Brinkworth and Repatriation Commission - [2008] AATA 174

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/1480

Veterans' Appeals Division )
Re: Donald Brinkworth
Applicant

And: Repatriation Commission
Respondent

CORRIGENDUM TO DECISION NO. [2008] AATA 174
Tribunal:  Deputy President D G Jarvis
Date of Decision:              29 February 2008
Date of Corrigendum:      25 June 2008
Place:   Adelaide

Corrigendum
Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the TRIBUNAL DIRECTS the Registrar to alter the text of the decision so that the reference to [23] following the citation of Fenner v Repatriation Commission appearing in paragraph 43 of the Tribunal’s reasons for decision is amended to [27].
D G Jarvis
(Signed)
Deputy President

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1480

VETERANS' APPEALS DIVISION )

Re DONALD CHARLES BRINKWORTH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis and Mr S Ellis AM, Member
Date29 February 2008
PlaceAdelaide

Decision The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant was a “nuclear test participant” and a person eligible to be provided with treatment under the Australian participants in British Nuclear Tests (Treatment) Act 2006 (Cth).

D G Jarvis
(Signed)
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS - Australian participants in British nuclear tests - Maralinga area - applicant served with RAAF at Edinburgh Base - meaning of "nuclear test participant” - difficulties in obtaining evidence due to passage of time and secrecy of tests - shifting responsibility of parties to adduce evidence in hearings in AAT - inferences from circumstantial evidence - held that applicant involved in maintenance or cleaning of aircraft contaminated as a result of use in nuclear test area - decision under review set aside.
Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth), ss 5(2), 31
Bushell v Repatriation Commission (1992) 175 CLR 408
Fenner v Repatriation Commission (2005) 218 ALR 122
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Belhaven and Stenton Peerage (1875) 1 App Cas 278
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Seltsam Pty Ltd v McGuiness; James Hardie Coy Pty Ltd v McGuiness (2000) 49 NSW LR 262
REASONS FOR DECISION

29 February 2008   Deputy President D G Jarvis and

  Mr S Ellis AM, Member
1.      Between 11 August 1958 and 16 March 1961 the applicant, Donald Charles Brinkworth, an Australian resident, served at the RAAF base at Edinburgh as a member of the 2 Air Trials Unit. He was an engine fitter with the RAAF, and his responsibilities included maintaining the engines of a Valiant bomber and Canberra bombers that belonged to the Royal Air Force.
2.      These aircraft had flown to Maralinga in the south west of South Australia, being one of the areas where Britain had carried out atomic testing in…

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 Brinkworth and Repatriation Commission

Details

AGLC: Brinkworth and Repatriation Commission [2008] AATA 174
Case: [2008] AATA 174
Decision Date: 29 February 2008

CaseChat Overview and Summary

The applicant, Brinkworth, sought a review of a decision by the Administrative Appeals Tribunal (AAT) that he was not eligible for treatment under the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) because he had not been a "nuclear test participant". Brinkworth had served with the RAAF at Edinburgh Base during the British nuclear tests in the Maralinga area. The central issue before the court was the interpretation of the term "nuclear test participant" under the Act and the appropriate allocation of the burden of proof in the context of the applicant's involvement in the nuclear tests. The court had to consider whether Brinkworth's involvement in maintaining or cleaning aircraft, which had been used in the nuclear test area, qualified him as a "nuclear test participant".

The court examined the legislative framework and the relevant case law, including Bushell v Repatriation Commission, Fenner v Repatriation Commission, and Minister for Immigration and Multicultural Affairs v Eshetu. It noted the difficulties in obtaining evidence due to the passage of time and the secrecy surrounding the nuclear tests. The court observed that the responsibility for providing evidence had shifted between the applicant and the AAT in previous hearings. The court considered the inferences that could be drawn from the circumstantial evidence available and concluded that Brinkworth had indeed been involved in activities that exposed him to the risks associated with the nuclear tests. The court held that the AAT had erred in its decision and set aside the decision under review.

In light of the above, the tribunal decided that Brinkworth was a "nuclear test participant" and a person eligible to be provided with treatment under the Act. The court's decision was based on the evidence that Brinkworth was involved in maintaining or cleaning aircraft that had been used in the nuclear test area, thereby meeting the criteria for being a "nuclear test participant". The tribunal set aside the decision under review and, in its place, decided that Brinkworth was eligible for treatment under the Act. The final order was that the tribunal decided that the applicant was a “nuclear test participant” and a person eligible to be provided with treatment under the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth).

Orders

Orders of the court

The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant was a “nuclear test participant” and a person eligible to be provided with treatment under the Australian participants in British Nuclear Tests (Treatment) Act 2006 (Cth).

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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VETERANS' APPEALS DIVISION		)
Re		DONALD CHARLES BRINKWORTH

29 February 2008	Deputy President D G Jarvis and
Mr S Ellis AM, Member