Repatriation Commission v Nugent

Case [2003] FCA 1184

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Nugent [2003] FCA 1184

PRACTICE AND PROCEDURE - application for extension of time to appeal from a decision of the Administrative Appeals Tribunal - measurement of time from which to appeal - explanation for delay

VETERANS AFFAIRS - entitlements - whether Administrative Appeals Tribunal made an error of law - veteran’s capacity to undertaken remunerative work - deaf

Veterans’ Entitlements Act 1986 (Cth) s 24, s 28
Administrative Appeals Tribunal Act 1975 (Cth) s 43(2), s 43(2B)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Secretary, Department of Social Security v Van Den Boogarart (1995) 37 ALD 619 cited
Comcare v A’Hearn (1993) 45 FCR 441 (FC) cited
Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 cited
Lucic v Nolan (1982) 45 ALR 411 cited

REPATRIATION COMMISSION v CHARLES NUGENT
Q78 OF 2003

COOPER J
BRISBANE
27 OCTOBER 2003


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q78 OF 2003

On appeal from the Veterans’ Appeals Division of the
Administrative Appeals Tribunal constituted by Senior Member K L Beddoe

BETWEEN:

REPATRIATION COMMISSION
APPLICANT

AND:

CHARLES NUGENT
RESPONDENT

JUDGE:

COOPER

DATE OF ORDER:

27 OCTOBER 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q78 OF 2003

On appeal from the Veterans’ Appeals Division of the
Administrative Appeals Tribunal constituted by Senior Member K L Beddoe

BETWEEN:

REPATRIATION COMMISSION
APPLICANT

AND:

CHARLES NUGENT
RESPONDENT

JUDGE:

COOPER

DATE:

27 OCTOBER 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

  1. The applicant is the Repatriation Commission, a body corporate recognised and continued under s 179 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). Its functions include the granting of pensions, allowances and other benefits to veterans under and in accordance with the provisions of the VE Act: s 180(1).

  2. The respondent is a veteran for the purposes of the VE Act. On 9 April 1997 he was assessed by the Army Medical Board to be unfit for Army service. Rather than being discharged as medically unfit for the purposes of his superannuation, he took a voluntary discharge from the Army in 1997. He was aged forty-eight years at the time of his discharge. He was granted a disability pension under the VE Act. On 5 June 1997 that pension was increased to 100 per cent of the General Rate with effect from 29 October 1996.

  3. On 11 February…

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Details
AGLC
Repatriation Commission v Nugent [2003] FCA 1184
Case
[2003] FCA 1184
Decision Date

CaseChat Overview and Summary

In the matter of Repatriation Commission v Nugent, the parties involved were the Repatriation Commission and Nugent. The dispute revolved around an application for an extension of time to lodge a notice of appeal, which Nugent sought from the original decision made by the Repatriation Commission. The case was heard in the Federal Court of Australia. Nugent argued that despite missing the statutory deadline for filing the notice of appeal, certain circumstances warranted an extension. The court was required to decide whether the application for an extension should be granted, considering the statutory provisions, relevant case law, and the principles governing discretion in such matters.

The primary legal issues the court had to address were whether Nugent had provided an acceptable explanation for the delay in filing the notice of appeal and whether it was fair and equitable to extend the time given the potential prejudice to the Repatriation Commission. The court also needed to consider whether Nugent's actions outside the curial process were sufficient to justify an extension and whether the merits of the appeal itself warranted a time extension. Additionally, the court had to balance the prejudice caused to the Repatriation Commission against any public interest considerations that might support granting the extension.

The court's reasoning involved a detailed analysis of the statutory framework and relevant case law, such as Hunter Valley Developments, Doyle, Duff, and Lucic. It was noted that while the court had discretion to grant an extension, it was a prima facie rule that proceedings outside the prescribed period would not be entertained unless there was an acceptable explanation for the delay. The court found that Nugent had not adequately explained the delay, and the delay had caused significant prejudice to the Repatriation Commission. Furthermore, the court highlighted that in cases involving public administration, the public interest often dictated against granting extensions, even for minor delays. Considering these factors, the court concluded that it was neither fair nor equitable to extend the time for Nugent to file the notice of appeal.

The final orders of the court were that the application for an extension of time be dismissed, and Nugent was directed to pay the costs of and incidental to the application to the Repatriation Commission. These costs were to be taxed if not agreed upon. This decision underscored the importance of adhering to statutory time limits and the stringent criteria required to justify extensions in such contexts.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J
In Hunter Valley Developments (at p 348 - p 349), Wilcox J said: ‘1. Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of 28 days is not to be ignored (Ralkon v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time (Duff at 485; Chapman v. Reilly, unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”: per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 47 A.L.R. 517 at 519. The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v Cole (1983) 47 A.L.R. 528.3. Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484-485; Hickey at 525-527 and Wedesweiller at 533-534.4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6.6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at 534-535.In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531 relating to the diversity of decisions as to which review may be sought under the Act: "… there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.” He went on to mention the reference to public interest made by Fitzgerald J in Lucic at p 416.It is in relation to the former category of cases, ie those “which affect only the immediate parties” that the approach adopted by Bray C.J. in Lovett v LeGall (1975) 10 S.A.S.R. 479 at 485, in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:“If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff’s claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.”By contrast, in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even after only a short delay.’CONCLUSION ON THE APPLICATION

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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