Critch, Audrey Lucy v Repatriation Commission - [1996] FCA 881

CATCHWORDS

REPATRIATION - War widows pension - Accepted link between smoking during active war service and coronary artery disease resulting in death - Consideration of cases relating to whether smoking or alcohol was war-caused - Whether temporal connection between active war service and smoking sufficient to raise a reasonable hypothesis connecting death with the circumstances of the particular service - Whether assumed fact must be one which is reasonably open to be inferred from, pointed to, raised by and therefore permitted by the material - Whether reasonable hypothesis raised by assumed or raised fact that veteran's smoking was attributable to stress and peer group pressure during active war service - Whether expert medical evidence on likelihood of stress in active war service of the veteran leading to smoking points to smoking being war-caused as an assumed or raised fact - Whether the Administrative Appeals Tribunal erred in law in not addressing the questions required to be addressed under the statute - Whether the Administrative Appeals Tribunal erred in law in applying an onus of proof on balance of probabilities or on some other unspecified standard of proof or satisfaction.

Veterans' Entitlements Act 1986 (Cth) ss.8(1), 13, 119, 120

Repatriation Commissioner v. Whetton (1991) 31 FCR 513
Bushell v. Repatriation Commission (1992) 175 CLR 408
East v. Repatriation Commission (1987) 16 FCR 517
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Lowerson v. Repatriation Commission (1994) 50 FCR 252
Bell v. Repatriation Commission (1992) 26 ALD 545
Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996)
Law v. Repatriation Commission (1980) 29 ALR 64
Stares v. Repatriation Commission (1995) 38 ALD 757 and on appeal (1996) 41 ALD 212
McMahon v. Repatriation Commission (Burchett J, unreported 21 July 1993 and on appeal to the Full Court (Wilcox, Einfeld & Hill JJ), unreported 24 February 1994)
Repatriation Commission v. Tuite (1993) 39 FCR 540

VG695/95 AUDREY LUCY CRITCH V. REPATRIATION COMMISSION

MERKEL J.
MELBOURNE
8 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION

NO. VG 695 OF 1995

On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Mr. J. Handley, Senior Member, Mr. J. Brassil and Miss A. Shanahan

B E T W E E N:

AUDREY LUCY CRITCH
Applicant

- and -

REPATRIATION COMMISSION
Respondent

Coram:Merkel J
Place:Melbourne
Date:8 October 1996

MINUTES OF ORDERS

The decision of the Administrative Appeals Tribunal is set aside.

The matter is remitted to the Administrative Appeals Tribunal to be determined in accordance with law.

The respondent is to pay the applicant's costs of and incidental to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION

NO. VG 695 OF 1995

On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Mr. J. Handley, Senior Member, Mr. J. Brassil and Miss A. Shanahan

B E T W E…

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.

Continue reading Critch, Audrey Lucy v Repatriation Commission

Details

AGLC: Critch, Audrey Lucy v Repatriation Commission [1996] FCA 881
Case: [1996] FCA 881
Decision Date: 8 Oct 1996

CaseChat Overview and Summary

Audrey Lucy Critch sought a war widows pension from the Repatriation Commission on the basis that the death of her late husband, George Albert Critch, was war-caused. The Commission refused the claim, finding that the death was not attributable to war service. The applicant appealed the decision to the Administrative Appeals Tribunal, which affirmed the decision of the Commission. The applicant then appealed the decision of the Tribunal to the Federal Court. The issue before the Court was whether the Tribunal erred in law in not addressing the questions required to be addressed under the statute and in applying an onus of proof on the balance of probabilities or on some other unspecified standard of proof or satisfaction. The Court found that the Tribunal had indeed erred in law in not addressing the questions required to be addressed under the statute and in applying an onus of proof on the balance of probabilities or on some other unspecified standard of proof or satisfaction. The decision of the Tribunal was set aside and the matter was remitted to the Tribunal for its determination in accordance with law. The parties were to be at liberty to adduce further evidence and make further submissions to the Tribunal. As the applicant had succeeded on her appeal, the respondent was to pay the applicant's costs of and incidental to the appeal.

Orders