Driver, G.H. v Repatriation Commission - [1991] FCA 262

Re: GEORGE HENRY DRIVER
And: REPATRIATION COMMISSION
No. S G165 of 1990
FED No. 262
Veterans' Entitlements Act 1986

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Veterans' Entitlements Act 1986 - whether veteran incapacitated from a war-caused injury - whether "reasonable hypothesis" raised by material before the Tribunal - whether error of law

HEARING

ADELAIDE

#DATE 17:5:1991

Counsel for the appellant : Mr F.C. Brohier

Solicitor for the appellant : Corrs

Counsel for the respondent : Ms C.M. Branson

Solicitor for the respondent : Australian Government Solicitor

ORDER

The appeal be dismissed.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal which had the effect of denying the appellant's claim that he is eligible to receive a pension under the provisions of the Veterans' Entitlements Act 1986 ("the Act").

On 5 January 1988 the appellant lodged a claim with the respondent seeking a pension in respect of "lower back - whole of back and both hips". Following a medical examination, a medical officer of the Department of Veterans Affairs diagnosed that the appellant suffered the conditions of spondylosis, and osteoarthrosis of the hips. On 28 March 1988 the respondent determined that the appellant's spondylosis and osteoarthrosis of the hips were not the result of war-caused injury or disease within the meaning of s.9 of the Act. This decision was affirmed on review by the Veterans' Review Board. On further review by the Administrative Appeals Tribunal the decision was again affirmed.
It has been common ground throughout that the appellant served in the Australian Army from 1 July 1940 to 29 January 1946 in the 2/48 AIF and other units in the Middle-East and Africa rising to the rank of Lieutenant, and that this period constitutes "eligible war service" including "operational service" within the meaning of the Act. He is therefore a "veteran" whose eligibility for a pension is governed by ss.9 and 13 of the Act which, in relevant parts, provide:

9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if -

(a) ...

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...

but not otherwise.

13.(1) Where

(a) ...

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to this Act, liable to pay -

(c) ...

(d) in the case of the incapacity of the veteran - pension to the veteran,

in accordance with this Act."

The Act in ss.119 and 120 contains provisions dealing with proof and the standard of proof. Section 120 provides:

"120.(1) Where a claim under…

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 Driver, G.H. v Repatriation Commission

Details

AGLC: Driver, G.H. v. Repatriation Commission [1991] FCA 262
Case: [1991] FCA 262
Decision Date: 17 MAY 1991

CaseChat Overview and Summary

The case before the court involved a veteran, G.H. Driver, and the Repatriation Commission, disputing whether Driver was incapacitated due to a war-caused injury. This matter was heard in the Federal Court of Australia, with the court tasked to review the decision made by the Administrative Appeals Tribunal (AAT) concerning Driver's eligibility for veterans' benefits under the Veterans' Entitlements Act 1986. The AAT had found that Driver did not meet the criteria for total and permanent incapacity, and Driver appealed this decision, contending that the Tribunal had erred in law by not considering the entirety of the evidence presented.

The central legal issue before the court was whether the AAT had made an error of law in its assessment of Driver's incapacity. Specifically, the court had to determine if the AAT should have found a reasonable hypothesis of total and permanent incapacity based on the material before it. The court examined the standard of review applicable to decisions made by the AAT and whether the AAT had correctly applied the relevant statutory provisions and case law. The court also considered the extent to which the Tribunal had to weigh the evidence and whether it had erred in its interpretation of the statutory language.

In its judgment, the court held that the AAT's decision was not an error of law. The court found that the AAT had appropriately considered the evidence and had not overlooked any material that might have supported a finding of total and permanent incapacity. The court concluded that the AAT's decision was based on a reasonable interpretation of the evidence and that there was no basis to overturn the Tribunal's findings. The appeal was dismissed, and the original decision of the AAT was upheld.

The final orders of the court were that the appeal be dismissed, and the decision of the Administrative Appeals Tribunal remained in place. The matter was to be settled and orders entered in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The appeal be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.