Repatriation Commission v McLean

[1998] FCA 373

FEDERAL COURT OF AUSTRALIA 

VETERANS’ AFFAIRS - Application for review of decision of Administrative Appeals Tribunal that death of veteran was war-caused - where decision made in reliance on a clause of the Statement of Principles which was not relied on by the respondent - whether failure to accord procedural fairness - whether the material before the Tribunal raised a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by the veteran - whether the matter should be remitted to the Tribunal with a direction that the Statement of Principles to be applied is the Statement in force at the date of the Tribunal decision.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A

Beale v Administrative Appeals Tribunal (Lindgren J, unreported, 16 March 1998), refd
Director of Public Works v Ho Po Sang [1961] AC 901, refd
Lee v Department of Social Security (1996) 68 FCR 491, foll
Repatriation Commission v Bey (1997) 149 ALR 721, dist
Robertson v City of Nunawading [1973] VR 819, refd

REPATRIATION COMMISSION v JOYCE LEONIE MCLEAN
NG 946 of 1997

DAVIES J
17 APRIL 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 946  of   1997

ON APPEAL FROM A DECISION OF THE VETERANS' APPEALS               DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOYCE LEONIE MCLEAN RESPONDENT

JUDGE:	DAVIES J
DATE:	17 APRIL 1998
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:    

The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

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	NG 946 of 1997

ON APPEAL FROM A DECISION OF THE VETERANS' APPEALS               DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOYCE LEONIE MCLEAN RESPONDENT

JUDGE:	DAVIES J
DATE:	17 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal found that the present respondent, Mrs Joyce Leonie McLean, had established in accordance with the standards of proof laid down by ss 120 and 120A of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), that the death of her husband, Neville Bruce McLean, was attributable to a war cause.

One of the grounds of appeal is that the Tribunal failed to accord procedural fairness to the present appellant, the Repatriation Commission ("the Commission"). Another is that the decision of the Tribunal was not open having regard to the evidence before it. Another is that the Tribunal applied the wrong statement of principles under s 120A. Relevant provisions of the Act provide as follows:

"120.(1)  Where  a  claim  under  Part  II  for  a  pension  in  respect  of  the  incapacity  from  injury  or  disease  of…