JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION V 380 of 1998
KENNY J MELBOURNE 13 JUNE 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 380 OF 1998
BETWEEN:
JOHN WILLIAM THOMAS CONNORS Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
KENNY J
DATE:
13 JUNE 2000
PLACE:
MELBOURNE
CORRIGENDA
1.In paragraph 19, line 7 of the Reasons for Judgment of Justice Kenny handed down on 13 June 2000, replace reference to “Commission” and insert “respondent”.
AMANDA FOLEY
Associate to Justice Kenny
13 June 2000
FEDERAL COURT OF AUSTRALIA
Connors v Repatriation Commission [2000] FCA 783
VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran’s condition of lumbar spondylosis was war-caused – whether Statement of Principles upholds a hypothesis connecting veteran’s disease with service where the material does not raise or point to an essential factor.
JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION VG 380 of 1998
KENNY J MELBOURNE 13 JUNE 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 380 OF 1998
BETWEEN:
JOHN WILLIAM THOMAS CONNORS Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
KENNY J
DATE OF ORDER:
13 JUNE 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2. There be no order as to costs.
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
VG 380 OF 1998
BETWEEN:
JOHN WILLIAM THOMAS CONNORS Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
KENNY J
DATE:
13 JUNE 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mr John Connors, appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 13 July 1998. In particular, he appeals from that part of the Tribunal’s decision which affirmed a decision that his lumbar spondylosis was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”).
factual background
The relevant facts, as found by the Tribunal, are as follows. Mr Connors,…
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
AGLC
Connors v Repatriation Commission [2000] FCA 783
Case
[2000] FCA 783
Decision Date
CaseChat Overview and Summary
Mr John Connors appeals from a decision of the Administrative Appeals Tribunal (AAT) that his lumbar spondylosis was not war-caused within the meaning of the Veterans’ Entitlements Act 1986. Mr Connors served in the Australian Army during two periods, the second of which included operational service in the South West Pacific. In 1945, while running in the dark to a church service, Mr Connors fell into a trench, striking his chest against a wall. He experienced chest pain for about 10 or 11 days but did not seek medical treatment. In 1993, Mr Connors was diagnosed with crush fractures of his thoracic vertebrae. Since 1994, he has suffered attacks of pain and restricted mobility resulting from lumbar spondylosis. The Tribunal found that the evidence did not point to a hypothesis that fitted the template of the standard of proof, and therefore, Mr Connors’ claim for a pension for lumbar spondylosis had to fail.
The court had to decide whether the Tribunal's decision that Mr Connors' lumbar spondylosis was not war-caused was lawful. The primary issue was whether the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. The court examined the relevant case law and found that determining the reasonableness of a hypothesis does not involve making findings of fact. The court concluded that the Tribunal did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the standard of proof, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one. Therefore, Mr Connors' claim for a pension for lumbar spondylosis had to fail.
The court found that the AAT did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the standard of proof, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one and, for that reason, Mr Connors’ claim for a pension for lumbar spondylosis had to fail. The appeal should be dismissed. There will be no order as to costs.
ORDERS:
1. The appeal be dismissed.
2. There be no order as to costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. There be no order as to costs.
Background
Background to the litigation
The applicant, Mr John Connors, appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 13 July 1998. In particular, he appeals from that part of the Tribunal’s decision which affirmed a decision that his lumbar spondylosis was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”). factual background The relevant facts, as found by the Tribunal, are as follows. Mr Connors, who was born on 25 March 1921, served in the Australian Army between 5 August 1941 and 3 November 1941 and between 16 December 1941 and 6 May 1946. During his second period of service, he served in Australia and in the South West Pacific. Accordingly, in that period, he is to be taken as having rendered operational service for the purposes of the VE Act. In 1945, Mr Connors was stationed at Ravenshoe in North Queensland as a member of a field ambulance unit. On a date in 1945, shortly before he was to be deployed from Ravenshoe to Morotai, he decided to attend an evening church service. As the service had already begun, he and a comrade ran “flat out” to the service across a paddock, instead of walking around its perimeter. It was dark. While running, Mr Connors fell into a trench (some 6 or 7 feet deep and some distance wide), striking his chest against the far wall before landing on his feet. The Tribunal wrote at [19]:He said he felt nauseous and was dazed and confused. He regained his composure and attempted to climb out of the trench but could do so only with the assistance of his friend. Thereafter he walked to the church service, participated in it, walked back to his barracks at the completion of the service and spent most of the next day preparing and packing his kit for embarkation to Morotai. Mr Connors said that he had severe pain in his chest and recalled that he was unable to carry his kit because of its strapping rubbing against his chest. He said he suffered chest pain for about 10 or 11 days thereafter. Upon arrival in Morotai 22 days later, he did not have chest pain. Mr Connors did not seek medical treatment as a result of the fall. He could not recall having suffered any back pain after the incident. In 1993, Mr Connors learned that he had sustained crush fractures of his thoracic vertebrae. According to his radiologist, the fractures were old and could have been caused by a fall. Mr Connors could not recall sustaining any serious falls aside from the incident at Ravenshoe. For about three years before the fractures were diagnosed, he reported pain in his back emanating from the area below the fractures. Since 1994, he has suffered attacks of pain and restricted mobility resulting from lumbar spondylosis, a degenerative condition affecting the lumbar segment of the spine. legislative framework Pursuant to s 13 of the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or a war-caused disease. In particular, s 9(1)(a) provides that for veterans, who like Mr Connors, have rendered operational service, an injury or disease is deemed to be “war-caused” for the purposes of the VE Act if the injury or disease “resulted from an occurrence that happened while the veteran was rendering operational service”.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KENNY J
In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares: see (1996) 66 FCR 594 at 601. In Bey, the Commission submitted that the primary judge was wrong in failing to find that the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgment, four members of the Full Court responded to this, at 373, as follows:The hypothesis was that the respondent’s physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis. There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412. conclusion For the reasons stated, the AAT did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the SoP, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one and, for that reason, Mr Connors’ claim for a pension for lumbar spondylosis had to fail. The appeal should be dismissed. There will be no order as to costs.