Sinclair and Military Rehabilitation and Compensation Commission

[2004] AATA 1098

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1098

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/453

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER SINCLAIR

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date22 October 2004

PlaceBrisbane

Decision The applicant’s proceedings against the MRCC are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

...................[Sgd].......................

Senior Member B J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – dismissal – whether application is frivolous or vexatious – veteran has applied for review of two decisions relating to identical facts circumstances under Veterans’ Entitlements Act 1986 and Safety, Rehabilitation and Compensation Act 1988 – whether entitlement to pension under Veterans’ Entitlements Act precludes application under Safety, Rehabilitation and Compensation Act 1988 for same injury – meaning of frivolous or vexatious

Veterans’ Entitlements Act 1986

Safety, Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

Attorney-General v Wentworth (1988) 14 NSWLR 481

Williams and Australian Electoral Commission (1995) 38 ALD 366

Re McDougall and Comcare [1999] AATA 312

REASONS FOR DECISION

22 October 2004 Senior Member McCabe

Introduction

1.      Mr Sinclair served with the Royal Australian Air Force (RAAF) from 27 January 1967 to 23 June 1971. He claims he made several flights to Vietnam on RAAF aircraft while Australian service personnel were deployed in that country. He says he experienced a number of stressful events in connection with those flights and he has developed post traumatic stress disorder as a result.

2.      Mr Sinclair has applied to the Repatriation Commission for compensation under the provisions of the Veterans’ Entitlements Act 1986 (the VE Act). He says his condition is related to his operational service in Vietnam. The Repatriation Commission rejected the claim because it doubted the applicant travelled on the flights as alleged. It accepts the applicant may have made one flight, but it insists nothing occurred that could give rise to a claim for compensation. The Veterans’ Review Board affirmed that determination, and the matter is set down for a hearing before the Tribunal later this year.

3.      The applicant has also made a claim against the Military Rehabilitation and Compensation Commission (the MRCC) for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The claim arises out of the same facts the applicant relies on in his claim against the Repatriation Commission under the VE Act. The MRCC says this is impermissible and has asked for the claim against it to be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975. These written reasons relate to that application.

4.      The applicant was represented by Mr Rangia.  The MRCC was represented by Ms Ford.  The Repatriation Commission was also present at the hearing, and was represented by Mr Derrington.

the mrcc’s argument

5. The MRCC says it cannot be liable because the SRC Act is intended to compensate persons who are employees for the purposes of the Act when they sustain their injury or develop their condition. Section 5 of the Act defines the expression employee. Section 5(10) expressly excludes the Act from applying:

“…in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by…the Veterans’ Entitlements Act 1986…’

6.      The sub-section is subject to sub-sections (10A), (10B) and (10C). Ms Ford said none of these provisions assists Mr Sinclair. I do not understand there was any dispute on this point, and I accept the point.

7. Ms Ford says the applicant has constructed his case against the Repatriation Commission on the basis that he was on operational service when his conditions were triggered. She says the applicant’s claim must therefore be considered under the VE Act alone since provision is made under that Act for the payment of compensation to persons in the applicant’s circumstances. Whether or not he ultimately succeeds in his claim under that Act is beside the point: Ms Ford says claims of this nature are intentionally excluded from the ambit of the SRC Act so they may be considered exhaustively under the different (and, she says, more generous) provisions of the VE Act.

8. The MRCC says in those circumstances the applicant’s claim is frivolous or vexatious within the meaning of s 42B of the Administrative Appeals Tribunal Act 1975.

The applicant’s argument

9.      The applicant says he is entitled to make a claim against the MRCC in the alternative because it remains to be seen whether his claim against the Repatriation Commission can succeed. Mr Rangia, for the applicant, said Mr Sinclair would not be “…a member of the Defence Force in respect of which provision for the payment of pension is made by…the Veterans’ Entitlements Act 1986…” if his claim under that Act were refused by the Tribunal. If the VE Act were refused, Mr Rangia says the applicant should have the opportunity of pursuing the MRCC. There was a danger Mr Sinclair might “fall between two stools” if the claim against the MRCC were struck out at this point.

10. When pressed to identify the circumstances in which the applicant might fail in a claim under the VE Act and still be able to satisfy the SRC Act, Mr Rangia noted the Repatriation Commission had already sought to rely on the absence of a written instrument issued under ss5B(2)(a) and 6C(1) of the VE Act. (Those sections say the applicant may only claim he was on operational service if there is a written instrument issued by the Defence Force for use by the Commission stating his unit has been allotted for duty in that area.) He says his client should not be left without a remedy if the Repatriation Commission were able to defeat his client’s claim for compensation on a technical basis.

The repatriation commission’s argument

11. Mr Derrington, for the Commission, supported the application of the MRCC. Mr Derrington did not concede that a written instrument would necessarily be issued pursuant to ss 5B and 6C of the VE Act (although Ms Ford argued it was a mere formality once it was accepted the applicant had made at least one trip to Vietnam as part of his service). Even so, the Commission’s argument amounted to the following: if the applicant was able to succeed against anyone in his claim for compensation, he would succeed against the Commission. There was no need for the MRCC to remain in the proceedings.

12.     Mr Derrington went on to suggest the two claims should not be heard together if the claim against the MRCC was not dismissed. He said it would be difficult for the Tribunal to apply the two legislative schemes to the same facts in the one hearing.

The legislation

13. Section 42B of the Administrative Appeals Tribunal Act 1975 empowers the Tribunal to dismiss proceedings that are frivolous or vexatious. Section 42B(1) says:

(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a) dismiss the application; and

(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

14. The power to dismiss under s 42B must not to be exercised lightly, but its use is not confined to situations where the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J. The power may also be exercised if the Tribunal forms the view the proceedings are being pursued “for a collateral purpose – a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings”: see Williams and Australian Electoral Commission (1995) 38 ALD 366 at 373 per Mathews, Beaumont and Hill JJ.

15.      Mr Sinclair apparently has a genuine belief in his case. He does not have a collateral objective in mind as the applicant did in Williams, where the proceedings appeared to be part of the manoeuvring within a political organisation. But can the Tribunal give him the relief he seeks against the MRCC? If it cannot, the proceedings should be dismissed.

16.     The Tribunal considered this question in ReMcDougall and Comcare [1999] AATA 312. In that case, Deputy President Breen said (at paragraphs 11-12] the effect of s 5(10) of the SRC Act was to exclude applicants who were entitled to make a claim in respect of injuries sustained during eligible service “because during those periods provision for the payment of pension is made by the Veterans’ Entitlements Act 1986”.

17. The applicant says his claim for compensation arises out of his experiences in the course of trips to Vietnam that should qualify as operational service. The respondents doubt that most of the trips occurred. Leaving the factual dispute to one side, Ms Ford says the applicant’s case is clearly one in respect of which the VE Act would operate. She says the VE Act is intended to “cover the field” Mr Sinclair has described in his application for compensation. A claim under the SRC Act cannot be made in the alternative on this approach.

18. I think the MRCC is right. If Mr Sinclair’s claim relates to events that occurred on operational service – whether or not the period of service in question has formally been identified as operational service at this point – then the applicant is restricted to proceeding against the Repatriation Commission under the VE Act. The parliament has effectively quarantined periods of eligible service from the operation of the SRC Act and provided instead for their assessment under the VE Act. It would be futile to allow him to persist with his claim against the MRCC in those circumstances.

conclusion

19. I am satisfied the proceedings against the MRCC are vexatious or frivolous within the meaning of s 42B of the Administrative Appeals Tribunal Act 1975. The applicant’s account of the genesis of his condition must be assessed under the VE Act. A claim cannot be brought in the alternate against the MRCC under the SRC Act arising out of the same facts that would, if proven, establish an entitlement to compensation under the VE Act.

20. The applicant’s proceedings against the MRCC are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date of Hearing: 28 September 2004
Date of Decision: 22 October 2004
The applicant was represented by Mr Rangia of counsel.
The respondent was represented by Ms Ford of counsel.