Tyshing and Military Rehabilitation and Compensation Commission (Compensation)
[2025] ARTA 35
•22 January 2025
Tyshing and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 35 (22 January 2025)
ReviewNumber: 2024/5903, 2024/5904, 2024/5905, 2024/5906
Applicant/s: Eileen Tyshing
Respondent: Military Rehabilitation and Compensation Commission
Tribunal Numbers: 2024/5903, 2024/5904, 2024/5905, 2024/5906
Tribunal:Senior Member A. George
Place:Adelaide
Date:22 January 2025
Decision:The Tribunal does not have jurisdiction to review the application.
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Senior Member A. George
Catchwords
Compensation – military compensation – deceased veteran – whether widow has standing a personal representative – Tribunal not satisfied that Mrs Tyshing is a valid claimant – no jurisdiction.
Legislation
Safety Rehabilitation and Compensation (Defence-Related Claims) Act 1988
Cases
Anderson v Egan (1905) 3 CLR 269
Bates v Secretary, Department of Education [2016] AATA 250
Braybrook v Military Rehabilitation and Compensation Commission [2010] AATA 1072
Cooper v Military Rehabilitation and Compensation Commission [2017] AATA 429
Guganovic v Military Rehabilitation and Compensation Commission [2019] AATA 4309
Hubbard v Military Rehabilitation and Compensation Commission [2009] AATA 363
Loder v Military Rehabilitation and Compensation Commission [2004] AATA 1021
May v Australian & Overseas Telecommunications [1994] AATA 72
Mason v Comcare [2000] AATA 138Statement of Reasons
Mr Donald Tyshing was a veteran. He married Mrs Eileen Tyshing in 1969, before serving in the Royal Australian Air Force for over three decades. Mr Tyshing died in August 2022 of hypostatic pneumonia.
In January 2022, before Mr Tyshing died, he lodged a claim for compensation under the Safety Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (‘DRCA’). The claimed conditions are diabetes, dementia, Parkinson’s disease, and a stroke.
The Respondent denied the claim in July 2023 and affirmed its decision, following a request for reconsideration, in July 2024.
In August 2024, Mrs Tyshing applied to the Tribunal for a review of the July 2024 decision. The issue for the Tribunal is whether Mrs Tyshing had standing to make that application.
Under section 64 of the DRCA, a claimant may make an application to the Tribunal for a review the July 2024 decision. The claim may be made by a deceased’s personal representative under section 55(1) of the DRCA, having regard to the definition of a claimant under sub-sections 4(1) and (11).
Mrs Tyshing submits that she is Mr Tyshing’s personal representative. Mrs Tyshing has not been able to locate a relevant and valid will. She has not applied for letters of administration.
The Respondent submits that a personal representative is a person who stands in the place of the deceased with respect to their personal estate, prima facie being an executor or administrator of an estate, consistent with the reasoning of Griffith CJ in Anderson v Egan.[1] The Respondent submits that it is not evident that Mrs Tyshing is indeed her late husband’s personal representative and, therefore, the Tribunal does not have jurisdiction to consider the application.
[1] (1905) 3 CLR 269, 274.
Mrs Tyshing has listed a series of authorities in support of the contention that Mr Tyshing’s claim has survived pursuant to sub-section 55(2) of the DRCA.[2] The Tribunal has considered these cases, all of which are factually distinguishable from the present matter. The Tribunal is not persuaded by the obiter dictum contained in paragraphs [56]-[57] of Bates v Secretary, Department of Education and, in any event, it tends to support the Respondent’s contentions. The Tribunal further observes:
(a)In Cooper v Military Rehabilitation and Compensation Commission, a widow of a veteran had standing as the applicant. However, the reasoning at paragraphs [8]-[9] is opaque as to the basis upon which the applicant in that matter was the personal representative of the deceased.
(b)In Loder v Military Rehabilitation and Compensation Commission, the applicant was acting under a power of attorney.
[2] May v Australian & Overseas Telecommunications [1994] AATA 72; Mason v Comcare [2000] AATA 138; Loder v Military Rehabilitation and Compensation Commission [2004] AATA 1021; Hubbard v Military Rehabilitation and Compensation Commission [2009] AATA 363; Braybrook v Military Rehabilitation and Compensation Commission [2010] AATA 1072; Bates v Secretary, Department of Education [2016] AATA 250; Cooper v Military Rehabilitation and Compensation Commission [2017] AATA 429; Guganovic v Military Rehabilitation and Compensation Commission [2019] AATA 4309.
For the Applicant to have standing in this matter, the Tribunal must be reasonably satisfied that Mrs Tyshing is the personal representative of the late Mr Tyshing. That a person is a widow does not automatically make them a personal representative, nor does it create any form of rebuttable presumption.
The Tribunal is not satisfied that Mrs Tyshing is the personal representative of the late Mr Tyshing in the absence of a relevant will, letters of administration, a power of attorney, or any other evidence that Mrs Tyshing stands in the place of the deceased with respect to his personal estate. In making this finding, it is not necessary for the Tribunal to engage with the submissions regarding the role of the State Trustee in Victoria or any other analogous body.
Accordingly, the Tribunal is not satisfied that Mrs Tyshing is a valid claimant. Therefore, the Tribunal does not have jurisdiction to review the application.
Finally, the Tribunal notes that it may be possible for Mrs Tyshing to obtain letters of administration or other evidence that she stands in the place of the deceased with respect to his personal estate. Should she do so promptly, and not rest on her rights, she may seek to file a new application and seek an extension of time from the Tribunal.
DECISION
The Tribunal does not have jurisdiction to review the application.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. George
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Associate
Date of Decision:
22 January 2025 Date of Hearing: On the papers Representative for the Applicant: Mr Jorgensen of RSL Victoria
Solicitor for the Respondent: Australian Government Solicitor
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