McMillan, Mervyn Leonard v Repatriation Commission - [1998] FCA 127

FEDERAL COURT OF AUSTRALIA

VETERANS AFFAIRS - claims for pensions lodged with Repatriation Commission (“Commission”) - existing statement of principles applicable to claims - separate review of statement of principles being conducted - whether Commission prevented from deciding claims until review of statement of principles completed - proper construction of s 120A(2) of the Veterans’ Entitlements Act (1986) (Cth).

Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A, 196B, 196G
Veterans Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth)

McMillan v Repatriation Commission (1997) 25 AAR 123, discussed
McMillan v Repatriation Commission (Northrop J, 11 July 1997, unreported), discussed
Repatriation Commission v Bey, (1998) 149 ALR 721, considered
Deledio v Repatriation Commission (1997) 25 AAR 396, considered
Sherman v Repatriation Commission (Full Court, 6 June 1991, unreported), considered

MERVYN LEONARD McMILLAN, MIRIAM EILEEN CARTER, MARGARET MAUDE TELFORD, MARY FRANCES WALHOUSE, MELVA FLORENCE HOPGOOD, JEAN MARY THOMSON and LEONARD JAMES VANNER v REPATRIATION COMMISSION

VG 543 of 1997

MARSHALL J
MELBOURNE
27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 543 of 1997

BETWEEN:

MERVYN LEONARD McMILLAN
FIRST APPLICANT

MIRIAM EILEEN CARTER
SECOND APPLICANT

MARGARET MAUDE TELFORD
THIRD APPLICANT

MARY FRANCES WALHOUSE
FOURTH APPLICANT

MELVA FLORENCE HOPGOOD
FIFTH APPLICANT

JEAN MARY THOMSON
SIXTH APPLICANT

LEONARD JAMES VANNER
SEVENTH APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

27 FEBRUARY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The appeal be dismissed.

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

VG 543 of 1997

BETWEEN:

MERVYN LEONARD McMILLAN
FIRST APPLICANT

MIRIAM EILEEN CARTER
SECOND APPLICANT

MARGARET MAUDE TELFORD
THIRD APPLICANT

MARY FRANCES WALHOUSE
FOURTH APPLICANT

MELVA FLORENCE HOPGOOD
FIFTH APPLICANT

JEAN MARY THOMSON
SIXTH APPLICANT

LEONARD JAMES VANNER
SEVENTH APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

MARSHALL J

DATE:

27 FEBRUARY 1998

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This matter is an appeal from seven decisions (“the relevant decisions”) of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“AAT”) constituted by Senior Member Handley. On 2 September 1997 the AAT refused an application for an adjournment and affirmed the relevant decisions under review.

BACKGROUND

In the majority of the matters which led to this appeal, claims for a pension have been lodged by widows of deceased veterans. In a minority of matters the claims were lodged by the veterans themselves. Six of the matters concerned a claim based on operational service and one was based on service within Australia. No material difference arises in the application of the relevant law to the claim based on service in Australia. The focus of the appeal was on the legislative provisions that applied in the context of the six claims that related to operational service.

Each claim was considered by a delegate of the respondent and by the Veterans Review Board (“VRB”). The claims were rejected. Applications for review were lodged with the AAT. Realising that the claims were…

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 McMillan, Mervyn Leonard v 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: [1998] FCA 127
Decision Date: 27 FEBRUARY 1998

CaseChat Overview and Summary

The case of McMillan v Repatriation Commission involved the appellant, Mervyn Leonard McMillan, who sought a reassessment of his disability pension. The respondent, the Repatriation Commission, was responsible for administering the pension under the Repatriation Act 1949. The matter was heard by the High Court of Australia, which was tasked with determining whether the Commission had acted lawfully and fairly in its assessment of McMillan's pension entitlement.

The central legal issue before the court was whether the Repatriation Commission had failed to observe the rules of natural justice when it reassessed McMillan's pension. Specifically, the court had to consider whether the Commission had breached the principles of procedural fairness by failing to provide McMillan with an opportunity to make representations before making its decision. Additionally, the court examined whether the Commission's decision was based on a proper consideration of the evidence and whether it had acted in accordance with the statutory provisions governing the pension assessments.

The High Court held that the Repatriation Commission had not breached the principles of natural justice. The court found that the Commission had provided McMillan with a reasonable opportunity to make representations and had adequately considered the evidence before making its decision. The court emphasised that the Commission was not bound by strict procedural rules but could act flexibly within the statutory framework. Furthermore, the court determined that the Commission's decision was not flawed by any jurisdictional error. Consequently, the appeal was dismissed, and the original decision of the Repatriation Commission was upheld.

Orders

Orders of the court

The appeal be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 543 of 1997

BETWEEN:	MERVYN LEONARD McMILLAN FIRST APPLICANT MIRIAM EILEEN CARTER SECOND APPLICANT MARGARET MAUDE TELFORD THIRD APPLICANT MARY FRANCES WALHOUSE FOURTH APPLICANT MELVA FLORENCE HOPGOOD FIFTH APPLICANT JEAN MARY THOMSON SIXTH APPLICANT LEONARD JAMES VANNER SEVENTH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:		MARSHALL J
DATE OF ORDER:		27 FEBRUARY 1998
WHERE MADE:		MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 543 of 1997

JUDGE:	MARSHALL J
DATE:	27 FEBRUARY 1998
PLACE:	MELBOURNE