Brown v Repatriation Commission

[2003] FCA 1130

FEDERAL COURT OF AUSTRALIA

Brown v Repatriation Commission [2003] FCA 1130

VETERANS AFFAIRS - entitlements - Statement of Principles - inability to obtain appropriate clinical management of sarcoidosis - meaning of ‘inability’

Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Brew v Repatriation Commission (1999) 56 ALD 403;  (1999) 94 FCR 80

JUDITH MARY BROWN v REPATRIATION COMMISSION
Q175 OF 2002

COOPER J
BRISBANE
17 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q175 OF 2002

On appeal from the Veterans’ Affairs Division of the Administrative Appeals
Tribunal constituted by Senior Member KL Beddow and Dr P Kennedy

BETWEEN:	JUDITH MARY BROWN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant is to pay the costs of the respondent, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q175 OF 2002

On appeal from the Veterans’ Affairs Division of the Administrative Appeals
Tribunal constituted by Senior Member KL Beddow and Dr P Kennedy

BETWEEN:	JUDITH MARY BROWN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	COOPER J
DATE:	17 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. On 22 December 1999, the applicant lodged a claim under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) for medical treatment and a pension for incapacity arising from a number of medical conditions which included sarcoidosis. The claims were refused as not being war-caused. The decision to refuse the claim was affirmed by the Veteran’s Review Board and later by the Administrative Appeals Tribunal (‘the AAT’). The applicant now seeks a review of the AAT decision, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is limited to judicial review to correct legal error. It does not involve merits review of the factual findings made by the AAT.

   THE PROCEEDINGS IN THE AAT

2. On 18 October 2002, the AAT affirmed the decision to refuse to grant the claim and gave short oral reasons for this decision.  Those reasons were later incorporated in written reasons.  The oral reasons of the AAT, incorporated in par 10 of the written reasons, provided:

   ‘The Tribunal is in a position to give its decision.  The Tribunal’s decision will be to affirm the decision under review.  The Tribunal’s brief reasons for that decision are as follows:  the applicant had eligible war service from 22 February 1943 to 23 June 1945.  She was a WRAN involved in telegraphic listening duties in Australia, principally at HMAS Harman located in the Australian Capital Territory near Queanbeyan.  The applicant worked extensive shift work and was generally confined to the naval facility.  She developed a cough with tiredness which was persistent and eventually caused her petty officer to suggest she seek medical attention.

   The applicant chose not to adopt the petty officer’s suggestion…