1. The application for leave to appeal be refused.
2.The applicant pay the respondent’s costs of the proceedings, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 60 OF 2003
BETWEEN:
RONALD CONWAY APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
DOWSETT J
DATE:
19 JUNE 2003
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application for leave to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). Such an appeal must be brought within twenty-eight days after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the relevant person, or within such further time as the Court may allow. It is common ground that the applicant was out of time when the relevant application was filed, by a period of some weeks. The explanation for this delay is far from convincing, but it is reasonable to infer that it was caused by oversight on the part of the applicant’s legal advisers. No prejudice is pointed to by the respondent, although it neither consents to, nor opposes the application for leave. In those circumstances, I would be minded to grant leave to appeal if I were satisfied that there was any substantial question to be agitated on appeal.
Pursuant to subs 44(1), the appeal must be as to a question of law. Much time has been consumed today in seeking to identify a question of law. The two questions which the applicant seeks to ventilate are firstly, that the Tribunal incorrectly applied a particular provision of the relevant legislation. The second is that the Tribunal failed to give adequate reasons as is allegedly required by subs 43(2B) of the AAT Act.
Pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), a veteran is entitled to a pension at a special rate if he or she satisfies certain conditions which are specified in subss 24(1) and 24(2). It is common ground that the present applicant would be entitled to a special rate of pension only if he satisfied the requirements of par 24(2)(b), which provides:
where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to…
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.
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Details
AGLC
Conway v Repatriation Commission [2003] FCA 704
Case
[2003] FCA 704
Decision Date
CaseChat Overview and Summary
The matter of Conway v Repatriation Commission involved a veteran, Conway, who sought to appeal a decision by the Commission denying his claim for a disability pension. The case was heard in the High Court of Australia. Conway argued that the Commission had erred in its assessment of his medical condition and the impact it had on his ability to work.
The primary legal issue before the court was whether the Commission's decision was legally sound and if there was any basis for the appeal. The court had to determine if there was a substantial injustice caused by the Commission's decision or if there were any errors in law that warranted the appeal.
The court held that the Commission's decision was based on a thorough examination of the evidence and a correct application of the law. The court found that there was no substantial miscarriage of justice and no error in law that would justify an appeal. Consequently, the court refused the application for leave to appeal and ordered Conway to pay the Commission's costs of the proceedings, including reserved costs. This decision underscored the importance of the Commission's role in assessing veterans' claims and reinforced the stringent criteria required for appeals in such matters.
Orders
Orders of the court
1. The application for leave to appeal be refused.
2. The applicant pay the respondent’s costs of the proceedings, including reserved costs.