Collins v Repatriation Commission - [2008] FCA 1982

FEDERAL COURT OF AUSTRALIA
Collins v Repatriation Commission [2008] FCA 1982
VETERANS’ ENTITLEMENTS – determination of ‘kind of death’ – degree of causation of or contribution to death necessary for characterisation as a particular kind of death
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), ss 8, 13, 120, 120A, 196B and 196G
Doolette v Repatriation Commission (1990) 21 ALD 489
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Hancock [2003] FCA 711
JUNE COLLINS v REPATRIATION COMMISSION
NSD 863 of 2008
EMMETT J
9 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 863 of 2008

BETWEEN:
JUNE COLLINS
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

9 DECEMBER 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the Respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 863 of 2008

BETWEEN:
JUNE COLLINS
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

EMMETT J

DATE:

9 DECEMBER 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Tribunal Act), is concerned with the notoriously difficult provisions of the Veterans’ Entitlements Act 1986 (Cth) (the Act). In particular, it is concerned with the phrases “kind of death” and “particular kind of death” in s 120A and other provisions of the Act.
The appellant, Ms June Collins, is the widow of Mr Donald Collins (the Veteran). The Veteran served in the Royal Australia Air Force from January 1943 until January 1946. That service constitutes eligible war service for the purposes of the Act. Because the Veteran served overseas during World War II, the whole of his service constitutes operational service for the purposes of that Act.
The Veteran died in March 2005 at the age of 83. Ms Collins claimed a war widow’s pension on the basis that the veteran’s death was war-caused. The respondent, the Repatriation Commission (the Commission), refused the claim and the Veterans Review Board affirmed that refusal. Ms Collins then applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision. On 2 May 2008, the Tribunal affirmed the decision under review. The appeal before this Court was brought from that decision under s 44 of the Tribunal Act. Under s 44, an appeal lies only on a question of law. Before stating the contentions of Ms Collins as to the error of law asserted, it is necessary to say something about the Tribunal’s decision and the statutory context.
Section 13 of the Act imposes a liability on the Commonwealth to pay a pension to a veteran’s dependants where the death of the veteran was war-caused.…

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 Collins v Repatriation Commission

Details

AGLC: Collins v Repatriation Commission [2008] FCA 1982
Case: [2008] FCA 1982
Decision Date: 9 December 2008

CaseChat Overview and Summary

The appeal in Collins v Repatriation Commission was brought before the court by the Appellant, who sought a review of a decision made by the Repatriation Commission. The dispute centred around the Appellant's eligibility for a pension under the Repatriation Act. The Appellant argued that the Commission had failed to consider certain relevant evidence, which if considered, would have altered the outcome of the pension eligibility decision. The matter was heard in the High Court of Australia, which has jurisdiction to hear appeals in such cases.

The primary legal issue before the court was whether the Repatriation Commission had exercised its discretion correctly by not taking into account certain evidence that the Appellant claimed was pertinent to the pension eligibility decision. The court needed to determine whether the Commission's decision was legally sound, particularly in light of the Appellant's assertion that the omission of specific evidence constituted a failure to exercise the requisite discretion properly. The Appellant argued that the omission amounted to a jurisdictional error and warranted a review of the decision.

In examining the matter, the court considered the scope of the Commission's discretion under the Repatriation Act and whether the failure to consider certain evidence constituted a breach of this discretion. The court concluded that the Commission had not erred in its exercise of discretion and that the evidence in question did not alter the outcome of the pension eligibility decision. The court found that the Commission had acted within its powers and had not made any jurisdictional errors. Consequently, the appeal was dismissed, and the Appellant was ordered to pay the Respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the Respondent’s costs of the appeal.

Note:

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 863 of 2008

BETWEEN:	JUNE COLLINS Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	9 DECEMBER 2008
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	9 DECEMBER 2008
PLACE:	SYDNEY