Garner v Repatriation Commission

[1998] FCA 1387

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Veterans’ Affairs – Appeal from Administrative Appeals Tribunal (“AAT”) – entitlement to pension – whether dependant – whether “partner” of veteran at time of his death – whether member of a couple – whether in “marriage-like” relationship – whether absence resulting from veteran’s illness.

Veterans’ Entitlements Act 1986, ss 11, 11A, 5E(1), 5E(2), 5E(3), 5E(2)(b)(i) to (iv)

MARIE ANGELA GARNER v

REPATRIATION COMMISSION
NG 434 OF 1998

TAMBERLIN J
SYDNEY
3 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 434 of 1998

BETWEEN:	MARIE ANGELA GARNER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	3 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. An extension of time be granted to file and serve the Notice of Appeal out of time until 8 May 1998.

1. 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 434 of 1998

BETWEEN:	MARIE ANGELA GARNER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	3 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the AAT”), whereby the Tribunal affirmed the decision of the Repatriation Commission, that the applicant was not a member of a “couple” and therefore was not a “dependant” of the late Noel Garner (“the veteran”), within the meaning of ss 11 and 11A of the Veterans’ Entitlements Act 1986 (“the Act”).  The consequence of this determination is that she is not eligible for a war widow’s pension claimed by her after the death of the veteran, with whom she had lived for about nine years up to 1973 in a de facto relationship.

An application was made for an extension of time within which to file the Notice of Appeal.  The Notice was filed on 8 May 1998.  However, although the AAT letter enclosing the decision was dated 9 April 1998, I am satisfied on the basis of a date stamp, that it was not received by the solicitor for the applicant until 21 April 1998.  In view of these circumstances and the lack of any demonstrated prejudice to the respondent, I consider that the time for filing the Notice should be extended to the date when it was, in fact, filed.

Relevant provisions

The relevant provisions of the Act read as follows:

“11. (1)  In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:

(a)      the partner; or
(b)      a non-illness separated spouse; or

(c)a widow or widower (other than a widow or a widower who marries or remarries); or

(d)a child;

of the veteran.

(2)…

(3)…”

In the present case, the only class of dependant under which the applicant can qualify is as a “partner”. “Partner”…