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Deslandes v Repatriation Commission

Deslandes v Repatriation Commission

Case [2015] FCCA 1786 14 August 2015

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DESLANDES v REPATRIATION COMMISSION

[2015] FCCA 1786

Catchwords:
ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – no jurisdiction – application dismissed.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – whether Tribunal properly applied s.119(g) or 119(h) of the Veterans’ Entitlements Act1986 (Cth) – no error demonstrated.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – whether Tribunal properly acquitted its obligation to give reasons pursuant to s.43 of the Administrative Appeals Tribunal Act1975 (Cth) – no error demonstrated.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.43(2), 43(2B), 44(1), 44AA(1),

Veterans’ Entitlements Act1986 (Cth), ss.70(1), 70(5), 70(6), 70(7), 70(8), 70(9), 70(9A), 70(10), 119(1)(g), 119(1)(h), 120(4), 120B, 120B(3)

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Comcare v Etheridge (2006) 149 FCR 522
Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Golfins v Repatriation Tribunal (1980) ALD 557
Grundman v Repatriation Commission [2001] FCA 892
Haritos v Commissioner of Taxation [2015] FCAFC 92
Hogno v Repatriation Commission [2010] FCA 1044
Knight v Repatriation Commission (2002) FCA 103
Rana v Repatriation Commission [2011] FCAFC 124
Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175
Total Marine Services Pty Ltd v Kiely [1998] FCA 153

Applicant:

DONALD DESLANDES

Respondent:

REPATRIATION COMMISSION

File Number:

BRG 118 of 2014

Judgment of:

Judge Jarrett

Hearing date:

5 May 2014

Date of Last Submission:

5 May 2014

Delivered at:

Townsville

Delivered on:

14 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr A. Harding

Solicitors for the Applicant:

Terrence O’Connor Solicitor

Counsel for the Respondent:

Ms Ford

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Notice of Appeal filed on 11 December, 2013 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules2011 up to and including 10 February, 2013 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 118 of 2014

DONALD DESLANDES

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

By his Notice of Appeal filed on 11 December, 2013 Donald Deslandes appeals, pursuant to s.44(1) of the Administrative Appeals Tribunal Act1975, a decision of the Veteran’s Appeals Division of the Administrative Appeals Tribunal given on 13 November, 2013. Although the appeal was commenced in the Federal Court, it was remitted for hearing and determination in this Court by order of Collier J made on 10 February, 2013.
The decision of the Tribunal affirmed a decision of a Veteran’s Review Board that itself affirmed a decision of the respondent to reject Mr Deslandes’ claim that…

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 Deslandes v Repatriation Commission

Details

AGLC: Deslandes v Repatriation Commission [2015] FCCA 1786
Case: [2015] FCCA 1786
Decision Date: 14 August 2015

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Jarrett J, considered an appeal by Mr Deslandes against a decision of the Administrative Appeals Tribunal (the Tribunal). The dispute concerned Mr Deslandes' entitlement to certain benefits under the *Veterans’ Entitlements Act 1986* (Cth). The Repatriation Commission was the respondent.

The primary legal issues before the Court were whether the Tribunal had erred in its application of sections 119(g) or 119(h) of the *Veterans’ Entitlements Act 1986*, and whether the Tribunal had properly discharged its obligation to provide reasons for its decision under section 43 of the *Administrative Appeals Tribunal Act 1975*. Crucially, the Court also had to determine whether it had jurisdiction to hear the appeal, given that the notice of appeal did not clearly state any questions of law.

Jarrett J found that the notice of appeal failed to identify any specific questions of law, which was a prerequisite for the Court to exercise its jurisdiction to hear an appeal from the Tribunal. Consequently, the Court lacked the necessary jurisdiction to proceed with the substantive grounds of appeal. Even if jurisdiction had been established, the Court indicated that no error had been demonstrated in the Tribunal's application of the relevant provisions of the *Veterans’ Entitlements Act 1986* or in its provision of reasons.

The application for leave to appeal was dismissed due to the absence of jurisdiction.

Orders