ADJR Act Claims
48 The AOA contains the following conduct as providing the basis upon which the relief referred to in relation to the ADJR Act is sought:
27. The Respondent's Liability Handbook states "It is RCG policy to give clients who are to receive an adverse decision, advance warning of that likely outcome. The purpose of that policy is to give that client the opportunity to submit new evidence in the light of your interpretation of the evidence (or lack of it)". "The suggested means of giving this advance warning is for the Delegate to phone the client and discuss the case, the proposed decision and the reasons for that decision". The Respondent did not afford the Applicant this opportunity.
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37. It appears that the only way the Applicant can get a road toll paid is by initiating Federal Court processes i.e. The Respondent/s website and online claims portal instruct Veterans they cannot claim road tolls, the Applicant makes a claim for road tolls, the Respondent/s ignore the claim (do not make a decision), the Applicant commences Federal Court processes, the Respondent/s state to the Court they believe "road tolls are a reasonable travel expense under MRCA", the Respondent/s review the original determination, then the Applicant gets the claim paid.
38. Breaches of natural justice have occurred, are occurring, and are likely to occur.
39. Errors of law have been, are being, and likely to be made.
40. Justice delayed is justice denied.
41. There is no evidence or other materials to justify the making of the proposed decision.
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44. It is an accepted tenant of Administrative Law that consistency and certainty in administrative decision making are desirable goals, especially in relation to discretionary powers, and that the adoption of guiding policies is something to be encouraged. This is especially so in areas of high volume decision making. However, such policies must be lawful and cannot be blindly applied. The applicant submits the conduct of the Respondent/s is inconsistent and unlawful without fact or basis.
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47. The Respondent/s repeatedly failed to make a decision (s7 ADJR).
48. Through failure to make a decision the Respondent/s have attempted to reject the Claim by stealth.
(emphasis in original)
49 It would therefore appear that the applicant relies upon ss 6(1)(a), (b), (c), (f) and (h) of the ADJR Act as follows:
6 Applications for review of conduct related to making of decisions
(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 Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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;
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(f) that an error of law had 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;
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(h) that there is no evidence or other material to justify the making of the proposed decision;
50 The applicant also referred to s 6(2)(h) of the ADJR Act which provides that a reference to an improper exercise of power in s 6(1)(e) of the ADJR Act refers to 'an exercise of power in such a way that the result of the exercise of the power is uncertain'.
51 As to the applicability of s 6 of the ADJR Act to these proceedings, the applicant submitted that the conduct referred to in that provision is applicable regardless of the reconsideration of the original determinations. He further contended that ss 5(1)(a), (f) and (h) of the ADJR Act are applicable.
52 For the following reasons, the applicant's application under the ADJR Act must fail.
53 With respect to paragraphs [37], [44], [47] and [48] of the AOA, they are, as the respondents contended, internally inconsistent. However, it is clear that the applicant is expressing understandable frustration with the time it has taken for him to be paid the claimed road tolls, and the inaccurate information he has received, either by virtue of accessing the website or online portal or in correspondence.
54 First, the claim with respect to a breach of natural justice, contained in the AOA [27] and [38] refers to what the applicant describes as the Department's Liability Handbook. It contains a statement that, in the event a client is to receive an adverse decision, that client is to be notified in advance, including in order that additional evidence can be submitted should the client wish to do so.
55 The respondents' submission, which I accept, is that the statement contained within the Liability Handbook to which the applicant referred is not applicable to claims made under s 290 MRCA, but rather to initial liability claims made under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) and is accordingly not relevant. It is therefore not applicable to the grounds contained in the AOA.
56 In Kioa v West (1985) 159 CLR 550; [1985] HCA 81, the High Court discussed the "flexible" nature of the rules of natural justice as follows:
…it would be wrong to attempt to give an exhaustive classification of the cases to which the rules should be applied. The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans; National Companies and Securities Commission v. News Corporation Ltd.
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In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2], per Jacobs J.
…. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.
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The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
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The notion of natural justice is somewhat vague because of its variable content, but it is a notion which is hallowed by time, entrenched in our jurisprudence and provocative of the definition of procedural rules governing the exercise of particular powers in the generality of cases.
(footnotes omitted)
57 As to the conduct of a delegate in the circumstances of this case, acting in accordance with the rules of natural justice, the respondents submitted that there was no requirement that the delegate contact the applicant and provide him with the opportunity to advance further evidence. As was stated by Mason J in Kioa:
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.
58 In this case, the applicant was owed two claimed road tolls, each $5.07. Given that the monetary value was small and the Act contains no requirement that in such circumstances a further opportunity to provide evidence should be given to a claimant, the applicant's case does not support a finding that he was denied natural justice.
59 Furthermore, no review was sought in accordance with the processes set out in the Act, which includes a right of review by the VRB.
60 Secondly, much of the conduct upon which the applicant relied upon is not that which is contemplated by s 6(1) of the ADJR Act. As Maron J stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 341 - 342 stated:
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. …
… In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. …
61 The conduct in this case lacks the necessary procedural nature. Rather, it encompasses "decisions made along the way". It is also difficult to see how the conduct complained of here has the requisite degree of proximity to the decisions to which it is said to relate: Schlaepfer v Australian Securities and Investment Commission [2017] FCA 1122 at [52].
62 Thirdly, as submitted by the respondents, a number of paragraphs referring to conduct in the AOA, for example those of AOA [38], [39] and [41], are drafted very generally and do not have any connection to conduct (or a decision) that is, or is proposed to occur, in connection with a road toll claim by the applicant. There are no outstanding claims for road tolls.
63 As was said by Collier J in Alders v Tax Agents' Board of Queensland [2006] FCA 1442 at [13]:
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson & Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of £300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed:
'There is, therefore, now no real contest between the parties as to the right to that £300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that £300 are not now in actual controversy … we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
64 This is a case where there is no current controversy between the parties.
65 However, as noted by her Honour in Alders, there are circumstances where the public interest would be served by a determination being made, and the Court retains a discretion in that regard. In this case, the respondents contended that the public interest which arises could be properly dealt with in the course of the hearing and determination of the summary dismissal application.
66 The applicant, at least implicitly, made submissions that this is a case where the public interest would be served because other veterans could be affected. He attempted to introduce into evidence an email which he claimed was from a client service officer to another veteran wherein the client service officer responded to a road toll claim with "We do not pay road tolls under MRCA". However, the email in the form tendered was inadmissible.
67 There is a further public interest in ensuring the appropriate and proportionate use of judicial resources.
68 As has already been referred to, the relevant legislation has been amended. According to the explanatory memorandum, it appears this amendment was introduced to ensure that there exists consistency in the reimbursement of medical treatment related travel costs under the compensation schemes of the Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth). Given the concessions made, and furthermore that the decisions relating to the conduct complained of have now been remade, it is neither necessary nor appropriate for the Court to intervene. Once a decision has been made, there is a lack of relevance and utility in subjecting the preceding conduct to review; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 378 (per Toohey and Gaudron JJ); Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20 (Sackville J). The decision itself is the one which ought to be challenged; Ozmanian at 22 - 23 (Sackville J).
69 In respect of the claims under the ADJR Act, the applicant sought the relief set out in paragraph 5 above.
70 Pursuant to s 16(2) of the ADJR Act, the Court's discretion extends to the making of any or all of the following orders:
16 Powers of the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) in respect of applications for order of review
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(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make either or both of the following orders:
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
71 As observed in Lamb v Moss (1983) 5 ALD 446; [1983] FCA 264 at 461:
However, the natural meaning of the language used is apt to confer upon the court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; cf. Evans v Friemann (1981) 35 ALR 428 at 435, per Fox ACJ and Cox v Lightly (unreported judgment of Neaves J delivered on 1 July 1983). The words "in its discretion", are emphatic of the discretionary nature of the court's power.
72 The respondents correctly submitted that the form of the declaratory relief sought by the applicant in AOA [53], [54], [56] and [57] was incorrect and unclear given the pleaded conduct. However, more importantly, the declarations are futile: Mbuzi v Baldwin [2016] FCA 1314 [35] - [36]. The appropriateness of making a "bare declaration", not declaratory of any present right and amounting only to an acknowledgement of past infringements of a right to (in that case) "procedural fairness", was discussed in Ozmanian by Kiefel J. At 31, her Honour stated:
Even if one were to read s 16(2)(a) of the ADJR Act as not confined to a declaration as to the present rights of the parties, it would usually either have attached to it consequential directions or orders, or the terms of the declaration itself would make clear to those concerned what was to follow.
…I do not however detect from the judgments a view that a declaration was appropriate if it had no practical consequences. In the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ (at 582) their Honours reaffirmed the statement of principle in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 that leave would not be granted if "the Court's declaration will produce no foreseeable consequences for the parties". The statement in Gardner's case, to which their Honours made reference, was made in the background of arrangements which were no longer in operation by the time the matter came to Court and which had been superseded by further legislation…
73 Further, to the extent that the applicant is seeking a declaration that road tolls will always be an expense reasonably incurred under the Act, as the respondents in their submissions in reply correctly make clear, it is not possible for the Court to make such a declaration. The respondents acknowledged that a road toll can be an expense reasonably incurred, but that is a question which has to be evaluated with respect to a claimant's individual circumstances and the journey in question. The respondents noted various considerations to be taken into account under the Act and provided examples of instances where a toll may and may not be reasonably incurred, subject to the unique circumstances of each case. One of these examples referred to how a toll might not be reasonably incurred where a claimant took an indirect route but might be reasonably incurred in another instance if roadworks rendered the direct route unavailable. Another example referred to an instance where a toll may be reasonably incurred for a journey under 50km by car but may cease to be reasonably incurred where the person's injury or disease improves such that it becomes reasonable for them to take public transport.
74 As such, while s 290 of the Act should be beneficially construed to encompass the payment of road tolls, the question as to whether a road toll will be compensated in any particular situation is a matter of independent evaluation, rather than statutory interpretation.
75 As to the writs of mandamus sought at AOA [58] and [59], s 16(2) of the ADJR Act provides no basis for the making of such orders, nor are they, and the orders sought at AOA [60], necessary "to do justice between the parties": s16(2)(b).
76 With respect to the declarations sought at [61] of the AOA, whilst the statement contained therein is correct, it does not address the rights of the parties as set out in the AOA.
77 Accordingly, the ADJR Act application should be dismissed as the applicant has no reasonable prospects of successfully prosecuting the proceeding.