Vann, M.J. v Repatriation Commission [1987] FCA 67

. nw 67

NOT FOR DISTRIBUTION

INUWTHE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 40 of 1987 ) )

GENERAL DIVISION

BETWEEN : MAURICE JOSEPH VANN Applicant

AND: REPATRIATION COMMISSION Respondent

MINUTE OF ORDER

JUDGE _ MAKING ORDER : Gummow J. DATE OF ORDER : 4 February 1987 WHERE MADE : Sydney

THE COURT ORDERS THAT:

1. The application be allowed.

2. The applicant pay the costs of the application.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G40 of 1987

wevewrwnr

GENERAL DIVISION

BETWEEN : MAURICE JOSEPH VANN Applicant AND: REPATRIATION COMMISSION Respondent GUMMOW J. 4 February 1987

REASONS FOR JUDGMENT

(ex tempore) HIS HONOUR: This 1S an application for an extension of the

time specified in subsection 44(2A) of the Administrative Appeals Tribunal Act 1975 for the filing of a notice of appeal. The evidence before me on the application today discloses that the applicant was born in the United Kingdom on 20 April 1920, and that during the Second World War he served with the British Expeditionary Force in France from 2 March 1940 to 24 May 1940. He was evacuated from Dunkirk. The applicant is a British Veteran, a member of a class eligible to receive the Australian

service pension.

The applicant made a formal application within the

2.

meaning of the legislation on 29 July 1985 and pursuant to a determination on 29 October 1985 the pension that was granted to him was "backdated" to 29 July 1985. This "backdating" was something that was permitted to be done under the provisions of section 90A of the Repatriation Act 1920 which was inserted by the Repatriation Legislation Amendment Act 1984. That Act came

into force on 1 January 1985.

The applicant then sought a review of that decision of 29 October 1985, claiming that the effective date be earlier than 29 July 1985 and, indeed earlier than 1 January 1985. The Administrative Appeals Tribunal by decision dated 15 August 1986 affirmed the decision under review. In the appeal which 1s presently proposed the question of law that would be raised is described as whether section 90A, which I have mentioned, is procedural or substantive in the sense that it permits a "backdating" to a date earlier than the coming into force of