(Emphasis in original.) Senior counsel for the applicant accepted the Tribunal did not apply this policy, because it fixed a level of funding well in excess of even the circumstances” mentioned in “exceptional the policy. Accordingly any question concerning whether the Tribunal impermissibly applied a policy to fetter or constrain the formation of its state of satisfaction does not arise. Whether or not the policy is lawful should await a decision where the policy materially affects or contributes to the Tribunal’s conclusion on the decision under review. The view I take is not dislodged by the Tribunal’s findings in [63] of its reasons, which in my opinion demonstrates the Tribunal chose not to be apply the caps suggested in the policy in the individual circumstances of Mr McGarrigle’s case, which is the approach requires. Drake Whether the Tribunal failed to respond to the applicant’s claims that his weekday transport was a reasonable and necessary support to be funded in full (Question of Law 5, Ground 5) This ground of appeal does not because, as the applicant’s written submissions recognise (at [42]), it is premised on the Court rejecting the propositions underlying questions of law 1 to 3 in the notice of appeal. Since I have determined question of law 1 should succeed, question of law 5 does not arise. Conclusion The applicant has succeeded on the first question of law, as amplified by ground 1 in the notice of appeal. This was the principal source of debate between the parties and occupied most of the time on the appeal. In those circumstances it is appropriate that the usual orders as to costs apply. Consistently with the Court’s (GPN-COSTS), a lump Costs Practice Note sum award should be made. The parties will be directed to file the necessary documents contemplated by the Practice Note. Although the notice of appeal sought, optimistically, to have the Court determine for itself the question of the approval of Mr McGarrigle’s participant plan with his transport cost as stipulated being a reasonable and necessary support, senior counsel for the applicant accepted during oral argument that this course would not be appropriate. The appropriate order is that the matter be remitted to the Tribunal for determination according to law. The Tribunal has the Court’s reasons and it is not appropriate for the Court to issue any to the “direction” Tribunal about the performance of its merits review function.
(Emphasis in original.) Senior counsel for the applicant accepted the Tribunal did not apply this policy, because it fixed a level of funding well in excess of even the “exceptional circumstances” mentioned in the policy. Accordingly any question concerning whether the Tribunal impermissibly applied a policy to fetter or constrain the formation of its state of satisfaction does not arise. Whether or not the policy is lawful should await a decision where the policy materially affects or contributes to the Tribunal’s conclusion on the decision under review. The view I take is not dislodged by the Tribunal’s findings in [63] of its reasons, which in my opinion demonstrates the Tribunal chose not to be apply the caps suggested in the policy in the individual circumstances of Mr McGarrigle’s case, which is the approach Drake requires. Whether the Tribunal failed to respond to the applicant’s claims that his weekday transport was a reasonable and necessary support to be funded in full (Question of Law 5, Ground 5) This ground of appeal does not because, as the applicant’s written submissions recognise (at [42]), it is premised on the Court rejecting the propositions underlying questions of law 1 to 3 in the notice of appeal. Since I have determined question of law 1 should succeed, question of law 5 does not arise. Conclusion The applicant has succeeded on the first question of law, as amplified by ground 1 in the notice of appeal. This was the principal source of debate between the parties and occupied most of the time on the appeal. In those circumstances it is appropriate that the usual orders as to costs apply. Consistently with the Court’s Costs Practice Note (GPN-COSTS), a lump sum award should be made. The parties will be directed to file the necessary documents contemplated by the Practice Note. Although the notice of appeal sought, optimistically, to have the Court determine for itself the question of the approval of Mr McGarrigle’s participant plan with his transport cost as stipulated being a reasonable and necessary support, senior counsel for the applicant accepted during oral argument that this course would not be appropriate. The appropriate order is that the matter be remitted to the Tribunal for determination according to law. The Tribunal has the Court’s reasons and it is not appropriate for the Court to issue any “direction” to the Tribunal about the performance of its merits review function.
2017FCA0308.docx