Vietnam Veterans' Association (NSW Branch) v Specialist Medical Review Council [2003] FCAFC 41

FEDERAL COURT OF AUSTRALIA

Vietnam Veterans' Association (NSW Branch) v Specialist Medical Review Council [2003] FCAFC 41 VIETNAM VETERANS' ASSOCIATION (NSW BRANCH) v SPECIALIST MEDICAL REVIEW COUNCIL AND REPATRIATION COMMISSION N 631 of 2002 SPECIALIST MEDICAL REVIEW COUNCIL v VIETNAM VETERANS' ASSOCIATION (NSW BRANCH) AND REPATRIATION COMMISSION N 631 of 2002 BRANSON, EMMETT & STONE JJ 13 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 631 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

APPELLANT

AND: SPECIALIST MEDICAL REVIEW COUNCIL

FIRST RESPONDENT

REPATRIATION COMMISSION

SECOND RESPONDENT

AND

BETWEEN: SPECIALIST MEDICAL REVIEW COUNCIL

APPELLANT

AND: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

FIRST RESPONDENT

REPATRIATION COMMISSION

SECOND RESPONDENT

JUDGES: BRANSON, EMMETT & STONE JJ

DATE: 13 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

BRANSON & sTONE jj 1 These two appeals were heard together on 22 November 2002. On 20 December 2002, in the appeal instituted by the Vietnam Veterans' Association (NSW Branch) ('the Association'), the Court ordered that the appeal be allowed and made additional consequential orders. On the same day, in the appeal which was instituted by the filing of a notice of cross appeal by the Specialist Medical Review Council ('the Council'), the Court ordered that the appeal be dismissed. In each appeal the parties were ordered to file and serve written submissions on the appropriate order, if any, as to costs by no later than 14 February 2003. 2 The Council and the Repatriation Commission ('the Commission') filed written submissions in accordance with the order of the Court. The Association, without seeking a variation of the Court's orders, provided submissions on the issue of costs by letter dated 21 February 2003. The Court has had regard to the submissions of the Association in considering the appropriate orders, if any, that should be made as to costs. However, no party given leave to file written submissions within a fixed period of time is entitled to act on the assumption that it is free to file submissions outside that period of time. A failure by a party either to file written submissions or to seek an extension of time within which to file written submissions will ordinarily be understood by the Court to indicate that the party has no submissions to make. 3 The orders made by the primary judge included an order that the Commission pay the Association's costs of the application. The Association, understandably, does not seek to have this order disturbed. Both the Commission and the Council by their written submissions submit that there should be no order as to costs. Prima facie this suggests that the Commission and the Council do not seek an order from this Court setting aside the order for costs made by the primary judge. However, the Commission also makes the submission that '[i]t is appropriate in the circumstances that each party should bear its own costs of the proceedings and [sic] first instance and of the appeal'. We have proceeded on the basis that it is likely that each of the Commission and the Council urges this Court to make an order setting aside the order for costs made by the primary judge but to make no other order as to costs. 4 The appeals raised important questions under Part XIA and XIB of the Veterans' Entitlement Act 1986 (Cth) ('the Act') as to the process by which the Council reviews a Statement of Principles determined by the Repatriation Medical Authority. 5 On the appeal instituted by the Association all parties enjoyed some measure of success before this Court. However, both as a matter of form and as a matter of substance, it seems to us that the Association enjoyed the greatest success. Its appeal was allowed and the majority of the Court accepted its argument that the Council had failed to apply the 'reasonable hypothesis' test correctly. Nonetheless, the Commission and the Council succeeded on an important question, namely whether a request to the Council to review the contents of a Statement of Principles ceases to have effect once the Statement of Principles is revoked. 6 The history of the Council's appeal before the Court was as follows. Following the filing by the Association of a notice of appeal against the judgment of the primary judge, the Council filed, outside the time fixed for the institution of an appeal, a purported notice of cross‑appeal. As the notice sought an order setting aside all orders made by the primary judge, it did not comply with the requirement of O 52 r 22(1) of the Federal Court Rules that it constitute a challenge to 'part of the judgment' (see Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416). By consent the Court treated the purported cross‑appeal as an appeal filed and served within the time allowed by O 52 r 15 of the Federal Court Rules. 7 It is not entirely clear why the Council wished, as it appears that it did, to institute its own appeal against the judgment of the primary judge. It may have been concerned that the Association might discontinue its appeal (see O 52 r 19). The submissions of the parties, including the Council, did not require the support of the appeal initiated by the Council's notice of cross appeal; they could equally have been made had the Association's appeal alone been before the Court. So far as the Council by its appeal sought the making by this Court of declarations which no party had sought before the primary judge, the Court considered it inappropriate for such relief to be granted. 8 It may be that had either the Association or the Commission explicitly sought an order that the Council pays its costs attributable to the filing and serving of the purported notice of cross-appeal, we would have thought it appropriate to make such an order. However, no such order was explicitly sought. This may reflect the reality that little additional cost was incurred by either of those parties by reason of the filing and serving of the notice. 9 Having regard to the history, the nature and the outcome of this proceeding, both at first instance and on appeal, we have formed the view that justice will be done by our making no order as to costs. This will: (a) leave in place the costs order made by the primary judge pursuant to which the Council is to pay the Association's costs at first instance; and