Turner and Repatriation Commission (Veterans' entitlements)

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Turner and Repatriation Commission (Veterans' entitlements) [2021] AATA 3497 (28 September 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/6530

Re:Murray Turner

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:28 September 2021

Place:Brisbane

The Tribunal does not have jurisdiction to consider the applicant’s application lodged on 16 October 2020 for review of the decision of the Veterans’ Review Board dated 30 June 1995.

...............................[SGD].....................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – Disability pension – Practice and procedure – Time limitation for lodgement of application for review – Whether applicant lodged application for review within the prescribed time – Whether application for review lodged more than 12 months after applicant was furnished with decision of Veterans’ Review Board – Whether Veterans’ Review Board gave decision to applicant – Application lodged out of time – No jurisdiction to consider application – (CTH) Veterans’ Entitlements Act 1986 s 176(4) – (CTH) Administrative Appeals Tribunal Act 1975 ss 29(1)‑(2), (7) – (CTH) Acts Interpretation Act 1901 ss 28A, 29 – (CTH) Evidence Act 1995 ss 160(1), 163(1).

LEGISLATION

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

CASES

Capper v Thorpe (1998) 194 CLR 342

Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 47 ALD 555
Ralph v Repatriation Commission [2016] FCAFC 89
Re Bennett and Repatriation Commission (1994) 36 ALD 387
Re VCA and Australian Prudential Regulation Authority [2008] AATA 580
Repatriation Commission v Gordon (1990) 26 FCR 569
Gusdote Pty Ltd v Ashley [2011] FCA 250

Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 September 2021

INTRODUCTION

1.       On 16 October 2020, Mr Turner (“the applicant”) applied to this Tribunal for the review of a decision by the Veterans’ Review Board (“VRB”) made on 30 June 1995.[1] That decision of the VRB affirmed a determination dated 25 May 1994 that the applicant’s fractures of his right tibia and fibula were not related to his service.[2]

[1] Exhibit G, Bundle of Documents, p. 41.

[2] Exhibit G, Bundle of Documents, p. 45.

2.       It is not difficult to feel sympathy towards the applicant. The applicant was honest in making a statement that his fractures occurred off duty. I accept that he considers that his medical treatment was the cause of his disability. However, the VRB had evidence before it in the form of a report from a medical officer that the defence service of the applicant had not aggravated the condition of the applicant. On 26 May 1994, the applicant was advised of this report and that there was no evidence to contradict the report of the medical officer. That advice was provided to the applicant prior to him making his application to the VRB. The applicant had not filed any medical evidence before the VRB which contradicted this report of the…

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Details
Case
[2021] AATA 3497
Decision Date

CaseChat Overview and Summary

Turner and the Repatriation Commission were parties to a dispute concerning the lodgement of an application for review of a decision regarding a disability pension. The matter came before Deputy President McDermott of the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether the applicant had lodged their application for review within the time prescribed by the relevant legislation. Specifically, the Tribunal had to determine if the application was lodged more than 12 months after the applicant was furnished with the decision of the Veterans' Review Board, and whether the Veterans' Review Board had indeed provided that decision to the applicant.

Deputy President McDermott reasoned that the application for review was lodged out of time. Applying the provisions of section 176(4) of the *Veterans' Entitlements Act 1986* and sections 29(1)-(2) and (7) of the *Administrative Appeals Tribunal Act 1975*, the Tribunal found that it lacked jurisdiction to consider the application because it had not been filed within the statutory timeframe. The Tribunal's decision was based on the applicant's failure to meet the time limit for lodging the review application.

Orders

Orders of the court

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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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