Black, N.S.I v Repatriation Commission - [1993] FCA 383

IClc13

JUDGMENT No. ... 32. ....., I ........ ....

REPATRIATION - "reasonable hypothesis" within S. 120 of the

Veterans' Entitlements Act - analysis of the way the Administrative Appeals Tribunal could properly approach the question whether an hypothesis was reasonable or whether facts raising it could be discarded beyond a reasonable doubt - circumstances where the findings and deficient reasons of the Tribunal led to the inference that it had applied the wrong test or was not in reality satisfied of the requisite matters.

ADMINISTRATIVE LAW - appeal in Administrative Appeals Tribunal
matter - discussion of requirement of Rules that grounds of

appeal be stated.

Veterans' Entitlenients Act 1986 (Cth) , S. 120

Federal Court Rules, Order 53, rr. 2 and 3

Australian Telecommunications Corporation v Lambroglou (1990)
12 AAR 515, discussed
Repatriation Commission v Whetton (1991) 31 FCR 531, applied

Bushel1 v Repatriation Commission (1992) 175 CLR 408, applied

NORMA SHIRLEY IONE BLACK v REPATRIATION COMMISSION

NG 2 of 1992

21 April 1993

Burchett J.
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )

1

1) NG 2 Of 1992
)

GENERAL DIVISION 1

BETWEEN: NORMA SHIRLEY IONE BLACK
Applicant

AND : REPATRIATION COMMISSION
Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 21 April 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter the notice of appeal, which is an amended notice of appeal, states the questions of law raised by it in a number of ways, but contains as a ground of appeal only the following: the questions of law, if answered favourably to the applicant, will require either the granting of a pension to the applicant by this Court or a reconsideration of the

evidence and/or the taking of further evidence by the Tribunal. I shocld explain that the notice of appeal was

filed in respect of proceedings in the Administrative Appeals Tribunal, and purports to have been filed pursuant to Order 53 rr. 2 and 3 of the Rules of the Court.

Rule 2(1) provides that an appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal, which shall be in or substantially in the form numbered 55A in the First Schedule. Form 55A provides specifically for the specification of the grounds relied upon in support of the orders sought. Rule 3(2) provides that the notice of appeal shall state a number of matters; included among these, by para. (b), is "the question or questions of law to be raised on the appeal" and, by para. (d), "briefly but specifically the grounds relied upon in support of the order sought".

It seems to me to be plain that the present notice of appeal does not clearly state the grounds of appeal. However, those grounds can be gathered in a general way from the statement of the questions of law raised on the appeal. I was told, by counsel for the applicant, that the form of notice of appeal adopted in the amended notice of appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 383
Decision Date: 21 Apr 1993

CaseChat Overview and Summary

The matter before the Federal Court was an appeal against a decision of the Administrative Appeals Tribunal (AAT). The applicant, Norma Shirley Ione Black, sought a pension as the widow of Douglas Black, a deceased veteran who had served in World War II, the British Occupation Force in Japan, and the Korean War. The central issue was whether Mrs Black's husband's death from metastatic carcinoma of the rectum was war-caused. This hinged on whether there was a reasonable hypothesis linking his death to his war service, specifically his alcohol consumption during and after his service.

The legal issues before the court were twofold: firstly, whether the notice of appeal complied with the Federal Court Rules; and secondly, whether the AAT correctly applied the statutory test under s 120 of the Veterans' Entitlements Act 1986 (Cth). The court found that while the notice of appeal did not strictly comply with the rules, the appeal was heard due to the unique circumstances and conduct of the matter. The primary focus was on whether the AAT properly assessed whether a reasonable hypothesis existed linking Mr Black's war service to his death.

The court held that the AAT's reasoning was flawed. The Tribunal misstated the legal test, focusing on whether Mr Black's post-service alcohol consumption was attributable to his war service rather than whether a reasonable hypothesis existed. The court found that the Tribunal failed to consider the reasonable hypothesis linking Mr Black's drinking habit, which began during his service, to his war-related stress and the subsequent development of cancer. The Tribunal also made unsupported findings and misapplied the evidence, particularly in rejecting the reasonable hypothesis without proper justification.

Consequently, the court set aside the AAT's decision and remitted the matter to the AAT, differently constituted, to be decided according to law. The court ordered the respondent to pay the applicant's costs of the appeal.

Orders