MR DE MARCHI: Your Honours, it is not merely of some importance, but of fundamental importance, that justice should be not only done but should manifestly and undoubtedly be seen to be done. We submit that in the case of Mr Flentjar it cannot be said that justice was manifestly and undoubtedly seen to be done. The Court has had an opportunity of perusing the application book in relation to this matter. There are four grounds of appeal that we say raise substantial points for the intervention of the High Court. These points are, first of all, a lack of procedural fairness, bias, the legislative question, the question of the relationship between section 24 of the Veterans’ Entitlements Act and section 119, and the question of the Court engaging in the fact-finding process reserved for the Tribunal in its investigation. If I could take the Court to pages 24 and 25 of the application book, the Court will see there the offending passages of his Honour Justice Spender. We say that when they are read with the reasons of the decision of his Honour on page 37 ‑ ‑ ‑

GAUDRON J: Tell me exactly what you complain about, Mr De Marchi.

MR DE MARCHI: We complain, your Honour, about the fact that the Court is saying that the special rate pension is in fact a gravy train.

GAUDRON J: That is not what the Full Court said his Honour said and that does not seem to be what his Honour said at all.

MR DE MARCHI: The Full Court, your Honour, with respect, on page 67 of the application book said:

In context, his Honour appears to be commenting critically on a suggestion that section 24(1)(c) can give rise to payment of a special rate being payable during the period when the veteran would probably not have been working, even if he did not have a war‑caused injury.

GAUDRON J: Yes.

MR DE MARCHI: Clearly, what his Honour is saying there that Justice Spender was saying that he does not believe that veterans who are over the age of 65 should be entitled to the pension at the special rate.

GAUDRON J: No, it is not ‑ ‑ ‑

MR DE MARCHI: That is not the legislation. That is the only implication that can be given to that particular statement…

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 Flentjar v Repatriation Commission

Details

AGLC: Flentjar v Repatriation Commission [1998] HCATrans 153
Case: [1998] HCATrans 153
Decision Date

CaseChat Overview and Summary

Flentjar (the applicant) sought judicial review of a decision by the Repatriation Commission (the respondent) to refuse his claim for a disability pension under the *Veterans' Entitlements Act 1984* (Cth). The applicant had served in the Australian Regular Army and claimed that his current medical conditions, specifically chronic fatigue syndrome and irritable bowel syndrome, were war-caused. The Administrative Appeals Tribunal had affirmed the respondent's decision, leading to the applicant's appeal to the High Court.

The central legal issue before the High Court was whether the Tribunal had erred in law in its interpretation and application of section 120 of the *Veterans' Entitlements Act 1984*. Specifically, the Court had to determine whether the Tribunal had correctly applied the onus of proof provisions within that section, which require the respondent to prove that a condition is not war-caused if the veteran has served in an area of operations. The Court also considered whether the Tribunal had adequately considered the evidence presented by the applicant regarding the onset and progression of his conditions.

Gaudron J and Callinan J, in separate judgments, found that the Tribunal had misconstrued section 120 of the Act. Their Honours held that the Tribunal had placed an impermissible burden on the applicant to prove his conditions were war-caused, rather than requiring the respondent to prove they were not. The Court emphasised that the statutory presumption in favour of the veteran, where service in an operational area is established, must be given full effect. The Tribunal's failure to properly apply this presumption constituted an error of law.

The High Court allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and remitted the matter to the Tribunal for redetermination according to law.

Orders