VRB Case Note No. 1: Validity

ISSUES

When a withdrawal is not effective?

The issue

Before the substantive matter could be considered, the issue for the Board to resolve was whether the applicant had lost his opportunity for review because of a letter he signed and sent to the Board which, on the face of it, withdrew his application.

The applicant’s position

The applicant contented that he had been incorrectly advised by his advocate as to the effect of withdrawing his matter. Further, he was not aware of the true nature and effect of the withdrawal letter on his capacity to continue with his application before the Board. Finally, the applicant noted that it was only a matter of a few days between the time he had sent the letter and when he had called the Board to requesting rescission of the withdrawal, once the true effect of withdrawal was known.

The relevant legislation and case law

No power to reinstate

The Board noted that there was no specific power in the VEA that would allow the Board to reinstate appeals.

Beneficial legislation

The Board considered section 119 of the VEA, noting that the provision gives the Board a wide power of discretion to act in a manner that is according to substantial justice and a discretion to dispense with technicalities.

Leading case on this issue of a withdrawal

The Board considered Repatriation Commission v Stafford (1995)21 AAR 543, where the Full Court of the Federal Court (Jenkinson, Ryan and Lee JJ) held at paragraph 10 that:

“…only a clear, unambiguous withdrawal by a veteran of a condition from the scope of review, which the Board was satisfied was a withdrawal of the effect of which the veteran understood could relieve the Board of the duty.”

The Board also noted that Staffordwas applied in Re Allister and Repatriation Commission [1999] AATA 563. Senior Member John Handley at paragraph 33 considered the conditions precedent during a VRB hearing for a withdrawal to be effective:

“An explanation by a VRB member to a veteran of the nature and effect of awithdrawal. …If the VRB, having given such an explanation, is then satisfied by the response made by the veteran that the withdrawal is intended and understood I would have thought that the duty has been entirely exercised”.

The Board’s consideration

Applying the principles outlined in Stafford, the Board found that the withdrawal, in this case, was not “clear and unambiguous…the effect of which the veteran understood.” Accordingly the Board held that the letter of withdrawal was not effective and that the application for review was still on foot for the Board to determine. The matter was adjourned to allow the applicant to put forward further evidence in relation to the substantive matter of the appeal.

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