FEDERAL COURT OF AUSTRALIA

Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal [2005] FCA 442

ADMINISTRATIVE LAW - judicial review – jurisdiction in relation to an interim decision of the Administrative Appeals Tribunal – issue of statutory interpretation to entitlement to compensation – Commonwealth application for declaration, mandamus and certiorari – whether a ‘matter’ – need for further argument on discretionary considerations

Administrative Appeals Tribunal Act 1975 (Cth) s 23, 23(d), 44

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 27(1), 32(1), 34(2), 34(4), 53, 54

Judiciary Act 1903 (Cth) ss 2, 39B, 39B(1), 39B(1A), 39B(1A)(a), 39B(1A)(c)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124(1A)

Constitution of the Commonwealth of Australia ss 75, 76, 77

Abebe v Commonwealth (1999) 197 CLR 510 cited

Australian Postal Corporation v Forgie (2003) 130 FCR 279 cited

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 cited

Australian Trade Commission v South Bank Corporation (2000) 104 FCR 116 followed

Commonwealth v Lyon (2003) 203 ALR 553 cited

Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 cited

Fencott v Muller (1983) 152 CLR 570 cited

Geographical Indications Committee v O’Connor (2000) 64 ALD 325 cited

McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 considered

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 cited

Peters v Administrative Appeals Tribunal [2004] FCA 1426 cited

Phong v Attorney-General for the Commonwealth (2001) 114 FCR 75 cited

MILITARY REHABILITATION AND COMPENSATION COMMISSION v ADMINISTRATIVE APPEALS TRIBUNAL and ERNEST BOOTHMAN

WAD 235 of 2004

NICHOLSON J

18 APRIL 2005

PERTH

THE COURT ORDERS THAT:

(1)        The applicant’s application for review under s 39B(1) and s 39B(1A) of the  Judiciary Act 1901 (Cth) be set down for hearing on:

(a)        discretionary considerations relating to the application; and,

(b)        in the event the Court decides, final argument on the issues raised by the application.

(2)        Costs to date on the application be reserved pending final orders on the application.

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

REASONS FOR JUDGMENT

1                     These reasons address the issue whether, in the particular circumstances of this proceeding, the Court has jurisdiction to hear an application by the applicant for review under s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) and for associated relief. 

2                     The circumstances of the proceeding are as follows.  The second respondent applied for review of a decision made by a delegate of the applicant on 6 February 2002.  That decision affirmed an earlier determination made on 17 September 2001.  The determination was that the applicant was not liable to pay compensation to the second respondent for the consequences of a neck injury sustained by him in a motor vehicle accident in September 1980. 

3                     The accident occurred in the following circumstances.  The applicant, who was born in January 1962, enlisted in the Australian Army in April 1980.  In September 1980 he was posted from Puckapunyal in Victoria to Holsworthy in New South Wales.  Prior to taking up the latter appointment, he was granted a period of leave to return to Western Australia to see his parents and to enable him to collect his personal motor vehicle and drive it back to his new posting in New South Wales.  On the night of 18 September 1980, the applicant’s motor vehicle overturned on the Nullabor Plain and the applicant suffered a neck injury.  He was identified in Adelaide as suffering from a severe neck strain.  Around 17 October 1980, he was admitted to a military hospital in New South Wales.  On 27 October 1980 x-rays identified a fracture of the odontoid peg.  He wore a neck brace for approximately 8 weeks following the motor vehicle accident.  He absented himself without leave from the Army at the end of January 1981 and he concluded his engagement with the Army either on 13 March 1981 or 13 May 1981. 

4                     In January 2001, the applicant applied to the Department of Veterans’ Affairs for a disability pension and in February 2001 applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) for an injury or illness that was described as a ‘broken odontoid’.  The determination made by the delegate on 17 September 2001 was that the Commonwealth was not liable to pay compensation for the injury under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘the 1971 Act’) because the injury had not arisen out of or in the course of the applicant’s Army service and also because the provisions of the 1971 Act regarding journeys were not satisfied. 

5                     The applicant’s claim for compensation was made under the 1988 Act.  Because the applicant’s injury was suffered prior to the commencement date of the 1988 Act (1 December 1988), the applicant would be entitled to compensation under the 1988 Act if ‘… compensation was, or would have been, payable to [him] in respect of that injury, loss or damage under … the 1971 Act’:  see s 124(1A) of the 1988 Act.

6                     Section 27(1) of the 1971 Act relevantly provides that the Commonwealth is, subject to that Act, liable to pay compensation in accordance with that Act if ‘… personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee …’.

7                     Section 32 - s 36 of the 1971 Act contain provisions dealing with particular types of journeys made by an employee, which are to be treated ‘… as if the journey constituted part of [the employee’s] employment by the Commonwealth’:  s 32(1).

8                     The second respondent sought review by the Administrative Appeals Tribunal (‘the Tribunal’).  At the conclusion of the hearing before the Tribunal, the position of the applicant was that it was not liable to pay compensation to the second respondent on the following alternative grounds:

(1)               the injury suffered by the second respondent did not arise out of or in the course of his employment by the Commonwealth within the terms of the 1971 Act;

(2)               the second respondent failed to give notice of, and make a claim in respect of, the injury in accordance with s 53 and s 54 of the 1971 Act;

(3)               the second respondent’s present neck condition is not a consequence of the injury suffered in 1980.

9                     In a decision on 17 September 2004, the Tribunal dealt with the first two grounds but not the third ground.  It had been agreed at the hearing that the Tribunal would proceed in this manner on the basis that, if either ground was made out, the second respondent’s claim must fail.  It was further agreed at the hearing that, if neither ground was made out, the hearing of the proceeding would be resumed to allow the second respondent and the applicant in these proceedings to make submissions in relation to the third ground. 

10                  The Tribunal determined in its decision that:

re (1):     the second respondent’s injury did not arise out of or in the course of his employment within the meaning of the 1971 Act unless the specific provisions relating to journeys in the 1971 Act are satisfied;

re (1):     the second respondent’s injury occurred during a journey that is to be taken as constituting part of his employment for the purposes of s 32(1) of the 1971 Act;

re (2):     the second respondent gave notice of, and made a claim in respect of, the injury in accordance with the 1971 Act.

THE JURISDICTIONAL ISSUE

11                  The application which raises the present jurisdictional issue claims the following:

‘1.        An order in the nature of certiorari directed to the first respondent setting aside the first respondent’s decision of 17 September 2004 that the journey made by the second respondent satisfied the requirements of s.34(2) and (4) of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and is deemed to be a journey for the purposes of s.32(1) of the 1971 Act.

2.         A declaration that the second respondent’s journey did not satisfy the requirements of s.34(2) and (4) of the 1971 Act and, therefore, is not deemed to be a journey for the purposes of s 32(1) of the 1971 Act.

3.         An order in the nature of mandamus directed to the first respondent requiring the first respondent to determine the application for review in accordance with law.

4.         Such further or other orders, declarations or relief as to the Court may seem appropriate.’

12                  The sections on which the application is grounded in the Judiciary Act read as follows:

‘39B(1)            Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against any officer or officers of the Commonwealth.

 39B(1A)          The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)          in which the Commonwealth is seeking an injunction or a declaration; or

(b)          …

(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.’

13                  In respect of the order in the nature of certiorari, the applicant accepts that the Court’s jurisdiction arises as an incident of its original jurisdiction under either of the above sections of the Judiciary Act.  Accordingly, unless the applicant can establish that it is entitled to obtain the declaration or the order of mandamus, the Court will have no power to grant certiorari:  Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 

14                  In relation to the remedy of mandamus, there can be no question that the presently named first respondent is an ‘officer of the Commonwealth’ for the purposes of s 39B(1) of the Judiciary Act.  There is a long line of authority to that effect:  see, for example, Australian Postal Corporation v Forgie (2003) 130 FCR 279; Geographical Indications Committee v O’Connor (2000) 64 ALD 325; and Peters v Administrative Appeals Tribunal [2004] FCA 1426. 

15                  In respect of the declaration sought, it is uncontentious that the reference to the ‘Commonwealth’ in s 39B(1A) of the Judiciary Act is satisfied by the applicant:  see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 582.

16                  The principal point of contention in relation to jurisdiction is whether the subject matter of the application is a ‘matter’, a common requirement in both sections of the Judiciary Act in question.  The Judiciary Act defines the word ‘matter’ in s 2 to include ‘any proceedings in a Court, whether between parties or not, and also any incidental proceedings in a cause or matter’.  It has been held that an ‘interim decision’ of the Administrative Appeals Tribunal may constitute a matter for the purposes of s 39B(1A)(a) and 39B(1A)(c):  Australian Trade Commission v South Bank Corporation (2000) 104 FCR 116. 

17                  In Re McBain, Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [62] Gaudron and Gummow JJ said:

‘… the task of identification of the ‘matter’ said to be the subject of the present litigation is to be approached as a tripartite inquiry:  first; the identification of the subject-matter for determination in [the applications]; secondly, the identification of the right, duty or liability to be established in each proceedings; thirdly, the identification of the controversy between the parties [to the applications] for the quelling of which the judicial power of the Commonwealth is invoked. …’

Applying that ‘tripartite inquiry’ process to this application, the applicant submits it establishes that there is a ‘matter’ because (1) the ‘subject matter for determination’ is the interpretation of s 34(2) and s 34(4) of the 1971 Act (‘the travel provisions’); (2) the ‘right, duty or liability’ to be established is whether the applicant has no liability to pay compensation to the second respondent because of inapplicability of the travel provisions; and (3) the ‘controversy between the parties’ is whether the travel provisions apply to the circumstances of the second respondent’s journey in 1980.

18                  The second respondent submits that the requirement of the existence of a ‘matter’ in the above sections of the Judiciary Act is one which attracts the same meaning as in ss 75, 76 and 77 of the Constitution:  Commonwealth v Lyon (2003) 203 ALR 553 at [14]-[18] citing Edensor Nominees Pty Ltd at [50] – [51].  Such a ‘matter’ requires the existence of a ‘justiciable controversy’: Fencott v Muller (1983) 152 CLR 570; Abebe v Commonwealth (1999) 197 CLR 510 cited in Austrade at [23].  It is disputed that there can be such a controversy open to final determination by the Court in a case where there are incomplete proceedings before the Tribunal. 

19                  Furthermore, it is submitted by the second respondent that even if the Court were to determine aspects of the legal issues raised by the applicant in the present application in favour of the applicant, that would not necessarily determine the controversy.  It is said that the grounds of the application require the Court to consider a range of complex legal issues involving the interpretation of ss 32 – 36, s 53 and s 54 of the 1971 Act.  In the event that the Court upheld a contention that the first respondent had erred in law in interpreting a relevant provision of the 1971 Act, it would be more likely the Court would remit the matter to the Tribunal for reconsideration according to law. 

20                  Furthermore, it is submitted that the essentially inconclusive and interlocutory nature of the grounds advanced in his application can be contrasted with the nature of the relief sought in the Lyon’s case.  There the Full Federal Court held that a claim for protection of Government information from disclosure raised a justiciable controversy and hence a ‘matter’ not withstanding the interlocutory nature of the claim for relief.  The second respondent accepts that a real controversy was entailed because if the Federal Court in that case had declined to intervene to uphold the applicant’s claim to public interest immunity, confidentiality would have been irretrievably lost and the rights of the applicant there prejudicially affected.  However, here it is said no such immediate prejudice would follow from this Court denying the relief now sought by the applicant.

21                  The second respondent also places reliance on the existence of the right of appeal provided for in s 44 of the Administrative Appeals Tribunal Act.  It is submitted that the Court should infer that Parliament did not intend to confer jurisdiction to review a controversy such as the present under s 39B of the Judiciary Act when it had provided for such a right of appeal. 

THE DISCRETIONARY ISSUE

22                  The submissions of both the applicant and the second respondent distinguish between the issue of whether the Court has jurisdiction to hear the application and the question of the existence of a discretion in the Court to not grant relief until the Tribunal has heard the substantive application. 

23                  The applicant submits that any decision on the issue of the discretion whether or not to grant the relief sought should not be made by the Court until it has heard the argument on the issue which the application seeks to have determined, namely, the issue of statutory interpretation.  In the event the Court is of the view that the issue of discretion can be determined without hearing the argument on interpretation, the applicant requests it be allowed to be heard on these issues.  In the meantime it has set out a summary of relevant issues. 

24                  The applicant, in that summary, says that it is relevant to the question of discretion to grant relief whether there is availability of an alternative remedy:  Phong v Attorney-General for the Commonwealth (2001) 114 FCR 75; whether notwithstanding relief being granted other issues would remain to be resolved:  South Bank Corporation; Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829; and whether by not granting the relief the applicant would be subjected to hardship:  Du Pont.

25                  The second respondent submits that there is an alternative remedy available to the applicant which is to proceed with the remainder of the hearing before the Tribunal, to await the outcome of that decision and then to determine whether to lodge an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act.  However, the applicant submits this does not constitute a practical alternative remedy in the circumstances.  It lists those circumstances as the following:

1.                  granting relief in favour of the applicant would conclude the proceedings and no further issues would remain to be considered by the first respondent:  cf South Bank Corporation and Du Pont where the Court concluded that even if relief were granted other issues remained to be determined;

2.                  there is a considerable amount of further investigations and evidence to be obtained to enable the outstanding issues to be resolved:  see the affidavit of Ingrid Juliette McCormick dated 8 April 2005;

3.                  the second respondent has obtained, filed and served further medical evidence after the decision of the first respondent on 17 September 2004:  see the affidavit of Ingrid Juliette McCormick dated 8 April 2005;

4.                  the resumed hearing before the first respondent could be expected to take two days:  see the affidavit of Ingrid Juliette McCormick dated 8 April 2005; and

5.                  all of these issues will involve considerable expense to both the applicant and the second respondent which would be avoided if the Court grants the relief sought .

26                  The second respondent also submits that there is relatively little inconvenience to the applicant in allowing the outstanding matters to be finally disposed of by final decision of the Tribunal.  That is disputed in the circumstances by the applicant. 

27                  It is the case that the Tribunal member who made the interim decision will have his term of office with the Tribunal expire in August 2005.  However, the Tribunal is empowered to reconstitute a tribunal – s 23 and s 23(d) of the Administrative Appeals Tribunal Act.  The fact that the reconstituted tribunal would have to hear further evidence on outstanding issues in the event of remittal to it would mean that it would not be disadvantaged by not having seen those witnesses give evidence in person. 

28                  The applicant submits that, if the Court determines that the grounds on the argument of statutory discretion are made out, it should not in its discretion refuse to grant the relief sought. 

reasoning

29                  The jurisdiction of the Court cannot be in question.  As reasoning in South Bank Corporation demonstrates, it is not the jurisdiction which is in issue on an application such as the present, but the question whether the exercise of jurisdiction will be capable of resolving the litigation in the Tribunal.

30                  It is therefore apparent that it is the discretionary issue which must be determined.  In addition to what has already been submitted by the parties, it is clear that the Court must consider whether the declaration sought, if made, would be capable of resolving the litigation in the Tribunal.  Submissions have not gone to that issue in any detail and the applicant seeks a hearing to develop the issue of statutory interpretation which it seeks to raise in the review proceedings.  The application for review should therefore be set down for further submissions directed to the issues I have identified.

Associate:

Dated:              18 April 2005