Repatriation Commission v Farley-Smith

Case [2007] FCA 1058

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Farley-Smith [2007] FCA 1058

ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal (‘Tribunal’) that veteran’s death was war-caused – whether Tribunal considered whole of the material before it – whether material raised a reasonable hypothesis in the context of the veteran’s service – consideration of principles to be applied

ADMINISTRATIVE LAW – procedural fairness – whether breach of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) – where Tribunal failed to give opportunity to applicant to examine bundle of documents handed to Tribunal at the hearing – where Tribunal indicated that submissions would be received on the weight to be attached to the documents – where Tribunal did not receive further submissions and relied upon documents in its decision – consideration of circumstances in which matter must be remitted

Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 44(1)
Veterans’ Entitlements Act 1986 (Cth), ss 8(1), 119, 120

Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
East v Repatriation Commission (1987) 16 FCR 517 cited
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 cited
Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 cited
Kioa v West (1985) 159 CLR 550 cited
Mason v Repatriation Commission [2000] FCA 1409 cited
Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 cited
O’Sullivan v Repatriation Commission (2003) 128 FCR 590 cited
Repatriation Commission v Bey (1997) 149 ALR 721 cited
Repatriation Commission v Owens (1996) 70 ALJR 904 cited
Repatriation Commission v Smith (1987) 15 FCR 327 cited
Repatriation Commission v Whetton (1991) 31 FCR 513 cited
Schiffer v Pattison [2001] FCA 1094 cited

REPATRIATION COMMISSION v GWENDA FARLEY-SMITH
VID 1374 OF 2005

MIDDLETON J
18 JULY 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1374 OF 2005

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

GWENDA FARLEY-SMITH
Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

18 JULY 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for determination according to law.

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

VID 1374 OF 2005

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

GWENDA FARLEY-SMITH
Respondent

JUDGE:

MIDDLETON J

DATE:

18 JULY 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 4 October 2005. The Tribunal set aside a decision of the applicant made under the Veterans’ Entitlements Act 1986 (Cth) (‘VE Act’) that the death of the respondent’s husband (‘the veteran’) was not war-caused, and substituted a decision that the veteran’s death…

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Details
AGLC
Repatriation Commission v Farley-Smith [2007] FCA 1058
Case
[2007] FCA 1058
Decision Date

CaseChat Overview and Summary

The Repatriation Commission appeals from a decision of the Administrative Appeals Tribunal that set aside the Commission’s decision that the death of the veteran was not war-caused. The Commission had rejected the respondent’s claim for a pension under the Veterans’ Entitlements Act 1986 on the basis that the cause of the veteran’s myelofibrosis was unknown and therefore the disease could not be related to the veteran’s service. The Tribunal set aside the Commission’s decision and substituted a decision that the veteran’s death was war-caused. The Tribunal’s decision was made after the Commission made an error in procedure by relying on a bundle of documents that was not before the Tribunal. The error was substantial because it deprived the parties of a fair hearing. The Commission argued that the Tribunal should have made findings on the basis of the documents in the bundle, but the Court found that the Tribunal should not have relied on them at all.

The legal issues in this case were whether the Tribunal made an error in procedure by relying on a bundle of documents that was not before it, and if so, whether the error was substantial enough to deprive the parties of a fair hearing. The Commission argued that the Tribunal should have made findings on the basis of the documents in the bundle, but the Court found that the Tribunal should not have relied on them at all. The Court found that the Tribunal’s decision was vitiated by a substantial procedural error and that the matter should be remitted to a differently constituted Tribunal for determination according to law. The Court found that the error was substantial because it deprived the parties of a fair hearing, and that the Tribunal should not have made any findings based on the bundle of documents. The Court found that the Tribunal’s decision was vitiated by a substantial procedural error and that the matter should be remitted to a differently constituted Tribunal for determination according to law.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for determination according to law.

Background

Background to the litigation

The applicant appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 4 October 2005. The Tribunal set aside a decision of the applicant made under the Veterans’ Entitlements Act 1986 (Cth) (‘VE Act’) that the death of the respondent’s husband (‘the veteran’) was not war-caused, and substituted a decision that the veteran’s death was war-caused.FACTUAL AND PROCEDURAL BACKGROUND The veteran, born in 1923, served with the Australian Army from 6 April 1942 to 8 August 1946. By reason of his service with the 112 Light Anti-Aircraft Regiment in the Northern Territory in 1943 and 1944 the entire period of the veteran’s military service was operational service. The veteran died on 14 November 2001, aged 78 years. His death certificate stated that the cause of his death was myelofibrosis which he had suffered for 4 years, and oesophageal varices which he had suffered for 2 years. On 11 February 2002 the respondent lodged a claim with the applicant in respect of the veteran’s death. The applicant refused the claim because the cause of myelofibrosis was unknown and therefore the disease could not be related to the veteran’s service. The respondent applied to the Veterans’ Review Board (‘the Board’) for review of the applicant’s decision, and the Board affirmed the decision. The respondent then sought review of the Board’s decision by the Tribunal who set aside the Board’s decision and substituted the decision the subject of this application. On 2 November 2005, the applicant appealed to this Court from the decision of the Tribunal. LEGISLATIVE FRAMEWORK Section 13(1) of the VE Act renders the Commonwealth liable to pay pension to a dependent of a veteran where the death of the veteran was war-caused. The circumstances in which a veteran’s death is taken to be war-caused are set out in s 8(1) of the VE Act. They include the circumstances where:·The veteran’s death arose out of or was attributable to any eligible war service (which includes operational service) (s 8(1)(b)).·The veteran’s death was due to a disease which would not have occurred but for the veteran having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service (s 8(1)(d)). The question as to the kind of death suffered by a veteran is to be determined by applying the standard of proof in s 120(4) of the VE Act; that is, to the reasonable satisfaction of the decision-maker. That section imports the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. Section 120(1), so far as is relevant, provides:Where a claim under Part II for a pension in respect of…the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the death of the veteran was war‑caused…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MIDDLETON J
I should mention that there was another ground of appeal relating to the bundle of documents and whether it was open for the Tribunal to make certain findings on the basis of the information contained therein. As I have found that the bundle of documents should not have been relied upon by the Tribunal, it is unnecessary for me to address this other ground of appeal.CONCLUSION In view of my findings above and on the basis of the options put before me by the parties for the further disposal of the hearing before the Tribunal, I will remit the matter for determination in accordance with law before a differently constituted Tribunal.

Ratio Decidendi

Legal Principle Established

Established by: MIDDLETON J

Full text does not contain this section.