Federal Court of Australia

Davis v Veterans’ Review Board [2021] FCA 131

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Andrew Lewis Davis (Mr Davis) rendered service to our country as a member of the Australian Defence Force from 28 November 2011 to 20 February 2019. As can be the way of things with military service, it is not without risk to the health, life and comfort of a defence member. In Mr Davis’ case, that particular consideration has manifested itself in the form of a claim for liability, rehabilitation and compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (the Act).

2    It is not necessary to detail the particular bases of the claim under that Act. The claim is one which has been determined by the Military Rehabilitation and Compensation Commission (Commission). As is his right, Mr Davis has sought the review by the Veterans’ Review Board (the Board) of that decision. He has been, to say the least, dissatisfied with the expedition with which the Board has treated his review application. Understandably in that regard, he has drawn attention to s 133A of the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlements Act), which provides:

Board’s objective

In carrying out its functions, the Board must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Board.

3    That particular provision is not dissimilar to other provisions found in other Commonwealth legislation in relation to merits review bodies. It sets a particular parliamentary aspiration for a merits review body in terms of expedition, but it is not prescriptive as to a particular time within which, in this case, the Board, must determine on the merits a particular case.

4    In December last year, feeling, for reasons which are understandable, that enough time had passed in respect of the Board’s dealing on the merits with his claim, Mr Davis filed in this Court an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for relief in the nature of a writ of mandamus, requiring the Board to do its duty in relation to the hearing and determination of his claim, and for ancillary declaratory relief. It is quite apparent from the statements made this afternoon, which I accept unreservedly, that, if nothing else, Mr Davis’ judicial review application prompted the Board to do what one might expect it would have done in any event, although perhaps with even more expedition; namely, to offer him a hearing. That hearing is consensually to occur on the papers on 16 February 2021. In other words, in a little over a week’s time.

5    The primary objective of the judicial review proceeding was to achieve expedition. That expedition has been achieved by the voluntary offering by the Board, without court order, of expedition. There is a question, which necessarily would have informed whether or not to make an order requiring a hearing as soon as reasonably possible, as to whether there had been unreasonable delay. That is the essence of the declaratory relief sought.

6    At the heart of the application for that declaratory relief, and in turn, whether or not to require the Board to offer a hearing, is a question which concerns s 137 of the Veterans’ Entitlements Act, or at least so Mr Davis submits. I had occasion in Shafran v Repatriation Commission [2019] FCA 1833 (Shafran) to consider the construction and application of s 137 of the Veterans’ Entitlements Act. I was informed by Mr Brown of the Australian Government Solicitor, the solicitor for the Board today, that the Board, and in particular its principal member, has endeavoured to mould procedures in accordance with the court’s judgment in Shafran. The question as to the adequacy or otherwise in law of those procedures, is rendered academic in this case by the fact that the principal relief designed to secure an expedited hearing is no longer necessary in light of the hearing offered voluntarily by the Board.

7    In these circumstances, it is better to await a case where there is a controversy where there is particular, practical significance in order to determine the question of compliance or otherwise by the Board with s 137, as interpreted by the Court in Shafran. At present, it appears that the Board is endeavouring to adopt its understanding of the interpretation offered by the court in that case.

8    The granting of relief, either by way of a peremptory order requiring the performance of a statutory duty, or declaratory relief, is discretionary. In this particular case, because of the academic quality in respect of the principal relief sought, and as a matter of discretion, in my view the proceeding should for that reason be dismissed. That in no way either affirms or denies the merits of the contentions which Mr Davis would wish to advance about s 137. At the moment though, and if only out of an abundance of caution, it appears that the Board has been anxious to make sure that the hearing it conducts on the merits and on the papers is one which has Mr Davis’ agreement. And for that matter, I should expect, the agreement of the Commission. It is for another day to decide whether or not that abundance of caution was necessary. I note that the Board does not seek an order for costs.

Associate:    

Dated:    23 February 2021