Steley and Principal Member of the Veterans' Review Board (Veterans' entitlements)

[2022] AATA 4432

Steley and Principal Member of the Veterans' Review Board (Veterans' entitlements) [2022] AATA 4432 (19 December 2022)

Division:VETERANS' APPEALS DIVISION

File Number:          2022/6435

Re:Douglas Steley

APPLICANT

AndPrincipal Member of the Veterans' Review Board

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:19 December 2022

Date of written reasons:        20 December 2022

Place:Melbourne

Pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the application is dismissed because the Tribunal is satisfied it has no reasonable prospect of success.

........................................................................

Senior Member D. J. Morris

Catchwords

VETERANS’ ENTITLEMENTS – applicant sought review of rate of disability pension by Repatriation Commission – Commission continued pension at 100 per cent of general rate and refused claim for pension at the intermediate or special rate – applicant sought review by Veterans’ Review Board – Board dismissed application for being out of time – applicant sought review by Tribunal – interlocutory hearing – examination of service by post presumptions – Tribunal satisfied applicant did not apply for review within three months of being notified of decision – Tribunal satisfied no discretion under enactment for Board to extend time – therefore satisfied no prospect of success on review of reviewable decision – oral decision – written reasons provided

PRACTICE AND PROCEDURE – dismissal of matter where no reasonable prospect of success – power should be used with caution – even apparently weak but arguable case might succeed – enactment in this case renders application futile

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 30, 33A, 37, 42B
Evidence Act 1995 (Cth), ss 160, 163

Veterans’ Entitlement Act 1986 (Cth), ss 135, 155

Cases

Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Roberts and Repatriation Commission; Re: [1992] AATA 76

Spencer v The Commonwealth (2010) 241 CLR 118

REASONS FOR DECISION

Senior Member D. J. Morris

20 December 2022

Preliminary

1. The Applicant, Mr Douglas Steley, was born in April 1956 and is aged 66. He is a former member of the Royal Australian Air Force (RAAF’). He served in the RAAF from 1974 to 1981. The Applicant receives a disability pension administered by the Department of Veterans’ Affairs (‘DVA’) on account of certain medical conditions which have been accepted as attributable to his RAAF service.

2. On 19 December 2022, the Tribunal held an interlocutory hearing by telephone, as allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Steley made submissions, and the Principal Member of the Veterans’ Review Board was represented by Ms Allison Mills, a Senior Lawyer with The Australian Government Solicitor.

3. The Tribunal had regard for the following documents submitted by the parties:

   (a)Application lodged with the Tribunal on 2 August 2022;

   (b)Documents lodged by the Respondent under s 37 of the AAT Act (‘TD’); and

   (c)Letter from the Respondent to the Tribunal dated 14 December 2022.

4. At the conclusion of the hearing, the Tribunal made an oral decision dismissing the application under s 42B(1)(b) of the AAT Act because it was satisfied that the application has no reasonable prospect of success.

5. At the commencement of the hearing, the Applicant expressed displeasure that it was being conducted by telephone. The Tribunal offered to adjourn and reconvene the matter for an in-person hearing at a future date. The Applicant said he did not want that but wanted an apology from the Tribunal for arranging the matter as a telephone hearing, saying he had requested that to the Tribunal’s Registry. The Tribunal said it would check its records, but that no request for an in-person hearing had been conveyed to the Senior Member.

6. The Tribunal also noted that a joinder application under s 30(1A) of the AAT Act had been foreshadowed by the legal representatives of the Respondent, to join the Commission as an affected party in the proceedings.

7. In any event, the Tribunal noted that it was inevitable that, because of the terms of the Veterans’ Entitlements Act 1986 (‘the VEA’), the Tribunal would find that there was no prospect of the Applicant succeeding in seeking to have the decision of the Board to dismiss his application set aside.

8. The Tribunal asked Ms Mills if the Respondent wished to proceed with an application to join the Commission, and she advised that in the circumstances, there would be no utility in pursuing that request.

   Written reasons for oral decision

9. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why the matter was dismissed. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

10. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 19 December 2022, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but I have included the factual background of Mr Steley’s application to the Repatriation Commission and its consideration by the Board and his interactions with DVA officers. The purpose is to assist Mr Steley in any future action he might choose to take.

    Background and chronology

11. On 12 September 2018, the Applicant lodged a claim for a new disability, namely post-traumatic stress disorder (‘PTSD’) and applied for an increase in his disability pension on the basis of the worsening of his already accepted disabilities of major depressive disorder and general anxiety disorder.

12. On 18 December 2018, a delegate of the Commission accepted PTSD as a disability (TD, p 24). On 12 April 2019, a delegate determined that the Applicant’s fortnightly disability pension would increase (TD, pp 30-31).

13. On 12 April 2019, the Commission made a decision to continue Mr Steley’s rate of disability pension at 100 per cent of the general rate and refuse his claim for pension at the intermediate rate or the special rate (which used to be called the totally and permanently incapacitated rate).

14. The Tribunal also notes that one of the reasons given by the Commission was that the Applicant was ineligible for Extreme Disablement Adjustment because he was (then) under the age of 65 (TD, p 34).

15. The Tribunal also notes an internal DVA File Note stating that the right to request a review of the decision “expires on 12 July 2019” (TD, p 44). For reasons set out below, the Tribunal considers this incorrect.

16. On 11 June 2020, a DVA officer sent an email to Mr Steley with the subject heading ‘Appeal DVA decision 12.4.19’, which commences with ‘Re Request to appeal decision – next steps’ (TD, p 38). The Tribunal, therefore, concludes that there had been a prior approach from the Applicant before 11 June 2020, but evidence of that was not in the papers.

17. There is a further email to the Applicant from a DVA complex case manager, dated 30 June 2020 (TD, pp 42-43). Most of the contents are redacted, but there is a record that the Applicant told the officer: “I don’t like being told what DVA can and can’t do based on what a piece of paper says, I would rather DVA use their initiative to help veterans”. The complex case officer manager also sent an internal email advising that the first contact they had with the Applicant about appealing the decision was at 1.30 pm on 30 June 2021 (TD, p 40).

18. On 23 February 2021 (TD, p 39), the Applicant emailed DVA saying relevantly:

    I would like to appeal the decision made with regard to my claim

    can you please start the process for me

    I had informed DVA that I wished to appeal the decision within the approved timeframe and was told they would get back to me with further information, they failed to do that.

    As a result I was not able to proceed with my request.

    I look forward to hearing from the appeals team in the near future and arranging something mutually agreeable.

19. DVA regarded this as an application for review, and on 24 February 2021 it was forwarded to the Board to be lodged on that basis.

20. On 26 July 2022, the Board held a hearing, constituted by a Senior Member (presiding), a Services Member and an Acting Member. Mr Steley appeared and made submissions. At the conclusion of the hearing, the Board said it would reserve its decision. However, the Applicant asked for an oral decision that day, rather than having to wait. The Board decided to adjourn and re-convene later in the day, with the Applicant present. It then gave oral reasons for its decision and dismissed Mr Steley’s application as not reviewable, under s 155(7) of the VEA.

21. The Applicant has brought that decision of 26 July 2022 to the Tribunal for review, as he is entitled to do.

22. In his application for review, the Applicant summarises his reasons for bringing this matter to the Tribunal as follows (TD, p 5):

    Because of the Applicant’s disabilities and because of Department of Veteran’s [sic] Affairs of not informing Applicant of how to lodge an appeal, it was impossible for Applicant to lodge an appeal within the required time. Even though the VRB agreed that it was impossible for Applicant to lodge an appeal within the required time, the VRB rejected the Applicant’s request to lodge a late appeal on the grounds that the appeal had to be lodged within a 3 month period. The issue has been going on for 12 years. If further information is required, the Applicant is happy to discuss this further.

    (Emphasis added.)

    The law

23. Mr Steley was not satisfied with the Commission’s decision not to increase his disability pension from 100 per cent of the general rate. The decision he has brought to the Tribunal is, however, not that decision – it is the decision of the Board to dismiss his application for review for being out of time.

24. Section 135 of the VEA relevantly says:

    Review of decisions in respect of pensions and attendant allowances

    (1)       Where a person:

    …

    (b)       who has made application for a pension, or for an increased pension, in accordance with section 15; …

    Is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.

    …

    (5)       An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:

    …

    (c)       refusing to increase the rate of a pension

    …

    may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.

    (Emphasis added.)

25. Put into plainer language, as the Commission’s decision Mr Steley is unhappy with related to an increase in his disability pension, the VEA requires that he make an application to the Board within three months of being ‘served’ with that decision.

    When is the Applicant taken to have received the decision?

26. The decision was sent by post to Mr Steley from the DVA by letter dated 12 April 2019 (TD, pp 30-31). The Evidence Act 1995 provides at s 160 that it is presumed (unless sufficient evidence to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external territory was received at that address on the seventh working day after having been posted. “Working day” is defined as a day that is not a Saturday or a Sunday or a public holiday in the place to which the letter was addressed.

27. Section 163 of the Evidence Act 1995 sets out special rules where the letter is sent from a Commonwealth agency. That section essentially says that where a letter from such an agency is dated, it is presumed to have been posted on the fifth business day after the date on which it was apparently prepared. “Business day” is defined as a day that is not a Saturday or Sunday, or a public holiday in the place where the letter is presumed to have been received.

28. Therefore, the rebuttable presumption is that the letter advising the Applicant of the 12 April 2019 decision made by the Commission is presumed to have been posted on 19 April 2019 and delivered to the Applicant on 26 April 2019. The three-month clock, therefore, started on 27 April 2019 and ended on 26 July 2019. Mr Steley’s application was taken by DVA to have been made on 23 February 2021. That is 579 days out of time, or just short of one year and seven months late.

29. It is implicit in Mr Steley’s own submissions that he did receive notification of the decision because he says that he spoke to an officer of the Department ‘within the appropriate timeframe’.

30. Although in his application to the Tribunal, the Applicant contends that the Board agreed with him that it was ‘impossible’ for him to lodge an appeal within the required time, having read the transcript of 26 July 2022, the Tribunal does not think on a fair reading the Board did say that. However, notable in Mr Steley’s own summary of the reason for his request for review is his view that the Board ‘rejected his request to lodge a late appeal’.

31. The VEA is a statute that is intended to be beneficial legislation, and it has several provisions which are designed to make it easier for veterans to make applications. However, the words of Justice O’Connor, when President of this Tribunal, in Roberts and Repatriation Commission [1992] AATA 76 (‘Roberts’), are relevant, where Her Honour said:

    [24] Although the Veterans' Entitlements Act is beneficial legislation, that does not mean that persons making claims under that Act do not have to comply with its procedural requirements.

    [25] … The Veterans' Entitlements Act provides for the payment of pensions and other benefits to veterans and certain other persons. The payment of pensions and benefits is not open-ended in that veterans must satisfy certain eligibility criteria. A system of review involving the Veterans' Review Board and the Administrative Appeals Tribunal has been set up under the Act. Time limits are set in s 57A for internal review, s 135 for review by the Veterans' Review Board and in s 176 for review by the Tribunal. At all levels of the review system the parliament has evinced an intention, based on public policy, that veterans should not have an unlimited time in which to pursue their claims.

    …

    [31] The time limits set by the Act must be complied with strictly. They are in fact generous in their terms. Although a detrimental effect flows to applicants if they are not met, that does not outweigh considerations such as certainty in the decision-making process and a recognition that if claims are to be pursued that must be done in a timely manner.

32. Mr Steley submitted to the Board that he had contacted someone in DVA within the “appropriate timeframe”, by which the Tribunal understands he means within the three months set down in the VEA, but they had not got back to him, and contended this was the reason for the delay in making an application.

33. There is no evidence before the Tribunal of any such contact. This is not to say that Mr Steley did not make contact, nor that he is accurately recording that he understood an officer of the Department would contact him further. However, the fact remains that he did not lodge an application for a review of the Commission’s decision until 23 February 2021.

34. The difficulty for Mr Steley is the last three words of s 135 of the VEA: “but not otherwise”. Many Acts of Parliament establish timeframes to allow people to do certain things. Some Acts also include a discretion for a decision-maker, in certain circumstances, to modify the rule. An example is s 29(7) of the AAT Act, which allows the Tribunal to extend the time for a person to lodge an application for review late, if the Tribunal is ‘satisfied that it is reasonable in all the circumstances to do so’.

35. But the VEA contains no such provisions if a person has not lodged an application for review to the Board in relation to a refusal to increase a pension within three months of receiving the Commission’s decision. It is a strict time limit.

36. So, while the Tribunal appreciates that Mr Steley might be frustrated by the administrative processes relating to his quest for a pension increase, and he might think the Board should have exercised a discretion to allow him to lodge his appeal late, there is, in fact, no discretion for the Board to do that.

    Dismissing a matter for no reasonable prospect of success

37. The Tribunal is aware that it is the consistent authority of the Courts that use of the power to dismiss a matter because it has ‘no reasonable prospect of success’ should be approached with caution (see, for example, Spencer v The Commonwealth (2010) 241 CLR 118, at [24] and [60]). Sometimes, it requires a fine judgement of whether the person has an arguable case. Even a case that might look weak, if the case is arguable, should not be dismissed as having no reasonable prospect of success. A fresh decision-maker, hearing fresh arguments and considering new evidence, might decide that what is thought to be a weak case is, in fact, a compelling one.

38. But this is not such a matter. I am not in the position of considering whether Mr Steley should get an increased rate of disability pension. He may well have an arguable – even hypothetically a strong – case to make in regard to that. That is not before me. What I must consider is, as a matter of fact, whether the Board was correct to dismiss his application on the basis that it decided that he had not applied for review within three months of 12 April 2019. If I were to find that the Board was wrong, the matter would be returned to the Board for further consideration of Mr Steley’s request for review.

39. However, there is no evidence before me that he did apply within the three-month period, which I have found commenced on 27 April 2019 and ended on 26 July 2019. As a consequence, the Board had no choice in the matter; it had to dismiss his application because it was out of time. The legislation provides no leeway.

40. Equally, the Tribunal also has no power to say that the Board should have extended time to Mr Steley. As said above, there is no discretionary power the Board exercised which might be reconsidered as to whether it was exercised in a preferable manner. The Tribunal is therefore satisfied that there is no reasonable prospect of success if the matter was to proceed to a substantive hearing; in other words, it would be futile.

    Avenues of relief

41. As mentioned above, Mr Steley was born in April 1956. He is therefore now 66 years of age. One of the bars the Commission observed for him in receiving the Extreme Disablement Adjustment is that he was under the age of 65. That bar has now gone. If Mr Steley wishes to pursue his desire for an increase in the rate of his disability pension, he should make a fresh application to the Commission, because his circumstances have now changed by effluxion of time.

42. However, as it stands, the Board was correct in dismissing the matter. Equally, the Tribunal decided to dismiss the application because there would be no benefit in subjecting the Applicant to a stressful and time-consuming hearing when there is no chance of him succeeding. There would also be no value in the Respondent expending public funds in relation to an application that cannot succeed, because of the wording of the VEA.

1. The Tribunal is sympathetic to the submission of Mr Steley that he argues that “this issue has been going on for 12 years”, which presumably means he has been seeking an increase in his disability pension over that period. However, as President O’Connor said in Roberts, legislative time limits in the VEA, while generous in their terms, must be complied with.

   Applicant’s complaints about Tribunal processes

2. The Applicant submitted that he had asked for his hearing to be in-person. The Tribunal has examined the records and notes that no such request was received in writing, and nor is it recorded by any Tribunal officer on the application file. I do note that, earlier in the consideration of the application, Mr Steley had made a request to a conference registrar for an in-person hearing, but that was not possible. In terms of this hearing, no such request was made. As the Tribunal explained during the hearing on 19 December 2022, where a party makes such a request, the Tribunal always endeavours to accommodate that; and that is especially so when the request comes from a person with particular requirements. I also note that Mr Steley had previously engaged with the conference registrar, who had sent detailed emails to him explaining the processes of the dispute resolution process.

   DECISION

3. The Tribunal, pursuant to s 42B(1)(b) of the AAT Act, dismissed the application because it is satisfied it has no reasonable prospect of success.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 20 December 2022

Date of interlocutory hearing:	19 December 2022
Applicant:	Mr Douglas Steley (Self-represented)
Advocate for the Respondent:	Ms Allison Mills
Solicitors for the Respondent:	The Australian Government Solicitor