VETERANS’ AFFAIRS - whether chronic bronchitis, chronic anxiety state and lumbar spondylosis were war-caused diseases - whether reasonable hypothesis connecting the diseases with the service of the veteran - meaning of reasonable hypothesis - whether the Tribunal correctly understood the differing roles and tasks given to it by different subsections of the legislation - credibility of appellant - preference for one medical opinion over another
PRACTICE and PROCEDURE - whether an abandoned ground of appeal may be re-agitated
Bell v Lever Brothers Ltd & Ors[1933] AC 161 Law v Repatriation Commission [1981] 147 CLR 635 Bushell v Repatriation Commission [1992] 175 CLR 408 Byrnes v Repatriation Commission [1993] 177 CLR 564 East v Repatriation Commission [1987] 16 FCR 517 Webb v Repatriation Commission [1988] 19 FCR 139 Lowerson v Repatriation Commission [1994] 50 FCR 252 Teoh v Minister for Immigration & Ethnic Affairs [1994] 121 ALR 436 Repatriation Commission v Hughes [1990] 13 AAR 34 Critch v Repatriation Commission (Federal Court of Australia, Merkel J, 8 October 1996, unreported) Repatriation Commission v Owens(1996) 70 ALJR 904 Repatriation Commission v Stares(1996) 66 FCR 594
COLIN MACK COOKE v REPATRIATION COMMISSION No. WAG 96 of 1995
EINFELD, LEE, CARR JJ PERTH 30 APRIL 1997
IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 96 of 1995 GENERAL DIVISION )
On Appeal from a single Judge of the Federal Court of Australia
Between: COLIN MACK COOKE Appellant
And: REPATRIATION COMMISSION Respondent
CORAM: EINFELD, LEE & CARR JJ PLACE: PERTH DATE: 30 APRIL 1997
MINUTE OF ORDERS
The Court:
allows the appeal
sets aside the judgment appealed from and in lieu thereof:
a)orders that the decisions of the Administrative Appeals Tribunal be set aside
b)allows the appellant’s claim in respect of his bronchial condition and remits that claim to the respondent for calculation and payment of the appropriate pension
c)remits the other claims of the appellant to the Tribunal to be heard again in accordance with the reasons of the Court, with or without further evidence
(d)orders that the respondent pay the appellant's costs of the hearing and the appeal.
Note:Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 96 of 1995 GENERAL DIVISION )
On Appeal from a single Judge of the Federal Court of Australia
Between: COLIN MACK COOKE Appellant
And: REPATRIATION COMMISSION Respondent
CORAM: EINFELD, LEE & CARR JJ DATE: 30 APRIL 1997
PLACE: PERTH
REASONS FOR JUDGMENT OF JUSTICE EINFELD
On 8 March 1992 the Repatriation Commission refused the appellant's claim for a war veteran's pension in respect of disabilities caused by three conditions -- chronic bronchitis, anxiety…
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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AGLC
Cooke v Repatriation Commission [1997] FCA 305
Case
[1997] FCA 305
Decision Date
CaseChat Overview and Summary
In the case of Cooke v Repatriation Commission, the appeal was heard by Einfeld, Lee, and Carr JJ in the Federal Court of Australia. The central issue was whether the Tribunal correctly determined that the appellant's claims for chronic bronchitis, chronic anxiety state, and lumbar spondylosis were not war-caused diseases under the Veterans' Entitlements Act 1986 (Cth). The court examined the statutory framework, specifically former section 120 of the Act, which required a reasonable hypothesis linking the diseases to the appellant's service to be raised by the material before the Tribunal. The court found that the Tribunal erred in its application of the law, particularly in its handling of the reasonable hypothesis requirement. For the chronic bronchitis claim, the court determined that the Tribunal's rejection of the hypothesis that the appellant's smoking habit, which significantly contributed to his condition, was war-caused was incorrect. The court held that the Tribunal should have considered the reasonable hypothesis that the smoking habit, which started during the appellant's service, was linked to his war service. Regarding the chronic anxiety state, the court found that the Tribunal erred in not accepting the hypothesis that the appellant's anxiety disorder, which had symptoms dating back to his service, was war-caused. The court held that the Tribunal should not have discounted the appellant's credibility based on the lack of specific symptoms reported at the time of the service. Finally, the court found that a reasonable hypothesis was raised regarding the lumbar spondylosis, which the Tribunal failed to properly consider. The court concluded that the Tribunal's decisions should be set aside and the claims should be remitted for reconsideration, with the chronic bronchitis claim to be calculated and paid by the Repatriation Commission. The court ordered the respondent to pay the appellant's costs of the hearing and appeal.