Repatriation Commission v Walters

[2001] FCA 228

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Walters [2001] FCA 228

ADMINISTRATIVE LAW - Application for review - where parties agreed to a particular staement of principles being applied - whether the decision could be reviewed if that was the wrong statement of principles to apply.

Repatriation Commission v Keeley (2000) 98 FCR 108 Foll
Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 Appl
Repatriation Commission v Deledio (1998) 83 FCR 82 Cited
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 97 FCR 513 Appl

REPATRIATION COMMISSION v JEAN ALMA WALTERS
QG 129 OF 1998

COOPER J
BRISBANE
13 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG129 OF 1998

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JEAN ALMA WALTERS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	13 MARCH 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal made on 18 September 1998 setting aside the decision under review and determining in substitution therefor that Jean Alma Walters was entitled to a war widow’s pension with effect from 8 May 1995, be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for re-consideration according to law and these reasons.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG129 OF 1998

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JEAN ALMA WALTERS RESPONDENT

JUDGE:	COOPER J
DATE:	13 MARCH 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. William Walters served in the Royal Australian Air Force from 5 April 1944 until 3 March 1948.  Part of his service included service in Japan from 26 March 1947 until 5 February 1948.  On 21 January 1980 he died.  The cause of his death was multiple myeloma.

2. On 8 August 1995 his widow, Jean Alma Walters, claimed a war widow’s pension under the Veteran’s Entitlements Act 1986 (Cth) (“the Act”).  She claimed in her application that her husband’s death was war-caused within s 8 of the Act.  The claim was rejected and the rejection affirmed by the Veterans’ Review Board.  Mrs Walters sought review in the Administrative Appeals Tribunal (“the AAT”) of the decision to reject her claim for a war widow’s pension.  On 18 September 1998, the AAT set aside the decision under review and in substitution therefor, determined that Mrs Walters was entitled to a war widow’s pension with effect from 8 May 1995.

3. The Repatriation Commission appealed to this Court in its original jurisdiction for orders setting aside the decision of the AAT.

4. After the conclusion of argument on the appeal, the matter was stood over to await the decision of the High Court of Australia on a special leave application in Repatriation Commission v Keeley.  Special leave was refused by the High Court in that matter on 28 November 2000.  Consequent upon such refusal, further submissions were lodged by the parties concluding on 9 February…