Webb and Repatriation Commission

Case •

[2000] AATA 538

•

3 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 538

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1997/993

GENERAL ADMINISTRATIVE DIVISION          )          
           Re        Mark Raymond Webb  
  Applicant
           And      Repatriation Commission       
  Respondent

DECISION

Tribunal       Mr RP Handley, Senior Member  

Date3 July 2000   

PlaceSydney

Decision      The Tribunal has no jurisdiction to grant the relief sought by the Applicant.

(Sgd) Mr R P Handley  ..............................................
  Senior Member
CATCHWORDS
Veterans' Affairs – disability pension – general rate - jurisdiction – refusal of claim by Repatriation Commission – affirmed by Veterans' Review Board – assessment decisions of Repatriation Commission set aside by Veterans' Review Board – estoppel -  settlement negotiations

Administrative Appeals Tribunal Act 1975, s42C
Veterans' Entitlements Act 1986

Re Lombardo and Commonwealth of Australia (1985) 8 ALD 334
Re Higginbotham and Repatriation Commission (1994) 35 ALD 179

REASONS FOR DECISION

Mr RP Handley, Senior Member  

  1. This decision concerns a jurisdictional issue raised in connection with an application by Mark Webb ("the Applicant") for a review of a decision of the Veterans' Review Board ("the VRB") dated 25 March 1997, first, to affirm a decision of a delegate of the Repatriation Commission ("the Respondent") dated 25 August 1995 to refuse the Applicant's claim in respect of chronic fatigue syndrome, and second, to set aside the assessment decisions made by a delegate of the Respondent on 12 January 1996 and substitute a decision that the disability pension payable to the Applicant should be paid at 90% of the General Rate from 23 October 1995 and at 100% of the General Rate from 1 May 1996.

  2. At a telephone directions hearing held on 5 June 2000, Christian Vincent, counsel for the Applicant, and Rhonda Henderson, counsel for the Respondent, agreed that the Tribunal might make a decision on this jurisdictional issue on the basis of written submissions from the parties without a hearing of the matter.  Having examined the parties' written submissions, the Tribunal decided to follow this course.

  3. A hearing of the original application was listed for 20 and 21 May 1999.  On 17 May 1999, the Applicant's solicitors telephoned the Tribunal with advice that the matter had been settled.  The Tribunal confirmed this with the Respondent's advocate.  On 19 May 1999, the Applicant's counsel, Mark Vincent, confirmed that the matter had been settled and informed the Tribunal that he would be drafting the terms of settlement.  Having spoken with the Respondent's advocate, the Tribunal vacated the hearing.  Subsequently, the parties were unable to agree on written terms of settlement.

  4. The Tribunal held a directions hearing on 6 July 1999 at which the Applicant's Counsel, Mark Vincent, submitted that there had been agreement between the parties on all major issues and that the Respondent should be estopped from denying that agreement.  The Tribunal encouraged the parties to resolve the matter, indicating that it questioned whether it had jurisdiction to deal with an issue of estoppel in such a case, and arranged for the matter to be relisted for hearing at a later date.

  5. On 29 July 1999, following a review under section 31(6) of the Veteran's Entitlements Act 1986, the Respondent revoked determinations that the Applicant's irritable bowel syndrome, chronic anxiety and post-traumatic stress disorder were defence-caused, with effect from that date.

  6. There followed a series of telephone directions hearings as a result of which the Applicant filed and served affidavits by his solicitor, Colin Campbell, and his counsel, Mark Vincent, together with written submissions from the parties as to the jurisdictional issue which is the subject of this decision.
    APPLICANT'S SUBMISSION

  7. The Applicant submits that the Respondent's conduct in the few days immediately before the listed hearing in May 1999 gave rise to an estoppel so that the Respondent was precluded from denying that an agreement had been concluded.  In particular, the Applicant contends that the Respondent's verbal concessions and fax of 20 May 1999 (containing minor amendments to draft terms of settlement prepared by Mr Vincent) constituted:

"…perfectly clear representations made by the Respondent's officers to the
Applicant's legal representatives that the Applicant's entitlement to be paid special rate was not contested."

  1. The Applicant contends that, as a result, the Applicant was entitled to assume there was a concluded agreement that he was to be paid special rate, and, in vacating the hearing, the Applicant acted to his detriment.  Moreover, the Respondent acquiesced in the vacation of the hearing date:

    "…and, further, by carrying out a review of a previously accepted disability, the Respondent brought a further detriment upon the Applicant which would not have occurred but for the vacation of the hearing."

  1. The Applicant notes that the Respondent does not deny the making of the concession although refusing to sign a document to enable the Tribunal to give effect to the concession.  The Applicant submits that the Tribunal "should not countenance such conduct and should act upon and give effect to the concession made by the Respondent", which led to the vacation of the hearing on 20 and 21 May 1999.
    RESPONDENT'S SUBMISSION

  2. The Respondent submits that the powers of the Tribunal in relation to applications for review of decisions are those set out in sections 42A, 42B, 42C, 42D and 43 of the Administrative Appeals Tribunal Act 1975 ("the Act"). The relevant section in the present case is section 42C which empowers the Tribunal to exercise its discretion to make a decision in accordance with written terms of settlement signed by the parties and lodged with the Tribunal.

  3. The Respondent emphasises that the existence of a written document setting out the terms of the agreement, signed by or on behalf of the parties and lodged with the Tribunal is a vital pre-condition to the operation of section 42C.

  4. The Respondent submits that the Tribunal has no power to conduct an inquiry into settlement negotiations which took place between the parties in May 1999 and that it would be acting ultra vires  if it did so.
    CONSIDERATION OF THE LAW

  5. As the Respondent has submitted, the powers of the Tribunal on an application for the review of a decision are those set out in the Act. The relevant section in the case of decisions by consent is section 42C:

    "(1)  If, at any stage of a proceeding for a review of a decision:

    (a)  agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be accepTabel to the parties (other than an agreement reached in the course of a mediation under section 34A); and
    (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
    (c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;

    the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
    (2)  If the agreement reached is to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
    (3)  If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates."

  1. This section provides a discretion for the Tribunal to make a decision in accordance with terms agreed by the parties, without holding or completing a hearing, if certain conditions are satisfied. In particular, section 42C(1)(b) requires that the terms of the agreement must be "reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal". That this requirement must also be satisfied is implicit in the decisions of the Tribunal in Re Lombardo and Commonwealth of Australia (1985) 8 ALD 334 at 336, and Re Higginbotham and Repatriation Commission (1994) 35 ALD 179 at 184.

  2. In the Tribunal's view, it has no power to act on an estoppel such as that which the Applicant has submitted arises in this case.  While the Tribunal acknowledges the frustration for the Applicant to which the Respondent's conduct in the pre-hearing negotiations gave rise, this is not something which can influence the Tribunal's decision.  The Tribunal has no power to grant the relief sought by the Applicant.

  3. The Tribunal notes that a person may complain to the Commonwealth Ombudsman in respect of matters which the person alleges involve maladministration by a Commonwealth department or agency.

    I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of RP Handley, Senior Member

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  Written submissions only
    Date of Decision  3 July 2000
    Counsel for the Applicant        Christian Vincent  
    Counsel for the Respondent    Rhonda Henderson

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