ADMINISTRATIVE LAW - Veterans' Affairs - entitlement to pension under s 13 Veterans' Entitlements Act 1986 - whether injury resulted from applicant's serious default or wilful act.
ADMINISTRATIVE LAW - "appeal" from decision of Administrative Appeals Tribunal - whether a party is precluded from raising a matter conceded before the Tribunal.
PAUL RAMON FERRIDAY v THE REPATRIATION COMMISSION WAG105 OF 1995
LEE J PERTH 17 SEPTEMBER 1996
IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 105 OF 1995
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
B E T W E E N: PAUL RAMON FERRIDAY
Applicant
and
THE REPATRIATION COMMISSION
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J
DATE OF ORDER: 17 SEPTEMBER 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 105 OF 1995
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
B E T W E E N: PAUL RAMON FERRIDAY
Applicant
and
THE REPATRIATION COMMISSION
Respondent
CORAM: LEE J DATE : 17 SEPTEMBER 1996 PLACE: PERTH
REASONS FOR JUDGMENT
This is an "appeal" under s44 of the Administrative Appeals Tribunal Act 1975 on a question of law from a decision of the Administrative Appeals Tribunal ("the Tribunal") which affirmed a decision of a delegate of the Repatriation Commission ("the Commission") that the applicant's claim for a pension under the Veterans' Entitlements Act 1986 ("the Act") be rejected.
The applicant is now 46. He enlisted in the Australian Army in June 1968 at the age of 18. In August 1970 the applicant was posted to Vietnam and rendered war service as a member of a transport unit.
On Christmas Day 1970,…
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
Ferriday v Repatriation Commission [1996] FCA 827
Case
[1996] FCA 827
Decision Date
CaseChat Overview and Summary
Paul Ramon Ferriday is the applicant in this case and the Repatriation Commission is the respondent. The dispute revolves around the applicant's claim for a pension under the Veterans' Entitlements Act 1986, which was rejected by the Repatriation Commission. The case was heard in the Federal Court of Australia, Western Australia District Registry, General Division. The legal issues in this case pertain to the interpretation and application of the Veterans' Entitlements Act 1986, specifically the definition of "war-caused injury" and the standard of proof required for the Repatriation Commission to determine whether an injury or disease is war-caused. The court had to decide whether the applicant's injury resulted from his serious default or wilful act, and whether the Administrative Appeals Tribunal (Tribunal) correctly applied the relevant provisions of the Act.
The court found that the Tribunal erred in its interpretation of the Act, particularly in relation to the standard of proof required to establish that an injury or disease is not war-caused. The court held that the Tribunal should not have applied the high standard of proof, beyond reasonable doubt, to determine whether the applicant's injury resulted from his serious default or wilful act. Instead, the court held that the Repatriation Commission should be reasonably satisfied that the applicant's injury resulted from his serious default or wilful act, in order to exclude it from being considered a war-caused injury. The court also held that the disentitling provisions of the Act should apply equally to all veterans, regardless of whether they rendered operational service or not.
The final orders of the court were that the appeal be dismissed, and there should be no order for costs given that the Repatriation Commission succeeded on a point raised in its notice of contention that was not argued before the Tribunal.