Cox v Repatriation Commission

[2006] FMCA 1744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COX v REPATRIATION COMMISSION [2006] FMCA 1744

ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – no question of law – appeal dismissed.

Administrative Appeals TribunalAct 1975, s.44
Veterans’ Entitlements Act1986, ss.9(1), 13(1), 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232
Comcare v Etheridge [2006] FCAFC 27
Comcare Australia v Lees (1997) 151 ALR 647

Applicant: GRAHAME COX

Respondent: REPATRIATION COMMISSION

File Number: BRG202 of 2006

Judgment of: Jarrett FM

Hearing date: 7 August 2006

Date of Last Submission: 7 August 2006

Delivered at: Brisbane

Delivered on: 24 November 2006

REPRESENTATION

Counsel for the Applicant: Mr Clutterbuck

Solicitors for the Applicant: Gilshenan & Luton

Counsel for the Respondent: Miss Ford

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The appeal is allowed.

2. To the extent set out hereunder, the decision of the Administrative Appeals Tribunal made on 12 January, 2006 is set aside.

3. The application of Grahame Cox to review the decision of the Repatriation Commission rejecting his claim to benefits under the Veteran's Entitlements Act 1986 in respect of the condition of lumbar spondylosis is remitted to the Administrative Appeals Tribunal for re-hearing according to law.

4. Any application for an order for costs of the appeal shall be filed and served no later than 4.00pm on 12 January 2007.

5. Any response to an application for an order for costs of the appeal shall be filed and served no later than 25 January 2007.

6. Direct that any application for costs be determined without an oral hearing unless either party requests an oral hearing in any application for, or response to an application for, costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG202 of 2006

GRAHAME COX

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. The applicant appeals against a decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) given on 12 January, 2006 which affirmed certain aspects and set aside certain aspects of a decision of the Repatriation Commission in respect of the applicant's claims for pensions for lumbar spondylosis, alcohol dependence, depression, osteoarthritis and post-traumatic stress disorder under the Veterans’ Entitlements Act 1986 (“the VE Act”).

2. The appeal is pursuant to s.44(1) of the Administrative Appeals Tribunal Act1975 (“the AAT Act”). That section provides that 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. The Federal Court may transfer the appeal to this Court for determination. This appeal was so transferred on 22 March, 2006.

3. The nature of an appeal under s.44(1) of the AAT Act was recently considered by the Full Court of the Federal Court of Australia in Comcare v Etheridge [2006] FCAFC 27. In that case, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:

   13 The…