Federal Court of Australia

Rowles v Repatriation Commission (Department of Veterans’ Affairs) (No 2) [2026] FCA 797

ORDERS

THE COURT ORDERS THAT:

1.    By 4.30 pm on 5 August 2026, the applicant is to file and serve:

(a)    any Amended Originating Application;

(b)    further particulars of the grounds upon which the applicant claims to be entitled to relief;

(c)    a single affidavit containing the evidence the applicant relies upon in support of his Originating Application or, if applicable, Amended Originating Application.

2.    Within 21 days of the applicant’s compliance with Order 1, the first respondent is to file and serve any summary dismissal and/or strike out application together with any supporting affidavits, or advise the applicant and the Registry it will not do so.

3.    If the first respondent files and serves a summary dismissal and/or strike out application:

(a)    the first respondent is to also file and serve submissions indicating whether it consents to the application being heard on the papers and its proposed programming orders for the hearing of that application;

(b)    within seven days of the first respondent filing and serving any such submissions, the applicant is to file and serve submissions concerning whether the application should be determined on the papers and indicating whether he agrees to the first respondent’s proposed programming orders and, if not, stating his reasons for objection and providing an alternative proposal;

(c)    following compliance with (b), the Court will determine on the papers a timetable for hearing the summary dismissal and/or strike out application and whether the application will be determined on the papers.

4.    In the event that no summary dismissal/strike out application is filed and served by the first respondent, within 28 days of the applicant’s compliance with Order 1, the first respondent is to file and serve its evidence in response to the Originating Application or, if applicable, Amended Originating Application.

5.    If compliance with Order 4 is necessary, within seven days of such compliance, the parties are to each file and serve written submissions addressing their respective proposals for:

(a)    a timeframe for the applicant to file any evidence in reply;

(b)    the raising and hearing of any objections to evidence;

(c)    a timetable for the filing of submissions from the parties addressing the Originating Application or, as applicable, Amended Originating Application;

(d)    whether the final determination of the matter should be conducted on the papers.

6.    The issues described in Order 5 will be determined on the papers.

7.    The parties have liberty to apply in respect of these orders.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In the substantive proceeding, the applicant seeks judicial review of “decisions” of the “Repatriation Commission (Department of Veterans’ Affairs)” (the Commission) and the Veterans’ Review Board (the Board).

2    The applicant is aggrieved by the decisions which he claims (a) refused to grant him a pension and Gold Card under the Veterans’ Entitlements Act 1986 (Cth) (the VEA); and (b) improperly reclassified his claim under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the DRCA).

3    The applicant is a litigant in person. The proceeding is actively defended by the Commission.

4    On 18 December 2025, I dismissed the applicant’s interlocutory application for my recusal from hearing and determining the proceeding: Rowles v Repatriation Commission (Department of Veterans’ Affairs) [2025] FCA 1621.

5    The applicant’s interlocutory application presently before the Court seeks the following orders:

1.    The applicant be permitted to appear by written submissions only, due to a medically recognised hearing impairment, pursuant to Rule 5.04 of the Federal Court Rules 2011.

2.    The respondents must produce all material requested in the filed subpoenas no later than 21 days from the date of service, pursuant to Rule 24.13(1) of the Federal Court Rules 2011.

3.    The respondents must file any response or defence to the origination application (Form 66) within 28 days, pursuant to Rule 16.32 of the Federal Court Rules 2011.

4.    The applicant be permitted to rely on the filed affidavits dated 24 July and 29 July 2025.

5.    The matter be listed for a further Case Management Hearing in 6 weeks, to confirm compliance with subpoenas and procedural timelines.

6    On 22 December 2025, I made orders for the exchange of evidence and written submissions and ordered that the interlocutory application be determined on the papers.

7    I understand the applicant’s application to appear only by written submissions encompasses all case management and other interlocutory hearings and the final hearing.

8    The issue for determination is whether, pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth) (the Act), the matter ought to be dealt with without an oral hearing.

9    Section 20A of the Act provides, relevantly:

20A     Power of the Court to deal with civil matters without an oral hearing

(1)     This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.

(2)     The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:

(a)     the matter is frivolous or vexatious; or

(b)     the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or

(c)     determination of the matter would not be significantly aided by an oral hearing because:

(i)     there is no real issue of fact relevant to determination of the matter; and

(ii)     the legal arguments in relation to the matter can be dealt with adequately by written submissions.

(3)    This section does not limit subsections 20(4) and (6).

10    Subsections 20(4) and (6) do not appear to be relevant to the present application.

Background

11    The material before the Court appears to reveal the following factual background.

12    On 10 August 2022, the applicant made a claim to the Department of Veterans’ Affairs (the Department) for compensation for a “right foot condition”. As part of that application, the online form provides that it may become evident to the Department that an applicant has an entitlement under one or more Acts (ie. the VEA, the DRCA or the Military Rehabilitation and Compensation Act 2004 (Cth)) and the applicant is taken to understand that the Department may consider their entitlement under the various Acts.

13    On 10 July 2023, the Military Rehabilitation and Compensation Commission (the MRCC) denied liability for osteoarthritis of the applicant’s right ankle under s 14 of the DRCA and notice of this determination was emailed on 21 July 2023 to the applicant’s representative, Lex Roberts of the Veterans’ Advocacy Community Of Practice Brisbane West Inc. On the same day, the Commission determined the applicant did not suffer defence-caused osteoarthritis of the right ankle and continued his disability pension at 30% of the general rate. This was sent to Mr Roberts on 21 July 2023.

14    On 14 August 2023, Mr Roberts, on the applicant’s behalf, applied for reconsideration of the MRCC’s determination through online lodgement on a portal for ex-service organisations and applied to the Board for review of the Commission’s determination dated 10 July 2023.

15    On 26 February 2024, the Board made its decision to review the Commission’s determination and in doing so:

(a)    varied the diagnosis of the claimed condition from “osteoarthritis right ankle” to “osteoarthritis right ankle” and “stress fracture right tibia”;

(b)    set aside the Commission’s determination dated 10 July 2023 and substituted a decision that the stress fracture right tibia was defence-caused;

(c)    affirmed the Commission’s decision that osteoarthritis right ankle was not defence-caused; and

(d)    remitted the matter to the Commission for assessment of the rate at which pension is to be paid and directed that pension (if any) is payable from 10 May 2022.

16    On 5 June 2024, the Commission increased the applicant’s disability pension to 50% of the general rate with effect from 10 May 2022 under s 21A of the VEA. On the same day, the MRCC made a reconsideration decision varying the determination dated 10 July 2023 to accept liability for “stress fracture of right tibia”.

17    On 21 December 2024, the applicant applied to the Board for review of the rate of pension decision made by the Commission. This review process was asserted by the Commission’s representatives in their most recent submissions to be ongoing.

18    On 28 January 2025, the applicant submitted a claim for a service pension. On 18 June 2025, the Commission determined the applicant was not eligible. On 20 August 2025, the applicant applied to the Commission for review of this decision. This review process is also asserted by the Commission’s representatives to be ongoing.

19    The applicant had initially made applications to the Administrative Review Tribunal for extensions of time in relation to the MRCC and Commission’s decisions. However, both applications were eventually withdrawn by the applicant.

20    On 11 July 2025, the applicant lodged for filing an Originating Application for Judicial Review seeking:

Details of claim

The Applicant is aggrieved by the decision of the Respondents because:

1.     The Department of Veterans’ Affairs (DVA failed to determine the Applicant’s original VEA claim properly and instead manipulated the framework under which the claim was assessed.

2.     The Veterans’ Review Board (VRB) issued a decision under the VEA in February 2024 After that point, the claim was unlawfully reclassified under the DRCA framework without lawful notification, authorisation, or consent from the Applicant.

3.     The Respondents failed to provide procedural fairness by not informing the Applicant of the jurisdictional switch and by denying the Applicant the opportunity to be heard on the matter.

4.     The conduct amounts to a denial of natural justice and resulted in the Applicant being denied his rightful entitlement to a pension and a Gold Card under the VEA.

Grounds of application

1.     The decision-making process by the Department of Veterans’ Affairs and the Veterans’ Review Board involved a jurisdictional error by assessing or reclassifying the Applicant’s claim under the DRCA when it originated and remained under the VEA.

2.     The Respondents breached procedural fairness by failing to notify the Applicant of the framework switch or offer any legal avenue for objection or review.

3.     The actions of the Respondents were taken in bad faith and/or involved fraudulent misrepresentation of the claim’s legal basis, resulting in significant prejudice to the Applicant.

4.     The respondents intentionally concealed the reclassification of the claim from VEA to DRCA, despite internal correspondence and procedural awareness, in order to unlawfully limit the Applicant’s entitlements and obstruct access to a Gold Card under the VEA.

Orders sought

1.     A declaration that the Respondents’ actions in reclassifying the claim from the VEA to the DRCA were unlawful, made without jurisdiction, and are void.

2.     An order requiring the Department of Veterans’ Affairs to reinstate and process the Applicant’s compensation claim under the VEA framework, including entitlement to a Service Pension and Gold Card.

(Emphasis in original.)

Consideration

21    Section 20A(2) of the Act gives the Court a discretion to deal with a matter without an oral hearing if satisfied of the matters set out in paragraphs (a), (b) or (c).

22    The applicant has already filed some 39 affidavits of which he is the deponent in the proceeding. The applicant submits that the issues raised in this proceeding are documentary in nature and do not require oral evidence. The relevant facts are said to, “arise from documents already before the Court”, apparently referring to the affidavits the applicant has filed.

23    The applicant’s affidavit sworn on 29 September 2025 and lodged for filing on 1 October 2025 describes his hearing loss, tinnitus and anxiety which he says makes it difficult for him to participate in an oral hearing. He also deposes that his rural location creates difficulties for him physically attending the Court.

24    The Commission submits that proposed Orders 2 and 5 in the applicant’s interlocutory application filed 14 August 2025 are redundant, having been superseded by orders made by Registrar Schmidt on 17 September 2025 and should not be made. Order 4 appears to be redundant or unnecessary. The applicant’s submissions do not dispute this aspect of the Commission’s submissions.

25    As I understand it, the Commission does not object to proposed Orders 1 and 3, but only on the basis that:

(a)    the applicant be given an opportunity to amend his Originating Application, provide particulars and confirm the evidence he seeks to rely on;

(b)    the applicant be prevented from filing further material until further orders are made;

(c)    the Commission be given the opportunity to file any summary judgment and/or strike out application;

(d)    the Commission be given an opportunity to respond to the Originating Application (or any Amended Originating Application) and to make submissions on programming to any final hearing; and

(e)    the Commission have liberty to apply in respect of any order to have the Originating Application (or Amended Originating Application) determined on the papers following service of the applicant’s evidence and submissions in support of the application.

26    The applicant submits that the orders proposed by the Commission are unnecessary, “in circumstances where the issues raised arise from the documentary record already before the Court”. The applicant also submits that the Commission’s proposed orders, “would introduce additional procedural steps and delay”.

27    The Commission submits that the Originating Application may be frivolous and futile (within the meaning of s 20A(2)(a)) and it may be that there is no real issue of fact and the legal arguments can be dealt with adequately by written submissions (within the meaning of s 20A(2)(c)) having regard to the following facts:

(a)    the applicant made a claim under each of the VEA and DRCA by his authorised representative and states in his submissions that there is no factual dispute in this matter;

(b)    the applicant is already in receipt of a pension under Part IV of the VEA;

(c)    the applicant’s entitlement to a Service Pension remains under consideration by the Commission;

(d)    the applicant’s entitlement to any increase to his current rate of pension under Part IV of the VEA remains under consideration by the Board; and

(e)    the relief sought by the applicant appears to seek to reinstate the Service Pension or rate of pension decision-making processes where such a process is currently being undertaken by the Commission and the Board respectively.

28    However, the Commission submits that it is not presently able to confirm these matters for reasons including that:

(a)    since filing the Originating Application, the applicant has prepared and filed 39 affidavits and it is not clear how all the material and issues traversed could be relevant to the current form of the Originating Application;

(b)    the applicant’s written submissions filed in support of his interlocutory application refer to s 175 of the VEA which is not a feature of the Originating Application; and

(c)    the Originating Application does not provide particulars of Grounds 3 and 4, which make allegations of fraud, misrepresentation and conditions of mind.

29    I accept that there is substantial uncertainty as to precisely what the applicant’s factual and legal allegations are and the basis for those allegations, particularly Grounds 3 and 4. There is also a lack of clarity as to whether the applicant relies on all 39 of his affidavits and the relevance of much of the material in those affidavits.

30    Any determination that the whole of the proceeding should be decided on the papers should be preceded by greater clarity of the applicant’s allegations and the relevance of his supporting evidence. I am not presently satisfied that any of the conditions specified in s 20A(2)(a), (b) or (c) are satisfied in respect of the entirety of the matter.

31    However, I am willing to reconsider the issue at a later stage. The questions of whether there is no real issue of fact and the legal arguments can be dealt with adequately by written submissions and may become clearer as the matter progresses. In the meantime, I propose to make orders broadly in the terms suggested by the Commission. I consider that such orders will assist in bringing greater clarity to the matter.

32    I also note that the sheer number of affidavits filed by the applicant makes it difficult to understand and navigate his evidence. I will make an order requiring the applicant to reduce his evidence to a single consolidated affidavit containing the whole of the evidence he relies upon. That step will bring greater clarity to the evidence the applicant relies upon.

Associate:    

Dated:    24 June 2026