A v Marsh, J R [1995] FCA 622

A v Marsh, J R [1995] FCA 622

The Board was not required, merely before exercising its broad investigatory power under s152 of the Veterans' Entitlements Act 1986 (Cth), to afford the applicant a right to be heard, because that power is directed to obtaining information preparatory to decision-making and is not ordinarily adverse in its exercise. However, the Board committed an error of law by refusing to consider further submissions on the basis that it had no power to reconvene. That erroneous procedural refusal was reviewable conduct under s6 of the ADJR Act, and because the Board might have reached another conclusion absent the error, remittal was not futile.

Jurisdiction
Australia
Judgment Date
16 August 1995
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Federal Court Application Challenging Conduct of the Veterans' Review Board Before Final Determination of the Board Review
Outcome
Application allowed; matter remitted to the Veterans' Review Board for reconsideration; second respondent ordered to pay the applicant's costs.
Legal Topics
['procedural Fairness' 'natural Justice' "investigatory Powers of Veterans' Review Board" 'reviewable Conduct Under S6 of the Administrative Decisions (judicial Review) Act 1977 (cth)' 'error of Law as to Power to Reconvene an Adjourned Hearing']
['administrative Law' "veterans' Entitlements"] ['procedural Fairness' 'natural Justice' "investigatory Powers of Veterans' Review Board" 'reviewable Conduct Under S6 of the Administrative Decisions (judicial Review) Act 1977 (cth)' 'error of Law as to Power to Reconvene an Adjourned Hearing']

Case Brief

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Federal Court Application Challenging Conduct of the Veterans' Review Board Before Final Determination of the Board Review

Legal Issues

  1. 1 ["Whether the Veterans' Review Board was required to afford the applicant a right to be heard before exercising its powers under s152 of the Veterans' Entitlements Act 1986 (Cth) to seek further information, investigation or medical examination." 'Whether the Board erred in law by deciding that it had no power to reconvene, hear further submissions and reconsider its proposed course.' "Whether the Board's refusal to reconvene to enable the applicant to be heard was reviewable conduct under s6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)." 'Whether relief should be refused as a matter of discretion on the basis that remittal would be futile.']

Ratio Decidendi

The Board was not required, merely before exercising its broad investigatory power under s152 of the Veterans' Entitlements Act 1986 (Cth), to afford the applicant a right to be heard, because that power is directed to obtaining information preparatory to decision-making and is not ordinarily adverse in its exercise. However, the Board committed an error of law by refusing to consider further submissions on the basis that it had no power to reconvene. That erroneous procedural refusal was reviewable conduct under s6 of the ADJR Act, and because the Board might have reached another conclusion absent the error, remittal was not futile.

Court Disposition

Application allowed; matter remitted to the Veterans' Review Board for reconsideration; second respondent ordered to pay the applicant's costs.

Orders

  • ['The application be allowed.' "The matter be remitted to the Veterans' Review Board for reconsideration in accordance with these reasons." 'The second respondent pay the costs of the applicant.' 'The name of the applicant not be published in connection with the proceedings.']