Recent Cases

Secretary, Department of Social Services v Vader (by his litigation guardian) [2024] FCAFC 37 (18 March 2024) (Perry, Charlesworth and Jackson JJ)


SOCIAL SECURITY – appeal from decision of Federal Court of Australia, dismissing an appeal on a question of law from a decision of the Administrative Appeals Tribunal concerning eligibility for the disability support pension – where respondent does not meet ordinary residency requirements for the pension– where respondent claims he meets residency requirements by operation of a bilateral agreement between Australia and the United States enacted into domestic law by the Social Security (International Agreements) Act 1999 (Cth) – whether respondent has accumulated a “United States period of coverage”

STATUTORY INTERPRETATION – where interpretation of statute depends on United States law – where no expert evidence led as to the content of US Social Security laws – where findings as to content of United States law would be knowingly incomplete and potentially erroneous absent expert evidence – where correct construction of statute turns upon findings of foreign law based on how those laws would be construed in that country – approach to construing text of foreign law by relying on the presumption that domestic principles of statutory interpretation are the same as those under United States law rejected on the basis that it would not give effect to Parliament’s intention in enacting the bilateral agreement

PRACTICE AND PROCEDURE – where in the absence of expert evidence the appellant has not established any error in the conclusion of the primary judge – where appellant applied for leave to adduce fresh evidence on the appeal – where fresh evidence would cause delay and further expense to Court and parties – where appellant could have adduced fresh evidence at trial in circumstances where the content of foreign law was not merely a question of fact but also of law – application to adduce further evidence on appeal pursuant to s 27 of the Federal of Australia Act 1976 (Cth) refused