Thornton, I.A. v. The Repatriation Commission [1981] FCA 71

THE COURT ORDERS THAT

1. The application be dismissed.

WESTERN AUSTRALIA DISTRICT REGISTRY ) W.A. G No. 4 of 1981 ) )

This 1s an application under the provisions of the Administrative Decisions (Judic1ral Review) Act 1977 ("the Act"} for an order of review. It 18 made pursuant to s.7(1) of the Act and the applicant complains not of a decision made but of the failure of the Repatriation Commission ("the Commission") to make a decision. Such an order is the applicant's entitlement if she can establish that there has been unreasonable delay on the part of the Commission in making the decision. Section 7(1) of the Act , 1s in the following terms:

(a) a person has a duty to make a decision to which this Act applies;

(b) there 1s no law that prescribes a period within which the person 1s required to make that decision; and

a person who is aggrieved by the failure of the first mentioned person to make the decision may apply to the Court for an order of review 1n respect of the failure to make the decision on the ground that there has been unreascnable delay in making the decision." Section 7(2) has no relevance to this application, in that it relates to the situation where the law prescribes a period within

The words "decision to which this Act applies" are defined in s.3(1) of the Act namely:-
"'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision

included in any of the classes of decisions set out in Schedule 1."

The decision which is the subject of these proceedings is a decision by the Commission on a claim by the applicant that she is entitled to a pension under Division 1 of Part 111 of the Repetriation Act 1920 and it is common ground that as such it is a "decision to which this Act applies". It is not a decision of the Governor-General nor one of the decisions specifically referred to in Schedule 1 to the Act. Likewise it was conceded that the Commission has a duty to make the decision, that there 1s no law prescribing the period within which it 1s required to make it, that it has fa1rled to make the dea sion and that the applicant is a person aggrieved by such failure. Thus the only matter for determination by this Court is whether the applicant is entitled to an order of review in respect of that failure because there has

The word "failure" is defined in s.3(1) of the Act in relation to the making of a decision as including "a refusal to make the decision". There was no suggestion that the Commission has refused to make a decision. Rather it 1s delaying the making of a decision until the happening of a specified event, namely the handing down by the High Court of Australia of its decision in the appeal against the decision of the Full Court of this Court

an Repatriation Commission v Law (1980) 31 A.L.R. 140.

The grounds ,nd circumstances which the applicant relies upon were primarily before me 1n the form of an affidavit sworn by a member of the Legacy Club of Perth who acts as advisor to and advocate for widows claiming pensions under the Repatriation Act 1920. The applicant also gave oral evidence in supplementation. This evidence was not in dispute. She 1s the widow of one Stephen Matthew Thornton ("the deceased") a member of the forces as defined by the latter Act, who died on 18 October 1978. On 6 November 19736 the applicant lodged a claim for a pension under Division 1 Part 111 of that Act as the dependant widow of the deceased. The Repatriation Board constituted under the provisions of that Act on 12 December 1978 rejected her claim, not being.satisfied that the deceased's death was related to his war service. On 16 January 1979 the applicant appealed to the respondent the Commission against the decision of the Repatriation Board, and the Commission on 30

The applicant then appealed by notice dated ?1 February 1979 to the Repatriation Review Tribunal against the disallowance by

the Commission of her appeal, and that Tribunal heard the appeal

on 21 April 1980. The Tribunal, finding that it had further evidence before 1t which was not before the Commission which further evidence 1t was satisfied would have been relevant to

the making of a decision, acted as required by s.107 VL(2)(b) of the Repatriation Act. It adjourned the hearing and requested the Commission to review the decision having regard to the further evidence. By letter dated 11 August 1980 the applicant was

advised that the Commission requested further information, which information the applicant supplied under letter dated 25 August

The applicant complains that she has not received any communication from the Commission since that date and though her counsel tendered from the Commission's file a letter in the following terms which the applicant denies having received:

"Mrs. I.A. Thornton, 18 September 1980 1 Martin Avenue,

I refer to your appeal in respect of the death of your late husband.

Recently the Commission deferred consideration of your appeal pending the outcome of a case, which appears to raise similar 1ssues to your own, currently before the Federal Court.

Following a change to Repatriation legislation in 1979, certain Repatriation matters may now be taken for decision to the Administrative Appeals Tribunal and to the Federal Court. Some cases are already before these bodies and the outcome may have a substantial bearing on cases of a similar nature currently awaiting determination by a Repatriation Board or the Repatriation Commission. In the circumstances, those cases which may be affected by the cutcome of cases before the Administrative Appeals Tribunal or the Federal Court are being held in abeyance in the interests of the claimants.

You may be assured that your case will be finalised as soon as possible.

These are the circumstances in which the applicant contends that the Commission has a duty to make a decision and that she is aggrieved by the delay on the part of the Commission. She appeals to this Court on the ground that there has been unreasonable delay

On the part of the Commission there was filed an affidavit sworn by Desmond Lionel Gostelow, the delegate of the Commission to whom the application of the applicant was'referred. As such he constituted the Repatriation Commission for the purpose of dealing with the claim of the applicant to a pension under the Repatriation Act. He stated that on 18 September 1980 he decided to defer the making of the relevant decision until such time as the High Court of Australia handed down its decision on the appeal by the Commission against the decision of the Full Court of the Federal Court in favour of one Nancy Law. At the time he made the decision to defer, the Notice of Appeal had on 4 September 1980 been lodged in the Registry of the High Court which Qurt subsequently in the month of November 1980 heard the appeal and has reserved its decision. Such decision had not been handed down at the time of the hearing before me and it was common ground that the decision of the High Court or at least some of 1ts reasons for 1ts decision will be very relevant to the entitlement of the applicant to the pension

In addition to the information deposed to in that affidavit, oral evidence was given on behalf of the Commission of the number of cases the hearing of which has been deferred 1n the Federal Court, the Administrative Appeals Trabunal andthe Repatriation Board,

the Repatriation Commission and the Repatriation Review Tribunal

pending the oukcome of the High Court Appeal. Information was

also before the Court as to the likely cost (ultimately to the taxpayer) if all these deferred cases were ultimately determined in favour of the applicants, such cost including the amount of arrears of pension which will be payable and the actuarially calculated future cost of pensions. Calculations of the amount of such future costs after adjustments for inflation were also before me. I am of opinion that this evidence 1s of little, if any, assistance to me

It was agreed by both counsel that the only question for determination was whether the acknowledged delay on the part of the Commission in making its decision was in the circumstances unreason~ able. The applicant must accept the onus of so satisfying me.

The use by the legislaturein s.7(1) of the Act of the words "unreasonable delay" indicates that some delay, delay which is in

the circumstances reasonable, is permissable. It is only when the delay is unreasonable i.e. when the power to delay is abused, that the aggrieved person is entitled to relief in the nature of an order

to review. Such relief is provided by s.16(3) of the Act, namely:-

"On an application for an order of review in respect

of a failure to make a decision,..., the court may,

in its discretion, make all or any of the following

(b) an order declaring the rights of the parties in relation to the making of the decision:

{c) 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."

The crux of the matter 1s whether the delay of the Commission is unreasonable in the circumstances. The particular provisions of the Act do not lay down any guide lines to assist the resolution of the question. The Shorter Oxford English Dictionary defines the word "unreasonable" in the following terms:

going beyond what 1S reasonable or equitable." The dictionary meaning of the word "reasonable", 1s given as "having sound judgment, sensible, sane. Not irrational, absurd,

or ridiculous. Not going beyond the limit assigned by reason,

The words "unreasonable delay" are to be found in the Matrimonial Causes Legislation of this country and the United Kingdom as a bar to dissolution of marriage. Its meaning there is somewhat narrow, being substantially controlled by the context

to mean delay which 1s blameworthy or as indicating acquiescence.

In Binney v Binney & Hill [1936] 2 All E.R. 409 at p.410 Bucknill J. said:

"The question which I have to decide 1s whether in this

case there has been unreasonable delay. I understand that

to mean culpable delay, something in the nature of connivance or acquiescence or something of that sort that on the facts shows the petitioner to have been insensible to the loss

The meaning of the word "unreasonable" has been considered an many contexts. In relation to the adoption of a child Lord

Hailsham L.C. 1n Re W (an infant) fi973] 2 Ail E.R. 49 at p.56

approved the following passage in the judgment' of Jenkins L.J.

in Re K (an infant) [[952] 2 All E.R. at 884 namely:

"It 1s unnecessary, undesirable and indeed impractical to attempt a definition covering all possible cases of that kind. Each case must depend upon its own facts and circumstances."

"In my opinion, besides culpability unreasonableness can include anything which can objectively be adjudged to be unreasonable. It is not confined to culpability or callous indifference. It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness, or excessive lack of common sense."

Earlier on the same page he had confirmed that the test was objective in the following words: \

"But the test is still reasonableness, or its opposite,

and reasonableness, or its opposite, must be judged as

Russell L.J. observed in the instant case, and as both

counsel agreed, by an objective (as distinct from a

subjective) test. Indeed I cannot myself readily visualise circumstances, in which the words 'reason','reasonable' or 'unreasonable' can be applied otherwise than objectively.

And, be it observed 'reasonableness' or 'unreasonableness' where either word is employed in English Law, 1s normally a question of fact or degree, and not a question of law, so

long as there 1s evidence to support the finding of the Court."

In Shanley v Ward (1913) 29 T.L.R. 714 at p.715 the Master of the Rolls said, when dealing with the withholding of consent to the assignment of a lease, that persons have not acted "unreasonably

if in the action they took they acted as a reasonable man might have

In my opinion a delay 1s unreasonable if it can be said that no reasonable man acting in good faith would in the circumstances have approved the delay. Such a test is akin to that adopted, in relation to the disallowance of by-laws, by the Privy Council in Slattery v Naylor [1888]3 A.c. 446 at p.452 where Lord Hobhouse uses the words "fantastic and capricious" and "such as reasonable

men could not make in good faith" when considering whether the

In Widgee Shire Council v Bonney (1907) 4 C.L.R. 977 at p-983 Griffith C.J. said:

"If a by-law is such that no reasonable man, exercising in good faith the powers conferred by the Statute, could in any circumstances pass such a by-law, it might be held invalid..."

Lord Diplock in Secretary of State fio7q 3 All E.R. 665 at p.695 reiterated the influence which the context exercised in arriving at the meaning of the word "unreasonable" when he said:

"My Lords, in public law unreasonable as descriptive of

the way in which a public authority has purported to

exercise a discretion vested in it by statute has become a word of legal art. To fall within,this expression it must be conduct which no sensible authority acting with

due appreciation of its responsibilities would have decided to adopt."

In my opinion the reasonableness of the delay on the part of the Commission 1s a matter for objective determination, the question being whether a reasonable man acting in good faith could consider

the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it

Counsel for the applicant however contended that the delay was in the circumstances wholly improper and incapable of justification because, he said, the Commission was not entitled to wait on the decision of the High Court but was obliged to act on the view of the law laid down by the Full Court of the Federal Court. He cited dicta from certain authorities in support of his submission, the

essence of which was that any delay on this ground was unacceptable

In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty. Ltd. fio35] 54 C.L.R. 230 at p.253 Starke 7, said that "Courts of Law,

however, can only act upon the law as it is, and have no right to,

and cannot speculate upon alterations in the law that may be made i?

the future". The Master of the Rolls (Sir Raymond Evershed) in

Re Gates Settlement Trusts L954} 1 All E.R. 619 at p.621 sazd in

relation to the particular facts of that case that "the fact that Re Chapman is pending before the House of Lords is not a sufficient justification for the judge's decision to adjourn the present case", Likewise Lord Justice Denning (as he then was) said at p.622:

"The law has been stated by this court in Re Devonshire and the judge should have applied the law as there laid down without any misgivings as to what the House of

These authorities were referred to in this country by Dean J, an R v Whiteway 1961 V.R. 168 at p.171 in the following passage:

"Sometimes adjournments have been made pending the decision

of another case and, in general, this is legitimate enough - Re Yates Settlement Trusts (1954) 1 All .E.R. 619. At the same time an indefinite adjournment may amount to a denial

of justice, and a refusal by the tribunal to perform its

duty to hear and determine matter before it. See Hinckley and South Leicestershire Permanent Benefit Building Societ

v Freeman L94]j ch.32:; L940) ALL E.R. 212 Robertson v

Cilia, [1956] 3 All E.R. 651. The question 1s whether in the present case the adjournment was dictated by relevant considerations or whether, on the other hand, the discretion was exercised for extraneous reasons. I think it was the duty of the court, when the applications came on for hearing to deal with them in accordance with the law as it then stood.

In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty. Ltd. (1935), 54 CLLR. 230, at p.253; 42 A.L.R. 6, at p.14, Starke J., said: 'Courts of Law can only act on the state of the

law as it is, and have no right to, and cannot, speculate

upon alterations in the law that may be made in the future'. This was said in the course of a dissenting judgment, but

none of the other members of the Court expressed any contrary view, and I think what his Honour said was correct. It would be a cause of injustice 1f courts could adjourn cases because they had some real or imagined belief that the law might be amended. On 2 June the court believed that a Bill then before Parliament which gave the court power to dispense with strict compliance with formalities would soon be enacted. We know now that it was for some days uncertain whether the Bill would pass the Legislative Council. It has now been passed, and came into operation on li July 1960. I think the court was

in error in granting the adjournment indefinitely for the reason assigned."

In my opinion these cases are not authorities for the proposition contended for by counsel for the applicant. Starke J., an Ramsay v Aberfoyle Manufacturing Co (Australia) Pty. Ltd., supra was referring to an amendment to the law and not the clarification or settling of the law by the highest tribunal in the country.

The dicta of the Master of the Rolls and Denning L.J., in Re Yates must be read in the context of the circumstances and their reasons. The delay in that matter was not in itself unreasonable, but what was significant was the prejudice which persons would suffer if the

elderly settlor died during the period of adjournment.

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance 1t is on the evidence a delay for a consideredreason and not in consequence of neglect, oversight or perversity. Moreover 1t 1s a delay for a finite and not an indefinite period. Admittedly if 18 uncertain when the High Court will hand down its decision but one is not entitled to assume that there will be any excessive delay. There have been extensive changes made to the Repatriation Act and the procedures thereunder in recent years, and the. consequential litigation renders it understandable that claims are not being dealt with, at least for

It 1s also relevant to appreciate the nature of the decision which the Commission 1s required to make, and the consequences of a decision which turns out to be incorrect in the light of the High Court reasoning 1n the law appeal. The acceptance of the

applicant's claim has a prospective as well as a retrospective effect.

It grants to her the status of a widow whose husband's death has been accepted as due to his war service, and she had entitlements and privileges for the balance of her life which differ, and differ to her advantage, from those of a widow entitled only to a Social Security Pension. For a number of reasons it could be said that it is more satisfactory that this be determined once and for all time, and not on in effect a conditional basis 1.e. subject to review after consideration of the implications of the High Court's reasoning. 4 Furthermore if a decision favourable to the applicant is given now, she will be entitled to receive, doubtless in a lump sum, the additional pension retrospective to the date of her husband's death, an amount in excess of $6,000, as well as periodic payments here- after of some $92.00 per fortnight 1n addition to a part Age Pension under the Social Security legislation. She will also be entitled to the additional benefits, primarily in respect of medical and hospital treatment, commensurate with her new status. All of these entitlements she will lose if consequent upon the High Court decision, a decision 1s made to review under s.31 of the Repatriation Act. However I can find, and counsel were unable to fand, any provision for repayment by her of the lump sum arrears or the overpayments of periodic pension. Section 120AA of the Repatriation Act does not appear to have any relevance as it has application in only restricted circumstances; "120AA. Where, 1n consequence of a false statement or representation or of a failure or omission to comply with any provision of this Act or the regulations, an amount has been paid by way of pension, allowance or benefit that would not have been paid but for the false statement or representation or the failure or omission, the amount so paid is recoverable in a court of competent jurisdiction fxrom the person to whom, or on whose account, the amount

was paid, or from the estate of that person, as a debt due to the Commonwealth."

It cannot be said to be unreasonable, and conversely it might be said to be more responsible, to refrain from paying irrecoverable monies during a period of some uncertainty. Lakewise the undesirability of the raising of her expectations in circumstances where there could conceivably be a reversal of the

The personal circumstances of the applicant were before me but in the laght of the obligation to determine the reasonableness of the delay objectively I doubt their relevance. Even if she were destitute, I doubt whether a reasonable man could consider it proper on this ground to make a favourable decision in her case and allow the future to take its course. However fortunately she is not destitute, 18 1n receipt of an Age Pension and some small superannuation payments together with assistance from time to

In all the circumstances I cannot say that the decision to delay 18 unreasonable, and on this ground the application must be

dismissed. The applicant must pay the costs of the application.

{ certify that this and the [2 praceding pages are a true copy of the Reasons for Judgment of Mr Justice Fisher