Ferdinands v Minister for Defence - [2012] HCATrans 266

[2012] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A22 of 2012

B e t w e e n -
TREVOR KINGSLEY FERDINANDS
Plaintiff
and
MINISTER FOR DEFENCE
Defendant
Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 24 OCTOBER 2012, AT 10.13 AM

MR P.H. D’ASSUMPCAO: If your Honour pleases, I appear for the defendant, the Minister for Defence. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you. Yes, Mr d’Assumpcao.

MR D’ASSUMPCAO: Your Honour, there has been no attendance by the plaintiff at this time. In Adelaide time it is now approximately 9.43 am. In the time available, I did a quick survey of the rules and I could not find a relative rule relating to dismissing the application for failing to attend other than in the context of rule 13 which applies to interlocutory applications or other applications.

HER HONOUR: Yes.

MR D’ASSUMPCAO: In the circumstances, the defendant would pursue the application for dismissal pursuant to rule 27.094, your Honour, and I acknowledge at the outset that the Court’s powers under that rule are only to be exercised in the clearest of cases and where the application is manifestly groundless. Your Honour, the defendant relies on the affidavit of Cabrini Rita Shepherd affirmed on 13 September 2012.

HER HONOUR: Yes, thank you. I have read that.

MR D’ASSUMPCAO: Thank you, your Honour. You will find some familiar judgments in there.

HER HONOUR: Yes.

MR D’ASSUMPCAO: Your Honour, I have also filed an outline of submissions on Monday and a list of authorities yesterday.

HER HONOUR: Yes, I have those and read those.

MR D’ASSUMPCAO: Thank you. I respectfully make two short points in relation to the submissions. The first point is that the gist of the plaintiff’s application, which rests substantially on section 75(v) relief, seeks to compel the Minister to produce certain documents. The granting of that relief, your Honour, in my respectful submission would be premature, and I say that because that picks up the language adopted by Justice Kirby both in Re Heerey, which is item number 2 on the list of authorities, and also in Re Carmody; Ex parte Glennan 173 ALR 145. I will turn to that in a moment, but the point being, your Honour, that in the circumstances of this case where other avenues should have been exhausted. Provision or the issuing of constitutional writs should not even, in my respectful submission, be considered. In those circumstances, the proceeding amounts to an abuse of process.

I had in mind to direct your attention to some particular paragraphs in Glennan; that is the decision of Justices Gummow, Hayne and Callinan. In particular, your Honour, that was a case where the Commissioner had disallowed an objection to a taxation assessment and the Court observed that the Taxation Administration Act 1953 gave a right of appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCATrans 266
Decision Date

CaseChat Overview and Summary

In *Ferdinands v Minister for Defence*, the applicant, Mr. Ferdinands, sought judicial review of a decision made by the Minister for Defence concerning his eligibility for a disability pension under the *Veterans' Entitlements Act 1984* (Cth). The dispute centred on whether Mr. Ferdinands' conditions were attributable to his service in the Australian Defence Force. The matter came before Crennan J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister for Defence had erred in law in determining that Mr. Ferdinands' conditions were not sufficiently connected to his defence service to warrant the grant of a disability pension. This involved an examination of the statutory interpretation of the relevant provisions of the *Veterans' Entitlements Act 1984*, particularly those relating to the onus of proof and the standard of satisfaction required for a favourable determination.

Crennan J's reasoning focused on the proper application of the "reasonable hypothesis" test, a key principle under the Act. His Honour found that the delegate had failed to adequately consider all the evidence presented by Mr. Ferdinands, including medical opinions, and had applied an inappropriately high standard of proof. The Court held that the delegate's decision was affected by an error of law because it did not properly engage with the statutory framework designed to provide benefits to veterans where a reasonable hypothesis exists linking their conditions to service.

Consequently, Crennan J set aside the delegate's decision and remitted the matter to the Department of Veterans' Affairs for redetermination according to law.

Orders