FEDERAL COURT OF AUSTRALIA
Blain v Repatriation Commission [2017] FCA 114
File number: QUD 775 of 2016 Judge: LOGAN J Date of judgment: 17 February 2017 Catchwords: DEFENCE AND WAR – veterans’ entitlements – application under the Veterans’ Entitlements Act 1986 (Cth) – statement of principles – effect when deciding claim relating to operational service – existence of factors specified in statement of principles – conceded error in construction of statement of principles by Administrative Appeals Tribunal – practice and procedure in relation to the consequential disposal of appeal from Tribunal Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 14, 120
Federal Court Rules 2011 (Cth) r 39.11
Cases cited: Comcare v Etheridge (2006) 149 FCR 522
Date of hearing: Heard on the papers Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Solicitor for the Applicant: Cockburn Legal Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 775 of 2016 BETWEEN: ANN BLAIN
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
15 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal be allowed and the decision of the Administrative Appeals Tribunal, dated 9 September 2016, be set aside.
2.Pursuant to s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Court finds that the death of veteran, Milton Blain, was war-caused with effect from 7 April 2010.
3.The respondent pay the applicant’s costs of and incidental to the appeal as agreed or assessed.
4.The hearing of the appeal fixed for 17 February 2017 be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LOGAN J:
On 15 February 2017, following consideration of a “consent”, lodged pursuant to r 39.11 of the Federal Court Rules 2011 (Rules) and a related joint outline of submissions, I made orders as proposed in the consent, adding a consequential vacation of the listing for hearing on 17 February 2017 of the applicant’s appeal from the Administrative Appeals Tribunal (Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). At the time, the parties were informed that I would publish reasons for the making of the orders as soon as possible. These are those reasons.
Within the Rules, r 39.11 provides:
Consent orders
(1)A Judge may make an order in accordance with the terms of a written consent of the parties by initialling or otherwise annotating the consent and placing it on the Court file.
(2) The order must state that it is made by consent.
(3)The order has the same force and validity as an order made after a hearing by the Judge.
In relation to what are best termed statutory appeals under s 44 of the AAT Act (for in point of law they are proceedings in…
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- Blain v Repatriation Commission [2017] FCA 114
- Case
- [2017] FCA 114
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CaseChat Overview and Summary
The central legal issue before the court was whether the conceded error in the construction of the relevant statement of principles by the AAT warranted the setting aside of its decision. Additionally, the court had to consider the appropriate procedural steps to take in light of this error, specifically whether the Tribunal's decision should be set aside, and the implications for the determination of Mr. Blain's death as war-caused. The court was also required to address the proper exercise of its jurisdiction under section 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) in light of the conceded error.
The court found that the conceded error by the AAT in the construction of the statement of principles was significant enough to warrant the setting aside of the Tribunal's decision. The court held that when a statement of principles applicable to a claim is misconstrued, it undermines the integrity of the decision-making process, thus necessitating a review of the decision. The court also determined that, pursuant to section 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth), it could make a finding on the war-caused nature of Mr. Blain's death directly. Accordingly, the court set aside the AAT's decision and made its own finding that Mr. Blain's death was war-caused with effect from 7 April 2010. The court ordered the respondent to pay the applicant's costs of the appeal and vacated the previously scheduled hearing date.
Orders
Orders of the court
1. The appeal be allowed and the decision of the Administrative Appeals Tribunal, dated 9 September 2016, be set aside.
2. Pursuant to s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Court finds that the death of veteran, Milton Blain, was war-caused with effect from 7 April 2010.
3. The respondent pay the applicant’s costs of and incidental to the appeal as agreed or assessed.
4. The hearing of the appeal fixed for 17 February 2017 be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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