Johnson v Veterans' Review Board

consideration 20 On the hearing of the present application the Board, properly, indicated that it would submit to any order the Court may make save as to costs. The Commission appeared through senior counsel to oppose the application. Mr Johnson appeared in person. As I understood his contentions, they were two fold, namely: (1) That the notices given pursuant to s 155AA(4) on 19 October 1998 and pursuant to s 155AB(4) on 4 February 1999 were invalid because the first of those notices was not given at a time when it could lawfully have been given; and (2) That the notices were not lawfully given because the SA Registrar was not authorised to have given them because he was not a person to whom power to do so had been delegated by the Principal Member of the Board pursuant to s 166 of the Act. The argument then ran that, if either of those matters were established, the notices were invalid. Having not therefore been entitled to give those notices at the time and in the manner in which they were given, any decision made by the Board based upon non-compliance with invalid notices was itself invalid. The consequence, as indicated at the commencement of these reasons, is that Mr Johnson's application to the Board for review of the decision of the Commission made on 28 March 1996 remains alive and should be dealt with at a time of his choosing. 21 I note also that the Commission, by motion dated 8 November 2002, sought to have the application dismissed on the grounds that it was incompetent. The notice of motion asserts that, to the extent to which the application is made under the Administrative Decisions (Judicial Review) Act 1977, (Cth) (the ADJR Act), the application is incompetent because the particular decisions of the Board involving the issue of the two notices do not constitute decisions, nor conduct for purposes of making decisions under the ADJR Act; that the present application has not been made within the time prescribed by s 11(1) of the ADJR Act; and that in any event there is adequate provision for review of the Board's decision of 11 March 1999 under the AAT Act and s 155A(1) of the Act, and indeed that Mr Johnson has availed himself of those rights. It was further contended that, to the extent to which the application is made under s 39B of the Judiciary Act 1903 (Cth), the application should be dismissed in the Court's discretion because of the adequacy of the review procedures available under the AAT Act and s 155A(1) of the Act, and that the applicant had availed himself of those rights. Senior counsel for the Commission at the hearing, nevertheless accepted that it is arguable that Mr Johnson has a right under s 39B of the Judiciary Act to have the present issues determined: see e.g. Coffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375. I do not propose to resolve the jurisdictional question. For reasons which appear below, I have decided that the application (even if it is within time and is competent) must be dismissed. 22 I turn to consider the grounds upon which Mr Johnson presents his claims. 23 The argument first made by Mr Johnson is based upon the definition of "standard review period" in s 155AA of the Act. In relation to an application for review, it is defined to mean "the period of two years after the day" on which the application was received by the Commission. Section 155AA(4) requires the Board, or more accurately the Principal Member, to give a notice under that section if, at the end of the standard review period, the section applies to the application for review and the Principal Member considers that the applicant should be ready to proceed at a hearing. Mr Johnson's contention is that the standard review period in his matter expired on 30 April 1998. No notice was given to him pursuant to s 155AA(4) at or shortly after that time. The first notice given to him pursuant to s 155AA(4) was given nearly six months later, on 19 October 1998. Hence, he argues, the notice or document of 19 October 1998 was not a notice given under s 155AA(4), and the consequent document of 4 February 1999 given ostensibly under s 155AB(4) was not a notice lawfully given under s 155AB(4). Consequently, he argues, the dismissal of the application under s 155AB(5), purportedly due to his failure to respond to those notices or documents, was itself invalid. In effect, his contention is that, in the circumstances, the Principal Member having failed to give a notice in accordance with s 155AA(4) within a brief time after the standard review period, was no longer empowered by the section to activate those provisions or to dismiss his claim under s 155AB(5). If he is correct, as noted above, the consequence is that his application before the Board for review is still on foot and should be dealt with by the Board. 24 I do not accept that contention. It ignores the second limb of the two circumstances which must apply before the obligation arises under s 155AA(4) to give the notice for which that sub-section provides. That is, in addition to the section applying to the application for review at the end of the standard review period (as it does), it is also necessary that the Principal Member (or subject to considering the second argument, his delegate) considers that the applicant should be ready to proceed at a hearing. Even if Mr Johnson is correct in contending that there is no discretion upon the Board not to give a notice under s 155AA(4) once the two factual criteria for the enlivenment of that obligation are established, he has not shown that the second of those criteria was enlivened on or soon after 30 April 1998 or at any significant time before the notice of 19 October 1998. It is the subjective state of mind of the Principal Member to which s 155AA(4)(d) directs attention. There is simply no material upon which it can be determined that, at about 30 April 1998, the Principal Member or his delegate considered that Mr Johnson should be ready at that time to proceed at a hearing. Nor is there any reason to consider that the view to which s 155AA(4)(d) refers on the part of the Principal Member or the delegate was formed at any material time prior to the date of the notice of 19 October 1998. Section 155AA(4) empowers the Board through the Principal Member to initiate the procedures to dismiss the application only at the expiration of the standard review period, but upon its proper construction it does not oblige the Board then to initiate those procedures. The obligation arises only when the standard review period has expired (provided it applies to the application for review) and when the subjective view has been formed by the Principal Member or the delegate that the applicant should be ready to proceed at a hearing. 25 In addition, I do not accept the contention that delay on the part of the Board or the Principal Member in giving the notice provided for by s 155AA(4), even after both criteria exist for the giving of that notice and after the obligation arises to do so, means that a belated notice then given is itself invalid. I reach that conclusion by construing the relevant provisions of the Act in their statutory context in order to determine whether the legislature intended that a failure on the part of the Principal Member to give a notice under s 155AA(4), once the two criteria for the obligation to do so exist, either immediately or promptly once the criteria exist, would invalidate the later giving of such a notice. To address the question, it is appropriate to consider the language of s 155AA(4) and its scope and purpose in the context of the Act, and the consequences of failure to comply with it in a timely manner. There is no suggestion that the notice under s 155AA(4) did not otherwise satisfy its terms. See generally the judgment of the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, cited with approval by the Full Court of this Court (Sheppard, Neaves and Miles JJ) in Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 108 ALR 107 at 122-123. 26 If s 155AA(4) were intended to have the effect submitted by Mr Johnson, in my view, the section would contain a provision specifying the time within which the notice under s 155AA(4) must be given. The legislature would not have left unstated such an important provision, leaving for argument whether it means a reasonable or some other time, and leaving for evidence what constitutes a reasonable time. It would have specified what should have happened in relation to a review application if the notice is not given promptly, or after a specified period (whether seven days or twenty-eight days or some other period), after the two criteria upon which the power must be exercised, and before which the power may not be exercised, are made out. As is apparent from the terms of ss 155AA and 155AB, the scheme prescribed for the power to dismiss an application is detailed and comprehensive. It is intended to ensure that, after a period of two years, the Board through the Principal Member may instigate procedures to bring an application for review to a head where an applicant may prefer not to do so. It removes the power which appears otherwise to exist enabling an applicant for review to delay resolution of the review by the Board at least until the expiration of the standard review period. The power granted under s 155AA and s 155AB may be exercised only in the circumstances provided, and only under its strict provisions which require the Principal Member to consider claims on the part of an applicant for review as to why the applicant for review is not then ready for the hearing. It is not a power which may be exercised capriciously. The applicant for review still is provided with the means by which, in an appropriate case, the determination of the review may be further delayed after the expiration of the standard review period. Those considerations lead me to the view that, although an obligation may be said to arise upon the Principal Member to instigate the procedures under s 155AA once the two criteria for the power to do so arise, and because the two criteria for the power to do so exist, the obligation is a continuing one until it is implemented. If it is implemented after some delay after the expiration of the standard review period and after the Principal Member considers that the applicant should be ready to proceed to a hearing, in my view it would nevertheless be an appropriate notice and a valid notice given under s 155AA(4). Underlying those provisions is the clear intention that, except for good cause, applications for review of decisions of the Commission should be brought to finality by the Board with reasonable promptitude after the end of the standard review period, provided it is in the circumstances fair and appropriate to do so. It would not be consistent with that legislative purpose to construe s 155AA(4) and s 155AB(4) so that the power on the part of the Principal Member to achieve that result is lost if there is some administrative delay, or some delay for some other reason, on the part of the Principal Member in giving the notice to which those sub-sections provide once the qualifying criteria upon which the power arises exist and require the power to be exercised. 27 I turn to consider the second of the grounds of the present application. 28 On 21 July 1992 the then Principal Member of the Board, John Patrick Gallagher (Mr Gallagher), issued a memorandum to all Registrars concerning dismissal procedures. It followed the introduction of ss 155A, 155AB and 155AC which were introduced into the Act by the Veterans' Affairs Legislation Amendment Act 1992 (Cth), which came into operation on 26 June 1992. The document referred to the fact that the responsibilities and duties given to the Principal Member by the provisions have been delegated to Registrars. It stressed, therefore, that decisions required under those provisions must be taken by Registrars personally and Registrars must personally sign the relevant notices and correspondence. It appears that on 1 March 1999, the then Principal Member of the Board introduced an operations manual dealing with the same matters somewhat more formally, constituting a direction given by the Principal Member pursuant to s 142 of the Act. It was relevantly in the same general terms as the memorandum of 21 July 1992. It required, in addition, that Registrars personally sign notices and correspondence as "Delegate of the Principal Member". Hence, the additional description used by the SA Registrar of the Board in the decision, and notice of the decision, given on 11 March 1999. 29 At the same time, that is 21 July 1992, the then Principal Member provided a delegation under s 166(1A) in the following terms: "I, John Patrick Gallagher, Principal Member of the Veterans' Review Board, acting in accordance with section 166(1A) of the Veterans' Entitlements Act 1986, hereby delegate to those persons who, from time to time, hold a position designated as Registrar of the Veterans' Review Board, my powers under sections 155AA and 155AB of that Act, provided that such powers shall only be exercised by those persons in accordance with directions issued by me from time to time." 30 As noted, the notices given on 19 October 1998 pursuant to s 155AA(4) and on 4 February 1999 pursuant to s 155AB(4) were signed by D Smith Registrar (SA). It was only the reasons for decision and the notice of decision given on 11 March 1999 which were signed by the SA Registrar also as delegate of the Principal Member. Mr Johnson contends, in those circumstances, that the two notices given on 19 October 1998 and 4 February 1999 were invalid, with the consequence already referred to. He also argues that, because Mr Gallagher ceased to be Principal Member of the Board on 8 April 1997 and was then replaced by William Douglas Rolfe (Mr Rolfe) as new Principal Member, the instrument of delegation given by Mr Gallagher came to an end. There was no delegation given by the new Principal Member of the Board of powers under ss 155AA and 155AB until 15 January 2001. It revoked the delegation dated 17 December 1992. It was in similar but not identical terms to the earlier delegation. 31 It is convenient to deal with that latter submission first. I do not accept it. In my view the argument is in effect the same as that adduced to Neaves J in Kelly v Watson (1985) 10 FCR 305 (Kelly). That case relevantly concerned the status of a delegate of a permanent head of a department where the permanent head had ceased to occupy the office. The permanent head had delegated to an officer disciplinary powers or functions under the Public Service Act 1922 (Cth), pursuant to s 25(5) of that Act. The issue arose as to whether a delegation under that provision continued to have operative effect notwithstanding the vacation of office of the particular permanent head who executed the instrument of delegation. Neaves J decided the case on other grounds, but he specifically also addressed the issue at 318-319. His Honour's judgment has been followed by the Full Court (Morling, Jenkinson and Heerey JJ) in Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 at 98 where it was held that a delegation by the then Minister of Immigration under s 176(1) of the Migration Act 1958 (Cth) continued when the office of Minister passed to a new holder. His Honour rejected the argument that the delegation should cease to operate when the delegator ceased to hold the office. He said that clear and unambiguous language would be required before construing the statute to produce such an inconvenient result. 32 In my view his Honour was correct in determining that the question there arising was a matter of construction of the particular legislation. In my view the same approach should be adopted to s 166 of the Act, and with the same result. As is apparent in Kelly, and in this matter, the recipient of the delegated powers does not become the agent of the delegator or Principal Member but is required to exercise the powers delegated in accordance with the recipient's independent discretion and in accordance with the provisions of the Act. Consequently, as his Honour said in Kelly at 318: "There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office." Nor do I see anything in the language of s 166(1) or in other provisions of the Act, and in particular ss 155AA and 155AB which would support a construction that a delegation of the Principal Member's powers and functions under ss 155AA and 155AB of the Act should lapse when the delegator was replaced by a new Principal Member. Moreover, the delegation under s 166 was to the persons occupying the office of Registrar of the Board from time to time, rather than to specified individuals. The construction contended for by Mr Johnson would also produce an inappropriate and inconvenient result. There is no administrative reason why that result might have been desirable. Section 34AA of the Acts Interpretation Act 1901 (Cth) also lends support to that approach. 33 I do not think that the matters to which Mr Johnson referred in his supplementary submission of 26 November 2002 alter that conclusion. He points to the fact that the Principal Member is appointed pursuant to s 158 of the Act, under statute, as compared to the appointment of a Minister. He argues further that the Principal Member as a statutory office responsible for the operation of the Board, is not in a similar position to that of a permanent head of a department of the Commonwealth. In my view, those differences are without significance to the proper construction of s 166 of the Act. I consider that s 166 contemplates, or permits of, a delegation continuing to have effect notwithstanding the person occupying the office of Principal Member and who made the delegation ceasing to occupy the office apply. 34 I also reject the contention that the notices under s 155AA(4) and under s 155AB(4) are invalid because of the way in which the delegate was described on the notices namely as D Smith SA Registrar, without identifying that the notices were being given under a power delegated to that person. In my judgment, the essential question is whether in fact the SA Registrar had the authority to issue the notices under s 155AA(4) and s 155AB(4). I have found that the authority to do so existed, notwithstanding the fact that Mr Gallagher as the Principal Member who had made the instrument of delegation no longer occupied the office at 19 October 1998 or 4 February 1999 respectively, and at 11 March 1999 when the decision was made under s 155AB(5) of the Act. It is the substantive question as to the authority of the SA Registrar which addresses whether the acts and decisions of the SA Registrar are valid, rather than the way in which the SA Registrar as delegate is described. That seems to be the approach adopted by the Full Court (Bowen CJ, Beaumont and Gummow JJ) in Broadbridge v Stammers (1987) 76 ALR 339 at 342-343 albeit in a different legal context. There is no provision to which Mr Johnson drew the Court's attention which would suggest that the SA Registrar, to validly exercise the delegated power, had to be described in a certain way on documents generated in the exercise of the power. The instrument of delegation is not so conditioned. Indeed, the point seems to have been raised only because Mr Rolfe in his direction of 1 March 1999 under s 142 required a specific direction to be adopted. 35 Accordingly, in my judgment, there is no merit in the substantive matters argued on behalf of Mr Johnson. On the assumption that I have jurisdiction to hear and determine matters which he raises, I dismiss his application. 36 As I regard Mr Johnson's points as having no merit, I would not (assuming this were an application under the ADJR Act) extend time under s 11(1)(c) of the ADJR Act to enable the application to have been brought at this belated stage. Even allowing for the time taken in which the normal review processes took place, culminating in the Tribunal's decision of 12 April 2000, it is now well in excess of two years since that time. The appeal to this Court was discontinued on 20 June 2000; still over two years before the present application was instituted. The delay is not explained. That adopts the position most favourable to Mr Johnson that the relevant delay is only that from when he exhausted his other rights of review. 37 In the absence of detailed submissions, however, I would not be disposed to discuss the claims presently made under s 10(2) of the ADJR Act because there are adequate alternative review processes: cp Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330. Nor would I refuse relief under s 39B of the Judiciary Act because a more convenient and satisfactory remedy exists or because it is belated: cp R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400; Du Pont (Australia) v Comptroller-General of Customs (1963) 30 ALD 829 at 832. The delay has not increased the potential amount of the claim by Mr Johnson. No other prejudice has been asserted by the Commission. In Kelly, Neaves J doubted that the applicant had standing to argue that there had been no valid delegation of disciplinary powers. I have not had the benefit of argument in this matter as to whether the points now taken by Mr Johnson were available to be taken in his review application to the Tribunal, or on his appeal (if he had pursued it) to the Court. If I had resolved that issue adversely to Mr Johnson, and had he not provided an adequate explanation about why he did not raise the matters presently raised at the time of the Tribunal's review, the position may well have been different. It would probably be an adequate explanation that he had not thought of the matters at the time. However, there is no point in speculating on such issues. 38 For the reasons given, the application is dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 11 December 2002 Counsel for the Applicant: The applicant appeared in person

Solicitor for the Second Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr P Hanks QC

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 12 November 2002

Date of Judgment: 13 December 2002