Judge, F.D. v Commonwealth Superannuation Board
[1992] FCA 167
•06 APRIL 1992
Re: FRANK DAVID JUDGE
And: COMMONWEALTH SUPERANNUATION BOARD
No. ACT G67 of 1991
FED No. 167
Administrative Law
(1992) 27 ALD 498 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Judicial review - Decision of Superannuation Board not to approve the retirement of a public servant on invalidity grounds - Power in Superannuation to reconsider the decision - Public servant proposing request for reconsideration but later declining to do so - Power in Board to move of its own motion - Whether hearing of application for order of review should be adjourned pending reconsideration of the decision by the Board.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Superannuation Act 1976 (Cth), Parts IVA and XA
HEARING
CANBERRA
#DATE 6:4:1992
Counsel for the applicant: Mr D.J. Peters
Solicitors for the applicant: Hanstein and Co.
Counsel for the respondent Board: Mrs V.J. Bonsey
Solicitor for the respondent Board : Australian Government Solicitor
ORDER
The application be adjourned for mention on 5 June 1992.
Liberty be reserved to the applicant to bring the application before the Court on seven days' notice if the events, including a failure of the Board to undertake a reconsideration of the decision of 5 September 1991 or undue delay in the reconsideration process, warrants that course.
The costs of the respondent's motion notice of which was given on 20 March 1992 be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 12 November 1991, Frank David Judge ("the applicant") commenced a proceeding in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision of the Commonwealth Superannuation Board ("the Board") made on 5 September 1991 described as a decision under sub-s.54H(2) of the Superannuation Act 1976 (Cth) not to approve the retirement of the applicant from the Australian Public Service.
The grounds of the application are that a breach of the rules of natural justice occurred in connection with the making of the decision, that procedures required by law to be observed in connection with the making of the decision were not observed, that the decision involved an error of law, that there was no or no sufficient evidence or other material to justify the making of the decision, that the decision was otherwise contrary to law and that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The relief sought was expressed in the application in the following terms:
"1. An order (or declaration) that the applicant is entitled to a certificate in writing of the respondent that if the applicant is retired on the ground of invalidity he will be entitled to receive benefits under Division 4 of Part V of the Superannuation Act 1976.
2. An order (or declaration) that the applicant is totally and permanently incapacitated for the purposes of Part IVA of the Superannuation Act 1976.
3. Alternatively an order setting aside the decision ab initio.
4. Alternatively an order referring the matter to which the decision relates to the respondent with a direction that the applicant is totally and permanently incapacitated for the purposes of Part IVA of the Superannuation Legislation Amendment Act 1990 (sic).
5. Further or alternatively an order directing the respondent to certify in writing that if the applicant is retired from the employment by virtue of which he is an eligible employee on the ground that because of a mental or physical condition the applicant is unable to perform his duties then the applicant will be entitled to receive benefits under Division 4 of Part V of the Superannuation Act 1976.
6. Such further or other order (or declaration) as to the Court may seem meet."
Four affidavits have been filed in support of the application, being two affidavits sworn by the applicant on 13 February 1992, an affidavit of James Richard Dickson sworn on 6 February 1992 and an affidavit of Dermot John Peters sworn on 13 February 1992.
Prior to filing any affidavits in reply, the Board has applied by motion, notice of which was given on 20 March 1992, for an order that the further hearing of the substantive application be adjourned until such time as the Board "has reconsidered and determined the applicant's request to it for the approval of his retirement from the Australian Public Service on the ground of invalidity", an order that the costs of the notice of motion be reserved and for such other order as the Court might think fit. I interpolate that no order is sought under sub-s.10(2) of the Judicial Review Act that the Court refuse to entertain the substantive application on the ground that adequate provision is made by the Superannuation Act under which the applicant is entitled to seek a review by the Board of the decision of 5 September 1991.
As appears from the affidavit of Valerie Joan Bonsey sworn on 19 March 1992 and filed in support of the motion, the orders are sought on the basis of the material contained in the affidavits filed on behalf of the applicant to which reference has already been made and the response to that material by the Board as set out in a letter dated 11 March 1992 from the Australian Government Solicitor to the solicitors for the applicant. That letter read as follows:
"I refer to the above proceedings and note that on 13 February 1992 you filed 3 affidavits in support of your client's ADJR application.
I note that the affidavits filed on behalf of the applicant include an affidavit from the Divisional Director of the ACT Division of the Australian Society of Certified Practising
Accountants which relates to the applicant's ability to practise as a principal in an accounting practice. I note also that the affidavit of the applicant testifies to restrictions upon his practising as an accountant in the private sector.
I note further that your client has deposed to his intention to provide further evidence from his current psychiatrist and that that evidence will accompany an application for re-consideration under section 54V of the Superannuation Act 1976. Furthermore, one of the applicant's affidavits sworn on 13th February 1992 annexes evidence of relevance from his psychologist. All of the above material relating to the applicant's medical status and his inability to practise as an accountant in the private sector is of course new evidence which is relevant to the question whether the Board should approve the applicant's retirement upon a re-consideration.
Under the circumstances, my client takes the view that the matter presently before the Federal Court should be adjourned sine die pending the further consideration which will take place. In the event that the re-consideration gives rise to a decision in your client's favour, then the Federal Court proceedings will of course be unnecessary. Should the re-consideration result in a decision negative to your client, then your client may wish to challenge that further decision. However, either way, consideration by the Federal Court of the current decision would be to no avail to your client since, in the circumstances posed (i.e. a new decision having been made), a successful challenge to the earlier decision would leave the later decision still on foot. My client notes that one of your grounds in the present proceedings raises issues of natural justice. Whilst the respondent in no way concedes any error of natural justice on its part, I am instructed to advise you that in the re-consideration process, the Board will ensure that your client has an opportunity to be heard in relation to both the recommendations of the Assessment Panel and the recommendations of Comcare. The specific proposal is that you should be provided with all documents which are presented to the Board from the Panel and Comcare and that you should be given a specific period to comment upon those before the Board makes it (sic) decision. Under the circumstances, I seek your agreement to this matter being adjourned sine die so that the matter can be re-considered under the Superannuation Act 1976.
In the event that you do not agree to the course proposed, it is the respondent's intention to apply by Notice of Motion to the Federal Court within 14 days of today's date to seek to have the Federal Court proceedings adjourned sine die.
The respondent has not yet filed the affidavit evidence which is due by 14 March. However, under the circumstances, in order to minimise costs, I assume you will consent to an extension of time for those affidavits to be filed pending resolution of the course of action now proposed."
That letter drew a reply, dated 11 March 1992, from the applicant's solicitors in the following terms:
"We have your letter dated 11.3.92. We believe we are entitled to have your affidavits before considering whether to consent to postponement of the Federal Court hearing. Pending receipt of the affidavits, in our view the available material does not found any reasonable expectation that a request for reconsideration would be handled fairly and promptly, but rather shows that instead requests for certificates are refused virtually as of course, perhaps pursuant to a deliberate policy. It would be interesting to know how many certificates have been requested, and how many issued, since new legislation began to operate. Perhaps your affidavits, presumably identifying and annexing the documents and other material considered by the Board, will alter that impression. We believe we are entitled to see your material in answer before further directions are sought or given, and that your request is premature. May we ask why you have waited until the last minute? (We can, of course, understand why your client might not wish to provide affidavit material.)"
The reply is to be read against the background that the statement in the substantive application of the relief sought by the applicant reflects, at least in part, a misconception of the proper role of the Court under the Judicial Review Act. It would also seem that the inclusion of certain material in the affidavits filed on behalf of the applicant is based on such misconception.
The applicant by his counsel opposed the making of the orders sought by the Board.
Although the affidavits filed in the substantive application on behalf of the applicant were not read on the hearing of the motion, it is necessary to refer to what appear to be uncontroverted facts appearing from those affidavits in order to provide a setting against which the desirability of making the orders sought by the Board may be considered.
It appears from those affidavits that the applicant is, and has at all material times been, employed in the Department of Administrative Services of the Commonwealth. It may be accepted that, as such, he is an "eligible employee" within the meaning of that expression in sub-s.3(1) of the Superannuation Act. It also appears from those affidavits that the applicant has been continuously on compensation leave, as defined in s.54A, since 30 March 1989; that a Commonwealth Medical Officer, after examination of the applicant on 25 September 1990, reported that he was unfit to resume employment and that he was totally and permanently incapacitated; that the Board was then requested to consider the retirement of the applicant from the Australian Public Service on the ground of invalidity, the Department of Administrative Services recommending that he be so retired on the ground of total and permanent incapacity; that the Invalidity Retirement Assessment Panel to which the matter was referred in accordance with ss.54F and 54H of the Superannuation Act recommended that the applicant could not be classified as totally and permanently incapacitated as defined in that Act and that he be redeployed in a less stressful situation; and that the Board, accepting that recommendation, made the decision which is the subject of the substantive application.
At the material time, sub-s.54C(1) of the Superannuation Act provided that an eligible employee who had not reached his or her maximum retirement age was not capable of being retired from the employment or office by virtue of which he or she was an eligible employee on the ground that, because of any mental or physical condition, the eligible employee was unable to perform his or her duties, unless the Board had certified in writing that, if the eligible employee was so retired, he or she would be entitled to receive benefits under Division 4 of Part V of the Act. The Board was not to give a certificate in respect of an eligible employee under sub-s.(1) unless the Board had approved the retirement of the eligible employee on the ground of invalidity in accordance with Div.2 of Part IVA (sub-s.54C(2)).
By virtue of s.54E, a request to the Board for the approval of the retirement of an eligible employee might be made by, inter alios, the eligible employee or the person or body by which the eligible employee was employed.
Sub-section 54H(1) provided:
"(1) If, after considering:
(a) any medical report submitted with the request to approve the retirement of an eligible employee; and
(b) any other matter that it considers relevant; the Board is satisfied that, because of his or her mental or physical condition, the eligible employee is totally and permanently incapacitated, the Board may decide to approve the retirement of the eligible employee without appointing a panel of persons under subsection 54F(1) or seeking the recommendations of Comcare under section 54G."
The expression "totally and permanently incapacitated" had the meaning given by s.54B which provided:
"For the purposes of this Part a person is totally and permanently incapacitated if, because of a mental or physical condition, it is unlikely that the person will ever be able to work in any employment or hold any office for which the person:
(a) is reasonably qualified by education, training or experience; or
(b) could become reasonably qualified after retraining."
The reference in sub-s.54H(1) to Comcare was a reference to the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees established under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (Superannuation Act, s.54A).
Sub-section 54H(2) provided:
"If subsection (1) does not apply, the Board, after:
(a) taking into consideration the recommendations made to the Board under subsection 54F(4) and section 54G; and
(b) ascertaining whether it is practicable for the eligible employee to find employment, or to be appointed to an office, for which he or she is reasonably qualified by education, training or experience or could become reasonably qualified after retraining; must decide whether or not to approve the retirement of the eligible employee."
Sub-s.54F(1) provided for the appointment of a panel consisting of such number of persons as the Board determined to assist it in reaching a decision whether or not to approve the retirement of an eligible employee. The panel appointed under sub-s.54F(1) is referred to in the material before the Court as the Invalidity Retirement Assessment Panel. By sub-s.54F(4), the members of the panel were required, within the period of two years specified in sub-s.54F(5), to make recommendations in writing to the Board, giving reasons for their recommendations:
(a) on the question whether the eligible employee was totally and permanently incapacitated; and
(b) on any other matter that the panel considered relevant or the Board might require.
It appears from the minutes of the relevant meeting of the Board that it was not satisfied that the applicant was totally and permanently incapacitated with the consequence that the matter was submitted to the Invalidity Retirement Assessment Panel and that, following receipt of the panel's recommendation and that of Comcare, the Board made the decision the subject of the application for an order of review.
The Superannuation Act as at present in force contains provisions in Part XA (ss.153AA, 153AB-153AD and 153AM-153AS)) pursuant to which a decision of the Board may be reconsidered. Those provisions replace provisions which had previously been in force but which were repealed by s.21 of the Superannuation Legislation Amendment Act 1991 (Cth). The new provisions were enacted by s.55 of that Act. Sections 21 and 55 of the amending Act came into operation on 2 September 1991 (see s.2(5) of the amending Act).
By s.153AM, a person affected by a decision made by the Board may apply to the Board for a reconsideration of that decision (sub-s.(1)). An application is to be in writing addressed to the Board, and is to set out particulars of the decision that the person wishes to be reconsidered and specify the grounds for reconsideration of those particulars (sub-s.(2)). "Decision", as defined in sub-s.153AA(1), includes a decision made by the Board relating to the retirement of an eligible employee as provided by Part IVA, a Part which includes s.54H. A decision is to be reconsidered, however, only if there is evidence relevant to the decision that was not previously taken into account by the Board in making the decision (sub-s.153AP(1)). If an application is not supported by evidence in accordance with sub-s.(1), the Board is to dismiss the application (sub-s.(2)).
Where a decision of the Board that is to be
reconsidered was made after taking into consideration recommendations made by the members of a panel under sub-s.54F(4) - as was the situation in the case of the decision relating to the applicant - the Board is to refer the decision to a panel consisting of such number of persons as the Board appoints to assist in its reconsideration of the decision (sub-s.153AQ(1)).Sections 153AR and 153AS provide:
"153AR. (1) Subject to subsection (2), if the Board does not under section 153AP dismiss an application made under section 153AM, the Board must refer the decision to which the application
relates to a Committee.
(2) Where, under subsection 153AQ(1), the Board is required to refer the decision to a panel of persons, the Board, after receiving the recommendations of the members of the panel, must refer the decision to a Committee together with a copy of those recommendations.
(3) The Board may also, on its own motion, refer any of its decisions to a Committee. 153AS. (1) After taking into account, in relation to a decision referred to a Committee:
(a) the recommendations of the Committee; and
(b) any principles formulated by the Minister that were relevant to the decision; and
(c) any other matter that the Board considers relevant;
the Board must, by instrument setting out the reasons for so doing, affirm or vary the decision or set it aside and substitute another decision for it.
(2) The Board must make available a copy of an instrument mentioned in subsection (1) to the applicant."
The Committee referred to is a Reconsideration Advisory Committee established under s.153AB.
In one of his affidavits sworn on 13 February 1992 the applicant deposed that he intended to provide the Board with certain information, including a report of a psychiatrist currently treating him, to accompany an application for reconsideration of the decision of 5 September 1991. In his affidavit, Mr Dermot John Peters deposed that he was the solicitor for the applicant and that he had sought information relevant to the ability of the applicant to undertake employment and his employability and that when the information was available "it is intended that there should be a request to the (Board) to reconsider its decision which is the subject of these proceedings".
Notwithstanding these statements, Mr Peters, who appeared for the applicant on the hearing of the motion, informed the Court that the applicant did not intend to make such a request at this stage and proposed not to make a decision whether to seek a reconsideration of the decision until after there had been a determination by the Court of his substantive application. He submitted that the Board in reaching the decision of 5 September 1991 had erred in law, particularly in relation to its construction of the definition of the expression "totally and permanently incapacitated" in s.54B of the Superannuation Act. He also submitted that there were procedural irregularities in the way in which the matter had been dealt with by the Board, resulting in a denial of procedural fairness to the applicant. He further submitted that it was not until the Court had ruled on those issues that the applicant would be in a position to determine whether he wished to request the Board to reconsider its decision and that any reconsideration of the decision of 5 September 1991 should be undertaken only after the Board had the guidance of the Court on those matters.
Mrs Bonsey, who appeared for the Board, informed the Court that, whether or not the applicant intended to apply for reconsideration of the decision, the Board proposed, at a meeting to take place within 7 days, to consider, under sub-s.153AR(3), whether it should, of its own motion, refer the decision to a Reconsideration Advisory Committee and, upon receipt of its recommendations, reconsider the decision. Mrs Bonsey further informed the Court that those instructing her were confident that the Board would decide to take that course in the absence of a request from the applicant for reconsideration of the decision. She submitted that to proceed to a hearing of the substantive application prior to the outcome of the Board's reconsideration of the decision being known would be an exercise in futility. If the decision upon the reconsideration was that the applicant be retired from the Australian Public Service on the ground of invalidity, to continue the pending proceeding would be unnecessary. On the other hand, if the Board decided that the decision of 5 September 1991 be affirmed, the applicant would have a right to challenge the new decision on any ground he could establish under the Judicial Review Act.
It is apparent from the statutory provisions to which I have referred that, before a reconsideration of the Board's decision of 5 September 1991 can take place, there must be before the Board evidence relevant to the decision that was not previously taken into account by the Board in making the decision. Once that threshold is passed, the Board is bound to refer the matter to a Reconsideration Advisory Committee and, upon receipt of its recommendations, to reconsider the decision and affirm it or set it aside and substitute another decision for it.
As appears from the letter dated 11 March 1992, the text of which is set out earlier in these reasons, the view is taken that the affidavits filed in support of the substantive application contain new evidence relevant to the decision that was not previously taken into account by the Board in making its decision. I do not understand the applicant to contend to the contrary. That being so, the applicant is entitled to have a full review on the merits conducted by the Board in accordance with the statutory provisions.
If the applicant succeeds in the substantive application now pending before the Court, it would not be open to the Court to substitute its decision for that of the Board: the matter would have to be remitted to the Board for further consideration in the light of the Court's decision. It may be, depending on the view which it formed in relation to what had occurred in the making of the decision under review, that the Court would give directions or guidance to the Board in relation to such further consideration. As the question whether the applicant should be retired from the Australian Public Service is a mixed question of law and fact, if the Board now proceeds with a reconsideration of its earlier decision, the substratum of fact upon which that question of mixed fact and law is to be determined will, almost certainly, be different from the factual material on which the earlier decision was based. Accordingly, I am not convinced that the interests of justice would best be served by proceeding at this stage with the hearing of the substantive application. In my opinion, it would be in the interests of the applicant that he co-operate with the Board in having the decision reconsidered on the merits as speedily as possible based on all relevant information that is, or can be made, available.
The notice of motion seeks an order that the pending application be adjourned sine die. I do not propose to make such an order. The order I propose to make is that the application be adjourned for a sufficient time for a decision to be made whether the decision of 5 September 1991 is to be reconsidered and, in the event that the decision is to be reconsidered, for the reconsideration to take place expeditiously, with liberty to the applicant to bring the matter before the Court on seven days' notice if the events, including a failure of the Board to undertake a reconsideration of the decision or undue delay in the reconsideration process, warrant that course. On that basis the application will be adjourned for mention on 5 June 1992. The costs of the motion are reserved.
0
0
0