Byrnes, C.J. v Repatriation Commission - [1991] FCA 148

Re: CLIFFORD JOHN BYRNES
And: THE REPATRIATION COMMISSION
No. N G398 of 1988
FED No. 148
Administrative Law
23 ALD 35

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - causal nexus between operational service and medical conditions of war veteran - reasonable hypothesis - opposing views from two experts - decision on evidence is for Administrative Appeals Tribunal on all the material before it

Administrative Appeals Tribunal Act 1975 section 44

Veterans' Entitlements Act 1986 sections 120, 9(1)(a) and (b)

Repatriation Commission v O'Brien (1985) 155 CLR 422

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Webb (1987) 7 AAR 233 and on appeal (1989( 19 FCR 139

Hamling v Repatriation Commission (1989) 10 AAR 131

Gilbert v Repatriation Commission (1989) 86 ALR 713

Ahrenfeld v Repatriation Commission Einfeld J unreported 29 August 1990

Whetton v Repatriation Commission Einfeld J unreported 5 April 1991

HEARING

SYDNEY

#DATE 5:4:1991

Counsel and solicitors Mr I. Sanderson instructed by Vandenberg Reid Pappas
for the applicant and MacDonald

Counsel and solicitor Ms R. Henderson instructed by the Australian
for the respondent Government Solicitor

ORDER

Appeal dismissed.

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

JUDGE1

If Justice Brennan had known the volume of litigation and judicial learning which he would be siring when he wrote his powerful and eloquent dissent in Repatriation Commission v O'Brien (1985) 155 CLR 422 that gave birth to section 120 of the Veterans' Entitlements Act 1986 (the Act), I suspect his Honour might have thought again. But of course he did not divine or write the legislation or the judgments which have followed it.

This is yet another case involving the application of this section and its apparently tortuous language and unusual legal precepts. It comes to this Court by way of appeal on questions of law pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 from a determination of the Administrative Appeals Tribunal (the Tribunal) given on 15 February 1988. The original decision was given by the respondent as long ago as 2 November 1981 and was affirmed by the Veterans' Review Board on 10 April 1986. It is a matter of deep concern that in the time from the original decision to this one, the applicant veteran has aged from 57 years to 68 years. The Act has been changed several times in that period. It really is appalling testimony to the way some claims are apparently treated. Something must and must be able to be done to expedite the legal processes applicable to this type of claim. I know of no other area of the law where an applicant for a statutory benefit could be required to wait 11 years for the matter to be determined. And there is still a Full Court and the High Court to go.
The circumstances of this case are that the applicant…

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.

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Details

Case: [1991] FCA 148
Decision Date: 05 APRIL 1991

CaseChat Overview and Summary

The case involved the Commonwealth of Australia, represented by the Repatriation Commission, and the appellant, Mr Byrnes. The dispute pertained to a claim for pension benefits by Mr Byrnes, a former serviceman, who alleged that his medical conditions were caused by his operational service during the war. The matter was heard in the High Court of Australia.

The central legal issues revolved around the necessity of a causal nexus between the claimed medical conditions and the operational service, as well as the appropriate weight to be given to expert evidence. The court had to decide whether the Tribunal had properly exercised its discretion in considering the evidence and whether it had erred in law.

In examining the evidence, the court held that the decision on the causal nexus between the medical conditions and the service was a matter for the Administrative Appeals Tribunal, who must consider all the material before it. The court noted that while there were differing expert opinions, the Tribunal was entitled to assess the credibility and weight of such evidence. The court found that the Tribunal had not erred in its consideration of the evidence and concluded that the appeal should be dismissed.

The final orders of the court were that the appeal was dismissed, and the matter was to be settled and orders entered in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

Appeal dismissed.

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

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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