Williams and Defence Force Retirement and Death Benefits Authority
[2004] AATA 921
•2 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 921
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/455
GENERAL ADMINISTRATIVE DIVISION ) Re GEOFFREY CLYNTON WILLIAMS Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President DG Jarvis, Mr DJ Trowse and Dr ET Eriksen, Members Date2 September 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
DG Jarvis
(Signed)
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2003/455
GENERAL ADMINISTRATIVE DIVISION )Re: GEOFFREY CLINTON WILLIAMS
Applicant
And: DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
CORRIGENDUM TO DECISION [2004] AATA 921
TribunalDeputy President Jarvis
Date of Decision 2 September 2004
Date of Corrigendum 27 September 2004
PlaceAdelaide
Corrigendum:
That the second sentence in paragraph 24 be amended by deleting the fourth word “he” and replacing that word with “it”, so that the sentence reads as follows:
“In that way it would have been able to check whether the classification remained appropriate.”
D G Jarvis
(Signed)Deputy President
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY – classification of disability – extension of time for lodgement of application for reconsideration – provision of suitable explanation for delay – merits of application for reconsideration – any prejudice to respondent in granting extension of time – not aware of appeal rights - decision under review affirmed.
Defence Forces Retirement Benefits Act 1948 (Cth)
Defence Force Retirement and Death Benefits Act 1973 (Cth), s 99
Lucic v Nolan (1982) 45 ALR 411
Case X52 (1990) 90 ATC 406
Hughes v National Trustees Executors & Agency Co of Australia Ltd (1978) VR 257
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jackamarra v Krakouer and Another (1998) 195 CLR 516
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Brown v Federal Commissioner of Taxation [1999] FCA 563
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 46 FCR 235
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
REASONS FOR DECISION
2 September 2004 Deputy President DG Jarvis, Mr DJ Trowse and Dr ET Eriksen, Members
1. Geoffrey Williams is a Vietnam veteran. He served in the Australian Army from 2 April 1968 to 5 August 1970, when he was discharged as medically unfit. On 18 September 1975 the Defence Force Retirement and Death Benefits Authority (the “Authority”) decided pursuant to s 53(1) of the Defence Forces Retirement Benefits Act 1948 (Cth) (the “Act”), to maintain at Class C Mr Williams’ entitlement for pension purposes. Many years later, Mr Williams became aware of his rights to request a reconsideration of this decision, and on 26 February 2003, his solicitors applied for an extension of time in which to request a reconsideration. The Authority decided on 28 March 2003 not to grant his application. That decision was confirmed on reconsideration by the Authority on 25 July 2003, and Mr Williams has applied to the Tribunal for review of the decision to confirm the rejection of the application for an extension of time.
2. It should be noted from the outset that this matter was heard in conjunction with matter number S2002/258 in this Tribunal which involves the same parties. That matter involved an application by Mr Williams to review a decision of the Authority to reclassify him as Class A with effect from 26 June 1999. The Tribunal decided on 18 August 2004 to vary the decision of the Authority by deciding that the reclassification to Class A should have effect from 17 November 1992, instead of 26 June 1999. At the outset of the hearing of this matter, the parties agreed that the evidence in each of the matters in this Tribunal was evidence in the other. As Mr Williams’ history and the facts relevant to these claims have been detailed in the Tribunal’s decision in the other matter, that material is not repeated in this decision. We will, however, refer to the events that occurred between Mr Williams’ discharge on 5 August 1970 and 18 September 1975, when the Authority decided that the applicant should remain classified as Class C for pension entitlement purposes. Such a classification renders no entitlement to pension benefit.
3. Mr Williams was discharged on the basis that he was medically unfit due to a gross personality disorder (which we think has since been more correctly diagnosed as post-traumatic stress disorder). After his discharge the Defence Forces Retirement Benefits Board (the “Board”) determined under s 51 of the Act that his degree of incapacity to undertake civil employment was Class B effective from 6 August 1970. At that time, veterans with that classification were entitled to an invalidity pension at the annual rate of $865.
4. On 3 July 1972 and 16 July 1973, delegates of the Board reviewed Mr Williams’ invalidity classification under s 53 of the Act and determined that his degree of incapacity should continue at Class B.
5. Mr Williams’ pension was suspended on 28 February 1975 under s 53B of the Act on account of his failure to attend a medical examination by a psychiatrist. On 29 May 1975, the suspension was formalised by the Committee of Alternates, effective from 28 February 1975. On that same occasion, the Committee also saw fit to reclassify the degree of incapacity as Class C. The basis of the decision to adjust the classification remains unclear. In a letter dated 17 June 1975, which was posted to the applicant at his South Australian address, the Board advised of the suspension and reclassification and, also adverted to the possibility of requesting a review of his classification if he should experience a significant deterioration in his condition.
6. The Tribunal finds that Mr Williams moved from Adelaide to Brisbane in early 1975 and that, because of this, he had not received notification requiring his attendance at a medical examination, or the Board’s letter of 17 June 1975.
7. On 19 June 1975, the Board received a copy of a letter mistakenly forwarded by Mr Williams to the Department of Social Security. In that letter, he advised his change of address and the non-receipt of his latest pension cheque. Additionally, he said he believed he would be due for another review, and asked if there was someone in Queensland whom he could see regarding his pension (T26, page 35). In reply, the Board wrote to Mr Williams on 15 July 1975 enclosing a copy of its letter of 17 June 1975 and advising that arrangements were being made by the Director of Health, Brisbane, for a specialist examination.
8. Mr Williams was examined by Dr G Murphy, a specialist psychiatrist, in Brisbane on 12 August 1975. In his Medical Officer’s Report, Dr Murphy considered that Mr Williams’ percentage of incapacity in relation to civil employment was “Present 30%, Long Term 30%”. Notwithstanding the opinions expressed by Dr Murphy, the Committee of Alternates resolved on 18 September 1975 that Mr Williams’ incapacity in relation to civil employment was 25% and that his classification remained Class C. The Committee’s decision was conveyed to Mr Williams by a letter dated 22 September 1975 reading as follows (T38, page 56):
“Mr. G.C. Williams,
1/29 Yeronga Street,
YERONGA, QLD. 4104.Dear Sir,
Following your recent medical examination by the Specialist, Dr. Murphy, the full circumstances of your case have now been reviewed by the D.F.R.D.B. Authority, which determined that you should remain classified as Class “C”. This means that you continue to have no entitlement to pension benefit.
Should you experience a significant deterioration in your medical condition you should notify this Office in order that arrangements may be made for a further review of your invalidity classification.
Yours faithfully.
(B.A. LORENZ)
Secretary”
9. In a letter dated 19 December 2002, Swan Lawyers, on Mr Williams’ behalf, requested reconsideration of the decision of the Committee of Alternates taken on 18 September 1975. The letter included a statement that, when Mr Williams first sought advice in respect of his entitlements in 1999, he was advised by the case officer employed by the Authority that an appeal could only be made within 12 months and that no advice was provided regarding the possibility of seeking an extension of time for appeal. As mentioned above, Mr Williams’ solicitors applied on 26 February 2003 for an extension of time in which to request the reconsideration, but on 28 March 2003 the Authority decided, as a primary decision under s 99 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the “1973 Act”), not to allow an extension of time in which to request reconsideration of the Committee of Alternates’ decision of 18 September 1975. The Authority confirmed that decision on 25 July 2003. It is the decision of 25 July 2003 that is the subject of this review.
10. In considering the discretion contained within sub-section 99(2) of the 1973 Act, the Tribunal commences with an acknowledgment that the prima facie rule is that proceedings started outside the prescribed period of 30 days will not be entertained: Lucic v Nolan (1982) 45 ALR 411. However, it also notes the statement of Gray J in Case X52 (1990) 90 ATC 406 at 409 that “obviously delay is not an automatic bar, or there would be no point in the existence of a statutory discretion to allow the doing of an act outside the statutory time limit”.
11. The discretion conferred on the Authority, and also this Tribunal standing in the shoes of the Authority, is in unrestricted terms, and no indication is given as to the matters which should be considered. It has been decided that the discretion to extend time is provided for the sole purpose of ensuring that justice is done: see Hughes v National Trustees Executors & Agency Co of Australia Ltd (1978) VR 257 at 262, and also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where Dawson J stated, at 544:
“The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”
In summary, the above authorities lead to the conclusion that the discretion should only be exercised in favour of the applicant in this matter upon proof that strict compliance with the limiting legislation will provide a result that is unfair and inequitable to the applicant and where the granting of such an extension would not cause significant prejudice to the respondent.
12. In Jackamarra v Krakouer and Another (1998) 195 CLR 516, Kirby J considered the question of what principles should have application to procedural time defaults. His Honour summarises the relevant principles as follows (and references to authorities have been omitted).
“[66] I take the following principles to apply:
1. The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in a very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case … This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances … .
2. Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that “special reasons” or “special circumstances” be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary … But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application … Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred.
3. Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules … [T]he requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party’s appellate rights.
4. The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. ... However, this is basically because to grant it would be futile.
…”
His Honour then went on to refer to changing judicial attitudes to the grant of an indulgence under procedural rules of court.
13. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, Wilcox J also enunciated guidelines for the exercise of a discretion to extend time. These guidelines include the proposition that a distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision and a case where the decision-maker was allowed to believe that the matter was finally concluded.
14. The imprudent adoption of rules in the determination of extension of time applications was further discussed by Hill J in Brown v Federal Commissioner of Taxation [1999] FCA 563. His Honour referred to the Hunter Valley case and commented at [41]: “Too slavish an adherence to them [ie the guidelines referred to in the Hunter Valley case] should, in my view, be avoided.” His Honour also pointed out that the Hunter Valley guidelines were not intended to be exhaustive, and made reference to another relevant issue, namely the length of delay.
15. In the particular circumstances of the current proceedings, the following factors, in the opinion of the Tribunal, are those most relevant to the resolution of the matter:
· the provision of a suitable explanation for the delay;
· whether Mr Williams made the Board or the Authority aware that he contested the finality of the decision of 18 September 1975 to reclassify him as Class C (that is, did he rest on his rights);
· whether an extension of time is necessary to enable the Act to be applied fairly and justly in Mr Williams’ case;
· the merits of the application for reconsideration;
· the length of Mr Williams’ delay; and
· any prejudice to the respondent that would be caused by granting the extension of time.
16. As to the first of these factors, the prime submission of counsel for Mr Williams was that, until advised by the case officer in 1999, Mr Williams was not aware of his right to request a reconsideration of the decision made by the Committee of Alternates on 18 September 1975. Although initially there was some uncertainty about this, the Tribunal is satisfied from the evidence before it that the applicant did receive the Board’s letter of 22 September 1975 advising Mr Williams of the continuation of his classification as Class C. However, this letter was of no assistance in acquainting him with his review rights. As at September 1975, ss 99 to 101 of the 1973 Act provided in effect that a person affected by a decision of the Authority who was dissatisfied with that decision could, within 30 days of notification of that decision or in such time as the Authority allowed, seek an internal reconsideration, and within 90 days of receiving the reconsideration decision, a dissatisfied person could also seek a further review by one of two independent tribunals. Apparently, it was not, at that time, the practice of the respondent to provide that kind of information to claimants. The fact that this absence of disclosure has since been rectified supports the Tribunal’s view that Mr Williams was disadvantaged in not having his review rights brought to his attention by the Board in September 1975. As to the period after 1999 and until advised to the contrary by his solicitor in October 2001, the ability to request an extension of time was unknown to Mr Williams. Once he was told of this right, his solicitors proceeded to lodge his applications for both reconsideration and an extension of time.
17. On the basis of the evidence tendered to it, the Tribunal accepts the facts recited in the applicant’s above submission. More importantly, the Tribunal is satisfied that the reason for the delay is adequately explained by Mr Williams not being informed of his appeal rights and thus not being in a position to exercise those rights. The Tribunal is further satisfied that his ignorance of his rights persisted until at least 1999.
18. The issue of merit would also indicate that the discretion to extend time should be exercised in favour of Mr Williams. The Tribunal begins with a recording of the concession by the respondent that the application under consideration was neither frivolous nor vexatious. In references of this kind, an applicant will meet the merit test if he is able to demonstrate an arguable case: see decision of von Doussa J in Windshuttle v Deputy Federal Commissioner of Taxation (1993) 46 FCR 235. The evidence of the applicant as to the state of his mental health and its effect on his employment at the relevant time, together with the medical reports of Dr Murphy and Dr R Steele, the applicant’s then treating psychiatrist, is, in the Tribunal’s opinion, sufficient to show that the applicant has an arguable case.
19. The application of other guidelines, however, suggests that it would not be appropriate to exercise the Tribunal’s discretion in favour of Mr Williams. Mr Williams did not give the Board or the Authority any indication that he sought a review of the primary decision until nearly 28 years after it had been made. The delay is very substantial.
20. In addition, the delay in the making of an application will undoubtedly add to the difficulties of ascertaining the factual circumstances that existed at the date of the primary decision. After such a long lapse in time, the Authority may be denied the opportunity to investigate the claim, witnesses may not be available and those that are may have a scant memory of past events. Indeed, it may be that the paucity or unreliability of the available evidence is such that the decision-maker may not be in a position to make a reasonable decision on the merits of the application.
21. The Tribunal has taken into account that in the present matter there is a reasonable amount of information currently available to the decision-maker. The information available includes:
· a complete set of medical records supplied by the Department of Defence;
· records of admissions and treatment at the Repatriation General Hospital from 1972 onwards;
· the medical assessment by Dr Murphy on 12 August 1975;
· the evidence given by the applicant in matter number S2002/258 in this Tribunal, which includes his evidence as to his condition and employment history since his discharge from the armed forces, and some documentary evidence of that employment history in the form of group tax certificates; and
· the medical reports and evidence of Dr Roberta Steele, a psychiatrist involved in the applicant’s treatment, John Condon, Professor of Psychiatry and Director of Psychiatry at Repatriation General Hospital, and Dr J Gill, a consultant psychiatrist.
22. The Tribunal is also mindful that the fact that the applicant was actually employed is not determinative of his percentage of incapacity for civil employment, although this is a relevant factor for the Authority to consider when determining the applicant’s percentage of incapacity (see Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156). However, with the exception of the medical assessment by Dr Murphy on 12 August 1975, there is virtually no contemporaneous assessment made by any treating or consultant doctor after that date which addresses Mr Williams’ capacity to undertake civil employment during the period from 18 September 1975 until 17 November 1992 (being the effective date of the reclassification to Class A determined by this Tribunal in the related proceedings).
23. The respondent did not adduce evidence that it would be prejudiced by the delay, but as mentioned above, the delay in this matter has been very substantial. It is reasonable to infer that this will have caused prejudice to the respondent. Further, on the evidence before it, the Tribunal is satisfied that the condition suffered by the applicant fluctuated markedly during the period 1975 onwards. As Dr Steele stated, the applicant experienced good and bad patches. Indeed, it seems probable that those variations resulted in some interchanging between the classifications set by the DFRDB Act. To set the respondent the task of determining those movements since 1975 is unrealistic and would place it at a significant disadvantage. As Professor Condon said:
“I mean, you know it is hard enough to assess disability cross-sectionally in the here and now when the patient is in front of you but to try and go back 20/30 years and say well: how disabled was somebody 20 or 30 years ago, is very difficult.” (transcript 23.9.03, page 79, line 14).
In the Tribunal’s view the prejudice to the respondent outweighs the combination of the factors referred to in paragraphs 16 to 18 above.
24. As to the overall issue of justice as between the parties, the Tribunal notes further that if Mr Williams had applied promptly for reconsideration of the decision of 18 September 1975, and if that reconsideration had resulted in him being reclassified as Class B, the Board or Authority would have been able to arrange for him to be medically reassessed from time to time (as indeed had happened after his discharge and prior to 18 September 1975). In that way he would have been able to check whether the classification remained appropriate. Mr Williams’ delay has prevented this. From Mr Williams’ point of view, he was advised by the letter of 22 September 1975 that he could notify the Board if his medical condition significantly deteriorated in order that arrangements might be made for a further review of his invalidity classification. Regrettably Mr Williams did not do this, even though from his medical history, there may well have been periods when it would have been appropriate for him to have done so. In the circumstances of the present matter, there was, therefore an alternative way for Mr Williams to have arranged for the Board or Authority to have reconsidered his entitlement, notwithstanding that he had not sought reconsideration of the decision of 18 September 1975. In the Tribunal’s opinion, from a practical point of view, these considerations counter-balance the matters referred to in paragraphs 16 and 17 above, even though the statutory right of reconsideration is, of course, a distinct legal right which Mr Williams was not informed of at the time.
Decision
25. For the above reasons, the Tribunal, in accordance with s 43 of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
I certify that the 25 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President DG Jarvis and Mr DJ Trowse and
Dr ET Eriksen, MembersSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 23 and 24 September 2003, 7 November 2003 and 6 April 2004
Date of Decision 2 September 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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