Hopkins v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from an order of a judge of this Court dismissing the applicant's appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and an order that the applicant pay the respondent its costs of the application. 2 The order complained of was made on 16 September 2009. The application to extend the time for filing and serving a notice of appeal was made on 18 February 2011, some 17 months after the orders were made. 3 Order 52 rule 15 of the Federal Court Rules provides that a notice of appeal should be filed and served within 21 days after the date when the judgment appealed from was pronounced or any later date fixed for that purpose by the Court appealed from, or such further time as allowed by the Court. 4 Order 15 rule 2 provides that notwithstanding the mandatory obligations to which I have referred, the Court may for special reasons give leave to file and serve a notice of appeal at any time. 5 The parties agreed that I should hear this application on the papers. To that end, the applicant filed an affidavit which contained his submissions and the respondent filed an outline of its submissions. 6 The appeal with which his Honour was concerned arose out of an application by the applicant under the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). 7 On 8 December 2006 the applicant claimed a pension and other payments under the VE Act in respect of a number of medical conditions: tinia, ingrown toenails in both feet, bilateral pterygium and osteo-arthrosis of the left knee. 8 On 15 June 2007 the Commission accepted all conditions were "war-caused" within the meaning of the VE Act and decided that the applicant was entitled to a pension at 100% of the general rate from and including the date of his application. 9 On 25 October 2007 the Commission's decision was affirmed by the Veterans' Review Board. The applicant sought a review of that decision by the Administrative Appeals Tribunal ("the AAT") seeking an entitlement to the special rate of pension provided for under s 24 of the VE Act rather than the general rate of pension which had been awarded by the Commission, which decision had been affirmed by the Veterans' Review Board. 10 The applicant would have been entitled to the special rate of pension if he could have established the matters in s 24(1)(c) of the VE Act which provides: (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused 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 accounts, that the veteran would not be suffering if the veteran were free of that incapacity; … 11 Section 24(2) of the VE Act addresses paragraph (1)(c). It provides: (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. 12 Section 24(4) provides for the rate at which the pension is payable subject to matters in s 24(5) and (6), none of which are relevant. 13 The AAT found that the remunerative work that the applicant was undertaking was as a clerical/electronic technician. It also found that the applicant was prevented by his war-caused conditions or his resultant incapacity from undertaking remunerative work for more than eight hours per week. 14 Notwithstanding his contentions to the contrary, the AAT found that the applicant was last employed on 28 November 2003 and deemed that to be the date when he ceased to engage in remunerative employment. Moreover, it found that he ceased to engage in that employment at that time because he was retrenched, so that it followed that the reasons for his cessation of remunerative employment for the purposes of s 24(2)(a)(i) were other than his incapacity from his war-caused condition. 15 The AAT then considered s 24(2)(b) and concluded adversely to the applicant that the applicant was not genuinely seeking to engage in remunerative work at any time over the assessment period. Because of that finding, s 24(2)(a) was engaged and s 24(1)(c) was satisfied, which meant that the applicant's application for the special rate of pension was dismissed. 16 The question before the primary judge was whether the AAT had failed to make the findings required by s 24(2)(a)(i) and thereby erred in law. 17 His Honour determined at [25] of his reasons: In my judgment, the Tribunal did not fail to make the findings of fact required to determine Mr Hopkins' application. It was required to decide when Mr Hopkins had ceased to engage in remunerative work. It decided that question of fact. There is no issue about when he had last worked. There was evidence from Mr Hopkins as to what had been done, with a view to having the Tribunal be satisfied that he had not in fact thereafter ceased remunerative work. In my view, the Tribunal correctly identified the question which it was required to ask, and considered the evidence which was presented to it. On the basis of that evidence, it was satisfied that from that date he had ceased to engage in remunerative work. 18 The primary judge explained why he had reached that conclusion: In my view, there is no ambiguity in its reasons. It has rejected Mr Hopkins' claim that he made over 100 applications for employment between November 2003 and February 2004, as it explained, because he did not retain copies of any of those applications, even though none of them resulted in a job interview. It has rejected his claim that he believed that physiotherapy would allow him to return to the workforce, in essence, because he failed to obtain or seek that treatment. It rejected his claim that he did not read any of the sickness certificates provided by his then general practitioner and so did not realise that he was suffering from a shortness of breath and chronic obstructed airways disease, which otherwise may have impaired his capacity for work. Partly, it rejected that evidence because it was implausible. Partly, it rejected that evidence because it was aware that Mr Hopkins had, in one other respect, deliberately misinformed the Veterans' Review Board in 2005 about certain information. I do not consider that the word "implausible" in the context is other than an indication that those assertions of fact were not accepted. That being the case made out by Mr Hopkins, and there being no other evidence to which my attention was drawn, the position plainly enough is that the Tribunal found that Mr Hopkins had ceased working on 28 November 2003 and had not actively sought work after that date, so that he had ceased remunerative work on that date. 19 The applicant has exhibited a Veterans' Affairs Medical Report - Ability to work (for disability pension purposes) form which is signed by Dr Janette Scanlon on 16 June 2005. He says that report is based upon a report of Dr Hlavac which was provided to Dr Scanlon probably on 21 May 2004, a copy of which is also exhibited to the applicant's affidavit. 20 The applicant said that when Dr Hlavac reported he had not then performed a Bronchoscopy and therefore had not then received the pathology reports relevant to such a procedure. 21 He says that he has now obtained the medical reports from that AAT which show Dr Scanlon's report to be inaccurate and misleading. 22 He says that a copy of an x-ray report tendered at the AAT hearing on 17 April 2009 confirms the opinion of Dr David Muecke, all of which contradicts his Honour's reasons. 23 The applicant's draft notice of appeal raises three grounds: 1. Evidence has recently been found showing that the evidence presented to the Administrative Appeals Tribunal, resulting in the decision being based on inaccurate evidence/medical reports. 2. I find the Federal Court to have been misled in its ruling due to the decision by the Administrative Appeals Tribunal being based on inaccurate evidence/medical reports. 3. I find the use of false evidence to be point of law which also brings question upon the credibility of the entire case presented by the Advocate for the Repatriation Commission. 24 As I have said, O 15 r 12 requires the applicant to show special reasons why a notice of appeal should be allowed to be filed. 25 In considering whether special reasons exist, the Court must have regard to the explanation for the delay in bringing the proceeding, any prejudice that may be suffered by a respondent and if, on the information provided on the application for an extension of time, there is potential merit which would justify the grant of an extension of time. 26 The applicant says that he located one of the documents to which he exhibited to his affidavit in October 2010 but also relies upon a number of other documents which were in fact before the AAT when the AAT found against him generally on credibility. The applicant has not said how he came in possession of the documents and why he did not when he received the documents make an application in October 2010 for an extension of time. The explanation for the delay is unsatisfactory but that does not necessarily mean that the application should be refused. 27 The respondent cannot point to any prejudice which it might be caused if an extension of time were to be granted. However, the absence of prejudice does not mean that the extension should be granted. The absence of prejudice is simply a neutral factor and removes a barrier which might otherwise hinder the application. 28 Whether this application should be granted must depend upon whether any of the grounds of appeal would be likely to succeed if an extension of time were granted. 29 In my opinion, the contentions made by the applicant are without foundation. The question as I have explained before his Honour was whether or not the AAT had properly addressed his claim by making the appropriate findings on the evidence before it. His Honour concluded that the AAT had found that the applicant's evidence was implausible thereby rejecting his claim. For that reason his Honour dismissed the appeal which raised on the single question of law to which I have referred. 30 The AAT found against the applicant because it formed the opinion that the applicant's evidence was implausible. That finding meant that it rejected the applicant's claims and assertions of fact. That was, on his Honour's finding and on any understanding, a finding open to the AAT especially where in his evidence he admitted that he had made a false statement to the Veterans' Review Board. 31 Any prospects of success on appeal would have to depend upon the applicant persuading the Full Court that further evidence which he has obtained would be likely to bring about a different result if the matter were remitted to the AAT. 32 In my opinion, the evidence which is brought forward would not assist the applicant to the extent necessary to persuade a Full Court that it should overturn his Honour's orders and remit the matter to the AAT for further consideration. The further evidence is not such that the applicant could say that the AAT was wrong to conclude that his account of the facts was implausible. It also does not and could not reverse the uncontroversial fact that he had deliberately misled the Veterans' Review Board. 33 In my opinion, the application for an extension of time should be refused and there will be an order accordingly. 34 The applicant must pay the respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.