Legal Research
Cases
McLean and Repatriation Commission

McLean and Repatriation Commission

Case [2000] AATA 504 22 June 2000

Jurisdiction

Limitation Periods

Res Judicata

Unconscionable Conduct

Specific Performance

Admissibility of Evidence

Veterans' Affairs

Administrative Law

Type to search within this case.

CATCHWORDS – VETERANS' AFFAIRS – widow's pension – whether Tribunal estopped by Federal Court decision from considering whether hypothesis is a reasonable hypothesis – whether veteran's death was war-caused – veteran died in 1953 when he was accidentally struck by a large rock on a hillside – decision affirmed.

Administrative Appeals Tribunal Act 1975 – Ss 37, 44
Migration Act 1958 – s 501
Veterans' Entitlements Act 1986 – Ss 5AB, 8, 13, 70, 120, 120A, 196B,

Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 47 ALD 261; (1997) 25 AAR 396
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Morales v Minister for Immigration and Multicultural Affairs (1998) 26 AAR 548; (1998) 154 ALR 51; (1998) 51 ALD 519; (1998) 82 FCR 374
Ogston v Repatriation Commission (1999) 56 ALD 789;
Re Millan and Repatriation Commission (unreported, AAT No 12303, 17 October, 1997, Senior Member Beddoe)
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Re Ogston and Repatriation Commission, ( unreported, 1 April, 1999, NG 773 of 1998)
Repatriation Commission v Keeley, (unreported, [200] FCA 532, 28 April 2000)
Repatriation Commission v McLean (1998) 27 AAR 136; (1998) 50 ALD 149
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Commonwealth of Australia v Sciacca (1988) 17 FCR 476; (1998) 78 ALR 279; (1988) 14 ALD 565

DECISION AND REASONS FOR DECISION [2000] AATA 504

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1998/427
VETERANS' APPEALS DIVISION  )

Re JOYCE LEONE McLEAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 22 June, 2000

Place Brisbane

DecisionThe Tribunal affirms the decision of the Repatriation Commission dated 4 July, 1995 and affirmed by a decision of the Veterans' Review Board dated 6 March, 1996.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 19 April, 1996, the applicant, Mrs Joyce Leone McLean, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("the Commission") dated 4 July, 1995. The delegate had determined that the death of her late husband, Mr Neville Bruce McLean, was not war-caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board on 6 March, 1996. On 17 October, 1997, the Tribunal set aside the delegate's decision and substituted a decision that Mr McLean's death was war-caused (unreported, [AAT No 12303, Senior Member Beddoe). The Commission appealed to the Federal Court and, in a judgement given on 17 April, 1998, the Federal Court set aside the decision of the Tribunal and remitted this matter to be heard and decided again with or without the hearing of further evidence (Repatriation Commission v McLean (1998) 27 AAR 136 at…

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.

Continue reading McLean and Repatriation Commission

Details

AGLC: McLean and Repatriation Commission [2000] AATA 504
Case: [2000] AATA 504
Decision Date: 22 June 2000

CaseChat Overview and Summary

This appeal is brought by Mrs Joyce Leone McLean against the decision of the Repatriation Commission that the death of her late husband, Mr Neville Bruce McLean, was not war-caused within the meaning of the Veterans' Entitlements Act 1986. The Tribunal had previously remitted the matter to the Commission for reconsideration but the Commission's new decision was also adverse to Mrs McLean. She now seeks a review of that decision. The issues for the Tribunal to decide are whether the Tribunal is estopped by the Federal Court decision from considering whether the hypothesis is a reasonable hypothesis, and if not, whether Mr McLean's death was war-caused within the meaning of the Act. The Tribunal found that the hypothesis had not been established and it was not reasonable. The Tribunal affirmed the decision of the Repatriation Commission.

Orders