Brand v Repatriation Commission - [2004] FMCA 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRAND v REPATRIATION COMMISSION

[2004] FMCA 270

ADMINISTRATIVE LAW – Veterans affairs – lumbar spondylosis and osteoarthrosis of the knees – whether war-caused – wrong Statement of Principles applied for lumbar spondylosis – issue whether “acute symptoms and signs” present – wording the same in both Statement of Principles – result the same from applying correct Statement of Principles – no basis for remission despite error of law – whether proper approach used in assessing hypothesis.

Veterans' Entitlements Act 1986, ss.9, 9(1), 13(1), 119, 120(1), 120A(3), 120(3)

Repatriation Commission v Delidio (1998) 49 ALD 193
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Repatriation Commission v Gorton [2001] FCA 1194
Grundman v Repatriation Commission [2001] FCA 892
Bushell v Repatriation Commission (1992) 175 CLR 408

Applicant:

THOMAS ARTHUR BRAND

Respondent:

REPATRIATION COMMISSION

File No:

MZ 309 of 2001

Delivered on:

14 May 2004

Delivered at:

Melbourne

Hearing date:

10 October 2001

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr De Marchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Mr Hanks

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 309 of 2001

THOMAS ARTHUR BRAND

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed two decisions of the Repatriation Commission that lumbar spondylosis and osteoarthrosis of the knees, conditions suffered by the applicant, were not war-caused diseases.
The applicant served in the Australian Army from 30 June 1965 until 29 June 1967. He had operational service in Vietnam during the period between 22 April 1966 to 12 May 1967. He claimed to have war-caused lumbar spondylosis and osteoarthrosis of the knees. The respondent, by two decisions, decided that they were not war-caused diseases under s.9 of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal affirmed the decisions.
The applicant said that he was a radio operator and while serving in Vietnam often had to jump out of helicopters hovering 5 to 6 feet above the ground. On the day he claimed to have suffered the injury, he said that they had to be dropped off on the side of a hill because none of the helicopters could land. They had a minimum time for the soldiers to jump out. He could not say the exact date. He said that the helicopter in front of the one he was in lost the main rotor and went into the ground because it was hovering too low and the hill was so steep. When he jumped out he was carrying a radio. He said he landed awkwardly and the rack that the radio was mounted to dug into his back and he jarred his knees.

The law

Section 13(1) of the Act provides for payment of a pension to a veteran when a veteran has…

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.

Continue reading Brand v Repatriation Commission

Details

AGLC: Brand v Repatriation Commission [2004] FMCA 270
Case: [2004] FMCA 270
Decision Date: 14 May 2004

CaseChat Overview and Summary

The case of Brand v Repatriation Commission involved the applicant, Brand, who sought to appeal against a decision of the Administrative Appeals Tribunal (AAT). The dispute centred around the AAT's determination concerning Brand's eligibility for certain pension benefits under the Veterans' Entitlements Act 1986 (Cth). The matter was heard and determined by the Federal Court of Australia.

The central legal issue the court was required to decide was whether the AAT had correctly exercised its discretion in dismissing Brand's appeal against the Commission's refusal to award him certain pension benefits. Specifically, the court needed to assess whether the AAT had erred in its interpretation of the statutory provisions and whether there had been any procedural unfairness or jurisdictional error in the AAT's decision-making process.

In its reasoning, the court examined the statutory framework and the AAT's decision in detail. It found that the AAT had appropriately interpreted the statutory provisions and had followed a lawful and procedurally fair process. The court held that the AAT's decision was not open to being characterised as a jurisdictional error or procedurally unfair. Consequently, the court dismissed the application, affirming the AAT's decision as correct.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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