Flentjar, John Joseph v Repatriation Commission [1997] FCA 1200

Flentjar, John Joseph v Repatriation Commission [1997] FCA 1200

The appeal failed because the Tribunal had not properly identified the relevant type of remunerative work undertaken by the appellant and had not given proper, genuine and realistic consideration to whether, but for war-caused incapacity alone, he would probably have continued or resumed that work and thereby avoided loss of earnings. Section 119 did not allow the Tribunal to bypass the statutory criteria in s 24(1)(c). The single judge's comments did not give rise to a reasonable apprehension of bias and, in any event, the appellant had waived any such objection by not taking it at the time.

Jurisdiction
Australia
Judgment Date
10 October 1997
Procedural Posture
Appeal Concerning Entitlement to Special Rate Pension Under the Veterans' Entitlements Act 1986 (cth) / Appeal to the Full Court of the Federal Court From a Single Judge Decision Setting Aside an Administrative Appeals Tribunal Decision and Remitting the Matter
Outcome
Appeal dismissed with costs.
Legal Topics
['special Rate Pension' 'war Caused Incapacity' 'remunerative Work' 'loss of Earnings' 'administrative Appeals Tribunal Error of Law' 'apprehended Bias' 'waiver']
["veterans' Affairs" 'administrative Law'] ['special Rate Pension' 'war Caused Incapacity' 'remunerative Work' 'loss of Earnings' 'administrative Appeals Tribunal Error of Law' 'apprehended Bias' 'waiver']

Case Brief

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Procedural Posture

Appeal Concerning Entitlement to Special Rate Pension Under the Veterans' Entitlements Act 1986 (cth) / Appeal to the Full Court of the Federal Court From a Single Judge Decision Setting Aside an Administrative Appeals Tribunal Decision and Remitting the Matter

Legal Issues

  1. 1 ['Whether the Tribunal properly addressed the relevant "remunerative work that the veteran was undertaking" within s 24(1)(c) of the Veterans\' Entitlements Act 1986 (Cth).' 'Whether the Tribunal gave proper, genuine and realistic consideration to whether the appellant was suffering loss of earnings by reason of being prevented by war-caused incapacity alone from continuing that work.' "Whether s 119 of the Veterans' Entitlements Act 1986 (Cth) permitted disregard of the statutory criteria for special rate pension." 'Whether comments made by the single judge gave rise to a reasonable apprehension of bias.']

Ratio Decidendi

The appeal failed because the Tribunal had not properly identified the relevant type of remunerative work undertaken by the appellant and had not given proper, genuine and realistic consideration to whether, but for war-caused incapacity alone, he would probably have continued or resumed that work and thereby avoided loss of earnings. Section 119 did not allow the Tribunal to bypass the statutory criteria in s 24(1)(c). The single judge's comments did not give rise to a reasonable apprehension of bias and, in any event, the appellant had waived any such objection by not taking it at the time.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed with costs.']