Johnson v Veterans' Review Board

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal (AAT) constituted by Deputy President Jarvis given on 10 March 2004. 2 The applicant has had a long history of litigation with the respondent in respect of his claim for a pension because of an incapacity caused by vertigo and epilepsy. 3 The applicant served in the Australian Army between 1962 and 1986. He served in Borneo, Malaya and Vietnam. He was awarded a Military Medal and two Distinguished Conduct Medals. He said in his submissions to me that he had been 'stabbed in the back' by the Registrar of the Veterans' Review Board by his act in dismissing the applicant's application for review on 11 March 1999. 4 On 20 March 1996 the applicant made a claim under the Veterans' Entitlements Act 1986 (Cth) (the Act) to the Repatriation Commissioner for a pension in respect of incapacity caused by vertigo and epilepsy. The condition was subsequently rediagnosed as neuro-behavioural disorder. That claim was rejected on 28 March 1996. 5 On 28 April 1996 the applicant applied for a review by the Veterans' Review Board (VRB) of that decision. 6 The VRB is a Board established by s 107VB of the Repatriation Act 1920 (Cth) which has been continued in existence by s 134 of the Act. 7 Appointment to the Board is provided for in Division 7 of the Act. The Principal Member of the Board is a full-time member: s 158(4). 8 Pursuant to s 166, the Principal Member may, by writing signed by him or her, delegate all of his or her powers under s 148(6A) or s 155AA or s 155AB to a Registrar or a Deputy Registrar: s 166(1A). 9 On 17 December 1992 Mr J P Gallagher, who was then the Principal Member, delegated '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 power shall only be exercised by those persons in accordance with directions issued by me from time to time'. 10 On 19 October 1998 the Registrar of the VRB sent a notice to the applicant under s 155AA(4) of the Act. The Registrar was there purporting to exercise the power delegated to him by Mr Gallagher pursuant to s 166(1A). On 22 October 1998 the applicant sent a response to the notice. On 2 November 1998, pursuant to s 155AA(6) of the Act, the Registrar of the VRB sent an Extension Notice to the applicant. 11 Section 155AA(6) provides: '(6) If: (a) the applicant provides a written statement under paragraph (4)(d) within the 28 days; and (b) the Principal Member considers that the statement contains a reasonable explanation for the applicant's failure to be ready to proceed at a hearing; the Principal Member must notify the applicant and the Commission of this.' 12 On 4 February 1999, pursuant to s 155AB(4) of the Act, the Registrar of the VRB sent a notice to the applicant. 13 Section 155AB(4) provides: '(4) If this section applies to an application for review at the end of the extended review period, the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice: (a) a written statement indicating that the applicant is ready to proceed at a hearing; or (b) a written statement explaining why the applicant is not ready to proceed at a hearing.' 14 On 11 March 1999 the Registrar dismissed the application for review under s 155AB(5). That subsection provides: '(5) If the applicant does not provide a written statement under paragraph (4)(a) or (b) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.' 15 In dismissing the applicant's application for review under that subsection, the Registrar was again purporting to act under the delegated authority from the Principal Member. 16 On 11 June 1999 the applicant applied to the AAT for an extension of time for a review of the decision to dismiss his application on 11 March 1999. On 8 October 1999 the AAT granted an extension of time but on 12 April 2000, the AAT affirmed the decision under review. That decision was, of course, the decision to dismiss the application under s 155AB(5). 17 In the meantime, on 9 June 1999, the applicant made a separate claim for a pension in respect of incapacity for post-traumatic stress disorder and a further claim in respect of vertigo and epilepsy. On 30 September 1999 a delegate of the Commissioner accepted post-traumatic stress disorder as war caused with effect from 9 March 1999. 18 On 1 May 2000 the applicant commenced an action in this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In June 2000 that action was discontinued. 19 On 8 September 2000 a delegate of the Commissioner accepted epilepsy as defence caused with effect from 9 March 1999. On 27 April 2001, by consent, the AAT accepted vertigo as war caused and increased the pension to the 'special rate' provided for in s 24 of the Act with effect from 9 March 1999. 20 The applicant waited five years for the pension which he first sought on 20 March 1996; although the pension, when granted, was backdated until March 1999. Thus, he did not receive the benefit of any pension between December 1995 (the date of the application for a pension) and March 1999. The applicant contended that if the Registrar had not decided to dismiss the applicant's application for review on 11 March 1999 he would have received his benefits in December 1995. The respondent does not accept that contention, even if the decision to dismiss the applicant's application for review were set aside. I do not need to determine what benefits the applicant would have been entitled to had the decision to dismiss the application for review not been made, although, I must say, if the applicant is correct it is a most unfortunate result. 21 However, my function is to decide this appeal according to law. It is for others to determine whether it would be appropriate to provide some sort of compensation to the applicant if he fails on this appeal. 22 In 1992 Mr John Gallagher was appointed Principal Member of the VRB. 23 On 21 July 2002 Mr Gallagher made a delegation pursuant to s 166(1A) in the following terms: 'I, John Patrick Gallagher, Principal Member of the Veterans' Review Board, acting in accordance with subsection 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.' 24 He made a further delegation on 17 December 1992 in similar terms with the addition of a second sentence. It is not clear why two separate delegations were made but nothing turns on that. 25 Mr Gallagher published the delegation made on 21 July 1992 to all Registrars on the same day. 26 At the same time he published a document headed 'Dismissal of Applications Procedures' which indicated the procedure that the Registrars should adopt in exercising the powers under s 155AA and s 155AB. 27 Mr Gallagher ceased to be the Principal Member, I think, on 8 April 1997 when Mr William Rolfe was appointed Principal Member. 28 Mr Rolfe did not make any separate delegation to that which had been made by Mr Gallagher until 15 January 2001 when he published a delegation in the following form: 'I, William Douglas Rolfe, Principal Member of the Veterans' Review Board, revoke the instrument of delegation dated 17 December 1992 and delegate under subsection 166(1A) of the Veteans' Entitlements Act 1986 (the Act), my powers under sections 155AA and 155AB of the Act to each officer who from time to time performs the duties of the office of Registrar of the Veterans' Review Board, while ever that person is performing those duties.' 29 On 1 March 1999 he had, however, published a document entitled 'Veterans' Review Board - Operations Manual' in which he set out the procedure which ought to be adopted when Registrars were considering the dismissal of an application. 30 Thus it is the case that when the Registrar dismissed the applicant's application for review on 11 March 1999 he did so purportedly upon the delegated authority from Mr Gallagher. However, Mr Gallagher was not then the Principal Member but Mr Rolfe was. 31 When the Registrar dismissed the application for review, he proceeded in accordance with the Operations Manual which had been issued by Mr Rolfe on 1 March 1999. 32 On 23 August 2002 the applicant commenced a separate action in the Federal Court of Australia seeking to challenge the decision of the Commission made on 28 March 1996 rejecting his claim for vertigo and epilepsy. 33 As part of that claim, the applicant contended that the Registrar's dismissal of his application for review on 11 March 1999 was invalid because the Principal Member who had delegated his power to the Registrar was no longer the Principal Member as at the date of the dismissal. He contended that the new Principal Member, Mr Rolfe, who had been appointed on 8 April 1997, had not made a delegation pursuant to s 166. 34 In the alternative, he contended that the delegation made by Mr Gallagher was precise in its terms and required the Registrar to only exercise the delegated powers in accordance with directions issued by Mr Gallagher. He contended that Mr Rolfe had given subsequent directions which were inconsistent with those given by Mr Gallagher. The Registrar had acted on the subsequent directions and therefore not acted in accordance with the delegation made to him. 35 The matter came on before Mansfield J who delivered his reasons for judgment on 13 December 2002: Johnson v Veterans' Review Board [2002] FCA 1543. 36 He said: '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.' 37 I have set out the whole of Mansfield J's reasons in relation to this aspect of the applicant's claim before him to identify the arguments advanced by the applicant and the comprehensive way in which Mansfield J dealt with them. 38 The applicant appealed from that decision but the appeal was dismissed: Johnson v Veterans' Review Board [2003] FCAFC 89. 39 It does not appear from a reading of the reasons, that the matters to which Mansfield J referred in [27]-[35] were ventilated in the Full Court. 40 On 9 May 2003 the Full Court dismissed the applicant's appeal and ordered the applicant to pay the respondent's costs. 41 On 11 November 2003 the applicant wrote to the Principal Member of the VRB seeking reinstatement of his application. On 14 November 2003 the VRB replied to that correspondence in the following terms: 'I refer to your letter dated 11 November 2003 to the Principal Member in which you asked that your application for review concerning neurobehavioural disorder be reinstated. The Principal Member has asked me to respond to your letter. Your application cannot be reinstated. The Federal Court has already considered the matter that you have raised in your letter and the effect of the Court's judgment is that at all relevant times the Registrar, Mr Smith, had the necessary delegation and authority to do what he did: see paragraphs 31 to 34 of the judgment of Justice Mansfield. As your application for review as properly dismissed, a matter which has been affirmed by the Administrative Appeals Tribunal, it cannot be reopened or reinstated.' 42 On 25 November 2003 the applicant applied under the Freedom of Information Act 1982 (Cth) for: 'The document of authority for Mr D Smith Registrar SA, to use in his signature block, "Delegate of the Principal Member of the Board" on 11 March 1999. The authority should be dated on or before 11 Mar [sic] 1999.' 43 On 12 December 2003 the VRB replied enclosing Principal Member Gallagher's delegation of 17 December 1992, together with the dismissal procedures direction issued by him on 21 July 1992. It also enclosed a copy of the Operations Manual issued by Principal Member Rolfe on 1 March 1999. 44 On 30 December 2003 the VRB received a document entitled 'Appeal against illegal correspondence' dated 25 December 2003 in the following terms: 'On 25 December 2003, I, Keith Douglas Johnson, of 14 Saint Alfred Drive, PARAFIELD GARDENS, in the State of SOUTH AUSTRALIA, 5107, Unemployed, Say on oath.