Francis (a pseudonym) v Commonwealth (No 4)

[2024] ACTSC 145

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Francis (a pseudonym) v Commonwealth (No 4)

Citation: 

[2024] ACTSC 145

Hearing Date: 

9 May 2024

Decision Date: 

9 May 2024

Before:

McCallum CJ

Decision: 

(1) That the questions of law specified in the application in proceeding filed 28 February 2024 be replaced by the following question: “To what extent, if any, is the Commonwealth’s liability to pay the judgment sum taken to be discharged by operation of s 30K of the Veterans' Entitlements Act 1986 (Cth)”.

Catchwords: 

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where consent orders filed following settlement of claim contemplate determination of separate question by the court – where defendant disputes the formulation of the separate question – question concerning proper interpretation of s 30K of the Veterans’ Entitlement Act 1986 (Cth) – desirability of formulating the separate question in the language of the statute

Legislation Cited: 

Court Procedure Rules 2006 (ACT) s 1521

Veterans’ Entitlements Act 1986 (Cth) ss 30C, 30K

Parties: 

Alan Francis (a pseudonym) ( Plaintiff)

Commonwealth of Australia ( Defendant)

Representation: 

Counsel

D Campbell SC ( Plaintiff)

D Davidson ( Defendant)

Solicitors

Porters Lawyers ( Plaintiff)

Norton Rose Fulbright ( Defendant)

File Number:

SC 24 of 2023

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Alan Francis (a pseudonym) joined the Royal Australian Navy in 1969 as a junior recruit. He was then aged 15 or 16.  Mr Francis claimed to have been subjected to physical and sexual abuse at HMAS Leeuwin, HMAS Sydney and HMAS Cerberus.  By originating claim filed 20 January 2023, he brought proceedings against the Commonwealth for damages for personal injury.  By that claim, Mr Francis sought compensation for pain and suffering, interference with enjoyment of life, past and future economic loss and loss of superannuation, and past and future treatment expenses.  He also sought aggravated and exemplary damages.

2․The claim was resolved out of court on 20 February 2024.  The parties filed consent orders for judgment for the plaintiff in the sum of $1,675,000.  The consent orders required the payment into court of a disputed amount, being part of the judgment sum, of $500,000 on the following terms:

(a)the defendant to pay $500,000 into court pending the court declaring pursuant to proposed separate questions to be settled by the Registrar in accordance with Division 2.15.3 of the Court Procedure Rules 2006 (ACT), whether any part of that sum is repayable by the plaintiff to the Department of Veterans’ Affairs (“DVA”) such sum being hereinafter called the “disputed amount”;

(b)the disputed amount shall thereupon be retained by the court until it is disposed of by the court in accordance with any further order that might be made by the court;

(c)the defendant otherwise is to pay to the plaintiff, or upon receipt of a duly executed authority of the plaintiff, or his solicitor, the balance of the judgment sum.

3․The requirement that the proposed separate questions be settled by the Registrar reflected the terms of r 1521(3) of the Court Procedure Rules, which contemplates that an applicant under that rule will provide a draft of the proposed question after consultation with each other active party to the proceedings.  The logic of the rule would ordinarily see the proposed question circulated among the active parties in draft, agreed upon, and then presented to the Registry for settling by the Registrar before any application for the determination of the separate question was filed in the Registry.  

4․That did not occur in the present case, perhaps because the consent orders required the plaintiff to file the application in proceeding for determination of the separate question within seven days.

5․As events transpired, the defendant did not agree with the plaintiff's formulation as attached to the application in proceeding filed in the Registry.  To expedite the resolution of that issue, rather than remit the matter to the Registrar for settling, and with the consent of both parties, I decided to dispense with the requirement for the question to be settled by the Registrar and to determine the dispute as to the way in which the question should be framed myself.  This judgment determines that application.

6․The version propounded by the plaintiff was as follows:

1.Whether upon the entry of judgment in favour of the plaintiff, or at any time thereafter, the defendant is, as a matter of law and upon the true construction of the terms of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”);

(a)      required; or

(b)      absent consent from the plaintiff, entitled to

deduct from the judgment sum and pay or cause to be paid to the Department of Veterans’ Affairs (“DVA”) any and if so what amount?

2.Whether DVA is as a matter of law and upon a true construction of the Act permitted to issue a Notice of Charge pursuant to Part IIIC of the Act (or otherwise) (“the Notice”) and to thereby deduct or cause to be deducted from the judgment sum any amount that is specified in the Notice?

3.Whether DVA is as a matter of law and upon a true construction of the Act permitted to demand repayment by or otherwise to seek recovery from the plaintiff of any moneys paid by it to the plaintiff consequent upon the entry of judgment for the plaintiff of the judgment sum?

7․It is common ground that there is no need to determine question 2, as the defendant accepts that it is not permitted to issue such a notice of charge in the circumstances of the present case.

8․The plaintiff's question 1 is calculated to resolve the issue referred to in the consent orders, which reflects a contest as to the proper application of s 30K of the Veteran's Entitlement Act 1986 (Cth). The defendant’s objection to the form of the question derives not from any derogation from the agreed position reflected in the consent orders but from its view concerning the proper formulation of the question, having regard to the terms of the statute. The question proposed by the defendant is, “to what extent is the Commonwealth’s liability to pay the judgment sum taken to be discharged by operation of s 30K of the Veterans Entitlements Act”.

9․Section 30K of the Act provides, in summary, that if a pension is payable in respect of the incapacity of a veteran from a war-caused injury, and damages have been awarded against the Commonwealth to a veteran in proceedings instituted to recover damages in respect of the same incapacity of the veteran, the liability of the Commonwealth to pay those damages is taken to have been discharged to the extent of the total amount of the payments of the pension that have been paid to the veteran or the dependant.

10․The contest between the parties, as I understood the submissions today, is whether, in the events that have occurred, that section is enlivened based on two central disputes.  I emphasise that this is not to foreclose any other arguments that might be put at the hearing of the separate question.  First, whether the consent judgment is to be understood to be or give effect to a situation in which “damages have been awarded against the Commonwealth” and, secondly, whether the proceedings were instituted to recover “damages in respect of the same incapacity of the veteran”.  The principal questions of statutory construction that will arise are the meaning of the terms “damages awarded” and “in respect of the same incapacity”.

11․Question 3 in the plaintiff’s formulation reflects his apprehension, based on correspondence with the Commonwealth, that, in addition to clawing back part of the judgment amount on the basis that its liability is taken to have been discharged by the application of s 30K, the Commonwealth, in its capacity as the relevant Veterans’ Affairs entity, proposes to reduce the plaintiff’s existing pension on the basis that its liability is taken to be reduced as a result of the consent judgment by the application of s 30C.

12․The Commonwealth submitted that that question does not arise from the consent orders and is in the nature of an application for judicial advice.  There is some force in that submission.  The consent orders are concerned with the entitlement to the sum of $500,000 defined in the consent orders as the disputed amount.  The question raised by the consent orders is “whether any part of that sum is repayable by the plaintiff”.

13․Section 30C is instead concerned with the plaintiff's entitlement to his pension, as that section has effect as a deeming provision that would reduce his pension entitlement by taking payments to have been received. On that basis, it may be accepted that question 3 does not strictly arise.

14․That said, it would appear, as the Commonwealth evidently accepts, that the s 30C issue will stand or fall with the determination of the s 30K issue, since the same phrase is used, “in respect of the same incapacity of the veteran”. In any event, I do not think it is appropriate to order that question 3 be determined as a separate question, since it does not arise in accordance with the terms of the consent orders.

15․As to question 1, both formulations in effect seek to attract the court’s consideration of the proper construction of s 30K. The principal dispute between the parties is one of the appropriate formulation of that question. With great respect to the author of the application in proceeding, I prefer the formulation put forward on behalf of the Commonwealth, which reflects a purer approach to that question of statutory construction, since it invokes the language of the statute.

Orders

16․For those reasons, in proceedings Francis v The Commonwealth, I order:

(1)That the questions of law specified in the application in proceeding filed 28 February 2024 be replaced by the following question:

“To what extent, if any, is the Commonwealth's liability to pay the judgment sum taken to be discharged by operation of s 30K of the Veterans' Entitlements Act 1986 (Cth)”.

17․A second question is posed by the document proposed by the Commonwealth which is who should pay the costs of the application.  I do not think it is appropriate for that to be the subject of a separate question application, since costs always remain in the discretion of the court and are part of the ordinary process of determining an application in proceeding.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: