Hall v Repatriation Commission

REASONS FOR JUDGMENT 1 In the principal decision (Hall v Repatriation Commission [2007] FCA 2021), an issue was reserved as to whether or not the matter would be remitted to the Administrative Appeals Tribunal (the Tribunal). The applicant now seeks an order that this Court determine the matter, rather than remit the matter to the Tribunal. Counsel for the Repatriation Commission submits that is not a step which ought to be taken and I have been referred to a series of authorities, culminating in Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364, which stress the sparing nature of the potential use of the power granted by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) generally, and in particular, by s 44(7). 2 I need no persuasion about the caution which the Court must exercise in determining the matter, as is evident from my judgment in Byrne v Repatriation Commission [2007] FCAFC 126; (2007) 92 ALD 359, where I took the view that that matter should be remitted. In my opinion, the nub of the question is that raised in the last submission by counsel for the Repatriation Commission, when it was put that if the matter goes back, the Tribunal would be able to reject the claim. 3 In my opinion, that submission is contrary to the principal decision - see Hall [2007] FCA 2021 at [22]). In my view, once the hypothesis was found to be reasonable, and once the facts were found as the Tribunal did, then, when the concept of beyond reasonable doubt is properly understood, the Tribunal could not properly find, as required by s 120(1) of the Veteran's Entitlement Act 1986 (Cth), that there was no sufficient ground for making the determination beyond reasonable doubt. 4 In my opinion, it is only at a very high level that to so hold may be regarded as a finding of fact. The findings of primary fact have been made by the Tribunal, and if it be a finding of fact that is made, then it seems to me that this is a very benign use of s 44(7). The course of having the matter remitted would lead to further delay and cost, and risks a misunderstanding of the effect of the principal decision if a submission such as that just made to me was made to the Tribunal. 5 Accordingly the decision of the Repatriation Commission under review is set aside and in lieu thereof I determine that the death of Robert Thomas Butler was war caused and that the applicant, Ruth Isobel Hall, is entitled to a war widow's pension as from 27 February 2005. Liberty to apply is reserved. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.