DEFENCE AND WAR – veterans’ entitlements – special rate of pension under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) – whether applicant prevented from engaging in remunerative work by war-caused injuries alone
APPEAL AND NEW TRIAL – applicant did not file notice of contention within 21 days of notice of appeal being served under r 36.24 of the Federal Court Rules 2011 (Cth) – applicant did not file application for extension of time to file notice of contention – no explanation given – contentions without merit – leave to extend time to rely on notice of contention refused
Legislation:
Administrative Appeals Tribunals Act 1975 (Cth) s 43(2B) Veterans’ Entitlements Act 1986 (Cth) s 22, s 24, s 24(1), s 24(1)(a)(i), s 24(1)(b), s 24(1)(c), s 24(2), s 24(2)(a), s 24(2)(a)(ii), s 24(2)(b), s 24(2A), s 24(2B)
1.The orders made by the Court on 9 February 2015 be varied by ordering:
1.1 The appeal be allowed.
1.2Orders (1) and (2) made by the Honourable Justice Bromberg on 29 July 2014 be set aside and in lieu thereof the Court orders that the application by way of appeal be dismissed.
1.3The respondent’s application for leave to extend time to file a notice of contention be refused.
1.4The respondent pay the appellant’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 487…
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 Watkins [2015] FCAFC 10
Case
[2015] FCAFC 10
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Watkins involved the appellant, Mr Watkins, and the respondent, the Repatriation Commission. The dispute concerned the interpretation and application of the Veterans’ Entitlements Act 1986 (Cth), specifically whether Mr Watkins was entitled to a special rate of pension under section 24(1)(c) due to his war-caused injuries. The Federal Court of Australia was tasked with resolving this issue.
The primary legal issue before the court was whether Mr Watkins' injuries solely prevented him from engaging in remunerative work, thus qualifying him for the special pension rate. Additionally, the court had to consider procedural issues regarding Mr Watkins' failure to file a notice of contention within the required timeframe and his subsequent application for an extension of time to file such a notice.
The court found that Mr Watkins' failure to file the notice of contention within the 21-day period stipulated by rule 36.24 of the Federal Court Rules 2011 (Cth) was not adequately explained and that the contentions he sought to raise were without merit. As a result, the court determined that leave to extend time to rely on the notice of contention should be refused. Consequently, the appeal was allowed, and the orders made by the primary judge were set aside. The court dismissed Mr Watkins' appeal and ruled that the respondent's application for leave to extend time to file a notice of contention was also refused. Furthermore, the court ordered that the respondent pay the appellant's costs of and incidental to the appeal.
The final orders of the court were to allow the appeal, set aside the orders made by the primary judge on 29 July 2014, dismiss the appeal, refuse the respondent's application for leave to extend time to file a notice of contention, and order the respondent to pay the appellant's costs of and incidental to the appeal.
Orders
Orders of the court
1. The orders made by the Court on 9 February 2015 be varied by ordering:
1.1 The appeal be allowed.
1.2 Orders (1) and (2) made by the Honourable Justice Bromberg on 29 July 2014 be set aside and in lieu thereof the Court orders that the application by way of appeal be dismissed.
1.3 The respondent’s application for leave to extend time to file a notice of contention be refused.
1.4 The respondent pay the appellant’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In all the circumstances, including the lack of merits in the contentions sought to be raised by Mr Watkins’ draft notice of contention, the failure to file a notice of contention within time, the failure to explain the delay in seeking to bring it forward and the failure to seek an extension of time to do so in a timely way, we determined to refuse leave to rely on the draft notice of contention.CONCLUSION AND ORDERS For the reasons given above, we ordered that:1. The appeal be allowed with costs.2.The orders (1) and (2) made by the primary judge be set aside and in lieu thereof the application by way of appeal be dismissed with costs.3.The respondent’s application for leave to extend the time to file a notice of contention be dismissed with costs. Our orders were, of course, directed to the judgment and orders under appeal, which were those made on 29 July 2014. We observe that the primary judge did not make a separate order for the respondent to pay the appellant’s costs of and incidental to the proceedings before him until 7 August 2014. This order was not the subject of appeal. Accordingly, we would vary our orders of 9 February 2015 with the following effect: 1.The appeal be allowed.2.Orders (1) and (2) made by the primary judge on 29 July 2014 be set aside and in lieu thereof order that the application by way of appeal be dismissed.3.The respondent’s application for leave to extend time to file a notice of contention be refused.4.The respondent pay the appellant’s costs of and incidental to the appeal.