Kelly, Mona Olive v. Coats, John Brendan & Ors [1981] FCA 149

CATCHWORDS

Administrative law - judicial review of decision of

Repatriation Board - refusal of widow's claim for pension - whether Repatriation Board failed to apply correctly

principles of Repatriation Commission v. Law (1980)

31 ALR 140 - relevance of pending judgment by High Court

in Law's case - appropriate directions to Board.

Administrative Decisions (Judicial Review) Act 1977

ss. 5(1), 5(2), 7(1), 10(€2)(b) (ii), 16.

Repatriation Act 1920 ss. 24AA, 24AB, 26, 28, 47(1), 47(2), 101, 107VG, 107VH

MONA OT.TVE KELLY Applicant JOHN BRENDAN COATS,

WILLIAM KENT O'BRIEN and LESLIE PHENNA together comprising a REPATRIATION BOARD Respondents

W.A.G. No. 9 of L981 TOOHEY J.

AT DARWIN

THURSDAY 10 SEPTEMBER 1981

WESTERN AUSTRALIA DISTRICT REGISTRY W.A.G. No. 9 of 1981

ee

GENERAL DIVISION

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1 IN THE FEDERAL COURT OF AUSTRALIA |

|

4 BETWEEN: MONA OLIVE KELLY

, - Applicant AND

JOHN BRENDAN COATS,

WILLIAM KENT O'BRIEN and

LESLIE PHENNA together comprising a

REPATRIATION BOARD

- Respondents

CORAM : Toohey J.

10 September 1981

AT DARWIN

REASONS FOR DECISION

| This is an application under the Administrative

| Decisions (Judicial Review) Act 1977 to review the decision

of the respondents, a Repatriation Board, upon a claim by the

applicant for a pension under the Repatriation Act 1920.

The applicant's husband died on 17 May 1980 and the

applicant sought a pension under the provisions of s.101 of

the Repatriation Act on the ground that her husband was a

member of the Forces whose death arose out of or was attributable

to his war service.

SN

The procedural pattern under the Repatriation Act

is that a claim for a pension is made in accordance with an approved form, accompanied by evidence available to the claimant (s.24AA). When a claim is lodged, the Secretary of the Department causes an investigation to be made into the matter. After completing his investigation the Secretary submits the claim to a Repatriation Board for consideration and determination. That claim is accompanied by any evidence furnished by the claimant together with all relevant records and documents under the control of the Department and a report of the result of the investigation carried out (s.24AB). Section 26 contemplates that a Board may summon witnesses, take evidence on oath and require the production of documents. In practice, I was told, those powers are not exercised; rather a Board relies upon the material submitted to it.