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

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…

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.

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Details

Case: [2021] AATA 3497
Decision Date: 28 September 2021

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