Sleep v Repatriation Commission [2004] HCATrans 298 (12 August 2004)

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Sleep v Repatriation Commission [2004] HCATrans 298 (12 August 2004)

Last Updated: 23 August 2004

[2004] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide Nos A185 of 2003 and A5 of 2004

B e t w e e n -

KENNETH JOHN SLEEP

Applicant

and

REPATRIATION COMMISSION

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 10.21 AM

Copyright in the High Court of Australia

MR K.J. SLEEP appeared in person.

MS S.J. MAHARAJ: May it please your Honours, I appear for the Repatriation Commission. (instructed by Australian Government Solicitor)

HAYNE J: Now, the Court proposes that we will hear both of the applications together and we will hear from you first, Mr Sleep. We propose that you should have 20 minutes to present the whole of your submissions in relation to both of the matters. Perhaps if you could come to the centre for the purpose of recording, that would help us. Yes, Mr Sleep.

MR SLEEP: Your Honour, seeing that both the cases are being heard together, I have tried to find a common thread between them, if I could. For that we may have to go to the attendant allowance case where the Tribunal noted my submission that:

He submits finally, that when he joined the Army he had a legitimate belief that he would be looked after; but things have changed. He entered a contract in good faith, and served to the best of his ability, and it is not right that conditions of service should be changed later on, when it is “time to pay the piper”.

That belief that I hold, that applies to the attendant allowance. Now, to find the equivalent thing in the valuation case or reduction of service pension, I believe that when I served in Vietnam the TPI pension was one pension, an untouchable pension that was more or less equivalent to a living wage or a basic wage or an average wage – something like that – enough for a person to live on. Also, if a person became TPI, then his wife and dependants were paid pensions. For that reason, I do not think that it is right that there should be any reduction in my service pension now, which apparently has been changed a bit. The special rate or TPI plus the service pension is really equivalent to the old TPI; that is as I see it. If the old TPI pension was untouchable before, I do not see why there should be a reduction of a service pension for me as a TPI, especially when I am below 65 or still of normal working age. Does that - - -

HAYNE J: The difficulty, I think, that you have to confront in both cases is this. I will put it as bluntly as I can.

MR SLEEP: Thank you.

HAYNE J: You have not had a win yet.

MR SLEEP: No, your Honour.

HAYNE J: Why should we see it as open to doubt? We have read your papers, we understand your papers and so far you have not had a win. What is it that you say means that we should think not only that it is open to doubt, but also that we should take the case on when we can take on only a very limited number of cases each year. That is the heart of the difficulty, if you could focus on that.

MR SLEEP: Thank you, your Honour. I think some of the decisions I have had been bits of shockers. So I have to rely on equity and the law, and equity, for instance, only requires an agreement, not a contract, so even if the respondent was to say that there was no contract between myself and the respondent, then I still feel that at least there was an agreement.

HAYNE J: In the end, we are here dealing with the administration of a couple of Acts of Parliament, are we not? That is the nub of it.

MR SLEEP: Yes, your Honour, you have to take public policy into account – well, statutory law and public policy, I understand that. But there are some current common knowledge, for instance, like even last night, I was listening to the ABC and the Leader of the Opposition, Mark Latham, in relation to the Hardie case, said a political party should do the right thing, and the current Prime Minister, John Howard, stated as a general principle we will have no truck with any corporation in this country that is found to have rearranged its affairs to frustrate its legal obligations to its former employees.

So underlying that is that bodies appointed by law should act according to the law. If the maintenance of the rule of law is seen as the proper foundation for judicial intervention, this could hardly be described as an unsatisfactory result.

There were issues with the valuation case. I was not apprised of the critical factor that the case depended upon, being that the value of the property would be extrapolated from the value of the lease. At no stage prior to the Tribunal or that or even was it made clear to me by the Tribunal that that was the case.

If I might just add one further thing back as far as the agreement and that goes, that it is a basic assumption of our law that bargains are to be kept.

So I was not apprised of the critical factor in the valuation case. The critical fact that the Tribunal – I am sure affected – was critical to the Tribunal’s decision was that the valuer from the Australian Valuation Office stated in his valuation report that the annual rent was a certain amount that was told to him by the real estate agent, by my real estate agent.

Now, as I have tried to learn, to me that now seems like hearsay evidence. The real estate agent was not called to give evidence to substantiate that fact and there was no sufficient explanation of his absence. So the whole decision, or the decision that the Tribunal made, was based on an erroneous level of the annual rent. In the Federal Court, the court said that even if they agreed with my contention of what the rent was, that it was still within the range, which I now understand to be State law the same as if you appealed against your house value and it was within 10 per cent or something.

But that judgment missed the point that if that was agreed to, my contention as to the rent, then there would be no change in circumstances as far as my service pension was concerned and that therefore there was no power or no reason – no power for the respondent to act to reduce my service pension. So then there is no explanation for why the valuer, the Australian Valuation Office valuer, used hearsay evidence from the real estate agent rather than go to what is the normal procedure, is to go to my real estate agent, ask for the rent file, get the rent file, look in the rent file and verify it. It is a normal procedure, as I now understand it, that that is what happens. I did not then. So if his behaviour or if he did not exhibit due diligence and investigate the matter properly, that puts in danger his qualified privilege.

HAYNE J: But in the end, his valuation was based on two alternative approaches – one he described as summation; the other was capitalisation – and, in the end, he compared it with other comparable sales.

MR SLEEP: The one comparable sale that the Tribunal found to be the most relevant was one that was made after the date of valuation.

HAYNE J: Yes.

MR SLEEP: Also, like, I think the valuation exercise was a sham anyway, your Honour, and there was unconscionable conduct. So really, I mean, it is an error in fact but it is a crucial – it is a critical fact. It is an error in a critical fact. As I said before about a body created by the law should abide by the law and the respondent should be a model litigant.

HAYNE J: Now, can I just make sure I understand the essence of what you have told us so far on the valuation case. The core of the complaint is about the valuation, about the way in which the valuer went about it, in particular, his use of the rental evidence. That is coming to the core of what you say about the valuation issue, is that right?

MR SLEEP: Yes, your Honour.

HAYNE J: On the other matter – or is there anything more?

MR SLEEP: I have overlayed above that, if that is a microcosm, then above that is the general thing I am saying about a bargain should be kept and the TPI.

HAYNE J: I understand that. Now, on the other matter, as I understand it, the core of your case is the decision is so unreasonable no reasonable decision-maker could make it, is that right?

MR SLEEP: On the attendant allowance matter?

HAYNE J: The attendant allowance case. Is that right?

MR SLEEP: Well, yes, your Honour. On that one, that has changed also, like that is where the changes in conditions of service come. At one time for a TPI it was a – or for anyone with a war-caused disability that required an attendant allowance, it was a one-limb test.

HAYNE J: Yes.

MR SLEEP: But after I have served, then they change it and it becomes a two-limb test and I cannot even be considered for an attendant allowance according to that.

HAYNE J: Yes. So you have these general questions that you began with and those are there.

MR SLEEP: Yes.

HAYNE J: Then at the narrower level your complaint is that no reasonable decision-maker could have arrived at this decision. Does that capture the essence of the case?

MR SLEEP: Yes, your Honour.

HAYNE J: Is there more to it than that?

MR SLEEP: Well, with the attendant allowance one, I think if it is as the respondent contends that I cannot be considered for an attendant allowance, then that would be some type of discrimination compared to other civilians or in the normal law, in general law, that I do not think – I think if someone is injured, then they have redress under the law to be compensated and in the wider law it does include things like an attendant or other things. Whatever is needed to right the wrong or make things as well as possible within the law, what the law allows for.

I just feel I have been discriminated against. They have taken away my common law right to sue them and replaced it with something that is devalued. It is not as just as the other one. It is unjust, in fact, to take away – at least not even to be considered for it, your Honour, and when my war-caused disease or injury is damage to the immune system, to do with immunity, which is common knowledge from Agent Orange and dapsone tablets and DDT and 2,4-D – a myriad of things that is accepted, common knowledge that that happened. So is there something just because of that and not a gunshot wound that I am being discriminated against or is it – I mean, I do not think they discriminated against soldiers in World War I when their own side put up the mustard gas and the wind changed and it blew back on them. I do not think they discriminated against them, your Honour, and to me I am in a similar situation.

HAYNE J: I just want to make sure I understand the nub of the case. On this aspect of it there are these larger issues of unfairness and those other larger issues you have mentioned, and then it is that nobody sensibly could have arrived at this decision; is that it?

MR SLEEP: Yes, your Honour.

HAYNE J: Is there more to it than that?

MR SLEEP: Yes, your Honour. I think there is wilful blindness in both sides – in both cases. There is wilful blindness on behalf of the valuer to not do his duty as he should have seen it with due diligence and that. And on the attendant allowance case, there is wilful blindness by not considering me – whether I do have a cerebro-spinal injury or sending out a procrustean form to my doctor that is “tick a box” and did not ask her whether I have a cerebro-spinal injury and as my immunity stems from bone marrow, your Honour, which is found in the spine, and the other one is anxiety state which is in the head. So between the two of them maybe I do qualify for cerebro-spinal injury, but I mean that is not something that the respondent ventured to inquire on, and why not? Wilful blindness, your Honour. Knew what the answer would be; did not entertain it. Same with the valuation. Did not put down what the rent was in the rent file, put down hearsay evidence because they knew what the answer was and they did not like the look of it.

There is also – you know, there is the question of my wife and I are in partnership in the valuation business, the same as the respondent and I were in partnership in Vietnam; both a bit of an adventure, your Honour. The valuation thing was a pre-emptive strike on me and the reason why they
made the pre-emptive strike and showed wilful blindness was because they knew that legally they could not reduce my full pension, my full entitlement, which is governed by our legal relationship which is, you know, grunt versus the great boulder goldmine.

As I say, if equity can come to my aid, if discrimination law can come to my aid, if international law can come to my aid – I understand you have to take into account public policy, but the behaviour of the respondent as a model litigant leaves much to be desired, your Honour. The behaviour in the valuation case of the valuer and who could only, I guess, because he was heavied by the respondent – I do not know whether “heavied” is the right word but undue influence – then that is deserving of censure.

Any contract I had with the government is not void because I have not seen any clear language to say that it was not. The politicians still have their photos taken with the soldiers going away. As far back as World War I, we were told – returned servicemen have always been told, “If you go away, we will look after you when you come home”. The only other thing, your Honour, I may have been wrong with Repatriation Commission v Barry; it may have been another Barry’s Case.

HAYNE J: Thank you, Mr Sleep. We need not trouble you, Ms Maharaj.

In matter A185 the applicant disputed the value of freehold property which he owned and which the Repatriation Commission had used in assessing the amount of his pension. The Administrative Appeals Tribunal on reviewing the matter reduced the value originally fixed by the Commission but set that value at a level higher than the applicant contended and contends was correct. A federal magistrate dismissed an appeal against that decision and a single judge of the Federal Court, exercising the appellate jurisdiction of that court, also dismissed the applicant’s appeal. There is in our opinion no reason to doubt the correctness of the order of the Federal Court of Australia and it follows that special leave to appeal must be refused.

In matter A5 the applicant sought the grant under section 98 of the Veterans Entitlements Act 1986 (Cth) of an attendant allowance. He contended that he suffered a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebrospinal system. His condition, a rare blood disorder, has reduced his immune system such that he is the target for opportunistic infection. His application for the attendant’s allowance failed.

His appeals, first to the Administrative Appeals Tribunal, then to the Federal Magistrates Court and finally to a Full Court of the Federal Court of Australia, all alleged that the decision to refuse the allowance was so unreasonable that no unreasonable decision-maker could reach it. All his appeals have failed. An appeal to this Court would enjoy no prospect of success, and it follows that special leave must be refused.

MS MAHARAJ: We seek costs in both the matters.

HAYNE J: In each matter the order must be special leave to appeal is refused with costs.

AT 10.45 AM THE MATTERS WERE CONCLUDED