FEDERAL COURT OF AUSTRALIA

Davis v Military Rehabilitation and Compensation Commission [2024] FCA 322

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 29 May 2023 be dismissed.

2.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondents in relation to the whole of the proceeding.

3.    The parties are to bear their own costs.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    These proceedings were initiated by the applicant, Mr Davis, on 16 December 2022, against the first respondent, the Military Rehabilitation and Compensation Commission, and the second respondent, the Secretary of the Department of Veterans' Affairs. They arise out of a number of complaints the applicant has regarding conduct engaged in, or that he claims is proposed to be engaged in, in relation to the payment of road tolls under the Military Rehabilitation and Compensation Act 2004 (Cth).

Factual Background

2    On 9 November 2022, the applicant lodged a claim with the Department for reimbursement of travel expenses to medical appointments, including $5.07 paid in road tolls (First Claim). On 21 November 2022, a delegate of the Department accepted the applicant's claim in relation to two appointments, however did not pay the applicant for the road toll. On 23 March 2023, pursuant to s 347 of the Act, the Department reconsidered the decision made on 21 November 2022, and varied the decision to allow the reimbursement of road tolls in the amount of $5.07.

3    On 21 February 2023, the applicant lodged a claim with the Department for the reimbursement of travelling expenses, including $5.07 paid in road tolls (Second Claim). On 13 March 2023, a delegate of the Department accepted the applicant's claim in relation to various appointments but did not reimburse the road toll. On 30 March 2023, the decision made on 21 February 2023 was reconsidered and the road toll was reimbursed in the amount of $5.07.

4    The applicant is particularly aggrieved because this is not the first application he has brought with respect to the payment of road tolls. An earlier application, QUD142/2021, was brought on 27 April 2021, and resolved before a substantive hearing. The applicant therefore also complained that he needs to repeatedly bring applications in the Federal Court to be reimbursed for road tolls.

These proceedings 

5    The applicant was self-represented in these proceedings. His amended originating application (AOA) ran to 95 paragraphs. He sought the following orders pursuant to the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act):

53.    A declaration that s290 of the MRCA commits the Commonwealth is liable to pay compensation for any costs reasonably incurred if sub clause criteria are met.

54.    An order that "Road Tolls" are a reasonably incurred cost in accordance with s290 of MRCA.

…

56.    An order the Respondent/s are to act according to law.

57.    A declaration that s293 of MRCA does not include road rolls in the per kilometre rate.

58.    A writ of mandamus that decision of the First Respondent on costs for journey for treatment be made in accordance with the MRCA and Acts Interpretation Act.

59.    A writ of mandamus that the Second Respondent change policy, information on website(s), and online travel claims portal to be in accordance with the findings of the court and these orders.

60.    An order the Respondent widely publish that "Road Tolls" are a claimable and payable reasonably incurred cost in accordance with MRCA.

61.    A declaration that MRCA does not specify travel claims need to be made within 12 months of travel.

62.    An order that costs be awarded to the Applicant.

6    The applicant also sought the following orders pursuant to the Judiciary Act 1903 (Cth):

88.     A declaratory order that the Respondent/s failed to make a decision nor give reasons for decision that complied with law.

…

91.    A writ of mandamus that the Respondent/s conduct in denying Veteran entitlements is unconscionable.

92.    A declaration that the Respondent/s must act according to Law.

93.    A writ of mandamus that the Respondent/s are to notify all MRCA Veterans road tolls have been incorrectly denied for the applicable period. And that any affected claimants should re apply for this claim.

94.    A Penal Notice be issued preventing the Minister for Veterans' Affairs or other persons refusing, neglecting, or disobeying the orders of the court.

95.    An order that costs be awarded to the Applicant.

7    The AOA attached a number of documents including the transcript of a case management hearing (CMH) in QUD142/2021, the matter referred to above.

8    The Commission sought summary judgment by an interlocutory application filed on 25 May 2023 (Summary Judgment Application) in the following terms:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 and r 26.01(1)(a) of the Federal Court Rules 2011, there be summary judgment in relation to part or all of the proceeding.

2.    In the alternative to order 1, an order pursuant to r 16.21(1) (b) and/or (d) of the Rules that parts of the Applicant’s Amended Originating Application for Judicial Review filed on 20 April 2023 be struck out in the manner as identified in the marked up pleadings Annexed to this Interlocutory Application.

3.    The parties are to bear their own costs.

 (emphasis in original)

9    On 29 May 2023, the applicant also filed an interlocutory application (Default Application) which sought the following interlocutory relief:

1.    Pursuant to Federal Court rule 5.22 the First Respondent is in default.

2.    Pursuant to Federal Court rule 2.27 the following documents submitted by the First Respondent are not accepted;

(a)    lnterlocutory Application dated 24 May 2023.

(b)    Affidavit of Amanda Louise Taylor sworn 24 May 2023.

(c)    Respondents Submissions dated 26 May 2023.

3.    Costs awarded to the Applicant.

10    While the summary dismissal application was brought by the Commission, the written submissions in reply were filed on behalf of both the Commission and the Department. Additionally, the Commission and the Department were represented by the same solicitors and counsel. Accordingly, for consistency, they will be collectively referred to as the respondents where appropriate.

11    The applications were heard together on 14 September 2023. The applicant relied on his affidavits, one sworn on 14 March 2023 and two further affidavits both sworn on 16 June 2023. The Commission relied on the following material:

•    Affidavits of Fiona Ellen Dempsey sworn on 8 May 2023 and 10 July 2023;

•    Affidavits of Amanda Louise Taylor affirmed on 24 May 2023 (First Taylor Affidavit), 14 August 2023 (Second Taylor Affidavit) and 13 September 2023 (Third Taylor Affidavit);

•    Affidavit of Lindsay Jeanne Cooper affirmed on 11 July 2023; and

•    Document entitled ‘MyService Enhancement Proposal – Indicative Process and Timelines’ tendered through Ms Taylor.

12    One witness was called by the applicant, Ms Amanda Taylor (Ms Taylor), who is the Assistant Secretary, Litigation and Advice Breach, General Counsel Division at the Department of Veterans' Affairs.

13     For the reasons that follow, summary judgment is ordered against the applicant. The applicant's amended originating application and interlocutory application are dismissed.

LEGISLATIVE SCHEME

14    The Commission is established by s 361 of the Act. Pursuant to s 362 of the Act, it has a range of functions including making determinations relating to the payment or provision of compensation.

15    Section 5 defines "compensation" as compensation under the Act, including pursuant to treatment provided under Chapter 6. Section 269, which provides an outline to Chapter 6, states that "Compensation for costs incurred in travelling to obtain treatment is also provided for".

16    Division 2 of Part 4 of Chapter 6 of the Act establishes the criteria for when compensation is to be paid for costs incurred when travelling to obtain compensable treatment. Relevantly, s 290 states the following:

290 Compensation for journey costs relating to treatment

Compensation for costs of a patient’s journey

(1)    The Commonwealth is liable to pay compensation for any costs reasonably incurred if:

(a)    the costs are incurred in respect of a journey that is made by a person that is necessary for the person to obtain compensable treatment for an injury or disease of the person; and

(b)    any one or more of the following applies:

(i)    if the journey is by ambulance services—the person’s injury or disease reasonably requires using those services; or

(ii)    the journey is by public transport; or

(iii)     if the journey is by means other than public transport or ambulance services—it is unreasonable for the person to use public transport having regard to the nature of the person’s injury or disease, or public transport is unavailable; or

(iv)    the reasonable length of the journey (including the return part of the journey) exceeds 50 kilometres; and

(c)    a claim for compensation in respect of the person has been made under section 319.

Note 1: Section 289 defines compensable treatment.

Note 2: This subsection might be affected by the following provisions:

(a) section 292 (journeys etc. outside Australia);

(b) section 293 (amount of compensation).

17    Section 293 of the Act specifies how the Commission is to calculate that amount of compensation that must be paid. At the time the application was lodged, the provision was in the following form:

293 Amount of compensation for journeys

(1)    The amount of compensation that the Commonwealth is liable to pay under section 290 (compensation for journeys) is the amount determined by the Commission to be the amount reasonably incurred in respect of the journey.

(2)    In determining an amount under subsection (1), the Commission may determine the amount of compensation using the following formula:

Specified rate per kilometre times x Length of the journey in kilometres

Note:     For example, the Commission might use the formula if a person used a private vehicle to make a journey, but not if a person flew on a commercial airline.

(3)    In this section:

length of the journey in kilometres means:

(a)    if only subparagraph 290(1)(b)(iv) or (2)(c)(iv) applies—the number of whole kilometres the Commission determines to be the reasonable length of the journey that it was necessary to make; and

(b)    otherwise—the length of the journey in kilometres.

specified rate per kilometre means the rate per kilometre that the Minister, by legislative instrument, determines for the purposes of this section.

Note:     The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).

18    Section 293 of the Act was later amended by the Veterans’ Affairs Legislation Amendment (Miscellaneous Measures) Act 2023 with effect from 29 June 2023. The Act now provides:

293 Amount of compensation for journeys

(1)     The amount of compensation that the Commonwealth is liable to pay under section 290 (compensation for journeys) is the amount determined by the Commission to be the amount reasonably incurred in respect of the journey.

(2)    In determining an amount under subsection (1), the Commission may determine the amount of compensation using the following formula:

Specified rate per kilometre x Length of the journey in kilometres

Note:     For example, the Commission might use the formula if a person used a private vehicle to make a journey, but not if a person flew on a commercial airline.

(3)    In this section:

length of the journey in kilometres means:

(a)    if only subparagraph 290(1)(b)(iv) or (2)(c)(iv) applies—the number of whole kilometres the Commission determines to be the reasonable length of the journey that it was necessary to make; and

(b)    otherwise—the length of the journey in kilometres.

specified rate per kilometre means the rate per kilometre specified in an instrument under subsection 16(6) of the Safety, Rehabilitation and Compensation Act 1988 (as that instrument is in force from time to time).

19    Section 295 specifies the matters which the Commission must consider when determining claims made under this part of the Act:

295 Matters to be considered in journey and accommodation compensation claims

In determining issues arising under this Division, the Commission must have regard to the following matters:

(a) the places where appropriate treatment was available to the person;

(b) the means of transport available to the person for the journey;

(c) the means of transport appropriate for the person to take for the journey;

(d) the routes by which the person could have travelled;

(e) the accommodation available to the person at the place to which the journey was made;

(f) any other relevant matters.

20    Pursuant to s 333(b) of the Act, the Commission must determine a claim in writing in accordance with the Act. Pursuant to s 346(1) of the Act, once a determination has been made, the Commission must give written notice to the person who made the claim setting out the terms and reasons of the determination.

21    In accordance with s 347 of the Act, the Commission may reconsider a determination made by the Commission of its own initiative, including by revoking, confirming or varying the determination.

22    Claimants have the right to seek review of a determination including by making an application to the Veterans' Review Board (VRB) under s 352 of the Act, and then to the Administrative Appeals Tribunal (AAT) pursuant to s 354 of the Act.

APPLICANT’S INTERLOCUTORY APPLICATION

23    It is convenient to first deal with the Default Application which the applicant pressed at the hearing.

24    For context, by an order dated 8 May 2023, the Commission was required to file any summary dismissal application and supporting evidence by 19 May 2023. The application and supporting evidence were filed on 25 May 2023, and submissions were filed on 26 May 2023. The applicant sought an order pursuant to r 5.22 of the Rules that the Commission was in default for failing to comply with the order, and an order pursuant to r 2.27 of the Rules that the interlocutory application, supporting evidence and submissions not be accepted for filing.

25    On 11 July 2023, I made an order that the date for compliance with the order requiring the Commission to file its summary judgment application and evidence be amended to 26 May 2023. By reason of this order, the Commission was no longer in default, and therefore no order should be made pursuant to r 5.22 that the Commission was in default. Furthermore, the order that the applicant sought pursuant to r 2.27 of the Rules is, respectfully, misconceived in circumstances where the document was already accepted for filing by the Registry at the point in time at which the applicant filed the Default Application.

26    It is regrettable that the Commission was late in filing the Summary Judgment Application. However, the delay was relatively short and I am not satisfied that the applicant suffered any prejudice by reason of the delay. Accordingly, the Default Application is dismissed.

SUMMARY JUDGEMENT

Relevant principles 

27    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), the Court has the power to give judgment against a party in relation to the whole of the proceeding or part of the proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Pursuant to s 31A(3) of the Federal Court Act, the proceeding does not need to be hopeless or bound to fail for it to have no reasonable prospect of success. A party has the right to bring a summary judgment application pursuant to r 26.01 of the Federal Court Rules 2011 (Cth).

28    In determining whether or not there is a reasonable prospect of success, the Court is not required to conduct an enquiry into whether a determination could be made that the proceeding might fail, but rather if there is a "reasonable" prospect of prosecuting the proceeding: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [52] (Hayne, Crennan, Kiefel and Bell JJ). How "no reasonable prospect" is to be understood was discussed in Spencer at [59]:

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

29    Caution ought be exercised when exercising power pursuant to s 31A(2) of the Federal Court Act, particularly in circumstances where there is a complex question of fact or law: Upaid Systems Ltd v Telstra Corp Ltd [2016] FCAFC 158 at [48]. Similarly, caution should be exercised when the proceedings have been instituted by a self-represented litigant: Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [57] (Reeves J); Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 (McKerracher J); Haque v Jabella Group Pty Ltd [2016] FCA 962 at [36]- [38] (Bromwich J).

Evidence

30    The evidence of Ms Taylor, from her affidavits, evidence in chief and cross examination relevantly included that:

    The Department administers the functions of the Commission;

    The applicant’s First Claim and Second Claim had been paid as a result of a reconsideration. The reconsideration of the First Claim was undertaken at the behest of the Commission on its own initiative. The reconsideration of the Second Claim was undertaken as part of a general practice of review and oversight;

    A process to improve the ability of veterans to make claims is underway but will take time as it involves changes to the online portal which may only be made by request to Services Australia which has a shared services agreement with the Department;

    In the meantime, the Department’s website includes a section for road tolls which states ‘If you have a receipt or statement confirming the cost incurred, you can include the details in the ‘comments’ section of the MyService portal for consideration’;

    Between 18 December 2018 and 30 March 2023, the applicant has been paid in excess of 30 toll claims – some at first instance and some on reconsideration; and

    Processing claims involves the following:

(a)    the claims are submitted either by way of the MyService portal, email or hard copy claims form;

(b)    when received, they are allocated based on the relevant legislation;

(c)    departmental staff access a separate portal which contains information relevant to the particular applicant, such as the accepted conditions and the applicable legislation, to assess the eligibility of the applicant;

(d)    once eligibility is assessed, departmental staff access an Excel spreadsheet into which information from the MyService portal is entered to determine the eligible monetary figure payable;

(e)    departmental staff access a separate portal named “Dollars” and input information such as the monetary amount payable, what the payment relates to, the claim number and the identifying details of the applicant. Once this is submitted, a “number” is provided which is entered into the Excel spreadsheet;

(f)    the departmental staff access a pro forma letter and insert the relevant information from the submitted claim form; and

(g)    the letter is signed and sent to the applicant.

    At the various stages of the claims processing, there exists the possibility of human error as each process is undertaken manually;

    Even when changes are made to the portal, the process will not be completely free of the possibility of human error;

    In order to determine whether there are claimants who have not received road toll claims payable to them, the Department would need to consider every claim manually as they are not recorded electronically.

31    Ms Taylor’s evidence is accepted. I found her to be a credible witness. At all times, Ms Taylor attempted to assist the Court. She had taken steps to familiarise herself with, and understand, the steps involved in relation to the issues before the Court.

32     As the evidence of the respondents discloses, the applicant had opportunities to amend his AOA and elected not to do so. Accordingly, his case is confined to that which is before the Court. Correspondence annexed to the affidavit of Ms Cooper also made it plain that the respondents considered the case to be futile and that the errors made by it in assessing the applicant’s road toll claims have been recognised and rectified.

33    I also note that in neither of the original decisions, made on 21 November 2022 and 13 March 2023 respectively, by which the road tolls were not paid, was any statement made by the delegate to the effect that road tolls were unable to be paid, or that the applicant was ineligible to be paid road tolls. I also note that the applicant did not seek review of either of those decisions before commencing these proceedings.

34    The applicant’s evidence relevantly included that:

    he had made a travel claim to the Commission on 21 February 2023 which included $5.07 for road tolls and, despite being told at a case conference held on that date that the Commission maintained its position that road tolls were a reasonable expense, on 13 March 2023, he received a determination which did not include the claimed road toll;

    the Department’s “claim for travelling expenses” form he accessed on 14 March 2023 included a section for road tolls to be claimed whereas the online claim form contains no appropriate place for such a claim. The applicant considers this to be incorrect and inconsistent with the Act and with what the respondents had previously told the Court;

    that the relevant website wrongly stated that the Department does not reimburse for road tolls;

    that from time to time, the online claims portal stated words to the effect that “road tolls are not reimbursed for your selected condition” and “due to your card type or condition(s), you cannot claim for road tolls” which was incorrect;

    on 15 June 2023, he observed the Department’s travel claim section of the online portal to state “To be reimbursed for travel costs, you must lodge the form within 12 months after you completed your travel”, which he believes to be incorrect and inconsistent with the Act;

    that he had been erroneously advised that road tolls were included in the deemed private kilometre rate set by the Act. Such erroneous advice had from time to time been displayed on the Department’s website;

    that in respect of the initial decisions in relation to the First Claim and Second Claim, he has not been provided with reasons;

    that many other veterans may also have received incorrect information in the same way as he has;

    as a result of incorrect information being available, veterans will either fail to access entitlements or experience a delay in accessing them;

    that he, and other veterans, were entitled to certainty as to the circumstances in which road tolls would be paid;

    he believes it is the responsibility of the respondents to provide correct information to veterans so that they may properly access and claim their entitlements; and

    that the respondents had delayed these proceedings so that they could rectify the errors thus frustrating the Court’s process in reviewing the conduct by “denying him standing”.

Concessions made by the Respondents

35    In their written submissions, and repeated in substance in open Court, the respondents conceded the following:

1.    First, claims for road tolls costs in respect of travel journeys for compensable treatment can, depending on the circumstances, be compensable under s 290 of the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA). The Commonwealth is liable to pay compensation for any journey costs within Australia reasonably incurred under s 290 (including for reasonably incurred road tolls) where the statutory conditions are met. This means the conditions in ss 290 and 293 must be satisfied, the decision maker has had regard to the mandatory factors in s 295 and the claim is not otherwise excluded by the MRCA (ie such as by s 292 which excludes compensation for overseas travel).

2.    Second, the Applicant had a statutory entitlement to a written notice setting out the terms and reasons for s 290 decisions, such as those of 21 November 2022 and 13 March 2023. This arises under s 346(1)(b) of MRCA for ‘original determinations’.

3.    Third, it is not evident that the ‘per kilometre rate’ in s 293(2), set by the Military Rehabilitation and Compensation (Specified Rate per Kilometre) Determination 2020 (the MRCA 2020 Determination), was calculated with reference to road tolls (although it is calculated with reference to a range of other vehicle operating expenses). However, it is also not clear that any pleaded claim of the Applicant’s has or may have been rejected for this reason.

4.    Fourth, the Commission agrees that the statement in the claim form referred to at AOA[34] that a claim ‘needs’ to be sent within 12 months of travel is not correct. However, as above, it is not connected on the pleadings with the Commission’s disposition of any of the toll claims made by the Applicant.

(emphasis in original)

(footnotes omitted)

Submissions

36    The AOA as drafted, together with attachments, incorporated submissions and material more properly described as evidence. From those and the applicant’s affidavits and written and oral submissions, it was possible to discern his case. As has been set out above, some of the applicant’s submissions have been met with a number of concessions made by the respondents.

37    Notwithstanding what is set out in the AOA and paragraph 32 above, the applicant ultimately submitted that his application relates both to the conduct and decisions of the respondents.

38    Despite the reconsiderations made by the respondents in relation to the First Claim and Second Claim, the applicant submitted there was continued uncertainty as to his ability and that of other veterans to claim road tolls. He submitted that the respondents continued to rely on s 293(2) of the Act as being the basis upon which they would, in the future, maintain that road tolls are included within the private vehicle allowance, contrary to advice he had otherwise received from the respondents, and to statements made in open Court.

39    The applicant also contended that the respondents’ conduct in paying the relevant claims and acknowledging the errors of the process was an attempt to deprive him of “standing”.

40    With respect to the Act, the applicant claimed he has still not received reasons for what he describes as the earlier determinations. He submitted that, pursuant to s 290 of the Act, the “Commonwealth” is liable to pay compensation for any costs reasonably incurred and that the rules referred to on the Department’s website with respect to reimbursement of travel claims are not relevant. Rather, he submitted, what is relevant to the determination is the Act.

41    The applicant submitted that pursuant to s 25D of the Acts Interpretation Act 1901 (Cth), the respondents have failed to “set out findings on material questions of fact and refer[red] to the evidence or other material on which those findings were based”.

42    The applicant also submitted that the respondents had breached the rules of natural justice, made decisions involving errors of law and without evidence to justify them, and that left the applicant in a position of uncertainty with respect to the future exercise of their powers. In the applicant’s submission, this was so notwithstanding the rectification by the respondents of their earlier failure to pay the road tolls the subject of these proceedings. The applicant contended that this uncertainty would persist without orders of the Court. Such orders should, in the applicant’s submission, include orders at large to rectify any future errors. In support of this submission, the applicant drew the Court’s attention to the fact that some of the conduct about which he complained continued throughout the duration of this matter. Such conduct included, in the applicant’s submission, the ongoing failure to provide reasons for the initial refusals of the tolls. The applicant relied upon the following passage from Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 as authority for his proposition regarding the need for the Court to make orders:

…a person is entitled to have a first instance body exercise its jurisdiction lawfully and fairly… There are some people who, for want of funds, courage or patience will not contest unlawful or unfair decisions, whether by appeal or by judicial review…The courts should therefore not too lightly ignore infractions, committing parties to the expense, delay and inconvenience of an appeal where a serious injustice may have been done at first instance. Unless corrected, such injustices may persist. They may recur in the case of others who may simply accept them.

43    The applicant submitted that the issues raised involve statutory interpretation, which is why he sought judicial review rather than merits review. In his submissions, the applicant referred the Court to the statements made by Logan J contained in the Transcript of the CMH held in QUD142/2021 quoting as follows:

…The other thing about which one needs to be mindful is no veteran, really, in his right mind, or her right mind, would ever want to be injured to become subject to either military compensation. Or wounded, to be subject to veterans’ entitlements. But their entitlements [sic]. They’re not acts of grace. Or charity. They’re entitlements in response to service to our country. And that sends a message in terms of the approach to statutory construction as well…

44    A further argument was advanced by the applicant that the First Taylor Affidavit, Second Taylor Affidavit and Third Taylor Affidavit filed in support of the Summary Judgment Application should be "excluded" as they contain hearsay as defined by the Evidence Act 1995 (Cth). The applicant contended that in those affidavits, Ms Taylor deposed to knowledge that has been provided to her by other people and which was not accurate.

45    Pursuant to s 75 of the Evidence Act, the hearsay rule (contained in s 59 of the Evidence Act) does not apply in interlocutory proceedings where the party who adduces it also provides evidence of its source. Therefore, it is not an evidentiary bar that those affidavits might include hearsay evidence. Where Ms Taylor was not able to affirm evidence based on her own knowledge, she cited the source of that knowledge, which was generally the departmental staff who have compiled information about the applicant's claims. Furthermore, much of the evidence annexed to Ms Taylor's affidavits is comprised of Commonwealth records which, pursuant to s 182(1) of the Evidence Act, are exempted from the hearsay rule. The respondents also referred to s 81 of the Evidence Act which provides that the hearsay rule does not apply in relation to evidence of an admission, which forms a significant portion of Ms Taylor’s evidence. I do not consider that there is anything contained in those affidavits which should be struck out or "excluded" on the basis of hearsay.

46    Ultimately, the applicant did not press his objection with respect to the evidence in question, conceding that Ms Taylor’s affidavits were not fatal to his case.

47    The respondents submitted that summary judgment should be granted as the proceeding is futile. Any errors made have been acknowledged by the respondents and rectified. The respondents submitted that given the lack of controversy surrounding the key issues, there is no reason to infer that, contrary to the applicant's submissions, he will only be able to be paid road tolls if he seeks judicial review before the Federal Court, or that review avenues cannot address any future errors that may occur. The respondents also submitted that much of the conduct about which the applicant complains is insufficiently proximate to any relevant decision. With respect to the relief sought by the applicant, the respondents submitted it was “inapposite” for a variety of reasons. In the circumstances, the respondents submitted, the applicant has no reasonable prospects of making out that an error of law has occurred.

CONSIDERATION

ADJR Act Claims

48    The AOA contains the following conduct as providing the basis upon which the relief referred to in relation to the ADJR Act is sought:

27. The Respondent’s Liability Handbook states “It is RCG policy to give clients who are to receive an adverse decision, advance warning of that likely outcome. The purpose of that policy is to give that client the opportunity to submit new evidence in the light of your interpretation of the evidence (or lack of it)”. “The suggested means of giving this advance warning is for the Delegate to phone the client and discuss the case, the proposed decision and the reasons for that decision”. The Respondent did not afford the Applicant this opportunity.

…

37. It appears that the only way the Applicant can get a road toll paid is by initiating Federal Court processes i.e. The Respondent/s website and online claims portal instruct Veterans they cannot claim road tolls, the Applicant makes a claim for road tolls, the Respondent/s ignore the claim (do not make a decision), the Applicant commences Federal Court processes, the Respondent/s state to the Court they believe “road tolls are a reasonable travel expense under MRCA”, the Respondent/s review the original determination, then the Applicant gets the claim paid.

38. Breaches of natural justice have occurred, are occurring, and are likely to occur.

39. Errors of law have been, are being, and likely to be made.

40. Justice delayed is justice denied.

41. There is no evidence or other materials to justify the making of the proposed decision.

…

44. It is an accepted tenant of Administrative Law that consistency and certainty in administrative decision making are desirable goals, especially in relation to discretionary powers, and that the adoption of guiding policies is something to be encouraged. This is especially so in areas of high volume decision making. However, such policies must be lawful and cannot be blindly applied. The applicant submits the conduct of the Respondent/s is inconsistent and unlawful without fact or basis.

…

47. The Respondent/s repeatedly failed to make a decision (s7 ADJR).

48. Through failure to make a decision the Respondent/s have attempted to reject the Claim by stealth.

(emphasis in original)

49    It would therefore appear that the applicant relies upon ss 6(1)(a), (b), (c), (f) and (h) of the ADJR Act as follows:

6 Applications for review of conduct related to making of decisions

(1)    Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;

(b)    that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)    that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

…

(f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;

…

(h) that there is no evidence or other material to justify the making of the proposed decision;

50    The applicant also referred to s 6(2)(h) of the ADJR Act which provides that a reference to an improper exercise of power in s 6(1)(e) of the ADJR Act refers to ‘an exercise of power in such a way that the result of the exercise of the power is uncertain’.

51    As to the applicability of s 6 of the ADJR Act to these proceedings, the applicant submitted that the conduct referred to in that provision is applicable regardless of the reconsideration of the original determinations. He further contended that ss 5(1)(a), (f) and (h) of the ADJR Act are applicable.

52    For the following reasons, the applicant’s application under the ADJR Act must fail.

53    With respect to paragraphs [37], [44], [47] and [48] of the AOA, they are, as the respondents contended, internally inconsistent. However, it is clear that the applicant is expressing understandable frustration with the time it has taken for him to be paid the claimed road tolls, and the inaccurate information he has received, either by virtue of accessing the website or online portal or in correspondence.

54    First, the claim with respect to a breach of natural justice, contained in the AOA [27] and [38] refers to what the applicant describes as the Department’s Liability Handbook. It contains a statement that, in the event a client is to receive an adverse decision, that client is to be notified in advance, including in order that additional evidence can be submitted should the client wish to do so.

55    The respondents’ submission, which I accept, is that the statement contained within the Liability Handbook to which the applicant referred is not applicable to claims made under s 290 MRCA, but rather to initial liability claims made under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) and is accordingly not relevant. It is therefore not applicable to the grounds contained in the AOA.

56    In Kioa v West (1985) 159 CLR 550; [1985] HCA 81, the High Court discussed the “flexible” nature of the rules of natural justice as follows:

…it would be wrong to attempt to give an exhaustive classification of the cases to which the rules should be applied. The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans; National Companies and Securities Commission v. News Corporation Ltd.

…

In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2], per Jacobs J.

…. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

…

The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.

…

The notion of natural justice is somewhat vague because of its variable content, but it is a notion which is hallowed by time, entrenched in our jurisprudence and provocative of the definition of procedural rules governing the exercise of particular powers in the generality of cases.

(footnotes omitted)

57    As to the conduct of a delegate in the circumstances of this case, acting in accordance with the rules of natural justice, the respondents submitted that there was no requirement that the delegate contact the applicant and provide him with the opportunity to advance further evidence. As was stated by Mason J in Kioa:

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

58    In this case, the applicant was owed two claimed road tolls, each $5.07. Given that the monetary value was small and the Act contains no requirement that in such circumstances a further opportunity to provide evidence should be given to a claimant, the applicant’s case does not support a finding that he was denied natural justice.

59    Furthermore, no review was sought in accordance with the processes set out in the Act, which includes a right of review by the VRB.

60    Secondly, much of the conduct upon which the applicant relied upon is not that which is contemplated by s 6(1) of the ADJR Act. As Maron J stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 341 – 342 stated:

In its setting in s. 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. …

… In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. …

61    The conduct in this case lacks the necessary procedural nature. Rather, it encompasses “decisions made along the way”. It is also difficult to see how the conduct complained of here has the requisite degree of proximity to the decisions to which it is said to relate: Schlaepfer v Australian Securities and Investment Commission [2017] FCA 1122 at [52].

62    Thirdly, as submitted by the respondents, a number of paragraphs referring to conduct in the AOA, for example those of AOA [38], [39] and [41], are drafted very generally and do not have any connection to conduct (or a decision) that is, or is proposed to occur, in connection with a road toll claim by the applicant. There are no outstanding claims for road tolls.

63    As was said by Collier J in Alders v Tax Agents’ Board of Queensland [2006] FCA 1442 at [13]:

Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson & Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of £300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed:

‘There is, therefore, now no real contest between the parties as to the right to that £300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that £300 are not now in actual controversy … we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.’ (at 394)

64    This is a case where there is no current controversy between the parties.

65    However, as noted by her Honour in Alders, there are circumstances where the public interest would be served by a determination being made, and the Court retains a discretion in that regard. In this case, the respondents contended that the public interest which arises could be properly dealt with in the course of the hearing and determination of the summary dismissal application.

66    The applicant, at least implicitly, made submissions that this is a case where the public interest would be served because other veterans could be affected. He attempted to introduce into evidence an email which he claimed was from a client service officer to another veteran wherein the client service officer responded to a road toll claim with “We do not pay road tolls under MRCA”. However, the email in the form tendered was inadmissible.

67    There is a further public interest in ensuring the appropriate and proportionate use of judicial resources.

68    As has already been referred to, the relevant legislation has been amended. According to the explanatory memorandum, it appears this amendment was introduced to ensure that there exists consistency in the reimbursement of medical treatment related travel costs under the compensation schemes of the Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth). Given the concessions made, and furthermore that the decisions relating to the conduct complained of have now been remade, it is neither necessary nor appropriate for the Court to intervene. Once a decision has been made, there is a lack of relevance and utility in subjecting the preceding conduct to review; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 378 (per Toohey and Gaudron JJ); Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20 (Sackville J). The decision itself is the one which ought to be challenged; Ozmanian at 22 – 23 (Sackville J).

69    In respect of the claims under the ADJR Act, the applicant sought the relief set out in paragraph 5 above.

70    Pursuant to s 16(2) of the ADJR Act, the Court’s discretion extends to the making of any or all of the following orders:

16    Powers of the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) in respect of applications for order of review

…

(2)    On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make either or both of the following orders:

(a)     an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

71    As observed in Lamb v Moss (1983) 5 ALD 446; [1983] FCA 264 at 461:

However, the natural meaning of the language used is apt to confer upon the court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; cf. Evans v Friemann (1981) 35 ALR 428 at 435, per Fox ACJ and Cox v Lightly (unreported judgment of Neaves J delivered on 1 July 1983). The words “in its discretion”, are emphatic of the discretionary nature of the court's power.

72    The respondents correctly submitted that the form of the declaratory relief sought by the applicant in AOA [53], [54], [56] and [57] was incorrect and unclear given the pleaded conduct. However, more importantly, the declarations are futile: Mbuzi v Baldwin [2016] FCA 1314 [35] – [36]. The appropriateness of making a “bare declaration”, not declaratory of any present right and amounting only to an acknowledgement of past infringements of a right to (in that case) “procedural fairness”, was discussed in Ozmanian by Kiefel J. At 31, her Honour stated:

Even if one were to read s 16(2)(a) of the ADJR Act as not confined to a declaration as to the present rights of the parties, it would usually either have attached to it consequential directions or orders, or the terms of the declaration itself would make clear to those concerned what was to follow.

…I do not however detect from the judgments a view that a declaration was appropriate if it had no practical consequences. In the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ (at 582) their Honours reaffirmed the statement of principle in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 that leave would not be granted if “the Court's declaration will produce no foreseeable consequences for the parties”. The statement in Gardner's case, to which their Honours made reference, was made in the background of arrangements which were no longer in operation by the time the matter came to Court and which had been superseded by further legislation…

73    Further, to the extent that the applicant is seeking a declaration that road tolls will always be an expense reasonably incurred under the Act, as the respondents in their submissions in reply correctly make clear, it is not possible for the Court to make such a declaration. The respondents acknowledged that a road toll can be an expense reasonably incurred, but that is a question which has to be evaluated with respect to a claimant’s individual circumstances and the journey in question. The respondents noted various considerations to be taken into account under the Act and provided examples of instances where a toll may and may not be reasonably incurred, subject to the unique circumstances of each case. One of these examples referred to how a toll might not be reasonably incurred where a claimant took an indirect route but might be reasonably incurred in another instance if roadworks rendered the direct route unavailable. Another example referred to an instance where a toll may be reasonably incurred for a journey under 50km by car but may cease to be reasonably incurred where the person’s injury or disease improves such that it becomes reasonable for them to take public transport.

74    As such, while s 290 of the Act should be beneficially construed to encompass the payment of road tolls, the question as to whether a road toll will be compensated in any particular situation is a matter of independent evaluation, rather than statutory interpretation.

75    As to the writs of mandamus sought at AOA [58] and [59], s 16(2) of the ADJR Act provides no basis for the making of such orders, nor are they, and the orders sought at AOA [60], necessary “to do justice between the parties”: s16(2)(b).

76    With respect to the declarations sought at [61] of the AOA, whilst the statement contained therein is correct, it does not address the rights of the parties as set out in the AOA.

77    Accordingly, the ADJR Act application should be dismissed as the applicant has no reasonable prospects of successfully prosecuting the proceeding.

Judiciary Act Claim

78    The applicant’s AOA also sought relief by way of s 39B of the Judiciary Act. The orders sought in that regard are set out in paragraph 6 above.

79    In seeking that relief, the applicant relied on the following grounds:

73.     The Respondent’s Liability Handbook states “It is RCG policy to give clients who are to receive an adverse decision, advance warning of that likely outcome. The purpose of that policy is to give that client the opportunity to submit new evidence in the light of your interpretation of the evidence (or the lack of it)”. “The suggested means of giving this advance warning is for the Delegate to phone the client and discuss the case, the proposed decision and the reasons for that decision”. The Respondent did not afford the Applicant this opportunity.

…

81.     The Decision of the Respondent/s is made by an officer or officers of the Commonwealth (s39B(1)).

82.     The MRCA is a law made by Parliament which the Federal Court of Australia has jurisdiction (s39B(1A)(c)).

83.     s333(b) of MRCA requires the Respondent to "determine the claim in writing in accordance with this Act". The Applicant is entitled to written reasons for the decision in accordance with s333 of MRCA and s25D of the AIA 1901 that sets out the findings of material questions of fact and refer to the evidence or other material on which those findings were based. The reasons for decision supplied by the First Respondent do not set out the finding of fact or the evidence or other material with relation to tolls being included in the per km rate, so the Applicant can not understand how the decision was made. Without all of the proper information detailed in the decision, the Applicant can not understand how the decision was arrived at and the conduct of the first respondent creates an uncertainty.

84.     s346 of MRCA requires the Respondent to provide the Applicant written notice setting out "(a) the terms of the original determination; and (b) the reasons for the original determination".

85.     ln making the Decision the Respondent did not set out the findings on material questions of fact and refer to evidence or other material on which those findings were based (s25D Acts Interpretation Act 1901).

86.     s346 MRCA enlivens s25D of Acts Interpretation Act 1901 which states “Content of statements of reasons for decisions. Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”.

87.     ln making the Decision the Respondent did not set out findings on material questions of fact or refer to the evidence on which those findings were based.

80    The applicant’s AOA again referred to the Liability Handbook as providing a basis for claiming a breach of natural justice. It also made reference to a failure to provide reasons [83] – [87] and a failure to make a decision [88].

81    However, the grounds set out appear to relate only to the respondents’ failure to provide reasons.

82    The application made pursuant to the Judiciary Act must fail for the following reasons.

83    To the extent that the applicant claims to have been denied procedural fairness, for the reasons set out at paragraphs 54 to 59 above, no error has been made. Similarly, there is no error with respect to a failure to make a decision. As has been set out above, the respondents agree that the applicant should have been provided with reasons for its original determinations of November 2022 and March 2023. To seek them now is futile. Furthermore, s 346(6) of the Act provides as follows:

346 Notifying original determinations

…

(6) A failure to comply with this section does not affect the validity of determination

84    As to the lawfulness of the respondents’ conduct, the respondents also noted that the conduct referred to by the applicant is hypothetical or, in any event, is not of a kind for which remedies pursuant to s 39B of the Judiciary Act should be provided. To that end, the respondents referred to Meredith v Commissioner of Taxation of the Commonwealth of Australia (2001) 64 ALD 120; [2001] FCA 1135 at [21]:

The so-called decision is at best the formation of an opinion or intention which is not provided for in the Act. It has no statutory significance. It is therefore not amenable to being quashed or set aside which is the only relief claimed pursuant to s 39B of the Judiciary Act. The law cannot quash or set aside what people think or intend even if their thoughts or intentions are the precursors of statutory action. In so far as relief is claimed under s 39B of the Judiciary Act the claim is, in my opinion, manifestly untenable and should, in respect of this “decision” be dismissed.

85    The respondents also correctly contended that while the applicant did not seek injunctive relief, even if it were sought, it is unclear that it would serve the relevant purposes of such relief, such as to prevent damage to the applicant; Smethurst v Commissioner of Police (2020) 376 ALR 575 [71] – [72] (Kiefel CJ, Bell and Keane JJ) and [177] – [183] (Gordon J).

86    Again, as correctly submitted by the respondents, the relief sought is futile as was observed by Drummond J in Dudzinski v Rossington [2000] FCA 1659 at [8] – [10]:

As I have indicated, mandamus is claimed to compel the payment of these allowances to the applicants from the stoppage date of 8 June 2000 to 23 July 2000. The respondents explained that no payments of benefit were made to either applicant in the period 20 July to 23 July because Mrs Dudzinski was in employment from 20 July to 30 August and her income precluded entitlement to newstart allowance for her and thus to partner allowance for Mr Dudzinski for that period. Although Mr Dudzinski, to whom I gave leave to speak on behalf of his wife, disputed this, Mrs Dudzinski confirmed the accuracy of the respondents' assertion about her commencing employment on 20 July. Since 30 August, Mr and Mrs Dudzinski have once again been in receipt of partner allowance and newstart allowance respectively.

In Beitseen v Johnson (1989) 29 IR 336, the Full Court, in permanently staying an appeal, said, at 337 - 338:

“In the circumstances revealed to us there is, in the words used by the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 at 394, ‘now no real contest between the parties as to the right’ of Mr Johnson to occupy the office of assistant secretary. We do not suggest that the appellants do not genuinely desire to agitate the issues involved in the grounds of their notice of appeal. However such a desire does not satisfy the requirement indicated in Hole v Insurance Commissioner (supra) that ‘the legal right of the parties’ should now be ‘in actual controversy’. On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.”

The position of the applicants and the respondents is factually the same as that of the parties in Hole where payment before the appeal came on for hearing of the amount in dispute was held to justify the Court in refusing the appellant's request to rule on the legal rights of the parties that were in dispute in the litigation. French J, in Orison Pty Ltd v Strategic Minerals Corporation NL (1988) 81 ALR 183, applied a similar principle to summarily terminate an action under O 20 r 2 on a number of grounds, including that in the circumstances of the case before his Honour, the order sought was so patently futile that to allow the application to proceed would be an abuse of process. Moreover, it is well-established that mandamus and prohibition can be refused where, as here, it would be futile to grant such relief. See R v Williams; Ex parte Lewis [1992] 1 Qd R 643 at 658.

87    With respect to the declaration sought at AOA [88], as was stated by the Full Court in DMH20 v Minister for Home Affairs (2023) 296 FCR 256; [2023] FCAFC 31 at [20], relying on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581 – 582, “at least ordinarily, a declaration should not be granted where it will produce no foreseeable consequence for the parties”.

88    The open-ended declaration sought by AOA [92] is, in the absence of more, too vague to be one that the Court should make.

89    The relief sought in AOA [91] is not amenable to a writ of mandamus, and as submitted by the respondents, does not, together with the writ of mandamus sought in AOA [93], compel the fulfilment of a public duty; R v War Pension Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 at 242 (Rich, Dixon, McTiernan JJ); Randall and The Council of the Town of Northcote (1910) 11 CLR 100; [1910] HCA 25 at 114 (Isaacs J) .

90    With respect to the penal notice sought at AOA [94], the first bar to relief is that the Minister for Veterans’ Affairs is not a party to this matter, nor is a decision made by the Minister challenged in these proceedings. In any case, pursuant to r 41.06 of the Rules, where an order has been made which compels a person to do or not do an act or thing and the consequences of non-compliance may be committal, sequestration or punishment for contempt, the order must include an endorsement (i.e. Penal Notice) that the person will be liable to imprisonment, sequestration of property or punishment for contempt if there is non-compliance with the order. This does not arise as no orders are to be made.

91    For completeness, as to the relief sought by the applicant, I note that his AOA was not drafted by a legal practitioner but rather by the applicant himself doing his best. Acknowledging that, the applicant submitted that to the extent that the relief sought was inappropriate, the Court could grant whatever relief it thought fit.

92    While the Court is obliged to provide some level of assistance to a self-represented litigant, the distinction should be made that the Court is not to make out the litigant’s case. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; [1999] FCA 85 at [28] – [29], the Full Court summarised the relevant principles relating to self-represented litigants:

The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA. Samuels JA said this (at 14):

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

Mahoney JA made the following observation (at 27):

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."

These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497, at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.

A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397, per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, 15 September 1997, S Ct Vic/Smith J), at 6.

(emphasis added)

93    In the context of a summary dismissal application, and in circumstances where the applicant is self-represented, the Court should ‘independently’ consider whether an arguable case exists based on the material which has been put forward (Chung v University of Sydney [2001] FMCA 94 at 14, upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186).

94    In these circumstances, I am not satisfied that an arguable case exists based on the material before me. Accordingly, the applicant’s application under s 39B of the Judiciary Act should be dismissed on the basis that he has no reasonable prospect of successfully prosecuting the proceedings. In the summary dismissal application, the Commission sought that the parties are to bear their own costs. I am satisfied that such an order is appropriate in the circumstances.

95    Finally, I wish to make some general observations.

96    It is disappointing that only about three years ago, the applicant brought a similar application, QUD142/2021. In a case management hearing in that application, Logan J correctly, with the greatest respect, made it plain that this issue gave rise to a number of public interests of which the Commission and its responsible minister should be mindful. In particular, it raises the public interest of veterans’ entitlements and the well-being of veterans’ families, and the likely systemic ramifications which might flow from a failure to pay road tolls reasonably incurred. In that matter, his Honour observed that the resolution of the matter may give rise to the administrative establishment of “a very useful precedent”.

97    As has already been referred to, legislative change has occurred since the applicant brought this application.

98     As to the other issues raised by the applicant, namely as to the accuracy of the contents of the website, online claim form and portal and some correspondence, as has been set out above, they are not matters amenable to relief from this Court. However, Ms Taylor gave evidence that confirmed that some of those issues are ongoing. Ms Taylor’s evidence also included as to the efforts which were and are being made to rectify those issues and that decisions such as whether road tolls are properly payable required consideration on a case-by-case basis and would always be at risk of some human error.

99    It is also disappointing that, notwithstanding Logan J drawing the applicant’s attention to other means by which grievances might be resolved, namely by way of application to the VRB and then, if necessary, the AAT, the applicant felt obliged to bring a further application in this Court. As Ms Taylor’s evidence discloses, the applicant has had numerous claims for tolls paid over the last four years. The evidence does not support that the only way he can have tolls paid is by bringing an application to the Court, which begs consideration of the important public interest in the appropriate use of judicial resources.

100    In light of the numerous public interests which arise in this matter, it is to be hoped that the respondents will attend to upgrading the relevant website, online portal and processes attached to the payment of claims with due haste. It is also to be hoped that should the need arise in the future, the applicant exhausts review processes more properly suited to this sort of claim before coming to this Court.

CONCLUSION

101    The respondents have established that the applicant has no reasonable prospect of successfully prosecuting the AOA. As such, I am satisfied that an order should be made that the matter be summarily dismissed. It is not therefore necessary to consider the Commission’s application for strike out. The parties are to bear their own costs.

Associate:

Dated:    3 April 2024