O'Sullivan v Repatriation Commission

Case [2003] FCA 387

FEDERAL COURT OF AUSTRALIA

O’Sullivan v Repatriation Commission [2003] FCA 387

ADMINISTRATIVE LAW – procedural fairness – applicant cross-examined on a tax return obtained by the respondent from the Australian Tax Office – page missing from return – cross-examination proceeds on false assumption – whether breach of procedural fairness – whether it matters that the members of the AAT were not personally at fault – whether breach material.

ADMINISTRATIVE LAW – contravention of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – failure to observe procedures required by law to be observed in the making of the decision

PRACTICE & PROCEDURE – requirement under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to give reasons – editing of ex tempore judgments or statements of reasons

Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 43, 44
Veterans’ Entitlement Act 1986 (Cth), ss 13(1), 15(1), 23, 24, 120(4), 120(6)
Income Tax Assessment Act 1936 (Cth), s 16(4)(d)

Flentjar v Repatriation Commission (1997) 48 ALD 1 cited
Forbes v Repatriation Commission (2000) 101 FCR 50 cited
Commissioner of Taxation v Osborne (1990) 26 FCR 63 cited
Ma v Commissioner of Taxation (1992) 37 FCR 225 cited
Hadid v Redpath [2001] NSWCA 416 cited
Kioa v West (1985) 159 CLR 550 cited
Australian Postal Commission v Hayes (1989) 23 FCR 320 cited
Sullivan v Department of Transport (1978) 20 ALR 323 cited
Opitz v Repatriation Commission (1991) 29 FCR 50 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited
Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90 cited
R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 considered
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 considered
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296 followed
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 cited
R v Secretary of State for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876 distinguished
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed
Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 cited

M Aronsen and B Dyer, Judicial Review of Administrative Action (2nd ed, 2000)

LAWRENCE O’SULLIVAN v REPATRIATION COMMISSION
N 1412 of 2002
SACKVILLE J
SYDNEY
1 MAY 2003


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1412 of 2002

BETWEEN:

LAWRENCE O'SULLIVAN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

1 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of Administrative Appeals Tribunal given on 21 November 2002 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3.Unless either party makes submissions to the contrary within seven days of the date of these orders, the…

Continue reading O'Sullivan v Repatriation Commission

Sign in free to access the full text

Details
AGLC
O'Sullivan v Repatriation Commission [2003] FCA 387
Case
[2003] FCA 387
Decision Date

CaseChat Overview and Summary

The case of O'Sullivan v Repatriation Commission involved a dispute between the applicant, a former barrister, and the Repatriation Commission concerning the applicant's entitlement to a special rate of pension under the Veterans' Entitlements Act 1986 (Cth). The applicant, who had been on operational service from 1942 to 1946 and had a career in the public service before practising as a barrister, claimed that his war-related disabilities prevented him from continuing his work. After retiring in 2000, the applicant applied for an increase in his pension rate, which was rejected by the Commission. The applicant sought review of this decision by the Administrative Appeals Tribunal (AAT), which ultimately dismissed his appeal. The applicant then sought judicial review of the AAT's decision in the Federal Court of Australia.

The primary legal issue before the court was whether the AAT had correctly determined that the applicant was not entitled to a special rate of pension. This involved considering whether the applicant's war-related disabilities were the sole reason for his retirement and whether he was capable of undertaking remunerative work as a barrister. The court also needed to assess the sufficiency of the AAT's reasons for its decision and whether there were any errors in the application of the relevant statutory provisions.

The court held that the AAT had not provided sufficient reasons for its decision, particularly in relation to the applicant's capacity to undertake remunerative work as a barrister. The court found that the AAT had failed to adequately address the applicant's submissions and evidence regarding his ability to perform opinion work and attend Canberra courts, despite his claimed disabilities. The court noted that the AAT's reasons, being delivered ex tempore, lacked clarity and did not fully articulate the issues and reasoning process. Consequently, the court set aside the AAT's decision and remitted the matter to the AAT, differently constituted, for redetermination according to law. The court also ordered that unless either party made submissions to the contrary within seven days, the respondent would pay the applicant's costs.

Orders

Orders of the court

1. The decision of Administrative Appeals Tribunal given on 21 November 2002 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3. Unless either party makes submissions to the contrary within seven days of the date of these orders, the respondent pay the applicant’s costs.

Background

Background to the litigation

There was no dispute in the present case that Flentjar and Forbes correctly state the principles governing the application of s 24(2A)(d) and (e) of the VE Act. BACKGROUND FACTS Presumably because the AAT’s reasons were delivered ex tempore and were not subsequently revised, they do not set out the background to the applicant’s claim for a special rate of pension. It is convenient nonetheless to set out some key events. The applicant was born on 9 May 1923. He was on operational service from 27 April 1942 to 18 November 1946. After a career in the public service, including a period as an officer of the Australian Tax Office (“ATO”), the applicant commenced practice as a barrister, with chambers in Sydney and Canberra. In later years, he carried on practice only in Canberra, although he travelled on circuit in nearby areas. I was not provided with a complete history of the applicant’s claims to a pension under the VE Act or its legislative predecessors. It appears, however, that he may have been first assessed as having war-related disabilities as long ago as 1951. Over time, a large number of conditions suffered by the applicant have been accepted as war-caused. These include anxiety state with migrainous headaches, cardiac arrhythmia and, more recently, atherosclerotic peripheral vascular disease and renal artery atherosclerotic disease. In February 1992, the applicant applied for an age service pension (VE Act, s 36(1)). In consequence of that application he appears to have received a pension at 100% of the general rate. Some further applications were made for an increase in the rate of pension, but these are not relevant for present purposes. On 30 June 2000, the applicant retired from practise as a barrister. There was an issue before the AAT as to the precise extent of the applicant’s earnings prior to his retirement, but there was no dispute that for several years prior to his retirement his gross earnings from practice were modest. On 12 October 2000, the applicant applied for an increase in the rate of pension. In his application he stated that his disabilities had been causing difficulties for some years and that the “combination of physical and morale factors have prevented me from continuing my long life of work and prevent me from seeking other employment”.It would seem that this application was treated as one for a special rate of pension (s 24(2A)) and for an intermediate rate of pension (s 23(3A)). On 2 December 2000, the respondent’s delegate rejected the claim for a special rate of pension on the ground that a variety of factors, other than his war-caused disabilities, contributed to his decision to retire from practice as a barrister. The delegate also rejected the claim for an intermediate rate of pension. On 15 June 2001, the Veterans’ Review Board affirmed the delegate’s decision. The applicant then sought review in the AAT. The AAT conducted a hearing on 21 November 2002. The applicant appeared at that hearing and gave evidence but was not legally represented. The AAT gave its reasons orally at the conclusion of the hearing.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this case, the AAT was not bound to leave its reasons in an unedited form. Had the AAT edited the reasons before publishing them in written form, the reasons may have stated the issues and reasoning process a little more fully and clearly than they do. It is perhaps worth remembering that while some famous judicial names have been associated with the practice of delivering unreserved oral judgments, few ex tempore judgments or statements of reasons do not benefit from careful editing: cf Hadid v Redpath [2001] NSWCA 416, at [45] ff, per Heydon JA. As Burchett J remarked in Ma, at 231, it would be unfortunate if any misunderstanding of the position “were to deprive courts, upon appeals, of the benefits of proper and helpful editing”.The Reasons for Affirming the Delegate’s Decision The AAT first found that the applicant satisfied s 24(1)(a) and (b) of the VE Act as he was receiving pension in excess of 70% of the general rate and he was regarded as totally and permanently incapacitated. The AAT then found that the applicant met the criterion specified in s 24(2A)(g), as he had been in actual practice as a barrister since 1967. It observed that in considering the remunerative work that the applicant might reasonably undertake there was only one calling to consider, namely that of a barrister in actual practice. The AAT noted that the applicant had ceased practice on 30 June 2000. He had claimed that his war-caused disabilities had made it impossible for him to carry out work in country courts. The applicant had, however, acknowledged that he could still do opinion work and could attend Canberra courts. The applicant had also claimed to have a “loner status” and that as a result of his commitment to civil liberties and unpopular causes, some solicitors had declined to brief him. He suggested that this may have been connected with his anxiety state, but the AAT rejected this as “fanciful”. The AAT recorded that in April 1997, the applicant had written to the Department of Veterans’ Affairs stating that he had received no new briefs for four months and had announced that he was no longer practising law. Nonetheless, the applicant had given evidence that he continued to practice until June 2000. The AAT continued:“What does appear apparent is that over his last few years at the bar the applicant suffered a diminution of income. He applied for and was granted a service pension on the grounds of old age in 1992; we note at that time he was aged some 69 years.…Exhibit R3 is a copy of a tax return for the tax year 1998/1999, there is no income shown in that tax return as being income from practice of the law. We draw the inference and we understand the applicant to have conceded as much that during that particular year of income any receipt of moneys from his practice as a barrister were less than his outgoings, the outgoings being the rent of his chambers, profession indemnity insurance, practising certificate.It is true to say the applicant submitted that the Full Court of the Federal Court in Counsel v Repatriation Commission [2002] FCAFC 201 pointed out that when the Tribunal is looking at remunerative work, the remuneration referred to is gross remuneration and not net, so that he was in receipt of remuneration even though his outgoings were in excess of the income received. At page 59 of the section 37 documents there is a copy of a document presented by the applicant to the Veterans’ Review Board in which he states that in the 1999/2000 tax year, he earned the sum of $4810 from his work as a barrister.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.