Ryde v Repatriation Commission [2004] FCA 1281

FEDERAL COURT OF AUSTRALIA

Ryde v Repatriation Commission [2004] FCA 1281

DEFENCE and WAR – veterans' entitlements – successive claims for war widow's pension – whether the Repatriation Commission, on accepting a claim, can backdate the payments to the date a previous unsuccessful claim was made – Veterans' Entitlements Act 1986 (Cth), s 20

Administrative Appeals Tribunal Act 1975 (Cth) s 44 Veterans' Entitlements Act 1986 (Cth) ss 11, 13, 13A, 14, 17, 18, 19, 20, 31, 120, 120B, 135, 157, 175, 177, 196B Acts Interpretation Act 1901 (Cth) s 15AB Repatriation Commission v Gorton (2001) 110 FCR 321 cited Repatriation Commission v Keeley (2000) 98 FCR 108 cited Saraswati v The Queen (1991) 172 CLR 1 referred to Morrow v Repatriation Commission (1997) 72 FCR 400 cited Ward v Repatriation Commission [2004] FCA 796 cited

Federal Court Rules O 80 ELNA PEREZ RYDE v REPATRIATION COMMISSION NSD 482 of 2004 SACKVILLE J SYDNEY 6 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 482 of 2004

BETWEEN: ELNA PEREZ RYDE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 6 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 482 of 2004

BETWEEN: ELNA PEREZ RYDE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: SACKVILLE J

DATE: 6 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS 1 The issue in this 'appeal' on a question of law is whether the Repatriation Commission, when it grants the last of a series of claims for a war widow's pension, is required to specify a date for the commencement of the pension which is no earlier than three months before the date on which the last claim was made; or whether the Commission can grant the pension with effect from a date three months before the claimant made her original (unsuccessful) claim for a pension. The respondent ('the Commission') urges the Court to adopt the first interpretation of the relevant provision, s 20 of the Veterans' Entitlements Act 1986 (Cth) ('VE Act'). The applicant argues for the second interpretation. If the applicant is right, she will be able to apply to the Commission to backdate her pension, which was in fact granted so as to take effect on 7 February 2001, to the date of her husband's death, namely 7 September 1991. 2 The applicant has appealed on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ('AAT') made on 16 March 2004. The AAT affirmed a decision of the Veterans' Review Board granting the applicant a war widow's pension and determining that the pension would be paid as and from 7 February 2001, a date three months before the lodging of the applicant's most recent claim for the pension. The AAT decided that s 20 of the VE Act does not permit a pension to be backdated to a date earlier than three months before the date of lodgement of the successful claim for the pension. In particular, it decided that s 20 of the VE Act does not permit the Commission, or the AAT on review, to backdate a pension to a date three months before the lodgement of an earlier unsuccessful claim. The question of law is whether the AAT correctly construed s 20 of the VE Act.