Johnson v Veterans' Review Board [2006] FCAFC 15 (21 February 2006)

Last Updated: 23 February 2006

FEDERAL COURT OF AUSTRALIA

Johnson v Veterans’ Review Board [2006] FCAFC 15

ADMINISTRATIVE LAW – application for review to the Administrative Appeals Tribunal seeking to reagitate a question of law decided on an earlier appeal to the Federal Court from a decision of the Tribunal


Veterans’ Entitlements Act 1986 (Cth) ss 13, 14, 18, 19, 134(2), 135, 136, 141-144, 155AA, 155AB,155AC and 166
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)






























KEITH DOUGLAS JOHNSON v VETERANS’ REVIEW BOARD
SAD 211 OF 2005

KIEFEL, KENNY AND GRAHAM JJ
21 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA REGISTRY	SAD 211 OF 2005

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

BETWEEN:	KEITH DOUGLAS JOHNSON APPELLANT
AND:	VETERANS' REVIEW BOARD RESPONDENT
JUDGES:	KIEFEL, KENNY AND GRAHAM JJ
DATE OF ORDER:	21 FEBRUARY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the 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	SAD 211 OF 2005

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

BETWEEN:	KEITH DOUGLAS JOHNSON APPELLANT
AND:	VETERANS' REVIEW BOARD RESPONDENT

JUDGES:	KIEFEL, KENNY AND GRAHAM JJ
DATE:	21 FEBRUARY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 Sections 13 and 14 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) provide for the making by veterans, who have become incapacitated by reason of a war-caused injury or war-caused disease, of claims for pensions by way of compensation. Under ss 18 and 19 of the Act provision is made for the determination of such claims by the Repatriation Commission.

2 Sections 135 and 136 of the Act make provision for persons who are dissatisfied with decisions of the Repatriation Commission to seek review of those decisions by the Veterans’ Review Board (‘the Board’).

3 The Board consists of a Principal Member and such number of Senior Members, and such number of other members, as are appointed in accordance with the Act (see s 134(2)).

4 Sections 141-144 of the Act deal with the constitution of the Board for the purpose of the exercise by it of its powers. Decisions on these matters are entrusted to the Principal Member.

5 Other powers are entrusted by the Act to the Principal Member. These include the power to serve notices on claimants for review of Repatriation Commission decisions by the Board which are long outstanding to, in effect, bring them to finality or face the consequences. Absent satisfactory responses/explanations from the claimants, the Principal Member is obliged to dismiss their applications (see ss 155AA-155AC).

6 The Appellant, who served in the Australian Army between 1962 and 1986, made a claim for a pension by way of compensation for what he contended was war-caused injury or war-caused disease in the form of vertigo and epilepsy. His claim was apparently made on or about 20 March 1996.

7 On or about 9 June 1999 the Appellant made a separate claim for a pension by way of compensation for what he contended was war-caused injury or war-caused disease in the form of post-traumatic stress disorder coupled with a further claim for vertigo and epilepsy.

8 On 30 September 1999 a delegate of the Repatriation Commission accepted post-traumatic stress disorder as war-caused with effect from 9 March 1999. On 8 September 2000 a delegate accepted epilepsy as war-caused with effect from 9 March 1999 and on 27 April 2001 the Administrative Appeals Tribunal (‘the Tribunal’) accepted vertigo as war-caused with effect from 9 March 1999.

9 By the current appeal the appellant seeks, in effect, to have the date 9 March 1999 backdated to 20 March 1996 or thereabouts. Alternatively, he wants an application for review of a Repatriation Commission decision, which he made to the Board on or about 28 April 1996, heard by the Board.

10 In his written submissions on this appeal, the Appellant has contended that he should be awarded:-

‘...back dating of my TPI Special rate pension to 20 December 1995 ($42,902.33), an interest component (10 Years Compounded 3% = $57,656.00), a compensation component for losses with interest ($65,000.00 x 30% plus interest = $19,500.00 + 3% x 10 Years = $26,207.00) $8,000.00 for my costs total $92,000.00 approximately, and respondent to pay all own costs.’

11 The Appellant’s claims for a pension have been the subject of numerous applications for review by the Tribunal and numerous appeals to this Court. The history of the matter is extensively set out in the reasons for judgment of Lander J, from whose judgment the present appeal has been brought, and it is unnecessary to repeat that history in these reasons.

12 At the heart of the Appellant’s complaints lie certain notices that were served on the Appellant purportedly in accordance with ss 155AA(4) and 155AB(4) of the Act all of which resulted in the purported dismissal under s 155AB(5) of the Appellant’s claim for review by the Board of the Repatriation Commission’s decision in respect of his 20 March 1996 claim for a pension.

13 Notification of the dismissal of the Appellant’s application was given to the Appellant by the Board by letter dated 11 March 1999. That letter provided:-

‘On 4 February 1999 I sent you a notice under section 155AB(4) about your outstanding application for review in respect of neurobehavioural disorder [a rediagnosis of the vertigo and epilepsy].

As you have not provided the written statement that I requested from you in that notice, I have dismissed your application in accordance with section 155AB(5) of the Veterans’ Entitlements Act. Enclosed are the reasons for my decision.

If you are dissatisfied with this decision, you have the right of appeal to the Administrative Appeals Tribunal (AAT). Advice on how to lodge an appeal to the AAT is attached to this letter.’

14 The Board’s attached statement of reasons referred to the fact that the Board had received from the Appellant a signed authorisation authorising one R Coxon to reply on the Appellant’s behalf to the notice which had been sent to him in accordance with s 155AB(4) of the Act. On 10 February 1999 the Board had sent the authorisation to R Coxon but no further advice had been received from the Appellant or from his authorised representative, hence the issue of the s 155AB(5) notice.

15 The main thrust of the Appellant’s attack upon the purported dismissal of the Appellant’s claim for review by the Board of the Repatriation Commission’s decision in respect of his claim for a pension of 20 March 1996, was that the dismissal of the application for review and notification thereof was that of D Smith Registrar (SA) of the Board, who signed the relevant notice as ‘Delegate of the Principal Member of the Board’ and allegedly acted outside the scope of the delegation to him.

16 As it transpires, the Principal Member of the Board until about mid 1997 had been John Patrick Gallagher.

17 The Appellant’s principal point was that when Mr Smith dealt with the Appellant’s claim in accordance with ss 155AA-155AB of the Act he was doing so as the Delegate of a person who no longer held office as Principal Member of the Board.

18 As it transpires, a separate delegation to Registrars of the Board was not issued by Mr Gallagher’s successor, Mr Rolfe, until 15 January 2001.

19 By a document in the form of an affidavit but headed ‘APPEAL AGAINST ILLEGAL CORRESPONDENCE’ the Appellant made an application to the Tribunal which it treated as an application for review of the decision to dismiss the Appellant’s application for a review by the Board under s 155AB(5).

20 On 10 March 2004 Deputy President Jarvis of the Tribunal dismissed the application and directed that the Appellant must not, without the leave of the Tribunal, make a subsequent application to the Tribunal of a kind that would seek to have the effect of, amongst other things, seeking a review by the Tribunal of the action taken by the Registrar of the Board on 11 March 1999 pursuant to s 155AB(5) of the Act to dismiss the application previously made by the Appellant to that Board.

21 The Appellant lodged an appeal from the decision of the Tribunal in accordance with s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That subsection provides:-

‘(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

22 The questions of law which were identified in the notice of appeal filed 6 April 2004 were, in essence, whether Registrar Smith had the powers of the Principal Member of the Board to act under ss 155AA and 155AB of the Act as he did following the retirement of Mr Gallagher and whether by the terms of Mr Gallagher’s delegation Mr Smith exercised his powers ‘in accordance with directions issued by me [referring to Mr Gallagher] from time to time’ or exceeded those powers.

23 Justice Lander who heard the appeal ordered that it be dismissed.

24 From that decision the current appeal has been brought. The grounds advanced in the notice of appeal were as follows:-

‘2. As Honourable Justice Lander has not made any reference to the fact that the Executive Officer of The Veterans’ Review Board, Counsel Mr Bruce Topperwien, said to my Counsel Mr Phillip Broderick, that all authorities were in place; when they were not (Deputy President Jarvis of AAT), the outcome at The Administrative Appeals Tribunal, on 8 October 1999, and 12 April 2000, would have sent my application back to the Veterans’ Review Board for a hearing.

3. Mr Topperwien has had two opportunities to refute this statement and has not, firstly at the AAT on 10 March 2004, and Federal Court 9 August 2005.’

25 Section 166 of the Act provides:-

‘(1) The Principal Member may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Principal Member, delegate to a Senior Member or to an acting Senior Member all or any of the Principal Member’s powers under this Part, other than this power of delegation.

(1A) The Principal Member may, by writing signed by him or her, also delegate all or any of his or her powers under subsection 148(6A) or section 155AA or 155AB to a registrar or a deputy registrar.

(2) A power delegated under this section, when exercised by the delegate, shall, for the purposes of this Part, be deemed to have been exercised by the Principal Member.

(3) A delegation under this section does not prevent the exercise of a power by the Principal Member.’

26 Even if the authority of Mr Smith to act on the delegation by the Principal Member of his powers under s 166(1A) of the Act as at 11 March 1999 was ineffective, the problem facing the Appellant is that this issue has already been tendered for consideration by the Court and decided adversely to the Appellant by Justice Mansfield, from whose decision an appeal to an earlier Full Court was dismissed on 9 May 2003.

27 The primary judge was plainly correct in holding that the Tribunal had no power to review its earlier decisions. Furthermore, given Mansfield J’s determination on the issue of delegation, the Tribunal could not have reached a different decision.

28 In these circumstances, there is no question of law which may properly be ventilated by the Appellant in the current appeal.

29 We agree with the Primary Judge that the guidelines issued by Mr Gallagher were not relevant to the exercise of the power by Registrar Smith under s 155AB(5) of the Act. In any event the Appellant is now estopped from seeking to attack the s 155AB(5) decision on the basis that somehow or other the delegated authority of Registrar Smith was confined by those guidelines.

30 In our opinion any representation by Mr Topperwien to the Appellant’s representative concerning whether authorities were in place, at earlier hearings of the Tribunal, is irrelevant. Furthermore, we note that at the commencement of the hearing of this appeal, the Appellant extended an apology to Mr Topperwien for his suggestion in his notice of appeal that Mr Topperwien had made any misrepresentation to his counsel concerning matters of authority.

31 In the foregoing circumstances we are of the opinion that the appeal should be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Kenny and Graham.

Associate:

Dated: 21 February 2006

The Appellant appeared in person.
Counsel for the Respondent:	S J Maharaj QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 February 2006
Date of Judgment:	21 February 2006