FEDERAL COURT OF AUSTRALIA

 Repatriation Commission v Milenz [2007] FCA 50

REPATRIATION COMMISSION v YURGEN MILENZ

No VID 1488 of 2005

FINN J

19 JANUARY 2007

ADELAIDE

THE COURT CERTIFIES THAT:

1.                  It would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to Yurgen Milenz in respect of:

(a)        the costs incurred by him in relation to the appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth);  and

(b)        the costs incurred by the Repatriation Commission in respect to that appeal that he has been ordered to pay. 

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

REASONS FOR JUDGMENT

1                     In Repatriation Commission v Milenz [2006] FCA 1436 the Repatriation Commission successfully appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Tribunal granting the respondent, Yurgen Milenz, a further pension entitlement under the Veterans Entitlements Act 1986 (Cth).  Mr Milenz was ordered to pay the Repatriation Commission’s costs of the application.  He now has applied to this Court for a certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

2                     In support of his application he indicates that the Tribunal’s error occurred in the administration of beneficial legislation framed generally for the assistance of veterans and their dependents:  see Repatriation Commission v Codd [2005] FCA 888.  He goes on to note, as was indicated by Branson J in Repatriation Commission v Cornelius (2002) 69 ALD 250, that his status as a war veteran is a factor which may be taken into account in the exercise of the discretion to grant a certificate under s 6 at [10].  Finally he points out that my earlier decision has clarified the approach to be taken in applying Statements of Principles in raising a s 120(3) reasonable hypothesis under the Veterans Entitlements Act. 

3                     It is well accepted that there is no presumption in favour of the grant of a certificate to a respondent who applies under the Federal Proceedings (Costs) Act.  Some ground must be shown for the Court to exercise the discretion in the applicant’s favour.  This said, I am satisfied this is an appropriate case in which to grant a certificate.  Mr Milenz sought review of an adverse decision of the Repatriation Commission in the Administrative Appeals Tribunal and was successful in that.  It was quite appropriate for him to take this course.  The consequence of it was, though, that he found himself a respondent to a successful appeal to this Court on a question of law with the matter being remitted to the Tribunal. 

4                     Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act:  see Cornelius at [11].  I would emphasise that in granting a certificate I do take account of Mr Milenz’ status as a war veteran though I do not consider it to be of decisive significance.

5                     I certify that in my opinion it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Actto Yurgen Milenz in respect of:

(a)        the costs incurred by him in relation to the appeal under s 44 of the Administrative Appeals Tribunal Act;  and

(b)        the costs incurred by the Repatriation Commission in respect to that appeal that he has been ordered to pay. 

Associate:

Dated:         31 January 2007