Repatriation Commission v Keeley H1/2000

[2000] HCATrans 730

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 2000

B e t w e e n -

REPATRIATION COMMISSION

Applicant

and

THELMA KEELEY

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 28 NOVEMBER 2000, AT 3.04 PM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   If it please the Court, I appear with my friend, MR S.G.E McLEISH, for the applicant.  (instructed by the Australian Government Solicitor.

GAUDRON J:   Yes, thank you, Mr Hanks.  I think there is a certificate but it is presently not available, but there is a certificate to indicate that the respondent will not be appearing in this matter, yes.

MR HANKS:   I am able to say that my instructing solicitors had communications with the respondent’s solicitor as well, your Honour, to that effect.

GAUDRON J:   Yes, thank you, Mr Hanks.

MR HANKS:   Your Honour, this application arises out of legislation that was passed in 1994 when the Veterans’ Entitlements Act was amended, primarily with the addition of 120A and its associated provisions.

HAYNE J:   If the Commonwealth wishes to achieve the result which it contends for, it could do that, could it not, by some very easy delegated legislation?  Is that right?

MR HANKS:   Perhaps not, your Honour.

HAYNE J:   No?  It could not simply change the statement of principles to provide that they are to apply henceforth in respect of past and present?

MR HANKS:   It may well be, your Honour, that the statement of principles already does that, but if I could put that one side, that is, Clause 8 of the current statement of principles.

HAYNE J:   I understand that is the area for contest, but if you want to achieve the result that you say should be obtained by this litigation, it could be achieved, could it not, very quickly and very easily by the Commonwealth simply changing the rules of the game?

MR HANKS: My answer to that, your Honour, is that the rules of the game, if they are changed, will themselves – or should I say the change of the rules will itself generate some difficulties. If the reasoning of the Full Court is correct and if it be true that the present respondent, who is not before the Court, acquired some rights or, as Justice Kiefel put it, had a right, albeit inchoate, to a pension, then all those cases which are currently within the determining system would be immune from any such change and I am invoking here, of course, against the Commonwealth section 51(xxxi) of the Constitution. That will create real problems for the course which your Honour suggests.

It is our submission that the reasoning of the Full Court and, indeed, of the primary judge in this case was, with respect, erroneous and misconceived and that it ought to be corrected.

GAUDRON J:   Even assume that to be the case for the moment, the principles in this area are settled.  We are talking only of their application to one particular legislative provision.  Is that not right?

MR HANKS:   I would take issue with that, with respect.  If your Honour has in mind the reasoning in the case of Esber v The Commonwealth ‑ ‑ ‑

GAUDRON J:   You want to reopen it.

MR HANKS:   Not only want to reopen it, your Honour, but do wish to suggest that the reasoning is by no means clear and the principle which emerged from the case has led to a great deal of contradiction and confusion.

GAUDRON J:   Is it not the case, however, that the principle of construction is clear?  But it is always difficult of application.

MR HANKS:   Indeed, your Honour.

GAUDRON J:   One would have thought, given the difficulty of application, that the legislature might make it patently clear what it intended in any given case.

MR HANKS:   I understand what your Honour says.  The principle as articulated, for example, in section 8 or section 50 of the Acts Interpretation Act, which is no more than the statement of the common law presumption, is deceptively clear, or perhaps opaquely clear, but if I can use that contradiction.

GAUDRON J:   Yes, but difficult of application.

MR HANKS:   Very difficult of application and particularly difficult, if I might say so, your Honour, in the context of administrative review.  With respect, the reasoning of the dissenting judge in Esber, Justice Brennan, brings out the very difficulties associated with that principle when it is brought to bear on applications for review which are conducted by an administrative tribunal, rather than judicial proceedings conducted by a court, and that is one of the areas where there is particular difficulty and, certainly, your Honour, if it were necessary for us to advance this application for special leave and any consequential appeal, we would do so by urging the Court to revisit Esber and to consider whether the approach adopted by the dissenting Judge was the correct approach.

GAUDRON J:   All this in factual circumstances which, one may assume, are not likely to occur with any great frequency.

MR HANKS:   Again, your Honour, we would have to take issue with that.  They are circumstances which occur regularly and frequently, particularly in the veterans jurisdiction.

GAUDRON J:   But we are talking about a particular statement of principle.  Now, there may be other statements of principle made at other times and it is certainly not beyond the wit of the draftsmen of such principles to make it clear whether or not they are to apply in a particular situation, but the particular facts in this case, we can assume, will not occur with any great frequency, will they?

MR HANKS:   We could say, your Honour, that, as we have deposed in my instructing solicitor’s affidavit, which is at the front of the materials upon which we intend to apply.  The paragraph that I wish to refer to is at page 4 of those materials.  Do your Honours have that?

GAUDRON J:   Yes.

MR HANKS:   Your Honours will see that as at the beginning of this month the authority which is responsible for making the statements of principles:

had determined 955 SoPs in respect of 264 different kinds of condition.

Might I just stop there for a moment.  “Condition” refers to the type of ‑ ‑ ‑

GAUDRON J:   I am sorry.

MR HANKS:   I do apologise, your Honour.  I have gone too fast.

GAUDRON J:   I am in the wrong book.

MR HANKS:   They are deceptively similar in their binding, not consciously so, but nevertheless it is a deception.  I simply refer to this paragraph, your Honours, in order to make the point that this is an area in which there is a considerable volume of what one might describe as delegated legislation, the statements of principles, and they are frequently reviewed, amended, revoked and replaced.

HAYNE J:   There is, therefore, frequent opportunity to make plain exactly what is intended by their reach.

MR HANKS:   I fully accept what your Honour says, naturally, in relation to the future, that will be possible, subject, of course, to some argument, which we might then need to deal with, that such a clause was ultra vires.  Putting that on one side, your Honour, the other difficulty is the difficulty in relation to those rights which, at least according to the reasoning adopted by some members of the Federal Court, had already vested.

GAUDRON J:   If such a statement of principles would be ultra vires, why would not the construction that you contend for be ultra vires?

MR HANKS:   Does your Honour wish to hear me on that?

HAYNE J:   You cannot have the penny and the bun, can you, Dr Hanks?

GAUDRON J:   This seems to me to be not in the least bit suitable for the grant of special leave, particularly when you say that.

MR HANKS:   I do wish to answer your Honour’s rhetorical question very briefly.  We simply contend for a construction of the Act and, with respect, it could not be said that the construction of the Act for which we contend is in any sense ultra vires.

The construction for which we contend is, to put it very simply, that section 120A and the statements of principles which are applied pursuant to it simply form part of the decision‑making process, the evidentiary process, by which claims for pension are vindicated or investigated.  That is all they do.  They are purely evidentiary and procedural.  For that reason, because they, as it were, lock into the standard of proof which is prescribed by the Act, they operate prospectively, in futuro.  There is no suggestion that they could operate retrospectively so as to affect any right.  They have a prospective operation and, therefore, the well‑known presumption is inapplicable.  That is our short point, your Honour.  Thank you, your Honour.

GAUDRON J:   Yes.  You have no further submissions?

MR HANKS:   Your Honour, I think not in the circumstances.  Can I just make one point, your Honour?  I know that this may not be a relevant consideration, but my client has instructed me that if special leave were to be granted, it would, of course, carry the costs of these proceedings for both sides.  If your Honours please.

GAUDRON J:   Yes.  I will come back to the question of costs, Mr Hanks.

We are of the view that this application raises only a question as to the application of settled principles to the construction of the Veterans’ Entitlements Act 1968 in circumstances which it may be assumed are not likely to occur with any great frequency.  It is, therefore, not a matter that should attract the grant of special leave and special leave will be refused.

It seems likely, Mr Hanks, from the certificate which I have now received that the respondent did consult a solicitor with respect to this application.  So do you resist it being dismissed with costs in those circumstances?

MR HANKS:   No, your Honour.  I am surprised that the respondent had actually put in an appearance in this matter.  I think that may be the case, that there was no appearance filed, unless I am mistaken.

HAYNE J:   If that is so, then your costs on taxation that you have to pay will be slight, indeed, perhaps nothing ‑ I do not know ‑ but there should be an order for costs, should there not?

MR HANKS:   Indeed, your Honour.  I was only raising the issue of whether such an order had any utility.

GAUDRON J:   Yes.  Well, one cannot speculate, it would seem.

MR HANKS:   No, I understand that, your Honour.

GAUDRON J:   As I said, the certificate has attached to it a letter from the respondent’s solicitor and there may, therefore, be some costs.  So the order will be application dismissed with costs.

MR HANKS:   If your Honour pleases.

AT 3.17 PM THE MATTER WAS CONCLUDED