Burge v Repatriation Commission - [2001] FMCA 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURGE v REPATRIATION COMMISSION

[2001] FMCA 74

VETERANS AFFAIRS – Veterans entitlement.

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – consent orders – role of appellate court allowing appeal and remitting to Tribunal – no mere formality.

Minister for Immigration & Ethnic Affairs v Gungor 63 FLR 441
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) FCA 1194
Repatriation Commission v Williams (2001) FCA 1185

Administrative Appeals Tribunal Act 1975

Applicant:

LESLIE BURGE

Respondent:

REPATRIATION COMMISSION

File No:

MZ 606 of 2001

Delivered on:

26 October 2001

Delivered at:

Melbourne

Hearing Date:

12 October 2001

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr D De Marchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Ms A McMahon

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the appeal be allowed.
That the application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, save and except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated
20 December 2000.
That the respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 606 of 2001

LESLIE BURGE

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Mr B H Pascoe, Senior Member, Mr I L J Campbell and Associate Professor J Maynard (“the AAT”) delivered on 20 December 2000.
LESLIE BURGE (“the applicant”) in a supplementary notice of appeal raises various grounds upon which the application is based in support of the application that the Tribunal has made an error of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975. The AAT had been asked to review a decision of the Veterans Review Board (“the VRB”) dated 17 November 1998 which had affirmed a decision of the respondent of 7 July 1997 that found conditions of intra-cranial haemorrhage, mild anxiety disorder and varicose veins left leg were not war-caused.
Before the court the legal representatives of the applicant and the respondent indicated that the application had been settled and I was encouraged to make the following orders by consent:

“1. That the appeal be allowed.
2. That the present application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated

20 December 2000.
3. The respondent should pay the applicant’s reasonable costs of the application to be taxed in default of agreement.”

In my view, when a court is confronted with minutes of proposed orders in the form that requires both the appeal to be allowed and the matter remitted to the AAT for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burge v Repatriation Commission

Details

AGLC: Burge v Repatriation Commission [2001] FMCA 74
Case: [2001] FMCA 74
Decision Date: 26 October 2001

CaseChat Overview and Summary

The case of Burge v Repatriation Commission involved the appellant, Burge, appealing against a decision of the Administrative Appeals Tribunal (AAT). The central issue in this dispute was whether the AAT had correctly applied the relevant law in determining that Burge's varicose veins in his left leg were not war-caused. The Federal Court of Australia was tasked with reviewing the AAT's decision and determining whether it contained any errors of law that warranted the case being remitted for re-hearing.

The court had to decide whether it had the authority to make any order it deemed appropriate after finding an error of law in the AAT's decision. The legal issue revolved around the interpretation of Section 44 of the Administrative Appeals Tribunal Act, which governs appeals to the Federal Court from decisions of the AAT. Specifically, the court needed to clarify the scope of its powers in making orders consequent to such appeals, particularly in the context of an error of law being identified.

The court held that its powers in making orders on such appeals were indeed limited and had to be exercised in a manner that was appropriate by reason of the decision on the error of law. The court relied on previous decisions such as Minister for Immigration & Ethnic Affairs v Gungor, where Sheppard J emphasised that the court's powers were restricted and should not be seen as unlimited. The court concluded that while it had the power to remit the case to the AAT for re-hearing, it could not substitute its own decision for that of the AAT unless it was the appropriate order by reason of its decision on the point of law.

In light of these findings, the court allowed the appeal, remitted the application to the AAT for re-hearing according to law, and affirmed the AAT's decision regarding the condition of varicose veins in Burge's left leg. Additionally, the court ordered the respondent to pay the applicant's costs, to be taxed in default of agreement.

Orders

Orders of the court

That the appeal be allowed.

That the application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, save and except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated

20 December 2000.

That the respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am mindful of the fact in appeals of this kind there is clear authority for the proposition that the court has an obligation to identify the question of law and endeavour to correct that error of law on appeal. Thereafter the court should make orders which may be appropriate in the discharge of judicial function and exercise of judicial power of the Commonwealth. I refer in particular to the decision in Minister for Immigration & Ethnic Affairs v. Gungor 63 FLR 441 and the judgment of Sheppard J when responding to a contention by the respondent concerning the court’s role on an appeal under s 44 of the Administrative Appeals Tribunal Act, His Honour stated at page 454,:“Dealing with the powers of this court on this appeal, it is not correct to see our powers as unlimited. The powers as stated are subject to restrictions, which restrictions are readily apparent if compared with the powers on review of the Tribunal, admittedly acting administratively, and the powers of this Court in other jurisdictions, both original and appellate. The relevant portions of s 44 of the AAT Act are as follows:(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.(2) … (3) … (4) The Federal Court of Australia shall hear and determine the appeal and make such order as it thinks appropriate by reason of its decision.(5) Without limiting by implication the generality of subsection (4) the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the court. (The emphasis is mine.) It is in my opinion not correct to say that this court is by these provisions given wide powers to make such order as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court’s view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section. A power to make ‘such order as it thinks appropriate by reason of its decision’ is much more restrictive than a power ‘to make such orders as it sees fit’, or a power ‘to make a decision in substitution for the decision’ the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s 44(4) when it limits its statement of the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.”

Ratio Decidendi

Legal Principle Established

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