McKenzie v Repatriation Commission (No 2) [2014] FCA 1007

McKenzie v Repatriation Commission (No 2) [2014] FCA 1007

The evidence before the Court, including transcripts and detailed summary from the Tribunal, supports the factual finding that Mr McKenzie consumed the required minimum quantity of cigarettes or tobacco products under SoP No 41; as only one result is reasonably open, the Court should make the finding under s 44(7) AAT Act rather than remit.

Jurisdiction
Australia
Judgment Date
16 September 2014
Procedural Posture
Appeal / Post Remittal, on Question of Relief and Factual Finding Under S 44(7) of the AAT Act
Outcome
Appeal allowed
Legal Topics
['appeal From Administrative Appeals Tribunal' "widow's Pension Claim" "war Caused Death Under Veterans' Entitlements Act" 'factual Finding Under S 44(7) AAT Act']
['administrative Law' "veterans' Entitlements"] ['appeal From Administrative Appeals Tribunal' "widow's Pension Claim" "war Caused Death Under Veterans' Entitlements Act" 'factual Finding Under S 44(7) AAT Act']

Case Brief

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Procedural Posture

Appeal / Post Remittal, on Question of Relief and Factual Finding Under S 44(7) of the AAT Act

Legal Issues

  1. 1 ['Whether matter should be remitted to the Tribunal or factual finding made by the Court under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth)' 'Whether sufficient evidence before the Court exists to make a factual finding that the Statement of Principle supports the asserted hypothesis' "Whether the Tribunal was correct in finding that no material pointed to Mr McKenzie's required cigarette or tobacco consumption" 'Whether only one result is reasonably open, making remittal futile']

Ratio Decidendi

The evidence before the Court, including transcripts and detailed summary from the Tribunal, supports the factual finding that Mr McKenzie consumed the required minimum quantity of cigarettes or tobacco products under SoP No 41; as only one result is reasonably open, the Court should make the finding under s 44(7) AAT Act rather than remit.

Court Disposition

Appeal allowed

Orders

  • ['The appeal be allowed.' "The decision of the Administrative Appeals Tribunal made on 11 April 2013 be set aside and it be declared that the veteran's death was war-caused within the meaning of s 8 of the Veterans' Entitlements Act 1986 (Cth)." "The respondent is ordered to pay the applicant a widow's pension...