Kelly v Coats

[1981] FCA 62

Re: MONA OLIVE KELLY
And: JOHN BRENDAN COATS; WILLIAM KENT O'BRIEN and LESLIE PHENNA together
comprising a Repatriation Board (1981) 51 FLR 69
No. WAG 9 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Administrative Law - decision of Repatriation Board refusing a pension - application for judicial review - whether Court should refuse to grant application because of right of appeal - joinder of parties.

Administrative Decisions (Judicial Review) Act 1977 (Cth.) ss. 10, 12, 16, 18.

Reptriation Act (Cth.) ss. 24, 28

Administrative Law - Refusal to grant applicant pension - Appeal by applicant to Repatriation Commission in addition to application to court - Whether court should consider application in light of alternative appellate procedure - Whether power to direct joinder at instance of party to proceedings - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 10 (1) (a), 10 (2) (b), 12, 16, 18 - Repatriation Act 1920 (Cth), ss. 24, 28.

HEADNOTE

The applicant sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the Act) in respect of a decision by the respondents being the members of the Repatriation Board refusing to grant her a pension. A preliminary question arose as to whether the application under the Act should proceed as she had also lodged a notice of appeal against the decision to the Repatriation Commission pursuant to s. 28 of the Repatriation Act 1920. Orders were also sought, in the event of the application proceeding, joining the Commonwealth of Australia, the Department of Veterans Affairs or the Repatriation Commission to argue the substance of the application on behalf of the respondents.

Held: (1) Section 10 (1) (a) of the Act makes it clear that the rights conferred by that Act are in addition to and not in derogation of other rights of review, however the court has a discretion to refuse to grant an application under the Act if adequate provision is made elsewhere for the review of a decision.

(2) Where there are other appellate procedures available the court does not have to establish "exceptional circumstances" before it can exercise its jurisdiction under the Act but rather the onus is on those seeking to persuade the court that it should not exercise the jurisdiction conferred under the Act.

(3) The respondents should not be concerned that by their participation in the application under the Act they may endanger their impartiality in any proceedings that may result from the application, as this is a situation that Parliament must have envisaged in framing the Act.

Re Australian Broadcasting Tribunal; Ex parte Hardiman (1980), 54 ALJR 314, referred to.

(4) As the application involves an allegation of an error of law an application under the Act may be more expeditious than the procedures to be found in the Repatriation Act.

(5) It is questionable that there is inherent power to direct joinder of a party at the instance of an existing party to the proceedings, but if joinder is sought application should be made by the party wishing to be joined under s. 12.

HEARING

Perth, 1981, May 19-20. #DATE 20:5:1981

APPLICATION.

Application for an order of review of a decision refusing to grant a pension.

R. J. Meadows, for the applicant.

S. O'Sullivan, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Muir Williams Nicholson & Co.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. ISLES

ORDER

Orders accordingly.

JUDGE1

The applicant seeks a hearing of an application under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of a Repatriation Board refusing her a pension. There is no argument that this is a decision to which the Act applies.

Pursuant to s.28 of the Repatriation Act 1920, she has lodged a notice of appeal to the Repatriation Commission from that decision.

The Judicial Review Act contemplates that such a situation may arise and s.10(1)(a) makes clear that the rights conferred by the Act are in addition to and not in derogation of other rights of review, whether by a court or tribunal. Nevertheless, this Court may, in its discretion, refuse to grant an application under the Judicial Review Act if adequate provision is made elsewhere for a review of the decision (s.10(2)(b)(ii)).

One starts with the proposition that an applicant may rely upon any or all of the remedies available, review by this Court and review or appeal elsewhere. The discretion in s.10(2)(b) is one to refuse the application. No doubt in the exercise of its inherent powers the Court may adjourn an application pending the determination of an appeal.

Mr. O'Sullivan drew attention to the range of appellate procedures under the Repatriation Act. Certainly that is a relevant consideration but I do not think it right to say, as he said, that in such a case there should be "exceptional circumstances" before this Court should embark upon the hearing of an application. Rather the onus is on those seeking to persuade the Court that it should not exercise the jurisdiction conferred upon it by the legislation.

It was not Parliament's intention that the Judicial Review Act should supplant recognized avenues of appeal and review. This is not likely because of the limited grounds available to an applicant under the Judicial Review Act. But if it seemed likely to happen, s.10(2)(b) is at hand as a means of control.

The respondents, being the members of the Repatriation Board whose decision is sought to be reviewed, are concerned that by participating in this application they may endanger their impartiality in any proceedings that may result from it. Their counsel drew my attention to the remarks of the High Court in R. v. Australian Broadcasting Tribunal (1979-80) 29 ALR 289 at p.306
"If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted".

I accept this of course; ordinarily the situation will not arise because there will be parties concerned with the outcome, some prepared to challenge and others to support the tribunal's decision. That is not the case here although the Repatriation Commission, as the body charged with the general administration of the Repatriation Act, has an interest in the outcome. It too is involved as the tribunal to which the applicant has appealed. And the Commonwealth has an interest since it carries the liability to pay pensions in accordance with the Act (s.24). But they are not parties.

I understand the concern of the Repatriation Board but this is a situation which the framers of the Judicial Review Act must have envisaged. Generally the decision maker will be the only person with an interest adverse, if I may use that term, to the applicant. And s.16 contemplates that a matter may go back to him for further consideration as a result of an application to this Court. The range of matters that may ground an application under the Judicial Review Act include a breach of the rules of natural justice and an improper exercise of power. An examination of these considerations may well prove sensitive but Parliament must be taken to have had that in mind. In the present case the challenge is essentially that there was an error of law, a more detached concept.

Assuming that the applicant's complaint is truly one of error of law, the present application is likely to be a more expeditious way of disposing of the matter than the procedures to be found in the Repatriation Act. It is true that the pending decision of the High Court in Repatriation Commission v. Law may have a direct bearing on the outcome of this application but that is a consideration, whether this Court deals with the matter or it proceeds through the avenues of the Repatriation Act.

I am not persuaded that the applicant should be debarred from the course which she has chosen.

There is power in the Judicial Review Act to make a person "interested in a decision" a party to an application (s.12). But that is only on the application of that party. The Attorney-General may on behalf of the Commonwealth intervene in a proceeding before the Court (s.18). It is questionable that there is an inherent power to direct joinder at the instance of an existing party or this Court; certainly in the present case I do not propose to do so. If there is a person who may appropriately be joined to argue the matter on behalf of the respondents, it is for that person to apply.

I shall hear counsel as to the directions I should give in the light of these reasons.