Federal Court of Australia

Shafran v Secretary of the Department of Veterans' Affairs [2024] FCA 621

ORDERS

THE COURT ORDERS THAT:

1.    Judgment is entered in favour of the respondents against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant's interlocutory application dated 25 May 2022 is dismissed.

3.    Subject to order 4, the applicant pay the first and second respondents' costs of and incidental to the amended application dated 12 February 2021, the interlocutory application dated 4 January 2021 and the interlocutory application dated 25 May 2022, such costs to be assessed by a registrar of this Court on a lump sum basis if not agreed.

4.    If the parties seek any other costs order with respect to the proceedings, a minute of any proposed orders should be provided to Chambers within 14 days.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The Veterans' Entitlements Act 1986 (Cth) provides for the payment of pensions and benefits to veterans and their dependants, and also provides for medical and other treatment.

2    Relevantly, under the statutory regime a veteran who is in receipt of a pension under the Act may apply for an increase in that pension. The Secretary of the Department of Veterans' Affairs investigates the application for an increase and provides materials to the Repatriation Commission.

3    The Commission must then make an assessment and determine whether any increased pension is payable and the amount. In undertaking its task, the Commission shall consider all matters that it considers are relevant, which may include the materials provided by the Secretary, any evidence subsequently submitted to it, and any evidence that it takes pursuant to its statutory powers.

4    A review from the Commission's decision is to the Veterans' Review Board. For the purpose of any review, the Secretary is to prepare a report referring to the evidence under the control of the Department that is relevant to the review, and is to provide the report to the applicant for comment before it is provided to the Board. The Board in undertaking the review may have regard to the evidence that was before the Commission and any further relevant evidence. Amongst other things, it may affirm, vary, or set aside the decision, or may at any time remit the matter to the Commission for further consideration.

5    This application concerns the nature of evidence that may be referred to in the report prepared by the Secretary and so provided to the Commission and the Board.

6    I note that the Board filed a submitting notice in this proceeding. References to the respondents' submissions in these reasons are therefore references to the submissions of the Secretary and the Commission.

Mr Shafran's application for an increase in pension

7    The applicant in this case, Geoffrey Shafran, is a veteran. He has a number of accepted medical conditions and is in receipt of a disability pension at the 'special rate' and holds a 'Gold Card' which makes him eligible for treatment and care of all clinically required health care at the expense of the Department, subject to certain limitations.

8    Mr Shafran applied for an increase in his disability pension on 2 April 2018. His claim was stated as follows:

On 26 May 1988 I was kneed in the mouth while playing football for 1RAR, previously I had claimed loss of tooth for right lateral incisor and this has been accepted. After recently reviewing my dental records I now wish to claim the following conditions that originate from the same event.

1.    Loss of tooth, Upper Right Central Incisor (broken in the same event, and trimmed to gum level, this was not claimed at the time because as the root of the tooth was still in place it seemed from lay perspective it was not lost, only broken)

2.    Abrading Upper Right Canine, 2 May 89 a pin ledge was cut into 1.3 to support a bridge, I contest if I hadn't lost the right lateral incisor and snapped the right central incisor there would have been no need for a bridge and no need to damage the Upper Right Canine, previously the army dentist had fitted a cantilever bridge to accommodate 1.2, but this quickly became loose and proved to be unsatisfactory.

3.    Abrading Right Lower Central Incisor, periodically this has been ground down to accommodate the bridge.

4.    External Bruising to the top lip and nose

5.    Laceration to inside and edge of lip

The Secretary's investigations

9    The Secretary investigated Mr Shafran's claim. For that purpose, a delegate of the Secretary sought the 'diagnoses and opinions on the claimed conditions' from a Department-contracted medical advisor (referred to as a CMA) and dental advisor (referred to as a CDA).

10    The CMA provided two reports by emails dated 11 September 2018. It is apparent from the reports that the CMA had access to 'SMR entries' about an event on 26 May 1988 which referred respectively to: 'patient hit in mouth with soccer ball. Upper lip swollen'; and 'struck on head with soccer ball … was K.Oed … loss of memory … mild concussion …'. The CMA diagnoses referred to in the reports were 'contusion to lip' and 'concussion' respectively.

11    The CDA provided reports by a series of emails on 14 August 2018, 4 September 2018, and 11 September 2018, culminating in an opinion that a claim for 'loss of tooth' could be accepted as 'fracture of tooth 12', but rejecting the claims based on 'abrading upper right canine' and 'abrading lower central incisor' on the basis that there was no diagnosable condition to answer those claims.

12    These reports, together with other documents, were submitted to the Commission by the Secretary for its consideration and determination.

The Commission's decision

13    On 13 September 2018, a delegate of the Commission made a determination in relation to Mr Shafran's claim. The delegate decided to accept the conditions of contusion of the lip and concussion based on the diagnoses of those conditions by the CMA, as referred to in the CMA reports, and having regard to Statements of Principle (referred to as SOPs) relating to those diagnoses. The delegate stated that he accepted that 'fracture of tooth 12' was an appropriate diagnosis based on the opinion of the CDA, and noted that the medical evidence confirmed that the causative factors were service-related.

14    However, the delegate said he was unable to accept the balance of the claim. He said that the CMA had considered the claim and the medical evidence and advised that there is no diagnosable condition to answer the 'abrading upper right canine' and 'abrading lower central incisor'. In this regard the delegate appears to have confused the CMA and the CDA as it was actually the CDA who considered this part of the claim. However, nothing seems to turn on this apparent error. In any event, the delegate's decision included the following statement:

Evidence

The evidence that I have considered in making this decision includes:

•    Formal Claim with supporting statements;

•    A Statement of Service from the Department of Defence;

•    Copies of Service Medical Records;

•    Contracted Dental Adviser's opinion;

•    Contracted Medical Adviser's opinion.

The application to the Board for review

15    On 8 October 2018 Mr Safran filed an application for review by the Board. The application for review extended to the claims that were accepted by the Commission.

16    As required by the Act, the Secretary prepared a Report under s 137 of the Act for the purpose of the review. The Report was provided to the Board on 8 November 2018. It was provided to Mr Shafran on 14 November 2018.

17    There does not appear to be any required format for a report under s 137. The Report contains a cover sheet which attaches a compilation of Mr Shafran's personal details, details of service and details of previously accepted claims for entitlements, apparently extracted from computerised file records. There is then a separate index of documents (listed as T1 to T11 inclusive), with those documents attached. The documents include a prior Board determination relating to dental treatment. It contains the three CDA email reports referred to above (each described as a dental opinion), various documents relating to Mr Shafran's service record and various medical documents (which include dental clinical records).

18    The CMA's reports were not included in the Report. Mr Shafran wrote to the Department in May 2019 observing that although he had received a copy of the CMA's reports referenced in the decision, copies of them had not been provided with the Report. He inquired as to whether this was deliberate or an oversight. The Department representative responded, indicating that the person who prepared the Report was unavailable, but that the manager of her team had indicated it 'may' have been an oversight. In its submissions in this matter, the respondents suggested it was not necessary to provide the CMA opinions because Mr Shafran's medical claims had been accepted. Having regard to the matters discussed below, it is not necessary to determine the reason for the omission, although in light of the acceptance by the delegate of those medical claims, the respondents' submission would appear well-founded.

The first application for judicial review

19    When Mr Shafran received a copy of the Report, he was apparently dissatisfied by the manner in which the Report was compiled and the materials it contained. Mr Shafran asked the Board for a 10-year period to provide comments on the Report. In that context the Board made certain directions about the hearing of the review application. Mr Shafran then commenced separate proceedings in this Court, relevantly under s 39B of the Judiciary Act 1903 (Cth), for judicial review and relief against the Board. The Board and the Commission were parties to the proceeding. Justice Logan heard the application and granted the application in part: Shafran v Repatriation Commission [2019] FCA 1833 (Shafran (No 1)). It is not necessary to repeat his Honour's reasons in detail in order to determine the applications before me, but they provide useful context and history to veterans' statutory entitlements. It is important to observe that his Honour addressed the regime which is the subject of this application, and in particular the operation of s 137 of the Act insofar as it relates to the provision of a report and the exercise of the powers of the Board under s 148.

20    Relevantly, his Honour found that:

(a)    receipt by the Board's Principal Member of the 'relevant documents' from the Secretary is a condition precedent to the exercise by the Board of certain procedural powers in s 148;

(b)    these 'relevant documents' are defined in conjunction with s 137(4) to include the Secretary's report and, if provided, comments by the applicant and a supplementary report based on any further investigation prompted by the applicant's comments; and

(c)    it follows that the time for providing comments on a report must have expired, or comments must have been received and any supplementary report prepared, before the relevant documents are provided to the Board and its jurisdiction is enlivened.

21    As this application indicates, however, the proceeding before Logan J did not resolve all of Mr Shafran's concerns about the manner in which his claims were considered and fell to be reviewed. At the time of the hearings before me, the review by the Board had not been conducted.

Subsequent complaints about the Report

22    Meanwhile, Mr Shafran continued to complain to the Department about the manner in which the Departmental staff and delegates of the Commission had applied or failed to apply the Evidence Act 1995 (Cth) in considering his claim.

23    Mr Shafran made various requests under the Freedom of Information Act 1982 (Cth) (FOI requests) and engaged in communications with general counsel for the Department about whether the Commission and the Board are bound by the rules of evidence.

24    At the heart of Mr Shafran's complaints, as discussed with general counsel, was his view that the CMA and CDA reports provided to the Commission and the CDA reports provided to the Board by the Secretary were not evidence for the purpose of his claim. In particular, Mr Shafran contended that because the CMA and CDA reports were not 'evidence' as determined in accordance with the rules of evidence at common law or under the Evidence Act, the Secretary wrongly provided copies of those documents to the Commission and the Board.

Further application for judicial review, application for summary dismissal, application to re-open

25    On 18 November 2020, and whilst unrepresented, Mr Shafran filed an application seeking declaratory relief pursuant to s 39B of the Judiciary Act in relation to the materials provided to the Commission and the Board. He named the Secretary as the first respondent, the Commission as the second respondent, and the Board as the third respondent.

26    The first and second respondents responded by filing an application seeking summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

27    On 12 February 2021 Mr Shafran, having secured legal representation, sought to file an amended application. Leave was granted to Mr Shafran to file the amended application, but without prejudice to the respondents' right to pursue summary dismissal.

28    The relief sought in the amended application was as follows (Mr Shafran's cross-references are to an affidavit of Ms Natasha Cole of the Department filed in the proceeding):

1.    A declaratory order that the correct interpretation of section 137(1)(a) of the Veterans Entitlement Act 1986 (Cth) requires that the First Respondent [the Secretary] only includes evidence relative to the review when causing to be prepared the section 137 report. (NC-1, p14)

2.    A declaratory order that the First Respondent is bound by the rules of evidence.

3.    The court declares that the correct interpretation of section 137(1)(a) of the Veterans Entitlement Act 1986 (Cth) requires that the First Respondent does not include Contracted Medical Advisors' opinions in section 137 reports. (NC-1, P13 para 7, 8, 9, 10)

4.    The court declares that the correct interpretation of section 34 of the Veterans Entitlement Act 1986 (Cth) requires the Second Respondent [the Commission] to give written reasons setting out findings on material questions of fact, referring to the evidence or other material on which those findings are based and that for this purpose, contracted medical advisors advice are not evidence.

5.    The court orders mandamus against the First Respondent requiring that they produce a compliant section 137 report for the Applicant and a declaration that the Applicants current s 137 Report was compiled in accordance with an unlawful practice direction of the Third Respondent [the Board]. (NC-1, p17)

6.    A declaratory order that the First, Second and Third Respondents are bound by the rules of evidence in so far as the fulfilling of their respective obligations under the VEA require them to differentiate evidence from other documents and material. (NC-1 p13, para 1, 2 and 3. S25D of AIA)

7.    The court prohibits the Third Respondent from reviewing the Applicant's matter until they receive a compliant section 137 report from the First Respondent.

8.    Cost be awarded to the Applicant.

29    Despite the amendments to the application, the respondents pursued their summary dismissal application.

30    Neither the amended application filed by Mr Shafran nor two supporting affidavits particularised any grounds of review. However, in a supporting affidavit Mr Shafran said that his central concern was 'the seeking of judicial clarity on the statutory interpretation of s 137' and whether a report produced pursuant to s 137 is 'to only contain evidence, and how that evidence is so determined to be such'. He explained that the question is important because more broadly the information provided in a report by the Secretary affects what is relied upon by both the Commission and the Board.

31    Mr Shafran also stated in the affidavit that the Report relating to his claims contained material that he did not consider to be 'evidence' relevant to the review by the Board; and that he has lodged numerous FOI applications to clarify the policy and processes surrounding the compilation of s 137 reports.

32    Although a hearing of the summary dismissal application proceeded in June 2021, in May 2022 Mr Shafran filed an interlocutory application for leave to amend the amended application for relief and to reopen the hearing. This application was heard in December 2022. In summary, Mr Shafran sought to re-open the hearing because further documents had come to light that he said indicated a difference of opinion within the Department as to how s 137 might be understood. The respondents opposed the application (whilst noting that some of the 'new' information was already before the Court), but I indicated I would determine the application to rely on the additional evidence at the same time as the summary dismissal application.

33    In January 2023 and February 2023, the respondent and Mr Shafran respectively filed supplementary submissions addressing the question of whether the issue of law raised by Mr Shafran was amenable to being resolved summarily.

Statutory regime

34    It is important to refer to a number of provisions of the Act that relate to the obligations of the Secretary, Commission and Board respectively, insofar as the gathering of materials is involved.

Application triggers investigation by Secretary

35    Section 15(1) of the Act provides that a veteran in receipt of a pension may apply for an increase in pension on the ground that the veteran's incapacity has increased since the pension was last assessed.

36    Section 17(1) of the Act requires the Secretary to cause an investigation into an applicant's claim. Section 17(2) requires the Secretary on completion of the investigation to submit the claim to the Commission for its consideration and determination.

Decision by the Commission

37    Section 17(3) provides:

A claim or application submitted to the Commission under subsection (2) shall be accompanied by:

(a)    any evidence furnished by the claimant or applicant in connection with the claim or application; and

(b)    the documents relevant to the claim or application that are under the control of the Department, including any evidence or documents relevant to the claim or application obtained in the course of the investigation of the claim or application under subsection (1).

38    After the Commission receives the Secretary's submission under s 17(2), s 19 empowers the Commission to consider all matters that in its opinion are relevant, including the evidence and documents submitted with the application, in determining the claim or application.

39    Section 19(2) provides the matters that the Commission may consider in its determination:

Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:

(a)    the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);

(b)    any evidence subsequently submitted to the Commission in relation to the claim or application; and

(c)    any evidence, documents or other material furnished to the Commission under section 32.

40    Section 34 provides relevantly that when the Commission makes a decision on an application under s 15 to increase a pension, it must make a written record of its decision together with a statement in writing setting out its findings on material questions of fact, referring to the evidence or other material on which those findings are based and giving its reasons for the decision.

41    Section 119 is headed 'Commission not bound by technicalities'. Relevantly, s 119 provides that in considering, hearing, determining, or making a decision in relation to a claim, the Commission:

…

(f)    is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g)    shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h)     without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance…

…

Review by the Board

42    Section 133A of the Act is headed 'Board's objective', and provides:

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.

43    Section 135(1) provides that where a person is dissatisfied with a determination by the Commission regarding an application for an increased pension under s 15, the person may make an application to the Board for a review of the decision of the Commission.

44    Section 137 provides:

Secretary to prepare report

(1)    Within 6 weeks after an application for review made under subsection 135(1), (2) or (3) is received at an office of the Department in Australia, the Secretary shall:

(a)    cause to be prepared a report referring to the evidence under the control of the Department that is relevant to the review; and

(b)    subject to subsection (2), cause a copy of that report to be served on the applicant.

(2)    Where the report prepared by the Secretary in pursuance of subsection (1) contains or refers to any information, opinion or other matter:

(a)    that, in the opinion of the Secretary, is of a confidential nature; or

(b)    that, in the opinion of the Secretary, it might be prejudicial to the physical or mental health or well-being of the applicant to communicate to the applicant;

the document served on the applicant in pursuance of paragraph (1)(b) shall not contain or refer to that information, opinion or other matter.

(3)    Where a copy of a report is served on an applicant in accordance with subsection (1), the applicant may, within 28 days after service of the report or within such further period as the applicant may request in writing before the expiration of that period, furnish to the Secretary in writing any comments the applicant wishes to make concerning the report.

(4)    The Secretary shall forward to the Principal Member of the Board all the relevant documents, including any comments furnished to the Secretary by the applicant concerning the report served on the applicant and, if a further investigation has been made in consequence of those comments of the applicant, a supplementary report referring to any evidence obtained in that further investigation:

(a)    if the applicant duly furnishes comments in accordance with subsection (3) and no further investigation is made in consequence of those comments - as soon as practicable after receipt of those comments;

(b)    if a further investigation is made in consequence of comments furnished by the applicant - as soon as practicable after the completion of that further investigation; or

(c)    in any other case - as soon as practicable after the expiration of the period or extended period referred to in subsection (3).

45    Section 137A imposes on a party to the review an obligation to lodge copies of documents relevant to the review that have not already been lodged.

46    Section 138 provides:

Board not bound by technicalities etc.

(1)    The Board, in conducting a review, in hearing a review or in making a decision on a review of a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits and all the circumstances of the case and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)    the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii)    the absence of, or a deficiency in, relevant official records including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

(2)    The Commission may make available to the Board:

(a)    statements of principles applied by the Commission in deciding claims for pension and applications for pension and attendant allowance and increased pension and in conducting reviews under section 31; and

(b)    such other material as the Commission considers may be of assistance to the Board in the exercise of its powers or the performance of its functions under this Act.

(3)    Nothing in this section authorizes the Commission to direct the Board with respect to its consideration of a particular review by the Board.

47    Section 139 provides that the Board must make a decision:

Decision of Board

(1)    On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review.

(2)    It is the duty of the Board, in reviewing a decision of the Commission, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review.

(3)    For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing …

48    Section 140 provides that a copy of the decision under s 139 is to be given to the parties, and that the Board must give reasons either orally or in writing. A party may request that reasons be given in writing. Reasons in writing must include its findings on material questions of fact and reference to 'the evidence or other material on which those findings were based'.

49    Section 147(2) provides (in effect) that the parties are not to be represented by lawyers before the Board.

50    Section 148 sets out the procedures of the Board in undertaking a review. As discussed in Shafran (No 1), it provides that once the Principal Member receives the 'relevant documents relating to a review', they may issue notices and make directions about the conduct of the particular review.

51    Section 151 sets out the powers of the Board and its presiding member during a review. The powers include summoning a person to appear at any hearing of the review to give evidence on oath or affirmation and to produce such documents (if any) referred to in the summons.

52    Section 152 provides that the Board may request further documents in the custody of the Secretary relating to a review.

53    Section 153 provides that information received by the principal member of the Board from a party before the hearing of the review shall (subject to certain exceptions) be made available to the other party to the review.

Mr Shafran's communications with the Department and Board prior to proceedings

54    In the various affidavits, the respondents and Mr Shafran adduce evidence about numerous communications between them, particularly during July and August 2020, relating to the meaning of 'evidence' under the Act. It is apparent that Mr Shafran has a deep and genuine concern held on behalf of veterans as to the manner in which information is provided and relied upon by the Commission and the Board. It is not necessary to reproduce or address all that has been said in those communications, but there are a number of themes.

55    First, Mr Shafran made a complaint on 23 June 2020 to the Department about the application of the Evidence Act to the staff and delegates of the Commission and Board. Amongst others, the General Counsel of the Legal Services and Audit Branch of the Department responded directly to him, explaining why in its view the Commission and Board are not bound by the rules of evidence, referring in particular to s 119 and s 138 of the Act (extracted above) and to the Evidence Act which itself provides that it applies to proceedings in federal courts. General Counsel also informed Mr Shafran that CMAs and CDAs assist delegates to understand the medical evidence relevant to a claim and the application of any technical criteria or instruments, such as applicable statements of principle (in this regard I note that the CMA referred to two statements of principle in their reports).

56    Second, Mr Shafran raised questions about the Board's Practice Direction, which by July 2020 was no longer in force. The Principal Member of the Board responded directly to Mr Shafran in that regard. General Counsel for the Department also responded, confirming that the practice direction was removed from the Board's website after the decision in Shafran (No 1).

Internal documents relied upon by Mr Shafran

57    Mr Shafran obtained a number of documents through FOI requests made to the Department. Mr Shafran asserted that such documents reveal that such CMA opinions are not considered by the Department to be evidence, and so should not be classified as evidence for the purpose of use by the Commission or the Board.

58    Relevantly, Mr Shafran sought to rely on screen shots from an internal 'Delegate Training' video presentation about the role of medical advisors in the claims process. Relevantly, Mr Shafran referred to a statement made by the Department's presenter that:

In closing, remember, the Medical Advisors don't provide you with additional evidence, but they should help you to understand the evidence that's available in order to make a good decision.

59    An internal email of 29 June 2020 headed 'Training Videos' discussed ongoing use of the video during the period while questions relating to evidence were squared away with legal. It stated that (in context, in the interim) 'the part where the vid specifically states that CMA advice is not evidence' should be removed, but 'the stuff around MA advice being an analysis of the evidence etc should be able to stay … as it is technically correct'. Mr Shafran deposed that this related to the video referred to in the preceding paragraph.

60    Similarly, Mr Shafran referred to 'scripts' for delegates received under his FOI request, that apparently provided answers to commonly asked questions. Some examples are:

Advising client DVA Medical Adviser advice was sought

In determining your claim, I also sought the advice of a DVA Medical Adviser. DVA Medical Advisers are used by DVA to help interpret and clarify the medical evidence. I used a DVA Medical Adviser to help me understand the medical evidence you provided in support of your claim, in particular <brief description of what advice was sought>.

…

Why does DVA need to use Medical Advisers?

DVA uses Medical Advisers to assist delegates in understanding medical evidence and how it should be interpreted. The advice from the DVA Medical Adviser helps me in understanding how to apply the medical evidence you have submitted, to the legislation that governs the claims process.

…

Does DVA use Medical Advisers to reject claims?

No, DVA does not use Medical Advisers to reject claims. Their role is to help clarify and interpret the medical evidence you have provided and to identify if further information may be required to support your claim.

…

What qualifications do DVA Medical Advisers have?

DVA Medical Advisers are doctors, registered with AHPRA (Australian Health Practitioner Regulation Agency). They have also completed training to help them understand the legislation that governs DVA's claims process.

Do I have to see the DVA Medical Adviser?

No, DVA Medical Advisers do not examine patients, nor do they provide specialist advice, this is the role of your treating GP and any other practitioners involved in your care. DVA Medical Advisers are used to help understand the evidence that your GP and other doctors have provided.

61    The dates of the script or presentation were unclear, although the extract from the presentation referred to it being 'current as of July 2020'.

62    Mr Shafran also relied upon a bundle of internal emails that indicate that:

(a)    in May 2020 the Clients Benefits Division of the department 'kicked off a piece of business improvement' aimed at improving the way CMA advice was used by delegates and communicated to claimants;

(b)    certain veteran advocates were informed that the review was underway;

(c)    it was apparent that at the time, the words 'Contracted Medical Adviser's Opinion' were auto-populated in delegate's decision letters under the heading 'Evidence' (and I interpolate to note that the decision letter received by Mr Shafran appears to follow this format in relation to the CMA and CDA opinions);

(d)    it was expected that delegates would manually remove any entries from the 'Evidence' section that were not applicable;

(e)    some officers within the Department had formed the view that the bullet point auto-populated 'Contracted Medical adviser's opinion' needed to be deleted from the 'Evidence' section because 'it is not correct';

(f)    some contributors to the discussion within the Department doubted that CMA opinions were strictly evidence - for example, one contributor said this in an email dated 28 May 2020:

I agree that the CMA advice should not be considered 'evidence' in the usual sense. However, obscuring any involvement of a CMA in a claim would seem to be creating a new risk. Acknowledgement of CMA input has been in the determination letters since at least the introduction of CCPS. Though the most CMA opinions do not adversely affect the outcome of a claim, to have such influence come to light only after an FoI request or appeal would be less than ideal.

Is there another proposed mechanism for providing the veteran with an understanding of the CMA input into a claim?

(g)    in early July 2020, internal legal advice was provided as part of the process, which officers needed to 'wade through';

(h)    it is apparent (from, for example, an email of 22 July 2020 from 'Scott' to 'Luke, Sally and Luke') that the legal advice was to the effect that CMA advice constitutes evidence;

(i)    there were a number of email contributions from officers in various areas of the Department as to the manner in which the decision letter template might be revised and how the changes would be brought about within the template system (for example, system enhancement or by manual changes);

(j)    it was suggested that the words 'Contracted Medical Adviser's opinion' be deleted under the 'Evidence' sections and substituted by different words;

(k)    some officers considered any reference to CMA opinions should be in the body of the determination letter rather than under 'Evidence' - for example, in an email of 3 July 2020 'Scott' wrote to 'Luke' saying:

Taking aside the legal advice, this isn't correct as (until we land on how we apply the recent legal advice) we don't want it under the evidence heading at all. That sentence was meant to be in the body of the letter. The recent letter change direction got this right, do you know why they have deviated here?

(l)    on about 27 July 2020 an amendment was approved to the effect that the words 'Contracted Medical Adviser's opinion' be deleted and substituted by the words (under the 'Evidence' heading), 'I also received advice from a DVA Medical Adviser to clarify the medical information relating to your claim'; and

(m)    on 27 July 2020 an email was sent on behalf of the 'operational services section' to a large number of divisions notifying of the change to the communication about DVA medical advisers in determination letters and asking that delegates be familiarised with the relevant instructions.

63    Mr Shafran also relied upon the minutes of a meeting of the 'Compensation & Income Support Business Improvement Working Group' conducted on 26 May 2020 which referred to the CMA Project Update, and which noted:

Agreement within the group that CMA advice is not evidence, but advice around medical evidence received as part of a claim.

Principles for summary dismissal

Section 31A(2) of the Federal Court of Australia Act

64    The respondents rely on s 31A(2) of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules in seeking summary dismissal.

65    Section 31A relevantly provides:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

66    The principles relating to these powers are well settled. The principles are set out in cases such as Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955; Rana v Google Australia Pty Ltd [2013] FCA 60; and C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81.

67    In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 at [124], Gordon J noted that s 31A was introduced in order to extend 'the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases' (citing the Minister's Second Reading Speech of the relevant bill). Even so, the power to give judgment for one party against another is not to be exercised lightly: Spencer at [24] (French CJ and Gummow J), [60] (Hayne, Crennan, Kiefel and Bell JJ).

68    As French CJ and Gummow J continued in Spencer:

[25]    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a 'fanciful' prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

69    The moving party on an application for summary dismissal bears the onus of persuading the Court of the criteria under s 31A: Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 at [38] (Edmonds J). The critical question for the respondents in this case is whether Mr Shafran has 'reasonable' prospects of successfully pursuing his application: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [46]-[48] (Reeves J). That determination 'does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial': Cassimatis at [46].

Rule 26.01 of the Federal Court Rules

70    The respondents also rely on r 26.01 of the Federal Court Rules which also sets out circumstances in which a party may apply to the Court for an order for summary judgment:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

71    The respondents assert that the proceeding is frivolous or vexatious, discloses no reasonable cause of action and is an abuse of process.

72    These terms have been the subject of detailed discussion elsewhere. The authorities were usefully collected by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [30]-[38].

73    In summary:

(a)    a matter that is frivolous may be described as one that is without substance or fanciful, or where despite attempting to discern a cause of action, it is still not arguable;

(b)    a vexatious proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. 'Vexatiousness' is a quality of the proceeding rather than a litigant's intention. A proceeding that is obviously untenable or utterly hopeless may be described as vexatious;

(c)    a claim will be dismissed as disclosing no reasonable cause of action where it is so obviously untenable that it cannot possibly succeed, a test which is more stringent that 'no reasonable prospect of success': Prior at [31], and cases cited;

(d)    the power to dismiss a proceedings for an abuse of process is an exceptional power which ought to be sparingly exercised and only in exceptional cases: Geneva Laboratories Limited v Nguyen [2014] FCA 1270 at [58] (Gleeson J); and

(e)    an abuse may arise in circumstances where the proceedings are clearly foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ), adopted in Rana v Commonwealth of Australia [2013] FCA 189 at [46] (Mansfield J).

Summary dismissal and statutory construction

74    The existence of a real issue of law does not preclude summary judgment where a disputed point of law can be decided without the need for a trial or evidentiary hearing: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30 at [103] (Kirby J); Jefferson Ford at [74] (Rares J), [131] (Gordon J); and Nichol v Discovery Africa Limited [2016] FCAFC 182 at [136]-[137].

75    As explained by Gordon J in Jefferson Ford at [131]:

… the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, 'argument, perhaps even of an extensive kind' was permitted 'to demonstrate that the case of [a party] is so clearly untenable that it cannot possibly succeed': General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.

76    I acknowledge that other single judges of this Court have disagreed with her Honour's observations. In J F Keir Pty Limited v Sparks [2008] FCA 611, Graham J disagreed, stating at [52] that where 'real', 'difficult', 'serious' or 'important' questions of law arise, orders for summary judgment should not be made under s 31A. However, Gordon J's observations have been referred to and endorsed on many occasions, including by the Full Court in Nichol v Discovery Africa at [136] and [137], and by single judges of this Court, including as recently as the decision of Kennett J in Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361 at [11]. I similarly endorse Gordon J's comments.

77    And as Mortimer J explained in DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2020] FCA 958 at [52]:

The more confined the question or point, the more susceptible it may be to summary determination. However, much will also depend on whether the point or question is novel, what is at stake for the parties, and the cogency of the parties’ arguments on each side of the question. There are no bright lines.

78    Further, issues of statutory construction, though potentially complex, are capable of being resolved without a full hearing and do not preclude summary judgment. In C v Commonwealth of Australia, the Court was tasked with interpreting whether the applicant, an enlisted member of the Australian Defence Force, was an 'employee' within the meaning of the Fair Work Act 2009 (Cth). The Court resolved the issue, finding the applicant was not an 'employee' (at [55]). The Court then proceeded to conclude the applicant lacked standing and had no reasonable prospect of success and granted summary judgment (at [59]-[60]).

79    Similarly, in Portframe Enterprises ATF Gnaraloo Station Trust v State of Western Australia [2020] FCA 1622, Griffith J was required to interpret whether the applicant had a legal right to be a party to an Indigenous Land Use Agreement under s 24BD of the Native Title Act 1993 (Cth). His Honour concluded that s 24BD should be given its ordinary meaning and the applicant had no such legal right (at [64]). Accordingly, his Honour granted summary judgment, stating 'as to the applicant’s submission that summary dismissal is inappropriate at this time given the complexity of the issues of law and the alleged presence of disputed facts, I respectfully disagree. The issues of statutory construction, although somewhat complex, are capable of being resolved at this point and need not await a full trial' (at [69]).

Mr Shafran's submissions

80    Turning to the substantive points in issue, it is fair to say that Mr Shafran's position shifted over time. In his communications with the Department, he asserted that in order to be relied upon, the opinions of the medical and dental officers were required to be certified as expert evidence under s 177 of the Evidence Act. That contention was properly abandoned prior to the hearing.

81    Mr Shafran also argued that in order to comprise 'evidence', as that word was to be understood in the Act, the relevant matters had to be the subject of an affirmation or given under oath. That contention too was properly abandoned.

82    Mr Shafran's submissions at the hearing of the summary judgment application may be paraphrased as follows:

(a)    the Secretary is the assessor or gatekeeper when it comes to the evidence before the Commission and the Board;

(b)    the Secretary must determine what is evidence for the purpose of the regime and provide only evidence to the Board;

(c)    so much is apparent from the text of the statute and in particular the use of the word 'evidence' in contrast to the words 'documents' and 'other materials' used elsewhere;

(d)    the Secretary, in contrast to the Commission and the Board, is not expressly exempt from the application of the Evidence Act and it follows that the Secretary is bound by it;

(e)    this is reinforced by the fact that the Secretary, unlike the Commission and the Board, is not obliged to provide reasons for their decision;

(f)    the Secretary's gatekeeper role is also justifiable taking into account the fact that an applicant is not entitled to legal representation before the Board - it is appropriate that a person (in this case, the Secretary) give close attention to the nature of material provided to the Board;

(g)    reports of CMAs and CDAs are not evidence as that term is understood for the purpose of the Evidence Act, nor for the purpose of the Act; and

(h)    the Board should not have regard to the CMAs and CDAs as evidence.

83    Mr Shafran's counsel pointed to what he referred to as the 'funnelling': that is, although s 17 requires the Secretary to provide any evidence or documents relevant to the claim to the Commission, and the Commission may consider any evidence, documents or other material (s 19(2)(c)), by the time of the review, the Board receives documents which comprise the report (that refers only to relevant evidence), the applicant's comments on the report (if any) and any supplementary report (that refers only to evidence), and not other materials (s 137(1) and s 137(4)) (aside from under s 138(2), referred to below).

84    Mr Shafran submits that this apparent limitation to 'evidence' in s 137 is deliberate and indicates that only evidence, as it is understood by application of the rules of evidence at common law and under the Evidence Act and as categorised as such by the Secretary, is to be relied upon for the purpose of administrative decision-making by the Board. The Secretary, who is not expressly excluded from the operation of the Evidence Act, is the person who therefore 'is charged with the duty to compile reports that refer only to evidence', because 'someone has to be able to turn their attention to this for the benefit of decision-makers who are not bound by the rules of evidence, as to how they can draft their reasons … which require findings of fact'.

85    Mr Shafran then relies on the provisions of the Evidence Act to the effect that opinion evidence (such as that of the CDA and CMA) is inadmissible opinion evidence under s 76 of the Evidence Act unless it falls within the s 79 exception where an opinion is substantially based on the person's specialised knowledge. Mr Shafran submits that such knowledge has not been established in relation to the CMA and CDA reports obtained by the Secretary in relation to his claim. Accordingly, he submits, it follows that the CMA and CDA reports are not evidence.

86    Counsel maintained that the Secretary is bound by the rules of evidence within the Evidence Act 'in as much as the Secretary is not exempted from them'. At one point in the oral submissions, counsel for Mr Shafran contended that even if the Secretary is not bound by the Evidence Act, by analogy the Secretary should turn to the Evidence Act for guidance as to the meaning of evidence, together with the common law. On Mr Shafran's construction, the Secretary is obliged to decide what is evidence in order to ensure that the decision-makers, being the Commission and the Board, properly carry out their functions. As posed by Mr Shafran, 'where would [the Secretary] turn apart from the common law and Evidence Act?'.

87    Mr Shafran contends that a conclusion that CMA or CDA reports are not evidence and are not to be provided to the Commission or Board is supported by the fact that the claimant is not provided with copies of the documents provided to the Commission. The claimant does not see which documents are provided to the Commission until the s 137 report is provided to the claimant for comment or otherwise provided to the claimant for the purpose of the review. Because of this, it was said, all materials that might be considered 'evidence' are to be assessed by someone before they reach the Commission. If the Act did not provide for such an assessment or narrowing, one would expect to see a provision in the Act that would require all documents that are provided to the Commission to be provided to the claimant, in order to meet procedural fairness requirements. The Act does not include such a requirement. On Mr Shafran's argument, as I understand it, it was not necessary for such a requirement to be included in the Act, because properly understood the Act requires the Secretary to carry out an assessment of what comprises 'evidence', apply the rules of evidence, and so meet any procedural fairness requirement, at least in that regard.

88    Mr Shafran also points to s 138, which expressly permits the Commission to provide additional documents to the Board, such as SOPs. Presumably, Mr Shafran contends (amongst other things) that a provision such as s 138 would not be required if the Secretary could in any event provide additional documents of that nature to the Board by way of the s 137 report, but the use of the word 'evidence' in s 137(1) and s 137(4) denies that potential.

89    Mr Shafran refers to the Department's own communications referred to at [58]-[63] above, and relies on apparent internal conflicting messages, questions, and disputes as to the label to be given to the CMA and CDA opinions and whether or not they are evidence. He relies on these communications as revealing a real question as to the meaning of 'evidence'.

90    Mr Shafran also relies on s 19(8) and the capacity for the Commission to reimburse a claimant for the cost of 'relevant documentary medical evidence', a term which is defined to mean:

relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:

(a)    in support of the claim or application; or

(b)    if a part only of the claim or application was granted - in support of that part of the claim or application.

91    He submits that the inclusion of this definition in the Act supports an argument that only medical evidence that might fall within its parameters or that similarly relates to treatment of the claimant by a practitioner is relevant medical evidence for the purpose of the Act.

92    Mr Shafran points to what he says is a real question of construction as to the meaning of 'evidence' in s 137, and submitted that in light of the number of claims made by veterans each year, and the obvious internal Departmental confusion, the issue is one of great public concern. On that basis, he submitted that the application could not be considered frivolous or vexatious. Nor was it an abuse of process. It did not seek to reagitate matters decided in Shafran (No 1). As to whether there was a reasonable prospect of success, Mr Shafran submitted that even if his case was not necessarily 'winnable', it still has a reasonable prospect of success and that it has revealed a question that requires judicial determination.

93    Finally, I note that at times it was unclear from the oral submissions whether Mr Shafran accepted that CDA and CMA reports might in any event find their way before the Commission or before the Board as other documents or materials, via other provisions of the Act (for example, s 138(2)(b) of the Act). Even if Mr Shafran did accept that prospect, it did not appear to alter Mr Shafran's reliance on his primary argument, being that such reports do not constitute evidence, and could not be treated as evidence by the Commission or the Board.

Respondents' submissions

94    The respondents initially sought summary dismissal because, they submitted, no particulars of the grounds of review were provided and it was unable to discern the nature of the claim Mr Shafran purported to bring. However, as Mr Shafran's submissions developed, and as the oral submissions unfolded, it was apparent that the respondents were able to understand and address the submissions which I have summarised above.

95    The respondents' starting point was that the word 'evidence' is not defined in the Act, the Evidence Act or the Acts Interpretation Act 1901 (Cth), and is to be understood having regard to its ordinary usage. That usage permits a broad interpretation.

96    According to the respondents, Mr Shafran conflates the concepts of evidence, admissible evidence and weight. In asserting the Secretary must decide what is evidence, consistent with the Evidence Act, Mr Shafran in effect was submitting that only admissible evidence is to be provided to the Commission and the Board, requiring the Secretary to make decisions on admissibility as if the hearing were a proceeding in a court.

97    The respondents point to the fact that the Secretary is not an administrative decision-maker. The Secretary is tasked with providing material, described as evidence, to a person who is an administrative decision-maker in order for them to carry out their statutory task. In that context it is apparent that to provide only evidence that would be admissible in accordance with common law or the Evidence Act would impinge on the task to be undertaken by the Commission or Board. It is the Commission and the Board respectively that decide as part of their statutory task on the evidence and other materials to which they will have regard and the weight to be accorded to it. They are expressly not bound by the rules of evidence in that regard.

98    Therefore, the respondents submit, it is not surprising that the Act says nothing about the Secretary not being bound by the rules of evidence. The Act does not contemplate that decisions about the admissibility or weight to be given to evidence are to be made by the Secretary.

99    They submit that it does not follow from the absence of any provision in the Act to the effect that the Secretary is not being bound by of the rules of evidence that those rules must apply. Such a conclusion would be nonsensical when the role of the Secretary and the regime under the Act are properly understood, and having regard to administrative law principles.

100    Whilst it is true, they submit, that as a matter of drafting s 137 refers to evidence only, and not materials more broadly, it does not follow that evidence is to be given a particular prescriptive meaning for the purpose of s 137.

101    Accordingly, and to paraphrase, the respondents submitted that 'evidence', in the context of s 137, includes any documents, information or opinions that are capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Board might be required to make a finding.

Analysis

102    There was no issue between the parties as to the relevance of both the text and context in ascertaining the meaning of evidence for the purpose of s 137, or more generally as to the applicable principles. Terms are to be construed based on their ordinary and grammatical sense and having regard to context and legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].

103    An important part of the context in this matter is that it concerns the realm of administrative decision-making. There is a general presumption administrative decision-makers are not bound to observe rules of evidence unless expressly or impliedly required by statute: Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-257 (Brennan J), affirmed in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; and more generally Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [57]-[72].

104    This presumption is often, especially in the case of tribunals, confirmed by a statutory provision. Provisions exempting decision-makers from rules of evidence intend to free decision-makers 'from certain constraints otherwise applicable in a Court of law': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [56] (Gummow and Heydon JJ). A balance must be struck between using rules of evidence as useful guidance in order to receive the benefit of the 'method of inquiry best calculated to prevent error and elicit truth' (Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256), and recognising that those rules have been developed to operate within the adversarial model of the courts, rather than within extra-curial tribunals.

105    Mr Shafran acknowledges that the rules of evidence do not apply to the Commission or the Board (by s 119(1)(f) or s 138(1)(a) respectively). He accepts that the Commission and the Board are the decision-makers under the relevant statutory regime. Taking these matters into account, a number of real difficulties arise with Mr Shafran's contentions.

106    Mr Shafran's argument proceeds on the basis that the Secretary is bound by the rules of evidence. If this were right, although the Commission and the Board are expressly not bound by the Evidence Act, their statutory tasks would be inhibited by the indirect application of the Evidence Act or analogous common law principles to the Secretary. The materials that reach the Commission and the Board may be limited or abridged through the application of the rules of evidence by the Secretary. It follows that either s 119(1)(f) and s 138(1)(a) of the Act are redundant provisions (at least in part), or they are in conflict with the role of the Secretary. Either outcome tells against Mr Shafran's construction.

107    Neither of the bases upon which Mr Shafran asserts the Secretary is bound by the rules of evidence is compelling.

108    The first basis relied upon is the absence of an express exclusion, analogous to s 119(1)(f) or s 138(1)(a) of the Act, applying to the Secretary. However, the Secretary is not the decision-maker. The Secretary does not carry out any role analogous to an adversarial process of inquiry. It is therefore unsurprising that there would be no equivalent provision to s 119(1)(f) or s 138(1)(a) applying to the Secretary.

109    The second basis relied upon is that the word 'evidence', when considering the materials under the control of the Secretary as referred to in s 17, s 19 and s 137 of the Act, means admissible evidence as generally understood in adversarial proceedings, determined in accordance with the rules of evidence.

110    However, 'evidence' is not necessarily the same as 'admissible evidence'. The common law and statutes have developed rules to separate inadmissible evidence, and to contain or limit the prejudicial reliance on certain types of evidence in court proceedings, including the weight to be given to it. This supports the respondents' argument that evidence, as the word is generally understood, may encompass a broad range of matters relevant in some manner to proving facts. It is not to be inferred merely from the use of the word 'evidence' in s 17, s 19 and s 137, that the word is intended to refer only to evidence that has been confined in accordance with the rules of evidence. Accordingly, on its face, 'evidence' in those provisions is to be read as potentially encompassing a broader range of information than 'admissible evidence'.

111    There are a number of matters that support a broad meaning of the word, unconstrained by the rules of evidence that apply in a court.

112    It is to be recalled that the Act has as its purpose the grant of benefits to veterans, being 'part of a societal bargain for military service', and is beneficial legislation: Shafran (No 1) at [65].

113    It is immediately apparent from s 119(1)(f) or s 138(1)(a) that it is intended that the decision-maker may have regard to a broad range of information (whether it be called evidence, materials, documents or otherwise) in assessing a claim. Importantly, the claimant may also provide 'evidence' in this regard, as is clear from s 17(3)(a).

114    Therefore, 'evidence' is to be construed taking into account that it may be provided by both the claimant and the Department. It should bear the same meaning in, for example, s 17(3)(a) as elsewhere in the Act, including s 17(3)(b) and s 137. As explained in R v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 at [25] (Kiefel CJ, Gageler, Gordon, Steward, Gleeson and Jagot JJ):

… a construction of a provision that it is consistent with the language and purpose of all the provisions of the statute is ordinarily one in which the same meaning is given to the 'same words appearing in different parts of a statute'. At the least, it is accepted that there needs to be a reason not to give the same words in the same statute the same meaning.

115    Having regard to the broad scope of information that can be provided, it would be an odd and unsatisfactory result that only admissible evidence submitted by a claimant (assessed in accordance with the rules of evidence) would find its way to the Commission in support of their claim, especially when it follows from its nature that some information may be historic. This is particularly so as claimants are not typically legally represented under the regime. A broader meaning of 'evidence' in s 17(3)(a) is consistent with both the beneficial purpose of the Act and the breadth of material to which the Commission and Board may have regard.

116    As to other textual matters, Mr Shafran places weight on the separate use of the words 'evidence', 'documents' and 'other material' in various parts of s 17, s 19 and s 137 to suggest they are distinct categories of information. I accept that the use of these different terms by the drafters of the legislation has resulted in questions for the reader that could well have been avoided. Compare, for example, the use of the phrase 'review material' to encompass all materials provided by the Departmental Secretary to the Immigration Assessment Authority under s 473CB(1)(c) of the Migration Act 1958 (Cth) for the purpose of the Authority carrying out its statutory task (and see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [6] for a discussion of the task to be undertaken by the relevant Secretary in this regard).

117    However, there are other textual indicators that indicate that despite the different terms, no exclusive categorisation is intended by their use. 'Documents' is used in some provisions of the Act in circumstances where it clearly encompasses anything relevant to the review, including evidence and any supplementary report. For example, s 17(3) refers to the 'documents' as 'including any evidence or documents'. See also s 137(4), and s 137A. In another provision the phrase 'evidence and documents' is used (s 19(2)(a)) but I do not consider, in the face of the other inclusive references, that this establishes the categories are mutually exclusive. 'Documents' may contain evidence, or they may contain something along the lines of submissions or policy statements. There is nothing to suggest that 'documents' are to be reviewed by the Secretary subject to any limit by way of the rules of evidence. It would be incongruous if 'evidence' were subject to such limitation and 'documents' were not.

118    Additionally, although s 137(1) provides that a report is to refer to 'evidence', s 137(2) provides that the same report may refer to 'information, opinion or other matters'. 'Evidence' is therefore anticipated to include the broad range of matters that might be described as including 'information, opinion or other matters'.

119    Nor is there any apparent justification for a construction whereby the rules of evidence apply indirectly (by their application to the Secretary) to the Commission and the Board in relation to evidence provided by the Secretary, but do not apply to evidence given before the Commission or Board under oath or affirmation. Nothing in the Act suggests or supports such a bifurcated approach.

120    A narrow interpretation of 'evidence' also undermines the otherwise broad and inclusive powers of the Commission and the Board. The Commission is entitled to have regard to matters that include the evidence provided by the Secretary (chapeau to s 19(2)). The Board is then empowered to review 'all matters relevant to the review', and not bound by technicalities, legal forms or rules of evidence. It must expressly take into account the difficulties in proving any facts (s 138(1)(b)). Such express powers and obligations, clearly directed at weighing the probative values of different evidence, are consistent with the beneficial purpose of the Act. Respectfully, the narrow interpretation for which Mr Shafran contends, and which must apply to material provided by both the claimant and the Department, is not.

121    Further, there are various authorities which refer, in the context of administrative decisions, to the natural justice requirement that a decision be based on evidence, and which expand on the meaning of evidence in this context. For example, Diplock LJJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 485 said in this context:

… 'evidence' is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Director of Public Prosecutions [[1964] 3 WLR 145].

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.

122    This statement was cited with approval in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 689 (Deane J, Evatt and Smithers JJ agreeing).

123    Taking into account all of those matters, I am of the view that Mr Shafran's argument that the Secretary is bound by the rules of evidence is untenable. As s 119(1)(f) or s 138(1)(a) of the Act reflect, material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined by the Commission and the Board may extend beyond admissible evidence in the strict curial sense. It is not the task of the Secretary to filter such material by reference to the rules of evidence.

124    Undoubtedly the Secretary's role is not without boundaries. They must form an opinion, acting reasonably, as to what material is relevant to the review process and must do so on a correct understanding of the law: CNY17 at [6].

125    However, the legislative framework clearly indicates that it is for the Commission and the Board to test and weigh the nature of the evidence and materials before it, and expressly without regard to the rules of evidence.

126    So much is an orthodox outcome in the administrative regime and there is nothing in the Act that persuades me that another result is likely to follow. The outcome I prefer is also consistent with the objects of the Board, set out at [42] above. A procedure which permits reliance on a broad range of materials (including those provided by the claimant) which might not strictly comply with the rules of evidence but which are relevant to the matters to be decided by the Board is consistent with the objective of an accessible, fair and informal mechanism of review. The fact that the claimant, by way of the report, is given access to such materials, rather than access to only a sub-set as determined by the Secretary applying strict rules of evidence, should promote public trust and confidence in the Board's decision-making process.

127    Nor am I persuaded that confusion or different opinions on the part of employees and officers of the Department as to the meaning of 'evidence' informs the discussion. The question for the Court is to be determined having regard to the principles of statutory construction. I have already acknowledged that, with the benefit of hindsight, different drafting might have been employed, but that does not signal any admission that the words cannot be construed by an application of those principles.

128    I do not consider the definition of 'relevant documentary medical evidence' in s 19 of the Act assists. That provision has the clear purpose of providing for the specific circumstances where a claimant who is successful in terms of the Commission's decision may be reimbursed for costs they have incurred in obtaining certain specified medical evidence in support of their claim. It does not purport to limit the relevant medical or other evidence the claimant might provide. Nor does it apply to the Secretary or otherwise purport to limit the relevant medical or other evidence the Secretary may obtain for the purpose of their investigation. The phrase is also included in s 170A ('Medical expenses') and s 170B ('Travelling expenses'), in the context of restricting the circumstances where a claimant might be reimbursed for such expenses relating to 'relevant documentary medical evidence' submitted to the Board. The phrase is defined for the purpose of those provisions in s 133 of the Act and is in terms similar to the s 19 definition. Again, those provisions do not apply to the Secretary and do not purport to restrict the evidence which might be relied upon by the claimant, the Commission or the Board.

129    Returning to Mr Shafran's particular concern relating to the CMA and CDA reports, in my view those are documents that can properly be considered relevant to the Commission's decision-making process and that of the Board, and fall within the meaning of the word 'evidence' in accordance with the above reasons. They can properly be considered relevant, at least to ascertaining whether the conditions complained of by Mr Shafran fell within recognised categories for entitlements. The weight to be given to those reports, taking into account their authors, their brevity, their content and their purpose, was a matter for the delegate of the Commission. Similarly, on any review, it is for the Board to consider the weight it may wish to accord those reports, having regard to their authors, their brevity, their content and the purpose for which they were sought.

130    One can well imagine other cases where a claimant's claimed condition is such that a medical appointment and personal assessment might be required in order for a doctor or other specialist to ascertain the nature and extent of any particular condition and whether it falls within a category that would entitle the claimant to payment under the Act. However, that might not always be the case. The application before me is not one based on unreasonableness on the part of the decision-maker, and it is not necessary or appropriate to comment on such matters further.

131    It suffices to say that under the statutory regime, Mr Shafran received by way of the Report the CDA reports which related to the claims upon which he has been unsuccessful, and he had the opportunity to comment on those. He also has the opportunity to seek to have further documents put before the Board under s 137A prior to any review hearing. Whether and how the Board will have regard to further documents are matters for it to assess. If appropriate, the Secretary may also seek to provide additional documents, although they are not a party to the review: Shafran (No 1) at [59].

Summary dismissal - determination

132    Returning to the amended application, it follows from the above reasons that I am satisfied for the purpose of s 31A of the Federal Court of Australia Act that Mr Shafran has no reasonable prospect of successfully prosecuting his application. I have considered the materials and submissions before me, and the onus on the part of the respondents, having regard to that threshold. I have taken into account that the application concerns statutory construction, but I do not consider the construction question was so complex that summary judgment could not properly be considered or granted, having regard to the authorities I have referred to at [74]-[79]. I do not consider as a matter of practical judgment that there is a reasonable prospect of Mr Shafran obtaining the relief sought in any of paragraphs 1 to 7 of the amended application following a full hearing.

133    In my view, there is no reasonable prospect of establishing that the Secretary is bound by the rules of evidence, either at common law or under the Evidence Act, or, as Mr Shafran submitted 'by analogy'. As already observed, the Secretary is not a decision-maker. It is not their role to indirectly limit the powers of the Commission or the Board. The beneficial purpose of the Act is supported by a regime which permits the Commission and the Board to have regard to materials before it, including those provided by a claimant, without regard to the technical rules of evidence, as the Act expressly anticipates. A narrow interpretation of 'evidence' which undermines and conflicts with that objective and the role of the Commission and the Board cannot, in my view, properly be preferred over a construction that permits consideration of a range of relevant materials.

134    Nor is it apparent that a decision on the construction of s 137 at an interlocutory stage is apt to 'stultify the development of the law' (noting the observations in Spencer at [25] (French CJ and Gummow J)). It does not follow that, merely because the construction favoured has not previously been considered in the context of the Act, it requires attention and so justifies a full hearing, in circumstances where the parties have had a full opportunity to raise the construction points they wish to rely upon, including those that addressed whether CMA and CDA reports may be considered 'evidence' within the meaning of s 137.

135    It follows that it is not necessary to consider whether Mr Shafran's amended application should also be dismissed under r 26.01(1) of the Federal Court Rules. However, I observe that I would not describe Mr Shafran's application as frivolous (in the sense of fanciful), vexatious, or an abuse of process.

136    I add that paragraph 1 of the relief sought appears to seek a declaration that is unnecessary. The Court would not make a declaration in those circumstances. It has been drafted presumably on the premise that CMA and CDA reports cannot be relevant evidence, a premise I do not accept has any reasonable prospect of being accepted. The authorities have addressed generally the manner in which a Secretary of a Department is to carry out such a role, including as referred to at [24] above. I also add as to paragraph 5 of the relief sought, that it follows from my reasons that I do not consider Mr Shafran has a reasonable prospect of succeeding in an argument that the inclusion of the CDA reports in the Report rendered it non-compliant.

Additional documents that Mr Shafran sought to tender

137    By his interlocutory application to re-open, Mr Shafran sought to rely on additional documents obtained through FOI requests that are the subject of applications before the Administrative Appeals Tribunal. They also relate to the Report. Some of the documents the subject of the application were already in evidence. The new documents are as follows:

(a)    Department document headed 'Compliance with Section 137 of the Veterans' Entitlements Act 1986' dated March 2022 (GEK2), and being an internal guideline for persons preparing a s 137 report;

(b)    an extract provided to Mr Shafran on 2 May 2022 of an internal document headed 'Section 137 of the Veterans' Entitlements Act 1986: Report on current practices, processes and issue' (GEK3), which states relevantly (with original emphasis):

The meaning of 'evidence' in section 137(1)

4.1    As subsection 137(1) is currently drafted, a section 137 report is to refer to 'the evidence under the control of the Department that is relevant to the review'. A critical issue at present is to determine what constitutes 'evidence'. That term is not defined in the VEA, and we are aware that some applicants express strong views as to what does and does not constitute evidence.

4.2    For instance, applicants often object to the inclusion of opinions from Contracted Medical Advisors (CMA), either on the basis that such opinions do not comply with the Evidence Act 1995 (the Evidence Act) or because those opinions ought not be included because the CMAs did not assess the applicants in person prior to formulating their opinions.

4.3    In our view, such objections are misconceived. Section 119 of the VEA expressly states that the Commission is not bound by technicalities, legal forms or rules of evidence. It is therefore not appropriate for the Secretary's obligations under section 137 to include only such material that complies with the rules of evidence. Accordingly, we consider that an objection to the inclusion of CMA opinions on the basis of any non-compliance with the Evidence Act, and indeed any reliance on the Evidence Act more generally, is misplaced.

4.4    Where applicants object to the inclusion of CMA opinions because they were not assessed by the CMAs prior to formulating the opinion, we do not consider that that is a sufficient basis for not including the opinion in the section 137 report. This is because the Secretary's power to prepare reports under section 137 is a mandatory, and not discretionary, power ('the Secretary shall'). The Secretary is required to include any evidence under DVA's control that is relevant to the review, subject only to the other provisions in section 137. If it is not in dispute that a CMA opinion is evidence and is relevant, even if an applicant objects to its inclusion, it ought to be included in the section 137 report. In effect, the applicants are merely contending that limited or no weight should be placed on the opinion. Weight to be attached to the evidence is, ultimately, a matter for the VRB to determine. We do not consider it appropriate to exclude CMA opinions from the section 137 report altogether, even if limited weight is attached to the opinion.

4.5    We consider that the proposed legislative amendments to section 137(1) to replace the word 'evidence' with 'document' will avoid the disputes that currently occur with some applicants as to what material should form part of a section 137 report. The proposed amendment also aligns section 137 with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), a demonstrated functional scheme for providing relevant documents in relation to administrative review.

(c)    an email of 14 July 2020 (provided to Mr Shafran on 15 September 2021) that refers to an internal review of the decision to include certain information in the Report, and indicates that the decision was based on advice from a Department dental advisor because the issue was the relationship of two dental conditions to Mr Shafran's service, and other material was included in the Report for context and to assist the Board (GEK4); and

(d)    affidavit of Mr Arthur Baker sworn 19 May 2022, who deposed to a phone call with representatives of the Department during which he asked the Assistant Secretary for his opinion about the meaning of the word 'evidence' in s 137.

Determination - new evidence

138    The authorities with respect to the proposed tender of new evidence following a hearing are well established. They are usefully summarised in Frigger v Trenfield (No 7) [2020] FCA 1740 at [20]-[25] (Jackson J).

139    I have determined that none of the above documents add to the debate, and in those circumstances leave to rely on them is refused. They do no more than indicate that some persons within the Department may have had their own views as to whether CMA or CDA opinions or reports should be labelled as 'evidence' or not for the purpose of s 137. As I have indicated, how s 137 is to be understood is a question of statutory construction. That there might be different opinions within the Department does not resolve that question. Nor does it tell against summary dismissal in appropriate circumstances. That some people within the Department might consider there to be an issue does not equate to a consideration by the Court of the reasonable prospects of success in the context of the well-known authorities relating to summary dismissal.

140    Accordingly, I will refuse leave for Mr Shafran to rely upon the additional documents, whilst noting that in any event, had they been admitted, they would have made no difference to the outcome.

Conclusion

141    It follows that the respondents' application for summary dismissal is granted and Mr Shafran's application for relief is dismissed.

Associate:

Dated:    13 June 2024