Hogno v Repatriation Commission

Case [2010] FCA 1044


FEDERAL COURT OF AUSTRALIA

Hogno v Repatriation Commission [2010] FCA 1044

Citation: Hogno v Repatriation Commission [2010] FCA 1044
Appeal from: Re Hogno and Repatriation Commission [2010] AATA 306
Parties: DENNIS HOGNO v REPATRIATION COMMISSION
File number: NSD 591 of 2010
Judge: FLICK J
Date of judgment: 24 September 2010
Catchwords:

ADMINISTRATIVE LAW – reasons of Tribunal to be adequately explained – questions of law – reasons of the Tribunal to be read in a balanced and fair manner – findings of fact

VETERANS’ AFFAIRS – reasonable hypothesis incapacity is war-caused – need for satisfaction beyond reasonable doubt that hypothesis is to be rejected – entitlement to special rate of pension – substantial cause of incapacity

Legislation: Administrative Appeals Tribunal Act1975 (Cth), s 44
Federal Court Rules, O 53 r 3(2)
Veterans’ Entitlements Act1986 (Cth), ss 14, 19, 24, 120
Cases cited: Australian Postal Corporation v Hughes [2009] FCA 1057, 111 ALD 579, cited
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, followed
Baljas v Repatriation Commission [2009] FCA 171, cited
Banovich v Repatriation Commission (1986) 69 ALR 395, cited
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55, applied
Birtles v Repatriation Commission (1991) 33 FCR 290, cited
Black v Minister for Immigration and Citizenship [2007] FCAFC 189, cited
Brown v The Repatriation Commission (1985) 7 FCR 302, cited
Brown v Repatriation Commission [2006] FCA 914, followed
Bushell v Repatriation Commission (1992) 175 CLR 408, considered
Byrne v Repatriation Commission [2007] FCAFC 126, 242 ALR 620, considered
Byrnes v Repatriation Commission (1993) 177 CLR 564, applied
Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, followed
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, cited
Forbes v Repatriation Commission [2000] FCA 328, 101 FCR 50, applied
Giesen v Repatriation Commission [2005] FCA 846, 87 ALD 347, cited
Hall v Repatriation Commission [2007] FCA 2021, followed
Hogno and Repatriation Commission, Re [2010] AATA 306, affirmed
Hussain v Minister for Foreign Affairs [2008] FCAFC 128, 169 FCR 241, cited
Inco Ships Pty Ltd v Finlay Murdoch Hardman [2007] FCA 1138, 167 FCR 294, cited
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10, 114 ALD 8, cited
Leane v Repatriation Commission [2003] FCA 889, cited
Leane v Repatriation Commission [2004] FCAFC 83, 81 ALD 625, cited
Magill v Repatriation Commission [2002] FCA 744, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied
Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154, 67 ATR 544, cited
Repatriation Commission v Deledio (1998) 83 FCR 82, considered
Repatriation Commission v Van Heteren [2003] FCA 888, 75 ALD 703, cited
Seymour v The Migration Agents Registration Authority [2007] FCAFC 76, 45 AAR 370, followed
SZBYR…

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AGLC
Hogno v Repatriation Commission [2010] FCA 1044
Case
[2010] FCA 1044
Decision Date

CaseChat Overview and Summary

In the case of Hogno v Repatriation Commission, the applicant, Mr Hogno, appealed a decision made by the Administrative Appeals Tribunal regarding his entitlement to a disability pension. The dispute centred around whether Mr Hogno's incapacity was the substantial cause of his inability to engage in remunerative work, as required under the relevant legislation. The matter was heard in the Federal Court of Australia, which was tasked with reviewing the decision of the Tribunal.

The primary legal issue the court needed to address was whether the Tribunal had properly considered and resolved the question of whether Mr Hogno's incapacity was the substantial cause of his inability to engage in remunerative work. The court needed to determine whether the Tribunal had overlooked a significant legal issue, specifically whether s 24(2)(b) had been properly applied. Additionally, the court examined whether there was any error in the Tribunal's decision-making process that would warrant overturning the decision.

The court found that the Tribunal had not erred in its decision-making process. The court noted that the applicant had not adequately raised the issue of whether his incapacity was the substantial cause of his inability to engage in remunerative work. Given the lack of substantial submissions on this point, the court concluded that no legal error had been made. The court further determined that no question of law arose for the purposes of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), as the Tribunal had not resolved a submission that had not been advanced. The court also found that the evidence did not support the argument that Mr Hogno's incapacity was the substantial cause of his unemployment.

The court dismissed the appeal and ordered that Mr Hogno pay the costs of the Respondent. Both parties agreed that costs should follow the event, and the court confirmed that Mr Hogno should pay the costs of the Repatriation Commission. The court's decision upheld the Tribunal's original determination, finding no grounds for appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given such evidence, it is perhaps not surprising that there was but scant reference to s 24(2)(b) in the submissions advanced to the Tribunal by the Applicant for resolution. The limited submissions as were then advanced were directed to whether Mr Hogno had genuinely sought employment; no submission (or no substantial submission) it would appear was directed to whether any incapacity was “the substantial cause” of his inability to engage in remunerative work. It is difficult to conclude that any question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) arises where the Tribunal does not resolve a submission which was not advanced and where any such submission would seem to be not open to be advanced on the evidence available. CONCLUSIONS The appeal is to be dismissed. No Ground of Appeal has been made out. Both parties were in agreement that costs should follow the event. Accordingly, it is concluded that Mr Hogno should pay the costs of the Respondent.ORDERS The Orders of the Court are:1.The Amended Notice of Appeal as filed on 13 July 2010 is dismissed.2.The Applicant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

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