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Rana v Repatriation Commission

[2011] FCAFC 123

COURT Federal Court, Brisbane (via video link to Adelaide)
JUDGE Kenny, Stone and Logan JJ
DECISION The appeal was dismissed
ISSUES Whether there was an error by the primary judge in his reasons as to why there was no merit in the judicial review application

Facts

Both the direction given by the Tribunal at the procedural stage and its later final decision became the subject of proceedings instituted by Mr Rana in the Court’s original jurisdiction. Those proceedings were also heard together however separate judgements were given.

The Tribunal’s procedural direction was that the matter will proceed by way of preliminary hearing where the issue will be confined to whether Mr Rana is a veteran/member of the armed forces for the purposes of the Veterans’ Entitlements Act 1986.

On 4 September 2009 the Tribunal determined that preliminary issue adversely to Mr Rana. The result of that adverse determination was a decision by the tribunal that the decision under review should be affirmed.

In relation to the Tribunal’s earlier procedural direction, Mr Rana’s appeal took the form of an application under  s39b of the Judiciary Act 1903(Cth) for the judicial review of the decision to give that direction.

That application was dismissed by the learned primary judge.

This appeal is against that order of dismissmal.

Grounds of appeal

The grounds of appeal were stated by Mr Rana to be:

  1. The learned judge erred in denying the appellant natural justice; by not properly considering that Member Short when cited legal precedents and principle that ss69 and 70 related proceedings should be heard together. The reason given by him is illogical , unreasonable or unsatisfactory or inadequate in law. This was unfair to the applicant and not supported by evidence.
  2. The learned judge had substantial evidence before him to infer that the appellant was surprised in directions hearing that only preliminary hearings would go forward, and to that no reasonable explanation was provided for, where by Member Short would allow oral submissions to the respondent to cite precedents to separate the joint hearing and without prior notice, and the unrepresented litigant was not prepared to rebut the legal citations of the precedents. This disadvantaged the unrepresented appellant, when the respondent without giving reasonable notice orally cited various precedents to separate the matter  for preliminary inquiry. This was unfair an unreasonable to the appellant.

The Court’s Consideration

Mr Rana pressed each ground of appeal. We mean no disrespect to him in observing that, in his oral and written submissions there was a disjunct between those submissions and his grounds of appeal. His submissions ventured into matters which if relevant at all, were relevant only to his separate appeal under s44 of the AAT Act.

It was within the discretion of both Member Short and Deputy President Hack to undertake the task of reviewing the Commission’s decision by first deciding whether the VEA had any relevant application to Mr Rana. No procedural unfairness attended the direction by either of these members of the Tribunal that the review application be heard in this way. Mr Rana was, on each occasion, offered an opportunity to be heard on the subject of how the Tribunal ought to proceed and took advantage of that opportunity.

The learned primary judge was right to conclude that the tribunal, as constituted on each interlocutory occasion, was entitled to act as it did.

There is no error in any of the other reasons given by his honour as to why there was no merit in the judicial review application.

An absence of utility is one reason why a court may, as a matter of discretion, refuse to grant judicial review remedy.

There were thus multiple reasons why the judicial application was rightly dismissed.

In respect of the exercise of judicial power, it has long been the position that leave should not readily be granted to appeal against interlocutory judgements which concern matters of practice and procedure alone.

Such an appeal is only open in respect of a decision which had about it a quality of finality: Chaney’s case. Such appeals must also be on questions of law.

No less than in judicial proceedings, the scope for oppression by a party with a deep pocket or a querulous disposition of another party can be present in administrative review proceedings. Recalling this and the scheme of the AAT act is to permit challenges on a limited basis to the Tribunal’s final decisions and also confer a broad discretion on the tribunal as to how it goes about making those final decisions, counsels a principled restraint in the granting of judicial review remedies in respect on interlocutory decisions of the Tribunal in relation to matters of practice and procedure.

Decision

Mr Rana’s  appeal was dismissed with costs.

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