FEDERAL COURT OF AUSTRALIA Webb v Repatriation Commission [2000] FCA 1635 JURISDICTION – veterans' affairs – application for declaration that the parties had entered into a concluded agreement of compromise prior to review by Administrative Appeals Tribunal ("AAT") of a decision of the Veterans' Review Board – whether a "matter" arising under a law of the Parliament within meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – whether necessary to determine whether right or defence conferred by the Veterans' Entitlements Act 1986 (Cth) Constitution s 76 Veterans' Entitlements Act 1986 (Cth) ss 175(1) Administrative Appeals Tribunal Act 1975 (Cth) s 42C Judiciary Act 1903 (Cth) s 39B(1A)(c) Scott v Handley (1997) 79 FCR 236 referred to Delton v Mulligan (1971) 124 CLR 367 followed MARK RAYMOND WEBB v REPATRIATION COMMISSION N 1017 OF 2000 EMMETT J 8 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1017 OF 2000 BETWEEN: MARK RAYMOND WEBB APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 8 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1017 OF 2000 BETWEEN: MARK RAYMOND WEBB APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: EMMETT J DATE: 8 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 19 September 2000, Mr Mark Raymond Webb filed an application in the Court in which the respondent is the Repatriation Commission ("the Commission"). By the application, Mr Webb seeks the following: "1. A declaration that on or about 19 May, 1999… there was reached a concluded agreement between the Applicant… and the Respondent… that the Respondent would pay to the Applicant a pension at 100 % of the general rate from 26 May, 1994 and at the special rate from 11 July, 1995. 2. An order that the Respondent execute a document in terms of the [document identified]." The applicant also sought ancillary orders. 2 On 8 November 2000, the respondent filed a notice of motion pursuant to leave that I granted on 27 October 2000. By the notice of motion, the respondent seeks an order that the application be struck out on the basis that there is no jurisdiction in the Court to determine the application. 3 The proceeding arises out of a claim made by the applicant under the Veterans' Entitlements Act 1986 (Cth). On 12 January 1996, the Commission made a determination refusing to increase the applicant's pension beyond 90 per cent of the general rate. That determination was varied by a decision of the Veterans' Review Board on 25 March 1997. The variation by the Board was pursuant to Division 3 of Part 9 of the Veterans' Entitlements Act. Pursuant to Part 10 of that Act, Mr Webb applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of the Commission as varied by the Board. That course is authorised by s 175(1) of the Veterans' Entitlements Act. 4 Mr Webb contends that shortly prior to the date fixed for hearing of the matter before the Tribunal, there were discussions between his counsel and officers of the respondent. Those discussions are particularised in an affidavit of Mark Gary Vincent, sworn 29 March 2000 and which was filed in the Tribunal. Mr Webb contends that those conversations constituted a binding contract of compromise in relation to the dispute that was then before the Tribunal. Alternatively, Mr Webb contends that the Commission is estopped from denying that there was a binding contract. 5 On the hearing of the motion, counsel for the Commission indicated to the Court that the Commission takes the stance that there was no binding contract arising out of the communications as particularised in Mr Vincent's affidavit and that no estoppel arose. 6 Mr Webb sought to enforce the alleged compromise agreement before the Tribunal. For reasons delivered on 3 July 2000, the Tribunal decided that it had no jurisdiction to grant relief in respect of the alleged compromise. The Tribunal considered that its powers were limited to those contained in s 42C of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal considered that that section gives a discretion to the Tribunal to make a decision in accordance with terms agreed by the parties without holding or completing a hearing if certain conditions are satisfied. In particular, s 42C(1)(b) requires that the terms of any such agreement must be reduced to writing, signed by or behalf of the parties and lodged with the Tribunal. The Tribunal concluded that it had no power to act on an estoppel such as that relied on by Mr Webb. The Tribunal concluded that, in the absence of writing, it had no power to grant the relief sought by Mr Webb. 7 There has been no appeal to this Court from the Tribunal's decision of 3 July 2000. Of course, if that decision involved an error law there would be an appeal, as of right, from the decision refusing to exercise jurisdiction. I express no view on that question because it is not before me. The only question before me is whether this Court has jurisdiction to deal with the matter raised by the present application. 8 In that regard counsel for Mr Webb relies on s 39B(1A)(c) of the Judiciary Act 1903 (Cth)which relevantly provides as follows: "The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: ……………………… (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." The contention on behalf of Mr Webb is that the dispute that presently exists between Mr Webb and the Commission could not have existed but for the provisions of the Veterans' Entitlement Act. Accordingly, so it is said, the dispute is a matter arising under a law made by the Parliament, namely, the Veterans' Entitlements Act. 9 The relief that Mr Webb seeks is, in substance, an order for specific performance of the alleged compromise agreement. Such a claim is one that would fall within the jurisdiction of the Supreme Court of New South Wales, for one. It may also be that it is a claim that would fall within the jurisdiction of other inferior State courts, although I express no view about that one way or the other. The question, however, is whether there is concurrent jurisdiction in this Court. It may be that it would be desirable that disputes of this nature could be determined by the Federal Court. The dispute clearly has some connection with Federal jurisdiction. The question, however, is whether it can be said that the dispute constitutes a "matter" arising under the Veterans' Entitlements Act. 10 A "matter" within s 76(ii) of the Constitution and within s 39B(1A)(c) is a justiciable controversy or dispute, or the subject matter for determination in a legal proceeding – see Scott v Handley (1997) 79 FCR 236 at 239. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence that is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law – see Felton v Mulligan (1971) 124 CLR 367, at 382. 11 There is a difference between a proceeding arising under a law and a matter arising under a law. A matter need not be a proceeding. It may be part of a proceeding, for example, a defence that the law authorising the proceeding is unconstitutional. A matter therefore might arise under a law made by the Parliament in a proceeding that does not arise under that law – see Felton v Mulligan (above) at 382. Thus it may be that a defence could have been raised by the Commission to the claim made by Mr Webb. However the Commission, through its counsel, has indicated that the answer to be relied upon is simply a denial that the facts asserted constitute an enforceable agreement or give rise to an estoppel. 12 The Commission is a body corporate continued in its existence under s 179(1) of the Veterans' Entitlements Act. Its functions under section 180 are: (a) to grant pensions, allowances and other benefits to veterans and other persons; (b) to establish, operate and maintain hospitals and other institutions for certain purposes; (c) to arrange for the provision of treatment and other services for veterans and other persons; (d) to provide the Minister with information and advice; (e) such other functions as are conferred by that Act or any other Act. The powers of the Commission under s 181 include power to do all things necessary or convenient to be done for or in connection with the performance of its functions, duties and powers. In particular it has power to enter into contracts. 13 There has been no suggestion that the alleged compromise agreement was beyond the power of the Commission. There has been no suggestion that in entering into the contract alleged, the Commission has acted in breach of any duty or obligation imposed upon it by the Act. Mr Webb's complaint is simply that the Commission, having made the alleged contract, which it had power to make, is refusing to perform its obligations under that contract. The matter, or lis, or dispute, for determination is whether or not a contract has been made and whether or not the conduct of the Commission's officers gives rises to an estoppel that will prevent the Tribunal from denying the existence of such a contract. 14 I do not consider that in deciding those questions it is necessary to determine whether the Veterans' Entitlements Act confers a right or affords a defence. The determination of the questions that arise will not be a decision upon a claim made by Mr Webb which is based upon the Veterans' Entitlements Act. His claim is based upon the communications particularised in the affidavit to which I have referred. His claim is based on the general law as to enforceability of executory contracts of compromise. 15 I consider therefore that the issues or questions that will be raised by the claim do not constitute a matter arising under any law made by the Parliament. It follows in my view that, since that is the only basis upon which it is said this Court has jurisdiction, the Court does not have jurisdiction. Accordingly the application should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 20 November 2000 Counsel for the Applicant: Mr C A Vindin Solicitor for the Applicant: Morton & Harris Counsel for the Respondent: Ms R Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 November 2000 Date of Judgment: 8 November 2000