FEDERAL COURT OF AUSTRALIA
Johnson v Veterans’ Review Board [2002] FCA 1543
VETERANS’ AFFAIRS – application to Veterans’ Review Board for review of decision of Repatriation Commission – delay in prosecuting application – application dismissed under s 155AB(5) for failure to respond to notice given under s 155AB(4) that application should proceed or reasons for further delay provided – whether notice under s 155AA(4) entitled to be given after elapse of time from expiration of “standard review period” – whether notice could be given by delegate of Principal Member without designating in notice the fact of delegation – whether delegation valid notwithstanding delegator had ceased to occupy office as Principal Member and new Principal Member had made no fresh delegation.
STATUTORY INTERPRETATION – delegation by Principal Member of Veterans’ Review Board of functions under ss 155AA and 155AB of Veterans’ Entitlements Act 1986 – delegator ceased to occupy office and new Principal Member had not made fresh delegation – whether obligation still valid – construction of s 166 of Veterans’ Entitlements Act 1986.
STATUTORY INTERPRETATION – delegation by Principal Member of Veterans’ Review Board of functions under s 155AA and 155AB of Veterans’ Entitlements Act 1986 – whether necessary for delegatee to refer to delegation when exercising delegated powers.
Veterans’ Entitlements Act 1986 (Cth), s 13(1), 155AA, 155AB, 155AD, 142, 158 166
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Administrative Decisions (Judicial Review) Act 1977, (Cth), s 11
Judiciary Act 1903 (Cth), s 39B
Veterans’ Affairs Legislation Amendment Act 1992 (Cth)
Public Service Act 1922 (Cth), s 25(5)
Migration Act 1958 (Cth), s 176(1)
Acts Interpretation Act 1901 (Cth), s 34AACoffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375 – referred to
Tasker v Fullwood [1978] 1 NSWLR 20 – referred to
Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 108 ALR 107 – referred to
Kelly v Watson (1985) 10 FCR 305 – followed
Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 – discussed
Broadbridge v Stammers (1987) 76 ALR 339 – referred to
Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330 – referred to
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 – referred to
Du Pont (Australia) v Comptroller-General of Customs (1963) 30 ALD 829 – referred toKEITH DOUGLAS JOHNSON v VETERANS’ REVIEW BOARD & REPATRIATION COMMISSION
S 193 of 2002
MANSFIELD J
13 DECEMBER 2002
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S.193 OF 2002
BETWEEN:
KEITH DOUGLAS JOHNSON
APPLICANTAND:
VETERANS' REVIEW BOARD
FIRST RESPONDENTREPATRIATION COMMISSION
SECOND RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
13 DECEMBER 2002
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
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
S.193
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- Case
- [2002] FCA 1543
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Board had correctly applied the statutory provisions in dismissing Mr. Johnson's application. Specifically, the court needed to determine if the Board's decision was in accordance with s 155AB, which deals with the power to dismiss an application for review after an extension notice has been given. The court also needed to consider whether the Board's decision was reasonable and lawful under the relevant statutory framework.
The court examined the statutory provisions and the Board's decision-making process. It found that the Board had correctly applied the statutory provisions in dismissing Mr. Johnson's application. The court held that the Board was entitled to dismiss the application as Mr. Johnson had failed to provide a reasonable explanation for his failure to proceed with the hearing within the extended review period. The court concluded that the Board's decision was lawful and that there was no basis to interfere with the decision.
As a result of the court's findings, the application was dismissed. The court confirmed the Board's decision and upheld the dismissal of Mr. Johnson's application for review.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
To apprehend the basis for the present attack on the decision of the Tribunal of 12 April 2000 and of the Board of 11 March 1999, it is necessary to identify precisely the foundation for the Board’s decision. It was made pursuant to s 155AB(5) of the Act. Sections 155AA and 155AD of the Act deal with the process by which the Board may bring to a head an application for review from a decision of the Commission which has not progressed in a timely manner. Section 155AA provides:“Power to dismiss application – initial consideration(1)In this section:standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia.(2)This section applies to an application for review unless:(a)the hearing of the review has finished within the standard review period; or(b)as at the end of the standard review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.(3)For the purposes of paragraph 2(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.(4)If, at the end of the standard review period:(a)this section applies to an application for review; and(b)the Principal Member considers that the applicant should be ready to proceed at a hearing;the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;(c)a written statement indicating that the applicant is ready to proceed at a hearing; or(d)a written statement explaining why the applicant is not ready to proceed at a hearing.(5)If the applicant does not provide a written statement under paragraph 4(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.(6)If:(a)the applicant provides a written statement under paragraph (4)(d) within the 28 days; and(b)the Principal Member considers that the statement contains a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;the Principal Member must notify the applicant and the Commission of this.(7)If:(a)the applicant provides a written statement under paragraph (4)(d) within the 28 days; and(b)the Principal Member considers that the statement does not contain a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.” Section 155AB provides:“Power to dismiss application – subsequent consideration(1)In this section:extended review period, in relation to an extension notice, means the period of 3 months after the day on which the Principal Member has given the extension notice to the applicant for review.extension notice means a notice under subsection 155AA(6) or subsection (6) of this section.(2)If the Principal Member has given an applicant for review an extension notice, this section applies to that application unless:(a)the hearing of the review has finished within the extended review period; or(b)as at the end of the extended review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.(3)For the purposes of paragraph (2)(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.(4)If this section applies to an application for review at the end of the extended review period, the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice:(a)a written statement indicating that the applicant is ready to proceed at a hearing; or(b)a written statement explaining why the applicant is not ready to proceed at a hearing.(5)If the applicant does not provide a written statement under paragraph (4)(a) or (b) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.(6)If:(a)the applicant provides a written statement under paragraph (4)(b) within the 28 days; and(b)the Principal Member considers that the statement contains a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;the Principal Member must notify the applicant and the Commission of this.(7)If:(a)The applicant provides a written statement under paragraph (4)(b) within the 28 days; and(b)The Principal Member considers that the statement does not contain a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.”