. nw 67 NOT FOR DISTRIBUTION INUWTHE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 40 of 1987 ) ) GENERAL DIVISION BETWEEN : MAURICE JOSEPH VANN Applicant AND: REPATRIATION COMMISSION Respondent MINUTE OF ORDER JUDGE _ MAKING ORDER : Gummow J. DATE OF ORDER : 4 February 1987 WHERE MADE : Sydney THE COURT ORDERS THAT: 1. The application be allowed. 2. The applicant pay the costs of the application. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G40 of 1987 wevewrwnr GENERAL DIVISION BETWEEN : MAURICE JOSEPH VANN Applicant AND: REPATRIATION COMMISSION Respondent GUMMOW J. 4 February 1987 REASONS FOR JUDGMENT (ex tempore) HIS HONOUR: This 1S an application for an extension of the time specified in subsection 44(2A) of the Administrative Appeals Tribunal Act 1975 for the filing of a notice of appeal. The evidence before me on the application today discloses that the applicant was born in the United Kingdom on 20 April 1920, and that during the Second World War he served with the British Expeditionary Force in France from 2 March 1940 to 24 May 1940. He was evacuated from Dunkirk. The applicant is a British Veteran, a member of a class eligible to receive the Australian service pension. The applicant made a formal application within the 2. meaning of the legislation on 29 July 1985 and pursuant to a determination on 29 October 1985 the pension that was granted to him was "backdated" to 29 July 1985. This "backdating" was something that was permitted to be done under the provisions of section 90A of the Repatriation Act 1920 which was inserted by the Repatriation Legislation Amendment Act 1984. That Act came into force on 1 January 1985. The applicant then sought a review of that decision of 29 October 1985, claiming that the effective date be earlier than 29 July 1985 and, indeed earlier than 1 January 1985. The Administrative Appeals Tribunal by decision dated 15 August 1986 affirmed the decision under review. In the appeal which 1s presently proposed the question of law that would be raised is described as whether section 90A, which I have mentioned, is procedural or substantive in the sense that it permits a "backdating" to a date earlier than the coming into force of the 1984 amending legislation viz 1 January 1985. It appears that in 1980/1981 the applicant made oral inquiries of the department and that it was not until 7 March 1984 that he lodged with the department a document headed "Informal Application for Service Pension". The applicant fixed upon this date, 7 March 1984, as the appropriate date for "backdating" if section 90A permitted this to be done. The Administrative Appeals Tribunal gave its decision, as I have said, on 15 August 1986. Within approximately 14 3. days of the delivery of that decision junior counsel was briefed to advise as to the merits of an appeal to the Full Court of this Court pursuant to section 44 of the Administrative Appeals Tribunal Act 1975. It might be noted that the Administrative Appeals Tribunal was presided over by a presidential member within the meaning of the legislation; hence the appeal is to the Full Court of this Court. Junior counsel did not attend promptly to the brief and the brief was withdrawn and another junior counsel was briefed. That junior counsel provided written advice on 3 November 1986 and the evidence is that that advice urged submission of the matter to senior counsel. Senior counsel dealt promptly with the matter and a written advice was received on 3 December 1986. The present application was filed om 24 December 1986. The legislation does not specify criteria which control the exercise by the court of its discretion in these matters. However I was referred to decisions of the Court dealing with comparable issues which arise under the Administrative Decisions (Judicial Review) Act, 1977 section 11. In particular, I was referred to the decision of Wilcox J in Hunter Valley Developments Pty Limited v Minister for Home Affairs and Environment, (1984) 58 ALR 305 and to the decision of Smithers J in Intervest Corporation Pty Limited v_ Federal Commission of Taxation, (1984) ALR 317. In the latter decision, at 325, there 1s a citation of earlier authority in this Court to the effect that in this type of case the court should not surround the exercise of its discretion with unnecessary constraints spun from an analysis of prior decisions and in my view what is there said is not only plainly good sense but applicable to the legislation involved here. The debate before me this morning has focussed upon two particular factors which it is said should be taken prominently into account in formulating the exercise of discretion, namely (a) adequacy of the explanation given for the delay and (b) the prospects of success on appeal. As to the first of these matters, the evidence given for the applicant, which was not subject to cross-examination, does show that the delay in question has involved difficulty encountered in obtaining prompt advice as to the likely prospects of appeal, the difficulty only disappearing, as I have indicated, when senior counsel was briefed late last year. Emphasis was placed upon the initial delay in briefing junior counsel and it was also pointed that there was some delay after the receipt of senior counsel's advice in December. However, I would not regard those periods as so significant as to involve any adverse exercise to the applicant of a discretion which would otherwise be exercised in his favour. In my view there is a reasonably adequate explanation of the delay. That brings me to the question of prospects of success and in so doing I should emphasize I would not attempt to give here any detailed consideration of the likely final outcome of 5. the appeal. That of course will be a matter for the Full Court. As I have indicated, the substantive question that is raised is one of law, as it must be, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975. The question concerns a matter of statutory interpretation, in particular the correct construction of section 90A(3) inserted into the legislation, as I have said, by the Repatriation Legislation Amendment Act 1984. The draft notice of appeal refers to the question that arises as one of whether, if the section is "substantive", it is "retrospective". I am not certain that this is the correct way of perceiving the problem. As I understand it, it is not sought to give to section 90A an operation that affects rights and obligations with deemed effect as at a date before the legislation came into force, so as to affect rights and liabilities already defined by past events. Rather, the question appears to be whether fresh rights are to be given now by reference to facts which occurred before the coming into force of the legislation. The distinction is one adverted to in Maxwell v Murphy, (1955) 98 CLR 261 at 267 (Dixon CJ) and Coleman v. Shell Co. of Australia Ltd (1943) 45 SR (NSW)27 at 31 (Jordan CJ). See also Pearce, "Statutory Interpretation" 2nd Ed., para 211. Be that as it may, the discussion that has taken place this morning with counsel for both parties does, in my view, serve to illustrate that there is fairly open a construction of the l:gislation which would produce the result that the Administrative Appeals Tribunal erred as a matter of law in reaching the conclusion expressed in pages 9 and 10 of the decision of 15 August 1986. When I say the construction is one that is "fairly open", I am not saying by any means that it is one which would necessarily succeed, but that there are certainly, in my view, grounds for saying that there are reasonable prospects of success. It would not be correct to say that the construction contended for by the applicant was fanciful or necessarily misconceived. Accordingly, in my view, whilst the question of the prospects of success is one that has to be approached with a measure of caution, nevertheless this matter, together with the adequacy of the explanation offered, leads the Court to the conclusion that its discretion should be exercised favourably to the applicant. The applicant, of course, seeks an indulgence, and as the authorities to which I have referred point out, the grant of that indulgence should be attended by an order for the payment of costs by the applicant of this application. I understand there is no opposition to that course. The question then arises as to the time that is necessary for the formulation and filing of the notice of appeal. REPORTED : NOT TRANSCRIBED HIS HONOUR: The order of the court will be that on the application for extension of time, the court extends until ll February 1987 the time for the filing and service of the notice of appeal against the decision of the Administrative Appeals Tribunal given on 15 August 1986. The court orders the applicant to pay the costs of today's application. I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Gummow. Associate: flask tet, Date: 4 2-§? Counsel and Solicitors for Mr B. Purves Applicant: anstructed by The Australian Legal Aid Office Counsel and Solicitors for Mr P. Comans . instructed by The Australian Government Solicitor Date of Hearing: 4 February 1987 Date of Judgment: 4+ February 1987