Sleep and Repatriation Commission [2011] AATA 349 (25 May 2011)

Last Updated: 16 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2011/0254, 2011/0256,
VETERANS' APPEALS DIVISION ) 2011/0257 and 2011/0258

Re

KENNETH JOHN SLEEP

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 25 May 2011

Place Adelaide

Decision

The Tribunal declines to review the issues raised by the within applications that have previously been determined by earlier proceedings in this Tribunal, and dismisses the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

D G Jarvis
... [Signed] ...
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – veteran in receipt of pension at the special rate and invalidity service pension - review of decisions to vary service pension - earlier proceedings in tribunal relating to same issues - no reasonable prospect of success - held that applicant not permitted to revisit same issues – applications dismissed under s 42B of Administrative Appeals Tribunal Act 1975 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth), s 42B

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 51(xxxi)

Veterans’ Entitlements Act 1986 (Cth), ss 24, 37, 37N and 56D

Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226

Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198

Re Sleep and Repatriation Commission [2008] AATA 1100

Re Sleep and Repatriation Commission [2008] AATA 1101

Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366

Sleep v Repatriation Commission [2009] FCA 472

Sleep v Repatriation Commission [2009] FCA 1413

REASONS FOR DECISION

25 May 2011

Deputy President D G Jarvis

1. The applicant, Kenneth John Sleep, is a veteran who served in the Australian Army from July 1968 to July 1970, after being called up for National Service. He had operational service in Vietnam from November 1968 to May 1970. At all times material to the issues raised in the within proceedings, he was in receipt of an invalidity service pension under Part III of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act), and also pension at the special rate provided for in Part II, s 24 of the VE Act.
2. He has instituted proceedings in this tribunal to review a decision made on 15 December 2010 by a delegate of the respondent Repatriation Commission (the Commission) to affirm five prior primary decisions made by delegates of the Commission. Later, he also instituted separate proceedings, being matter number 2011/0822 in this tribunal, applying to review a further decision made by a delegate of the Commission on 30 March 2010 (which decision is referred to in the index to the section 37 documents as “Decision 6”).
3. The Commission raised issues of jurisdiction in respect of three of the six applications referred to in the preceding paragraph. For reasons provided orally, I decided that the tribunal had no jurisdiction in two of the proceedings instituted by Mr Sleep, namely matter number 2011/0822, to which I referred above, and matter number 2011/0255 relating to a telephone discussion on 12 March 2010 (which is referred to as “Decision 2”). I am satisfied that I have jurisdiction to determine the remaining four matters, and the Commission accepted this position.
4. However, the Commission also applied to dismiss the remaining four matters on the grounds that they raise issues that were previously the subject of proceedings in this tribunal which were decided by Member Short adversely to Mr Sleep. Appeals to the Federal Court against these decisions were dismissed. The Commission accordingly contends that Mr Sleep should not be permitted to in effect re-litigate the same issues in the present matters. The Commission contends further that the proceedings should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the grounds that they have no prospect of success.
5. The four remaining matters now before me arise out of the Commission’s primary decisions as follows.

(a) Matter number 2011/0254 in this tribunal relates to a decision of a delegate of the Commission made on 7 March 2010 (Decision 1), whereby the Commission decided to increase Mr Sleep’s pension after re-assessing the value of certain shares.

(b) Matter number 2011/0256 in this tribunal relates to a decision of a delegate of the Commission made on 12 March 2010 (Decision 3), whereby the Commission decided to update the value of a property at Croydon said to be owned by Mr Sleep, and to assess his invalidity service pension under the assets test instead of the income test. Mr Sleep was advised that the Commission would defer the inclusion of the revised property value for up to three months to allow him time to commence making alternative arrangements for financial support.

(c) Matter number 2011/0257 in this tribunal relates to a decision made by a delegate of the Commission on 24 May 2010 (Decision 4) to re-assess Mr Sleep’s invalidity service pension with effect from 1 June 2010, to take into account certain investments previously owned by his late wife, which had been transferred into his name.

(d) Matter number 2011/0258 in this tribunal relates to a decision made by a delegate of the Commission on 2 December 2010 (Decision 5) to reduce Mr Sleep’s invalidity service pension with effect from 8 December 2010 in consequence of assessing his pension under the assets test.

ISSUES BEFORE THE TRIBUNAL

6. The issues before me are accordingly:

(a) whether the matters raised in the present proceedings have already been determined in the earlier proceedings to which I have referred above, and whether in consequence I should not permit the same issues to be re-agitated in the present proceedings; and

(b) whether in the alternative, I should dismiss the proceedings pursuant to s 42B of the AAT Act on the grounds that they have no prospect of success.

LEGISLATIVE PROVISIONS

7. Entitlement to pension at the special rate is conferred by s 24(1) of the VE Act. Two relevant requirements of entitlement to such a pension are contained in ss 24(1)(b) and (c). They provide as follows:

“24 Special rate of pension
(1) This section applies to a veteran if:
...
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from warcaused injury or warcaused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that warcaused injury or warcaused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; ...”

8. Eligibility for pension is provided for in s 13 of the VE Act, and exists relevantly where a veteran is incapacitated from a war-caused injury or a war-caused disease. Section 9 of the VE Act makes provision for when an injury or disease suffered or contracted by a veteran is taken to be war-caused.
9. The rate of pension is updated from time-to-time and is provided for in s 24(4). It is not dependent on a means test.
10. Part III of the VE Act provides for entitlement to service pension, which is defined in s 5Q(1) of the VE Act to mean an age service pension, an invalidity service pension, or a partner service pension. Entitlement to such a pension exists where a veteran has rendered qualifying service. Section 37 deals with eligibility for an invalidity service pension. Section 37(1) provides as follows:

“37 Eligibility for invalidity service pension
(1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.”

11. Under s 37AA, the Commission, by written determination, is required to specify the circumstances in which persons are permanently incapacitated for work for the purposes of s 37(1)(c). By a determination made in December 1999, namely the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999, the Commission determined as follows:

“5 Circumstances of permanent incapacity
(1) A person is permanently incapacitated for work for paragraph 37 (1)(c) of the Act if the person:
(a) is permanently blind in both eyes; or
(b) is a veteran to whom section 24 of the Act applies; or
(c) satisfies subsection (2).”

Mr Sleep is a veteran to whom s 24 of the VE Act applies, and has rendered qualifying service, and so is eligible to an invalidity service pension pursuant to s 37(1) of the VE Act.

12. The VE Act provides that the rate of a veteran’s invalidity service pension is means tested. Under s 37N of the VE Act the rate of an invalidity service pension is to be worked out in accordance with the Rate Calculator. This is defined in s 5Q of the VE Act as the Rate Calculator in Part 2 of Schedule 6 to the VE Act. The Rate Calculator includes provision for an assets test and an income test.
13. Division 15 of Part IIIB of the VE Act makes provision for the variation and termination of service pensions. This Division includes s 56C, which empowers the Commission to determine that the rate of service pension be increased, and s 56D, which empowers the Commission to determine that the rate of service pension be decreased.
14. Provision is made in s 57 of the VE Act for claimants who are dissatisfied with a decision of the Commission to request a review of the decision. This right extends to decisions of the Commission reducing or increasing the rate of a service pension (see s 57(2)(c)). If the Commission reviews a decision, it is required by s 57B to affirm it or set it aside. Under s 175(2) of the VE Act, there is a further right to apply to this tribunal for review of a decision that the Commission has affirmed, or set aside and substituted, following a review under s 57.
15. Section 42B of the AAT Act empowers this tribunal, at any stage of a proceeding, if it is satisfied that the application is “frivolous or vexatious” to dismiss the application. Section 42B(1) provides as follows:

42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.”

PREVIOUS PROCEEDINGS

16. The previous proceedings in this tribunal before Member Short also arose from determinations by the Commission to vary Mr Sleep’s invalidity service pension. In the proceedings reported in [2008] AATA 1101, the variation affected Mr Sleep’s pension and also his late wife’s partner pension, and resulted from the inclusion in the assets test of certain superannuation products which Mr Sleep held at the time of his 60^th birthday, and which thereupon ceased to be exempt assets. The other matter before Member Short (being the decision reported in [2008] AATA 1100) also arose from a re-assessment of the invalidity service pension, when the Commission included in his assets the value of a property at Croydon, and ascribed a value of $140,000 to that property. In each case, Member Short affirmed the primary decision of the Commission (which had been subsequently affirmed by a delegate of the Commission on review) after rejecting various submissions made by Mr Sleep to the effect that the Commission’s determinations were incorrect.
17. Mr Sleep appealed to the Federal Court against the two decisions made by Member Short. The appeals were heard together by Besanko J, and he dismissed both appeals (Sleep v Repatriation Commission [2009] FCA 472). After some delay, Mr Sleep applied to the Federal Court for an extension of time to file and serve a notice of appeal from the decision of Besanko J. His application was heard by Lander J. His Honour refused the applications for extensions of time, on the grounds that there was no prospect of Mr Sleep succeeding on appeal (Sleep v Repatriation Commission [2009] FCA 1413 at [38]).

APPLICANT’S CONTENTIONS

18. Mr Sleep’s application for review of each of the four decisions in question is identical. It reads:

“The review decision is not factually correct. Respondent has not addressed my concerns as expressed in all my correspondence concerning each of the five primary decisions.
Because of inadequate reasons, I doubt the decision was made according to Law.”

19. Mr Sleep requested a review of the four primary decisions in question by letters dated 23 March 2010 (in the case of Decisions 1 and 3), 13 August 2010 (in the case of Decision 4), and 9 December 2010 (in the case of Decision 5). In addition, Mr Sleep elaborated on his concerns about the Commission’s response to his situation in a document dated 10 March 2010 entitled “Attachment to Statement of Circumstances”, and in a letter dated 25 March 2010 to the former Prime Minister, the Hon. Kevin Rudd MP. This letter also included reference to an earlier letter to Mr Rudd dated 22 February 2010.
20. In his submissions to me in response to the Commission’s applications in the present proceedings, Mr Sleep contended in effect as follows.

(a) The present applications differed from the previous proceedings in this tribunal, because they related not only to his own invalidity service pension, but also to his wife’s partner pension.

(b) His pension at the special rate under s 24 of the VE Act is a life interest, and by virtue of s 52 of the VE Act, should not be counted in the income test.

(c) The invalidity service pension was a “top-up” pension, and his eligibility for it arose from s 24; accordingly it should be regarded as a disability pension and not as a “special” pension, and s 24 of the VE Act should override the income and assets test that applied to other “special” or service pensions. He contended that the invalidity service pension “took on the character” of the pension to which it was attached, and because the level of his incapacity had not decreased, so also his invalidity service pension should not have been decreased, and the Commission had misinterpreted the VE Act by decreasing his pension entitlement.

(d) His pension at the special rate under s 24 is a chose in action to which he is entitled as a result of his overseas service in Vietnam, and the action of the Commission in reducing his pension constituted an acquisition of property from him other than on just terms, contrary to s 51(xxxi) of the Commonwealth Constitution.

(e) He had not been told at an earlier stage, when he became ill in 1992, of the availability of the “top-up” pension, and did not find out about this until the year 2000, and the Commission was remiss for not informing him of the “top-up” pension earlier.

(f) When he and others went to Vietnam, they were not told that their pension entitlement would be means tested, and this consequence should not have been brought about by retrospective legislation.

21. The material to which I referred in paragraph 19 above clarifies and in some respects elaborates on the verbal contentions made by Mr Sleep at the hearing before me, but he explained that he finds it easier to express himself in writing. I also note that his applications to this tribunal refer to his earlier correspondence. I have accordingly considered his verbal submissions in the light of and taking into account the above material. He has also raised some further issues in the above material, including the following matters.

(g) He asserts that the Commission acted in a manner that was unconscionable and/or in breach of a fiduciary duty to him, causing constant stress to him and his family, and also hastening the death of his late wife, who died in November 2009.

(h) He believes that he should be compensated for having been selectively conscripted into the army when he was a minor, and that he may have claims arising from exposure to substances used in Vietnam, and for the mandatory ingestion of dapsone tablets in Vietnam as part of a trial to prevent malaria, and because his life was put more at risk than it already was in about 1992, resulting in several months of hospitalisation.

(i) Mr Sleep also refers to having transferred the property at Croydon to his late wife, and to his late wife’s intention to devise the property to their daughters, so that that property should not have been treated as his asset.

CONSIDERATION

Relevance of earlier proceedings

22. The question of whether a party can re-agitate issues that have been considered in earlier proceedings in this tribunal is a matter that has been the subject of considerable discussion in the past. I referred to a number of earlier authorities in Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198, at [52]–[61], in the context of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Similar considerations apply to proceedings under the VE Act. In Filsell I concluded, in effect, that subject to any express legislative provisions to the contrary, the doctrines of issue estoppel and res judicata do not apply to proceedings in this tribunal, but the tribunal may exercise its statutory powers under ss 42B and 33 of the AAT Act to prevent parties revisiting issues that have been determined in earlier proceedings in the tribunal, or to limit the matters that may be raised in later proceedings. I refer also in this regard to s 25(4A) of the AAT Act, which expressly empowers this tribunal to determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.
23. The contentions made by Mr Sleep in the earlier proceedings before Member Short and on appeal to the Federal Court are summarised in the decisions reached in those proceedings. It is apparent that Mr Sleep raised the contentions referred to in paragraphs 20(c) and (d) above in the earlier proceedings. These contentions are referred to in sub-paragraphs 2, 3 and 4 of paragraph 9 of Besanko J’s judgment. His Honour analysed Mr Sleep’s contentions and clearly rejected them for reasons set out in the judgment. I consider, and now decide, that Mr Sleep should not be permitted to re-agitate the above two contentions in the present proceedings. Whilst I do not doubt Mr Sleep’s sincerity in his belief in the justice of his cause and his interpretation of the VE Act, decision-makers are required to determine matters in accordance with the correct legal interpretation of the relevant provisions of the Act, and that is what they have done in relation to those particular contentions.
24. Because Besanko J dealt only briefly (although decisively) with the contention based on s 51(xxxi) of the Constitution, and Mr Sleep has raised this contention again, I should perhaps address this aspect in these reasons. Section 51(xxxi) provides as follows:

“51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
....
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;”

25. In a High Court case involving the entitlement to Medicare benefits which were conferred by a Commonwealth statute, six of the seven justices constituting the court held that a right conferred by the statute was a chose in action and “property” within the meaning of s 51(xxxi): see Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226. However, on the assumption that Mr Sleep’s statutory entitlement to pension constitutes property within the meaning of s 51(xxxi), the reduction of the rate of his invalidity service pension did not constitute an acquisition of his pension entitlement. He is receiving two pensions, namely pension at the special rate under s 24 and an invalidity service pension. They are separate and distinct entitlements under the VE Act. Whilst persons such as Mr Sleep who are entitled to pension at the special rate thereby qualify for the invalidity service pension, the VE Act includes other provisions for eligibility for the invalidity service pension, and also includes express provision for adjusting the rate of that pension (but not pension at the special rate) according to a means test. The rate of Mr Sleep’s pension at the special rate, being his entitlement under s 24, has not been reduced, and so as regards that pension, there was no acquisition of property within the meaning of s 51(xxxi) of the Constitution. As regards his invalidity service pension, the re-assessment of that pension did not constitute an acquisition, or a partial acquisition, of that pension; he remains entitled to that pension, and it has merely been adjusted in accordance with the statutory provisions conferring entitlement to the pension, that is, the rate of pension was adjusted in accordance with the means test provided for in the VE Act. Unlike the position in other cases where s 51(xxxi) has been considered, there has not been any subsequent legislation of the Commonwealth that has removed or reduced Mr Sleep’s pre-existing entitlement to his invalidity service pension. In short, there has been no acquisition of property.
26. In any event, even if (contrary to my opinion) Mr Sleep were correct in contending that the reduction in his invalidity service pension constitutes an acquisition other than on just terms, it would follow that Division 4 of Part III of the Act, which provides for such pension, would not be a valid exercise of the Commonwealth’s power to makes laws; that is because the sections that provide for the rate of the invalidity service pension, including the sections that provide for it to be increased or decreased, are an intrinsic aspect of this aspect of the VE Act. It follows that if Mr Sleep’s argument based on s 51(xxxi) were correct, the provisions for invalidity service pension would be invalid, and his only entitlement would be to his pension under s 24.
27. By his contention referred to in paragraph 20(a) above, Mr Sleep sought to distinguish the present proceedings from the earlier proceedings on the grounds that the present proceedings relate only to his invalidity service pension, whereas the earlier proceedings related also to his late wife’s partner pension. I do not consider this to be a relevant distinction or a reason against my conclusion that he should not be permitted to re-agitate the contentions to which I have referred above. My conclusion is based on the fact that the relevant contentions were the same in substance in the present and earlier proceedings, and were fully considered and determined in the earlier proceedings.

Should the proceedings be dismissed under s 42B of the AAT Act?

28. In Filsell, at [33], I also reviewed a number of authorities relating to the proper application and interpretation of s 42B. It is clear from the authorities that the section operates in circumstances where there is no legal basis for the proceedings, or where the proceedings have no reasonable prospect of success. That was the thrust of the submissions of the advocate for the Commission, Mr Crowe. The section is not confined to circumstances where an applicant has acted frivolously in bringing proceedings, or vexatiously, by bringing proceedings with the intention of annoying, embarrassing or harassing another party, and Mr Crowe certainly did not suggest that Mr Sleep’s applications were “frivolous” or “vexatious” within the ordinary meaning of those words.
29. As I also said in Filsell, the authorities indicate that the power of dismissal under s 42B should be used cautiously, but if proceedings have no reasonable prospect of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of the tribunal, or to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
30. It is therefore necessary to consider the merits of the various contentions made by Mr Sleep in the present proceedings, in the light of the principles applicable to the proper application of s 42B of the AAT Act.
31. The contention referred to in paragraph 20(b) above is misconceived. The grant of a pension at the special rate pursuant to s 24 of the VE Act is not a life interest within the meaning of any of the provisions of s 52.
32. The further contentions made by Mr Sleep that are referred to in paragraphs 20(e) and (f), and 21(g) and (h) raise issues that are not within the jurisdiction of this tribunal to determine. This tribunal, unlike a court, has no inherent jurisdiction, and can only exercise the jurisdiction conferred on it by legislation. There is no legislation or legislative instrument that would empower the tribunal to determine the issues raised by these further contentions. As appears from paragraph 14 above, the source of the tribunal’s jurisdiction is s 175(2) of the VE Act, and that does not apply to these contentions.
33. In any event, whilst Mr Sleep clearly feels aggrieved by the manner in which his claims for entitlements have been dealt with by the Commission, those claims have (as I have said above) been determined in accordance with the VE Act, and there is no evidence before me in the present proceedings that would support the claims. The above further contentions are not relevant to the proper assessment under the VE Act of the rate of Mr Sleep’s invalidity service pension. The rate of that pension must be interpreted pursuant to s 37N of the VE Act, and the VE Act contains express powers for the Commission to increase or decrease a veteran’s invalidity service pension. Mr Sleep’s further contentions provide no proper basis for determining that the re-assessments of his invalidity service pension were not calculated correctly and in accordance with the Rate Calculator, as required by s 37N of the VE Act.
34. The contention made by Mr Sleep to which I referred to in paragraph 21(i) was included in his letter to the Commission of 23 March 2010, when he sought review of Decision 3 on the grounds that the value of the Croydon property should not have been taken into account as it was not owned by Mr Sleep. However, that decision entailed a prospective decrease in Mr Sleep’s pension to be operative from 1 July 2010, but before then, the pension was re-assessed again in Decision 6 made on 30 March 2010, and again in Decision 4 made on 24 May 2010. The assessments made by those decisions did not include the value of the Croydon property. That aspect of Mr Sleep’s contentions became irrelevant due to the changed circumstances arising from the later decisions. There is therefore no point in pursuing the proceedings in relation to Decision 3, and the proceedings should accordingly be struck out pursuant to s 42B: see Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366, where proceedings became futile and were struck out because the reviewable decision became irrelevant from a practical point of view, due to a change in the registered officer of the relevant organisation that occurred after the date of the decision.
35. I have decided in paragraph 23 above that Mr Sleep should not be permitted to re-agitate the issues raised by the contentions referred to in paragraphs 20(c) and (d) above because they were dealt with in the earlier proceedings. However, those contentions also have no prospect of success, for the reasons given above and in the earlier decisions, and this provides a further basis for my conclusion that the present proceedings should be dismissed under s 42B of the AAT Act.
36. As I have said above, it is clear from Mr Sleep’s submissions and the documents that I have considered that he is genuinely aggrieved by the decisions that have given rise to the present proceedings, as well as the decisions that gave rise to the earlier proceedings. Whilst I accept this, it is necessary for the Commission and its delegates to apply and comply with the provisions of the VE Act, and (subject to the apparent error in relation to Decision 3 which, however, was quickly rectified) I am satisfied that they have done so correctly, and that the present proceedings have no prospect of success. I accordingly conclude that this is an appropriate matter for the exercise of the tribunal’s discretion to dismiss the proceedings pursuant to s 42B of the AAT Act.

DECISION

37. The tribunal declines to review the issues raised by the within applications that have previously been determined by earlier proceedings in this tribunal, and dismisses the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the 37 preceding paragraphs are a

true copy of the reasons for the decision herein

of Deputy President D G Jarvis

... [Signed] ...

Associate

Date/s of Hearing 17 May 2011

Date of Decision 25 May 2011

Applicant In person

Advocate for the Respondent Mr A Crowe

Department of Veterans’ Affairs