Vietnam Veterans Association of Australia, New South Wales Branch Inc v Cohen, Alex

[1996] FCA 413

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA       )

NEW SOUTH WALES DISTRICT REGISTRY )    NG 111 of 1995

GENERAL DIVISION                 )

BETWEEN:

VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA, NEW SOUTH WALES BRANCH INC.

Applicant

AND:

ALEX COHEN, MARGARET McCREDIE and GRAHAM GILES, constituting the Specialist Medical Review Council

First Respondents

REPATRIATION COMMISSION

Second Respondent

REPATRIATION MEDICAL AUTHORITY

Third Respondent

SPECIALIST MEDICAL REVIEW COUNCIL

Fourth Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     3 APRIL 1996

REASONS FOR JUDGMENT

These proceedings were commenced by an application seeking (inter alia) relief under ss. 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The application also invoked jurisdiction under s.39B of the Judiciary Act 1903 (Cth) and s.21 of the Federal Court Act 1976 (Cth).  The proceedings were commenced by the Vietnam Veterans Association of Australia, New South Wales Branch Inc.
The application nominated four respondents.  The first respondents are three named persons who are said to constitute the Specialist Medical Review Council; the second respondent is the Repatriation Commission; the third respondent is the Repatriation Medical Authority; and the fourth respondent is the Specialist Medical Review Council.

The third and fourth respondents, through their legal representatives, have indicated that their position may be to submit to the order of the Court save as to costs.  However, they wish to obtain further particulars of the applicant's case before making a judgment as to whether they should adopt that course, or whether they will seek to put some submissions to the Court.

The principal application seeks review of a number of "decisions, conduct or actions", identified as actions of the third respondent under s.196B(2) and (3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") to determine certain statements of principle under the Act. The application also seeks review of what are described as "decisions, conduct or actions" of the first respondents, who are said to constitute the fourth respondent, namely, the making of declarations concerning certain statements of principle made pursuant to s.196W(5) of the Act.

The first respondents, by a notice of motion filed on 26 March
1996, seek orders that the service upon them of the application be set aside and that the first respondents be removed as a party to these proceedings. The basis of this notice of motion is a claim that the first respondents are not proper parties and that they have been joined as a colourable device in order to attract the jurisdiction of the court under s.39B of the Judiciary Act.

The second respondent has filed a notice of objection to competency dated and filed in Court on 28 March 1996. That notice claims that the determinations of Statements of Principles, made pursuant to powers conferred by ss.196B(2) and 196W(5) of the Act are decisions of a legislative, not an administrative character, and are therefore not determinations to which the ADJR Act applies. The notice of objection to competency also claims that declarations made in relation to the various Statements of Principles are not decisions under the ADJR Act, as the declarations are not final or operative decisions.

The issue that needs to be determined today is whether the notice of motion and the notice of objection to competency ought to be dealt with before the substantive hearing.  Mr Smith, who appears on behalf of the applicant, has submitted that these issues ought to be dealt with at the hearing itself.  Mr Hanks, who appears on behalf of the second respondent, has submitted that the matters ought to be dealt with separately and in advance of the hearing.
Mr Smith says that there are a number of important issues raised by the application that affect Vietnam veterans and require the determination of the court.  Accordingly, he submits that it is undesirable for the preliminary issue to be determined separately, as that may delay the final determination of the proceedings.

For his part, Mr Hanks disputes that there is a backlog of cases which will be adversely affected by a separate determination of the jurisdictional issue.  Mr Hanks submits that the substantive issues may take a considerable time to resolve, since the matters raised are numerous and complex.  He submits that the convenient course for the orderly disposition of the case is to have the jurisdictional issue determined as a preliminary matter as soon as possible.  This will have the advantage, he suggests, that, if the jurisdictional objections are well-founded, the need for a potentially lengthy hearing on the substantive issues will be avoided.

In the absence of evidence, I find it very difficult to make any determination as to the adverse effect, if any, of having the jurisdictional issues dealt with prior to the hearing of the substantive matter.  I bear in mind that considerable care ought to be taken in directing the separate determination of issues prior to hearing.  Sometimes such directions, although well-intentioned, turn out not to be advantageous to the parties or, indeed, to the Court.
However, in this case I am of the view that the matters to which the notice of motion and the objection to competency give rise ought to be dealt with in advance of the hearing of the substantive issues.  My examination of the application is necessarily preliminary.  Nonetheless, it can readily be seen that some of the issues identified might take a considerable time to resolve.  If the jurisdictional objection is well-founded, not only would there be no need to undertake the inquiries required by the application in its present form, but the Court would not have the jurisdiction to hear the issues raised in the application itself.

Furthermore, the issues raised in the notice of motion and the notice of objection to competency are, in my opinion, capable of being dealt with separately.  Unlike some issues sometimes identified as suitable for separate determination, one can be reasonably confident that the jurisdictional issue in the present case is self-contained.

It is true, as Mr Smith points out, that there may be an appeal in relation to the jurisdictional issues.  However, that is inherent in the judicial process.  Even if the matters are heard together, it is conceivable that they could be resolved by reference to the jurisdictional issues, and those issues might be dealt with on appeal before the substantive issues were actually reached.  Whether this occurred would depend upon the course adopted by the trial judge.

Having regard to these matters, I think the appropriate course is to direct that the notice of motion proceed to a hearing.  I also think it appropriate to direct that the issues raised in the notice of objection to competency be determined separately and in advance of the hearing of other issues in the proceedings.

I shall give directions for the conduct of those matters.  I direct the second respondent to file and serve any affidavits upon which it intends to rely in connection with the objection to competency, which is to be determined as a separate issue, on or before 17 April 1996.  I direct the applicant to file and serve any affidavits upon which it intends to rely in connection with the notice of objection to competency on or before 1 May 1996.  I give leave to the parties to approach the Registry for a hearing date of the notice of motion and of the separate issue that I have identified for determination, namely, the issues raised by the notice of objection to competency.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:

Heard:3 April, 1996

Place:            Sydney

Decision:3 April, 1996

Appearances:      Mr M.B. Smith, instructed by Legal Aid Commission of New South Wales, appeared for the applicant.

Mr P.J. Hanks, instructed by the Australian Government Solicitor, appeared for the first and second respondents.