Marsh, T.J. v The Repatriation Commission - [1986] FCA 300

RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT

OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY j

No. G 47 of 1986

)

GENERAL DIVISION

ON APPEAL FROM

THE

VETERANS

APPEALS

DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :

THOMAS JOSEPH MARSH

Applicant

AND :	THE	REPATRIATION
COMMISSION

Respondent

-	DATE: 20 June 1986

EX TEMPORE REASONS

FOR JUDGMENT

BURCHETT J.

This is an

appeal,

brought

under

S. 44 of the

Administrative Appeals Tribunal Act	1975, from a decision of the
Administrative Appeals Tribunal.	The Administrative Appeals

Tribunal hkt-dt_pwk'ed to review a purported decision of a delegate of the Repatriation Commission, Mr. R. Milligan, of 6

June 1985.

Mr. Milligan had purported to review "a determination

by a delegate of the Repatriation Commission

on 19 December 1984

that (the present appellant) did not 'serve in a theatre of war'

as defined in S . 23 of the Repatriation Act" (see paragraph 1 of

the Statement of Reasons of Mr. Milligan, which is dated 6 June

1985).

Mr. Milligan

expressed

his determination in

the

following terms:

"The	(present appellant) did not 'serve in a

2 .

theatre of war' as defined in S. 23 of the Repatriation Act, and is therefore not

eliairble for the arant of a service Dension

under the

provisions of S. 84 of the

Repatriation Act

(It appears the reference	to section 84 was in error, section 85
being intended.)

Prior to 19 December 1984 there

had been an application

by the present appellant for a- service pension. In relation

that application there was and is no dispute that he was at all relevant times permanently unemployable, and that he had served in the Royal Australian Air Force between February 1944 and April

1946.

The question whether he was

entitled to a service

pension

turned

on whether or not he had

fulfilled

the

qualification expressed in	S.	8 5 ( 2 ) by the words "has served in a
theatre of war".

The appeal

papers

included

document

from

the

departmental file which is headed "Summary

of Disability/Service

Pension Case submitted to Commission", refers to the appellant, contains a recommendation dated 18 December 1984 in the following

terms: "Submitted for determination that veteran

did not serve in

a theatre of war", and concludes with a section which I will

quote in full, as follows:

"Decision of Commission - The member did not

serve in a theatre of war as defined in S.-

of the Repatriation Act, as he did not leave

Australia until after

2 September 1945.

3 .

B. Finlay, Delegate.

(There was a signature appended which appears

also to read	B. Finlay)
Date 19.12.84."

The submission

put

behalf

the

Repatriation

Commission by Mrs. Flemming, of Senior Counsel, is that the purported appeal dealt with by Mr. Milligan was incompetent as there was no provision for rev'iew, applicable as at 19 December

1984; and that the purported decision by the Administrative Appeals Tribunal was also incompetent, because…

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.

Keep reading for free

Create a free CaseChat account to read Marsh, T.J. v The Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1986] FCA 300
Decision Date: 20 Jun 1986

CaseChat Overview and Summary

The case of Marsh v The Repatriation Commission involves Thomas Joseph Marsh, who is appealing a decision of the Administrative Appeals Tribunal (AAT) that reviewed a decision made by a delegate of the Repatriation Commission. The primary dispute is over whether Marsh is eligible for a service pension under the Repatriation Act, which hinges on whether he served in a theatre of war. The Federal Court of Australia, specifically Burchett J, is the court hearing the appeal.

The legal issues that the court was required to decide include whether the purported review by the delegate of the Repatriation Commission was competent, and if the AAT had the authority to review the decision. The core issue is the applicability of the review provisions under the Repatriation Act, as amended by Act No. 97 of 1984, to the decision dated 19 December 1984. The court had to determine if the decision made prior to the effective date of the amendments could be reviewed under the new provisions that came into force on 1 January 1985.

The court's reasoning focused on the incompetency of both the purported review by the delegate and the subsequent review by the AAT. Burchett J found that there was no provision for review applicable as at 19 December 1984, the date of the initial decision. The court held that the decision made on 19 December 1984 could not have been made under the new provisions introduced by the amending Act, and therefore, the delegate had no authority to review it. Additionally, the court concluded that the AAT lacked the power to review the decision, as the original decision was not one that could be reviewed under the new provisions. The court further noted that even if the decision could be considered invalid, it did not grant the AAT the jurisdiction to act. Consequently, the court declared that the AAT had no power to review the decision.

The final orders of the court included a declaration that the Administrative Appeals Tribunal had no power to review the decision purportedly made by Mr. Milligan as the delegate of the Commission. The Repatriation Commission agreed to bear the appellant's costs in any event.

Orders