Johnson v Veterans' Review Board [2003] FCAFC 89 (9 May 2003)

Last Updated: 14 May 2003

FEDERAL COURT OF AUSTRALIA

Johnson v Veterans' Review Board [2003] FCAFC 89

KEITH DOUGLAS JOHNSON v VETERANS' REVIEW BOARD & REPATRIATION COMMISSION

S 8 of 2003

WEINBERG, STONE & JACOBSON JJ

9 MAY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 8 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KEITH DOUGLAS JOHNSON APPELLANT
AND:	VETERANS' REVIEW BOARD FIRST RESPONDENT
	REPATRIATION COMMISSION SECOND RESPONDENT
JUDGES:	WEINBERG, STONE & JACOBSON JJ
DATE OF ORDER:	9 MAY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the second respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S8 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KEITH DOUGLAS JOHNSON APPELLANT
AND:	VETERANS' REVIEW BOARD FIRST RESPONDENT
	REPATRIATION COMMISSION SECOND RESPONDENT

JUDGES:	WEINBERG, STONE & JACOBSON JJ
DATE:	9 MAY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1 This appeal raises a question of construction of the Veterans' Entitlements Act 1986 (Cth) ("the Act").

2 The question is whether s 155AA(4) of the Act requires a notice given in accordance with that section to be given immediately upon the expiration of the two year period referred to in the section or within a short period thereafter.

3 On 13 December 2002, Mansfield J decided this question and two other questions adversely to the appellant. The effect of his Honour's judgment was that a notice given to the appellant requesting him to provide a statement as to whether an application for review of a decision of the Repatriation Commission ("the Commission") was ready to proceed to a hearing was valid. The ultimate effect of this was that the appellant's application to review the decision of the Commission given in March 1996 was no longer on foot, it having been dismissed by a notice given in March 1999.

Factual Background

4 At [1] - [19], his Honour set out the factual background in some detail. It is sufficient for present purposes to summarise the history described by the primary judge.

5 As his Honour said at [1], these proceedings involve an "oblique attempt" by the appellant to challenge a decision of the Repatriation Commission ("the Commission") given on 28 March 1996.

6 The decision which the Commission made on 28 March 1996 was to reject a claim made by the appellant for a Special Rate pension under s 13 of the Act for "vertigo: epilepsy".

7 On 29 April 1996, the appellant sought a review of the Commission's decision. However, the hearing of the review was deferred from time to time at the appellant's request.

8 On 19 October 1998, the Board through the SA Registrar ("the SA Registrar") gave a notice to the appellant pursuant to s 155AA(4) of the Act requesting a written statement that he was ready for a hearing, or his reasons as to why he was not.

9 The appellant responded on 22 October 1998 giving reasons why he was not ready for a hearing. The SA Registrar accepted the explanation pursuant to s 155AA(6)(b).

10 On 2 November 1998, the SA Registrar gave an extension notice to the appellant. The extension notice stated that the SA Registrar was required to write to the appellant in three months time unless the review was fixed for hearing.

11 The review was not fixed for hearing during the three month period and, on 4 February 1999, the SA Registrar gave a notice to the appellant under s 155AB(4). The notice requested the appellant to provide within 28 days a statement that he was ready for a hearing or reasons as to why he was not.

12 By reason of what appears to have been an unfortunate error, the person authorised by the appellant to respond to the s 155AB(4) notice did not do so.

13 Accordingly, on 11 March 1999, the SA Registrar dismissed the application for review pursuant to s 155AB(5).

14 The effect of the dismissal by the SA Registrar was that the Board did not consider the merits of the claim for review of the decision of 28 March 1996. However, during June 1999, the appellant made two further separate claims for a Special Rate disability pension under s 13. Those claims were accepted by the Commission. The claims which were accepted included the claim which the Commission had rejected in March 1996.

15 The consequence of this was that the appellant became entitled, with effect from December 1999, to the full Special Rate disability pension which he had claimed in 1996.

16 Thus, as his Honour noted at [11], the present proceedings are concerned only with the question of whether the appellant was entitled to a full Special Rate pension for a limited period from December 1995 to March 1999. On the material which the appellant put before his Honour, the amount in issue is in the order of $42,000, although as his Honour noted, the respondents did not indicate agreement to this calculation.

The Legislation

17 Section 155AA of the Act is concerned with the power of the Principal Member of the Veterans' Review Board to dismiss an application for review where the "standard review period" has expired without the application proceeding to a hearing or being fixed for hearing.

18 Section 155AA(1) defines the standard review period as two years after the day on which the application was received at an office of the Department in Australia.

19 Section 155AA(2) provides that the section applies to an application unless the hearing of the review has finished within the standard review period or, as at the end of that period the application has been fixed for hearing.

20 Section 155AA(4) provides:-

"(4) If, at the end of the standard review period:

(a) this section applies to an application for review; and

(b) the Principal Member considers that the applicant should be ready to proceed at a hearing;

the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;

(c) a written statement indicating that the applicant is ready to proceed at a hearing; or

(d) a written statement explaining why the applicant is not ready to proceed at a hearing."

21 If the applicant does not provide a written statement under paragraph (4)(c) or (d) within 28 days, the Principal Member must dismiss the application; see s 155AA(5).

22 If the applicant provides a written statement explaining why he or she is not ready to proceed to a hearing and the Principal Member considers the explanation to be reasonable, the Principal Member must notify the applicant and the Commission of this; see s 155AA(6).

23 The notice which is given under s 155AA(6) is defined by s 155AB(1) as an "extension notice".

24 If the Principal Member considers the application is not reasonable, he or she must dismiss the application; see 155AA(7).

25 Section 155AB deals with the power of the Principal Member to dismiss an application for review where the extension notice has expired without the application proceeding to a hearing or being fixed for hearing.

26 Section 155AB(1) defines "extended review period" as the period of three months after the day on which the Principal Member has given an extension notice to the applicant.

27 Section 155AB(2) provides that the section applies to an application unless the hearing of the review has finished or, as at the end of that period, the application has been fixed for a hearing.

28 Section 155AB(4) is in similar terms to s 155AA(4). It requires the Principal Member to give a written notice to an applicant at the end of the extended review period requesting the applicant to provide a statement that the application is ready for hearing or an explanation as to why it is not.

29 Sections 155AB(5), (6) and (7) correspond to ss 155AA(5), (6) and (7). They require the Principal Member to dismiss an application where no statement is provided or where an unsatisfactory explanation is given or, alternatively, to give a further extension where a satisfactory explanation is provided.

The Decision of the Primary Judge

30 The appellant's contention on the question of construction of s 155AA(4) was that the standard review period expired on 30 April 1998, that no notice was given at or shortly after that time, and that it was too late to give the notice which was served more than six months later on 19 October 1998.

31 His Honour summarised the effect of this contention at [23] as follows:-

"In effect, his contention is that, in the circumstances, the Principal Member having failed to give a notice in accordance with s 155AA(4) within a brief time after the standard review period, was no longer empowered by the section to activate those provisions or to dismiss his claim under s 155AB(5). If he is correct, as noted above, the consequence is that his application before the Board for review is still on foot and should be dealt with by the Board."

32 His Honour rejected this submission at [24] because he was of the view that upon its proper construction s 155AA(4) is not enlivened until two criteria are satisfied. The first is that the standard review period must have expired without the matter being fixed for hearing. The second is that the Principal Member must be satisfied that the applicant should be ready to proceed to a hearing. His Honour found that the appellant had not established that the second criterion was met on or soon after 30 April 1998 or at any time substantially before the notice of 19 October 1998.

33 The learned Primary Judge said at [24]:

"Section 155AA(4) empowers the Board through the Principal Member to initiate the procedures to dismiss the application only at the expiration of the standard review period, but upon its proper construction it does not oblige the Board then to initiate those procedures. The obligation arises only when the standard review period has expired (provided it applies to the application for review) and when the subjective view has been formed by the Principal Member or the delegate that the applicant should be ready to proceed at a hearing."

34 Moreover, his Honour did not accept the contention that any delay in giving a notice, even after both criteria are satisfied, would invalidate the notice. His Honour said at [25]:

"I reach that conclusion by construing the relevant provisions of the Act in their statutory context in order to determine whether the legislature intended that a failure on the part of the Principal Member to give a notice under s 155AA(4), once the two criteria for the obligation to do so exist, either immediately or promptly once the criteria exist, would invalidate the later giving of such a notice. To address the question, it is appropriate to consider the language of s 155AA(4) and its scope and purpose in the context of the Act, and the consequences of failure to comply with it in a timely manner. There is no suggestion that the notice under s 155AA(4) did not otherwise satisfy its terms. See generally the judgment of the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, cited with approval by the Full Court of this Court (Sheppard, Neaves and Miles JJ) in Yapeen Holdings Pty Ltd v Calardu Pty Ltd [1992] FCA 284; (1992) 108 ALR 107 at 122-123."

35 His Honour pointed out at [26] that the scheme prescribed by ss 155AA and 155AB for the power to dismiss an application is detailed and comprehensive. His Honour said that the scheme is intended to ensure that after a period of two years the Veterans' Review Board may instigate proceedings to bring an application to a head when an applicant may not wish to do so. His Honour noted that the power may not be exercised capriciously.

36 His Honour said at [26]:-

"Underlying those provisions is the clear intention that, except for good cause, applications for review of decisions of the Commission should be brought to finality by the Board with reasonable promptitude after the end of the standard review period, provided it is in the circumstances fair and appropriate to do so. It would not be consistent with that legislative purpose to construe s 155AA(4) and s 155AB(4) so that the power on the part of the Principal Member to achieve that result is lost if there is some administrative delay, or some delay for some other reason, on the part of the Principal Member in giving the notice to which those sub-sections provide once the qualifying criteria upon which the power arises exist and require the power to be exercised."

The Appeal

37 The appellant argued only two points in support of his appeal.

38 The first point was that the SA Registrar had not complied with dismissal procedures laid down in a direction issued by the Principal Member under s 142(2)(a) of the Act on 21 July 1992.

39 Those procedures included a direction that where a registrar is not of the opinion that an applicant should be ready for a hearing, a note should be made on the file and the application should be checked again in three months.

40 The appellant submitted that the SA Registrar did not make a note on the file at or close to the end of the standard review period and that this procedural irregularity invalidated the notice given under s 155AA(4).

41 The effect of the appellant's submission was that the making of a file note in accordance with the direction was an essential pre-condition to the exercise of the power to give a notice.

42 In our view this submission is wrong and we cannot accept it. The correct approach to the construction of s 155AA(4) is to consider whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93]. It would be contrary to the clear intention of the legislation to construe it in the manner suggested by the appellant.

43 The dismissal procedures were merely directions given by the Principal Member in accordance with s 142(2)(a) of the Act "for the purpose of increasing the efficiency of the operations of the Board". There is nothing in either s 142 or s 155AA which expressly or impliedly indicates that compliance with such a direction is an essential pre-condition to the exercise of the power to give a notice under s 155AA(4). Indeed, in our view it is plain that such a result was not intended.

44 Further support for this view is to be found in the remarks of a Full Court (Heerey, Goldberg and Weinberg JJ) in Minster for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [56] in relation to s148 of the act. This section is in similar terms to s 142.

45 The appellant also referred us to a practice direction or guideline given in 1999. However, that direction was given after the date of the s 155AA(4) notice and can have no bearing on the validity of the notice.

46 The appellant's second contention was that the written notice to which s 155AA(4) refers can only be given at the end of the standard review period or a short period (which he submitted did not exceed 28 days) after the expiration of that period.

47 In our view, this approach to the construction of the section is clearly wrong. As the learned primary judge noted, it ignores the second criterion for the exercise of the power namely that the Principal Member must be satisfied that an applicant should be ready to proceed to a hearing before he or she can issue a notice.

48 There is nothing in the section which indicates that the Principal Member is required to be satisfied at the end of the standard review period, or within 28 days thereafter, as to whether an applicant is ready to proceed. Indeed it would impose an intolerable burden on the administration of the Act if this were required. There will no doubt be many cases where the Principal Member or his or her delegate is not in a position at the end of the standard review period to form an opinion as to whether an application is ready to proceed. Indeed, this was the case here because the notation made on the file in accordance with the 1992 procedural guideline indicated that the SA Registrar did not form an opinion until approximately 5 months after the expiry of the standard review period.

49 To construe the section as proposed by the appellant would be contrary to the purpose of the section which is to enable applications which are not pursued with due speed to be dismissed through an administrative procedure in accordance with the steps laid down in

ss 155AA and 155AB.

50 If the legislature intended to achieve the result for which the appellant contended, it would not have left unstated such an important limitation on the exercise of the power. The learned primary judge made this observation and we respectfully agree with him.

51 The appellant relied upon the procedural guidelines issued in 1992 and 1999 to support his submission that s 155AA(4) was to be strictly construed as limiting the period for the exercise of the power to the end of the standard review period, ie two years, or 28 days thereafter.

52 We do not see how a practice direction can have any bearing upon the construction of the section.

53 The appellant also relied upon the Explanatory Memorandum to the Veterans' Affairs Legislation Amendment Bill 1992. We have considered this document. However there is nothing in it which supports the construction of s 155AA(4) proposed by the appellant.

54 He also relied upon principles of procedural fairness stated in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 418. The passage which the appellant relied upon is not applicable to the reconciliation of procedural guidelines against other statutory provisions and is thereafter of no assistance to the appellant's argument.

Orders

55 It follows that the appeal must be dismissed. The appellant accepted that if this result ensued it would be appropriate to order him to pay the costs of the second respondent. Costs were not sought by the first respondent which merely filed a submitting appearance.

56 Accordingly, the orders of the Court will be that the appeal be dismissed and that the appellant pay the second respondent's costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Weinberg, Stone & Jacobson.

Associate:

Date: 9 May 2003

	The appellant appeared in person.
Counsel for the Respondents:	Ms S Maharaj
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	8 May 2003
Date of Judgment:	9 May 2003