FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2011] FCA 1153

THE COURT ORDERS THAT:

1.    The directions hearing be adjourned to 24 October 2011 at 9.15 am.

2.    There be liberty to apply.

3.    Costs be in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1        This proceeding involves an appeal by Mr Sleep against a decision of the Administrative Appeals Tribunal constituted of a Deputy President. The Chief Justice of this Court has determined that the appeal be heard by a single Judge (Administrative Appeals Tribunal Act 1975 (Cth): s 44(3)).

2        The appeal relates to a matter which has a long history. The Deputy President made the following decision:

The Tribunal declines to review the issues raised by the within applications that have previously been determined by earlier proceedings in this Tribunal, and dismisses the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

(Sleep v Repatriation Commission [2011] AATA 349)

3        The earlier proceedings were heard by Member Short: Sleep v Repatriation Commission [2008] AATA 1100; Sleep v Repatriation Commission [2008] AATA 1101. There was an appeal to this Court which I heard: Sleep v Repatriation Commission [2009] FCA 472. An application to extend time within which to appeal from my decision was refused by Lander J on the ground that there was no prospect of Mr Sleep succeeding on a further appeal: Sleep v Repatriation Commission [2009] FCA 1413.

4        The appeal to the Tribunal related to decisions concerning an invalidity service pension paid to Mr Sleep under the Veterans’ Entitlements Act 1986 (Cth).

5        One of the arguments raised by Mr Sleep, who has appeared throughout in person, is that the reduction of his pension is an acquisition of property on other than just terms within s 51(xxxi) of the Constitution. The Deputy President found that there was no merit in this argument: [2011] AATA 349 at [25]-[26]. He referred to the decision of the High Court in Health Insurance v Peverill (1994) 179 CLR 226.

6        The point had been raised before me in the earlier proceedings, but I rejected it (at [12]).

7        Mr Sleep seeks to argue the constitutional point on the present appeal. I raised with the parties whether a notice under s 78B of the Judiciary Act 1903 (Cth) should be given. The respondent submits that it is not necessary to give such a notice because Mr Sleep’s constitutional point is no more than a mere assertion and, in those circumstances, s 78B is not engaged. I think the respondent’s submission is correct.

8        Section 78B is not engaged where the constitutional point is no more than assertion or is frivolous, vexatious or an abuse of process: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 173; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 (“Berbatis”).

9        Unless the Court is satisfied that a constitutional point is fairly raised, the public interest considerations which informed the enactment of s 78B, as French J put it in Berbatis at 297, will not transcend the private interest involved.

10        I have considered Mr Sleep’s notice of appeal and his oral submissions. At no stage did his so-called constitutional point rise above assertion.

11        Section 78B has not to this point been engaged and in the circumstances I propose to proceed to make further directions with a view to the appeal being heard.

Associate:

Dated:    6 October 2011