Repatriation Commission v Hayes

Case [1982] FCA 116

Re: THE REPATRIATION COMMISSION
And: YVONNE NOEL HAYES (1982) 64 FLR 423
No. VG 134 of 1981
Repatriation Act - Defence

COURT

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS

Repatriation Act - appeal on questions of law from decision under s. 24 - relationship between s. 47 and s. 24 of the Repatriation Act considered - meaning of "incapacity" within s. 24 - error of law in failing to properly consider meaning of "from which he has died" - test of causation to be applied - error of law in failure to consider whether "serious default".

Repatriation Act 1920 (Cth.) ss. 24, 47, 107VG, 107VH.

Defence - War widow's pension - Decision of Repatriation Review Tribunal - Appeal on questions of law - Death of member of forces - Causation - Incapacity from which member died - Whether death due to serious default of deceased - Errors of law - Repatriation Act 1920 (Cth), ss. 24, 47, 107VG, 107VH.

HEADNOTE

Upon the death of her husband the respondent applied for a war widow's pension under ss. 24 and 24AA of the Repatriation Act 1920 (the Act). The Repatriation Board refused the application and an appeal to the Repatriation Commission was disallowed. Upon application to the Repatriation Review Tribunal (the Tribunal) it was determined that the "death (was) accepted as being related to the member's (war) service under s. 24 of the Repatriation Act 1920".

Upon an appeal by the applicant on questions of law,

Held: (1) The Tribunal had failed properly to consider the meaning of the words "from which" in the phrase "the incapacity . . . from which he has died . . . " in s. 24(2)(a) and their correct application to the facts of the case and accordingly had erred in law.

Commonwealth v. Butler (1958) 102 CLR 465, discussed.

(2) The Tribunal had failed to consider whether the death was "due to the serious default" of the respondent's husband within s. 24(2)(b) of the Act and this also involved an error of law.

HEARING

Melbourne, 1982, June 3, 4, 7, 8, 9, 10, 17. #DATE 17:6:1982

APPEAL.

The applicant appealed on questions of law from a determination of the Repatriation Review Tribunal.

G. Griffith Q.C. and N. A. Moshinsky, for the applicant.

C. H. Francis Q.C. and D. Shavin, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: John Wilder & Darren Moses.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal made on 10 June, 1981 be set aside.

3. The matter be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive.

4. The costs of the respondent, Yvonne Noel Hayes, in connection with the appeal be taxed.

JUDGE1

William Fitzgerald Hayes was born on 9 April, 1894, served in the…

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Details
AGLC
Repatriation Commission v Hayes, Yvonne Noel [1982] FCA 116 ((1982) 64 FLR 423)
Case
[1982] FCA 116
Decision Date

CaseChat Overview and Summary

The appeal in Repatriation Commission v Hayes involves the Repatriation Commission appealing against a decision made by the Repatriation Review Tribunal. The Tribunal had ruled in favour of Yvonne Noel Hayes, the respondent, who was seeking a pension under the Repatriation Act. The legal issues that the court needed to decide revolved around the interpretation of sections 47 and 24 of the Repatriation Act, specifically the meaning of "incapacity" within section 24 and the appropriate test of causation to be applied. The court also needed to determine whether there was an error of law in the Tribunal's failure to consider whether there had been a "serious default".

The court found that the Tribunal had erred in its interpretation of the law and in its application of the relevant legal principles. The Tribunal had failed to properly consider the meaning of "incapacity" within section 24 of the Repatriation Act and had not applied the correct test of causation. The court held that the Tribunal had made an error of law in not considering whether there had been a "serious default" in the respondent's service, which was a relevant factor in determining her eligibility for a pension under the Act. The court found that the Tribunal's decision was flawed and needed to be set aside.

Accordingly, the appeal was allowed, and the decision of the Repatriation Review Tribunal made on 10 June 1981 was set aside. The matter was remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive. The costs of the respondent, Yvonne Noel Hayes, in connection with the appeal were to be taxed.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal made on 10 June, 1981 be set aside.

3. The matter be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive.

4. The costs of the respondent, Yvonne Noel Hayes, in connection with the appeal be taxed.

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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