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Stack v Chief Of Army Department Of Defence [2014] FCCA 520 (19 March 2014)

Federal Circuit Court of Australia

Stack v Chief Of Army Department Of Defence [2014] FCCA 520 (19 March 2014)

Last Updated: 26 May 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

Defence Force Retirement and Death Benefit Authority v Britt  [1985] VicRp 11 ; (1984) 4 FCR 306 George v Fletcher (Trustee) [2010] FCAFC 53 at [75] Hamden v Secretary, Department of Human Services [2013] FCA 3 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 White Industries Australia Ltd v Commissioner of Taxation [2007] 160 FCR 298 at [54]

REPRESENTATION

ORDERS

(1) The time for the applicant commencing his application for review of the respondent’s decision made 17 December 2012 be enlarged to 7 February 2014.
(2) Costs reserved.
(3) The matter be adjourned for mention to 9.30am on 26 March 2014.

BRG 328 of 2013

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 14 December 2012 the acting Director General Career Management – Army made a decision, the effect of which was to deny the applicant access to a pension he claims an entitlement to pursuant to the Defence Force Retirement and Death Benefits Act 1973 (Cth). He contends that the decision constituted an improper exercise of the power conferred by the Act, involved an error of law, was uninformed by relevant material and otherwise generally contrary to law.
2. The applicant expressed unhappiness with the decision from an early time. However, he failed to formally make application for review until 7 February 2013. That is a delay of little over two weeks. He now applies for an extension of time under Federal Circuit Court Rules 2001 (Cth) r.31.02 to lodge his application for review under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). The application is opposed.

Principles

3. In the exercise of the Court’s discretion to grant an application for an extension of time, the following factors may be considered relevant:
   1. The length of delay;
   2. Whether or not there was an acceptable explanation for delay;
   3. Other actions taken by the applicant with respect to contesting the finality of the decision;
   4. The prejudice to the respondent occasioned by the delay;
   5. The merits of the substantive application; and
   6. Considerations of fairness as between the applicants and other persons in a like position: See Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 per Wilcox J; and, Hamden v Secretary, Department of Human Services [2013] FCA 3 per Besanko J.

Length of Delay and Explanation and other action taken

4. The applicant was advised of the decision on 20 December 2012. The decision itself was in the form of notice with an accompanying document entitled “Consideration outcome.” The notice did not advise of an avenue for review. The applicant wrote to the agency on 24 December requesting reasons.
5. In the meantime, he made enquiries of the Administrative Appeals Tribunal (“AAT”) concerning his appeal rights. From his enquiries it was suggested that he first ascertain if the decision was reviewable by the AAT or, being a decision made pursuant to an Act, governed by its jurisdiction. He was also advised to request a reconsideration, which he did on 8 January 2013.
6. He received advice on 18 January 2013 that his reconsideration had been unsuccessful. Accordingly, that day he lodged a form of application with the AAT. He says that on or about 31 January 2013 he spoke with a staff member at the AAT registry and that he was advised by that person to withdraw the appeal. He accepted that advice and was subsequently informed by letter dated 31 January 2013 of his withdrawal and that its effect was to dismiss the application.
7. The applicant says that he believed the time for making his application to the AAT commenced from the date of notice of rejection of the reconsideration. The basis for this belief is not explained. Nor did he provide an explanation as to why he withdrew his application formally made to the AAT beyond stating he did so upon the advice of the Tribunal’s registry staff.
8. In any event, shortly after these matters he consulted solicitors and they caused an application, including an application for exemption from paying court fees, to be filed on 7 February 2013.^[1]
9. The delay is approximately 20 days. It is not significant. Furthermore, time for making the application and the delay occurred during a period of general stand down for government and the legal profession. Contrary to the applicant’s submission, the time for computation of time commenced from the date that the applicant was given notice of the decision: s.11(1)(c) ADJR Act. The applicant had 28 days from that date, meaning that time expired on 18 January 2013.
10. It can be seen, and I accept, that the delay was minor.
11. The applicant’s explanation for the delay is that despite his intentions and efforts to exercise his rights of review he did so ineffectively until he placed the matter in the hands of his solicitors. He contends that in part he adopted an infelicitous approach due to the assistance he had received from registry staff at the AAT.
12. It is not clear why he did not seek to engage legal assistance earlier. Notwithstanding that matter, it is clear he intended from the outset to seek a review and that he took steps to achieve that outcome. Upon realising that he was “out of his depth,” he promptly sought legal assistance.
13. I accept the respondent’s submission that the applicant plainly knew that a time limit existed. His failure to comply with it appears to be a consequence of his own inability. Given that he has no legal background, this factor should not weigh too heavily.

Prejudice

14. It is accepted that the potential prejudice to the applicant is significant compared to that of the respondent if leave is not granted.

Merits of the Application

15. The applicant was a young serviceman in 1971 when he was discharged as medically unfit because of injuries sustained in a grenade accident. He had not seen operational service. However, he claims that he has osteoarthritis and a psychological disorder, both of which were occasioned by the training accident which occurred on or about 19 October 1971 (approximately 18 months after his initial enlistment). On that occasion he was injured when a mortar simulator exploded in his face. He contends that his separation medical was incomplete and that he was never examined and thus afforded an opportunity to have the full extent of his injuries and symptoms recorded in his discharge material.
16. In what are particularly detailed submissions, the applicant sets out:
    1. The history relevant to his PTSD condition;
    2. An explanation as to why there is no discharge record of factors that might be relevant at discharge to its onset; and
    100. Contemporary medical evidence supporting a hypothesis that his condition may relate to his service.
17. The contrary position was posited in a memo prepared by Colonel Wells, a clinical health practitioner on staff of the Joint Health Support Agency, who observed:
    • “Mr G Stack. This past Army member, who is also a very active advocate for other ex-members, was injured in training (no overseas service) in 1971 and discharged shortly thereafter. He claims that he should have been discharged as medical unfit because of PTSD. His claims are not consistent with his medical record and there are no recorded mental health issues or symptoms. He provided no medical evidence of his condition before 2006.”
18. The applicant claims an entitlement to a favourable decision under s.51(6) of the Defence Forces Retirements Benefits Act 1948 (the Act). Relevantly s.51(6) provides,
    • “51 Classification in respect of incapacity
    • ...
    • (6) Where a member who is a contributor has, before 1 October 1972, retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.”
19. The interpretation of the analogous section, s.37 DFRDA Act, has been subject to prior consideration. In Defence Force Retirement and Death Benefit Authority v Britt  [1985] VicRp 11 ; (1984) 4 FCR 306 at 309 the Full Court observed,
    • “Section 37 confers on the Chief’s-of-Staff only the function of determining and informing the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity. There remains a decision to be made, namely, whether, in the circumstance of the case, the member should be treated as if he had been retired no that ground.”
20. It is plain from the Full Court’s determination that the approach for consideration of an application under s.37(s.51(6)) requires the Chief of Army to determine whether a member at the time of retirement could have been retired on the ground of invalidity. In this case the applicant’s complaint is that the Chief of Army has not made a proper decision for the reasons articulated in his application. As I have noted the applicant has filed extensive submissions identifying proper grounds for consideration. To employ the nomenclature which applies to a consideration of the analogous circumstances concerning applications for summary dismissal, the question for consideration is whether the applicant has “no reasonable prospects of success” which does not mean “that I must be satisfied that the proceeding is hopeless or bound to fail”: White Industries Australia Ltd v Commissioner of Taxation [2007] 160 FCR 298 at [54]; George v Fletcher (Trustee) [2010] FCAFC 53 at [75].
21. From written submissions filed by each party it is apparent that a reasonable basis for conflict exists, which in my view would be assisted by oral submissions. The applicant addresses its point on over 40 pages of submissions and the respondent’s material in response to the application is over 800 pages in length. The parties by their engagement implicitly acknowledge the matter warrants appropriate consideration. Given the complexity of the technical, medical and legal issues involved it is plainly a matter that warrants appropriate consideration informed by argument and submissions. The merits are not so obvious that the applicant ought not be afforded an opportunity to do that if other factors do not disqualify him from the exercise of that right. The applicant’s application is not one which is so clear cut that it would be subject to summary dismissal. In summary I do not accept that there would be no utility in permitting the applicant an opportunity to properly present and argue his application.

Consideration of Fairness as Between the Applicant and Other Persons otherwise in a like Position

22. There is nothing about the circumstances of this application which suggest that to afford the applicant the opportunity to be heard on his application he would be unfairly advantaged when compared to other applicants in a like position.

Conclusion

23. Considering all relevant matters, I am satisfied this is an appropriate case for the exercise of the Court’s discretion to extend time.

Orders

(1) The time for the applicant commencing his application for review of the respondent’s decision made 17 December 2012 be enlarged to 7 February 2014.
(2) Costs reserved.
(3) The matter be adjourned for mention to 9.30am on 26.March 2014.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date: 19 March 2014

^[1] Although the application is dated 6 February 2013 it was filed by facsimile after 5.00pm that day.