FEDERAL COURT OF AUSTRALIA
Clearihan v Repatriation Commission (No 2) [2020] FCA 1276
File number: VID 762 of 2019 Judgment of: MOSHINSKY J Date of judgment: 4 September 2020 Catchwords: PRACTICE AND PROCEDURE – form of orders to be made following appeal on a question of law from the Administrative Appeals Tribunal – where the Court found the Tribunal had erred in its findings relation to a particular period of time – whether the Court should determine the applicant’s entitlement to a special rate of pension in relation to that period, or remit the matter to the Tribunal Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), ss 24, 25
Cases cited: Civil Aviation Safety Authority v Caper Pty Ltd (No 2) (2012) 132 ALD 475
Grundman v Repatriation Commission (2001) 66 ALD 125
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Hill (2002) 69 ALD 581
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of last submissions: 28 August 2020 Date of hearing: Determined on the papers Counsel for the Applicant: Ms F Ryan Solicitor for the Applicant: Williams Winter Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 762 of 2019 BETWEEN: KEITH CLEARIHAN
Applicant
AND: REPATRIATION COMMISSION
Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
4 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.The decision of the Administrative Appeals Tribunal (the Tribunal), to the extent that it dealt with and made findings concerning the applicant’s claims under the Veterans’ Entitlements Act 1986 (Cth) as related to the period from 24 July 2015 up to and including 30 September 2016, be set aside.
3.The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016.
4.The appeal otherwise be dismissed.
5.The respondent pay the applicant’s costs of the proceeding, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J
On 7 August 2020, I published reasons for judgment in relation to the present proceeding, which is an appeal on a question of law from a decision of the Administrative Appeals Tribunal: Clearihan v Repatriation Commission [2020] FCA 1130. These reasons, which deal with the form of orders to be made and costs, should be read together with the 7 August 2020 reasons. I will adopt in these reasons the abbreviations used in the reasons dated 7 August 2020.
In the 7 August 2020 reasons, I concluded that: the applicant’s challenge to the Tribunal’s findings in relation to Period 1 (that is, the period from 24 July 2015 until the end…
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- AGLC
- Clearihan v Repatriation Commission (No 2) [2020] FCA 1276
- Case
- [2020] FCA 1276
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Court should itself decide the applicant's entitlement to the special rate of pension for the specified period, or whether it should remit the matter back to the Tribunal for further consideration. This question arose from the finding that the Tribunal had erred in its assessment of the applicant's claims. The Court needed to weigh the appropriateness of making its own findings against the principles of administrative law that generally support the remitting of matters back to the original decision-maker for reconsideration.
The Court held that while it found errors in the Tribunal's reasoning, the correct course of action was to remit the matter back to the Tribunal. This decision was based on the principle that administrative tribunals are better suited to make factual findings and assess evidence. The Court concluded that it should not substitute its own findings for those of the Tribunal, particularly where new evidence might be adduced or existing evidence re-evaluated. Consequently, the appeal was allowed in part, with the Tribunal's decision concerning the specified period being set aside and the matter being remitted for further hearing and determination.
The orders of the Court were that the appeal be allowed in part, with the Tribunal's decision regarding the period from 24 July 2015 to 30 September 2016 being set aside and the matter remitted for further hearing and determination. The appeal was otherwise dismissed, and the respondent was ordered to pay the applicant’s costs of the proceeding. This outcome reflects the Court's deference to the Tribunal's role in administrative law while ensuring that errors in legal reasoning are rectified.
Orders
Orders of the court
1. The appeal be allowed in part.
2. The decision of the Administrative Appeals Tribunal (the Tribunal), to the extent that it dealt with and made findings concerning the applicant’s claims under the Veterans’ Entitlements Act 1986 (Cth) as related to the period from 24 July 2015 up to and including 30 September 2016, be set aside.
3. The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016.
4. The appeal otherwise be dismissed.
5. The respondent pay the applicant’s costs of the proceeding, as agreed or assessed.
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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