Shafran v Repatriation Commission

Case [2019] FCA 1833


FEDERAL COURT OF AUSTRALIA

Shafran v Repatriation Commission [2019] FCA 1833

File number: QUD 424 of 2019
Judge: LOGAN J
Date of judgment: 8 November 2019
Catchwords:

DEFENCE AND WAR – veterans’ entitlements – application for judicial review of conduct of the Veterans’ Review Board – where the veteran applied to the Repatriation Commission for an increase in his rate of pension on the basis of a number of medical conditions – where the veteran applied to the Board for review of the Commission’s decision – where the Secretary to the Department of Veterans’ Affairs must prepare a report under s 137 of the Veterans’ Entitlements Act 1986 (Cth) and provide it to the veteran for comment – where the Secretary provided the report to the Principal Member of the Board before providing it to the veteran for comment –where the veteran sought a ten-year extension of time in which to comment – where the Board held two directions hearings and made certain case management directions – where the Secretary eventually granted the applicant’s request for an extension of time – whether the Secretary committed a jurisdictional error in providing the report to the Principal Member before giving it to the veteran for comment – whether the Board committed jurisdictional error by holding either of the two directions hearings – whether the Board had jurisdiction to make the directions that it made – whether the Secretary’s decision to extend time was legally unreasonable

STATUTORY INTERPRETATION – where s 137(1) of the Veterans’ Entitlements Act 1986 (Cth) requires the Secretary to prepare a report – where s 137(4) requires the Secretary to provide the report, any comments on it made by the veteran and any supplementary report arising from any consequential investigation to the Principal Member of the Board as soon as practicable – whether the Secretary can only send the relevant documents to the Board once the time for comment and any consequential investigation has ended – whether it is a jurisdictional error for the Secretary to send the documents to the Principal Member before providing it to the veteran

STATUTORY INTERPRETATION – where s 137(3) requires the Secretary to give the veteran 28 days on which to comment on the report or such longer time as is requested – where s 137(3) does not expressly provide for approval of the extension or how long it may be for – whether there is an implied reasonableness restriction on the veteran’s rights to request an extension under s 137(3) – whether the Secretary has the power to grant or refuse an extension request under s 137(3) – whether the request must be made to the Secretary – whether the Board has jurisdiction to make directions regarding a request for an extension of time to comment under s 137(3)

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Soldiers’ Repatriation Act 1917 (Cth)

Australian Soldiers’ Repatriation Act 1929 (Cth)

Invalid and Old-age Pensions Act 1908 (Cth)

Judiciary Act 1903 (Cth) s 39B

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Details
AGLC
Shafran v Repatriation Commission [2019] FCA 1833
Case
[2019] FCA 1833
Decision Date

CaseChat Overview and Summary

The case of Shafran v Repatriation Commission involved a veteran, Shafran, who sought judicial review of the conduct of the Veterans’ Review Board. The dispute centred around the review process of Shafran’s application for an increase in his rate of pension due to several medical conditions. The Secretary to the Department of Veterans’ Affairs had provided a report under s 137 of the Veterans’ Entitlements Act 1986 (Cth) to the Principal Member of the Board before allowing Shafran to comment on it. Shafran sought a ten-year extension of time to comment on the report. The Board held two directions hearings and issued certain case management directions, and later granted Shafran’s request for an extension of time. The primary issues before the court were whether the Secretary committed a jurisdictional error by providing the report to the Principal Member before Shafran’s comment, whether the Board had jurisdiction to hold the directions hearings and make the directions, and whether the Secretary’s decision to extend time was legally unreasonable.

The court examined the statutory provisions under s 137 of the Act, which required the Secretary to prepare and provide a report to the Principal Member as soon as practicable and to give the veteran 28 days to comment on the report. The court concluded that while the Secretary could provide the report to the Principal Member, it was a jurisdictional error to do so before allowing the veteran to comment. Furthermore, the Board did not have jurisdiction to hold the directions hearings or make the directions. However, the court found that the Secretary’s decision to extend time was not legally unreasonable, as the statutory provisions did not expressly limit the extension request or require approval. Therefore, the Secretary had the power to grant or refuse such a request.

The court ruled that certain directions made by the Board were invalid, and dismissed the application except for the declaration that the directions were invalid. The court also made orders regarding the submission of costs and reserved the matter of costs.

Orders

Orders of the court

1. It be declared that:

(a) The Second Respondent had no lawful authority to list the Applicant’s review application on 5 December 2018 for a directions hearing and the directions made that day were invalid.

(b) The following directions made by the Second Respondent on 2 July 2019 in respect of the review application to which the Applicant and the First Respondent [the Respondent named in the direction] were parties were invalid:

· That if the Applicant seeks to make any comments concerning the section 137 report provided by Respondent, the applicant should provide any comments in writing to the Respondent, pursuant to section 137(3) of the Act. This must be done within 28 days of today’s date, being by close of business of 30 July 2019.

· That should the Applicant make any comments by the above date, the Respondent shall, pursuant to section 137(4) of the Act, provide those comments and any further investigations conducted and any supplementary reports referring to any evidence obtained in that further investigation, to the Applicant and the Board, within 14 days, being the close of business of 14 August 2019.

[sic]

2. Save as aforesaid, the application be dismissed.

3. Any consequential submission by the applicant of not more than three pages in relation to costs be filed and served by the close of business on 11 November 2019.

4. Any consequential submission by the first respondent of not more than three pages in relation to costs be filed and served by the close of business on 13 November 2019.

5. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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