Brennan v Repatriation Commission

[2004] FCA 1431

FEDERAL COURT OF AUSTRALIA

Brennan v Repatriation Commission [2004] FCA 1431

VETERANS ENTITLEMENTS ACT – Statement of Principles – Application of Deledio – Identification of relevant hypothesis – Whether hypothesis consistent with Statement of Principles – Whether error of law.

Veterans Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 200 ALR 332

GREGORY ARTHUR BRENNAN v REPATRIATION COMMISSION

No VID 1030 of 2003

SELWAY J
4 NOVEMBER 2004
ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1030 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GREGORY ARTHUR BRENNAN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	4 NOVEMBER 2004
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.        Appeal dismissed.

2.        The applicant to pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1030 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GREGORY ARTHUR BRENNAN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	SELWAY J
DATE:	4 NOVEMBER 2004
PLACE:	ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. This is an “appeal” from a decision of the Administrative Appeals Tribunal (“AAT”) comprising a non-Presidential member, delivered on 16 October 2003.  The issue before the AAT was whether the applicant was entitled to an increase in the pension payable under the Veterans Entitlements Act 1986 (Cth) (“the Act”).  The applicant claimed that he was suffering from anxiety and depression which were caused by his war service in addition to other injuries which had previously been accepted were caused by that service.  The AAT affirmed the previous decision of the Veterans Review Board to dismiss the applicant’s claim and to continue his pension at the then existing rate. 

2. The issue raised by this “appeal” is whether there was an error of law in the reasoning of the AAT: see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). For the reasons given below the appeal is dismissed.

3. Various alleged grounds of appeal have been raised.  Only two of them have any possible substance and are discussed in more detail below.  However given the breadth of the issues raised in the grounds of appeal and in the applicant’s submissions, it is sensible to discuss the broad approach taken by the AAT in this case. 

4. The applicant’s claim required consideration of at least s 119, s 120 and s 120(a) of the Act.  Those sections have received detailed consideration by the Court on many occasions.  I refer to my own analysis in the case of Repatriation Commission v Hancock [2003] FCA 711 (Hancock).  At par 9 of my reasons in Hancock I pointed out that the AAT must be satisfied on balance of probabilities in relation to…