Sleep v Repatriation Commission

[2007] FCA 1890

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2007] FCA 1890

KENNETH JOHN SLEEP v REPATRIATION COMMISSION

No SAD 150 of 2007

FINN J
30 NOVEMBER 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 150 OF 2007

BETWEEN:	KENNETH JOHN SLEEP Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	FINN J
DATE OF ORDER:	30 NOVEMBER 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed. 

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 150 OF 2007

BETWEEN:	KENNETH JOHN SLEEP Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	FINN J
DATE:	30 NOVEMBER 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application under O 52 r 15(2) of the Federal Court Rules seeking an extension of time in which to file and serve a notice of appeal against a decision of a judge of this Court dismissing an appeal from a decision of the Administrative Appeals Tribunal that was adverse to the applicant.  The applicant was unrepresented both before his Honour and in making the present application.

2. The need for the application arises because, though his Honour’s decision was delivered on 6 June 2007, the present application was not filed until 25 September 2007.  The applicant’s explanations for the delay relate to his being out of Adelaide from 7 June until 13 August, then to the onset of ill health for a period, and to his inability to formulate his case on an appeal.  The principles to be applied in the exercise of my discretion on an application of this type are well known and well accepted.  Though O 52 r 15(2) notes on its face that “special reasons” are required, this does not require something exceptional.  Rather, it requires something that distinguishes the case from the usual course according to which the time is 21 days:  see generally Jess v Scott (1986) 12 FCR 187 at 195.

3. Ordinarily, I would have taken a sympathetic approach to this application were there any arguable grounds for the appeal that Mr Sleep proposes to bring. Unfortunately there are not. Put shortly, his Honour’s judgment dealt with the interpretation of s 52(1)(k) and (l) of the Veterans’ Entitlements Act 1986 (Cth). Insofar as presently relevant, it is in the following terms:

   “(1)In calculating the value of a person’s assets for the purposes of  this Act (other than sections 52G, 52H, 52JA, 52JB, 52JC, 52JD, 52ZA and 52ZCA), disregard the following:

   …

   (k)if:

   (i)personal property of the person is designed for use by a disabled person; and

   (ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

   the value of the property;

   (l)        if:

   (i)personal property of the person is modified so that it can be used by a disabled person; and

   (ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner who is disabled;

   the part of the value of the property that is attributable to the modifications;”

4. Section 5L of the Act defines the word “asset” to mean “property or money (including property or money outside Australia)”. The significance of s 52(1)(k) and (l) is that it feeds into the calculation of the rate of Mr Sleep’s pension in the scheme of the Act.

5. The factual setting of this matter can be briefly stated.  Mr Sleep is a Vietnam veteran who has a number of accepted disabilities under the VE Act.  Those disabilities include anxiety and a rare blood disorder that led him to be susceptible to infection.  He found his anxiety was helped by regular trips into the Australian Outback where he felt more relaxed and normal within himself.  He purchased a motor vehicle and a camper trailer for the specific purpose of having annual trips to the Outback.  It was this vehicle and trailer which Mr Sleep sought to have excluded from his assets under s 52(1).  The Tribunal found that the motor vehicle was not specifically designed for use by a disabled person;  that it was a standard vehicle;  and that it had not been modified in any way that related to the applicant’s particular disabilities.  Accordingly it concluded that it was not an excluded asset under s 52. 

6. An appeal was brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to the Federal Court. It is unnecessary to set out the questions of law as finally settled. Suffice it to say they related solely to s 52(1)(k) and (l). The primary judge dismissed the appeal and in so doing affirmed the interpretation properly to be given to those provisions. He said:

   “I think the Tribunal’s interpretation of s 52(1)(k) and (l) is the correct one. Personal property falls within the terms of s 52(1)(k) if there is a feature or features of the design that indicates that it was designed for use by a disabled person. Assets designed for use by persons who are not disabled, such as the motor vehicle or camper trailer in this case, do not become assets designed for use by a disabled person because of the intention of the owner or disabled person or the particular way in which it is used by a person. If there is any doubt about the proper interpretation of s 52(1)(k) (and I do think that there is), it is removed by the provisions of s 52(1)(l), which deal with modifications made so that personal property can be used by a disabled person. In those circumstances, only that part of the value of the personal property that is attributable to the modifications is to be disregarded under s 52(1). As I understood the applicant’s submission, it was that Parliament intended to exclude from the assets taken into account for the purposes of determining the rate of pension assets which a disabled person needed because of his or her disability and what was needed was a question of fact to be determined in each case. That is not the test laid down by the clear words in s 52(1)(k) and (l). Those paragraphs focus attention on the purpose for which personal property was designed or the reason it was modified.”

7. Mr Sleep’s foreshadowed notice of appeal contains 38 grounds. Not one of them suggests a possibly arguable basis for impugning his Honour’s decision. When considered in light of the written submissions put on by Mr Sleep it is clear that he has seriously misapprehended the very limited nature of an appeal under s 44 of the AAT Act, of its confined focus in this matter, and, in consequence, of the matters that it is open for him to raise in his projected appeal to this Court. To illustrate the latter point, his written submissions would invite an appeal court to consider such questions as: Are ss 96 and 81 of the VE Act invalid in their application to the applicant? and “[h]as the respondent grossly breached his fiduciary obligations and trust, duty and care to the applicant and does the applicant have a claim against the respondent for an account of profits and/or equitable compensation?”

8. The issues raised in these submissions mirror in some degree the draft notice of appeal. Suffice it to say for present purposes that the question of law raised on the appeal to his Honour dealt only with a proper construction and application of s 52(1)(k) and (l) of the VE Act. Any appeal against that decision would similarly be so limited. I indicated to Mr Sleep at the hearing that I did not consider that there was any arguable error in his Honour’s interpretation of those provisions.

9. Having had time to consider the matter, I am satisfied that his Honour’s view is clearly the correct one and for the reasons he gave.  In consequence I do not consider that any useful purpose will be served in granting the extension given that the foreshadowed appeal is doomed to failure.  Accordingly, I refuse the application for an extension of time. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        30 November 2007

The Applicant appeared in person.
Counsel for the Respondent:	Dr C Bleby
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 November 2007
Date of Judgment:	30 November 2007