Repatriation Commission v Allen F.H
[1995] FCA 734
•7 JUNE 1995
CATCHWORDS
VETERANS' AFFAIRS - application for increase in veteran's pension - reasonableness of explanation for failure to be ready to proceed to hearing - whether decision must be made on sole basis of written statement provided - legitimacy of consideration of additional evidence - necessity to afford opportunity to offer additional explanation - relevance of Veterans' Review Board's case management - reasonableness of veteran's explanation - application for review not abandoned
Veterans' Entitlements Act 1986 (Cth) ss 155A(1)(c), 155AB(7),
Maloney v Repatriation Commission [1993] 45 FCR 563
Re Danaher and Veterans' Review Board [1993] 18 AAR 28
REPATRIATION COMMISSION v FREDERICK HORACE ALLEN
NG 664 OF 1994
EINFELD J
SYDNEY
7 JUNE 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 664 of 1994
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Between: REPATRIATION COMMISSION
Applicant
And: FREDERICK HORACE ALLEN
First Respondent
THE PRINCIPAL MEMBER VETERANS' REVIEW BOARD
Second Respondent
MINUTE OF ORDERS
Appeal dismissed.
Applicant to pay respondents' costs of the appeal.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
7 JUNE 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 664 of 1994
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Between: REPATRIATION COMMISSION
Applicant
And: FREDERICK HORACE ALLEN
First Respondent
THE PRINCIPAL MEMBER VETERANS' REVIEW BOARD
Second Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 7 JUNE 1995
An Australian war veteran, Frederick Horace Allen, was born on 5 December 1919, which means that he is now half-way through his seventy sixth year. On 17 December 1990 he applied for an increase in the veteran's pension which he had been receiving in respect of five disabilities dating back to and accepted as war-caused some time previously. The application for the increase was refused by the Repatriation Commission (the Commission) in March 1991 (the March 1991 decision) and the existing pension of 40 per cent of the general rate was continued. Mr Allen sought a review by the Veterans' Review Board (the Review Board) of that decision on 7 May 1991, but for various reasons that will become clear, that application has never come on for hearing.
By amendments made to the Veterans' Entitlements Act (the Act) by Act Number 70 of 1992 (the 1992 amendments) a series of provisions was inserted permitting summary dismissal of applications for review. The provisions included section 155AB of the Act which was appropriate, for reasons that do not have to be spelt out, to Mr Allen's claim in respect of the March 1991 decision. It was provided in section 155AB(7) that if the veteran provides a written statement within 28 days as to why the matter should not be summarily dismissed and the Principal Member of the Review Board considers that the statement does not contain a reasonable explanation for his failure to be ready to proceed to a hearing, then the principal member must dismiss the application and notify the respective parties of the dismissal.
By a letter dated 12 May 1993 Mr Allen was given a section 155AB(7) notice and on 25 May, within the 28 days, Mr Allen's explanation for an extension of time was dispatched and received. The explanation was, in substance:
This matter is still being actively pursued and has been delayed by entitlement matters outstanding at the Repatriation Commission.
It appears that an error was made in Mr Allen's original application for an increase in pension which also includes an informal entitlement claim and this is being dealt with at the primary level. In the interests of natural justice and to ensure proper investigation of this matter, I therefore request an extension of time.
That written explanation was signed on behalf of Mr Allen by an advocate of the Legal Aid Commission of New South Wales. The following day the Principal Member's delegate accepted the explanation. In the acceptance letter, the delegate who was the Registrar of the Review Board (the Registrar) said amongst other things:
Under the legislation I am required to write to you in three months time unless a date, time and place is fixed for the commencement or resumption of the hearing of your review, and again ask you to provide a written statement as to the readiness of your application. If you fail to reply within 28 days or I then consider the statement provided does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, your application must be dismissed.
In the meantime, namely on 21 May 1993, Mr Allen had lodged a claim for an increase in his pension in respect of ten new disabilities. Nevertheless, as provided for by the new procedure, the Registrar again as delegate of the Review Board's Principal Member wrote to the veteran on 1 September 1993, a little later than the three months promised. The letter told Mr Allen that he must again submit within 28 days a statement of his readiness to proceed with the review of the March 1991 decision, or the reasons why he is not ready, and warned him that if the statement was not provided within the period allowed, or if the delegate considered that the statement did not contain a reasonable explanation of his failure to proceed, the application would be dismissed. The letter went on:
This means that the matter is then finalised. If you no longer wish to proceed with your application you should notify me in writing and I will arrange for it to be withdrawn.
On 7 September 1993, apparently received by the Review Board on 14 September, the advocate of the Legal Aid Commission on Mr Allen's behalf replied in part:
The applicant is still awaiting determination by the Department of Veterans Affairs of various applications for entitlement to pension for disabilities germane to the current application to review.
The letter asked for a further extension, and an extension was granted by letter from the Registrar of 23 September, which was in similar terms to the earlier letter, but added:
I have confirmed with the Department of Veterans' Affairs that the entitlement matters mentioned in your letter were today sent to a determining officer for decision.
No doubt he was referring to the claim for the ten new disabilities. The Registrar ruled on the veteran's explanation in the following terms:
I consider the explanation for your failure to be ready to proceed at the hearing is reasonable.
Again the Registrar informed Mr Allen that he would be writing in three months time and that the same consequences would apply in the event of either a failure to reply or an inadequate explanation. The Commission's consideration of the ten new claims was completed by 30 September when it refused five of the disabilities, accepted one disability and deferred consideration of four disabilities, meanwhile continuing the pension at 40% of the general rate.
On 24 November Mr Allen applied to the Review Board for a review of the September rejections by the Commission. On 14 January 1994 the Commission refused the claim in respect of the four deferred conditions. Thus of the ten conditions which were the subject of the application in May, nine had been rejected and one accepted. Added to the five that had been rejected in the March 1991 decision, that meant that there were 14 conditions that had now been rejected by the Commission as entitling Mr Allen to an increase in the pension rate.
On 21 January the Registrar, again as the Principal Member's delegate, and again a little after the three month period, asked the veteran for a written statement of readiness in similar terms to earlier letters. On 7 February 1994 the same person at the Legal Aid Commission, who had now graduated to the position of senior advocate, wrote on behalf of Mr Allen, in part:
The applicant is still pursuing various entitlement claims that are essential to this matter and are currently the subject of a further appeal.
On Mr Allen's behalf he asked for a further extension. On 9 February 1994 Mr Allen applied to the Board for a review of the Commission's 14 January 1994 refusal of the four previously deferred conditions. That meant that in addition to the outstanding claim arising from the March 1991 decision, Mr Allen now had three separate review applications before the Review Board.
On 24 March 1994 the Registrar wrote to Mr Allen as follows:
I have received your authorised agent's statement in reply date 7 February 1994. As I consider that this statement does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, I have dismissed the application in accordance with section 155AB (7) of the Veterans Entitlement Act. Enclosed are the reasons for my decision.
The reasons for decision, dated the same day, set out firstly a history of the matter. They explained that in respect of the first application for extension in May 1993:
My decision at that time to grant a three month extension, was taken on the basis of the advice provided concerning both active pursual [sic] of the application, and "to ensure proper investigation".
The Registrar's reason for having granted the second application for an extension in September 1993 was expressed as follows:
Although no further mention was made in that response to active pursual [sic] of the application before the board, a further extension of time was granted on the basis of advice sought from the Department of Veterans Affairs, that is, that determination of those various applications was imminent. This course of action was adopted to avoid the needless dismissal of an application that could be expected to be ready to proceed to a hearing shortly.
The reason given for the refusal of the latest application on 24 March 1994 was expressed as follows:
The significance of that response [that is, the response of the by now senior advocate of the Legal Aid Commission on Mr Allen's behalf] is that again no mention is made of active pursual [sic] of the application at issue. It does say, however, that a further extension should be granted "to allow for the determination process to be completed".
In other words, what the Registrar was saying was that whilst he was persuaded that the veteran was actively pursuing entitlements and rights under the Act, whether in respect of the earlier conditions that had been refused in March 1991 or later claims, he was prepared to grant extensions but as soon as he was persuaded that there was no "active pursual [sic] of the application at issue", there was no ground for extending the time.
The decision of 24 March 1994 refusing the extension and dismissing the application was taken to the Administrative Appeals Tribunal, and the current appeal to this Court arises from the Tribunal's determination in that matter. Senior Member Allen of the Tribunal considered the history and chronology, a summary of which I have just given, and concluded in paragraph 12:
What the history of the matter reveals is that whereas the Legal Aid Commission as the veteran's representative had deliberately delayed proceeding with the claim for an increase in pension before the Veterans' Review Board, the matter was not abandoned but in abeyance pending further proceedings.
What the Senior Member was saying in that particular finding was that the claim for an increase in pension dating back to 1990 was
being delayed, not abandoned, because there were outstanding further matters before the Commission that might affect Mr Allen's entitlement to the higher pension. In this appeal it has been argued for the veteran that that entitlement might be able to be dated back or made applicable from December 1990 but it is not necessary for me to decide that matter now. This is not an appropriate case for a consideration of what the Full Court did or did not decide in Maloney v Repatriation Commission [1993] 45 FCR 563, despite strongly contested submissions made here as to the meaning of that decision.
The Senior Member of the Tribunal went on to say:
I am cognisant that in this matter there have been three requests for extension of time. The two previous requests were granted but the principal member's delegate rejected the third request, which was in similar terms to the first two, without further reference to the applicant or his advisers. If the delegate was of the opinion that the explanation proffered was no longer valid, he should have communicated that fact to the applicant and his advisers before taking the grave step of dismissing proceedings.
A point was taken in this appeal that this reliance upon natural justice or procedural fairness was misconceived or misplaced. For myself, I do not have to decide the question in view of my other conclusions but as a general statement I would venture to suggest that there must be considerable doubt about the correctness of that submission. The legislation makes provision for the hearing of the veteran or his adviser by a written statement. On the face of it, and I would want to hear further argument on the matter if the matter was to be definitively decided, that is the veteran's opportunity to present whatever matters he wishes to present to support the delay. I would have some doubt, as presently advised, of the existence of a common law requirement that a further opportunity should be given, even in the circumstance where the two previous requests have been granted. It has even been put that the granting of the two previous requests raised a legitimate expectation that the third application would be granted. Speaking without the benefit of detailed argument or close consideration, I would also venture to doubt the correctness of that argument.
The Tribunal went on:
I find that although subject to delay the applicant and his advisers had not abandoned matters but rather had a forensic purpose in delaying the hearing of this particular matter. In these circumstances it was not open to the delegate to peremptorily dismiss the proceedings as he did. I further find that the veteran has in these proceedings provided a reasonable explanation for his failure to be ready to proceed at a hearing, consequently the decision under review is set aside and the matter remitted to the respondent.
This finding has been attacked by the Commission on a number of bases which can be fairly quickly summarised and dealt with. The first was that the finding posed the wrong question or the wrong question was answered. It was said that the right question was whether the written statement provided on 7 February 1994 contains an adequate explanation for the veteran's unreadiness to proceed to an immediate hearing of his application for review. It was argued that the Tribunal was limited to deciding the question framed in that way although section 155A(1)(c) rendered it free to consider such additional evidence and submissions as the parties chose to present. The assertion was that the Tribunal did not decide that question but considered whether the veteran had provided an adequate explanation to the Tribunal.
I do not believe that that is what the Tribunal did at all. The Tribunal considered the statement given to the Review Board in the light of the facts as briefly outlined, and decided in the terms of the statute that the statement contained a reasonable explanation for the applicant's failure to be ready to proceed to a hearing. There are at least two reasons that entitled the Tribunal to come to the conclusion that there was a reasonable explanation and that the delegate should not have determined otherwise. One is that if one or other of the applications to the Review Board for review of the later decisions of the Commission is successful, the veteran may be entitled to cross the 70 per cent pension threshold from well before the date on which the successful application was made, even back as far as the original application in December 1990.
I do not hold one way or the other whether that argument will be successful, but it is an argument which the veteran wishes to raise and it seems to me to be a legitimate forensic exercise that he be permitted to do so. It is sufficient for present purposes for me to say that the argument has some respectability and the Tribunal was quite entitled to hold that the opportunity to raise it represented a reasonable explanation for not being ready to proceed with the review of the Commission's March 1991 decision against him.
The second and, as it seems to me, better or more important argument is that as the veteran has two outstanding matters before the Review Board already, the hearing of his application for review from the March 1991 decision against him could and should be heard at the same time so that he has one opportunity to present his case for a higher pension, and not have to pursue his various claims on separate occasions. It is a legitimate forensic purpose to have all those matters heard at the same time and it would provide a very good reason to grant a further delay so that this result could be achieved. By contrast, if a further delay had not been sought and the veteran's advocate had indicated a readiness to proceed to a hearing of the March 1991 review in the knowledge that there were to be two subsequent hearings, the intent of the 1992 amendments to lighten the workload of the Review Board would have been entirely frustrated.
On this appeal the Commission agreed that these matters would ordinarily be relevant considerations for the Tribunal to take into account but criticised the Tribunal for failing to consider them or to state that it had done so. The point was taken in addition that the Tribunal would have been wrong to consider these propositions anyway because they had not been raised by the veteran's letter of explanation. The Commission said that it is incumbent on the Tribunal to evaluate the forensic purposes raised in the veteran's statement of explanation and explore the reasonableness of that explanation alone, although it agreed that the Tribunal was entitled to and presumably should consider the submissions placed before it.
That proposition is in my opinion an entirely too technical and narrow a way to treat this type of matter. It is to say the least surprising that a government body should seek and seek to maintain the summary dismissal of a potentially legitimate claim of a disabled war veteran in this way. It was not the veteran's advocate who limited the scope of the explanation to exclude the admittedly legitimate forensic purposes of further delay; it was not even the Principal Member's delegate. It was the Commission itself. It is true that the Tribunal did not expressly spell out these purposes as its reasons for overturning the decision to reject the explanation proffered but it seems to me so obvious as not to have required specific expression by a Tribunal as busy as the AAT. There are ample indications in its determination in this case, including its recounting of the detailed history of the matter, that it was well aware of what still fell to be considered in the matter. Indeed, the Senior Member made express reference to the outstanding matters and to the explanations given in the two previous applications for delay. The Tribunal undoubtedly had in mind that the further delay of the review of the Commission's March 1991 decision was only for the purpose of enabling it to be considered alongside the outstanding applications to see what would happen to the veteran's rights as a result of all these matters being considered at the same time.
There could have been no other reason for the Senior Member's emphasis on the history of the previous applications.
The Commission argued, contrary to the veteran's position, that the determination on the later claims could in no way affect the entitlement on the earlier claim. Even if this argument were correct, it may be that if the veteran was successful in the later claims, he would forgo his claim on the earlier matter and agree not to pursue the additional pension for the period when it would not otherwise apply. This is a choice he could legitimately and honourably make in the light of decisions in his favour on the later applications. Alternatively, if the later claims fail on review or appeal, he could pursue the March 1991 matter.
For a person in the veteran's position, with an obviously considerable amount of ill health at the present time, whether war-caused or not, having served his country in war and being 75½ years old, it is a perfectly reasonably forensic purpose to opt not to be forced through one hearing after another on technical or legalistic grounds. I find it difficult, to say the least, to understand why the authorities did not and apparently still do not accept this explanation for a further delay of the March 1991 review. It seems unlikely that the relevant Minister could have approved the course that has been taken. On the other hand, the Senior Member of the Tribunal clearly had these considerations in mind when he made his decision and I think his decision was manifestly correct.
A further matter was raised as a result of the use by the Senior Member of the Tribunal of the words "abandonment" or "abandoned". The Commission expressed concern that these statements, which I was informed are not limited to this determination, represent a developing concept in the Tribunal that the legislation is limited in its effect only to claims which are abandoned. In other words, only in a case which has been abandoned by the claiming veteran would it be appropriate to entertain the summary dismissal procedures legislated in the amending Act No 70 of 1992.
The matter does not have to be finally decided in this appeal but for my part, as I said in discussion, if that is what the Senior Member had in mind, then I think it is too narrow an interpretation or construction of the legislation. Abandonment is clearly one circumstance in which dismissal would be granted but it cannot be the only matter. Nor did the veteran seek to argue it in that way here. If the Commission is concerned that the legislation is being narrowed so that in every case there needs to be a finding as to whether the case has been abandoned or not, I think that fear is unfounded. And to the extent to which the Tribunal's decision in this case could be so read, I would suggest respectfully that it was erroneous.
I must say, however, that I do not read the decision in that way. It seems to me that what the Tribunal said was not merely that the veteran had not abandoned his claim, but rather that he had not abandoned it because he was pursuing other matters which would or might bear upon the outcome of the earlier claim, and he did not want to be put in the position where he was running separate hearings and separate claims, some or all of which might have an interlocking effect at some time. Indeed, in the determination of the Tribunal there was a quotation from an earlier decision of the Tribunal in the case of Re Danaher and Veterans' Review Board (1993) 18 AAR 28 at 31 as follows:
In our view it was incumbent upon the Board if it thought the explanation to be deficient in particularity, to so communicate that to the applicant and/or his representative and to afford an opportunity to add, if they were able to do so in a relevant way, to the terms of the explanation for the delay.
The Senior Member of the Tribunal went on in this case:
This is particularly apposite when, as in this matter two previous applications for delay in similar terms have been accepted.
This quotation was included in relation to another point to which I will briefly return but it seems to me to demonstrate that the Tribunal was alert to the fact that there had been other matters outstanding over a long period of time and that it was perfectly appropriate for the veteran to have all his matters heard at the same time. To the Senior Member the Danaher reference supported the proposition that if that approach to the matter was not going to be accepted, it was necessary for the veteran to be advised that he may wish to put some further argument in support of further delay. As I see the matter, the Tribunal was not making a finding that the subsection and a subsection in similar terms
in an earlier form of the legislation were limited to abandonment but that abandonment was one factor, and in this particular case non-abandonment plus pursuit of other entitlements provided the explanation which should be accepted as reasonable.
I have earlier mentioned the Commission's other argument that there is no possible way in which the resolution of the later claims could have an effect on the appeal to the Review Board from the Commission's March 1991 decision, and have held that there is no need for me to decide the question now. However, the matter was put to the Tribunal, and there was a criticism made by the Commission on this appeal, that the Tribunal had failed to consider the submission because the Senior Member did not expressly refer to it in his decision. I think that he did not refer to it because whilst the Commission's submissions may ultimately be successful, it was simply not necessary to be decided. Indeed it would have been wrong for the Tribunal to decide what will in fact be in contention on all these claims.
The finding to which the Danaher quotation primarily went was that if the veteran's application for an extension in March 1994 was to have been refused on the grounds that he was not actively pursuing the review of the March 1991 decision, he should have been given an opportunity to be heard. As presently advised, I agree with the submission of the Commission that this opportunity to make further submissions was not necessary in this particular case. However, if the decision was to be refused on the ground that the particular claim could be affected by the result of the later claims, I think that as a separate legal question not previously addressed in correspondence, that should have been put to the veteran for further submission. As that was not the decision made, it does not fall to be decided in this case and I do not decide it now.
The challenge to the decision of Administrative Appeals Tribunal constituted by Senior Member Allen fails and the appeal will therefore be dismissed with costs.
Counsel and solicitor for Mr P. Hanks instructed by
the appellant Australian Government Solicitors
Counsel and solicitor for Mr M.A. Robinson instructed by
the first respondent Terence Anthony Murphy of Legal Aid Commission of NSW
The second respondent did not appear
Date of hearing 7 June 1995
Date of judgment 7 June 1995
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