Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal

REASONS FOR JUDGMENT 1 In reasons delivered on 18 April 2005 (Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal [2005] FCA 442), I set this matter down for further hearing on discretionary considerations relating to the application for review there identified. As par [30] of those reasons stated, the issue of statutory interpretation in particular was to be developed in the oral submissions. These reasons should be read with the prior reasons and utilise the definitions appearing there. 2 In making the further submissions, the applicant relied upon the affidavit of Mr Pope, a senior executive lawyer with the Australian Government Solicitor, sworn on 15 October 2004 and the affidavit of Ms McCormick, a senior lawyer with the Australian Government Solicitor, sworn on 8 April 2005. The second respondent supported his case by a written outline of submissions regarding the exercise of discretion. 3 As the oral submissions for the applicant made apparent, there are two broad thrusts to the issue of statutory interpretation which the application seeks to bring before the Court. The first relates to s 34(2) of the 1971 Act. It is said that the first respondent erred in construing that subsection in that he determined that the term 'an employee who is, as a incident of his employment provided with living accommodation' could apply prospectively and determined that the term 'at liberty to absent himself from his place of employment' applied to an initial journey to living accommodation situated within a place of employment. These issues arise from pars 39-42 of the Tribunal reasons. 4 The second thrust of the statutory issues sought to be argued on the review is encompassed by grounds 2, 3 and 4 of the application for review. They relate to the manner in which the Tribunal construed the meaning of 'last means of transport' as it applies in s 34(4) of the 1971 Act. The applicant seeks to assert that, in determining that the use of the second respondent's car was the 'last means of transport', the first respondent took into account irrelevant considerations, namely the criteria in s 34(4)(b)(i) - (iii) of the 1971 Act. Additionally, the applicant seeks to contend that in determining that public transport did not satisfy the three provisos in those subparagraphs the Tribunal failed to provide reasons for that finding. 5 The applicant contended the issue of discretion of whether the Court should intervene by hearing its application for review is supported on two grounds. The first is that the applicant would suffer significant prejudice if the Tribunal proceeded without such intervention. Second, that the intervention would dispose of the application before the Tribunal. There were, however, significant qualifications to each of those submissions. 6 The prejudice which the applicant relies upon is that it will have to meet costs of a continued hearing before the Tribunal. So far as the second respondent is concerned, no costs order will be sought by the applicant if the application for review is allowed. However, in the event that there was an appeal from a concluded Tribunal decision, any costs order in respect of the present applicant would itself be part of the orders of the Tribunal to which the appeal may relate. 7 As to the disposition of the application before the Tribunal, it was accepted by the applicant that even if the application for review was decided in its favour that would not dispose of the matter entirely. The Tribunal has remaining for its consideration the amount of compensation payable to the second respondent. The applicant accepts that if it succeeded on the application for review, the Tribunal would nevertheless still have to consider the possible application of s 33 and the test applicable to 'the last means of transport' and apply that test to the circumstances. Even if the ruling sought in the application for review was made, the applicant cannot rule out the possibility that the Tribunal would need to go on and to consider the issues of compensation, being the issues which it would now consider if the Tribunal hearing continued. In the event that the application for review did not proceed and the issues of statutory interpretation were raised on appeal, the applicant accepted that the matter may still need to go back to the Tribunal on the issue of 'the last means of transport'. 8 Ms McCormick's affidavit testifies as to the need for further medical evidence as well as further oral examination to enable the hearing before the Tribunal to be completed. It is the calling of that evidence which cannot be ruled out on the applicant's case even in the event that the application for review were decided favourably to it. 9 Returning to the two grounds upon which the applicant relies for the exercise of the Court's discretion in favour of hearing the application for review, it is apparent that neither of them can be fully made out. As the applicant cannot rule out the possibility that even if the statutory issues raised by the application for review were determined fully in its favour, not only would the proceeding go back to the Tribunal but the Tribunal may have to hear the issues relating to compensation. Consequently, it cannot be said that any prejudice in costs in that respect will only occur if the application for review does not take place. Likewise, it makes clear that the determination of the issues raised by the application for review may not come near substantially disposing of the matter. 10 The jurisdiction to grant relief by way of judicial review is 'plainly discretionary' and an important element of such discretion is the question whether an alternative remedy is available: Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75 at 86. The consequence of the provisions in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is that the applicant is not left without an alternative remedy if the Court dismisses the application for review. That section will provide a sufficient alternative means for the applicant to pursue the issues raised in the present application. 11 There is also the question of the availability of the Tribunal member until early August 2005. It is common ground that he may be available to re-hear the matter after the consideration of an application for review but no definite arrangement has been made by the parties with the Tribunal in that respect. This issue therefore does not weigh in the exercise of a discretion, particularly as the Tribunal has systems available to it for further hearing or re-hearing of matters before it whether or not the member of the Tribunal is available. 12 In my opinion the fact that the determination of the issues of statutory interpretation raised by the present application for review would not remove the necessity for the proceeding to go back to the Tribunal and that the possibility for issues of compensation to be determined cannot be excluded, occasions the discretion to weigh against the Court hearing the application for review.