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, 120Bushell 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 citedREPATRIATION COMMISSION v GWENDA FARLEY-SMITH
VID 1374 OF 2005MIDDLETON J
18 JULY 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1374 OF 2005
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
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
ApplicantAND:
GWENDA FARLEY-SMITH
Respondent
JUDGE:
MIDDLETON J
DATE:
18 JULY 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
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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- AGLC
- Repatriation Commission v Farley-Smith [2007] FCA 1058
- Case
- [2007] FCA 1058
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MIDDLETON J
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