Seale and Anor and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1622

VETERANS' APPEALS DIVISION		)              N2003/1476
Re		1. SHIRLEY SEALE 2. GLORIA HEALEY

Applicants

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date30 June 2004

PlaceSydney

Decision The application for adjournments is refused.

[sgd] The Hon. R N J Purvis Q.C.
  Deputy President

legislative frame work

8. Section 120A of the Veterans’ Entitlements Act 1986 (“the Act”) provides as here relevant:

“(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under part II that relates to the operational service rendered by a             veteran;

…

(2) If the Repatriation Medical Authority has given notice under section 196G that it  intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3) a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) or determination of the Commission under subsection 180A(2);

that upholds the hypothesis.”

9.      Consistent with the decision in McMillan and Anor v Repatriation Commission (1998) 81 FCR 45 where it had been argued that the Act required the Tribunal to delay hearing an application until a review by the RMA had been completed, it is competent for the Tribunal in the exercise of its discretion to proceed with a hearing of a substantive application if it should so decide. With reference to section 120A (2) it was said in McMillan and Anor (supra) at page 51:

“…The subsection provides for a bar on the Respondent determining certain claims made to it if the RMA has given notice of its intention to carry out a relevant investigation.  The subsection then provides two exceptions to that bar.  The first exception is where the RMA has determined a SoP in respect of the relevant injury, disease or death.  The second exception is where the RMA has made a declaration stating that it does not propose to make a SoP in respect of the relevant injury, disease or death.

In the circumstances of each claim before the AAT there was in existence a relevant SoP.  Therefore, there was no bar on the Respondent and the AAT determining the…