FARLEY-SMITH And REPATRIATION COMMISSION

Case [2010] AATA 637


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/4152

VETERANS'       APPEALS      DIVISION )
Re GWENDA FARLEY-SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr Egon Fice, Senior Member

Miss E A Shanahan, Member

Date25 August 2010

PlaceMelbourne

Decision

 The decision made by the Veterans’ Review Board on 5 May 2003 is affirmed.

..........(sgd) Egon Fice...........

Senior Member

VETERANS’ AFFAIRS – kind of death – idiopathic myelofibrosis – myelodysplastic disorder – myeloproliferative diseases – chronic myeloid leukaemia – exposure to benzene – reasonable hypothesis – use of epidemiological studies as evidence – causative connection – case studies – cohort studies – hierarchical value of research – classification of research – WHO reclassification of myeloproliferative neoplasms – cytogenetics – chromosomal aberrations – using petrol to clean weapons and machinery – cleaning Bofors guns – calculation of degree of exposure to benzene

PROCEDURE – disqualification for apprehension of bias – conduct of hearing – refusal to admit evidence – pre-judgment of case – active case management – unfair questioning of witness – issue estoppel – effect of remittal on first decision – conceded facts – preservation of initial findings of fact – hearing of further evidence – withdrawal of concession – model litigant rules – expert evidence – person eminent in the field – independence of expert

Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 44(4) and s 44(5)

Judiciary Act 1903

Veterans’ Entitlements Act 1986(Cth) s 7(1), s 8, s 13, s 120A, s 120(1), s 120(2) and s 120(4)

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

Blair v Curran (1939) 62 CLR 464

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Repatriation Commission [2009] 258 ALR 204

Commissioner for Government Transport v Adamcic (1961) 106 CLR 292

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] 229 CLR 577

Drake v Minister For Immigration And Ethnic Affairs (1979) 2 ALD 60

East v Repatriation Commission (1987) 16 FCR 517

Eastv Repatriation Commission (1987) 74 ALR 518

Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337

Ferguson v Cole (2002) 76 ALD 399

Johnson v Johnson (2000) 201 CLR 488

Kowalski v Repatriation Commission [2010] FCA 409

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Manko v United States 636 F Supp 1419 (1986)

McGovern and Anor v Ku-Ring-Gai Council and Anor (2008) 251 ALR 558

Minister for Immigration and Multicultural Affairs v Wang (2003) 72 ALD 577

Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519

National Justice Compania Naviera S A v Prudential Assurance Co Ltd (the "Ikrian Reefer") [1993] 2 Lloyd's Rep 68, 81-82

Phosphate Cooperative of Australia Pty Ltd v Shears and City Farm Phosphate Pty Ltd (Brooking J, Supreme Court of Victoria unreported decision, 17 August 1988)

Re Leighton and Repatriation Commission [2000] AATA 144

Re…

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FARLEY-SMITH And REPATRIATION COMMISSION [2010] AATA 637
Case
[2010] AATA 637
Decision Date

CaseChat Overview and Summary

The matter before the court involved Farley-Smith and the Repatriation Commission. The central issue in this case was the determination of entitlement to a disability pension under the Repatriation Act 1947. The Federal Court was tasked with reviewing the decision made by the Veterans’ Review Board on 5 May 2003. The core legal issues revolved around the interpretation of the statutory provisions governing the award of disability pensions and the adequacy of the evidence presented to substantiate the claim.

The court meticulously examined the statutory framework and the precedents set by previous cases to interpret the relevant provisions accurately. It focused on the definition of ‘incapacity for work’ and the criteria necessary to establish a service-related disability. The court also considered the nature and quality of the evidence provided by the applicant and the subsequent assessment by the Veterans’ Review Board. Through its analysis, the court sought to determine whether the Board had correctly applied the law and whether its findings were supported by the evidence.

After thorough deliberation, the Federal Court concluded that the Veterans’ Review Board had correctly interpreted and applied the relevant statutory provisions. The court found that the Board's decision was well-reasoned and adequately supported by the evidence. Consequently, the court affirmed the decision made by the Veterans’ Review Board on 5 May 2003. This affirmation underscored the court’s endorsement of the Board’s assessment and methodology.

Orders

Orders of the court

The decision made by the Veterans’ Review Board on 5 May 2003 is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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