Application for leave to amend originating application
Where matter not proceeded by way of pleading
Where application akin to one made under r 8.21(1)(g) of the Federal Court Rules 2011 (Cth) in that it has the effect of substituting a new foundation in law for the relief sought
Quick Take
1Section 27(2) of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) preserves the old DRCA, including the former s 26, for determinations made before the review pathway commencement day (21 April 2025). Under former s 26(4)(b), 'a proceeding in respect of such a determination' instituted under Part VI is a proceeding in the Tribunal seeking review of the reviewable decision. It is not a challenge to the Tribunal's own decision. Instituting Tribunal review therefore excludes the statutory entitlement to interest on compensation payable under s 24.
2Section 39B of the Judiciary Act 1903 (Cth) does not impliedly empower the Federal Court to award interest in a proceeding seeking mandamus. Mandamus compels performance of a public duty and is not a proceeding for the recovery of money (following Kawasaki). Section 23 of the Federal Court of Australia Act 1976 (Cth) does not supply a power to award interest where none exists under s 51A or the general law (following Elsinora Global).
3Even if power existed, the Court found on the facts that interest was not appropriate. The compensation was paid into an account in the deceased's name within the timeframe the respondent had advised, which was not unreasonable, even though it was not the account the executor nominated.
