Sleep and Repatriation Commission - [2011] AATA 349

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 349
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          Nos 2011/0254, 2011/0256,
VETERANS' APPEALS DIVISION  )                   2011/0257 and 2011/0258

Re KENNETH JOHN SLEEP

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date25 May 2011
PlaceAdelaide

Decision
The Tribunal declines to review the issues raised by the within applications that have previously been determined by earlier proceedings in this Tribunal, and dismisses the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

D G Jarvis
… [Signed] …
Deputy President

CATCHWORDS
PRACTICE AND PROCEDURE – veteran in receipt of pension at the special rate and invalidity service pension - review of decisions to vary service pension - earlier proceedings in tribunal relating to same issues - no reasonable prospect of success - held that applicant not permitted to revisit same issues – applications dismissed under s 42B of Administrative Appeals Tribunal Act 1975 (Cth).
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 51(xxxi)
Veterans’ Entitlements Act 1986 (Cth), ss 24, 37, 37N and 56D
Health Insurance Commission v Peverill (1994) 179 CLR 226
Re Filsell and Comcare (2009) 109 ALD 198
Re Sleep and Repatriation Commission [2008] AATA 1100
Re Sleep and Repatriation Commission [2008] AATA 1101
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Sleep v Repatriation Commission [2009] FCA 472
Sleep v Repatriation Commission [2009] FCA 1413
REASONS FOR DECISION

25 May 2011 Deputy President D G Jarvis

1.The applicant, Kenneth John Sleep, is a veteran who served in the Australian Army from July 1968 to July 1970, after being called up for National Service. He had operational service in Vietnam from November 1968 to May 1970. At all times material to the issues raised in the within proceedings, he was in receipt of an invalidity service pension under Part III of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act), and also pension at the special rate provided for in Part II, s 24 of the VE Act.
2.He has instituted proceedings in this tribunal to review a decision made on 15 December 2010 by a delegate of the respondent Repatriation Commission (the Commission) to affirm five prior primary decisions made by delegates of the Commission. Later, he also instituted separate proceedings, being matter number 2011/0822 in this tribunal, applying to review a further decision made by a delegate of the Commission on 30 March 2010 (which decision is referred to in the index to the section 37 documents as “Decision 6”).
3.The Commission raised issues of jurisdiction in respect of three of the six applications referred to in the preceding paragraph. For reasons provided orally, I decided that the tribunal had no jurisdiction in two of the proceedings instituted by Mr Sleep, namely matter number 2011/0822, to which I referred above, and matter number 2011/0255 relating to a telephone discussion on 12 March 2010…

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 Sleep and Repatriation Commission

Details

AGLC: Sleep and Repatriation Commission [2011] AATA 349
Case: [2011] AATA 349
Decision Date: 25 May 2011

CaseChat Overview and Summary

The applicant, a veteran receiving a pension at the special rate and an invalidity service pension, sought a review of decisions by the Repatriation Commission to vary his service pension. The dispute was brought before the Administrative Appeals Tribunal (AAT). The legal issues before the court were whether the applicant was permitted to revisit issues that had already been determined by the AAT and whether there was a reasonable prospect of success in the applications.

The court examined the relevant statutes, including the Administrative Appeals Tribunal Act 1975, the Veterans’ Entitlements Act 1986, and the Commonwealth of Australia Constitution Act 1900. The court also considered precedents such as Health Insurance Commission v Peverill and Re Williams and Australian Electoral Commission. The AAT held that the applicant was not permitted to revisit the same issues that had already been determined in earlier proceedings in the tribunal. Given that there was no reasonable prospect of success, the applications were dismissed under section 42B(1) of the Administrative Appeals Tribunal Act 1975.

The court concluded that the applicant's applications were not allowed to be revisited and were dismissed. The Tribunal declined to review the issues raised by the applications that had already been determined in earlier proceedings in the Tribunal. The court found that the applicant did not have a reasonable prospect of success in the applications, and thus, dismissed them in accordance with section 42B(1) of the Administrative Appeals Tribunal Act 1975.

Orders

Orders of the court

The Tribunal declines to review the issues raised by the within applications that have previously been determined by earlier proceedings in this Tribunal, and dismisses the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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