Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 994
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/327
| VETERANS’ APPEALS DIVISION | ) | ||
| Re | GRAHAM ALLAN | ||
Applicant
| And | REPATRIATION COMMISSION |
Respondent
DECISION
| Tribunal | Justice Garry Downes, President |
Date 3 October 2003
Place Brisbane
| Decision | The Tribunal directs that: (i) the matter be fixed for hearing before a single member tribunal constituted by a legally qualified member different to the member who heard the matter previously; and (ii) the matter be heard de novo unless the parties are able to confine the issues and communicate this to the Tribunal prior to the hearing. |
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President
CATCHWORDS – interlocutory decision – remittal by consent from Federal Court of Australia to differently constituted tribunal – error of law not identified – factors relevant to constitution not identified – different legally qualified member to hear the matter de novo unless parties confine issues
Administrative Appeals Tribunal Act 1975 (Cth), ss 20, 44
Bowman v Comcare Australia [2000] FCA 88
Comcare Australia v Hill (1999) 56 ALD 487
Commissioner of Taxation v MacArthur [2003] FCA 903
De Domenico v Marshall (1999) 94 FCR 97
Hornsby v Military Superannuation and Benefits Board of Trustees No 1 [2003] FCA 54
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323
Lynch v Minister for Human Services and Health (1995) 61 FCR 515
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Ragogo v Minister for Immigration and Ethnic Affairs & Anor (1995) 59 FCR 489
Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76
Versatile Carpets Pty Ltd v Collector of Customs (1985) 7 ALN N167; Sweeney, Woodward and Davies JJ, 21 February 1985
Villa v Minister for Immigration and Multicultural Affairs [2001] FCA 115
Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129
Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142
REASONS FOR DECISION
On 27 September 2002 this Tribunal, constituted by Dr E K Christie, determined that the applicant Graham Allan must fail in his claim to a greater pension entitlement than he had been awarded by the Veterans’ Review Board. Dr Christie gave written reasons for his decision. Mr Allan appealed to the Federal Court of Australia. The Federal Court allowed the appeal by consent and remitted the matter to the Tribunal “for determination according to law”. There are no formal reasons for judgment. The parties cannot now agree as to what errors of law justified the appeal being allowed. My task, pursuant to s 20 of the Administrative Appeals Tribunal Act 1975 (“the Act”), is to determine how the Tribunal should be constituted to hear the matter again. I note that the order of the Federal Court directs that the matter “be remitted to…
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- Allan and Repatriation Commission [2003] AATA 994
- Case
- [2003] AATA 994
- Decision Date
CaseChat Overview and Summary
The court examined the relevant statutory provisions and case law to determine the appropriate procedure for remittal in the absence of an identified error of law. It noted that while the AAT has the power to remit a matter under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), this power is generally exercised in the context of identifying an error of law or other factors affecting the constitution of the tribunal. The court also considered the principles established in previous cases, such as Commissioner of Taxation v MacArthur and Hornsby v Military Superannuation and Benefits Board of Trustees No 1, which emphasised the need for a legally qualified member to hear the matter de novo unless the parties could confine the issues.
The court concluded that where no error of law is identified and the relevant factors affecting the constitution of the tribunal are not specified, the remittal should be to a differently constituted tribunal, with a legally qualified member. The court further held that the matter should be heard de novo unless the parties are able to confine the issues and communicate this to the Tribunal prior to the hearing. This approach ensures that the matter is properly considered by a tribunal with the appropriate expertise and that any procedural issues are addressed.
The court directed that the matter be fixed for hearing before a single member tribunal constituted by a legally qualified member different to the one who heard the matter previously, and that the matter be heard de novo unless the parties were able to confine the issues and communicate this to the Tribunal prior to the hearing.
Orders
Orders of the court
The Tribunal directs that:
(i) the matter be fixed for hearing before a single member tribunal constituted by a legally qualified member different to the member who heard the matter previously; and
(ii) the matter be heard de novo unless the parties are able to confine the issues and communicate this to the Tribunal prior to the hearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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