Taylor and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 821

Taylor and Repatriation Commission (Veterans’ entitlements) [2015] AATA 821 (26 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2015/0802
Re	Hugh Taylor
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	26 October 2015
Place	Brisbane

The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Deputy President PE Hack SC

CATCHWORDS

PRACTICE & PROCEDURE – summary dismissal – application for pension at special rate – where no reasonable prospects of success – hearing sought for other purposes – application dismissed.

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth), ss 24(1), 24(2A)

Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)

REASONS FOR DECISION

Deputy President PE Hack SC

26 October 2015

1. Mr Hugh Taylor receives a pension pursuant to Part II of the Veterans’ Entitlement Act 1986 (Cth). His degree of incapacity has been determined by the Repatriation Commission to be 100% and his pension is calculated accordingly. On 5 December 2013, and at a time when Mr Taylor was aged 66 years, he applied to the Commission for an increase in his pension. He seeks to be paid at the “special rate”, that is, the rate specified in s 24 of that Act.

2. His claim was refused by the Commission’s decision of 11 December 2013 which determined that he did not satisfy the statutory criteria for payment of pension at the special rate. That decision was affirmed by a decision of the Veterans’ Review Board made on 2 December 2014.

3. Mr Taylor seeks a review of the Commission’s decision.

4. The matter is before me because the Tribunal’s Conference Registrar was of the view that it was appropriate for the Tribunal to consider dismissing Mr Taylor’s application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The matter was listed for a telephone directions hearing before me on 29 September 2015 when I explained to the parties my concern that it seemed apparent that the application had no reasonable prospect of success. Directions were made for the parties to lodge submissions directed to the issue of summary dismissal and to indicate whether any further hearing was sought. The submissions have now been received; neither party seeks to have a further hearing.

5. The key to the matter is Mr Taylor’s age. At the time of making this most recent claim, the claim that is the subject matter of this application, he was aged 66 years. He thus did not, and could not, satisfy the requirement of s 24(1)(aab) of the Veterans’ Entitlement Act that,

   … the veteran had not yet turned 65 when the claim or application was made.

   Thus he cannot be qualified for payment of pension at the special rate under s 24(1) of the Act. An alternative way of qualifying for the payment of the pension at the special rate is provided by s 24(2A) of the Veterans’ Entitlement Act. The sub-section is complex, as the Veterans’ Review Board noted, however, it requires an applicant to have been employed, or self-employed, in the same employment or occupation for a continuous period of 10 years that commenced prior to turning 65 and continued after turning 65. Mr Taylor does not suggest that he qualified in this way; his last remunerative work was undertaken around 1990.

6. Section 42B(1) of the Administrative Appeals Tribunal Act is in these terms:

   (1) The Tribunal may dismiss an application for the review of a decision, at any                stage of the proceeding, if the Tribunal is satisfied that the application:

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) has no reasonable prospect of success; or

   (c) is otherwise an abuse of the process of the Tribunal.

   No detailed analysis of the expression “no reasonable prospect of success” is called for and this case does not require study of the numerous cases in the courts on similar expressions in analogous statutory settings.[1] This is not a case at the margins – Mr Taylor cannot succeed because he had turned 65 prior to making his claim and because he ceased work some 23 years ago. He cannot satisfy one of the necessary criteria for payment of pension at the special rate. Mr Taylor’s submissions for the purposes of this application implicitly accept that.

   [1]           See eg, Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118.

7. Mr Taylor does not seek to use the Tribunal’s processes to obtain a reversal of the Commission’s decision; he seeks to do so because it serves the “useful purpose” of demonstrating an entitlement to payment under the Commonwealth’s scheme for Compensation for Detriment caused by Defective Administration (CDAA). He is concerned, as well, at the way in which the Veterans’ Review Board expressed its reasons and that the Board’s comments about Mr Taylor’s “time out of the workforce” may be given undue weight to his detriment in the CDDA process. Mr Taylor wants to argue in the CDDA process that prior to his 65^th birthday he was advised incorrectly by an official in the Department of Veterans’ Affairs and, as a result, did not then apply for pension at the special rate. He perceives that he will need to demonstrate not only the fact of incorrect advice, but also that he would have satisfied the statutory criteria at that time.

8. Thus, Mr Taylor’s case before the Tribunal would not focus upon the position when he made the most recent claim, the claim the subject of these proceedings, but upon the position at an earlier time. And he would seek to demonstrate error, not in the Board’s decision affirming the Commission’s earlier decision but in the way it expressed its reasons.

9. To state the position in that way highlights why this application must be dismissed. The Tribunal has scarce resources. It is obliged to allocate those resources in accordance with its statutory objective. Time spent by a Tribunal member and staff hearing and deciding the present case, when the outcome is known, is time that will necessarily be taken away from other applicants who seek to have their cases heard. I do not doubt that the position with the resources of the Commission is no different. It is, as well, trite that the task of the Tribunal is to reviews decisions, not the reasons for decision.

10. Mr Taylor’s medical conditions that have been attributed to his service in the armed forces are debilitating and warrant sympathy. If, as he says, he was wrongly advised by an official there is all the more reason to be sympathetic. But that sympathy cannot be permitted to deflect the Tribunal from its statutory task of providing a mechanism of review that is accessible, fair, just, economical, informal and quick and, importantly, proportionate to the importance and complexity of the matter. The Parliament has recently added the power to dismiss summarily cases that have no reasonable prospects of success to the Tribunal’s mechanisms of review. The power ought be used sparingly but it should be exercised where it is called for.

11. This is such a case. There is every reason to use the power and no reason that tells against it. The application will be dismissed.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 26 October 2015

Date final submissions received	21 October 2015
Solicitors for the Applicant	James Taylor & Co
Advocate for the Respondent	Mr A Crowe, Department of Veterans' Affairs