McMillan, Mervyn Leonard v Repatriation Commission

[1997] FCA 639

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION  No VG 211 of 1997

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal
  constituted by Deputy President G L McDonald

B E T W E E N :

MERVYN LEONARD McMILLAN and OTHERS               Applicants

A N D:
  REPATRIATION COMMISSION  Respondent

COURT:         NORTHROP J
PLACE:         MELBOURNE
DATE: 11 JULY 1997

REASONS FOR JUDGMENT

This is a matter before the Court on a first directions hearing in which the applicants are seeking to appeal from a decision of the Administrative Appeals Tribunal constituted by a Deputy President. The right of appeal is conferred by section 44(1) of the Administrative Appeals Tribunal Act 1975 which provides:

"44.(1)  A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

Subsection 44(3) contains provisions relating to the way in which the jurisdiction of the Federal Court is to be exercised and I read subsection (3) paragraphs (a) and (b):

"(3)     The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction:

(a)may be exercised by that Court constituted as a Full Court;

(b)       shall be so exercised if:

(i)the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and

(ii)after consulting the President, the Chief Judge of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and ......".

In the present case the respondent has two matters before the Court. The first a motion on notice seeking orders that the appeal under section 44 of the Administrative Appeals Tribunal Act be dismissed as incompetent. The respondent also has filed a notice of objection to competency based on the same grounds. The essence of the objection is that there was no decision within the meaning of that word as appearing in subsection 44(1) of the Act and therefore there can be no appeal to this Court on a question of law.

Although in some respects the matters before the Court are in the nature of practice and procedure, the effect is that if the respondent succeeds, the applicants will be deprived of the opportunity of having the appeal heard and determined on the merits. A number of arguments were put in support of the fact that the Court, as presently constituted, could hear the objections to competency on the basis that the question of an appeal could only arise when there is in truth an appeal from a decision within the meaning of that word in section 44 and that in the present case there is no such decision and therefore there is nothing on which subsection 44(3) can operate.
           In my opinion this is a case where the Court as presently constituted should determine this matter. Even though it might have adverse effects on the substantive issue, the Court is only dealing with a matter of practice and procedure.  In these circumstances the Court constituted by a single judge is entitled to determine the matters.  In support of that I accept the argument put by Mr Hanks on behalf of the respondent.  Accordingly the Court will proceed to hear the motion and the objection to competency.

Submissions were made and the Court continued.

The matter raised by the notice of motion and the notice of competency involve a narrow issue. Essentially the issue depends upon the meaning to be given to the word "decision" in subsection 44(1) of the Administrative Appeals Tribunal Act 1975. The facts giving rise to the present notice of appeal, though complex, can be stated, for present purposes, fairly simply. It is desirable that I do not express any views beyond those which I must do for the purposes of this decision and without referring to the merits of the appeal.

Each of the eight applicants, the subject of the notice of appeal, has made a claim for pension under the Veterans' Entitlements Act 1986. Each depends upon the question of whether there is an entitlement to a pension in circumstances where normally subsections 120(1) and (3) of the Veterans' Entitlements Act apply namely whether there was a reasonable hypothesis and the application of that hypothesis to the facts found.

Since 1 June 1994 section 120A has been in operation, the object being, presumably, to make the position clearer and to avoid the uncertainty which has arisen from the
application and establishment of the standard of proof provisions in section 120.  This depends upon statements of principles made by a statutory body constituted under Part XIA of the Veterans' Entitlements Act, the Repatriation Medical Authority, which is authorised to make statements of principles in relation to types of injuries or diseases suffered by veterans and what must be established in order to bring them within the requirements of section 120. There is provision under Part XIA for the Authority, in substance, to reconsider any statement of principles that are made. Under section 196E, any person eligible to make a claim for a pension may ask the Repatriation Medical Authority to carry out an investigation to review statements of principles.

Section 196G provides that if such a request is made or if the Repatriation Medical Authority decides to investigate the matter itself, it must give notice of that investigation in the Gazette. In these circumstances subsection 120A(2) provides:

"(2)     If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles."

In the present case, each of the applicants has made since 1 June 1994 a claim for a pension. It appears that under the existing statement of principles made by the Authority it is most unlikely that any of the claims would succeed before the Commission or, in this case, a Tribunal exercising the powers of the Commission on review. The applicants have sought a reconsideration of those statements of principles and apparently the required notice has been given by the Authority. Those principles are being investigated now. In these circumstances, when the matter came on for hearing before the Tribunal the applicants sought an adjournment of the hearing before the Tribunal to await the result of the further investigation by the Repatriation Medical Authority. That application for an adjournment was refused and one can accept, for present purposes, that in so refusing it, the Tribunal took the view that it was not bound by subsection 120A(2) to refuse to continue with the hearing of the review.

The applicants have given notice of appeal and the questions of law raised by that appeal include the question of the interpretation and application of a number of provisions of the Veterans' Entitlements Act, including subsection 120A(2). The objection to competency and the motion depend upon the nature of a decision. I have read already subsection 44(1):

"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

The meaning to be given to the word "decision" in that section has been discussed in the case of Director-General of Social Services v Chaney (1980) 47 FLR 80 where the Court, by majority, held in substance that the decision there meant a final decision determining the rights as between the applicant and the relevant authority involved. The leading judgment was given by Deane J, and the relevant part is discussed at pages 100 and the following. One of the reasons given by his Honour for saying that the decision must be a final decision appears in the following passage at 103:

"It should be stressed that the issue is not whether, after the Tribunal has determined the application for review, an appeal lies to this Court on every ruling or adjudication upon a question of law which proves to be part of the structure of the ultimate decision. The issue is whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to its reversal by the Tribunal itself before the ultimate decision is delivered."

In the present case there is no ultimate decision made by the Tribunal in relation to this application. The matter is still pending before the Tribunal. For some reason or other the matter has not come on for hearing before the Tribunal even though the decision sought to be appealed from now was made in April of this year. In my opinion the true position can be stated that if in due course the matter comes back before the Tribunal and the Tribunal does not change its mind but dismisses the applications for review and confirms the decisions made by the lower bodies, then the applicants have a right of appeal to this Court on questions of law which would in fact include the question of the application or construction of subsection 120A(2) of the Veterans' Entitlements Act as well as the other provisions of Part XIA of that Act.

In reality, in my opinion, what the present decision relates to is not a final decision but merely a ruling in the processes leading up to the making of a final decision.  In these circumstances, in my opinion, the views expressed by Deane J in Chaney are of direct application. This is not a decision of a kind which disposes of the matter before the Tribunal. Therefore it is not a decision coming within the meaning of that word appearing in subsection 44(1) of the Administrative Appeals Tribunal Act.

In these circumstances the Court makes the following orders:

1. the applicants appeal under section 44 of the Administrative Appeals Tribunal Act 1975 be dismissed as incompetent;

1. the applicants pay the respondents costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the applicant  Mr M J Croyle

Solicitors for the applicant  Williams, Winter & Higgs

Counsel for the respondent  Mr P Hanks

Solicitors for the respondent  Australian Government Solicitor

Date of hearing:         11 July 1997