Johnson v Veterans' Review Board

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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,…

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Details
Case
[2003] FCAFC 89
Decision Date

CaseChat Overview and Summary

The case of Johnson v Veterans' Review Board involved an appeal by the appellant, Johnson, against a decision made by the primary judge, Mansfield J. The appellant sought to challenge a decision made by the Repatriation Commission, which had rejected his claim for a Special Rate pension on the basis of vertigo and epilepsy. Johnson had sought a review of this decision, but the hearing was repeatedly deferred at his request. Subsequently, the Veterans' Review Board issued a notice to Johnson, requesting a statement of readiness for a hearing or reasons for unreadiness. Johnson responded with reasons for not being ready, and the Board granted an extension. However, Johnson failed to respond to a subsequent notice, leading to the dismissal of his application for review. Johnson's appeal was focused on the validity of the notice given by the Board and the timeliness of its issuance.

The legal issues in this case centred on the interpretation and application of sections 155AA(4), (5), (6), and (7) of the relevant Act. Specifically, the appellant argued that the Board's notice was invalid because it was issued more than six months after the standard review period had expired. The primary judge, Mansfield J, needed to determine whether the Board was required to issue such a notice immediately upon the expiration of the review period and whether any delay in issuing the notice rendered it invalid. Additionally, the court had to assess whether the Board's failure to issue the notice within a reasonable time frame, once the criteria for its issuance were met, would invalidate the notice.

Mansfield J held that section 155AA(4) of the Act is not triggered until two criteria are satisfied: the standard review period must have expired, and the Principal Member must be satisfied that the applicant should be ready to proceed to a hearing. The judge found that Johnson had not demonstrated that the second criterion was met on or shortly after the expiration of the review period. The court further held that any delay in issuing the notice, even after the criteria were met, did not invalidate the notice, provided it otherwise satisfied the terms of the Act. Mansfield J’s reasoning was based on the statutory context and the language of the Act, as well as the consequences of failure to comply with the statutory requirements.

The appeal was ultimately dismissed by the court, and Johnson was ordered to pay the second respondent's costs of the appeal. This decision underscored the importance of timely compliance with statutory requirements in administrative law, while also affirming the flexibility within which such requirements could be applied in practice.

Orders

Orders of the court

1. The appeal be dismissed.

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

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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. 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.” 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. 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.” 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) 108 ALR 107 at 122-123.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.