ADMINISTRATIVE LAW – VETERANS’ AFFAIRS – veterans’ entitlements – Statements of Principle relating to connection between incapacity or death and war service for pension purposes – governing assessment of review of decision – characterisation and role of Statement of Principle – earlier Statement of Principle repealed – whether accrued right to have claim reviewed by reference to Statement of Principle in force at time of claim – nature of right.
PRACTICE AND PROCEDURE – principles governing a Full Court declining to reconsider an earlier Full Court decision and following that decision – appeal dismissed.
WORDS AND PHRASES – ‘daily’ – ‘daily consumption of alcohol’
REPATRIATION COMMISSION v RAYMOND GORTON N 378 of 2001
HEEREY, EMMETT and ALLSOP JJ SYDNEY 29 AUGUST 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 378 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
RAYMOND GORTON RESPONDENT
JUDGES:
HEEREY, EMMETT AND ALLSOP JJ
DATE OF ORDER:
29 AUGUST 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed;
2.The appellant pay the respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 378 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
RAYMOND GORTON RESPONDENT
JUDGES:
HEEREY, EMMETT AND ALLSOP JJ
DATE:
29 AUGUST 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HEEREY J:
Introduction
In Repatriation Commission v Keeley (2000) 98 FCR 108 a Full Court of this Court held that a claimant for a pension under the Veterans’ Entitlement Act 1986 (Cth) (the VE Act) who appealed to the Administrative Appeals Tribunal (AAT) had an accrued right to have her entitlement determined by the Statement of Principle (SoP) in force at the time of the claim, notwithstanding that that SoP had been revoked by another SoP which was in force at the time of the AAT decision.
In this appeal the Repatriation Commission (the Commission) seeks…
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.
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AGLC
Repatriation Commission v Gorton [2001] FCA 1194
Case
[2001] FCA 1194
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Gorton involved a dispute regarding the application of various Statements of Principles (SoP) in the assessment of a claim under the Repatriation Health Insurance Act 1948 (Cth). The Full Court of the Federal Court was called upon to decide which SoP should be applied to the applicant's claim for benefits. The applicant argued that the more favourable SoP, which was in effect when the claim was initially assessed, should be applied. The Repatriation Commission contended that the SoP in force at the time of the decision should be applied.
The legal issues before the court centred on the interpretation of the relevant statutory provisions and the effect of repealing SoPs on existing claims. The court needed to determine whether the repeal of a SoP, which resulted in a less favourable outcome for the applicant, should be applied to the applicant's claim. The court also had to consider whether the principle that the more beneficial SoP should apply when choosing between current or revoked SoPs was an exception to the general rule that the SoP in force at the time of the decision should be applied.
In reaching its decision, the court examined the language of the relevant provisions of the Repatriation Health Insurance Act 1948 (Cth), including sections 196B(7) and (8), which provide for the continual updating of SoPs. The court noted that the Act evinced an intention for claims to be assessed in the light of all available evidence, including the most recent SoP. The court also considered the decision in Keeley, which had held that when choosing between current or revoked SoPs, the revoked SoP is the one that applies. However, the court found that the decision in Keeley was an exception to the general rule, dictated by the beneficial nature of the legislature. The court concluded that the Administrative Appeals Tribunal (AAT) was obliged to consider the applicant's claim in the context of the SoP in force at the time of the decision, unless the revoked SoP was more favourable.
The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the proceeding.
Orders
Orders of the court
1. The appeal be dismissed;
2. The appellant pay the respondent’s costs of the proceeding.
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
The reasoning of the primary judge on the issue of which SoP applied was as follows:“23. In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,‘The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant’s claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant’s claim must be considered in the context of Instrument 83.”The decision in Keeley In their joint judgment Lee and Cooper JJ noted that the primary judge had referred to s 50 of the Acts Interpretation Act 1901 (Cth) which provides:“Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal:(a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or(b) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or(c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made.”