Younger, H.J. v Repatriation Commission

[1992] FCA 574

Re: HARTLEY JOHN YOUNGER
And: REPATRIATION COMMISSION
No. V G263 of 1992
FED No. 574
Administrative Law - Veterans' Affairs
(1992) 28 ALD 211 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal - application for extension of time within which to appeal - principles on which extension will be granted.

Veterans' Affairs - Veterans' Entitlement Act 1986 - continuous full-time service in Australia - service in actual combat with the enemy on 2 days in period of 3 years' service - whether veteran should be taken to have rendered operational service.

Veterans' Entitlements Act 1986, ss. 9(1), 6(1) and 120(1) and (3)

Administrative Appeals Tribunal Act 1975, s. 44(1)

Administrative Decisions (Judicial Review) Act 1977

Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344

Repatriation Commission v. Ahrenfeld (1991) 29 FCR 556

HEARING

MELBOURNE

#DATE 10:8:1992

Counsel and solicitors for
the applicant: Dr J.A. Scutt instructed

by Reichman and Co.

Counsel and solicitor for
the respondent: Mr P. Hanks instructed

by the Australian Government Solicitor.

ORDER

The Court orders that:

1. The application be dismissed;

2. The respondent's costs be taxed and paid by the applicant.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant has applied for an extension of time within which to institute an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 10 January 1992.

1. The matter before the Tribunal was an application for review of a decision of the Repatriation Commission, made on 7 February 1989 and affirmed by the Veterans' Review Board on 11 July 1990, that the applicant's condition of alcoholism was not war-caused within the meaning of subsection 9(1) of the Veterans' Entitlements Act 1986 (the VEA Act).

2. For reasons given on 10 January 1992 the Tribunal affirmed the decision under review.

3. A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding (Administrative Appeals Tribunal Act 1975, s. 44(1)). Such an appeal shall be instituted not later than the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person seeking to appeal or within such further time as the Federal Court (whether before or after the expiration of that day) allows (AAT Act, s. 44(2A)).

4. The Tribunal's decision and reasons were furnished to the appellant on 14 January 1992 and accordingly, the time within which he was entitled to institute an appeal (in the absence of an extension of time) expired on 11 February 1992. The present application was filed in the Federal Court on 17 July 1992.

5. A provision relevantly similar to subsection 44(2A), namely paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 has been the subject of judicial consideration on a number of occasions. The decision of Wilcox J. in Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344, which is frequently quoted with approval, contains at pp 348-9 a series of principles which have been distilled from the authorities and which provide a useful guide as to the exercise of the Court's power to extend time in the present circumstances. The following is an abbreviated summary of the principles expressed in Hunter Valley:
   

1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored. It is a pre-condition to the exercise of discretion in his favour that the application for extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision and a case where the decision-maker was allowed to believe that the matter was finally concluded.

3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

4. The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

6. Considerations of fairness as between the applicant and other persons in a like position are relevant to the manner of exercise of the court's discretion.

1. In this application argument was confined to two major questions, namely, whether the applicant is able to offer an acceptable explanation for the delay and whether there is a reasonable prospect of the appeal succeeding in the event that an extension of time is granted. It is however, inappropriate to regard the several principles as being discrete issues which can be determined separately. The Court clearly has an obligation to act judicially and to balance the competing interests of the parties and indeed of the community at large. A minor delay in instituting an appeal will normally be readily excused even if the merits of the appeal do not appear to be particularly compelling. On the other hand, an appeal which involves an issue of considerable public importance may well be permitted to proceed notwithstanding a substantial delay on the part of the would-be appellant.

2. The delay in this matter has been quite substantial. Indeed, the application for extension of time was not filed until more than 5 months after the expiration of the prescribed period of 28 days. The explanation offered is that following receipt of the Tribunal's decision the applicant's solicitors first referred the matter to the applicant and then after receiving his instructions made application to the Legal Aid Commission for assistance to obtain counsel's opinion on the merits of an appeal. This was done on 7 February 1992, 4 days before the 28 day period expired. With the wisdom of hindsight it is easy to comment that it would have been prudent at that stage to seek from the Court an extension of time while the matter was under consideration by the Legal Aid Commission.

3. The Legal Aid Commission granted assistance for counsel's opinion on 5 March 1992. A brief was delivered to counsel some 2 weeks later and counsel's opinion recommending an appeal was received after a delay of one month, on 20 April 1992. Application was then made to the Legal Aid Commission for assistance to conduct an appeal and on 13 May 1992 assistance was granted. Contrary to the affidavit of the applicant's solicitor (which says that the application for extension of time was filed on 14 June 1992) the application was in fact not filed until 17 July 1992 and it was served on 29 July 1992.

4. It is fashionable to blame the apparently slow responses of the Legal Aid Commission for many things, but I doubt that all of the criticism is justified. The Commission has an important and difficult role to perform in the community and has finite resources. Having regard to the performance of the applicant's advisers in this matter I do not think that the Legal Aid Commission deserves any criticism. No evidence has been adduced to explain the final delay of over 2 months. Nor did the applicant or those representing him at any time prior to filing this application inform the respondent that an appeal was in contemplation.

5. Apart from the obvious course of seeking an extension of time prior to the expiration of the initial 28 day period, prudence should have dictated that an application might sensibly have been made at the time assistance was granted to obtain an opinion from counsel (5 March 1992), or failing that, upon receipt of counsel's advice recommending an appeal (20 April 1992) or failing that, upon assistance being granted to proceed with an appeal (13 May 1992). An application made at any of those times would have had some prospect of success, although in descending order of probability.

6. The applicant has in my opinion failed to show an acceptable explanation for the delay in seeking an extension of time within which to institute an appeal. But that is not necessarily decisive of this application. Other relevant factors must be weighed in the balance to ensure that the Court's discretion is exercised in a manner which is both fair and equitable in the circumstances of the particular case.

7. I turn now to consider the prospect of the appeal succeeding if an extension of time is granted. It is not the Court's task on this application to finally determine the merits of the appeal itself, although in a case in which an appeal lies only on a question of law it may well be open (depending on the circumstances of the case) for a concluded opinion to be reached. And this is particularly so in a case such as the present, involving as it does, a question of statutory construction which has in effect been argued in full on the application to extend time.

8. In order to make an assessment of the merits of the proposed appeal it is necessary to examine the context in which the proceedings before the Tribunal arose. Central to the case is paragraph 6(1)(n) of the VEA Act which provides:
   

6(1) For the purposes of this Act -

...

(n) a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service.

1. On 27 April 1988 the applicant made a claim to the Repatriation Commission pursuant to the VEA Act, in which he asserted that his condition of alcoholism is war-caused. Subsection 9(1) provides that for the purposes of the Act, a disease contracted by a veteran shall be taken to be a war-caused disease if the disease resulted from an occurrence that happened while the veteran was rendering operational service or the disease arose out of or was attributable to any eligible war service rendered by the veteran.

2. It is common cause that the applicant is a veteran for the purposes of the Act, and before the Tribunal it was not in dispute that during World War 2 he enlisted in the Army on 7 October 1941, a few weeks before his 20th birthday, and served continuously until his discharge on 13 October 1944. There is no doubt that during this period the applicant rendered continuous full-time service as that term is defined in subsection 5(1). None of his service was overseas or in the Northern Territory. In the period June to December 1943 he served at Potshot (now Learmouth) in the north-west of Western Australia where he was a member of a light anti-aircraft gun crew which had the function of protecting an American submarine base.

3. Understandably, nearly half a century after the event, there was some conflict in the evidence given before the Tribunal on the question of the extent of enemy activity in the Potshot area in the period June to December 1943. The Tribunal found that on 2 occasions in this period enemy aircraft were in the vicinity. After referring to, and quoting relevant portions from the judgment of the Full Court in Repatriation Commission v. Ahrenfeld (1991) 29 FCR 556 the Tribunal said (at paragraph 11 of its reasons):
   

The position of Mr Younger at Potshot, as a member of a crew of an anti-aircraft gun, is more closely associated with "actual combat" than was that of Mr Ahrenfeld at Onslow. Clearly, on the basis of that authority, Mr Younger must be taken to have been rendering operational service on 16 September 1943, when the planes flew over the base and were fired on by the heavy anti-aircraft guns (although not the light anti-aircraft guns with which Mr Younger was concerned). Ms Noutso (representing the respondent) was prepared to, and did, concede as much: and conceded also that the same applied to 18 July, when all guns were made ready for action, although the enemy aircraft were recorded only at "110 miles due west travelling south". Given the broad approach adopted by the Full Court in Ahrenfeld, I consider that to have been an appropriate concession. Accordingly, I find that Mr Younger is to be taken to have been rendering operational service on both of those days.

1. It is a necessary inference to be drawn from the above that the Tribunal was of the opinion that the applicant's service at Potshot should not be treated as service in actual combat against the enemy (and therefore not amount to operational service) other than on the 2 days nominated.

2. The issue of whether or not the applicant should be taken to have been rendering operational service is relevant to the standard of proof appropriate to establishing the claim that his condition was war-caused. By virtue of subsection 120(1) and (3) of the VEA Act, a much less stringent standard of proof applies in the case of a claim relating to incapacity, disease or death attributable to operational service than is applicable in other cases.

3. Put briefly, the applicant's case is that the Tribunal, having found that he should be taken to have been rendering operational service on 2 days during the period he served at Potshot, he should be taken to have been rendering operational service during the whole of that period of service. It is said that to conclude otherwise is to adopt an erroneous construction of paragraph 6(1)(n). The draft notice of appeal identifies the question of law so raised as:
   

Whether the applicant is to be taken as having operational service for the purposes of the Veterans' Entitlement Act 1986 only during the day or days on which he had direct contact with the enemy.

1. Subsection 6(1) deals with a wide variety of factual circumstances which for the purposes of the VEA Act are taken to amount to rendering operational service. Paragraph (a) deals with any service outside Australia during a war to which the Act applies; paragraph (b) deals with service of not less than 3 months within a designated part of the Northern Territory during the period 19 February 1942 to 12 November 1943; paragraph (c) deals with service by a person who while living on a Torres Strait Island enlisted and rendered service for not less than 3 months on that island during the period 14 March 1942 to 18 June 1943. None of these paragraphs has any application to the service of the applicant nor does paragraph (d) which provides that a person who has rendered service of a kind described in paragraph (a), (b) or (c) during Word War 1 or World War 2 shall be taken to have been rendering operational service during any period of service rendered by that person during that war, within Australia, immediately before, or immediately after, the person rendered service of the kind so described.

2. There is little in the provisions of paragraphs 6(1)(a), (b) and (c) that provides any aid to the construction of paragraph 6(1)(n) except that in paragraph (n) there is mention of "service in actual combat against the enemy". This concept does not appear elsewhere in subsection 6(1).

3. It is argued for the applicant that the words "while the person was so rendering that continuous service" (emphasis added), at the conclusion of paragraph 6(1)(a), refer to the "continuous full-time service as a member of the Defence Force within Australia during World War 2", and on this basis it is said that the applicant should be taken to have been rendering operational service during the whole period of his service. But to so construe the paragraph is to ignore the circumstance to which it is intended to apply, namely "continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy". It is the service so described to which reference is made in the concluding words "that continuous full-time service".

4. Whether or not any service should be treated as "service in actual combat against the enemy" is a question of fact to be determined initially by the Commission and by the Tribunal in the review proceedings. No appeal lies from the Tribunal's findings of fact. The Tribunal found as a fact that the applicant's service should be treated as service in actual combat against the enemy on only 2 days and therefore treated the applicant as having rendered operational service on those days. To so treat the applicant was clearly consistent with the terms of paragraph 6(1)(n). Having made the necessary finding of fact the Tribunal clearly did not misconstrue or misapply paragraph 6(1)(n).

5. In my opinion, there is no merit in the proposed appeal based on the suggested error of law relating to the construction of subsection 6(1).

6. The second question of law which is said to be raised by the appeal is expressed thus:
   

Whether the applicant's condition of alcoholism was war-caused within the meaning of sub-section 9(1) of the Veterans' Entitlements Act 1986.

1. The provisions of subsection 9(1) are summarised above and do not require repetition. Except to the extent that the application of paragraph 9(1)(a) involves a finding that at the relevant time the veteran was "rendering operational service" (and thus would require the Tribunal to properly construe subsection 6(1)) no question of construction of subsection 9(1) arose in the proceedings before the Tribunal. It follows that the question posed above does not raise any question of law. Indeed, all of the 16 grounds of appeal set out in the draft notice of appeal raise questions of fact, even to the extent of asserting that the Tribunal erred in making findings of credibility.

2. Having regard to the overall length of the delay in seeking an extension of time to institute the proposed appeal, the absence of an acceptable explanation for the delay, particularly the delay subsequent to 13 May 1992, and the lack of any merit in the only question of law sought to be argued, I would not extend the time for the appeal to be instituted. The application will be dismissed.