Jones, N.R. v Repatriation Commission - [1993] FCA 194

Re: NELLA ROSE JONES
And: REPATRIATION COMMISSION
No. G502 of 1991
FED No. 194
Number of pages - 11
Judicial Review
(1993) 29 ALD 851 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)

CATCHWORDS

Judicial Review - entitlement to war widow's pension - whether Administrative Appeals Tribunal was bound to find a reasonable hypothesis that husband's death was caused by war-caused smoking - failure to make findings of fact - failure of Tribunal to disclose reasoning process involved

Administrative Appeals Tribunal Act 1975 s. 43, 43(2B)

Veterans' Entitlements Act 1980 ss 8, 9(1), 120(3),

Repatriation Commission v Law (1980-81) 147 CLR 635

Telescourt v Commonwealth of Australia (1990) 29 FCR 227

East v Repatriation Commission (1987) 74 ALR 518

Webb v Repatriation Commission (1988) 78 ALR 696

Dornan and Ors v Riordan and Ors (1990) 95 ALR 451

Secretary of Department of Social Security v Hodgson (1992) 108 ALR 322

Repatriation Commission v Bendy (1989) 10 AAR 323

Repatriation Commission v Hughes (1990) 3 AAR 34

Australian Telecommunications Commission v Barker (1990) 12 AAR 490

Soldatow v Australia Council (1991) 13 AAR 462

Australian Postal Corporation v Lucas (1991) 14 AAR 487

HEARING

SYDNEY, 1 July 1992

#DATE 5:4:1993

Counsel and solicitor for the Applicant: Mr A. McInnes QC and Mr A.L. Hill

instructed by Kenneth Harrison

Counsel and solicitor for the Respondent: Mr R. Henderson instructed

by Australian Government Solicitor

ORDER

1. Determination of Administrative Appeals Tribunal of 7 August 1991

set aside.

2. Matter remitted to Tribunal for further consideration in

accordance with these reasons for judgment.

3. Respondent to pay applicant's costs.

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

JUDGE1

EINFELD J This appeal from a determination of the Administrative Appeals Tribunal concerns the eligibility of the applicant (Mrs Jones) for a special pension as the widow of a deceased war veteran, Bruce William Jones. The late Mr Jones died on 2 September 1987 at the age of about 73. Mrs Jones' application for the pension, made on 5 November 1987, was rejected by the respondent Commission on 15 January 1988. She applied for review by the Veterans' Review Board on 8 February 1988 but her application was rejected on 9 November 1988. Her appeal to the Administrative Appeals Tribunal was lodged on 8 February 1989 and rejected on 7 August 1991. It is the appeal from this rejection lodged on 4 September 1991 that is now before this Court.

It is another of the many cases coming to the Court which involve the application of the much litigated section 120(3) of the Veterans' Entitlements Act 1980 (the Act). It is also another case demonstrating the extraordinary delays to which veterans' widows are subjected when seeking such pensions. To record that over five years have elapsed since the death of Mr Jones without a final resolution of his 70 year old widow's entitlement is enough to…

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

Case: [1993] FCA 194
Decision Date: 05 APRIL 1993

CaseChat Overview and Summary

The case involves an application for judicial review brought by N.R. Jones against the Repatriation Commission. Jones, a widow, sought to challenge the Administrative Appeals Tribunal's (AAT) decision to deny her eligibility for a war widow's pension. The crux of the dispute was whether the Tribunal was legally required to establish a reasonable hypothesis linking her late husband's death to war-related smoking. Jones contended that the Tribunal had not adequately addressed this issue, and failed to sufficiently disclose its reasoning process.

The legal issues before the court centred on the scope of the Tribunal's discretion in determining eligibility for war widow's pensions and the extent to which it must articulate its reasoning. Jones argued that the Tribunal had not made the necessary findings of fact and had not properly disclosed the reasoning process that led to its decision. This omission, she claimed, meant that the Tribunal's decision was flawed and should be set aside.

The court found that the Tribunal had indeed failed to make essential findings and properly disclose its reasoning. It held that the Tribunal had a duty to articulate its reasoning in a manner that allows for meaningful judicial review. The court held that the Tribunal's determination was invalid due to these shortcomings. Consequently, the decision of the Tribunal was set aside, and the matter was remitted for further consideration. The court also ordered the Repatriation Commission to pay Jones' costs.

Orders

Orders of the court

1. Determination of Administrative Appeals Tribunal of 7 August 1991

set aside.

2. Matter remitted to Tribunal for further consideration in

accordance with these reasons for judgment.

3. Respondent to pay applicant's costs.

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

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

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Ratio Decidendi

Legal Principle Established

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