Linton and Repatriation Commission [2000] AATA 11 (14 January 2000)

Last Updated: 21 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 11

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1998/1148

VETERANS APPEALS DIVISION )

Re GRAHAM LINTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 14 January 2000

Place Melbourne

Decision i) The condition of sarcoidosis was withdrawn from appeal at the Veterans Review Board. ii) The Tribunal does not have jurisdiction to consider the condition of sarcoidosis. iii) The Tribunal directs that this application be placed in the February 2000 Callover to be fixed for hearing in March 2000.

........Sgd. Mr J. Handley.......

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - jurisdiction - whether withdrawal of condition of sarcoidosis before Veterans' Review Board - whether Tribunal can review sarcoidosis - whether clear and unambiguous withdrawal - no jurisdiction.

Veterans' Entitlements Act 1986 ss 139 and 175.

Repatriation Commission v Stafford (1995) 38 ALD 193

REASONS FOR DECISION

14 January 2000 Mr J. Handley, Senior Member

1. This application concerns a preliminary issue with respect to the extent of the jurisdiction of the Tribunal to review a decision of the Veterans' Review Board ("VRB") made on 10 August 1998.

2. On 9 April 1996 the applicant appealed to the VRB against a decision of the respondent which refused an earlier application for acceptance of the conditions of asthma and sarcoidosis.

3. The respondent filed with the Administrative Appeals Tribunal ("the AAT") a transcript of the proceedings on 10 August 1998 before the VRB prior to the hearing of this preliminary argument. Mr Linton was represented at the VRB by Mr Richards, a Return Services League advocate. At page 2 of the transcript of the proceedings before the VRB the Presiding Member is recorded as having said-

"Today, Mr Linton, we are looking at two entitlement conditions, your asthma and sarcoidosis."

4. After noting that the respondent accepted that Mr Linton had rendered operational service and having asked Mr Richards to address the Board, Mr Richards is then recorded as having said-

"In regards to the sarcoidosis, I couldn't address the ....... principle and I would ask leave of the Board to withdraw."

5. The Presiding Member is then recorded as having responded-

"Okay. Well right, now the asthma."

6. Mr Richards then addressed the Board with respect to the condition of asthma. There is no other reference in the transcript of the proceedings before the VRB concerning sarcoidosis.

7. In its decision published on 10 August 1998 the VRB decided to-

"* consent to withdrawal of the claim for sarcoidosis; and

* affirm the decision under review with respect to asthma. This means the Repatriation Commission decision remains unchanged."

8. That decision furthermore recorded at page 4-

"Mr Richards for the veteran, sought to withdraw the appeal with respect to the claim for sarcoidosis and the Board consents to withdrawal of that claim."

9. This preliminary issue raised in argument before the AAT on 8 December 1999 was whether the AAT had jurisdiction to consider the condition of sarcoidosis. Mr DeMarchi appeared on behalf of Mr Linton. Mr Douglass appeared on behalf of the respondent. Mr Linton and Mr Richards gave evidence.

Graham Alexander Linton

10. Mr Linton said that it was his intention by making his application to the Repatriation Commission to have the condition of sarcoidosis accepted as being service related. He had claimed the condition of sarcoidosis on two occasions prior to the present application and on both occasions it had been rejected.

11. Mr Linton said that he recalled attending the VRB on the day of hearing and speaking with Mr Richards, his advocate. He recalled Mr Richards notifying the VRB Members that the claim for acceptance of sarcoidosis was withdrawn. Mr Linton said he had no recollection of the VRB Members asking him whether he was withdrawing the application. He said that there was no explanation given to him as to the effect of withdrawal of the condition. He said it was his intention to have that condition accepted by the respondent and it remains his wish that that condition be accepted. When asked how he would have reacted, had it been explained to him "clearly" the consequences of sarcoidosis being withdrawn, Mr Linton said-

"I think I would have liked to have that complaint assessed in conjunction with everything else." [Transcript p.6]

12. In cross-examination Mr Linton said that he could recall Mr Richards notifying the VRB that he was seeking leave to withdraw the condition of sarcoidosis. He said it did not occur to him then to object to Mr Richards withdrawing that condition because he "didn't think it was up to me to say anything to the Board of a technical nature and I was relying on Mr Richards to advance that for me" (Transcript p.7).

13. In his appeal notice to the AAT, the "Reasons for Application" are recorded as-

"The Veterans' Review Board erred in fact and in law by affirming the Repatriation Commission's decision, dated 29 November 1995, which determined that asthma was not service related".

Mr Linton said that he saw that document and read it before he signed it. He said the document was not "prepared" by him and that he was "guided" by his legal advisers. He said it did not occur to him to bring his wish to pursue sarcoidosis to the attention of his legal advisers, yet it was his wish to have that condition determined as part of the appeal process. When pressed on this issue it Mr Linton said he did not consult with his legal advisers until after the appeal notice to the AAT was lodged. (Apparently the applicant's solicitor, on instruction from Mr Richards, completed an AAT application and forwarded it to Mr Linton by post). He said he understood that the condition of sarcoidosis would be "judged concurrently" with the condition of asthma, yet he understood that both conditions were different and the effects upon him from both conditions were different. When Mr Linton acknowledged that he had applied on 2 previous occasions to the respondent to have sarcoidosis accepted, he said it was his "inexperience" which caused him to assume the sarcoidosis would be included as "part of the asthma claim".

14. Mr Linton acknowledged that he has read the decision of the VRB and said that he did not request his advisers to pursue sarcoidosis because he was "awaiting the outcome of this determination" (Transcript p.10).

15. Mr Linton was again pressed on the instructions he gave his legal representatives and on balance he said he believed that he had raised sarcoidosis but he could not recall his representatives' response. Mr Linton said, when asked why his solicitors would not have referred to sarcoidosis in his appeal to the AAT, that he was "in their hands" and concluded by saying "I'm sure I mentioned it to them" (Transcript p.11).

16. With respect to the discussions he had with Mr Richards at the VRB, Mr Linton said that he was advised that there were "some difficulties" in getting sarcoidosis accepted by the VRB. He said he accepted the advice of Mr Richards "that the sarcoidosis had some difficulties with it" (Transcript p.12) and whilst he could not recall the exact words used by him and Mr Richards prior to entering the VRB hearing room, Mr Linton agreed that the words probably used by Mr Richards would be in the nature of "you have got difficulties with the sarcoidosis, I propose to withdraw it, what do you reckon?" (Transcript p.12). Mr Linton said that he relied on the advice of Mr Richards he was prepared to accept that advice. When asked if he gave Mr Richards authority to withdraw the condition, Mr Linton said "if that's what I did, yes" (Transcript p13). When asked "...... the condition had been abandoned and you agreed with Mr Richards to abandon it at the time of the Veterans' Review Board hearing?" Mr Linton answered "that was the subsequent events of it, yes" (Transcript p.13).

17. In re-examination Mr Linton said from the moment he became aware that there were some difficulties as a result of the withdrawal of the sarcoidosis by his advocate at the VRB that he took all necessary steps to ensure that the matter was in fact part of the claim. Because he said he was "almost completely ignorant" of procedures concerning veterans' entitlements, Mr Linton said he relied on advice from his advocates and solicitors.

Edward Isaac Richards

18. Mr Richards is an advocate with the Return Services League and appeared on behalf of Mr Linton at the VRB proceedings.

19. Mr Richards said that he would only withdraw an application before the VRB upon agreement with his client. He said "agreement" would be achieved after he would suggest to a veteran that there should be a withdrawal and receiving permission to do so. He said he would not ever withdraw an application without specific permission or authority. Mr Richards said that he would expect that the VRB would explain to veterans the consequences of withdrawal, but he acknowledged that he would probably notify veterans that withdrawal of the condition would mean that the VRB would not consider that condition and that if it was sought to be accepted in the future there would need to be a new claim made.

20. In cross-examination Mr Richards said that the condition was withdrawn because on the information available to him immediately prior to the commencement of the VRB hearing he would not have been able to satisfy the relevant Statement of Principle. He said he was also denied access to Departmental files by reason of a Direction made by the VRB Registrar. He said that he has subsequently learnt of relevant dates that permit him to conclude that the applicant may well satisfy the relevant Statement of Principle, yet that information was not available to him at the time of the hearing.

Conclusion and Reasons for Decision

21. Section 175 of the Veterans' Entitlements Act 1986 ("the Act") permits veterans to appeal against decisions of the VRB to the AAT. It reads-

175(1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:

(a) of the decision of the Commission that was so affirmed;

(b) of the decision of the Commission as so varied; or

(c) of the decision made by the Board in substitution for the decision so set aside;

as the case may be.

22. In the present case the VRB reviewed part of a decision made by the respondent - that is, the part dealing with asthma - and also made a decision to "consent to withdrawal of the claim for sarcoidosis". In effect the VRB did not review the respondent's decision with respect to sarcoidosis because it decided to consent or permit the veteran to withdraw that part of the primary decision then under review.

23. It was the submission of the applicant upon the hearing in this preliminary argument that he did not clearly or unambiguously withdraw his condition for sarcoidosis.

24. In Repatriation Commission v Stafford (1995) 38 ALD 193 the Full Federal Court said at 202-

"The statement in the written application by Mr Stafford for review by the board of the decision "Rejection of claim for disability pension" in our opinion had in law the effect of imposing on the board the obligation to review each decision and determination concerning each condition of entitlement which the claim for pension proposed or the evidence before the commission suggested. In this case the claim proposed both of those conditions as war-caused diseases. That attracted, in relation to both conditions, the duty specified in s.139(2). Only a clear, unambiguous withdrawal by Mr Stafford of either condition from the scope of the review, which the board was satisfied was a withdrawal the effect of which Mr Stafford understood, could relieve the board of the duty."

25. In the Stafford application the veteran was unrepresented and did not appear before the VRB. The Full Court decided that the VRB had failed to make a decision with respect to two of the injuries which were the subject of a claim for disability pension. In effect, the Full Court found that there had been no "clear, unambiguous withdrawal" by the veteran of either of those conditions from the "scope of the review" which the VRB could be satisfied was a "withdrawal the effect of which (the veteran) understood".

26. I am satisfied that the circumstances of the present case are very different to those of Stafford. Mr Richards was the advocate for Mr Linton. He is an experienced, well-credentialled advocate who might not act upon "instructions" as lawyers might otherwise interpret that word but acts upon "agreement" reached with veterans prior to VRB proceedings commencing. The difference between these meanings for the purposes of the present proceedings is semantic. Mr Richards in fact does not withdraw conditions without "agreement" and always obtains permission from veterans before conditions are withdrawn (Transcript p.21). Additionally, as he said in evidence, whilst he would expect the VRB to explain the consequences of withdrawal to a veteran, Mr Richards does explain to veterans that the effect of a withdrawal amounts to the VRB not considering the withdrawn condition and veterans will have to claim again should they wish to pursue acceptance of it.

27. Mr Linton said that it did not occur to him to object during the hearing to the withdrawal by Mr Richards of the condition of sarcoidosis. He said it did not occur to him to bring to the attention of his legal advisers that the condition of sarcoidosis was not referred to in his appeal application to the AAT and he expected that the condition of sarcoidosis and asthma would be heard together on appeal to the AAT.

28. I found the evidence of Mr Linton to be unsatisfactory and at times evasive.

29. Because I am satisfied that Mr Richards is a witness of truth and did not withdraw the condition of sarcoidosis without the permission given to him by Mr Linton, I am satisfied and find as a fact that Mr Linton was aware prior to the VRB proceedings commencing that the condition of sarcoidosis would be withdrawn. I am satisfied also that that condition was withdrawn with Mr Linton's knowledge and his consent.

30. Mr Linton is an intelligent person who is versed in veterans' proceedings. He has claimed sarcoidosis on two occasions prior to the present application. On both occasions it was rejected. He was aware of the appeal mechanisms. I am satisfied as a fact that he knew by withdrawal of the condition of sarcoidosis that the VRB would not consider it and would make no finding as to whether it was a war-caused injury. That is the simple consequence of withdrawal of a condition from review before the VRB.

31. That Mr Linton would expect his legal advisers to pursue sarcoidosis yet at the same time not instruct them is beyond belief. Mr Linton was aware that the condition of sarcoidosis was not referred to in his appeal to the AAT and in those circumstances it is inconceivable that his solicitors could be expected to pursue that condition without his instructions. When the applicant's solicitors issued a Statement of Issues on 20 January 1999 - more than three months after the proceedings before the AAT commenced - the Statement of Issues did not refer to the condition of sarcoidosis at all. One of the issues before this Tribunal was whether the condition of asthma could be accepted as war-caused. Earlier in the text of that Statement there was a reference to the condition of sarcoidosis being withdrawn. Noting that the applicant said in evidence that he first gave instructions to his solicitors some time after the proceedings commenced I am not prepared to accept as a fact that eventually Mr Linton instructed his solicitors to pursue sarcoidosis. If he did, his solicitors would have pursued that illness or injury.

32. It was not until 25 May 1999 when the applicant's solicitors filed a Statement of Case where sarcoidosis was pleaded as being an injury that should be the subject of AAT proceedings. In that document there it is recorded at page 4-

"It is submitted that Mr Linton was acting on the advice of his advocate at the Veterans' Review Board as his advice to withdraw the claim for Sarcoidosis was made without knowing that the Board would hand down its decision associating the applicant's "Asthmatic Symptoms" to his condition of Sarcoidosis.

It is submitted that the claimed condition of Sarcoidosis was inappropriately withdrawn at the Veterans' Review Board and should be re-instated."

33. It is not known why this pleading first emerged some eight months after the proceedings before the Tribunal commenced. As to what is meant by "inappropriately withdrawn" and the condition of sarcoidosis being "re-instated is unclear, except that it may be a foreshadowing on the part of the applicant's solicitors that the VRB proceedings should be reopened and this condition brought to their attention by way of review.

34. The issue fundamentally however before this Tribunal is whether Mr Linton clearly and unambiguously withdrew his application for sarcoidosis before the VRB. I am satisfied and find as a fact that he did clearly and unambiguously withdraw that condition. I am also satisfied that Mr Linton understood the effect of withdrawal.

35. It follows therefore that the VRB was not required to review the condition because it was withdrawn. Mr Linton gave permission to his advocate to withdraw it and he remained mute when he heard his advocate withdraw it on his behalf. He did not protest to his advocate or to his solicitors with respect to the content of the appeal notice to the AAT and his explanation that sarcoidosis and asthma would be heard together as joint conditions defies belief.

36. In all of the circumstances I am satisfied that this Tribunal does not have jurisdiction to consider the condition of sarcoidosis because I am satisfied that that condition was withdrawn at the VRB.

37. I am also satisfied that the Members of the VRB were able to satisfy themselves with respect to "all matters relevant to the review" pursuant to s.139(2) of the Act. They were entitled to rely on the representations made by Mr Richards acting on behalf of Mr Linton. Mr Richards is an advocate who would be well known to them and was a person who did - consistent with his evidence at this Tribunal - have the permission or agreement of his client to withdraw that condition.

38. I direct that this application be placed in the list of cases awaiting callover in February 2000 and, subject to the availability of witnesses, be fixed for hearing in March 2000.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: ....Carolyn Irons ..........................................

Secretary

Date/s of Hearing 17 November 1999 & 8 December 1999

Date of Decision 14 January 2000

Counsel for the Applicant Mr DeMarchi

Counsel for the Respondent Mr Douglass