Johnson v Veterans' Review Board [2003] FCAFC 89

FEDERAL COURT OF AUSTRALIA

Johnson v Veterans' Review Board [2003] FCAFC 89 KEITH DOUGLAS JOHNSON v VETERANS' REVIEW BOARD & REPATRIATION COMMISSION S 8 of 2003

WEINBERG, STONE & JACOBSON JJ 9 MAY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 8 of 2003

On appeal from a sINGLE Judge of the Federal Court of Australia

BETWEEN: KEITH DOUGLAS JOHNSON

APPELLANT

AND: VETERANS' REVIEW BOARD

FIRST RESPONDENT

REPATRIATION COMMISSION

SECOND RESPONDENT JUDGES: WEINBERG, STONE & JACOBSON JJ

DATE OF ORDER: 9 MAY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the second respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S8 of 2003

On appeal from a SINGLE Judge of the Federal Court of Australia

BETWEEN: KEITH DOUGLAS JOHNSON

APPELLANT

AND: VETERANS' REVIEW BOARD

FIRST RESPONDENT

REPATRIATION COMMISSION

SECOND RESPONDENT

JUDGES: WEINBERG, STONE & JACOBSON JJ

DATE: 9 MAY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT INTRODUCTION 1 This appeal raises a question of construction of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 The question is whether s 155AA(4) of the Act requires a notice given in accordance with that section to be given immediately upon the expiration of the two year period referred to in the section or within a short period thereafter. 3 On 13 December 2002, Mansfield J decided this question and two other questions adversely to the appellant. The effect of his Honour's judgment was that a notice given to the appellant requesting him to provide a statement as to whether an application for review of a decision of the Repatriation Commission ("the Commission") was ready to proceed to a hearing was valid. The ultimate effect of this was that the appellant's application to review the decision of the Commission given in March 1996 was no longer on foot, it having been dismissed by a notice given in March 1999. Factual Background 4 At [1] – [19], his Honour set out the factual background in some detail. It is sufficient for present purposes to summarise the history described by the primary judge. 5 As his Honour said at [1], these proceedings involve an "oblique attempt" by the appellant to challenge a decision of the Repatriation Commission ("the Commission") given on 28 March 1996. 6 The decision which the Commission made on 28 March 1996 was to reject a claim made by the appellant for a Special Rate pension under s 13 of the Act for "vertigo: epilepsy". 7 On 29 April 1996, the appellant sought a review of the Commission's decision. However, the hearing of the review was deferred from time to time at the appellant's request. 8 On 19 October 1998, the Board through the SA Registrar ("the SA Registrar") gave a notice to the appellant pursuant to s 155AA(4) of the Act requesting a written statement that he was ready for a hearing, or his reasons as to why he was not. 9 The appellant responded on 22 October 1998 giving reasons why he was not ready for a hearing. The SA Registrar accepted the explanation pursuant to s 155AA(6)(b). 10 On 2 November 1998, the SA Registrar gave an extension notice to the appellant. The extension notice stated that the SA Registrar was required to write to the appellant in three months time unless the review was fixed for hearing. 11 The review was not fixed for hearing during the three month period and, on 4 February 1999, the SA Registrar gave a notice to the appellant under s 155AB(4). The notice requested the appellant to provide within 28 days a statement that he was ready for a hearing or reasons as to why he was not. 12 By reason of what appears to have been an unfortunate error, the person authorised by the appellant to respond to the s 155AB(4) notice did not do so. 13 Accordingly, on 11 March 1999, the SA Registrar dismissed the application for review pursuant to s 155AB(5). 14 The effect of the dismissal by the SA Registrar was that the Board did not consider the merits of the claim for review of the decision of 28 March 1996. However, during June 1999, the appellant made two further separate claims for a Special Rate disability pension under s 13. Those claims were accepted by the Commission. The claims which were accepted included the claim which the Commission had rejected in March 1996. 15 The consequence of this was that the appellant became entitled, with effect from December 1999, to the full Special Rate disability pension which he had claimed in 1996. 16 Thus, as his Honour noted at [11], the present proceedings are concerned only with the question of whether the appellant was entitled to a full Special Rate pension for a limited period from December 1995 to March 1999. On the material which the appellant put before his Honour, the amount in issue is in the order of $42,000, although as his Honour noted, the respondents did not indicate agreement to this calculation. The Legislation 17 Section 155AA of the Act is concerned with the power of the Principal Member of the Veterans' Review Board to dismiss an application for review where the "standard review period" has expired without the application proceeding to a hearing or being fixed for hearing. 18 Section 155AA(1) defines the standard review period as two years after the day on which the application was received at an office of the Department in Australia. 19 Section 155AA(2) provides that the section applies to an application unless the hearing of the review has finished within the standard review period or, as at the end of that period the application has been fixed for hearing. 20 Section 155AA(4) provides:-