Veterans' Review Board
Home | About the VRB | Contact us | Members and Staff | Publications | Factsheets | ADR trial | Links | Notices | Vacancies | Site map

Rana v Repatriation Commission

[2011] FCAFC 124

COURT Federal Court, Brisbane (via video link to Adelaide)
JUDGE Kenny, Stone and Logan JJ
DECISION The appeal was dismissed
ISSUES Whether there was an appeal  under s44 of the AAT act  before the court.

Facts

The appeal arose out of an appeal brought by Mr Rana under s44 of the AAT act against the Tribunal’s final decision, which was to affirm the decision to refuse him a pension.

That application was dismissed by the learned primary judge.

This appeal is against that order of dismissmal.

Grounds of appeal

The grounds of appeal were stated by Mr Rana to be:

  1. The learned primary judge was in error in concluding that the appeal from the Tribunal raised no question of law;
  2. The learned primary judge should have concluded that it was a requirement of the review being undertaken by the tribunal that issues arising under s69 and s70 of the VEA be heard together or, put another way, that it was not permissible for the Tribunal to determine a s69 issue as a preliminary in the review;
  3. The learned primary judge erred in applying Whiteman’s Case;
  4. The learned primary judge should have permitted the tender of further evidence to show that the Tribunal’s conclusion as to the reason for his discharge not being due to a psychiatric condition was based on false assumptions or a misapprehension of fact.

The Court’s Consideration

As the learned primary judge recognised, the notice of appeal by which Mr Rana sought to initiate an appeal under s44 of the AAT act against the Tribunal’s decision did not state a question at all, much less a question of law.

The right of appeal conferred by s44 of the AAT Act is a  right to appeal to this court “ on a question of law”. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In absence of a question of law there is no subject matter for the appeal and the Court has no jurisdiction to entertain the proceeding.

The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal. The ends result of his Honour’s scrutiny of these grounds were conclusions that Mr Rana’s appeal from the Tribunal raised no question of law.

The conclusions of the learned primary judge that the appeal was an endeavour to reagitate questions of fact and that no question of law was raised were correct. The Tribunal chose to act on a body of medical and lay evidence touching on whether invalidity or physical or mental incapacity lay behind the nominated reason for Mr Rana’s discharge. As his Honour recognised the findings of fact made by the Tribunal were reasonably open.

As we explain in our reasons for judgment in respect of the judicial review appeal, there is no authority which obliged the tribunal to only conduct its review by considering at the one time issues arising under s69 of the VEA with issues arising under s70 of that Act.

The Tribunal was master of its own procedure.

Decision

Mr Rana’s  appeal was dismissed with costs.

All Practice Notes