Flentjar v Repatriation Commission

[1998] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M97 of 1997

B e t w e e n -

JOHN JOSEPH FLENTJAR

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 MAY 1998, AT 12.14 AM

Copyright in the High Court of Australia

MR D. DE MARCHI:   If the Court pleases, I appear for Mr Flentjar in this matter. (instructed by De Marchi & Associates)

MR P.J. HANKS:   If the Court pleases, I appear for the respondent. (instructed by the Australian Government Solicitor)

GAUDRON J:   Yes, Mr De Marchi.

MR DE MARCHI: Your Honours, it is not merely of some importance, but of fundamental importance, that justice should be not only done but should manifestly and undoubtedly be seen to be done. We submit that in the case of Mr Flentjar it cannot be said that justice was manifestly and undoubtedly seen to be done. The Court has had an opportunity of perusing the application book in relation to this matter. There are four grounds of appeal that we say raise substantial points for the intervention of the High Court. These points are, first of all, a lack of procedural fairness, bias, the legislative question, the question of the relationship between section 24 of the Veterans’ Entitlements Act and section 119, and the question of the Court engaging in the fact-finding process reserved for the Tribunal in its investigation. If I could take the Court to pages 24 and 25 of the application book, the Court will see there the offending passages of his Honour Justice Spender. We say that when they are read with the reasons of the decision of his Honour on page 37 ‑ ‑ ‑

GAUDRON J:   Tell me exactly what you complain about, Mr De Marchi.

MR DE MARCHI:   We complain, your Honour, about the fact that the Court is saying that the special rate pension is in fact a gravy train.

GAUDRON J:   That is not what the Full Court said his Honour said and that does not seem to be what his Honour said at all.

MR DE MARCHI:   The Full Court, your Honour, with respect, on page 67 of the application book said:

In context, his Honour appears to be commenting critically on a suggestion that section 24(1)(c) can give rise to payment of a special rate being payable during the period when the veteran would probably not have been working, even if he did not have a war‑caused injury.

GAUDRON J:   Yes.

MR DE MARCHI:   Clearly, what his Honour is saying there that Justice Spender was saying that he does not believe that veterans who are over the age of 65 should be entitled to the pension at the special rate.

GAUDRON J:   No, it is not ‑ ‑ ‑

MR DE MARCHI:   That is not the legislation.  That is the only implication that can be given to that particular statement and, in fact ‑ ‑ ‑

GAUDRON J:   It is not, Mr De Marchi.  It has got to be read in context, where his Honour is testing the argument. 

MR DE MARCHI:   If we read it in context, your Honour, with respect, at page 24, the preceding passages, you will see that his Honour questioned counsel for the Commission, who was saying that in fact there was no examination of the question of whether there was a capacity to work.  His Honour says, at the bottom of the page, line 34:

Well, unfortunately there is some evidence at 16 - line 24:

I was going to keep it all my life and leave it in the will.

Then over the page he says:

It was a very generous finding.  Anyway, yes.

That is the finding that in fact Mr Flentjar was entitled to the special rate pension.  Then counsel for the Commission attempted to take his Honour to the page where it appeared that his Honour was disposed to agree with a passage in Smith, which his Honour was a member of that court.  His Honour says:

Yes, this caused a lot of trouble, as I understand it.  Yes, it did.  I think Smith was the case that led to veterans lobbying ensuring that a TPI pension lasted for life.

The comments that were made in Smith where the Court doubted that in fact a special rate pension should in fact continue to be paid for life. 

CALLINAN J:   This is a just a robust debate about the history of the change in the sections.

MR DE MARCHI:   We say that it lends more than that, your Honour.  Even if it was a robust debate between lawyers, the point, of course, is whether there was ostensible bias in relation to the statement, in particular the statement of ‑ ‑ ‑

CALLINAN J:   With a view to teasing out the meaning of the section and not for any other purpose.  The apprehension must be held by a fair‑minded or reasonable person, and a reasonable person, hearing and looking at this would say, “This is a debate between lawyers about how the section should be construed.”

MR DE MARCHI:   So far, so good, your Honour.  However, when his Honour says:

But it means the special rate is a gravy train.  Yes.

What does then the lay independent observer say about how his Honour is going to deal with this particular ‑ ‑ ‑

CALLINAN J:   The lay independent observer says that it is the trial judge’s view that the rate is quite a generous rate. 

MR DE MARCHI:   Your Honour, the point, of course, is that his Honour definitely believes that, but he comes with those preconceived ideas, we say, respectfully, in making those particular comments on a very important piece of legislation for veterans, the very highest pension that can be paid to veterans.

CALLINAN J:   No point was taken about that and that is why you say you have to point to the reasons, is it?  The conclusion that his Honour reached, you say that that revives some uncomplained about bias earlier, is it?

MR DE MARCHI:   Yes.  We say, your Honour, that Vakauta v Kelly is clear authority for that proposition, that in fact ‑ ‑ ‑

CALLINAN J:   What passage in the reasons revives the unimpeded or the unchecked, the unchecked bias earlier?

MR DE MARCHI:   We say, your Honour, that they are conveyed in the reasons for decision of his Honour at page 37:

Having regard to all the circumstances, including the fact that he would at that time be aged more than 77 years of age (a time when almost all workers have retired from remunerative employment) -

CALLINAN J:   But that is right, is it not?

MR DE MARCHI:   That is not right, your Honour, there are laws against age discrimination, your Honour.

CALLINAN J:   There are also laws that require some people to retire from some jobs ‑ ‑ ‑

MR DE MARCHI:   That is so, but not the ‑ ‑ ‑

CALLINAN J:   - - -including the presiding Judge and myself.

MR DE MARCHI:   That is so, your Honour, but not pursuant to the Veterans’ Entitlements Act.  His Honour seems to be overlooking the fact ‑ ‑ ‑

GAUDRON J:   But you seem to be overlooking the fact that there was a question whether he would otherwise have been in receipt of income.

MR DE MARCHI:   That was a question for the Tribunal, your Honour, to find; it was a question of fact.

GAUDRON J:   Yes, and they found it, and that was what was challenged, that precise finding.

MR DE MARCHI:   Yes, that finding was challenged.  That is another issue.  But the bias issue, your Honour, that I am agitating is that the case of Vakauta v Kelly does not cover all of the various possibilities that in fact occur before the courts.

CALLINAN J:   This case does not look to me anything like Kelly’s Case, where the trial judge made some very strong comments about some professional witnesses whom he had heard on other occasions.  The facts, for a start, are entirely different, and I must say I do not think the statement of principle in that case had any application to what his Honour said here. 

MR DE MARCHI:   That is so, your Honour; there is no question about that.  What I am suggesting to the Court is that it is a matter of such concern in the proper administration of justice that judges ought to, respectfully, not make comments such as the comments that were made by his Honour Justice Spender, that if in fact there is no direct challenge, but perhaps an indirect challenge, or even if there is no challenge at all, but upon the reading of the subsequent opinion of the Court there is a possibility that a bystander may observe the implied bias, that the Court should intervene in those particular circumstances.  We say that as far as the law in Australia is concerned, it is by no means clear, and the case of Vakauta v Kelly, although, strictly speaking, the factual situations in this case do not amount to the same level of ostensible bias, we say that it is nevertheless an important point for this Court to consider.

GAUDRON J:   You have to show where Justice Branson erred in that regard.  What do you say her error was?

MR DE MARCHI:   We say that her error, your Honour, was not to examine at all the renewal of the bias in the decision.  That was clearly raised as a point of error of law in the appeal and her Honour does not deal with that at all.

GAUDRON J:   That is at a time when most people are not working.  That is all you point to in that regard. 

MR DE MARCHI:   No, that “the special rate is a gravy train.”

GAUDRON J:   No, no, the renewal.  We were talking about the renewal. 

MR DE MARCHI:   The renewal ‑ ‑ ‑

GAUDRON J:   That seems to me a fanciful proposition.  That was the issue to be determined by reason of the challenge to the Tribunal’s finding.  It was direct - it was part of the issue; it was directly relevant, and it seems to me quite fanciful to put an argument that that renewed any bias that was there, Mr De Marchi.

MR DE MARCHI: As the Court pleases on that particular point. May I move on, your Honour, to the court’s failure to deal with the relationship between section 24 and section 119 of the Veterans’ Entitlements Act. The court did not deal with that relationship at all. We say that the interpretation of section 24 is governed and receives colouring from section 119 and the beneficial nature of the legislation. Section 24 of the Veterans’ Entitlements Act provides for the ‑ ‑ ‑

GAUDRON J: Before you go to that, what construction, then, do you place on section 24 that you say was not adopted?

MR DE MARCHI: No, we say that section 119, in the supplementary material that was provided - if I could take you to that section briefly, your Honour - you will see that it goes quite a long way towards requiring special consideration in veterans’ matters. It has phrases that your Honour would have come across in other legislation, but it does have a particular clause that takes the matter further:

In considering, hearing or determining, and in making a decision in relation to:

(a)  a claim or application.....

the Commission:

may inform itself on any matter in such manner as it thinks just;
.....
(g)  shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. 

So far, that is fairly normal stuff.

CALLINAN J: Which parts do you say were infringed? Which part of - do you say any part of section 119 ‑ ‑ ‑

MR DE MARCHI: Yes, we say section 119(1)(h), where it says:

without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)  the effects of the passage of time -

CALLINAN J:   What specifically do you say should have been found that was not found, as it should have been, on the proper application of that clause?

MR DE MARCHI: We say, your Honour, the failure to apply this particular section to section 24 meant that the reading of section 24 was not given the beneficial colouring that it ought to have been given if the section had been taken into account.

CALLINAN J: What fact would have been found differently had section 119 been given colour, as you say it should have done, to section 24? What particular fact would have been found differently?

MR DE MARCHI:   It might have been a multiple of factors, your Honour ‑ ‑ ‑

CALLINAN J:   No, no, what factors do you say would have been found differently?  Not what might have been found, what in fact would or should have been found differently?

MR DE MARCHI:   The passage of time between, of course, the time that Mr Flentjar was in fact driving his cab, the information that might have been available in relation to the leasing of the licence, all of the ancillary matters that were surrounding the possibility of the veteran continuing to operate his taxi cab.  We say, though, that there is a fundamental error on the part of the court in not taking this particular section into account.

CALLINAN J:   Mr De Marchi, this is an evidentiary provision.  Clause ‑ ‑ ‑

MR DE MARCHI:   We say it is more than that.

CALLINAN J:   No, please listen for a moment.  Clause (h) is plainly an evidentiary provision.  It is designed to excuse the failure or the inability to prove a matter, perhaps to the same strength as it might otherwise be proved; it is purely evidentiary.

MR DE MARCHI:   We say it is more than that, your Honour, with respect.

CALLINAN J:   What else is it?

MR DE MARCHI: We say that when given its proper reading, that without limiting the generality of the evidentiary requirements, it must take into account, in examining or hearing and determining the matter, it must take into account any difficulties that in fact lay in the way of ascertaining the existence of facts and the effects of the passage of time, including any factors attributable to that. The other point is that in failing to examine this particular section the Court had failed to adopt a benevolent view in relation to section 24. If the Court examines the examination of the court in relation to section 24, it is a clinical legalistic examination; it does not, at any stage, take into account the beneficial nature of the legislation.

In addition, your Honours, section 33 of the Administrative Appeals Tribunal Act in fact gives the same type of direction to the Tribunal in its fact-finding mission.  It empowers the Tribunal to look at the relevant legislation, and this is beneficial legislation, your Honours.  I have given the Court the extraneous material in relation to all of the pronouncements that the Government is making in relation to veterans.  It is undoubted that the Government intends to confer every possible benefit to veterans in recognition of their service to their country.

Your Honour, that particular approach is nowhere to be seen in either the appeal of Mr Justice Spender nor of the Full Federal Court.  They simply examine the positions in clinical detail and reject them.  The matters that the court examine, would the applicant have actually worked, examined the factors that had not been raised by the Commission.  The Commission did not raise the questions that the court raised, both his Honour Justice Spender and the Full Federal Court.  We say that to allow this decision to stand reverses the intention of Parliament and reverses the thrust of the whole operation of the Veterans’ Entitlements Act in as far as section 24 is concerned. It is an important section; it is a section that should be applied in context with the Government’s intention in relation to it. Can I take briefly the Court to the various pronouncement that had been made by Government in relation to veterans generally ‑ ‑ ‑

GAUDRON J:   What is the person of this?

MR DE MARCHI:   The purpose, your Honour, is to point out to the Court that the Federal Government firmly believes that Australian veterans deserve the highest standards of support.

GAUDRON J:   We act on the basis of what the legislation says. 

MR DE MARCHI:   That is so, your Honour.

GAUDRON J:   And that is all we can act on.

MR DE MARCHI:   That is true, your Honour.  But, of course, the legislation, as you are aware ‑ ‑ ‑

CALLINAN J:   Particularly when it is unambiguous, as we think it is.

MR DE MARCHI: Your Honour, section 24 is a very difficult section to apply; it is a difficult section. In Starcevich’s Case the Court has said:

it is difficult enough in its application. Section 24(1)(c) ought to be given a beneficial interpretation.

The court has not done that.  We say that in fact there is a contradiction between the Full Federal Court in Starcevich and this Full Federal Court, a matter that ought to be - have the attention of this Court so that the section 24 applications are in fact pursued according to the spirit of the legislation. As the Court pleases.

GAUDRON J:   Thank you, Mr De Marchi.  We do not need to hear from you, Mr Hanks. 

The Court is of the view that there is no reason to doubt the correctness of the decision of the Full Federal Court.  Accordingly, special leave is refused.

MR HANKS:   We do ask for costs, if the Court pleases.

GAUDRON J:   What do you say about costs, Mr De Marchi?

MR DE MARCHI:   The only matter that I can say, your Honour, is what I said to the Full Federal Court, that the veteran and - his wife is now deceased, but the veteran is in very poor health and he will find it extremely difficult to pay those costs.

GAUDRON J:   Yes.  The application is persisted in, is it?

MR HANKS:   If the Court pleases, it is.  It will, of course, be a matter for my client as to what steps are taken to enforce any order.

GAUDRON J:   Yes, thank you.  In the circumstances, the application will be refused with costs.

MR HANKS:   If the Court pleases.

GAUDRON J:   The Court will now adjourn to reconstitute.

AT 12.35 PM THE MATTER WAS CONCLUDED