Davenport v Repatriation Commission

[1997] FCA 918

FEDERAL COURT OF AUSTRALIA

VETERANS AFFAIRS - appeal from determination of AAT that cerebrovascular accident not war-caused within meaning of s 120(1) of Veterans Entitlement Act 1986 (Cth) - connection between smoking and cerebrovascular accident accepted - question of fact whether smoking commenced during three week voyage to Vietnam - no other operational service - unreliability of applicant’s evidence considered by Tribunal - no legal error established - appeal dismissed

Veterans Entitlement Act (Cth) 1986, s 120(1), s 120(3), s 120(6)

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 85 CLR 259

Bushell v Repatriation Commission (1992) 175 CLR 408

Devries v Australian National Railways Commission (1993) 177 CLR 472

PETER JOHN DAVENPORT -v- REPATRIATION COMMISSION
TG 3 of 1997

HEEREY J
HOBART
5 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)  TG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	PETER JOHN DAVENPORT Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	HEEREY J
PLACE:	HOBART
DATE:	5 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application is dismissed with costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)   TG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	PETER JOHN DAVENPORT Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	HEEREY J
PLACE:	HOBART
DATE:	5 AUGUST 1997

REASONS FOR JUDGMENT

The applicant Peter John Davenport appeals from a decision of the Administrative Appeals Tribunal which confirmed a decision of the Veterans Review Board to the effect that a cerebrovascular accident suffered by the applicant in November 1988 was not war-caused within the meaning of s 120(1) of the Veterans Entitlements Act 1986.  The applicant had served in the Royal Australian Navy from 29 September 1958 to 28 September 1967.  During that period he served on HMAS Parramatta and in particular on one voyage in which his ship acted as an escort for HMAS Sydney carrying troops to Vietnam.  That voyage took place between 25 May and 14 June 1965.

The applicant's case was that smoking caused his cerebrovascular accident.  As a matter of medical causation, it was not in dispute that such connection could have occurred.  The case before the Administrative Appeals Tribunal was put by the applicant's counsel in these terms:

The only issue before you today, sir, is whether or not the applicant's smoking habit was one that was commenced during his period of service whilst on HMAS Parramatta.

As much of the attack on the Tribunal's decision was based on what was said to be failures to deal adequately with the case in its reasons, it will be a convenient course if I quote at perhaps greater length than usual from the decision.  Under the heading “The Evidence,” after referring to the “T” documents being tendered and the fact that the applicant was the only witness who gave…