booth was not empowered to make a subsequent claim regarding the same injury or disease on 9 November 2011. The decision hinged on the interpretation of the phrase "finally determined" and the implications for Booth's right to lodge a second claim.

In light of the findings, the Tribunal set aside the decision under review and directed the Repatriation Commission to consider that Booth was not empowered to make his second claim on 9 November 2011, as per section 14(5) of the Veterans’ Entitlements Act 1986. The Tribunal's ruling was based on the statutory timeframes and the understanding that once a claim is finally determined, a veteran cannot immediately lodge another claim for the same injury or disease.

The final orders of the Tribunal were to remit the case back to the Repatriation Commission with specific directions, ensuring that the Commission acknowledges the invalidity of Booth's second claim and proceeds accordingly. The Tribunal's decision underscored the importance of adhering to the statutory timelines and correctly interpreting the legal provisions concerning veterans' claims.

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

For the reasons set out above, I conclude that Mr Booth’s first claim was finally determined at the expiration of 12 months from the date on which he was given a document setting out the terms of the Veterans Review Board decision, that is, it was finally determined in May 2012. It follows that Mr Booth was not empowered to make a further claim in respect of the same injury or disease at the time of his second claim on 9 November 2011.DECISION The Tribunal sets aside the decision under review and remits it to the Repatriation Commission with directions that, pursuant to section 14(5) of the Veterans’ Entitlements Act 1986, Mr Booth was not empowered to make his second claim on 9 November 2011.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6288
Re	Repatriation Commission
APPLICANT
And	Iain Booth
RESPONDENT

Tribunal	Ms N Bell, Senior Member
Date	26 May 2014
Place	Sydney