Vann, M.J. v Repatriation Commission

[1987] FCA 67

HOT FOR DISTRIBUTION

Iu THE FEDERAL COURT OF AUSTRALIA	) )
P E W SOUTH HALES DISTRICT REGISTRY	) No. 40 of 1987
1
GENERAL DIVISION	)

BEllWEEN : MAURICE JOSEPH VANN

Applicant

.m : REPATRIATION COMMISSION

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER	:	Gummow J.
DATE OF ORDER	:	4 February 1987

WHERE MADE	: Sydney
THE COURT ORDERS THAT:

1. The application be allowed.

2. The applicant pay the costs of the application.

- Note: Settlement and entry of orders is dealt with by Order

36 of the Federal Court Rules

m THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G40 of 1987
)
GENERAL DIVISION	)

BElTWEEN : MAURICE JOSEPH VANN

Applicant

AND : REPATRIATION COMMISSION

Respondent

GUMMOW J. 4 February 1987

REASONS FOR JUDGMENT

(ex tempore)

HIS HONOUR: This 1s an application for an extenslon of the

tune specified m subsection 44(2A) of the Administrative

Appeals Tribunal Act 1975 for the filing of a notice of appeal.

The evldence before me on the application today dlscloses that

the applicant was born in the United Kingdom on 20 April 1920,

and that during the Second World War he served with the British

Expeditionary Force in France from 2 March 1940 to 24 May 1940.

He was evacuated from Dunkirk. The appllcant is a British

Veteran, a member of a class eligible to recelve the Australian

service penslon.

The applicant made a formal application within the

L .

meaning of the legislation on 29 July 1985 and pursuant to a

determinatlon on 29 October 1985 the penslon that was granted

to him was "backdated" to 29 July 1985. This "backdating" was

something that was permltted to be done under the provlsions of

section 90A of the Repatriation Act 1920 which was inserted by

the IiepatFTation Leg35lati~n A ~ e - d ~ n t - & - 1'985, That k t C ~ W

into force on 1 January 1985.

The applicant then sought a review of that decislon of

29 October 1985, claiming that the effective date be earlier

than 29 July 1985 and, indeed earlier than 1 January 1985. The

Administrative Appeals Tribunal by decision dated 15 August

1986 affirmed the decision under renew. In the appeal which

1 s presently proposed the question of law that would be ralsed

is described as whether sectlon 90A. which I have mentioned, is

procedural or substantive in the sense that it permits a

"backdatlng" to a date earlier than the coming into force of

the 1984 amending legislation viz 1 January 1985. It appears

that in 1980/1981 the applicant made oral inquiries of the

department and that it was not until 7 March 1984 that he

lodged with the department adocument headed "Informal

Application for Service Pension". The applicant fixed upon

this date, 7 March 1984, as the appropriate date for

"backdating" if section 90A permitted this to be done.

The Administrative Appeals Trlbunal gave its decislon,

as I have said, on 15 August 1986. Within approximately 14

b

days of the delivery of that decision Junior counsel was

briefed to advise as to the merits of an appeal to the Full

Court of his Court pursuant to section 44 of the

Administrative Appeals Tribunal Act 1975. It mlght be noted

that the Admmistrative Appeals Tribunal was presided over by a

presidentlal member within the meaning of the legislatlon;

hence the appeal is to the Full Court of this Court. Junior

counsel did not attend promptly to the brief and the brief was

withdrawn and another junior counsel was briefed. That junior

counsel provided written advice on 3 November 1986 and the

evidence is that that advice urged submission of the matter to

senior counsel. Senior counsel dealt promptly with the matter

and a written advice was recelved on 3 December 1986.

The present application was filed on 24 December 1986.

The legislatlon does not specify crlterla which control the

exercise by the court of its discretlon in these matters.

However I was referred to declsions of the Court dealing with

comparable issues which arise under the Administrative

Decisions (Judicial Review) Act, 1977 section 11. In

particular, I was referred to the declslon of Wilcox J in

Hunter Valley Developments Pty Limlted v Minister for Home

Affalrs and Environment, (1984) 58 ALR 305 and to the decision

of Smithers J in Intervest Corporation Pty Limlted v Federal

Commission of Taxation, (1984) ALR 317. In the latter

decislon, at 325, there 1 s a citation of earller authority in this Court to the effect that in this type of case the court

4 .

should not surround the exercise of Its discretion with

unnecessary constraints pun from an analysis of prior

decisions and In my view what is there sald is not only plainly

good sense but applicable to the legislation involved here.

The debate before me this morning has focussed upon

two particular factors which it is said should be taken

promlnently into account ln formulating the exerclse of

discretion, namely (a) adequacy of the explanation given for

the delay and (b) the prospects of success on appeal. As to

the flrst of these matters, the evidence given for the

applicant, which was not subject to cross-exammation, does

show that the delay in question has involved difficulty

encountered in obtaining prompt advice as to the likely

prospects of appeal, the difficulty only dlsappearing, as I

have indicated, when senlor counsel was briefed late last year.

Emphasis was placed upon the Initial delay in brieflng ~unior

counsel and it was also pointed that there was some delay after

the receipt of senior counsel’s advice in December. However, I

would not regard those periods as so significant as to involve

any adverse exercise to the applicant of a discretion which would otherwise be exercised in his favour. In my view there is a reasonably adequate explanation of the delay.

That brings me to the question of prospects of success

and in so doing I should emphasize I would not attempt to give

here any detailed consideration of the likely final outcome of

5.

the appeal. That of course will be a matter for the Full

Court. As I have indicated, the substantive question that is

raised is one of law, as it must be, pursuant to section 44 of

the Administrative Appeals Tribunal Act 1975. The question

concerns a matter of statutory interpretation, in particular

the correct construction of section 90A(3) inserted into the

legislation, as I have said, by the Repatriation Legislation

h'endment Act 1984. The draft notice of appeal refers to the

question that arises as one of whether, if the section 1s

"substantive", it is "retrospectlve". I am not certain that

this is the correct way of percelving the problem. As I

understand it, it is not sought to give to section 90A an

operatlon that affects rights and obligations with deemed

effect as at a date before the legislation came into force, so

as to affect rights and liablllties already defined by past

events. Rather, the question appears to be whether fresh

rights are to be given now by reference to facts which occurred

before the coming into force of the legislation. The

distinction is one adverted to in Maxwell v Murphy, (1955) 98

CLR 261 at 267 (Dixon CJ) and Coleman v. Shell Co. of Australla

(1943) 45 SR (NSW127 at 31 (Jordan CJ). See also Pearce,

"Statutory Interpretatlon" 2nd Ed., para 211.

Be that as It may, the discussion that has taken

place this morning with counsel for both parties does, in my

view, serve to illustrate that there is fairly open a

construction of the lzgislation which would produce the result

.

6.

that the Administrative Appeals Tribunal erred as a matter of

law in reaching the conclusion expressed in pages 9 and 10 of

the decision of 15 August 1986. When I say the construction is

one that is "fairly open", I am not saylng by any means that it

is one whlch would necessarlly succeed, but that there are

certainly, in my view, grounds for saying that there are

reasonable prospects of success. It would not be correct to say that the construction contended for by the applicant was

fanciful or necessarily misconceived. Accordingly, in my view,

whilst the question of- the prospects of success is one that has

to be approached wlth a measure of caution, nevertheless this matter, together wlth the adequacy of the explanation offered, leads the Court to the concluslon that Its discretion should be

exerclsed favourably to the applicant.

The applicant, of course, seeks an Indulgence, and

as the authoritles to which I have referred point out, the

grant of that indulgence should be attended by an order for the

payment of costs by the applicant of this application. I

understand there is no opposltion to that course. The question

then arises as to the time that is necessary for the

formulation and filing of the notice of appeal.

REPORTED : NOT TRANSCRIBED

HIS HONOUR : The order of the court wlll be that on the

appllcatlon for exter?slon of time, the court extends untll 11

February 1987 the time for the filing and servlce of the notlce

of appeal agalnst the decision of the Bdministratlve Appeals

Tribunal glven on 15 August 1986. The court orders the

appllcant to pay the costs of today’s application.

I certify that this and the SIX ( 6 )

preceding pages are a true copy of the

Reasons for Judgment of hls Honour

Mr Justice

Gummow.

Associate: dd LL;

Date: 4 2 . f?

Counsel and Solicitors for

Mr B. Purves

Appllcant:

Instructed by The

Australian Legal Aid

Off ice

Counsel and Solicitors for

Mr P. Comans

Instructed by The

Australian Government

Solicitor

Date of Hearing:

1 February 1987

Date of Judgment:

4 February 1987