Murray v Repatriation Commission (No 2)

[2016] FCA 1216

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:

1. 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.

2. 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.

3. Both parties essentially agreed that the remittal should be limited to a reconsideration…