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REASONS FOR JUDGMENT 1 This appeal was heard together with a related appeal (No SAD 36 of 2010). That related appeal arises out of a challenge which Mr Rana made by way of seeking the judicial review of a procedural direction made by the Administrative Appeals Tribunal (the Tribunal) at an interlocutory stage in the course of its reviewing a decision to refuse his application for the disability pension for which Pt IV of the Veterans' Entitlements Act 1986 (Cth) (VEA) makes provision. That judicial review challenge was unsuccessful: Rana v Repatriation Commission [2010] FCA 280. 2 This appeal arises out of an appeal which Mr Rana brought, or at least purported to bring, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the Tribunal's final decision in that review proceeding, which was to affirm the decision to refuse him a pension. We adopt the qualification "purported" advisedly, for reasons which will emerge from our reasons for judgment. 3 Though termed an "appeal" by s 44, an appeal against a decision of the Tribunal is a proceeding in this Court's original jurisdiction. In the original jurisdiction, Mr Rana's appeal from the Tribunal's decision was heard together with the judicial review application. The learned primary judge decided that the s 44 appeal should be dismissed: Rana v Repatriation Commission [2010] FCA 281. 4 The background to the present appeal is thoroughly described in the reasons for judgment of the learned primary judge. It is not necessary for the purpose of determining this appeal other than to refer to that background other than in a summary way. 5 Within Pt IV of the VEA, s 70(1)(b) materially provides for the payment, by way of compensation, by the Commonwealth of a pension to a "member of the Forces" who is incapacitated from a defence-caused injury or a defence-caused disease. The term "member of the Forces" is defined by s 68 of the VEA. A person will fall within that definition if, amongst other things, that person is a person to whom s 69 of the VEA applies. Of the applicability criteria specified by s 69 of the VEA the critical question was whether Mr Rana was a person who satisfied terms of s 69(1)(d). He would only do so if: (i) he had served as a member of the Defence Force under an engagement to serve for a period of continuous full time service of not less than 3 years; and (ii) his service as such a member was terminated before the he had completed 3 years' effective full time service as a member of the Defence Force, but after 6 December 1972, by reason of his death or his discharge on the ground of invalidity or physical or mental incapacity to perform duties 6 It has never been controversial that Mr Rana met the requirements of s 69(1)(d)(i) of the VEA. The Tribunal (constituted by Deputy President Hack S.C.) determined that he did not meet the requirements of s 69(1)(d)(ii), because his service had not been terminated "by reason of … [his] discharge on the ground of invalidity or mental incapacity to perform duties". 7 The Tribunal determined the question of whether Mr Rana fell within the definition of "member of the Forces" as a preliminary issue in the review proceeding. As the Tribunal recognised, a necessary consequence of its determination that Mr Rana was not a "member of the Forces" was that Part IV of the VEA did not apply to him. Another consequence was that it was unnecessary, in light of that determination, for the Tribunal to consider whether Mr Rana satisfied the eligibility requirements specified in s 70 of the VEA. Accordingly, the Tribunal affirmed the decision not to grant him a disability pension under that part of the VEA. 8 In determining the preliminary question and, consequentially, the decision under review the Tribunal proceeded on the basis that it was permissible to look behind the specified reason for discharge to see whether, in substance although not in form, the discharge had been on the ground of "invalidity or physical or mental incapacity to perform duties". There is authority which, by analogy with a similarly worded provision in the Defence Service Homes Act 1918 (Cth), would support such an approach: Whiteman v Secretary, Department of Veterans' Affairs (1996) 69 FCR 510 (Whiteman's Case). The Tribunal's reasons disclose that the Commission accepted that Whiteman's Case governed the approach that should be taken to determining whether Mr Rana met the requirements of s 69(1)(d)(ii) of the VEA. That approach could only have worked in Mr Rana's favour as his specified reason for discharge from the Army made no reference to invalidity or to physical or mental incapacity. 9 The learned primary judge dealt with the s 44 appeal on the assumption that the Tribunal had been correct in approaching the determination of the preliminary issue on the basis that Whiteman's Case was relevant by analogy, although his Honour expressly left open a question as to whether that case had been correctly decided. Before us, the Commission submitted that Whiteman's Case had not been correctly decided and that, in effect, one looked no further, for the purpose of s 69(1)(d)(ii) of the VEA, than the specified reason for discharge from the Defence Force. As will be seen, it is not necessary for the purpose of deciding this appeal to determine whether Whiteman's Case was correctly decided. In this circumstance and especially given the different stance taken by the Commission before the Tribunal and the basis upon which the matter was determined in the original jurisdiction, we express no opinion as to the correctness of Whiteman's Case or of its derivative use by analogy for the purposes of the VEA. Instead, we, too, proceed on the assumption that it was correctly decided. 10 As amended, Mr Rana's notice of appeal from this decision of the Tribunal specified the following as the questions of law: (i) DP Hack erred in law by denying the applicant natural justice or failed to accord the applicant procedural fairness per s. 5(1)(a)(b) of the Administrative Decisions (Judicial Review) Act 1977. (ii) DP Hack did not properly take into account the relevant evidence presented by the applicant at the hearing. This is per s. 5(1)(e) and (2)(b) of the Administrative Decisions (Judicial Review) Act 1977. (iii) Making of the decision by DP Hack was an improper exercise of power conferred by the AAT Act, in that irrelevant consideration was taken into account. This is per s. 5(1)(e) and (2)(a) of the Administrative Decisions Judicial Review Act 1977. [Footnotes omitted] These questions were accompanied by particulars. It is not necessary to set those out. Even taking them into account, the position which remains, as the learned primary judge recognised, is that the notice of appeal by which Mr Rana sought to initiate an appeal under s 44 of the AAT Act against the Tribunal's decision did not state a question at all, much less a question of law. Rather, what it sets out are administrative law error grounds which, if meaningfully particularised, might suffice for an application under the Administrative Decisions Judicial Review Act 1977 (Cth) for the judicial review of the Tribunal's decision. 11 The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this Court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this Court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300 - 302 and Comcare v Etheridge (2006) 149 FCR 522 at 526 - 527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the Court has no jurisdiction to entertain the proceeding. 12 The respondent Repatriation Commission relied upon this line of authority as offering one reason why the appeal against the judgment below should be dismissed. 13 The learned primary judge was plainly alive to the importance of the requirement that there be a question of law: see in particular para 41 of his Honour's reasons for judgment and the reference to Birdseye. At the time, O 53 r 3(2) of the (now former) Federal Court Rules 1979 (Cth) required that a notice of appeal separately specify the question of law raised by the appeal and the grounds relied upon in support of the order sought on the appeal. In Birdseye at [18] Branson and Stone JJ drew attention to this rule and to a resultant expectation that the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought. 14 The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal to the end of determining whether there was any such link and also to the end of determining whether, read as a whole, a question of law was in substance revealed by the notice. Though care must be taken, especially in the face of an objection to competency, not to visit on a respondent party a judicially attractive question of law which the notice does not fairly raise, there is authority which would support the reading as a whole and in context of a notice of appeal so as to give precision to an inelegantly specified question of law: Ergon Energy Corporation Ltd v Federal Commissioner of Taxation (2006) 153 FCR 551 at [50] per Sundberg and Kenny JJ. 15 The end result of his Honour's scrutiny of these grounds were conclusions that Mr Rana's appeal from the Tribunal raised no question of law but was, instead, an impermissible endeavour to have the Court to review on the merits the question of his pension entitlement. In so concluding, his Honour stated (at [88] - [89]), "This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant. … The applicant has wrongly assumed that because he adduced evidence in support of the proceeding the AAT was bound to accept it." 16 Such an endeavour was also a feature of Mr Rana's appeal to the Full Court. At the outset of his oral submissions Mr Rana sought to tender further evidence. This was opposed by the Commission. We refused to admit this material signifying that we would give our reasons for so doing in our reasons for judgment in respect of the appeal. 17 A perusal of the material which Mr Rana sought to tender discloses that most, though not all of it comprised documents which were already in evidence before the Tribunal forming part of the documents prepared under s 37 of the AAT Act (termed the "T Documents" in Tribunal practice) or about which Mr Rana had been aware before instituting the present appeal. Such materials were not fresh evidence. Of the balance, some related to a refusal by the Chief of Army to amend the specified reason for Mr Rana's discharge from the Army. The Tribunal had regarded this refusal as irrelevant to the task of reviewing the decision not to grant Mr Rana a pension under Pt IV of the VEA. In this it was not mistaken. The balance of the material related in one way or another to the weight which might be given to the opinions of medical practitioners whose evidence was before the Tribunal. The place for the use of such materials, if anywhere, was in the course of the Tribunal hearing, not before this Court in the exercise of appellate jurisdiction. 18 Such particular criticism aside, there was a more fundamental reason why none of the material was admissible in the circumstances of this appeal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 (Servos' Case) Spender J drew attention to the nature of an appeal under s 44 of the AAT, ie an appeal on a question of law, and to what he saw as a related legislative policy which was that a decision of the Tribunal was to be final on matters of fact. For this reason his Honour opined that the AAT Act did not permit the reception on an appeal under that section of evidence which was not before the Tribunal. This opinion was referred to with apparent approval by the Full Court in Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [31] (Phillips' Case) in respect of a controversy as to whether further evidence should be admitted. On that occasion, the Full Court also observed that the further evidence "relates to a factual issue and even if admitted would not demonstrate any error of law". 19 The correct position is, in our respectful opinion, revealed by the additional observation made by the Full Court in Phillips' Case. The jurisdiction presently being exercised is the appellate jurisdiction conferred by s 24 of the Federal Court of Australia Act 1976 (Cth). Section 27 of that Act materially provides that, in the exercise of that appellate jurisdiction, the Court "shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence". The exercise of the discretion referred to in this section must be informed by the nature of the proceeding from which the appeal arises. 20 In this case, as we have noted, the legislation vesting original jurisdiction in the Court to hear an appeal from the Tribunal does so only on the limited basis that the appeal must be on a question of law. At a general level of abstraction, this does, as Spender J opined in Servos' Case, evince an intention that evidentiary controversies concerning how and which facts should be found are for the Tribunal, not for the Court in the exercise of that original jurisdiction. The prohibition against the reception of further evidence on the hearing of a s 44 appeal is not though a complete one. There is a limited scope for the reception of further evidence in such an appeal where that evidence tends to prove that the specified question of law should, for a reason given in a specified ground of appeal, be answered in a way that entitles or, as the case may be, disentitles an applicant to the orders sought. The further evidence must, as the Full Court observed in Phillips' Case, have a tendency, if admitted, to demonstrate an error of law. If, for example, the power of an administrative decision-maker or the Tribunal sitting in place of that person was, on the true construction of the legislation conferring that power, only exercisable if a particular jurisdictional fact existed, further evidence which showed that the fact did or did not exist might be admitted on the hearing of a s 44 appeal in the exercise of a judicial discretion. In the present type of case, for example, further evidence which showed that an applicant for a pension had never served or, as the case may be, had in fact served as a member of the Defence Force might fall into this category. In contrast, further evidence which touched on a matter of evaluative judgment on the factual merits of a claim would not be admissible, save perhaps exceptionally for the very limited purpose of underscoring why it was that, in the event that a question of law were answered as an applicant contended, a remitter of the matter to the Tribunal for rehearing would not be an exercise in futility. 21 These features of the exercise of the Court's jurisdiction on the hearing of an appeal from the Tribunal under s 44 of the AAT Act necessarily inform the basis upon which, if at all, evidence may be admitted in the exercise of appellate jurisdiction on the hearing of an appeal against a judgment given in the original jurisdiction. Evidence the purpose of the tender of which is no more than to support an attempt to re-agitate mere matters of fact is not admissible. 22 It was for these reasons that we refused to admit the further evidence that Mr Rana sought to tender. Even aside from questions as to whether any of it could be regarded as fresh evidence, the end to which the tender of the material was directed was the re-agitation of questions of fact falling within the jurisdiction of the Tribunal alone to determine. 23 In a similar fashion to the notice of appeal by which he sought to initiate an appeal in the original jurisdiction under s 44 of the AAT Act, Mr Rana adopted the practice in his notice of appeal to the Full Court of particularising his specified grounds at some length. Those particulars were not completely congruent with the specified grounds of appeal. This has complicated the identification of precisely what are the bases upon which he alleges that the judgment below was in error. On a fair reading of his notice of appeal in light of the submissions both oral and written which Mr Rana made in the appeal those bases appear to us to be these: (a) the learned primary judge was in error in concluding that the appeal from the Tribunal raised no question of law ; (b) the learned primary judge should have concluded that it was a requirement of the review being undertaken by the Tribunal that issues arising under s 69 and s 70 of the VEA be heard together or, put another way, that it was not permissible for the Tribunal to determine a s 69 issue as a preliminary issue in the review; (c) the learned primary judge erred in applying Whiteman's Case; (d) the learned primary judge should have permitted the tender of further evidence to show that the Tribunal's conclusion as to the reason for his discharge not being due to a psychiatric condition was based on false assumptions or a misapprehension of fact. 24 The last of these bases of challenge depended upon our admitting the further material which Mr Rana sought to tender. We have already given our reasons for rejecting that tender. That material was no more admissible before us than it was before the learned primary judge. 25 As to whether the notice of appeal below raised any question of law, the scrutiny to which the learned primary judge subjected the grounds of appeal in the notice in seeking to discern whether, reading the notice as a whole and in context, any question of law was disclosed was certainly thorough. It perhaps, with respect, went further than was necessary to reach the conclusion that, even read as a whole and in context, the notice raised no question of law, only what truly were questions of fact. If there were any error of this kind, it is hardly one which told against Mr Rana. Further, in the singular circumstances of this case, which included a longstanding grievance as to pension entitlements by an ex-serviceman without legal training who was acting for himself, this was undoubtedly a humane approach. As it happened, the adoption of that approach did not deny the Commission any procedural fairness. 26 The conclusions of the learned primary judge that the appeal was an endeavour to re-agitate questions of fact and that no question of law was raised were correct. The Tribunal chose to act on a body of medical and lay evidence touching on whether invalidity or physical or mental incapacity lay behind the nominated reason for Mr Rana's discharge from the Army. It truly was nothing to the point that Mr Rana led some evidence to the contrary in the Tribunal. As his Honour recognised, the findings of fact made by the Tribunal were reasonably open. On those findings, Mr Rana was not a "member of the Forces" and hence not a person to whom Pt IV of the VEA applied. It necessarily followed from this that the Tribunal was not obliged to delve into any issues arising under s 70. Instead, the Tribunal was obliged by its conclusion on the preliminary issue to affirm the decision that Mr Rana was not entitled to a pension payable under Pt IV of the VEA. 27 As we explain in our reasons for judgment in respect of the judicial review appeal, there is no authority which obliged the Tribunal only to conduct its review by considering at the one time issues arising under s 69 of the VEA with issues arising under s 70 of that Act. The Tribunal was master of its own procedure. The procedure it adopted was reasonably open to it and adopted only after affording both Mr Rana and the Commission an opportunity to be heard in relation to that procedure. This, too, was recognised by the learned primary judge. There is no merit in this basis of challenge. 28 Contrary to Mr Rana's assertion in his notice of appeal, the learned primary judge did not misapply Whiteman's Case. To the contrary, in proceeding on the assumption that the Tribunal was entitled to go behind the reason stated in the formal record of discharge, his Honour assumed in Mr Rana's favour that Whiteman's Case was applicable. On that assumption his Honour's conclusion that the Tribunal reached a conclusion reasonably open to it on the material before it, was unremarkable and without error. 29 Our reasons for concluding that there is no merit in any of the bases of challenge to the judgment below are in substantial conformity with the submissions on these subjects made by the Commission, save that, as indicated, we consider it unnecessary to determine whether Whiteman's Case was correctly decided. For that reason, we have not separately reproduced the Commission's submissions. 30 The appeal must be dismissed, with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Stone and Logan.