MR P.J. HANKS, QC: If it please the Court, I appear with my friend, MR S.G.E McLEISH, for the applicant. (instructed by the Australian Government Solicitor.

GAUDRON J: Yes, thank you, Mr Hanks. I think there is a certificate but it is presently not available, but there is a certificate to indicate that the respondent will not be appearing in this matter, yes.

MR HANKS: I am able to say that my instructing solicitors had communications with the respondent’s solicitor as well, your Honour, to that effect.

GAUDRON J: Yes, thank you, Mr Hanks.

MR HANKS: Your Honour, this application arises out of legislation that was passed in 1994 when the Veterans’ Entitlements Act was amended, primarily with the addition of 120A and its associated provisions.

HAYNE J: If the Commonwealth wishes to achieve the result which it contends for, it could do that, could it not, by some very easy delegated legislation? Is that right?

MR HANKS: Perhaps not, your Honour.

HAYNE J: No? It could not simply change the statement of principles to provide that they are to apply henceforth in respect of past and present?

MR HANKS: It may well be, your Honour, that the statement of principles already does that, but if I could put that one side, that is, Clause 8 of the current statement of principles.

HAYNE J: I understand that is the area for contest, but if you want to achieve the result that you say should be obtained by this litigation, it could be achieved, could it not, very quickly and very easily by the Commonwealth simply changing the rules of the game?

MR HANKS: My answer to that, your Honour, is that the rules of the game, if they are changed, will themselves – or should I say the change of the rules will itself generate some difficulties. If the reasoning of the Full Court is correct and if it be true that the present respondent, who is not before the Court, acquired some rights or, as Justice Kiefel put it, had a right, albeit inchoate, to a pension, then all those cases which are currently within the determining system would be immune from any such change and I am invoking here, of course, against the Commonwealth section 51(xxxi) of the Constitution. That will create real problems for the course which your Honour suggests.

It is our submission that the reasoning of the Full Court and, indeed, of the primary judge in this case was, with respect, erroneous and misconceived and that it ought to be corrected.

GAUDRON J: Even assume that to be the case for the moment,…

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.

Continue reading Repatriation Commission v Keeley H1/2000

Details

AGLC: Repatriation Commission v Keeley H1/2000 [2000] HCATrans 730
Case: [2000] HCATrans 730
Decision Date: 28 November 2000

CaseChat Overview and Summary

The case of *Repatriation Commission v Keeley* concerned an appeal to the High Court of Australia from a decision of the Full Federal Court. The dispute involved the Repatriation Commission's refusal to grant Mr. Keeley an increase in his pension entitlement under the *Veterans' Entitlements Act 1986* (Cth). Mr. Keeley sought an increase in his pension based on the alleged aggravation of a war-caused condition, specifically a psychiatric disorder, during his service.

The primary legal issue before the High Court was whether the Federal Court had erred in law by finding that the Repatriation Commission had failed to properly consider the evidence before it when determining Mr. Keeley's claim. This involved an examination of the statutory obligations imposed on the Commission under the *Veterans' Entitlements Act* regarding the assessment of claims for pension increases due to aggravation of war-caused conditions.

Gaudron and Hayne JJ held that the Federal Court had correctly identified an error of law in the Commission's decision-making process. Their Honours found that the Commission had not adequately addressed the evidence presented by Mr. Keeley concerning the aggravation of his psychiatric condition. The legal principle applied was that a decision-maker under the Act must genuinely consider all relevant evidence, and a failure to do so constitutes an error of law. The High Court therefore dismissed the appeal.

Orders