Rana v Repatriation Commission

REASONS FOR JUDGMENT 1 This appeal was heard together with a related appeal (No SAD 37 of 2010). It has its origins in an anterior, procedural stage of the same review proceeding in the Administrative Appeals Tribunal (the Tribunal) to which that other appeal relates. Both the direction given by the Tribunal at that anterior, procedural stage and its later, final decision became the subject of proceedings instituted by Mr Rana in this Court's original jurisdiction. There, too, those proceedings were heard together, though separate judgements were delivered. 2 So far as the Tribunal's earlier procedural direction was concerned, Mr Rana's challenge took the form of an application under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) for the judicial review of the decision to give that direction. That application was dismissed by the learned primary judge: Rana v Repatriation Commission [2010] FCA 280. This appeal is against that order of dismissal. 3 The Tribunal's procedural direction was initially made on 15 May 2009. Materially, the direction was that, "This matter will proceed by way of a preliminary hearing where the issue will be confined to whether Mr Rana is a veteran/member of the Armed Forces for the purposes of the Veterans' Entitlements Act 1986." The Tribunal also that day made a number of related procedural directions, designed to ensure the efficient and procedurally fair conduct of that preliminary hearing. It is not necessary to set these out in full. We refer later to one of them. 4 For the purpose of deciding whether or not to order a preliminary hearing in respect of the identified issue the Tribunal was constituted by a member (Member Short). On 4 September 2009, the Tribunal, on this occasion constituted by a Deputy President (Deputy President Hack S.C.), determined that preliminary issue adversely to Mr Rana: Re Rana and Repatriation Commission [2009] AATA 671. The result of that adverse determination was a decision by the Tribunal that the decision under review should be affirmed. 5 It is material to note that on 15 June 2009, prior to conducting the hearing that led to the making of the decision that the decision under review should be affirmed, Deputy President Hack conducted a directions hearing by telephone. At that time Mr Rana applied to vary the order which Member Short had made such that the Tribunal not embark upon the separate hearing of the preliminary issue. The learned Deputy President declined this application, observing that, while Mr Rana had complained about the adoption of the course of hearing a preliminary issue, he had not identified any prejudice or disadvantage to him by the Tribunal so proceeding. 6 The decision under review in the Tribunal was a decision by the Repatriation Commission that Mr Rana was not entitled to a disability pension under the Veterans' Entitlements Act 1986 (Cth) (VEA). 7 The judicial review proceeding was instituted on 8 September 2009, ie well after the Tribunal had twice decided separately to hear the preliminary issue and after the final decision had been made to affirm the decision under review. 8 Part IV of the VEA makes provision for the payment of a form of disability pension to certain classes of person including, materially, those who are a "member of the Forces" as that term is defined by s 68 of the VEA. At the relevant time, that definition provides that "member of the Forces" means "a person to whom this Part applies by virtue of section 69 or 69A". Of these sections, the only one of any possible relevance to Mr Rana was s 69 of the VEA with the critical question being whether Mr Rana satisfied s 69(1)(d). That provision specified two requirements: (i) the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and (ii) the person's service as such a member was terminated before the person had completed 3 years' effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person's death or the person's discharge on the ground of invalidity or physical or mental incapacity to perform duties. The preliminary issue decided adversely to Mr Rana was that he did not satisfy s 69(1)(d)(ii) of the VEA. 9 Section 70 of the VEA sets out various circumstances related to defence service in which, materially, a "member of the Forces" will be eligible for a pension. It followed as a matter of course from the adverse determination of the preliminary issue that it was unnecessary for the Tribunal to venture into any eligibility issue arising under s 70 of the VEA. Rather, the conclusion that Pt IV did not apply to Mr Rana meant that the Tribunal had to affirm the Commission's decision that he was not eligible for the pension for which that Part of the VEA provided. 10 Member Short gave reasons for deciding that the issue identified in the procedural direction ought to be determined as a preliminary issue. It is evident from these reasons that there were competing submissions before him on that subject. Mr Rana sought the expeditious hearing of the review application as a whole. "Justice delayed was justice denied" was the proposition at the forefront of his submission. He pointed to the length of time over which the question of his entitlement to a pension had been controversial. For its part, the Commission submitted that a hearing which involved all of the issues raised by the review application might occupy some four weeks and involve many expert witnesses. It promoted a determination of the preliminary issue on the basis that it might obviate a need for a lengthy hearing. The possible saving of time and expense presented by a hearing in respect of the preliminary issue evidently proved persuasive for the Tribunal. 11 The following is also worthy of note in respect of the Tribunal's reasons. The evidence of a particular medical witness, a Dr Jha, was considered relevant to the preliminary issue. Mr Rana disclosed that, because of his bankruptcy, he could not afford to pay the expenses associated with procuring Dr Jha's attendance. The Tribunal determined that, in the circumstances, this was an expense which the Tribunal itself should bear. Further, the Tribunal was plainly conscious that Mr Rana was unrepresented, had been diagnosed as presently suffering from some psychiatric conditions and that the preliminary issue itself raised some difficult legal questions. For that reason, its other procedural directions were, amongst other things, expressly directed to ensuring that the Commission expose its arguments to Mr Rana in writing well in advance of the date fixed for the preliminary issue hearing. 12 The grounds upon which Mr Rana sought the judicial review of the preliminary procedural determination may be summarised as: (a) denial of procedural fairness on the basis that he was not prepared to meet the preliminary hearing application when this was raised at a directions hearing and, in any event, that the Tribunal did not consider the submission which he did come to make; (b) acting under dictation in that the Tribunal "just obeyed the suggestion of the respondent [Commission]"; and (c) unreasonableness. 13 The learned primary judge dismissed the judicial application with costs, reserving to the Commission liberty to apply for indemnity costs. His Honour identified three reasons for dismissing the judicial review application: (a) Each of Member Short and Deputy President Hack was entitled to make the procedural direction as to the separate hearing of the preliminary issue and no reason was shown by Mr Rana that either of them was wrong to proceed in this fashion; (b) There was no utility in the judicial review application as the procedural direction made by Member Short had been overtaken by the later, like procedural decision made by Deputy President Hack, who had come by then to constitute the Tribunal for the purpose of conducting the review hearing. Member Short's earlier determination did not bind Deputy President Hack and had been overtaken by the latter's separate procedural decision ; (c) Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) conferred on Mr Rana a right to appeal to this Court on a question of law from a final decision of the Tribunal. Mr Rana had availed himself of that right and, in so doing, had put forward as a question of law that the Tribunal had been wrong to proceed finally to determine the review application by hearing and determining the preliminary issue. 14 In detailing these reasons, his Honour incorporated by reference some of the reasoning to be found in his judgement, qv Rana v Repatriation Commission [2010] FCA 281 at [2] - [3] in respect of the related appeal from the Tribunal's final decision. It is not necessary to set out passages from that judgment for the purpose of disposing of this appeal. 15 The learned primary judge observed that Member Short's preliminary procedural direction could not have been the subject of an appeal under s 44 of the AAT Act because it lacked the quality of finality necessary to engage the application of that Act to that direction. In support of that proposition, his Honour referred to Director-General of Social Services v Chaney (1980) 47 FLR 80 at 99-100 (Chaney's case). His Honour further observed that judicial review applications in respect of a ruling made during the progress of an application before the Tribunal were to be discouraged. 16 The grounds of appeal were stated by Mr Rana to be: (i) The learned judge erred in denying the appellant natural justice; by not properly considering that Member Short when cited legal precedents and principle that ss 69 and 70 related proceedings should be heard together. The reason given by him is illogical, unreasonable or unsatisfactory or inadequate in law. This was unfair to the applicant and not supported by evidence. (ii) The learned judge had substantial evidence before him to infer that the appellant was surprised in directions hearing that only preliminary hearings would go forward, and to that no reasonable explanation was provided for, where by Member Short would allow oral submissions to the respondent to cite precedents to separate the joint hearing and without prior notice, and the unrepresented litigant was not prepared to rebut the legal citations of the precedents. This disadvantaged the unrepresented appellant, when the respondent without giving reasonable notice orally cited various precedents to separate the matter for preliminary inquiry. This was unfair and unreasonable to the appellant. [sic] 17 Mr Rana pressed each of the grounds of appeal. We mean no disrespect to him in observing that, in his oral and written submissions, there was a disjunct between those submissions and his grounds of appeal. His submissions ventured beyond those grounds into matters which, if relevant at all, were relevant only to his separate appeal under s 44 of the AAT Act in respect of the Tribunal's final decision. This observation is particularly applicable to Mr Rana's reference to and reliance by analogy upon Whiteman v Department of Veterans' Affairs (1996) 69 FCR 510 (Whiteman's Case). In that case, in respect of a provision in the Defence Service Homes Act 1918 (Cth) which had a similar wording to s 69(1)(d) of the VEA Madgwick J held that it required an inquiry into and characterisation of a serviceman's actual rather than formally recorded ground of discharge. The course of conducting a preliminary issue hearing adopted by each of Member Short and then by Deputy President Hack did not prevent Mr Rana from advancing a submission at that hearing that the issue should be determined by reference to Whiteman's Case. 18 Mr Rana also made application at the hearing of the appeals for leave to adduce further evidence. We refused that application signifying that our reasons for so doing would be published later. Those reasons are to be found in our judgement in respect of the s 44 appeal. In this appeal we do no more than state that none of the proposed further evidence could have had any bearing on the fate of the judicial review application in respect of the Tribunal's procedural ruling. 19 The essence of Commission's submissions was that the judgment of the learned primary judge was correct, for the reasons given by his Honour. 20 None of the grounds of appeal has any merit. 21 There was no case cited to us by Mr Rana, nor have our researches disclosed a case, which, in respect of an application for the review of a decision to refuse the grant of this type of pension, obliged the Tribunal to hear together both an issue as to whether Part IV of the VEA applied to an applicant, here the s 69 issue, and the consequential issue that, if Part IV did apply, whether that applicant satisfied one or the other of the eligibility criteria in s 70. It would be surprising if there were any such case. 22 Subject to modifications and conditions which it is unnecessary to detail, the VEA makes provision for the review by the Tribunal of this type of pension decision in accordance with the AAT Act. For that purpose the Tribunal is empowered to exercise all of the powers and discretions vested by statute in the person who made the decision under review: s 43(1) AAT Act. Its task is to review the administrative decision concerned on the merits and to reach for itself the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J (Drake). How the Tribunal goes about undertaking that task is, subject to any particular requirement flowing either from the AAT Act or any other relevant enactment (and neither introduces any relevant particular requirement in this case), a matter within the discretion of the Tribunal: s 33(1)(a) AAT Act. As Bowen CJ and Deane J observe in Drake (ibid), the AAT Act "offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance". However the Tribunal chooses, as a matter of discretion, to undertake its review task it must do so in a procedurally fair way: Drake (ibid). These propositions are well settled. 23 It was within the discretion of both Member Short and Deputy President Hack to undertake the task of reviewing the Commission's decision by first deciding whether the VEA had any relevant application to Mr Rana. No less than in a judicial proceeding, the consignment in a proceeding in the Tribunal of a particular issue for separate determination can be fraught with the risk of prolongation, rather than truncation, of the time within which that proceeding is finally determined. That prolongation can occur via challenges by appeal against or judicial review of the determination of the separate issue. That said, what is entailed in the direction to hear a particular issue separately as a preliminary issue is a value judgement. No procedural unfairness attended the direction by either of these members of the Tribunal that the review application be heard in this way. Mr Rana was, on each occasion, offered an opportunity to be heard on the subject of how the Tribunal ought to proceed and took advantage of that opportunity. 24 Contrary to the assertion in the ground of appeal, there was no "substantial evidence" for an inference that Mr Rana was taken by surprise at the directions hearing before Member Short. Member Short's reasons do not disclose that Mr Rana made an application for the adjournment of the directions hearing on 15 May 2009 when the question of whether to decide the preliminary issue was raised, only that he made a submission that the Tribunal should not separately determine a preliminary issue. The Tribunal was not bound to act on that submission any more than it was bound to act on the submission of the Commission that it should determine a preliminary issue. That Member Short came to accept the Commission's submission does not evidence that he was acting under the Commission's dictation, only that, for the reasons he gave, he made a procedural value judgement reasonably open to him. 25 The learned primary judge was right to conclude that the Tribunal, as constituted on each interlocutory occasion, was entitled to act as it did. 26 There is no error in any of the other reasons given by his Honour as to why there was no merit in the judicial review application. Deputy President Hack's later, albeit like, procedural direction at the telephone directions hearing superseded that of Member Short, which did not bind the learned Deputy President. That supersession necessarily deprived an application for the judicial review of Member Short's earlier direction of any utility, even assuming that such an application would otherwise have had any merit. 27 Further, it is evident from the submissions which Mr Rana advances in respect of his s 44 appeal that he seeks to challenge in that proceeding also Deputy President Hack's direction to proceed by way of hearing a preliminary issue. That a s 44 appeal will involve consideration of a like issue to that in a relation judicial review proceeding is indeed, as the learned primary judge found, another factor which may deprive the judicial review proceeding of utility. 28 An absence of utility is one reason why a court may, as a matter of discretion, refuse to grant judicial review remedy: see, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58]. 29 There were thus multiple reasons why the judicial application was rightly dismissed. 30 We conclude with some observations in relation to the learned primary judge's remark that judicial review applications in respect of a ruling made during the progress of an application before the Tribunal were to be discouraged. 31 In respect of the exercise of judicial power, it has long been the position that leave should not readily be granted to appeal against interlocutory judgements which concern matters of practice and procedure alone: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The Tribunal exercises not the judicial but rather the executive power of the Commonwealth. Parliament has, by s 44 of the AAT Act, made express provision for appeals from decisions of the Tribunal. Such an appeal is only open in respect of a decision which has about it a quality of finality: Chaney's Case. Such appeals must also be on questions of law only. That such limited provision has been made for appeals does not exclude the jurisdiction to review administrative decisions vested in this Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act. Nor could it exclude the constitutionally entrenched jurisdiction vested in the High Court by s 75(v) of The Constitution to issue constitutional writs to officers of the Commonwealth. Each member of the Tribunal is such an officer. Such matters conceded, the focus of the express provision for appeals is not irrelevant when considering whether to grant judicial review relief in respect of a Tribunal decision which could not be the subject of such an appeal. 32 No less than in judicial proceedings, the scope for oppression by a party with a deep pocket or a querulous disposition of another party can be present in administrative review proceedings. Recalling this and that the scheme of the AAT Act is to permit challenges on a limited basis to the Tribunal's final decisions and also to confer a broad discretion on the Tribunal as to how it goes about making those final decisions, counsels a principled restraint in the granting of judicial review remedies in respect of interlocutory decisions of the Tribunal in relation to matters of practice and procedure. We read the remark of the learned primary judge as counselling just such a restraint. 33 The appeal must be dismissed, with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Stone and Logan.