Warren, Roger Charles v Repatriation Commission
[1995] FCA 1020
•7 DECEMBER 1995
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - review of decisions and conduct engaged in for purpose of making decision - application not properly invoking jurisdiction of Court - distinction between decisions capable of review and conduct capable of such review discussed.
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 6(1), 10(2)(b)(ii) and 11
Veterans' Entitlements Act 1986 (Cth) s 135
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321
No SG 53 of 1995
ROGER CHARLES WARREN v REPATRIATION COMMISSION
Branson J
Adelaide
7 December 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 53 of 1995
)
GENERAL DIVISION )
BETWEEN:
ROGER CHARLES WARREN
Applicant
- and -
REPATRIATION COMMISSION
Respondent
MINUTES OF ORDER
CORAM: Branson J
PLACE: Adelaide
DATE: 7 December 1995
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the costs of the respondent.
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 ) No SG 53 of 1995
)
GENERAL DIVISION )
BETWEEN:
ROGER CHARLES WARREN
Applicant
- and -
REPATRIATION COMMISSION
Respondent
REASONS FOR JUDGMENT
CORAM: Branson J
PLACE: Adelaide
DATE: 7 December 1995
This is an application purportedly brought pursuant to s6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The opening paragraph of the application identifies the conduct by which the applicant is said to be aggrieved. It reads as follows:-
"Application to review conduct by the respondent whereby the respondent has:-
Required the applicant to repay to the respondent the sum of $34,576.10 being an amount of arrears of disability pension under the Veterans' Entitlements Act 1986 ("the 1986 Act") which the respondent asserts is an overpayment of arrears; and
Limited payment of the applicant's pension by the sum of $124.98 per fortnight effective from the 2nd day of February 1995."
Mr Cocks, counsel for the applicant, put to the Court that by his application the applicant sought review of a series of decisions of the respondent made between January and October 1995, and of a course of conduct engaged in by the respondent both before and after the making of such decisions.
The respondent has by a notice of motion dated 29 November 1995 sought orders as follows:-
"1.That this Honourable Court dismiss the Aplication (sic) for Review on the ground that the decision to which the Application relates is not a decision within the Administrative Decisions (Judicial Review) Act 1977.
Alternatively, that this Honourable Court dismiss or stay the Application for Review, pursuant to sub-paragraph 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977, on the ground that adequate provision is made by the Veterans' Entitlements Act 1986 under which the applicant is entitled to seek review of the decision to which the Application relates."
Section 6(1) of the Judicial Review Act provides as follows:-
"6.(1)Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:
(a)that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;
(b)that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;
(c)that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;
(d)that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;
(e)that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;
(f)that an error of law has been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;
(g)that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;
(h)that there is no evidence or other material to justify the making of the proposed decision;
(j)that the making of the proposed decision would be otherwise contrary to law."
In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 341-342 Mason CJ gave consideration to the distinction between decisions capable of review under the Judicial Review Act and conduct capable of such review. He stated:-
"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. .... A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision .... In relation to conduct, the complaint is that the process of decision-making was flawed; ....".
It is plain that the conduct referred to in the application in this case is conduct which followed upon the making of a decision. It was not conduct constituted by action taken for the purpose of making a decision. The application is not one properly brought under s6 of the Judicial Review Act.
Can the application nonetheless be saved by reference to s5 of the Judicial Review Act? Section 5(1) authorises a person aggrieved by a decision to which the Judicial Review Act applies to apply to this Court for an order of review in respect of the decision on one or more of specified grounds. They are broadly similar grounds to those contained in s6(1) of the Act.
The principal decisions identified by Mr Cocks as decisions of which complaint is made as part of a course of conduct are first, a decision made on 25 January 1995 by a delegate of the respondent, and secondly, a decision made on 3 October 1995 by a different delegate of the respondent which set aside the decision of 25 January 1995 and put in its place a fresh decision. As to the second of these decisions, it is a decision made more than 2 months after the filing of the application in this matter. It cannot be the subject of this application for review. As to the first, it is, as Mr Cocks concedes, no longer operative. That is, Mr Cocks concedes that the respondent no longer requires the applicant to repay to it the sum of $34,576.10 referred to in the application. He similarly concedes that the amount by which the respondent is limiting the applicant's pension is no longer $124.98 per fortnight as suggested by the application. The amounts referred to in the application are referable to the decision of 25 January 1995. That decision has been overtaken by the decision of 3 October 1995. The respondent continues to require the applicant to repay to it a lump sum, but it is an amount of $14,390.54. The respondent continues to limit the applicant's pension but it is by an amount of $182.23 per fortnight. The figures of $14,390.54 and $182.23 flow from the decision of 3 October 1995. They have nothing to do with the decision of 25 January 1995.
Mr Cocks did not contest the power of the respondent to make a fresh decision setting aside the decision of 25 January 1995. The respondent contends, and the applicant understandably has not suggested to the contrary, that the decision of 25 January 1995 was vitiated by error of law. I see no reason to doubt the power of the respondent to make the fresh decision of 3 October 1995.
I do not consider it necessary to set out either the factual or the statutory background against which this application has purportedly been made. It is, in my view, plain that the application is not one properly brought pursuant to s6 of the Judicial Review Act: it does not seek the review of conduct engaged in "for the purpose of making a decision to which [the Judicial Review] Act applies" within the meaning of that section. Nor is the application sustainable by reference to s5 of the Judicial Review Act: the only operative decision of which complaint is made is a decision made more than 2 months after the commencement of these proceedings. Moreover, that decision (i.e. the decision of 3 October 1995) is a decision in respect of which s135 of the Veterans' Entitlements Act 1986 (Cth) provides for full review on the merits by the Veterans' Review Board (see s10(2)(b)(ii) of the Judicial Review Act).
I accept the submission of Mr Hanks, who appeared for the respondent, that this application does not by its terms properly invoke the jurisdiction of the Federal Court. Moreover, in view of the admitted factual background, it seems plain that leave could not successfully be sought to amend it in a way which would invoke the jurisdiction of the Federal Court. That is, leave would not be given to amend the application to one seeking review of either a decision which is conceded to be inoperative or a decision made later than the date of the application. I add that leave to amend the application was not sought.
In conclusion I add that, by a notice of motion dated 15 August 1995, the applicant sought an extension of time within which to file and serve his application. Quite properly in the circumstances, counsel for the respondent indicated at an early stage of the proceedings that there would be no opposition to an order extending time as sought. It is not necessary in view of my above ruling to deal with this issue. However, I record that had the application been one appropriate to be heard and determined I would have granted to the applicant the extension of time sought (s11 of the Judicial Review Act).
The order of the Court is that the application be dismissed with costs.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the Applicant : Mr C Cocks
Solicitors for the Applicant : Norman Waterhouse
Counsel for the Respondent : Mr P J Hanks
Solicitors for the Respondent : Australian Government Solicitor
Hearing Date : 30 November 1995
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