Lamers v Repatriation Commission

[2001] FCA 24

FEDERAL COURT OF AUSTRALIA

Lamers v Repatriation Commission [2001] FCA 24

VETERANS’ AFFAIRS – appeal from decision of Administrative Appeals Tribunal – whether veteran entitled to pension at special rate – whether failure to act according to substantial justice and substantial merits of case – whether error of law – nature of remunerative work undertaken by veteran.

Veterans’ Entitlements Act 1986 (Cth): s 24, s 119

Flentjar v Repatriation Commission (1997) 26 AAR 93 referred to

Banovich v Repatriation Commission (1986) 69 ALR 395 referred to
Repatriation Commission v Sheehy (1995) 133 ALR 654 referred to
Collins v Minister for Immigration (1981) 36 ALR 598 referred to

PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR v REPATRIATION COMMISSION

V 660 of 1999

GOLDBERG J
24 JANUARY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 660 of 1999

BETWEEN:	PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR Applicant
AND:	REPATRIATION COMMISSION Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	24 JANUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The applicant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 660 of 1999

BETWEEN:	PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	GOLDBERG J
DATE:	24 JANUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. On 29 October 1999 the Administrative Appeals Tribunal (“the Tribunal”) determined that the late John Flentjar deceased (“the veteran”) was not entitled to be paid a pension at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The veteran died on 2 December 1998 and his application for a pension at the special rate has been continued by the applicant, the executor of his will, in accordance with s 126(1) of the Act. The applicant has appealed against the Tribunal’s decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

2. This is the second time the veteran’s application for payment of a pension at the special rate has been before the Court.  An earlier decision of the Tribunal had allowed the veteran’s application but that decision was set aside by Spender J and remitted to the Tribunal for further hearing:  Repatriation Commission v Flentjar (1997) 47 ALD 67. An appeal by the veteran against that decision was dismissed by a Full Court: Flentjar v Repatriation Commission (1997) 26 AAR 93. An application to the High Court for special leave to appeal was refused on 19 May 1998.

   Background

3. The veteran was born on 4 September 1916 and undertook operational service during the Second World War.  He served in the Royal Australian Navy from 1934 until his discharge on 7 October 1946.  After his discharge he initially worked as a sign writer and,…