Walker v Repatriation Commission

Case [2024] FCA 190

FEDERAL COURT OF AUSTRALIA

Walker v Repatriation Commission [2024] FCA 190

File number(s): ACD 31 of 2022
Judgment of: ABRAHAM J
Date of judgment: 7 March 2024
Catchwords: ADMINISTRATIVE LAW – veterans’ affairs – veterans’ entitlements under the Veterans’ Entitlements Act 1986 (Cth) (VEA) – application under s 39B of the Judiciary Act 1903 (Cth) – application for extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to lodge an application for an order for review under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where applicant suffered medical conditions alcohol dependence/abuse, hypertension, gastro-oesophageal reflux disease, chronic pancreatitis, cirrhosis of the liver, diabetes mellitus and osteoarthrosis – whether there is a causal connection to defence service – application of statement of principles under the VEA – whether the Veterans’ Review Board (the Board) made unreasonable, illogical or irrational findings – whether the Board failed to consider particular medical conditions the subject of claims – whether the Board failed to consider or misunderstood relevant material
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10, 11
Judiciary Act 1903 (Cth) s 39B
Veterans’ Entitlements Act 1986 (Cth) ss 14, 70, 71, 135, 136, 137, 138, 139, 120B, 196B
Federal Court Rules 2011 (Cth) r 31.02
Cases cited: Australian Postal Corporation v D’rozario and Others [2014] FCAFC 89; (2014) 222 FCR 202
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328
Cremona v Administrative Appeals Tribunal and Another [2015] FCAFC 72; (2015) 230 FCR 1
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21
Edelsten v Minister for Health and Others [1994] FCA 82; (1994) 58 FCR 419
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1
Knight v Repatriation Commission [2010] FCA 1134; (2010) 52 AAR 547
Linwood v Repatriation Commission [2016] FCA 90; (2016) 148 ALD 542
Lucic v Nolan [1982] FCA 232; (1982) 45 ALR 411
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48; (2021) 284 FCR 1
Plaintiff M1/2021…

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AGLC
Walker v Repatriation Commission [2024] FCA 190
Case
[2024] FCA 190
Decision Date

CaseChat Overview and Summary

The case of Walker v Repatriation Commission involved Mr Walker, a veteran, challenging decisions made by the Veterans' Review Board regarding his entitlements under the Veterans' Entitlements Act 1986 (Cth). The dispute centred on whether Mr Walker's medical conditions, including alcohol dependence and other ailments, were causally connected to his defence service. The Federal Court of Australia was tasked with determining if the Board's findings were unreasonable, illogical, or irrational and whether it had failed to consider particular medical conditions or misunderstood relevant material.

The primary legal issues were whether the Veterans' Review Board made any errors in its reasoning process that rendered its decisions unlawful and whether Mr Walker's medical conditions were related to his service in a way that warranted entitlement. The Court had to assess if the Board's decisions were open on the evidence, logically connected to the evidence, and if the Board properly considered all relevant material. This required a careful review of the Board's reasoning and findings in light of the applicable principles of administrative law.

In its decision, the Court found that the Board had indeed erred in its reasoning process. The Court concluded that the Board’s findings were not rationally open based on the evidence presented. The Board failed to properly consider Mr Walker's claims, particularly regarding the connection between his service and his medical conditions. The Court found that the Board's distinction between different types of treatment needs was flawed, leading to an unreasonable conclusion. Given these findings, the Court granted Mr Walker's application for an extension of time to lodge his application for review and quashed the Board's decisions. The case was remitted to the Board for redetermination, and the parties were to be heard on the issue of costs.

The Court’s final orders included granting Mr Walker's application for an extension of time, quashing the Board's decisions, remitting the applications for redetermination, and directing the parties to be heard on the issue of costs. This outcome underscored the importance of proper administrative reasoning and consideration of all relevant evidence in veterans' affairs cases.

Orders

Orders of the court

1. The applicant’s application for an extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to lodge an application for an order of review under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is granted.

2. The decision of the second respondent in respect to VRB No N12/0765, VRB No N14/0185 and VRB No N14/0186 is quashed.

3. The applications VRB No N12/0765, VRB No N14/0185 and VRB No N14/0186 be remitted to the second respondent for redetermination.

4. The parties be heard on costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 15 November 2022, the respondent filed an interlocutory application seeking summary dismissal of the proceedings. That application was dismissed on 5 July 2023. Evidence In support of his application for an extension of time, the applicant read two affidavits he had sworn, one dated 14 July 2022 and the other 11 October 2022. The respondent objected to various passages in each affidavit, primarily relating to what the applicant was, or was not told, by persons from whom he sought advice. The respondent submitted that those passages are hearsay. The applicant submitted that they were not being relied on for any hearsay purpose, but rather the fact that information was provided. I admitted the evidence on that basis. The applicant was not required for cross-examination. It was not suggested the conversations did not occur or that he did not act for the reasons he gives. The contents of the affidavits were otherwise not challenged. I accept his evidence. Mr Walker gave evidence that after the 2014 Decision was made he received legal advice the effect of which was that there was no point in challenging the 2014 Decision in the Administrative Appeals Tribunal (Tribunal) or that, in order to do so, he “would need to provide evidence that [he] was ordered to drink alcohol or at least encouraged to do so” and “would need to put [his] house up as collateral” because any decision of the Tribunal “was bound to end up in the Federal Court”. He received further advice in June 2015 the effect of which was that he “should re-submit [his] claims to [the Department] as [he] was out of time to appeal the 2014 Board Decision”. Until May 2022, the applicant was not informed by any legal or other representative that he could challenge the 2014 Decision in this Court. Mr Walker gave evidence that the advice given to him after the 2014 Decision was made left him with the impression that he could only take his matter to this Court if and when he had exhausted all other avenues of appeal. The issue is not the correctness of the advice, but the fact of it. It explains the actions that the applicant took in relation to these claims, and why no proceedings were issued at a time proximate to the reasons now the subject of review. The applicant also tendered as business records relevant portions of his report to the Board under s 137 of the VEA, dated 17 March 2014. The Court also had before it the material in the application book that was filed in relation to the interlocutory hearing, and the court book prepared for the purposes of this hearing (as identified by the parties). The Board’s Reasons As noted above, the Board affirmed the decisions under review concerning the Other Conditions, osteoarthritis (left knee) and alcohol abuse/dependence. In the reasons for its decision, the Board considered the Other Conditions to be sequalae of the condition alcohol abuse/dependence, such that acceptance of the former was dependant on the latter. Much of the reasons therefore focused on the condition alcohol abuse/dependence, in respect of which the applicant submitted that his time in service (particularly his visit to the morgue and the stress imposed by external investigations) had made a significant contribution to his drinking habit.

Decision

Reasons for decision

The parties addressed the First Application under s 39B of the Judiciary Act in written submissions. Those submissions need not be recited in detail. Suffice to say that the applicant submitted that granting relief ought to be refused because the applicant, in reliance on legal advice, made informed decisions not to seek merits review; and granting relief in these circumstances may undermine reliance by parties on the finality of litigation and be perceived as unfair to other litigants who made provision for alternative review within reasonable time. However, the case for denying relief must be strong. Given the conclusion that error has been established, there is no proper basis in this case to deny relief. I agree with the respondent’s submission that “there is a basic presumption that appropriate relief should follow upon a finding of unlawfulness” against a public body: Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1 at [476]. Despite the respondent submitting otherwise, no basis was provided why relief should not be granted in circumstances where error is established. Conclusion For the reasons above, Grounds 1, 3 and 4 are established and the applications are granted. I note that the applicant sought to be heard on the issue of costs.

Ratio Decidendi

Legal Principle Established

Further, it was contended that the distinction which the Commission seeks to draw between Dr White’s opinion that Mr Walker required “specific treatment for his alcohol problems” and specific treatment for the adjustment disorder which underpinned those “alcohol problems” is one without a difference. In other words, it was submitted, the need for treatment of the latter was implied in Dr White’s more general opinion of the need for treatment for the former. Alternatively, the applicant submitted that if the respondent’s interpretation of [32] is correct, then that exposes yet another error, being a failure to consider Mr Walker’s claim of adjustment disorder on its merits. Consideration A decision is illogical or irrational “if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS at [135]. Irrationality, illogicality or unreasonableness will not be established if the decision is one upon which reasonable minds may differ: SZMDS at [131] and see also [135]. The correct approach is to ask whether it was open to the Board to engage in the process of reasoning in which it did and to make the findings of fact it did on the material before it: SZMDS at [133]; and see generally for a summary of the principles: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 (Djokovic) at [32]-[35]. It is also established that a decision-maker may fall into jurisdictional error if he or she “ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (Plaintiff M1/2021) at [27]. The threshold for legal unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11], [52], [89] and [135]. Caution is required by the Court in assessing a complaint of unreasonableness to ensure that it does not impermissibly engage in a merits review of the decision: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66]. As the Court in Djokovic reiterated at [17]: “[t]he Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it”. “It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made”: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65], citing, inter alia, SZMDS at [119] and [135]. It is timely to recall, as emphasised by the respondent, that the Board’s reasons are not to be read in a manner astute to discern error: Plaintiff M1/2021 at [38], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.