Re: NORMAN EDWIN TUITE And: ADMINISTRATIVE APPEALS TRIBUNAL VETERANS' APPEALS DIVISION and REPATRIATION COMMISSION No. G 446 of 1992 FED No. 113 Number of pages - 16 Practice and Procedure (1993) 17 AAR 165 (1993) 40 FCR 483 (1993) 29 ALD 647
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Davies J.(1)
CATCHWORDS
Practice and Procedure - application under Administrative Decisions (Judicial Review) Act 1977 for review of decision of Administrative Appeals Tribunal - injuries sustained during eligible service under Veterans' Entitlements Act 1986 - whether applicant denied procedural fairness in breach of requirements of natural justice - whether breach of legal duty by Tribunal amounts to a "question of law" under the Administrative Appeals Tribunal Act - procedure to be adopted where Tribunal rejects concession agreed to by parties before hearing - whether proceedings under the Administrative Decisions (Judicial Review) Act were appropriate.
Cavell v. Repatriation Commission (1988) 9 AAR 534
HEARING
SYDNEY, 3 February 1993
#DATE 5:3:1993
Counsel for the Applicant: Mr C.A. Vindin
Solicitors for the Applicant: Veterans' Advocacy
Service
Counsel for the Second Respondent: Miss R.M. Henderson
Solicitor for the Second Respondent: Australian Government
Solicitor
ORDER
The Court orders that:
1. The application is allowed.
2. The decision of the Administrative Appeals Tribunal of 26 May 1992 be varied by omitting therefrom the ruling "That the decision under review so far as it relates to cervical spondylosis ... is affirmed."
3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law.
4. The second Respondent, the Repatriation Commission, pay the costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
DAVIES J. This application is brought under the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") in respect of a decision of the Administrative Appeals Tribunal given on 26 May 1992. The application seeks to have the decision of the Tribunal varied on the ground that the applicant, Norman Edward Tuite, did not receive natural justice in the hearing, that is to say that procedural fairness was denied to him to his disadvantage.
In my view, the application to this Court is misconceived insofar as the application is brought under s.5 of the ADJR Act. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The Tribunal having made a decision on Mr Tuite's application, by which he was aggrieved, his appropriate course was to institute an appeal…
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.
Continue reading Tuite v Administrative Appeals Tribunal
In Tuite v Administrative Appeals Tribunal, the Federal Court reviewed a decision made by the Administrative Appeals Tribunal (AAT) concerning the eligibility of certain injuries sustained by the applicant, Mr. Tuite, during his service under the Veterans' Entitlements Act 1986. The core dispute centred on whether Mr. Tuite was denied procedural fairness, thus breaching the principles of natural justice, and whether the AAT's actions constituted a "question of law" as defined under the Administrative Appeals Tribunal Act. Additionally, the case examined the procedural steps the AAT should follow when rejecting a concession agreed upon by the parties prior to the hearing, and the appropriateness of the judicial review proceedings under the Administrative Decisions (Judicial Review) Act.
The legal issues before the court were whether the AAT breached the principles of natural justice by not adhering to the agreed concession, and if such a breach constituted a "question of law" warranting judicial review. The court also considered the proper procedure for the AAT to follow in such circumstances and the appropriateness of the judicial review process in this context. The court's task was to determine if the AAT's decision warranted setting aside and remitting the matter for reconsideration, and if the applicant's costs should be awarded.
The court found that the AAT did indeed breach procedural fairness by not adhering to the concession agreed upon by the parties, which amounted to a "question of law". The AAT's failure to follow the agreed terms constituted a significant procedural error, warranting judicial review. The court held that the proceedings under the Administrative Decisions (Judicial Review) Act were appropriate in this instance. Consequently, the decision of the AAT was varied by omitting the ruling affirming the decision under review concerning the applicant's cervical spondylosis. The matter was remitted to the AAT for reconsideration according to law, and the Repatriation Commission was ordered to pay the applicant's costs.
Orders
Orders of the court
The Court orders that:
1. The application is allowed.
2. The decision of the Administrative Appeals Tribunal of 26 May 1992 be varied by omitting therefrom the ruling "That the decision under review so far as it relates to cervical spondylosis ... is affirmed."
3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law.
4. The second Respondent, the Repatriation Commission, pay the costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.