Clearihan v Repatriation Commission (No 2) [2020] FCA 1276

Clearihan v Repatriation Commission (No 2) [2020] FCA 1276

Although the Tribunal had erred in relation to the applicant's satisfaction of the requirements in s 24(2A)(d) and s 24(2B)(a) of the Veterans' Entitlements Act 1986 (Cth) for Period 1, it did not necessarily follow that the applicant satisfied the applicable requirements for that period. The appropriate course was therefore to set aside the Tribunal's decision for Period 1 and remit the matter to the Tribunal for further hearing and determination. The applicant should receive costs because, despite the respondent's success in relation to Period 2, the ordinary rule that costs follow the event applied and the issues substantially overlapped.

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Appeal on a Question of Law From a Decision of the Administrative Appeals Tribunal / Form of Orders and Costs Following Reasons for Judgment
Outcome
Appeal allowed in part; Tribunal decision set aside in part; matter remitted to the Administrative Appeals Tribunal for Period 1; appeal otherwise dismissed; respondent to pay applicant's costs.
Legal Topics
['appeal From Administrative Appeals Tribunal' 'special Rate of Pension' 'remittal to Tribunal' 'costs' 'form of Orders']
['administrative Law' "veterans' Entitlements" 'practice and Procedure'] ['appeal From Administrative Appeals Tribunal' 'special Rate of Pension' 'remittal to Tribunal' 'costs' 'form of Orders']

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Procedural Posture

Appeal on a Question of Law From a Decision of the Administrative Appeals Tribunal / Form of Orders and Costs Following Reasons for Judgment

Legal Issues

  1. 1 ["Whether the Court should determine the applicant's entitlement to a special rate of pension in relation to the period from 24 July 2015 up to and including 30 September 2016 or remit the matter to the Tribunal." 'Whether the appeal should otherwise be dismissed in relation to the period from the end of September 2016 to the end of the Assessment Period.' "Whether the Repatriation Commission should pay the applicant's costs or the parties should bear their own costs."]

Ratio Decidendi

Although the Tribunal had erred in relation to the applicant's satisfaction of the requirements in s 24(2A)(d) and s 24(2B)(a) of the Veterans' Entitlements Act 1986 (Cth) for Period 1, it did not necessarily follow that the applicant satisfied the applicable requirements for that period. The appropriate course was therefore to set aside the Tribunal's decision for Period 1 and remit the matter to the Tribunal for further hearing and determination. The applicant should receive costs because, despite the respondent's success in relation to Period 2, the ordinary rule that costs follow the event applied and the issues substantially overlapped.

Court Disposition

Appeal allowed in part; Tribunal decision set aside in part; matter remitted to the Administrative Appeals Tribunal for Period 1; appeal otherwise dismissed; respondent to pay applicant's costs.

Orders

  • ['The appeal be allowed in part.' "The decision of the Administrative Appeals Tribunal (the Tribunal), to the extent that it dealt with and made findings concerning the applicant's claims under the Veterans' Entitlements Act 1986 (Cth) as related to the period from 24 July 2015 up to and including 30 September 2016,...