Lamers v Repatriation Commission [2001] FCA 24

FEDERAL COURT OF AUSTRALIA

Lamers v Repatriation Commission [2001] FCA 24 VETERANS' AFFAIRS – appeal from decision of Administrative Appeals Tribunal – whether veteran entitled to pension at special rate – whether failure to act according to substantial justice and substantial merits of case – whether error of law – nature of remunerative work undertaken by veteran.

Veterans' Entitlements Act 1986 (Cth): s 24, s 119 Flentjar v Repatriation Commission (1997) 26 AAR 93 referred to Banovich v Repatriation Commission (1986) 69 ALR 395 referred to Repatriation Commission v Sheehy (1995) 133 ALR 654 referred to Collins v Minister for Immigration (1981) 36 ALR 598 referred to PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR v REPATRIATION COMMISSION V 660 of 1999 GOLDBERG J 24 JANUARY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 660 of 1999

BETWEEN: PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 24 JANUARY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 660 of 1999

BETWEEN: PETER JOHN LAMERS as the legal personal representative of the late JOHN FLENTJAR

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: GOLDBERG J

DATE: 24 JANUARY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 On 29 October 1999 the Administrative Appeals Tribunal ("the Tribunal") determined that the late John Flentjar deceased ("the veteran") was not entitled to be paid a pension at the special rate pursuant to s 24 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). The veteran died on 2 December 1998 and his application for a pension at the special rate has been continued by the applicant, the executor of his will, in accordance with s 126(1) of the Act. The applicant has appealed against the Tribunal's decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 2 This is the second time the veteran's application for payment of a pension at the special rate has been before the Court. An earlier decision of the Tribunal had allowed the veteran's application but that decision was set aside by Spender J and remitted to the Tribunal for further hearing: Repatriation Commission v Flentjar (1997) 47 ALD 67. An appeal by the veteran against that decision was dismissed by a Full Court: Flentjar v Repatriation Commission (1997) 26 AAR 93. An application to the High Court for special leave to appeal was refused on 19 May 1998.