Rodda v Repatriation Commission - [2006] FCA 1689

FEDERAL COURT OF AUSTRALIA
Rodda v Repatriation Commission [2006] FCA 1689
DEFENCE AND WAR – veterans – entitlements – pensions for veterans – requirement of written authorisation for representation before Veterans’ Review Board in relation to s 155AA notice – interpretation of s 155AA and s 155AC of the Veterans’ Entitlements Act 1986 (Cth)
Held: Appeal dismissed
Veterans’ Entitlements Act 1986 (Cth) s 155AA and s 155AC
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 followed
NOEL RODDA v REPATRIATION COMMISSION and PRINCIPAL MEMBER, VETERANS’ REVIEW BOARD
NSD 1328 of 2005
MADGWICK J
5 DECEMBER 2006
CANBERRA (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1328 OF 2005

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

BETWEEN:

NOEL RODDA
APPLICANT

AND:

REPATRIATION COMMISSION
FIRST RESPONDENT

PRINCIPAL MEMBER, VETERANS' REVIEW BOARD
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

5 DECEMBER 2006

WHERE MADE:

CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant is to pay the first respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1328 OF 2005

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

BETWEEN:

NOEL RODDA
APPLICANT

AND:

REPATRIATION COMMISSION
FIRST RESPONDENT

PRINCIPAL MEMBER, VETERANS' REVIEW BOARD
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

5 DECEMBER 2006

PLACE:

CANBERRA (HEARD IN SYDNEY)

REASONS FOR JUDGMENT
HIS HONOUR:

This is an appeal from the Administrative Appeals Tribunal (‘the Tribunal’) which had affirmed a decision of the Principal Member of the Veterans’ Review Board (‘the Principal Member’). The Principal Member had dismissed Mr Rodda’s application to the Veterans’ Review Board (‘the Board’) for review of a decision of the Repatriation Commission (‘the Commission’).
At issue is the proper construction of s 155AA and s 155AC of the Veterans’ Entitlements Act 1986 (‘the Act’).
BACKGROUND AND HISTORY OF PROCEEDINGS
Background
Mr Rodda is a 68 year old veteran who currently resides in Coffs Harbour. He applied for an increase in a pension accorded him by the Commission under the Act and sought acceptance of a range of new medical claims.
The Commission’s decision
The Commission accepted that several but not all of Mr Rodda’s claimed medical conditions were related to his military service and granted him a pension at 100 percent of the General Rate (as opposed to the higher Intermediate or Special Rates of pension). Mr Rodda’s entitlement to an increased pension was calculated accordingly.
Events leading up to the Board’s decision
On 3 September 2002 the Department of Veterans’ Affairs received a letter from Mr Rodda outlining his dissatisfaction with elements of the Commission’s decision; in particular, his deemed ineligibility for a pension at the Intermediate or Special rate. This letter was treated by the respondents (and, before me, by all parties) as…

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: [2006] FCA 1689
Decision Date: 5 DECEMBER 2006

CaseChat Overview and Summary

Mr Rodda, a veteran, sought a review of a Repatriation Commission decision regarding his pension entitlement under the Veterans’ Entitlements Act 1986. The Commission had granted Mr Rodda a pension at 100 percent of the General Rate, finding some of his claimed medical conditions were related to his military service. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the Commission's decision was legally sound and whether the Board's subsequent actions were justified under the Act.

The primary legal issues involved interpreting sections 155AA and 155AC of the Act, particularly in relation to the procedural requirements for Mr Rodda's application for review. Specifically, the court had to determine if the Board was justified in dismissing Mr Rodda’s application due to the lack of a response to the s 155AA notice, and whether Mr Rodda’s representative, Mr David Woodcock, properly authorised to act on his behalf. The court also needed to consider whether Mr Rodda's delay in progressing his application constituted a reasonable explanation under the Act.

The AAT found that the Board acted within its authority under section 155AA by issuing a notice to Mr Rodda, requiring him to clarify the status of his application. The AAT held that Mr Rodda did not provide a reasonable explanation for the delay, and there was no evidence that Mr Woodcock was properly authorised to act on his behalf. As a result, the AAT upheld the Board's decision to dismiss the application. The AAT also noted that the Commission's initial decision to grant Mr Rodda a pension at the General Rate was supported by evidence and thus did not need to be overturned.

The AAT dismissed Mr Rodda’s appeal and ordered him to pay the first respondent's costs. The decision underscored the importance of procedural compliance under the Act and the necessity for applicants to provide timely and reasonable explanations for delays in their applications.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant is to pay the first respondent’s costs.

Background

Background to the litigation

At issue is the proper construction of s 155AA and s 155AC of the Veterans’ Entitlements Act 1986 (‘the Act’).BACKGROUND AND HISTORY OF PROCEEDINGSBackground Mr Rodda is a 68 year old veteran who currently resides in Coffs Harbour. He applied for an increase in a pension accorded him by the Commission under the Act and sought acceptance of a range of new medical claims. The Commission’s decision The Commission accepted that several but not all of Mr Rodda’s claimed medical conditions were related to his military service and granted him a pension at 100 percent of the General Rate (as opposed to the higher Intermediate or Special Rates of pension). Mr Rodda’s entitlement to an increased pension was calculated accordingly. Events leading up to the Board’s decision On 3 September 2002 the Department of Veterans’ Affairs received a letter from Mr Rodda outlining his dissatisfaction with elements of the Commission’s decision; in particular, his deemed ineligibility for a pension at the Intermediate or Special rate. This letter was treated by the respondents (and, before me, by all parties) as an application to the Board for review of the Commission’s decision. On 19 December 2002 the Board received a signed form from Mr Rodda stating that Mr David Woodcock of the Coffs Harbour Returned Services League (‘RSL’) Sub-Branch would represent him at his review hearing. The form also stated that Mr Woodcock would advise the Board when both men were ready for a hearing to be arranged. On 8 January 2003 the Board wrote to Mr Rodda informing him that his application would be listed for hearing as soon as his representative sent a ‘Certificate of Readiness’. A copy of that letter was also sent to Mr Woodcock, as was a ‘Certificate of Readiness for Hearing’ form, under cover of a letter requesting that Mr Woodcock return the form once the application was ready for hearing. For two years the Board did not hear from either Mr Rodda or Mr Woodcock. The Board then wrote to Mr Rodda asking him to contact Mr Woodcock and have Mr Woodcock lodge a ‘Certificate of Readiness’ if the matter was ready to proceed to hearing, or, if it was not ready, to indicate when he expected that the matter would be ready. A copy of that letter was also sent to Mr Woodcock. Eight months later, on 20 October 2004, the Board’s Registrar sent Mr Rodda a ‘Notice under section 155AA Veterans’ Entitlements Act 1986’. The notice required Mr Rodda to inform the Board as to whether his application was ready to proceed to hearing or, alternatively, whether he wished to withdraw it, or finally, if he wished to continue with the application but was not yet ready to proceed, to provide a reasonable explanation for the delay. Two documents, entitled ‘Form 1’ and ‘Form 2’ respectively, were enclosed with the notice for the purposes of this information being supplied. The s 155AA notice explained that Mr Rodda could complete and return Form 1 himself, or alternatively, Mr Rodda could authorise someone else to represent him in relation to the notice by using Form 2. The notice stated that:‘If you wish, you may authorise someone to represent you in relation to this notice. The authorisation must be in writing. Form 2 is enclosed for this purpose. You should not send Form 2 back to me. You should give it to the person you have authorised to represent you so that he or she can send it to me together with the statement I have requested within the 28 days allowed. If you choose to be represented in relation to this notice and your representative fails to respond or does not provide a reasonable explanation within the 28 days, your application must be dismissed.’ (Original emphasis.)A copy of this letter was also sent to Mr Woodcock.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

The Commission accepted that several but not all of Mr Rodda’s claimed medical conditions were related to his military service and granted him a pension at 100 percent of the General Rate (as opposed to the higher Intermediate or Special Rates of pension). Mr Rodda’s entitlement to an increased pension was calculated accordingly. Events leading up to the Board’s decision On 3 September 2002 the Department of Veterans’ Affairs received a letter from Mr Rodda outlining his dissatisfaction with elements of the Commission’s decision; in particular, his deemed ineligibility for a pension at the Intermediate or Special rate. This letter was treated by the respondents (and, before me, by all parties) as an application to the Board for review of the Commission’s decision. On 19 December 2002 the Board received a signed form from Mr Rodda stating that Mr David Woodcock of the Coffs Harbour Returned Services League (‘RSL’) Sub-Branch would represent him at his review hearing. The form also stated that Mr Woodcock would advise the Board when both men were ready for a hearing to be arranged. On 8 January 2003 the Board wrote to Mr Rodda informing him that his application would be listed for hearing as soon as his representative sent a ‘Certificate of Readiness’. A copy of that letter was also sent to Mr Woodcock, as was a ‘Certificate of Readiness for Hearing’ form, under cover of a letter requesting that Mr Woodcock return the form once the application was ready for hearing. For two years the Board did not hear from either Mr Rodda or Mr Woodcock. The Board then wrote to Mr Rodda asking him to contact Mr Woodcock and have Mr Woodcock lodge a ‘Certificate of Readiness’ if the matter was ready to proceed to hearing, or, if it was not ready, to indicate when he expected that the matter would be ready. A copy of that letter was also sent to Mr Woodcock. Eight months later, on 20 October 2004, the Board’s Registrar sent Mr Rodda a ‘Notice under section 155AA Veterans’ Entitlements Act 1986’. The notice required Mr Rodda to inform the Board as to whether his application was ready to proceed to hearing or, alternatively, whether he wished to withdraw it, or finally, if he wished to continue with the application but was not yet ready to proceed, to provide a reasonable explanation for the delay. Two documents, entitled ‘Form 1’ and ‘Form 2’ respectively, were enclosed with the notice for the purposes of this information being supplied. The s 155AA notice explained that Mr Rodda could complete and return Form 1 himself, or alternatively, Mr Rodda could authorise someone else to represent him in relation to the notice by using Form 2. The notice stated that:‘If you wish, you may authorise someone to represent you in relation to this notice. The authorisation must be in writing. Form 2 is enclosed for this purpose. You should not send Form 2 back to me. You should give it to the person you have authorised to represent you so that he or she can send it to me together with the statement I have requested within the 28 days allowed. If you choose to be represented in relation to this notice and your representative fails to respond or does not provide a reasonable explanation within the 28 days, your application must be dismissed.’ (Original emphasis.)A copy of this letter was also sent to Mr Woodcock.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1328 OF 2005

BETWEEN:	NOEL RODDA APPLICANT
AND:	REPATRIATION COMMISSION FIRST RESPONDENT PRINCIPAL MEMBER, VETERANS' REVIEW BOARD SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	5 DECEMBER 2006
WHERE MADE:	CANBERRA (HEARD IN SYDNEY)