DEFENCE AND WAR - Veterans' entitlements - disability pension - construction of order of remitter - extent of Administrative Appeals Tribunal's powers when hearing and determining a matter remitted to it by the Court - whether it was appropriate that the Court determine whether the veteran was entitled to a pension at a special rate - application of estoppel doctrine to the Tribunal
JUDGMENTS AND ORDERS - Construction of order of remitter - extent of Tribunal's powers when hearing and determining a matter remitted to it by the Court
Gordon v. Gonda [1955] 1 All ER 762 - cons ICI Australia Operations Pty Ltd v. Trade Practices Commission (1992) 38 FCR 248 Australian Consolidated Press Ltd v. Morgan(1965) 112 CLR 483 - cons McNair Anderson Associates Pty Ltd v. Hinch(1985) VR 309 - cons Kwikspan Purlin System Pty Ltd v. Federal Commissioner of Taxation (1986) 2 ATC 4602 - cons Australian Energy Limited v. Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 - cons Sharpe v. Goodhew, Drummond J., 11 December 1992, unreported - cons Australian Securities Commission v. Skase, Drummond J., 13 January 1993, unreported - cons Codelfa Construction Pty Ltd v. State Rail Authority of N.S.W. (1982) 149 CLR 337 - appl The Commonwealth v. Verwayen(1990) 170 CLR 394 - cons Walton v. Gardiner(1993) 177 CLR 378 - cons Port of Melbourne Authority v. Anshun Proprietary(1981) 147 CLR 589 - cons Lowerson v. Repatriation Commission(1994) 50 FCR 252 - appl
REPATRIATION COMMISSION v LIONEL NATION
No. TG 25 of 1994
BLACK C.J., JENKINSON AND BEAUMONT JJ.
SYDNEY
2 JUNE 1995
IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) No. TG 25 of 1994 ) GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:REPATRIATION COMMISSION
Appellant
AND:LIONEL NATION
Respondent
CORAM: BLACK C.J., JENKINSON AND BEAUMONT JJ.
DATE: 2 JUNE 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.Order 3 made by Northrop J. be varied to read as follows:
"Remit the matter to the Repatriation Commission to determine de novo the rate of pension to be paid to the applicant and the date from which that pension is to be paid."
2.The appeal otherwise is dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY ) No. TG25 of 1994 GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
BETWEEN: REPATRIATION COMMISSION
Appellant
AND: LIONEL NATION
Respondent
CORAM: Black C.J., Jenkinson and Beaumont JJ.
PLACE: Hobart, judgment delivered in Sydney
DATE: 2 June 1995
REASONS FOR JUDGMENT
BLACK CJ
I have had the advantage of reading the reasons for judgment prepared by Beaumont J. I agree that the…
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 Nation, L [1995] FCA 355
Case
[1995] FCA 355
Decision Date
CaseChat Overview and Summary
The Repatriation Commission appealed against orders made by Northrop J. setting aside a decision of the Administrative Appeals Tribunal affirming the Commission's decision refusing the respondent's claim for a pension in respect of a personality disorder and declaring that the respondent's obsessive compulsive neurosis was a war-caused disease for the purposes of s.13 of the Veterans' Entitlements Act 1986. The orders also remitted the matter to the Commission to determine the rate of pension. The Commission's grounds of appeal were that (i) the matter remitted to the Tribunal was the question whether the respondent's neurosis was a war-caused disease; (ii) in deciding that question, the Tribunal stood in the shoes of the original decision-maker, the Repatriation Commission; (iii) the Tribunal had the responsibility of deciding all matters necessary to determine that question; (iv) in deciding those matters, the Tribunal was required to decide for itself all matters of fact relevant to that question; and (v) in deciding those matters, the Tribunal was not confined to considering whether the respondent's nasal operation caused or contributed to his obsessive compulsory neurosis. It was further contended by the Commission that Northrop J. should not have held that the Tribunal failed to apply the standard of proof prescribed by s.120. It was then said for the Commission that the primary Judge erred in the adjectival area by making substantive orders on an appeal on a question of law from the Tribunal's decision; by holding that the respondent was entitled to the special rate of pension under s.24; and by declaring that the respondent's neurosis was a war-caused disease for the purposes of s.13. The appeal was dismissed with costs. The Court varied order 3 made at first instance by adding the words "de novo" after the word "determine".