Bushell, A.W. v Repatriation Commission

Re: ALLEN WILLIAM BUSHELL
And: REPATRIATION COMMISSION
No. G223 of 1989
FED No. 415
Veterans Entitlements

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Veterans Entitlements - Appeal from decision of Administrative Appeals Tribunal rejecting veteran's claim - Question before Tribunal whether applicant's essential hypertension caused by war service stress - Conflicting medical evidence as to relationship between stress and hypertension - Whether Tribunal misdirected itself as to appropriate question - Whether primary facts found by Tribunal supported conclusion that there was no reasonable hypothesis of a link between the applicant's condition and his war service stress - Failure of Tribunal to deal with applicant's alternative case that hypertension caused by alcohol intake stemming from war service.

Veterans Entitlements Act 1986, s.120

HEARING

SYDNEY

#DATE 13:8:1990 Counsel for the Applicant: Dr G.D. Woods, QC and

P. Dwyer

Solicitors for the Applicant: M. Richardson

Counsel for the Respondent: A. Robertson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal of 7 April 1989 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law.

The respondent pay to the applicant his costs of this proceeding.

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

JUDGE1

This is the second occasion on which, in his quest for the grant to him of a war service disability pension, Allen William Bushell has appealed to this Court against a decision of the Administrative Appeals Tribunal. Upon the earlier occasion, on 8 February 1988, a Full Court allowed Mr Bushell's appeal and remitted the matter to be heard and decided again, with or without further evidence.

1. For the purpose of the new hearing, the Tribunal was reconstituted, being comprised by Deputy President C J Bannon, QC. The primary case which was advanced to Mr Bannon was that the applicant suffered from essential hypertension and that there existed a reasonable hypothesis that this condition was caused by his war service. The respondent conceded that the applicant suffered from essential hypertension but it contested the reasonableness of the hypothesis asserted by the applicant.

2. For the purposes of this appeal, it is not necessary to recite in any detail the facts accepted by the Tribunal. It is sufficient to say that the applicant served in the Royal Australian Air Force from 30 June 1941 until January 1946. During that period he spent 12 or 13 months in combat areas in New Guinea and a few months, towards or just after the end of the war, at Morotai in the Netherlands East Indies. The applicant suffered stress problems during his service and, in October 1945, he was declared permanently unfit for service on the grounds of "temperamental instability". Whilst he was at Morotai, the applicant suffered emotional problems about which he sought advice from Dr McGeorge, a psychiatrist. He said that Dr McGeorge advised…