Federal Court of Australia

Davis v Military Rehabilitation and Compensation Commission [2021] FCA 1446

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    In s 7(3) of the grandiosely titled Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (Cth) (Recognition Act) is a statement by the parliament that the Commonwealth is committed to the Military Rehabilitation and Compensation Commission (the Commission), the respondent in the present proceeding, deciding a claim under the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act) within 90 days beginning on (a) the day the Commission receives the claim or (b) the day the Commission receives information or a document that the Commission requested in relation to the claim under s 330 of that Act – whichever occurs later.

2    If nothing else, the evidence led in the present proceeding establishes that, in practice, that statement in the Recognition Act is presently, and has for a considerable time before today, been nothing more than cant.

3    Mr Andrew Davis, the applicant, was a member of the Australian Defence Force from 28 November 2011 until 20 February 2019. More particularly, he was a member of the Australian Army Reserve during that period. Membership of the Australian profession of arms, which Mr Davis joined upon his enlistment in the Australian Army, is unlike other professions in the sense that necessarily, and not only during wartime, it is attended with a greater risk of injury – physical or mental or both – or death than civilian professions or civilian occupations.

4    Mr Davis had the misfortune during the course of his military service to encounter a manifestation of that risk. On 24 March this year, Mr Davis lodged with the Commission a claim for compensation under the MRC Act arising out of his military service.

5    Although now more than seven months have elapsed since that claim was lodged with the Commission, it remains undetermined. Indeed, the evidence of a first assistant secretary within the Department of Veterans’ Affairs, Ms Cole, today, was that it was not possible presently to give a precise date by which that claim would be allocated to a delegate of the Commission for determination.

6    Mr Davis has invoked the Court’s jurisdiction, both under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADRJ Act) and that separately conferred by s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), to seek an order compelling the making of a decision in respect of his claim. Related to that relief, he seeks a declaration that “waiting greater than 90 days for a claim decision is unreasonable.”

7    The ADJR Act makes provision by s 7 for the Court to review a failure to make a decision to which that Act applies. A mandamus is further or alternatively available under s 39B of the Judiciary Act to compel the performance of a public duty by an officer of the Commonwealth.

8    Lest it be thought otherwise, it should be said at once that the statement as to the commitment in respect of the determination of claims within 90 days as found within s 7(3) of the Recognition Act is not, or does not create, a legally enforceable obligation. That is made plain on the face of the Recognition Act itself – see s 10. The MRC Act does not separately provide a time limit within which a claim must be determined by the Commission. Instead, the MRC Act is to be interpreted as carrying with it, by necessary implication, that a claim must be decided by the Commission within a reasonable time.

9    The relevant principle was recently stated by the High Court in Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 (DUA16), at [26]:

A requirement for legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus on the particular circumstances of exercise of the statutory power. The conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power.”

[footnote references omitted]

10    In this passage, one finds the reason why one submission made on behalf of Mr Davis must be rejected. That submission sought to call in aid a duty to act fairly flowing from an application of procedural fairness. But that particular “lens” is, as the passage quoted from DUA16 makes plain, not germane. Instead, what is required is a close focus upon particular circumstances attending the exercise of the statutory power.

11    One such factor undoubtedly is, as was also submitted on behalf of Mr Davis, that the MRC Act – as with, for that matter, the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlement Act), the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) and instruments under those Acts has as its purpose the achievement of beneficial ends and outcomes for veterans or, as the case may be, their families.

12    Those statutes do not provide for charity. They provide for entitlements, providing that criteria which they specify are engaged on the evidence. Those Acts can be viewed as a present manifestation of a public policy understanding in respect of service in the Australian Defence Force, which was notably expressed during the First World War by the then-Prime Minister, the Right Honourable William Morris Hughes CH KC, in his undertaking on behalf of the Australian government to look after veterans in return for their service. Similar sentiments were voiced by the Honourable Clyde Holding in his speech to parliament in respect of the introduction of what became the Veterans’ Entitlements Act. Indeed, in terms of our history, recognition of an obligation on the part of the nation-state to provide for the health and welfare of those who have rendered military service to the Crown may be traced to a warrant issued by King Charles II in 1681 pursuant to which the Royal Hospital at Chelsea in London came to be constructed and maintained to this day

13    These public policy pronouncements, however, serve to underscore the beneficial purpose to which the legislation is directed, including the MRC Act. In none of these to be found an express obligation to decide claims within a particular time. That truly is a matter for determination by reference the implied requirement of reasonableness, and in the circumstances of a given case.

14    The requirement of reasonableness has been said by the High Court to be an exacting standard. It would not, for example, be sufficient to find unreasonableness to recognise that many people might find a seven-month delay to be unacceptable. The delay must be so unreasonable that no reasonable person could fail in the circumstances to have decided the claim: DUA16, at [16].

15    Prior to the recent jurisprudence in the High Court concerning unreasonableness is another case where delay on the part of a Commonwealth authority responsible for the administration of veterans’ legislation was said to be present to the extent of unreasonableness: see Thornton v Repatriation Commission (1981) 52 FLR 285 (Thornton). That case is, in light of subsequent authority, with respect, noteworthy for the prescience of Fisher J in relation to later Australian developments in the law with respect to unreasonableness. His Honour’s judgment contains, with respect, a helpful summation of then-Australian and English authority, including an observation made by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (Tameside), at 1064, in which, in referring to the meaning of the word “unreasonable” for public law error purposes on judicial review, his Lordship observed:

My Lords, in public law “unreasonable” as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression, it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

16    What Fisher J took from this in Thornton, at 291, was that:

[t]he reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it was capricious or irrational.

17    Tameside was cited with apparent approval in one of the modern authorities in relation to unreasonableness namely, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [71].

18    The reference in the passage just quoted to “delay until the High Court handed down its judgment” contains the essence of the factual circumstances which fell for decision in Thornton – namely a decision to defer a determination of a claim by a veteran under the then-Repatriation Act 1920 (Cth) pending the resolution of a test case in the High Court of Australia. That statement in Thornton by Fisher J sits well with contemporary authority in relation to unreasonableness. So too does this statement, at 292:

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance, it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity. Moreover, it is a delay for a finite and not an indefinite period.

19    On the evidence in this case, the Commission’s failure to the present day to make a decision in respect of Mr Davis’ claim is not a consequence of neglect, oversight or perversity. It is quite apparent from Ms Cole’s evidence, which includes reports annually provided by the Department of Veterans Affairs and tabled in the parliament, that for some time the resources made available by the parliament, notwithstanding the Recognition Act, to that department have been most inadequate to achieve the aspiration found in s 7(3) of the Recognition Act.

20    That type of inadequacy is also not unique to our times in relation to veterans. The inadequacies of resources available to the Repatriation Commission throughout the 1920s for dealing with veterans from the First World War featured in the second reading speech of the Honourable Sir Neville Howse VC, KCB, KCMG, FRCS to the parliament, promoting amendments of the Repatriation Act, which saw the creation of war pensions entitlement tribunals.

21    But the place of adjudication in relation to inadequate provision of resources is not a court of law, but a court of public opinion, and perhaps at the ballot box. The question for present determination must focus on the circumstances of public administration in relation to Mr Davis’ case and his particular circumstances.

22    Ms Cole’s evidence is that the Commission, which along with the Repatriation Commission is served by the Department of Veterans Affairs in the administration of the various Acts providing for benefits for veterans already mentioned, adopts presently, and has for some time, a “triage” policy.

23    That policy is to be found in guidelines adopted – and it must be recognised, permissibly adopted – by the Department for the purposes of good public administration of the MRC Act and other Acts under its administration in the circumstances of current, and for some time beforehand also, inadequate provision of resources by the parliament by appropriation.

24    Triage is a term which has its origins in emergency medicine, including emergency medicine on the battlefield. As found in the guidelines, it does have a civilian public administration analogue in that, as a matter of deliberate public policy, the Commission, or the Department in serving the Commission, seeks to identify cases where the claimant veteran is at risk, so as to prioritise those over what is otherwise a chronological claim-as-lodged referral to delegate process.

25    There is no doubt on the evidence that this policy has been applied in Mr Davis’ circumstances so as to see the determination of his claim by a delegate, or the reference of his claim to a delegate for determination, deferred. A weakness in the adoption and application of the guidelines is that they contain within them no finite cut-off date as a failsafe for determination of a claim in any event. Thus, considered in isolation, the guidelines, if applied uncritically, could lead to a situation where a claim is progressively deferred from reference to a delegate as one at-risk case after another shuffles it backwards in an order for consideration.

26    But it cannot be said that the deferral of Mr Davis’ claim is the result of any neglect. Quite the reverse – it is the result of attention to his claim and a considered decision to defer it so as to give priority, in circumstances of inadequate resources, to other claims.

27    The Department does have, within a separate policy, provision for a timely approach to the processing of claims under the MRC Act and other veterans benefits Acts. This too is in evidence in the form of the Department’s “liability handbook.” Paragraph 2.5.1 of that handbook provides:

2.5.1    Timely Approach to Claims Processing

It is the duty of all delegates to determine all claims for compensation in an accurate and timely manner. The accuracy of determinations is not negotiable. No compromise can be accepted in the degree of care and diligence in deciding any entitlement under the Act. Claims assessors should always aim to meet the targets for time taken to process of 75 days for the VEA and 120 days for the SRCA and MRCA. Where possible, the assessment of claims should commence as soon as possible after receipt and the regular ongoing management of those claims conducted in a reasonable timeframe. To achieve this it is important that both the claims assessors and their managers closely monitor the claims that are received and on hand to ensure a good awareness of the status of claims and circumstances of the clients. The principles to be applied to claims processing to assist in achieving this goal are as follows;

•    Start the investigation of all claims within 7 days of assignment;

•    Complete all follow up actions on the day they become due;

•    Refuse to get stuck, ask for help the day a problem becomes evident.

In some cases however, the urgency associated with the matter means that a claim must be dealt with ahead of older claims and significant attention needs to be given to obtaining the necessary information to make a determination. This is a judgement call for the delegate and/or the manager based on the degree of personal distress, financial hardship and medical or rehabilitation concerns of the client.

Priorities need to be attributed by the claims assessor and their manager, and based on the circumstances of the claim at the time of receipt and allocation. These priorities will need to be regularly reviewed during the progress of the claim where changes to the claimant's circumstances may provide a greater urgency. This regular review can be conducted as part of the case conferencing process between claims assessors and their team leader or Director/Manager.

28    In this handbook, one sees scope for an interplay between the triage guidelines already mentioned and a recognition of a need for timely claims processing. Even so, the 120 days goal in respect of claims under the MRC Act, mentioned in the handbook, has not been met in this instance. Once again, however, the failure to meet a guideline – 120 days – is not in itself productive of a conclusion of unreasonableness.

29    Ms Cole offers in her affidavit a chronological tabulation of the many claims made to date under the MRC Act by Mr Davis. That chronology makes for confronting – indeed, depressing – reading, in the sense that the sequel to his experience of military service is an acceptance of many permanent impairments and medical conditions attributable to military service.

30    The number of claims accepted and resulting in payments of public money featured in submissions made on behalf of the Commission as an apparent reason why it ought to be concluded that there had been no unreasonable delay, in the public law sense of unreasonableness. But these were payments of entitlements, and a fresh claim in respect of an asserted further entitlement was before the Commission.

31    Already present in the material before the Commission was evidence of a particular depression unfortunately suffered by Mr Davis and accepted as compensable under the MRC Act. But it is not for the Court to make evaluative factual judgments in relation to which claim should be preferred over another for progression towards determination by a delegate – only to reach a conclusion objectively as to whether in all the circumstances the delay is unreasonable. It needs firmly to be borne in mind by judges that the Constitution provides for a separation of powers. The administration, generally, of legislation is not for the judiciary but rather for those whom the Constitution terms the Queen’s Ministers of State for the Commonwealth, pursuant to administrative arrangements made by His Excellency the Governor General under s 64 of the Constitution.

32    Unreasonableness in the public law sense is confined to extreme circumstances or irrationality or illogicality. It would be easy to conclude unreasonableness if five years, for example, had elapsed. Inadequacy of resources would be no answer to a five-year delay. Nor would inadequacy of resources be an answer in itself even to a seven-month delay if, objectively, one could regard that delay as unreasonable. Here, it appears from Ms Cole’s evidence, that the Department has truly prioritised cases which are regarded as being even more warranting of early consideration than Mr Davis.

33    As I have observed, it is possible that an uncritical application of the guideline provision for “triaging” could lead to a circumstances where, as a matter of objective evaluation, so much delay had been imposed by progressively putting back a claim on the basis of others more at risk that, absolutely, that claim was unreasonably delayed. But I do not consider that that particular time, having regard to the exacting standard of unreasonableness, has yet been reached. That is hardly a bouquet in terms of public administration – only recognition of the stringency of unreasonableness with respect to a failure to make a decision.

34    Ms Cole’s evidence made it plain that Mr Davis’ particular circumstances, including a range of medical treatment benefits as well as income and other support already provided for, was taken into account in a relativity evaluation. Many might regard seven months as unreasonable, but that is not the touchstone. There is no irrationality in the decision, but there is the potentiality of unreasonableness if there is no recognition that there comes a time when a case just must be referred to a delegate for determination. There is cause for apprehension in relation to whether there is such recognition by Department even now, as Ms Cole’s evidence as to by when Mr Davis’ claim will be referred to a delegate made plain.

35    There are benefits that attach to an acceptance of this particular claim beyond those for which he is already accepted as entitled. But this too has apparently been taken into account in a relativity prioritisation assessment.

36    For the present, I consider that to conclude that an unreasonable time has elapsed would be to go beyond the remit of the judicial branch, either under the ADJR Act or s 39B of the Judiciary Act. The importance of the judiciary staying within that remit for the legitimacy of judicial review cannot be overstated – see in this regard Attorney-General (NSW) v Quin (1990) 170 CLR 1 and Marbury v Madison 5 US (1 Cranch) 137 (1803).

37    What follows from the foregoing is that the declaration sought should not be made. Further, given the conclusion reached as to an absence of objective reasonableness, the application for relief so as to compel a decision either under the ADJR Act or the Judiciary Act must be dismissed.

Associate:    

Dated:    22 November 2021