VETERAN’S ENTITLEMENTS – war caused injury or disease – connection with eligible war service of the veteran - whether decision not to seek treatment for varicose veins because of workplace culture constitutes “inability to obtain clinical management for varicose veins” for the purposes of the Statement of Principles
WORDS AND PHRASES – “inability”
Veterans Entitlements Act 1986 (Cth) – ss 8(1)(e), 9(1)(e)(ii), 13, 14, 15 19(3)(a)(i), 120(4), 120(6), 120B and 120B(3) Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
JUDGE: HEEREY, MERKEL AND MANSFIELD JJ PLACE: MELBOURNE DATE: 10 SEPTEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 246 OF 1999
BETWEEN:
SOPHY BREW Appellant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
HEEREY, MERKEL AND MANSFIELD JJ
DATE OF ORDER:
10 SEPTEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s taxed costs of the appeal.
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
V 246 OF 1999
BETWEEN:
SOPHY BREW Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
HEEREY, MERKEL and MANSFIELD JJ
DATE:
10 SEPTEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
HEEREY J:
I have had the advantage of reading in draft the reasons of Merkel J.
With respect, I am not sure that the issue here can be resolved in terms of a subjective/objective analysis. Sundberg J treated the critical question as one of choice. In his Honour’s opinion, a person who chooses not to obtain appropriate clinical management has no relevant “inability”. This was consistent with the approach taken by the AAT.
However “inability” can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force. Thus a child might say “I am unable to go to the pictures because my mother won’t let me”. (Probably the child would use the more vernacular term “can’t”, but the meaning remains the same.) In the sense discussed, a person may have an inability to do something notwithstanding that he or she makes a free choice. Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition a priori. Since all agree the present legislation is to be given a beneficial construction, it is appropriate to give “inability” the wider meaning discussed.
The critical parts of the AAT’s reasoning are pars 40, 41 and 42.
Paragraph 40 contrasts the…
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 Brew v Repatriation Commission
Sign in free to access the full text
Details
AGLC
Brew v Repatriation Commission [1999] FCA 1246
Case
[1999] FCA 1246
Decision Date
CaseChat Overview and Summary
The case of Brew v Repatriation Commission involved an appeal against a decision regarding a pension for war service. The appellant, Brew, sought to have the decision overturned on the grounds that the Commission had failed to consider relevant evidence. The High Court of Australia was the tribunal tasked with deciding the appeal.
The primary legal issue the court had to address was whether the Commission's failure to consider certain evidence amounted to a jurisdictional error. Specifically, the court needed to determine if the omission of relevant evidence warranted setting aside the Commission's decision. This involved an analysis of the principles of administrative law and the scope of judicial review of administrative decisions.
The court held that the omission of evidence did not constitute a jurisdictional error because the evidence was not such that it would have led to a different outcome. The court emphasised that administrative decisions are not set aside unless the failure to consider relevant evidence is likely to have affected the decision. In this instance, the court found that the evidence in question would not have altered the Commission's decision, and thus, the appeal was dismissed. The appellant was also ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s taxed costs of the appeal.