Federal Court of Australia Clearihan v Repatriation Commission (No 2) [2020] FCA 1276 File number: VID 762 of 2019 Judgment of: MOSHINSKY J Date of judgment: 4 September 2020 Catchwords: PRACTICE AND PROCEDURE – form of orders to be made following appeal on a question of law from the Administrative Appeals Tribunal – where the Court found the Tribunal had erred in its findings relation to a particular period of time – whether the Court should determine the applicant's entitlement to a special rate of pension in relation to that period, or remit the matter to the Tribunal Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Veterans' Entitlements Act 1986 (Cth), ss 24, 25 Cases cited: Civil Aviation Safety Authority v Caper Pty Ltd (No 2) (2012) 132 ALD 475 Grundman v Repatriation Commission (2001) 66 ALD 125 Repatriation Commission v Bawden (2012) 206 FCR 296 Repatriation Commission v Butcher (2007) 94 ALD 364 Repatriation Commission v Hill (2002) 69 ALD 581 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of last submissions: 28 August 2020 Date of hearing: Determined on the papers Counsel for the Applicant: Ms F Ryan Solicitor for the Applicant: Williams Winter Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: Australian Government Solicitor ORDERS VID 762 of 2019 BETWEEN: KEITH CLEARIHAN Applicant AND: REPATRIATION COMMISSION Respondent order made by: MOSHINSKY J DATE OF ORDER: 4 SEPTEMBER 2020 THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. 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, be set aside. 3. The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016. 4. The appeal otherwise be dismissed. 5. The respondent pay the applicant's costs of the proceeding, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MOSHINSKY J 1 On 7 August 2020, I published reasons for judgment in relation to the present proceeding, which is an appeal on a question of law from a decision of the Administrative Appeals Tribunal: Clearihan v Repatriation Commission [2020] FCA 1130. These reasons, which deal with the form of orders to be made and costs, should be read together with the 7 August 2020 reasons. I will adopt in these reasons the abbreviations used in the reasons dated 7 August 2020. 2 In the 7 August 2020 reasons, I concluded that: the applicant's challenge to the Tribunal's findings in relation to Period 1 (that is, the period from 24 July 2015 until the end of September 2016) was made out; and the applicant's challenge to the Tribunal's findings in relation to Period 2 (that is, the period from the end of September 2016 to the end of the Assessment Period) was not made out. 3 Pursuant to orders made on 7 August 2020, the parties have each filed brief submissions on the form of orders and costs. The respective positions of the parties are as follows: (a) The applicant submits that orders should be made to the effect that: (i) The appeal be allowed. (ii) The decision of the Tribunal, insofar as it relates to Period 1, be set aside. (iii) The applicant's claim for payment of his Department of Veterans' Affairs disability pension at the special rate be allowed pursuant to s 25 of the Veterans' Entitlements Act 1986 (Cth) from 24 July 2015 to 28 September 2016. (iv) The Repatriation Commission pay the applicant's costs of the appeal. (b) The Repatriation Commission submits orders should be made to the effect that: (i) The decision of the Tribunal, to the extent that it dealt with and made findings concerning the applicant's claims under the Veterans' Entitlements Act as related to the period from 24 July 2015 up to and including 30 September 2016, be set aside. (ii) The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016. (iii) The appeal otherwise be dismissed. (iv) The parties bear their own costs. 4 I will deal first with whether the Court should make a determination in relation to Period 1 (as sought by the applicant) or remit the matter to the Tribunal for further hearing and determination in relation to Period 1 (as sought by the Repatriation Commission). There does not appear to be any dispute between the parties as to the applicable principles. The applicant cites the decision of Murphy J in Civil Aviation Safety Authority v Caper Pty Ltd (No 2) (2012) 132 ALD 475 at [7] for the proposition that "[i]t is established that where only one result consistent with the Court's decision is possible, the Court may make a decision in substitution for that under review, thereby relieving both the Tribunal and the parties of the burden of a further hearing". The Repatriation Commission notes that the Court is empowered under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to make findings of fact in limited circumstances, and cites Repatriation Commission v Butcher (2007) 94 ALD 364, a judgment of the Full Court of this Court (Tamberlin, Nicholson and Tracey JJ), at [19] for the proposition that "[i]n cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome". 5 In my view, in the circumstances of this case it is appropriate to remit the matter to the Tribunal for further hearing and determination in relation to Period 1. In the 7 August 2020 reasons, I found that the Tribunal had made errors in finding that the applicant did not satisfy the "alone test" requirement of s 24(2A)(d) of the Veterans' Entitlements Act and in finding that s 24(2B)(a) applied (in both cases, in relation to Period 1). However, it does not necessarily follow that the applicant satisfied the applicable requirements in relation to Period 1. Accordingly, it is appropriate to remit the matter to the Tribunal for further hearing in relation to Period 1. 6 I note for completeness that I am satisfied that the Court has the power, pursuant to s 44(4) and (5) of the AAT Act, to partially remit a matter to the Tribunal: see, eg, Repatriation Commission v Hill (2002) 69 ALD 581; Repatriation Commission v Bawden (2012) 206 FCR 296; and Grundman v Repatriation Commission (2001) 66 ALD 125. 7 In relation to costs, in my view it is appropriate for the Repatriation Commission to pay the applicant's costs of the proceeding, as an application of the ordinary rule that costs follow the event. Although it is true that the Repatriation Commission succeeded in relation to Period 2, this is not a case where it is appropriate to determine costs on an issue-by-issue basis. The hearing of the proceeding occupied only half a day, therefore the inclusion of Period 2 did not increase the number of hearing days. There was substantial overlap between the matters that needed to be covered in relation to the two periods of time. 8 For the above reasons, I will make orders to the effect that: (a) The appeal be allowed in part. (b) The decision of the Tribunal, to the extent that it dealt with and made findings concerning the applicant's claims under the Veterans' Entitlements Act as related to the period from 24 July 2015 up to and including 30 September 2016, be set aside. (c) The matter be remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016. (d) The appeal otherwise be dismissed. (e) The Repatriation Commission pay the applicant's costs of the proceeding, as agreed or assessed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate: Dated: 4 September 2020