Murray v Repatriation Commission

1. Order 3 of the Orders made on 22 September 2016 be set aside and in lieu thereof the case be remitted to the Tribunal limited to reconsideration of the issues raised by: (i) Section 23(1)(c) and (3); and (ii) Section 24(1)(c) and (2), of the Veterans' Entitlements Act 1986 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 On 22 September 2016 I published my reasons for judgment on the substantive issues raised by this appeal (Murray v Repatriation Commission [2016] FCA 1150). Those reasons should be read with these reasons. Abbreviated terms utilised in those reasons are here continued. 2 On 22 September 2016 I made an order that the decision of the Tribunal made on 27 May 2015 be set aside. I also made a provisional order that the remittal to the Tribunal be made without limitation. I did that reserving to the parties the opportunity to seek a further order imposing a limitation upon the remittal. That opportunity was taken and these reasons deal with that issue. On the question of the scope of the remittal, I propose to set aside the order made on 22 September 2016 and in lieu thereof make an order that the remittal be limited to the reconsideration of the issues raised by: (i) s 23(1)(c) and (3); and (ii) s 24(1)(c) and (2), of the VE Act. 3 Both parties essentially agreed that the remittal should be limited to a reconsideration of the issues raised by the provisions of the VE Act just identified. The only dispute between them was whether or not an additional condition should be imposed, namely, that the reconsideration should be conducted "without further evidence unless proper cause be shown". That is the further limitation sought by the Commission. 4 In Negri v Secretary, Department of Social Services (No 2) [2016] FCA 1125 at [7], I said this: The AAT Act in ss 2A and 33 promotes the idea that reviews carried out by the Tribunal be dealt with economically. Whilst the need for economy does not trump the need for a fair review conducted according to law, there is nothing before me to suggest that such a result could not be achieved on the evidence already before the Tribunal. I take into account, however, that the unexpected sometimes happens and that inflexibility may hinder a fair result. Accordingly, I will order that the case be remitted for redetermination without further evidence unless proper cause be shown. That is, I will reserve to the Tribunal a capacity to admit fresh evidence if proper cause is shown. 5 The Commission relied upon that observation. 6 Section 25(4A) of the AAT Act provides that the Tribunal "may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers": see Comcare v Broadhurst (2011) 192 FCR 497 at [29] (Downes J). Alternatively, pursuant to s 44(5) of the AAT Act, this Court may limit the hearing of further evidence on remittal. Given the availability of those powers and the terms of the competing orders sought from me, the only real matter in dispute is whether a provisional limitation upon the calling of further evidence should be imposed by me, or instead, an unconstrained opportunity be given to the Tribunal to consider whether any limitation on the calling of further evidence should be imposed by the Tribunal itself. 7 The appropriate order to be made under s 44 of the AAT Act "will depend upon the facts and circumstances of each individual case and the exercise of the discretion thereby conferred": Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 at [55] (Bennett, Flick and McKerracher JJ). In Negri the circumstances favoured a provisional limitation being imposed on the calling of further evidence. There are two relevant factual distinctions in this case that persuade me not impose a provisional limitation on the calling of further evidence. First, the member of the Tribunal who made the initial decision is no longer a member of the Tribunal and a different member will need to determine the remittal. Second, unlike the circumstances in Negri, there may be a need for some updating of the evidence. 8 In those circumstances, I think the best course is to leave it for the reconstituted Tribunal to determine whether a limitation on the calling of further evidence should be imposed. I would expect that prior to any such determination, the parties would identify the nature and extent of any further evidence sought to be called, would sensibly confer as to that matter and, if possible, arrive at an agreed position for the Tribunal to consider. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.