FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2012] FCA 422

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s cost of the appeal and, in relation to the respondent’s interlocutory application dated 24 October 2011, those costs are to be assessed on an indemnity basis.

3.    The parties be heard on any other or further orders.

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

REASONS FOR JUDGMENT

introduction

1    This is a purported appeal by Mr Kenneth John Sleep from a decision of the Administrative Appeals Tribunal (Veterans’ Division) pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). An appeal under that subsection is limited to an appeal on a question of law.

2    The decision appealed from is a decision of a Deputy President of the Tribunal made on 25 May 2011. The decision was that the Tribunal declined to review the issues raised by the applications before it “that had 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)”: Kenneth John Sleep v Repatriation Commission [2011] AATA 349.

3    The applicant’s Notice of Appeal is dated 22 June 2011. The applicant prepared the Notice of Appeal and has represented himself throughout the proceeding. He identifies the questions of law raised on the appeal as follows:

(1)    Did the Tribunal err in law by declining to review the issues raised by the within applications?

(2)    Did the Tribunal err in law by dismissing the applications pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth)?

(3)    Did the Tribunal err in law by not addressing my concerns as expressed in all my correspondence concerning the issues?

4    In that part of his Notice of Appeal, which identifies the orders he seeks and the findings of fact he asks the Court to make, the applicant claims that his pension entitlement is exempt from means testing and he claims that the respondent has “grossly breached his fiduciary obligations and trust, duty and care to the applicant and the applicant has a just claim against the respondent for an account of profits and/or equitable compensation”.

5    The grounds of appeal are as follows:

(1)    My contentions at paragraph 20 and 21 of the Tribunal decision have not been properly considered.

(2)    Neither Sleep v Repatriation Commission AATA 1100 [2008] nor AATA 1101 [2008] was concerned with the application, to my pension entitlement, of s 52(1)(c) of the Veterans Entitlements Act 1986 (Cth) which was one of the issues before the Tribunal.

(3)    That the reduction of my service pension amounted to the acquisition of my property and such acquisition was not made on just terms contrary to s 51(xxxi) of the Commonwealth of Australia Constitution Act. The Tribunal decision is at odds with Sleep v Repatriation Commission [2009] FCA 472, where at paragraph 12 his Honour Justice Besanko stated that ‘With respect to the second submission, no claim was made (it seems) to the Tribunal that the reduction of the applicant’s pension and his wife’s partner service pension were in some way contrary to the constitution’.

(4)    My written and oral contention that the scheme of ‘a top up’ to the special rate (or its mal-administration) was a circuitous device to deprive TPI’s of just compensation, was not addressed in the decision.

(5)    The way the respondent treated me as tantamount to cruel and unusual punishment of a TPI pensioner with qualifying service, who at the very least had the legitimate expectation of some respect from the respondent. Such treatment, resulting in adverse health outcomes for my wife and me, does not accord with the wishes of the Australian people as expressed by Parliament. I lodge this appeal in the hope that it will help others. It is too late for me and, especially, my wife.

(6)    Any other relevant grounds that are contained in the documentary evidence but not mentioned here because of my incapacity, lack of legal knowledge and lack of legal assistance. I have just done the best I can under the present circumstances.

History of the Proceeding

6    On 12 September 2011, the Chief Justice of this Court determined that the proceeding should be heard and determined by a single Judge.

7    On 6 October 2011, I determined that, in relation to ground 3 of the grounds of appeal, it was not necessary for a notice to be given under s 78B of the Judiciary Act 1903 (Cth) because Mr Sleep’s constitutional point is no more than a mere assertion and, in those circumstances, s 78B is not engaged: Sleep v Repatriation Commission [2011] FCA 1153.

8    On 24 October 2011, the respondent issued an interlocutory application wherein he sought, first, an order that the proceeding be summarily dismissed, secondly, an order that the applicant must not start any other proceeding against the respondent in the Court, without the leave of the Court, seeking relief on the grounds identified in the interlocutory application and thirdly, an order that the applicant pay the respondent’s costs of, and incidental to, the proceeding on an indemnity basis. The respondent’s interlocutory application was supported by an affidavit of Mr Robert Douglass who is employed by the Department of Veterans Affairs as a senior legal advisor in the litigation section of Business Integrity and Legal Services. One of the annexures to Mr Douglass’ affidavit was a copy of a letter sent to the applicant by the respondent on 6 July 2011, warning him about the futility of the present proceeding and the possible costs consequences of continuing it beyond the first directions hearing.

9    On 24 October 2011, the respondent also filed an Outline of Submissions and a Notice of Objection to Competency. The Notice of Objection to Competency asserted that the Court had no jurisdiction to review the proceeding under s 44(1) of the AAT Act because the Notice of Appeal did not disclose a question of law.

10    At a directions hearing on 24 October 2011, the applicant indicated that he had no objection to me hearing this proceeding.

11    Unfortunately, the applicant has a serious illness. He was unable to file and serve a written outline in accordance with directions I had made. However, he indicated that there was no point in delaying the case further because of the fact that he was undergoing medical treatment.

12    The respondent’s interlocutory application came on for hearing before me. Mr Sleep appeared in person, and the respondent was represented.

The Decision of the Administrative Appeals Tribunal

13    The Deputy President set out the details of the applicant’s applications for review. He decided that he had jurisdiction to determine four of the six applications made by the applicant. He noted the Commission’s application to dismiss the four matters on the grounds that they raised issues that were previously the subject of proceedings in the Tribunal which were decided by Member Short adversely to Mr Sleep. He noted that appeals to the Federal Court against these decisions were dismissed. He noted the contention of the Commission that the applicant should not be permitted to re-litigate the same issues in the present matters. The Commission also contended that the proceeding should be dismissed pursuant to s 42B of the AAT Act on the grounds that they had no prospects of success.

14    The Deputy President set out the Commission’s primary decisions in relations to the four applications for review. He said that the issues before him were whether the matters raised in the present proceeding had already been determined in the earlier proceedings and whether, as a result, he should not permit the same issues to be re-agitated in the present proceeding and whether, in the alternative, he should dismiss the proceedings pursuant to s 42B of the AAT Act on the grounds that they had no prospect of success.

15    The Deputy President set out the provisions of the Veteran’s Entitlements Act 1986 (Cth) (“VE Act”) which he considered to be relevant, and the provisions of s 42B of the AAT Act. He referred to the previous proceedings which were dealt with by Member Short and the two appeals heard by me and dismissed: Sleep v Repatriation Commission [2009] FCA 472. He also noted that the applicant had made an application for an extension of time to file and serve a notice of appeal from my decision and that the application was heard and refused by Lander J: Sleep v Repatriation Commission [2009] FCA 1413.

16    The Deputy President noted nine contentions made by the applicant.

17    The applicant’s first contention was that the applications before him differed from the previous proceedings in the Tribunal because they related not only to his own invalidity service pension, but also to his wife’s partner pension. The Deputy President rejected this contention. He did not consider it to be a relevant distinction or a reason to allow the applicant to re-agitate the contentions to which he referred. He said that his conclusion was based on the fact that the relevant contentions were the same in substance in the present and earlier proceedings, and were fully considered and determined in the earlier proceeding.

18    The applicant’s second contention was that his pension at the special rate under s 24 of the VE Act is a life interest, and by virtue of s 52 of that Act, should not be counted in the income test. The Deputy President rejected this contention on the basis that it was misconceived. He said that the grant of a pension at the special rate pursuant to s 24 of the VE Act is not a life interest within the meaning of any of the provisions of s 52.

19    The applicant’s third contention lies at the heart of his complaint about the respondent’s decisions. The Deputy President described the contention in the following terms:

The invalidity service pension was a ‘top-up’ pension and his eligibility for it arose from section 24; accordingly it should be regarded as a disability pension and not as a ‘special’ pension, and section 24 of the Veterans Entitlements Act should override the income and assets test that applied to other ‘special’ or service pensions. He contended that the invalidity service pension ‘took on the character’ of the pension to which it was attached, and because the level of his incapacity had not decreased, so also his invalidity service pension should not have been decreased and the Commission had misinterpreted the VE Act by decreasing his pension entitlement.

20    The Deputy President decided that the applicant had raised that contention in the earlier proceedings and that they were referred to in my earlier judgment and rejected. He decided that the applicant should not be permitted to re-agitate the contention in the present proceedings. The Deputy President said that decision makers were required to determine matters in accordance with the correct legal interpretation of the relevant provisions of the VE Act, and that that was what they had done in relation to the contention.

21    The applicant’s fourth contention was that his pension at the special rate under s 24 is a chose in action, to which he is entitled as a result of his overseas service in Vietnam, and the action of the Commission in reducing his pension constituted an acquisition of property from him other than on just terms, contrary to s 51(xxxi) of the Australian Constitution. The Deputy President rejected this contention for reasons set out in his decision. He also said that the contention had been considered and rejected in the earlier proceedings, and that the applicant should not be permitted to re-agitate the contention in the present proceeding.

22    The applicant’s fifth contention was that he had not been told at an earlier stage, when he became ill in 1992, of the availability of the “top-up” pension and did not find out about it until the year 2000, and the Commission was remiss in not informing him of the “top-up” pension earlier. The Deputy President rejected this contention on the basis that it raised issues that were not within the jurisdiction of the Tribunal to determine.

23    The applicant’s sixth contention was that when he and others went to Vietnam, they were not told that their pension entitlement would be means tested, and this consequence should not have been brought about by retrospective legislation. His seventh contention was that the Commission acted in a manner that was unconscionable or in breach of a fiduciary duty to him, causing constant stress to him and his family, and also hastening the death of his late wife who died in November 2009. His eighth contention was that he believed “that he should be compensated for having been selectively conscripted into the army when he was a minor, and that he may have claims arising from exposure to substances used in Vietnam, and for the mandatory ingestion of Dapson tablets in Vietnam as part of a trial to prevent malaria, and because his life was put more at risk than it already was in about 1992, resulting in several months of hospitalisation”. The Deputy President rejected each of these contentions because they raised issues that were not within the jurisdiction of the Tribunal to determine.

24    The applicant’s ninth contention was that having transferred a property at Croydon to his late wife, and, his late wife’s intention being to devise the property to their daughters, that property should not have been treated as an asset. The Deputy President rejected this contention on the ground that there was no point in pursuing the proceedings in relation to it and accordingly, the proceedings should be struck out pursuant to s 42B of the AAT Act.

25    The Deputy President said that the applicant’s third and fourth contentions were contentions which he should not be permitted to re-agitate because they were dealt with in the earlier proceedings. In addition, they also had no prospect of success for the reasons he gave and he said that this provided a further basis for his conclusion that the present proceeding should be dismissed under s 42B of the AAT Act.

26    In summary, the first contention was rejected because it did not provide a relevant point of distinction from the earlier proceedings. The second contention was rejected because it was misconceived. The third and fourth contentions were rejected because they involved a re-agitation of matters previously decided and, in addition, had no prospect of success. The fifth, sixth, seventh and eighth contentions raised issues that were not within the jurisdiction of the Tribunal to determine. The ninth contention was futile.

27    The Deputy President concluded his reasons by saying (at [36]):

As I have said above, it is clear from Mr Sleep’s submissions and the documents that I have considered that he is genuinely aggrieved by the decisions that have given rise to the present proceedings, as well as the decisions that gave rise to the earlier proceedings. While I accept this, it is necessary for the Commission and its delegates to apply and comply with the provisions of the VE Act, and (subject to the apparent error in relation to decision three which, however, was quickly rectified) I am satisfied that they have done so correctly, and that the present proceedings have no prospect of success. I accordingly conclude that this is an appropriate matter for the exercise of the Tribunal’s discretion to dismiss the proceedings pursuant to s 42B of the AAT Act.

Issues on the application

28    As I have said, the applicant did not file and serve written submissions in support of his opposition to the respondent’s interlocutory application. However, he did make oral submissions at the hearing, and the thrust of those submissions was directed towards the third and fifth contentions referred to above.

29    Although not in precisely the same terms, the essence of the applicant’s third contention was similar to a submission he made to me in the earlier appeal (Sleep v Repatriation Commission [2009] FCA 472). I described the submission in the following terms (at [9]):

The effect of the respondent’s decision was that the applicant’s service pension and his wife’s partner service pension were reduced. However, the applicant’s pension paid at the special rate remained the same. The applicant submitted that this was an incongruous result, bearing in mind that the same conditions gave rise to both his eligibility for the service pension and his wife’s partner service pension and his eligibility for the pension paid at the special rate.

30    The applicant contended that his invalidity service pension should not be means tested. He submitted that the circumstances which entitled him to the invalidity service pension were the same as the circumstances which entitled him to the pension at the special rate, and that as the latter was not means tested so also should the former not be means tested. He pointed to the definition of “disability pension” in s 5Q of the VE Act and in particular paragraphs (a) and (d) of the definition of “disability pension”. Those paragraphs provide as follows:

disability pension, for the purpose of Parts III and IIIA means:

(a)    A pension under Part II or Part IV (other than a pension that is payable under s 30 to a dependent of a deceased veteran); or

(b)    …

(d)    A payment (other than a pension referred to in paragraph (a) or (c) of this definition) that is a payment in respect of incapacity or death resulting from employment in connection with a war or war-like operations in which the Crown has been engaged.

31    The difficulty for the applicant is that the terms of s 37N of the VE Act are quite clear. That section provides that a veteran’s invalidity service pension rate is worked out in accordance with the rate calculator. The rate calculator includes provision for an income and assets means test. These matters were the subject of explication in my reasons in the earlier proceedings (at [14]-[24]) and in the reasons of Lander J in Sleep v Repatriation Commission [2009] FCA 1413 at [3]-[9].

32    The applicant’s argument is not assisted by reference to the definition of disability pension in the VE Act and is untenable.

33    The applicant’s other argument which was his fifth contention before the Deputy President is not within the scope of an appeal from a decision of the Tribunal on a question of law, and is untenable.

34    The Notice of Appeal does not identify a question of law. Insofar as the material and the applicant’s oral submissions raise other arguments or clarify the Notice of Appeal, the arguments must fail. The applicant’s purported appeal falls within paragraphs (a), (b) and (d) of Rule 26 of the Federal Court Rules 2011. It also falls within s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The appropriate order is that the appeal be dismissed.

35    I think the respondent has established an entitlement to costs on an indemnity basis in relation to its interlocutory application dated 24 October 2011, in light of the earlier proceedings and the respondent’s letter dated 6 July 2011 putting the applicant on notice as to the deficiencies of the purported appeal (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J).

Conclusions

36    The appeal will be dismissed. The applicant must pay the respondent’s costs of the appeal and, in relation to the respondent’s interlocutory application dated 24 October 2011, those costs are to be assessed on an indemnity basis. The respondent also sought an order under Rule 6.02 of the Federal Court Rules 2011 prohibiting, without leave of the Court, the applicant from bringing further proceedings on certain grounds. Little was said about such an order and I will give both parties the opportunity to address it if it is pursued by the respondent.

Associate:

Dated:    27 April 2012