Terence Reason and Repatriation Commission
[2012] AATA 358
•14 June 2012
[2012] AATA 358
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4930
Re
Terence Reason
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 14 June 2012 Place Brisbane The application for reinstatement is refused.
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Senior Member Bernard J McCabe
CATCHWORDS
REINSTATEMENT OF APPLICATION – claim for service pension at the special rate – application withdrawn in error – discretion to reinstate enlivened – discretion to be exercised where appropriate – limited medical evidence – application for reinstatement refused
LEGISLATION
Veterans’ Entitlements Act 1986
Administrative Appeals Tribunal Act 1975
CASES
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 121 FCR 383
REASONS FOR DECISION
Senior Member Bernard J McCabe
14 June 2012
Mr Terence Reason has asked the Tribunal to reinstate an application that was withdrawn by his representative. The Repatriation Commission says the earlier proceedings should not be reinstated pursuant to s 42A of the Administrative Appeals Tribunal Act 1975.
Mr Stoner, for the Commission, conceded there was a sufficient basis to conclude the application was withdrawn in error following correspondence between the applicant’s former representative and the Tribunal. The former representative had told the Tribunal the applicant wanted to withdraw but it has become apparent that was not what the applicant wanted. It seems there was a miscommunication between the applicant and his representative. I do not need to say anything more about that here. After having regard to the principles referred to in Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383, I accept the application was dismissed as a result of an error. It follows the discretion to reinstate is enlivened. The question is whether the discretion should be exercised in this case.
The Tribunal should only exercise the discretion to reinstate if it is satisfied it is appropriate to do so. There is no suggestion of any prejudice to the respondent, so that is not an obstacle. The real issue is whether the substantive application has merit. Determining the merits of an application is, to some extent, an impressionistic exercise. One does not conduct a mini-trial as part of the process. But some history would be helpful.
The original application to the Tribunal arose out of Mr Reason’s claim for a service pension under the provisions of the Veterans’ Entitlements Act 1986. The Veterans’ Review Board decided the applicant had a psychiatric condition that was service-related. There was a dispute over whether the psychiatric condition in question was properly described as an anxiety disorder or – as the applicant’s medical expert contended – post-traumatic stress disorder (PTSD). The Board concluded the applicant suffered from an anxiety condition. His claim was remitted to the Repatriation Commission for assessment.
Mr Reasons is seeking a pension at the special rate because he says he is unable to work at all because of his service-related condition. Section 24 of the Act imposes a requirement that the applicant must be unable to work by reason of a war-caused condition alone. He says he is worried the Commission may reject his application for a special rate pension on the basis that PTSD also contributed to an inability to work.
Mr Stoner pointed out the diagnosis of PTSD was not accepted by the Board. As far as the Commission was concerned, the applicant does not suffer from PTSD: he suffers from an anxiety condition. In those circumstances, the Commission could not argue PTSD made any contribution to his inability to work.
Mr Cockburn (who appeared on behalf of the applicant) clarified the applicant’s concerns at the hearing. He said there were particular features of the applicant’s conduct – irritability and aggression, for example – that contributed to his inability to work. While that sort of behaviour is readily explained by a diagnosis of PTSD, it was unclear whether the behaviour was equally explicable by a diagnosis of anxiety disorder. Mr Cockburn said his client should be permitted to argue for a diagnosis of PTSD to avoid any risk that his behaviour could not be attributed to an anxiety condition.
Mr Stoner pointed out that both PTSD and anxiety disorders were examples of conditions that fell within the anxiety spectrum of disorders. He acknowledged there were differences between the disorders – and as Mr Cockburn pointed out, there are separate statements of principles for each condition – but suggested there was no practical difference so there was no utility in continuing with the appeal.
I think Mr Stoner is probably right, although I pointed out I was not provided with any expert medical evidence to that effect, and I did not have the assistance of a medical member on the Tribunal. It follows I do not know whether there are any practical differences between the two diagnoses that might create a problem for the applicant in his quest for a special rate pension. If it were established that such differences existed, the question of diagnosis would assume much more importance. I accept there is a dispute on the face of the medical evidence before the Board that could be agitated in the Tribunal in that event.
I think the applicant should have provided me with some (limited) medical or other evidence that would have illustrated the practical implications of relying on a diagnosis of anxiety disorder instead of PTSD. In the absence of that evidence, I am not persuaded there is any utility in re-instating the proceedings.
Conclusion
It is not appropriate to re-instate the proceedings. The application for re-instatement is refused.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 14 June 2012
Date(s) of hearing 16 May 2012 Solicitor for the Applicant Mr Cockburn Advocate for the Respondent Mr Stoner
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