Shergold v Tanner

[2002] FCA 19

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Brown [2002] FCA 19

ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal (“AAT”) – veteran’s entitlements – whether AAT erred in applying a Statement of Principle  not in force at the time of initial application

Veteran’s Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A, 126, 196B

Repatriation Commission v Olsen [2002] FCA 12 referred to
Repatriation Commission v Gorton [2001] FCA 1194 followed
Repatriation Commission v Keeley (2000) 98 FCR 108 referred to

REPATRIATION COMMISSION V JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN
N 34 of 2001

STONE J
22 JANUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 34 OF 2001

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	22 JANUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed;

2.the applicant pay the respondent’s costs.

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	N 34 OF 2001

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN RESPONDENT

JUDGE:	STONE J
DATE:	22 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant (“Commission”) has applied to the Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) seeking review of a decision of the Administrative Appeals Tribunal (“AAT”) made on 19 December 2000. The AAT set aside the Commission’s decision that Mr Leonard Brown’s malignant neoplasm of the prostate was not war-caused and remitted the matter to the Commission for assessment of the rate of pension payable to Mr Brown, who was the applicant in those proceedings.

2. Unfortunately, Mr Brown died only a few days before the hearing of this application for a review of the AAT decision. Order 6 r 10 of the Federal Court Rules provides that where a party to a proceeding dies but the cause of action in the proceeding survives, the proceeding does not abate by reason of that death. Section 126(1) of the Veterans’ Entitlements Act 1986 (Cth) (“Act”) applies in such a case. It provides:

   “On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant.”

3. At the hearing, counsel for the Commission, Mr P J Hanks QC, advised that the Commission frequently approves another person to continue the claim of a claimant under the Act and that it was expected that Mr Brown’s widow would be approved to continue…