Sleep v Repatriation Commission

Case [2012] FCA 422

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2012] FCA 422

Citation: Sleep v Repatriation Commission [2012] FCA 422
Appeal from: Administrative Appeals Tribunal
Parties: KENNETH JOHN SLEEP v REPATRIATION COMMISSION
File number(s): SAD 150 of 2011
Judges: BESANKO J
Date of judgment: 27 April 2012
Catchwords:

PRACTICE AND PROCEDURE – where applicant sought to appeal from a decision of the Administrative Appeals Tribunal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) – where respondent issued interlocutory application seeking to have proceeding summarily dismissed – whether notice of appeal disclosed question of law as required by s 44 of AAT Act – whether jurisdiction to hear appeal arose – where respondent claimed issue involved re-agitation of a matter previously decided – where applicant self-represented – where respondent made costs risks of appeal known to applicant – whether order of indemnity costs appropriate.

Held: The appeal is dismissed.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 42B, 44(1)
Commonwealth of Australia Constitution Act, s 51(xxxi)
Federal Court of Australia Act 1976 (Cth), s 31A
Federal Court Rules 2011, rr 6.02, 26
Judiciary Act 1903 (Cth), s 78B
Veterans Entitlements Act 1986 (Cth), ss 24, 52
Cases cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Kenneth John Sleep v Repatriation Commission [2011] AATA 349, cited
Sleep v Repatriation Commission [2009] FCA 472, cited
Sleep v Repatriation Commission [2009] FCA 1413, cited
Sleep v Repatriation Commission AATA 1100 [2008], cited
Sleep v Repatriation Commission AATA 1101 [2008], cited
Sleep v Repatriation Commission [2011] FCA 1153, cited
Date of hearing: 19 December 2011
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 36
Solicitor for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 150 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

KENNETH JOHN SLEEP
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

27 APRIL 2012

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s cost of the appeal and, in relation to the respondent’s interlocutory application dated 24 October 2011, those costs are to be assessed on an indemnity basis.

3.The parties be heard on any other or further orders.

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


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 150 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

KENNETH JOHN SLEEP
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BESANKO J

DATE:

27 APRIL 2012

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is a purported appeal by Mr Kenneth John Sleep from a decision of the Administrative Appeals Tribunal (Veterans’ Division) pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). An appeal under that…

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AGLC
Sleep v Repatriation Commission [2012] FCA 422
Case
[2012] FCA 422
Decision Date

CaseChat Overview and Summary

In the matter of Sleep v Repatriation Commission, the respondent sought to have the appeal proceedings summarily dismissed. The applicant, Sleep, sought to appeal a decision made by the Administrative Appeals Tribunal (AAT), specifically concerning his applications for review of decisions related to his invalidity service pension and his wife's partner pension. The respondent argued that the issues were previously decided and, therefore, the proceeding should not be allowed to re-agitate these matters. Furthermore, the respondent contended that the appeal had no prospect of success and should be dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

The primary legal issue before the court was whether the applicant's appeal disclosed a question of law as required by section 44 of the AAT Act. Additionally, the court had to consider whether the respondent's contention that the proceeding involved re-litigating previously decided issues justified the dismissal of the appeal. The court also needed to determine if the applicant's self-representation and the respondent's communication of the costs risks of the appeal warranted an indemnity costs order.

The court dismissed the appeal, noting that the issues raised by the applicant were substantively the same as those previously determined by the AAT and the Federal Court. The court held that the applicant had not identified any question of law that warranted an appeal. Moreover, the court found that the proceeding involved re-litigating issues that had already been decided, which justified the dismissal of the appeal. The court also considered the respondent's application for indemnity costs and found it appropriate given the circumstances of the case.

The court ordered that the appeal be dismissed and that the applicant pay the respondent's costs of the appeal, to be assessed on an indemnity basis. The court further directed that the parties be heard on any other or further orders. This decision underscored the importance of distinguishing between new legal questions and re-litigation of old issues in administrative law appeals.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s cost of the appeal and, in relation to the respondent’s interlocutory application dated 24 October 2011, those costs are to be assessed on an indemnity basis.

3. The parties be heard on any other or further orders.

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

The respondent’s interlocutory application came on for hearing before me. Mr Sleep appeared in person, and the respondent was represented.THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL The Deputy President set out the details of the applicant’s applications for review. He decided that he had jurisdiction to determine four of the six applications made by the applicant. He noted the Commission’s application to dismiss the four matters on the grounds that they raised issues that were previously the subject of proceedings in the Tribunal which were decided by Member Short adversely to Mr Sleep. He noted that appeals to the Federal Court against these decisions were dismissed. He noted the contention of the Commission that the applicant should not be permitted to re-litigate the same issues in the present matters. The Commission also contended that the proceeding should be dismissed pursuant to s 42B of the AAT Act on the grounds that they had no prospects of success. The Deputy President set out the Commission’s primary decisions in relations to the four applications for review. He said that the issues before him were whether the matters raised in the present proceeding had already been determined in the earlier proceedings and whether, as a result, he should not permit the same issues to be re-agitated in the present proceeding and whether, in the alternative, he should dismiss the proceedings pursuant to s 42B of the AAT Act on the grounds that they had no prospect of success. The Deputy President set out the provisions of the Veteran’s Entitlements Act 1986 (Cth) (“VE Act”) which he considered to be relevant, and the provisions of s 42B of the AAT Act. He referred to the previous proceedings which were dealt with by Member Short and the two appeals heard by me and dismissed: Sleep v Repatriation Commission [2009] FCA 472. He also noted that the applicant had made an application for an extension of time to file and serve a notice of appeal from my decision and that the application was heard and refused by Lander J: Sleep v Repatriation Commission [2009] FCA 1413. The Deputy President noted nine contentions made by the applicant. The applicant’s first contention was that the applications before him differed from the previous proceedings in the Tribunal because they related not only to his own invalidity service pension, but also to his wife’s partner pension. The Deputy President rejected this contention. He did not consider it to be a relevant distinction or a reason to allow the applicant to re-agitate the contentions to which he referred. He said that his conclusion was based on the fact that the relevant contentions were the same in substance in the present and earlier proceedings, and were fully considered and determined in the earlier proceeding. The applicant’s second contention was that his pension at the special rate under s 24 of the VE Act is a life interest, and by virtue of s 52 of that Act, should not be counted in the income test. The Deputy President rejected this contention on the basis that it was misconceived. He said that the grant of a pension at the special rate pursuant to s 24 of the VE Act is not a life interest within the meaning of any of the provisions of s 52.

Ratio Decidendi

Legal Principle Established

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