FEDERAL COURT OF AUSTRALIA

Johnson v Veterans’ Review Board [2002] FCA 1543

VETERANS’ AFFAIRS – application to Veterans’ Review Board for review of decision of Repatriation Commission – delay in prosecuting application – application dismissed under s 155AB(5) for failure to respond to notice given under s 155AB(4) that application should proceed or reasons for further delay provided – whether notice under s 155AA(4) entitled to be given after elapse of time from expiration of “standard review period” – whether notice could be given by delegate of Principal Member without designating in notice the fact of delegation – whether delegation valid notwithstanding delegator had ceased to occupy office as Principal Member and new Principal Member had made no fresh delegation.

STATUTORY INTERPRETATION – delegation by Principal Member of Veterans’ Review Board of functions under ss 155AA and 155AB of Veterans’ Entitlements Act 1986 – delegator ceased to occupy office and new Principal Member had not made fresh delegation – whether obligation still valid – construction of s 166 of Veterans’ Entitlements Act 1986.

STATUTORY INTERPRETATION – delegation by Principal Member of Veterans’ Review Board of functions under s 155AA and 155AB of Veterans’ Entitlements Act 1986 – whether necessary for delegatee to refer to delegation when exercising delegated powers.

Veterans’ Entitlements Act 1986 (Cth), s 13(1), 155AA, 155AB, 155AD, 142, 158 166

Administrative Appeals Tribunal Act 1975 (Cth), s 43

Administrative Decisions (Judicial Review) Act 1977, (Cth), s 11

Judiciary Act 1903 (Cth), s 39B

Veterans’ Affairs Legislation Amendment Act 1992 (Cth)

Public Service Act 1922 (Cth), s 25(5)

Migration Act 1958 (Cth), s 176(1)

Acts Interpretation Act 1901 (Cth), s 34AA

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375 – referred to

Tasker v Fullwood [1978] 1 NSWLR 20 – referred to

Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 108 ALR 107 – referred to

Kelly v Watson (1985) 10 FCR 305 – followed

Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 – discussed

Broadbridge v Stammers (1987) 76 ALR 339 – referred to

Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330 – referred to

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 – referred to

Du Pont (Australia) v Comptroller-General of Customs (1963) 30 ALD 829 – referred to

KEITH DOUGLAS JOHNSON v VETERANS’ REVIEW BOARD & REPATRIATION COMMISSION

S 193 of 2002

MANSFIELD J

13 DECEMBER 2002

ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The present application involves an oblique attempt to challenge a decision of the Repatriation Commission (the Commission) given on 28 March 1996 under the Veterans’ Entitlements Act 1986 (Cth) (the Act).

2                     The Commission decision was the subject of an application to the Veterans’ Review Board (the Board) but was dismissed, in circumstances to which I shall refer hereunder, on 11 March 1999. The applicant (Mr Johnson) did not promptly apply to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the Board, but eventually on 11 June 1999 sought an extension of time within which to do so. On 8 October 1999 the Tribunal granted him an extension of time within which to seek review of the decision of the Board. On 12 April 2000, the Tribunal affirmed the decision of the Board of 11 March 1999. Mr Johnson on 1 May 2000 by way of appeal applied to the Court under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to challenge the decision of the Tribunal. The appeal was discontinued on 20 June 2000. It may seem, therefore, that the application which was the subject of the decision of the Commission, and on review by the Board and the Tribunal, had been resolved under the Act.

3                     The present application, however, seeks to negate the effect of the review processes, and in effect to set aside the decisions of the Board and of the Tribunal, so that the Board may re-entertain Mr Johnson’s application for review of the Commission’s decision of 28 March 1996.

4                     The Commission rejected an application dated 20 March 1996 for pension by way of compensation under s 13(1) of the Act because it rejected Mr Johnson’s claim to have become incapacitated from a war-caused injury, namely “vertigo, epilepsy”.

introduction

5                     Mr Johnson is now nearly 58. He enlisted in the Australian Army in 1961. He undertook operational service (as that term is defined in the Act) in Brunei, Sabah and Sarawak between 6 April 1965 and 28 July 1965, and in Vietnam between 29 April 1967 and 9 January 1968. He remained in eligible defence service, as that term is defined in the Act, until 30 April 1996.

6                     In the course of his defence service, Mr Johnson suffered injury on two occasions. On 17 May 1967 he was struck in the head whilst in Vietnam, whilst working in the mess. In 1982, he suffered a second head injury and a neck injury when he was knocked down whilst playing “medicine ball” during activity. The Commission has determined that as a result of one or both of those injuries or his operational or defence service he suffered and suffers tinnitus, dermatitis, chronic solar skin damage, photophobia, and allergic rhinitis. He was awarded a small pension pursuant to s 13 of the Act in respect of those conditions.

7                     After leaving the army, Mr Johnson had various jobs and in 1994 was working as a driver. He was involved in a car accident on 23 December 1994 and, apparently, was quite severely injured as a result. He made a claim for damages for the injuries sustained in that accident. The material before the Court does not indicate the extent to which he succeeded in that claim. He was unable to return to work as a result of the injuries he then sustained, in combination with the disabilities which he had from his operational service and his defence service.

8                     On 20 March 1996, whilst his claim for damages arising from the vehicular accident was ongoing, Mr Johnson made the subject claim for “vertigo and epilepsy”. The condition was subsequently described as “neuro-behavioural disorder” in later documents. I shall call those conditions compendiously “the claimed disability”. It was in respect of the claimed disability that the Commission, the Board, and subsequently the Tribunal rejected his claim.

9                     However, in addition to the claims already referred to, on 9 June 1999 Mr Johnson made two further separate claims under s 13 of the Act. One was in respect of post traumatic stress disorder. It has been accepted. The other was again for vertigo and epilepsy. The vertigo was claimed to flow from the injury in Vietnam on 17 May 1967, and the epilepsy from that injury and the injury in 1982. The Commission on 8 September 2000 determined to accept this claim in relation to his epilepsy. By that time his claim for post traumatic stress disorder had also been accepted. The consequence, at that time, was that Mr Johnson was awarded a pension of 90% of the General Rate. The Commission declined to order that his pension be payable at the Intermediate or Special Rate in the circumstances. It is not necessary to explore how that determination as to the pension rate was made. It ordered that the pension be payable backdated to 9 March 1999, that is three months prior to the lodgment of the claim.

10                  Mr Johnson then sought review of that decision by the Tribunal, to the extent it rejected his claim in respect of vertigo on the grounds that the evidence did not show any reasonable connection between vertigo and his eligible defence service. On 27 April 2001, by consent, the Tribunal set aside the decision of the Commission made on 8 September 2000 and substituted a decision that vertigo is a defence-caused condition, and that the pension for Mr Johnson’s disability be increased to the Special Rate with effect from 9 March 1999.

11                  The consequence is that the current proceeding, even if it be successful, will have relevance only to the entitlement or otherwise of Mr Johnson to a disability pension under the Act in respect of the claimed disability between 20 December 1995 and 8 March 1999. That is, his entitlement to a full pension at the Special Rate will be established at a date three months prior to his original application of 20 March 1996 rather than from 9 March 1999. On the material he has provided to the Court, that amount is in the order of $42,902. The respondents, and in particular the Commission, has not indicated its agreement to his calculation.

12                  To apprehend the basis for the present attack on the decision of the Tribunal of 12 April 2000 and of the Board of 11 March 1999, it is necessary to identify precisely the foundation for the Board’s decision. It was made pursuant to s 155AB(5) of the Act. Sections 155AA and 155AD of the Act deal with the process by which the Board may bring to a head an application for review from a decision of the Commission which has not progressed in a timely manner. Section 155AA provides:

“Power to dismiss application – initial consideration

(1)               In this section:

standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia.

(2)               This section applies to an application for review unless:

(a)               the hearing of the review has finished within the standard review period; or

(b)               as at the end of the standard review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.

(3)               For the purposes of paragraph 2(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.

(4)               If, at the end of the standard review period:

(a)               this section applies to an application for review; and

(b)               the Principal Member considers that the applicant should be ready to proceed at a hearing;

the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice;

(c)                a written statement indicating that the applicant is ready to proceed at a hearing; or

(d)               a written statement explaining why the applicant is not ready to proceed at a hearing.

(5)               If the applicant does not provide a written statement under paragraph 4(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.

(6)               If:

(a)               the applicant provides a written statement under paragraph (4)(d) within the 28 days; and

(b)               the Principal Member considers that the statement contains a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;

the Principal Member must notify the applicant and the Commission of this.

(7)               If:

(a)               the applicant provides a written statement under paragraph (4)(d) within the 28 days; and

(b)               the Principal Member considers that the statement does not contain a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;

the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.”

Section 155AB provides:

“Power to dismiss application – subsequent consideration

(1)               In this section:

extended review period, in relation to an extension notice, means the period of 3 months after the day on which the Principal Member has given the extension notice to the applicant for review.

extension notice means a notice under subsection 155AA(6) or subsection (6) of this section.

(2)               If the Principal Member has given an applicant for review an extension notice, this section applies to that application unless:

(a)               the hearing of the review has finished within the extended review period; or

(b)               as at the end of the extended review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review.

(3)               For the purposes of paragraph (2)(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review.

(4)               If this section applies to an application for review at the end of the extended review period, the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice:

(a)               a written statement indicating that the applicant is ready to proceed at a hearing; or

(b)               a written statement explaining why the applicant is not ready to proceed at a hearing.

(5)               If the applicant does not provide a written statement under paragraph (4)(a) or (b) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.

(6)               If:

(a)               the applicant provides a written statement under paragraph (4)(b) within the 28 days; and

(b)               the Principal Member considers that the statement contains a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;

the Principal Member must notify the applicant and the Commission of this.

(7)               If:

(a)               The applicant provides a written statement under paragraph (4)(b) within the 28 days; and

(b)               The Principal Member considers that the statement does not contain a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;

the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.”

13                  Mr Johnson sought review of the decision of the Commission of 28 March 1996 by application dated 28 April 1996 to the Board. The hearing of his review by the Board was deferred from time to time at the request of Mr Johnson as he said he was not ready for the hearing. He was apparently involved significantly in matters concerning his claim for damages arising from the vehicular accident referred to above.

14                  On 19 October 1998, the Board wrote to Mr Johnson pursuant to s 155AA(4). The letter was under the hand of D Smith, who was identified as “D Smith SA Registrar” (the SA Registrar). It relevantly said:

“Your application has been outstanding for more than 2 years and I consider that you should be ready now to proceed to a hearing. Therefore, in accordance with section 155AA(4) of the Veterans’ Entitlement Act, I am giving you this written notice requesting you to provide within 28 days a written statement that you are ready to proceed at a hearing or reasons why you are not so ready.”

The letter also explained how Mr Johnson could respond to that letter, including by giving authorisation to another person to respond on his behalf.

15                  Mr Johnson responded by letter dated 22 October 1998 explaining why he was not ready to proceed to a hearing at that time. The SA Registrar accepted that explanation pursuant to s 155AA(6)(b), and notified Mr Johnson accordingly by letter dated 2 November 1998. It relevantly provided:

“I have received your statement in reply dated 22 October 1998. In accordance with section 155AA(6) of the Veterans’ Entitlements Act, I am writing to advise you that I consider that this statement contains a reasonable explanation for your failure to be ready to proceed at a hearing.

However, under the legislation I am required to write to you in 3 months time unless a date, time and place is fixed for the commencement or resumption of the hearing of your review and again ask you to provide a written statement as to the readiness of your application. If you fail to reply within 28 days or I then consider that the statement provided does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, your application must be dismissed.”

16                  As foreshadowed, at the expiration of three months, the SA Registrar again wrote to Mr Johnson, by letter dated 4 February 1999. It provided:

“In my letter of 2 November 1998 I let you know that I considered the statement provided by you contained a reasonable explanation for your failure to be ready to proceed at a hearing. I also advised that I would be writing to you again after the expiration of 3 months unless a date, time and place had been fixed for the commencement or resumption of the hearing of your review.

In accordance with section 155AB(4) of the Veterans’ Entitlements Act, therefore, I am giving you this written notice requesting you to provide within 28 days a written statement that you are now ready to proceed at a hearing or reasons why you are not so ready. If you are not being represented the statement must be signed by you and forwarded to this office.

If you wish, you may (once again) authorise another person to represent you in relation to this notice. Such authorisation must be in writing and on the enclosed form. You should not send this authorisation back to me. You should give it as quickly as possible to the person you have authorised so that he or she can send it to me together with the statement I have requested within the 28 days allowed.

If the required statement is not provided within 28 days after you receive this notice, or I consider that the statement provided does not contain a reasonable explanation for your failure to be ready to proceed at a hearing, your application will be dismissed. This means that the matter is then finalised.

If you no longer wish to proceed with your application, you should notify me in writing and I will arrange for it to be withdrawn.”

17                  Mr Johnson intended to seek a further delay in the hearing. He arranged to appoint an authorised person to respond on his behalf. A copy of his authorisation to his nominated person under s 155AC to the Board was received by the Board on 10 February 1999. Unfortunately, the authorised person did not respond to the notice given on 4 February 1999 in a timely manner or, as it transpired, at all.

18                  Consequently, on 11 March 1999, pursuant to s 155AB(5), the Board through the SA Registrar dismissed the application. The notice given to Mr Johnson at the time, and the reasons for decision also provided to him, were under the hand of the SA Registrar who was then described as “D Smith Registrar (SA), Delegate of the Principal Member of the Board”. The reason for the dismissal of the application for review, in brief, was that Mr Johnson had not within the 28 day period specified in the letter of 4 February 1999 provided a written statement that he was ready to proceed at a hearing of the review application or which explained reasons why he was still not ready so to proceed. The Board did not, in the circumstances, consider the merits of the review in respect of the claimed disability.

19                  For the same reason, the Tribunal did not consider the merits of his claim. Having granted an extension of time within which Mr Johnson might seek review of the decision of the Board, the Tribunal’s determination was that the letter of 4 February 1999 was an adequate document to give notice to Mr Johnson pursuant to s 155AB(4) of the Act, and that the authorisation appointment document pursuant to s 155AC, a copy of which was received by the Board on 10 February 1999 (the original having been sent to the appointee) did not constitute a response to the Board in accordance with s 155AB(6)(a) explaining why he was not ready to proceed to a hearing or a written statement under subs (4)(a) that Mr Johnson was ready to proceed to a hearing.

consideration

20                  On the hearing of the present application the Board, properly, indicated that it would submit to any order the Court may make save as to costs. The Commission appeared through senior counsel to oppose the application. Mr Johnson appeared in person. As I understood his contentions, they were two fold, namely:

(1)               That the notices given pursuant to s 155AA(4) on 19 October 1998 and pursuant to s 155AB(4) on 4 February 1999 were invalid because the first of those notices was not given at a time when it could lawfully have been given; and

(2)               That the notices were not lawfully given because the SA Registrar was not authorised to have given them because he was not a person to whom power to do so had been delegated by the Principal Member of the Board pursuant to s 166 of the Act.

The argument then ran that, if either of those matters were established, the notices were invalid. Having not therefore been entitled to give those notices at the time and in the manner in which they were given, any decision made by the Board based upon non-compliance with invalid notices was itself invalid. The consequence, as indicated at the commencement of these reasons, is that Mr Johnson’s application to the Board for review of the decision of the Commission made on 28 March 1996 remains alive and should be dealt with at a time of his choosing.

21                  I note also that the Commission, by motion dated 8 November 2002, sought to have the application dismissed on the grounds that it was incompetent. The notice of motion asserts that, to the extent to which the application is made under the Administrative Decisions (Judicial Review) Act 1977, (Cth) (the ADJR Act), the application is incompetent because the particular decisions of the Board involving the issue of the two notices do not constitute decisions, nor conduct for purposes of making decisions under the ADJR Act; that the present application has not been made within the time prescribed by s 11(1) of the ADJR Act; and that in any event there is adequate provision for review of the Board’s decision of 11 March 1999 under the AAT Act and s 155A(1) of the Act, and indeed that Mr Johnson has availed himself of those rights. It was further contended that, to the extent to which the application is made under s 39B of the Judiciary Act 1903 (Cth), the application should be dismissed in the Court’s discretion because of the adequacy of the review procedures available under the AAT Act and s 155A(1) of the Act, and that the applicant had availed himself of those rights. Senior counsel for the Commission at the hearing, nevertheless accepted that it is arguable that Mr Johnson has a right under s 39B of the Judiciary Act to have the present issues determined: see e.g. Coffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375. I do not propose to resolve the jurisdictional question. For reasons which appear below, I have decided that the application (even if it is within time and is competent) must be dismissed.

22                  I turn to consider the grounds upon which Mr Johnson presents his claims.

23                  The argument first made by Mr Johnson is based upon the definition of “standard review period” in s 155AA of the Act. In relation to an application for review, it is defined to mean “the period of two years after the day” on which the application was received by the Commission. Section 155AA(4) requires the Board, or more accurately the Principal Member, to give a notice under that section if, at the end of the standard review period, the section applies to the application for review and the Principal Member considers that the applicant should be ready to proceed at a hearing. Mr Johnson’s contention is that the standard review period in his matter expired on 30 April 1998. No notice was given to him pursuant to s 155AA(4) at or shortly after that time. The first notice given to him pursuant to s 155AA(4) was given nearly six months later, on 19 October 1998. Hence, he argues, the notice or document of 19 October 1998 was not a notice given under s 155AA(4), and the consequent document of 4 February 1999 given ostensibly under s 155AB(4) was not a notice lawfully given under s 155AB(4). Consequently, he argues, the dismissal of the application under s 155AB(5), purportedly due to his failure to respond to those notices or documents, was itself invalid. In effect, his contention is that, in the circumstances, the Principal Member having failed to give a notice in accordance with s 155AA(4) within a brief time after the standard review period, was no longer empowered by the section to activate those provisions or to dismiss his claim under s 155AB(5). If he is correct, as noted above, the consequence is that his application before the Board for review is still on foot and should be dealt with by the Board.

24                  I do not accept that contention. It ignores the second limb of the two circumstances which must apply before the obligation arises under s 155AA(4) to give the notice for which that sub-section provides. That is, in addition to the section applying to the application for review at the end of the standard review period (as it does), it is also necessary that the Principal Member (or subject to considering the second argument, his delegate) considers that the applicant should be ready to proceed at a hearing. Even if Mr Johnson is correct in contending that there is no discretion upon the Board not to give a notice under s 155AA(4) once the two factual criteria for the enlivenment of that obligation are established, he has not shown that the second of those criteria was enlivened on or soon after 30 April 1998 or at any significant time before the notice of 19 October 1998. It is the subjective state of mind of the Principal Member to which s 155AA(4)(d) directs attention. There is simply no material upon which it can be determined that, at about 30 April 1998, the Principal Member or his delegate considered that Mr Johnson should be ready at that time to proceed at a hearing. Nor is there any reason to consider that the view to which s 155AA(4)(d) refers on the part of the Principal Member or the delegate was formed at any material time prior to the date of the notice of 19 October 1998. Section 155AA(4) empowers the Board through the Principal Member to initiate the procedures to dismiss the application only at the expiration of the standard review period, but upon its proper construction it does not oblige the Board then to initiate those procedures. The obligation arises only when the standard review period has expired (provided it applies to the application for review) and when the subjective view has been formed by the Principal Member or the delegate that the applicant should be ready to proceed at a hearing.

25                  In addition, I do not accept the contention that delay on the part of the Board or the Principal Member in giving the notice provided for by s 155AA(4), even after both criteria exist for the giving of that notice and after the obligation arises to do so, means that a belated notice then given is itself invalid. I reach that conclusion by construing the relevant provisions of the Act in their statutory context in order to determine whether the legislature intended that a failure on the part of the Principal Member to give a notice under s 155AA(4), once the two criteria for the obligation to do so exist, either immediately or promptly once the criteria exist, would invalidate the later giving of such a notice. To address the question, it is appropriate to consider the language of s 155AA(4) and its scope and purpose in the context of the Act, and the consequences of failure to comply with it in a timely manner. There is no suggestion that the notice under s 155AA(4) did not otherwise satisfy its terms. See generally the judgment of the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, cited with approval by the Full Court of this Court (Sheppard, Neaves and Miles JJ) in Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 108 ALR 107 at 122-123.

26                  If s 155AA(4) were intended to have the effect submitted by Mr Johnson, in my view, the section would contain a provision specifying the time within which the notice under s 155AA(4) must be given. The legislature would not have left unstated such an important provision, leaving for argument whether it means a reasonable or some other time, and leaving for evidence what constitutes a reasonable time. It would have specified what should have happened in relation to a review application if the notice is not given promptly, or after a specified period (whether seven days or twenty-eight days or some other period), after the two criteria upon which the power must be exercised, and before which the power may not be exercised, are made out. As is apparent from the terms of ss 155AA and 155AB, the scheme prescribed for the power to dismiss an application is detailed and comprehensive. It is intended to ensure that, after a period of two years, the Board through the Principal Member may instigate procedures to bring an application for review to a head where an applicant may prefer not to do so. It removes the power which appears otherwise to exist enabling an applicant for review to delay resolution of the review by the Board at least until the expiration of the standard review period. The power granted under s 155AA and s 155AB may be exercised only in the circumstances provided, and only under its strict provisions which require the Principal Member to consider claims on the part of an applicant for review as to why the applicant for review is not then ready for the hearing. It is not a power which may be exercised capriciously. The applicant for review still is provided with the means by which, in an appropriate case, the determination of the review may be further delayed after the expiration of the standard review period. Those considerations lead me to the view that, although an obligation may be said to arise upon the Principal Member to instigate the procedures under s 155AA once the two criteria for the power to do so arise, and because the two criteria for the power to do so exist, the obligation is a continuing one until it is implemented. If it is implemented after some delay after the expiration of the standard review period and after the Principal Member considers that the applicant should be ready to proceed to a hearing, in my view it would nevertheless be an appropriate notice and a valid notice given under s 155AA(4). Underlying those provisions is the clear intention that, except for good cause, applications for review of decisions of the Commission should be brought to finality by the Board with reasonable promptitude after the end of the standard review period, provided it is in the circumstances fair and appropriate to do so. It would not be consistent with that legislative purpose to construe s 155AA(4) and s 155AB(4) so that the power on the part of the Principal Member to achieve that result is lost if there is some administrative delay, or some delay for some other reason, on the part of the Principal Member in giving the notice to which those sub-sections provide once the qualifying criteria upon which the power arises exist and require the power to be exercised.

27                  I turn to consider the second of the grounds of the present application.

28                  On 21 July 1992 the then Principal Member of the Board, John Patrick Gallagher (Mr Gallagher), issued a memorandum to all Registrars concerning dismissal procedures. It followed the introduction of ss 155A, 155AB and 155AC which were introduced into the Act by the Veterans’ Affairs Legislation Amendment Act 1992 (Cth), which came into operation on 26 June 1992. The document referred to the fact that the responsibilities and duties given to the Principal Member by the provisions have been delegated to Registrars. It stressed, therefore, that decisions required under those provisions must be taken by Registrars personally and Registrars must personally sign the relevant notices and correspondence. It appears that on 1 March 1999, the then Principal Member of the Board introduced an operations manual dealing with the same matters somewhat more formally, constituting a direction given by the Principal Member pursuant to s 142 of the Act. It was relevantly in the same general terms as the memorandum of 21 July 1992. It required, in addition, that Registrars personally sign notices and correspondence as “Delegate of the Principal Member”. Hence, the additional description used by the SA Registrar of the Board in the decision, and notice of the decision, given on 11 March 1999.

29                  At the same time, that is 21 July 1992, the then Principal Member provided a delegation under s 166(1A) in the following terms:

“I, John Patrick Gallagher, Principal Member of the Veterans’ Review Board, acting in accordance with section 166(1A) of the Veterans’ Entitlements Act 1986, hereby delegate to those persons who, from time to time, hold a position designated as Registrar of the Veterans’ Review Board, my powers under sections 155AA and 155AB of that Act, provided that such powers shall only be exercised by those persons in accordance with directions issued by me from time to time.”

30                  As noted, the notices given on 19 October 1998 pursuant to s 155AA(4) and on 4 February 1999 pursuant to s 155AB(4) were signed by D Smith Registrar (SA). It was only the reasons for decision and the notice of decision given on 11 March 1999 which were signed by the SA Registrar also as delegate of the Principal Member. Mr Johnson contends, in those circumstances, that the two notices given on 19 October 1998 and 4 February 1999 were invalid, with the consequence already referred to. He also argues that, because Mr Gallagher ceased to be Principal Member of the Board on 8 April 1997 and was then replaced by William Douglas Rolfe (Mr Rolfe) as new Principal Member, the instrument of delegation given by Mr Gallagher came to an end. There was no delegation given by the new Principal Member of the Board of powers under ss 155AA and 155AB until 15 January 2001. It revoked the delegation dated 17 December 1992. It was in similar but not identical terms to the earlier delegation.

31                  It is convenient to deal with that latter submission first. I do not accept it. In my view the argument is in effect the same as that adduced to Neaves J in Kelly v Watson (1985) 10 FCR 305 (Kelly). That case relevantly concerned the status of a delegate of a permanent head of a department where the permanent head had ceased to occupy the office. The permanent head had delegated to an officer disciplinary powers or functions under the Public Service Act 1922 (Cth), pursuant to s 25(5) of that Act. The issue arose as to whether a delegation under that provision continued to have operative effect notwithstanding the vacation of office of the particular permanent head who executed the instrument of delegation. Neaves J decided the case on other grounds, but he specifically also addressed the issue at 318-319. His Honour’s judgment has been followed by the Full Court (Morling, Jenkinson and Heerey JJ) in Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 at 98 where it was held that a delegation by the then Minister of Immigration under s 176(1) of the Migration Act 1958 (Cth) continued when the office of Minister passed to a new holder. His Honour rejected the argument that the delegation should cease to operate when the delegator ceased to hold the office. He said that clear and unambiguous language would be required before construing the statute to produce such an inconvenient result.

32                  In my view his Honour was correct in determining that the question there arising was a matter of construction of the particular legislation. In my view the same approach should be adopted to s 166 of the Act, and with the same result. As is apparent in Kelly, and in this matter, the recipient of the delegated powers does not become the agent of the delegator or Principal Member but is required to exercise the powers delegated in accordance with the recipient’s independent discretion and in accordance with the provisions of the Act. Consequently, as his Honour said in Kelly at 318:

“There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office.”

Nor do I see anything in the language of s 166(1) or in other provisions of the Act, and in particular ss 155AA and 155AB which would support a construction that a delegation of the Principal Member’s powers and functions under ss 155AA and 155AB of the Act should lapse when the delegator was replaced by a new Principal Member. Moreover, the delegation under s 166 was to the persons occupying the office of Registrar of the Board from time to time, rather than to specified individuals. The construction contended for by Mr Johnson would also produce an inappropriate and inconvenient result. There is no administrative reason why that result might have been desirable. Section 34AA of the Acts Interpretation Act 1901 (Cth) also lends support to that approach.

33                  I do not think that the matters to which Mr Johnson referred in his supplementary submission of 26 November 2002 alter that conclusion. He points to the fact that the Principal Member is appointed pursuant to s 158 of the Act, under statute, as compared to the appointment of a Minister. He argues further that the Principal Member as a statutory office responsible for the operation of the Board, is not in a similar position to that of a permanent head of a department of the Commonwealth. In my view, those differences are without significance to the proper construction of s 166 of the Act. I consider that s 166 contemplates, or permits of, a delegation continuing to have effect notwithstanding the person occupying the office of Principal Member and who made the delegation ceasing to occupy the office apply.

34                  I also reject the contention that the notices under s 155AA(4) and under s 155AB(4) are invalid because of the way in which the delegate was described on the notices namely as D Smith SA Registrar, without identifying that the notices were being given under a power delegated to that person. In my judgment, the essential question is whether in fact the SA Registrar had the authority to issue the notices under s 155AA(4) and s 155AB(4). I have found that the authority to do so existed, notwithstanding the fact that Mr Gallagher as the Principal Member who had made the instrument of delegation no longer occupied the office at 19 October 1998 or 4 February 1999 respectively, and at 11 March 1999 when the decision was made under s 155AB(5) of the Act. It is the substantive question as to the authority of the SA Registrar which addresses whether the acts and decisions of the SA Registrar are valid, rather than the way in which the SA Registrar as delegate is described. That seems to be the approach adopted by the Full Court (Bowen CJ, Beaumont and Gummow JJ) in Broadbridge v Stammers (1987) 76 ALR 339 at 342-343 albeit in a different legal context. There is no provision to which Mr Johnson drew the Court’s attention which would suggest that the SA Registrar, to validly exercise the delegated power, had to be described in a certain way on documents generated in the exercise of the power. The instrument of delegation is not so conditioned. Indeed, the point seems to have been raised only because Mr Rolfe in his direction of 1 March 1999 under s 142 required a specific direction to be adopted.

35                  Accordingly, in my judgment, there is no merit in the substantive matters argued on behalf of Mr Johnson. On the assumption that I have jurisdiction to hear and determine matters which he raises, I dismiss his application.

36                  As I regard Mr Johnson’s points as having no merit, I would not (assuming this were an application under the ADJR Act) extend time under s 11(1)(c) of the ADJR Act to enable the application to have been brought at this belated stage. Even allowing for the time taken in which the normal review processes took place, culminating in the Tribunal’s decision of 12 April 2000, it is now well in excess of two years since that time. The appeal to this Court was discontinued on 20 June 2000; still over two years before the present application was instituted. The delay is not explained. That adopts the position most favourable to Mr Johnson that the relevant delay is only that from when he exhausted his other rights of review.

37                  In the absence of detailed submissions, however, I would not be disposed to discuss the claims presently made under s 10(2) of the ADJR Act because there are adequate alternative review processes: cp Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330. Nor would I refuse relief under s 39B of the Judiciary Act because a more convenient and satisfactory remedy exists or because it is belated: cp R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400; Du Pont (Australia) v Comptroller-General of Customs (1963) 30 ALD 829 at 832. The delay has not increased the potential amount of the claim by Mr Johnson. No other prejudice has been asserted by the Commission. In Kelly, Neaves J doubted that the applicant had standing to argue that there had been no valid delegation of disciplinary powers. I have not had the benefit of argument in this matter as to whether the points now taken by Mr Johnson were available to be taken in his review application to the Tribunal, or on his appeal (if he had pursued it) to the Court. If I had resolved that issue adversely to Mr Johnson, and had he not provided an adequate explanation about why he did not raise the matters presently raised at the time of the Tribunal’s review, the position may well have been different. It would probably be an adequate explanation that he had not thought of the matters at the time. However, there is no point in speculating on such issues.

38                  For the reasons given, the application is dismissed.

Associate:

Dated: 11 December 2002