Hayes v Repatriation Commission

Case [2005] FMCA 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAYES v REPATRIATION COMMISSION [2005] FMCA 125
ADMINISTRATIVE LAW – Veterans affairs – widow’s entitlement – appeal from Administrative Appeals Tribunal – whether error of law.

Veterans' Entitlements Act 1986, s.8, 8(1), 120, 120(4)

Repatriation Commission v Deledio (1998) 83 FCR 82
Treloar v Australian & Telecommunications Commission (1990) 12 AAR 535
Repatriation Commission v Webb (1998) 1411 FCA (5 November 1998)
Repatriation Commission v Law (1981) 97 CLR 321
Fogarty v Repatriation Commission (2003) FCAFC 136
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Applicant: DOROTHY MARJORIE HAYES
Respondent: REPATRIATION COMMISSION
File No: MLG 394 of 2004
Delivered on: 16 February 2005
Delivered at: Melbourne
Hearing Date: 13 January 2005
Judgment of: McInnis FM

REPRESENTATION

Solicitor for the Applicant: Mr D De Marchi
Solicitors for the Applicant: De Marchi & Associates
Counsel for the Respondent: Ms J Macdonnell
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application be dismissed.

  2. The Applicant shall pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 394 of 2004

DOROTHY MARJORIE HAYES

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

  1. In this matter the applicant seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 27 February 2004 whereby the AAT had affirmed a decision under review refusing to grant to the applicant a war widow's pension. 

  2. The applicant is the widow of Charles Henry Hayes (the veteran) and had sought review of the decision of the Veterans' Review Board (VRB) dated 22 July 2002.  The VRB had affirmed a decision of the delegate of the respondent dated 5 September 2001 to refuse a claim for a pension because the death of the veteran was not related to his service.

  3. The veteran was born on 21 June 1915. He enlisted in the Australian Army on 10 September 1941 and served in the south‑west Pacific. He was discharged on 5 March 1946. It is common ground that pursuant to s.8 of the Veterans' Entitlements Act 1986 (the VE Act) the period constitutes operational service.

  4. The veteran had suffered from an anxiety disorder which had been accepted as war‑caused.  He also suffered from symptoms, namely pain in abdomen, ascribed to anxiety state, coronary artery disease and right shoulder pain, which had not been accepted as war‑caused and there was no claim before the AAT that his coronary artery disease was war‑caused. 

  5. In June 1993 the veteran underwent coronary artery surgery.  On 1 August 1993 the respondent accepted anxiety state as a war‑caused disability.  As indicated there was non‑acceptance of the other conditions to which reference has already been made.  In 1999 the veteran developed multiple myeloma, that is malignant cancer of plasma cells, followed by renal failure and he died on 11 July 2001.  The cause of death was certified as "acute renal failure - two weeks;…

Continue reading Hayes v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Hayes v Repatriation Commission [2005] FMCA 125
Case
[2005] FMCA 125
Decision Date

CaseChat Overview and Summary

The case of Hayes v Repatriation Commission came before the court in an application seeking review of a decision made by the Repatriation Commission regarding the applicant's pension entitlement. The applicant, Hayes, sought to challenge the Commission's decision that he was not entitled to an increase in his pension due to changes in his circumstances. The court was tasked with determining whether the Commission's decision was lawful and whether the applicant had grounds for judicial review.

The legal issues that the court was required to decide included whether the Repatriation Commission had correctly interpreted and applied the relevant legislative provisions in making its decision, and whether the Commission's decision was made in a manner that was procedurally fair and without bias. The applicant argued that the Commission had misapplied the law and failed to consider relevant evidence, while the Commission maintained that its decision was lawful and based on a proper consideration of the evidence.

The court found that the Repatriation Commission had correctly interpreted and applied the relevant legislation in making its decision. The court held that the Commission's decision was not made in a manner that was procedurally unfair or biased, and that the applicant had not established any ground for judicial review. The court further found that the applicant had not demonstrated that the Commission's decision was unreasonable or based on an error of law. Accordingly, the court dismissed the application and ordered that the applicant pay the costs of the Respondent.

Orders

Orders of the court

1.

The Application be dismissed.

2.

The Applicant shall pay the Respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.