FEDERAL COURT OF AUSTRALIA
Murray v Repatriation Commission (No 2) [2016] FCA 1216
Appeal from: Murray v Repatriation Commission [2015] AATA 364 File number: VID 332 of 2015 Judge: BROMBERG J Date of judgment: 14 October 2016 Catchwords: ADMINISTRATIVE LAW – scope of remittal – whether redetermination by the Tribunal should be made by reference to evidence already adduced, without further evidence – where the member who made the original decision is no longer a member of the Tribunal – the scope of remittal in relation to evidence should be unconfined by the Court – any limitation on further evidence may be determined by the Tribunal Legislation: Administrative Appeals Tribunals Act 1975 (Cth) ss 25(4A), 44, 44(5)
Veterans’ Entitlements Act 1986 (Cth) ss 23(1), 23(3), 24(1), 24(2)
Cases cited: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554
Comcare v Broadhurst (2011) 192 FCR 497
Murray v Repatriation Commission [2016] FCA 1150
Negri v Secretary, Department of Social Services (No 2) [2016] FCA 1125
Date of hearing: Determined on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Ms FC Spencer Solicitor for the Applicant: Williams Winter Solicitors Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 332 of 2015 BETWEEN: TERRENCE MURRAY
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
14 OCTOBER 2016
THE COURT ORDERS THAT:
1.Order 3 of the Orders made on 22 September 2016 be set aside and in lieu thereof the case be remitted to the Tribunal limited to reconsideration of the issues raised by:
(i)Section 23(1)(c) and (3); and
(ii)Section 24(1)(c) and (2),
of the Veterans’ Entitlements Act 1986 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
On 22 September 2016 I published my reasons for judgment on the substantive issues raised by this appeal (Murray v Repatriation Commission [2016] FCA 1150). Those reasons should be read with these reasons. Abbreviated terms utilised in those reasons are here continued.
On 22 September 2016 I made an order that the decision of the Tribunal made on 27 May 2015 be set aside. I also made a provisional order that the remittal to the Tribunal be made without limitation. I did that reserving to the parties the opportunity to seek a further order imposing a limitation upon the remittal. That opportunity was taken and these reasons deal with that issue. On the question of the scope of the remittal, I propose to set aside the order made on 22 September 2016 and in lieu thereof make an order that the remittal be limited to the reconsideration of the issues raised by:
(i)s 23(1)(c) and (3); and
(ii)s 24(1)(c) and (2),
of the VE Act.
Both parties essentially agreed that the remittal should be limited to a reconsideration…
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- AGLC
- Murray v Repatriation Commission (No 2) [2016] FCA 1216
- Case
- [2016] FCA 1216
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was the scope of remittal when a case is sent back to the original decision-maker for reconsideration. Specifically, the Court had to determine whether the Tribunal, upon remittal, should be able to consider new evidence, or whether it should be confined to the evidence already presented in the original decision-making process. This issue was particularly pertinent because the member of the Tribunal who made the original decision was no longer a member of the Tribunal.
The Court held that the remittal should not be constrained by the Court regarding the scope of evidence. Instead, any limitations on the consideration of further evidence should be determined by the Tribunal. The Court emphasized that the remittal should allow for a comprehensive reconsideration of the case, taking into account any new evidence that may be relevant to the issues at hand. Consequently, the Court set aside the previous orders and remitted the case to the Tribunal for reconsideration, specifically addressing the issues arising under sections 23(1)(c) and (3), and sections 24(1)(c) and (2) of the Veterans' Entitlements Act 1986 (Cth).
Orders
Orders of the court
1. Order 3 of the Orders made on 22 September 2016 be set aside and in lieu thereof the case be remitted to the Tribunal limited to reconsideration of the issues raised by:
(i) Section 23(1)(c) and (3); and
(ii) Section 24(1)(c) and (2),
of the Veterans’ Entitlements Act 1986 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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