NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Davies(1), Burchett(2) and Einfeld(2) JJ.
CATCHWORDS
Administrative Law - Veterans' Affairs) - time for appeal from Administrative Appeals Tribunal - whether runs from "decision in writing" given under s. 43(1) of the Administrative Appeals Tribunal Act - refusal of extension of time to appeal on the ground that there was no arguable point of law - circumstances in which the incidents of camp life were held as a matter of fact to have been a contributing cause of a smoking habit which in turn led to disease so as to satisfy s. 9(1)(b) of the Veterans' Entitlement Act 1986.
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr C.A. Vindin
Solicitors for the Respondent: Veterans Advocacy Service
ORDER
THE COURT ORDERS THAT:
1. Leave to appeal be refused.
2. The applicant, Repatriation Commission, pay the costs of the respondent, to be assessed or taxed upon the same basis as if the application to this court had been an appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
DAVIES J. I have had an opportunity to read, and I agree with, the reasons for judgment prepared by my brothers, Burchett and Einfeld JJ., but I would add a few words of my own.
The Judge below, Foster J., who refused to extend the time for leave to appeal from a decision of the Administrative Appeals Tribunal, did so on the ground that the proposed appeal had no reasonable prospect of success, which is to say that there was no arguable ground of appeal. I agree with his Honour.
The issue before the Tribunal was whether Mr Tuite's smoking habit, which it was agreed had contributed to the development of his emphysema and gastric ulcer, arose out of or was attributable to his eligible war service. Mr Tuite gave evidence that he enlisted when 24 years of age, that he had not previously smoked and that he commenced smoking within 14 days of entering camp. Mr Tuite gave this evidence, inter alia:-
"Why did you start smoking?---Well, everyone was smoking and we were getting - we could afford to buy the cigarettes, off a chap come around in a truck every day and, I mean, we was all ready to go to war and we wanted to go, I wanted to go,…
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.
In the case of Repatriation Commission v Tuite, the Repatriation Commission sought to appeal a decision of the Administrative Appeals Tribunal (AAT) concerning the eligibility of Mr. Tuite for benefits under the Veterans' Entitlements Act 1986. The Tribunal had determined that the incidents of camp life contributed to Mr. Tuite's smoking habit, which subsequently led to a disease, thereby satisfying the criteria under section 9(1)(b) of the Act. The Commission argued that the AAT had erred in its findings and sought to extend the time for appeal.
The primary legal issue before the court was whether the time for appealing from a decision of the AAT commenced from the date of the written decision under section 43(1) of the Administrative Appeals Tribunal Act. The court also needed to determine whether the AAT had correctly refused the Commission's application for an extension of time to appeal on the basis that there was no arguable point of law. The interpretation of statutory provisions and the procedural requirements for appealing AAT decisions were central to the court's considerations.
The court found that the statutory language of section 43(1) clearly indicated that the time for appeal begins with the provision of the decision in writing. The court further held that the AAT was correct in its assessment that there was no arguable point of law in the Commission's application for an extension of time. The findings of fact made by the AAT regarding the contributory role of camp life in Mr. Tuite's smoking habit and subsequent disease were upheld as they were supported by the evidence. Consequently, the court dismissed the appeal and ordered the Commission to pay the respondent's costs.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Leave to appeal be refused.
2. The applicant, Repatriation Commission, pay the costs of the respondent, to be assessed or taxed upon the same basis as if the application to this court had been an appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.