Repatriation Commission v Goulding [2008] FCA 1858

Repatriation Commission v Goulding [2008] FCA 1858

The appeal was dismissed because the first and second stated questions did not identify proper questions of law arising from the Tribunal's decision: they misconstrued the Tribunal as having treated s 28A as mandatory or as having decided for all purposes that notice was not given, when the Tribunal had only decided that service under s 28A was ineffective on the facts. The third ground failed because the Commission's submission depended on an incorrect construction of s 163 of the Evidence Act 1995; that section presumes dispatch, not receipt, and s 160 did not establish giving or service of the notice on Mr Goulding. The Tribunal therefore committed no error of law.

Jurisdiction
Australia
Judgment Date
09 December 2008
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Federal Court Judgment on Appeal
Outcome
Appeal dismissed.
Legal Topics
["giving of Written Notice Under S 155 AA of the Veterans' Entitlements Act 1986 (cth)" 'service of Documents Under S 28 a of the Acts Interpretation Act 1901' 'presumptions Under Ss 160 and 163 of the Evidence Act 1995' 'question of Law on Appeal From the Administrative Appeals Tribunal' 'compliance With Order 53 R 3 of the Federal Court Rules']
['administrative Law' 'evidence' "veterans' Entitlements" 'practice and Procedure'] ["giving of Written Notice Under S 155 AA of the Veterans' Entitlements Act 1986 (cth)" 'service of Documents Under S 28 a of the Acts Interpretation Act 1901' 'presumptions Under Ss 160 and 163 of the Evidence Act 1995' 'question of Law on Appeal From the Administrative Appeals Tribunal' 'compliance With Order 53 R 3 of the Federal Court Rules']

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Federal Court Judgment on Appeal

Legal Issues

  1. 1 ["Whether the Tribunal misconstrued s 28A(1) of the Acts Interpretation Act 1901 and s 155AA(4) of the Veterans' Entitlements Act 1986 (Cth)." 'Whether it was open to the Tribunal to conclude that a written notice had not been given to Mr Goulding.' 'Whether the Tribunal failed to consider a submission worthy of serious consideration concerning notice sent to an address nominated by Mr Goulding and read to him by telephone.' 'Whether s 163 or s 160 of the Evidence Act 1995 created a presumption sufficient to establish giving or service of the s 155AA notice.']

Ratio Decidendi

The appeal was dismissed because the first and second stated questions did not identify proper questions of law arising from the Tribunal's decision: they misconstrued the Tribunal as having treated s 28A as mandatory or as having decided for all purposes that notice was not given, when the Tribunal had only decided that service under s 28A was ineffective on the facts. The third ground failed because the Commission's submission depended on an incorrect construction of s 163 of the Evidence Act 1995; that section presumes dispatch, not receipt, and s 160 did not establish giving or service of the notice on Mr Goulding. The Tribunal therefore committed no error of law.

Court Disposition

Appeal dismissed.

Orders

  • ['This appeal be dismissed.']