Milbourn v Repatriation Commission - [2009] FCA 176

FEDERAL COURT OF AUSTRALIA
Milbourn v Repatriation Commission [2009] FCA 176
ADMINISTRATIVE LAW – extent of Administrative Appeals Tribunal’s obligations to provide reasons and to state its findings on material questions of fact and the evidence or other material on which those findings were based
DEFENCE AND WAR – widow’s pension – whether husband’s death was ‘war-caused’ – Tribunal not reasonably satisfied on the balance of probabilities that veteran’s death was attributable to or arose out of a war-caused smoking habit
Veterans’ Entitlements Act1986 (Cth) ss 7(1)(c), 8(1)(b), 13(1)(a), 120, 120B, 196A and 196B(3)
Administrative Appeals Tribunal Act 1975 (Cth) ss 43 and 44
Administrative Appeals Tribunal Act (Act No. 91 of 1975) (Cth)
Administrative Appeals Tribunal Amendment Act 1977 (Cth)
Administrative Appeals Tribunal Amendment Act 2005 (Cth)
Statute Law (Miscellaneous Amendments) (No. 1) Act 1982 (Cth) s 33
Migration Act 1958 (Cth) s 430(1)
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
Comcare v Etheridge (2006) 149 FCR 522
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
WAEE v Minister for Multicultural and Indigenous Affairs (2003) 75 ALD 630
Brackenreg v Comcare Australia (1995) 56 FCR 335
Repatriation Commission v Tuite (1993) 39 FCR 540
HAZEL MILBOURN v REPATRIATION COMMISSION
NSD 1840 of 2008
GRAHAM J
3 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1840 of 2008

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS R HUNT (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER)

BETWEEN:
HAZEL MILBOURN
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

3 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The following question, namely:
‘Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose:
(a)   where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or
(b)   where evidence relating to the said question of fact is in conflict with other evidence or material before the Tribunal, why the first-mentioned evidence was not accepted?’
be answered as follows:
(a)   No;

(b) No.

2.The application be dismissed.
3.The applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1840 of 2008

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS R HUNT (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER)

BETWEEN:
HAZEL MILBOURN
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

GRAHAM J

DATE:

3 MARCH 2009

PLACE:

SYDNEY

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 Milbourn 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: [2009] FCA 176
Decision Date: 3 March 2009

CaseChat Overview and Summary

The case of Milbourn v Repatriation Commission involved the applicant, Milbourn, challenging the decisions of the Repatriation Commission regarding his pension entitlement. The matter was heard by the Federal Court of Australia, which was required to interpret the obligations of the decision maker under section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Specifically, the applicant argued that the decision maker was required to provide reasons for not accepting certain evidence on material questions of fact. The central legal issues that the court had to address were whether section 43(2B) mandated that a decision maker disclose specific reasons when not accepting evidence on material questions of fact, both in cases of uncontradicted evidence and conflicting evidence.

The court examined the statutory language of section 43(2B) and concluded that it did not impose an obligation on the decision maker to provide detailed reasons for rejecting evidence on material questions of fact. The court found that the provision was concerned with ensuring that reasons for decisions are provided in a manner that allows for meaningful review, but it did not necessitate the specific disclosures sought by the applicant. In the case of uncontradicted evidence, the court determined that the absence of a requirement to explain the rejection of such evidence did not render the decision unlawful. Similarly, regarding conflicting evidence, the court held that there was no statutory mandate for the decision maker to explain why one piece of conflicting evidence was not accepted over another.

Consequently, the court dismissed the applicant's challenge, affirming that the Repatriation Commission had not contravened section 43(2B) in reaching its decision. The court ordered that the application be dismissed and that the applicant pay the respondent's costs. This ruling clarifies the scope of the obligations imposed by section 43(2B) and reaffirms the principles governing the provision of reasons in administrative law contexts.

Orders

Orders of the court

1. The following question, namely:

‘Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose:

(a) where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or

(b) where evidence relating to the said question of fact is in conflict with other evidence or material before the Tribunal, why the first-mentioned evidence was not accepted?’

be answered as follows:

(a) No;

(b) No.

2. The application be dismissed.

3. The applicant pay the respondent’s costs.

Note:

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

GRAHAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1840 of 2008

BETWEEN:	HAZEL MILBOURN Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	3 MARCH 2009
WHERE MADE:	SYDNEY

JUDGE:	GRAHAM J
DATE:	3 MARCH 2009
PLACE:	SYDNEY