Cunningham v Repatriation Commission

[2008] FMCA 1251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUNNINGHAM v REPATRIATION COMMISSION [2008] FMCA 1251

ADMINISTRATIVE LAW – Veterans’ Entitlements Act – whether error of law by AAT – consideration of treatment of evidence by AAT alleged to constitute errors of law.

Veterans' Entitlements Act 1986, ss.5D, 196B, 196B(14), 196B(14)(b), 196B(14)(f)(i)
Administrative Appeals Tribunal Act 1975, s.44(1)

Repatriation Commission v Deledio (1998) 49 ALD 193
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Comcare v Etheridge (2006) 149 FCR 522
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Yates (1995) 38 ALD 80

Applicant: NEVILLE CUNNINGHAM

Respondent: REPATRIATION COMMISSION

File Number: MLG 1684 of 2007

Judgment of: Burchardt FM

Hearing date: 17 July 2008

Date of Last Submission: 17 July 2008

Delivered at: Melbourne

Delivered on: 19 September 2008

REPRESENTATION

Counsel for the Applicant: Mr Chancellor

Solicitors for the Applicant: Williams Winter Pty Ltd

Counsel for the Respondent: Ms Macdonnell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the appeal be dismissed. 

2. That the cross‑appeal be allowed.  

3. That the Appellant pay the Respondent's costs of the appeal and of the cross‑appeal.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1684 of 2007

NEVILLE CUNNINGHAM

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Neville Cunningham has appealed a decision of the Administrative Appeals Tribunal (the "Tribunal").  He says that the Tribunal erred in law in dismissing his application to review a decision of the Repatriation Commission refusing claims for a number of medical conditions as being war‑related. 

2. A cross‑appeal by the Commonwealth in relation to a finding by the Tribunal in respect of a peptic ulcer condition is to be upheld,

   
   

   by consent. 

3. The three issues ultimately pressed by the Appellant are that:

   a)the Tribunal’s failure to take into consideration the fact that Mr Cunningham was perfectly well until his service began and that his seasickness and depression therefore arose from his service constitutes an error of law;

   b)a failure on the part of the Tribunal to consider recurrence as part of the definition of disease amounted to an error of law;

   c)the Tribunal erred in law in failing to consider the hypothesis that Mr Cunningham's seasickness caused his depression.

4. These errors were also said to constitute errors of law because the Tribunal failed to take into account all the evidence

   
   

   (see P-14 at Lines 25–29). 

5. The Respondent Repatriation Commission submitted that none of these matters were made out and that they in any event did not amount to errors of law.  The Respondent submitted that the appeal was incompetent because it raised no issues of law. 

6. For the reasons that follow, I have come to the conclusion that none of the Appellant's grounds of appeal as advanced before the Court have been made out and that the appeal must therefore be dismissed. 

   
   

   It follows that I do not need to and indeed will not deal with the Respondent's challenge to the…