Graham v Repatriation Commission - [1999] FCA 66

FEDERAL COURT OF AUSTRALIA
Graham v Repatriation Commission [1999] FCA 66
VETERANS’ AFFAIRS – Service pension – Definition of “allotted for duty” – Application of transitional provisions.
WORDS AND PHRASES – “Allotted for duty”.
Defence Service Homes Act 1918 (Cth), s 4(2).
Veterans’ Entitlements Act 1986 (Cth), ss 5B(2), 7A(1).
Veterans’ Affairs Legislation Amendment Act 1990 (Cth), s 93(1), Schedule 2.
Veterans’ Entitlements Amendment Act 1991 (Cth).
Veterans’ Entitlements (Rewrite) Transition Act 1991 (Cth), Schedule 4.
Repatriation Commission v Doessel (1990) 95 ALR 704, cited.
Repatriation Commission v Davis (1990) 94 ALR 621, cited.
GRAHAM v REPATRIATION COMMISSION
NG 1017 OF 1998
JUDGE:SACKVILLE J
DATE:5 FEBRUARY 1999
PLACE:SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

NG 1017 OF 1998

BETWEEN:

ERNEST WILLIAM GRAHAM
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

SACKVILLE J

DATE:

5 FEBRUARY 1999

PLACE:

SYDNEY

THE COURT ORDERS THAT:
1.The time for the applicant to file and serve a notice of appeal from the decision of the Administrative Appeals Tribunal given on 2 July 1998 be extended until 5 February 1999.
2.The applicant be given leave to file in Court a notice of appeal in the form handed up by counsel for the applicant.
3.The decision of the Administrative Appeals Tribunal be set aside.
4.The whole matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
5.Subject to any proper objections, the Administrative Appeals Tribunal should hear such further evidence presented by the parties as is relevant to the matter to be determined.
6.The respondent pay the applicant’s costs of and incidental to the application, including the application for extension of time.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

NG 1017 OF1998

BETWEEN:

ERNEST WILLIAM GRAHAM
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

SACKVILLE J

DATE:

5 FEBRUARY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant seeks an order extending time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal (“AAT”), given on 2 July 1998. The AAT affirmed a decision of the Repatriation Commission, made on 9 December 1996, which determined that the applicant was not eligible for a service pension, since he had not rendered “qualifying service” as defined by s 7A(1) of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”). The applicant, who was unrepresented before the AAT, filed his application for extension of time on 28 September 1996. He prepared the application without the benefit of legal representation.
Since then, fortunately, the applicant has obtained legal representation. Mr Smith of counsel has appeared in these proceedings on his behalf. On 28 January 1999, Mr Smith filed written submissions in support of the application for an extension of time. Those submissions canvassed the substantive issues that the applicant wished to raise, should an extension of time be granted. The submissions also attached a notice of…

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 Graham v Repatriation Commission

Details

AGLC: Graham v Repatriation Commission [1999] FCA 66
Case: [1999] FCA 66
Decision Date: 5 FEBRUARY 1999

CaseChat Overview and Summary

The applicant, Graham, brought an appeal against the Repatriation Commission's decision regarding his eligibility for a service pension. The central issue was the interpretation of the term "allotted for duty" in the context of the transitional provisions applicable to the applicant's pension. The matter was heard in the Federal Court of Australia.

The legal issues before the court included determining the precise meaning of "allotted for duty" and its application to the transitional provisions in question. The court had to assess whether the Administrative Appeals Tribunal correctly interpreted and applied the statutory provisions in its decision dated 2 July 1998.

The court found that the Administrative Appeals Tribunal erred in its interpretation of the term "allotted for duty". The tribunal had not properly applied the transitional provisions in the context of the applicant's circumstances. Consequently, the court set aside the tribunal's decision and remitted the matter back to the tribunal for reconsideration. The tribunal was instructed to hear any further evidence relevant to the matter, subject to any proper objections from the parties.

Orders

Orders of the court

1. The time for the applicant to file and serve a notice of appeal from the decision of the Administrative Appeals Tribunal given on 2 July 1998 be extended until 5 February 1999.

2. The applicant be given leave to file in Court a notice of appeal in the form handed up by counsel for the applicant.

3. The decision of the Administrative Appeals Tribunal be set aside.

4. The whole matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

5. Subject to any proper objections, the Administrative Appeals Tribunal should hear such further evidence presented by the parties as is relevant to the matter to be determined.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 1017 OF 1998

BETWEEN:	ERNEST WILLIAM GRAHAM Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	SACKVILLE J
DATE:	5 FEBRUARY 1999
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 1017 OF1998