FEDERAL COURT OF AUSTRALIA
Forrester v Repatriation Commission [2013] FCA 898
Citation: Forrester v Repatriation Commission [2013] FCA 898 On appeal from: Forrester and Repatriation Commission [2012] AATA 846 Parties: CONSTANCE FORRESTER v REPATRIATION COMMISSION File number: VID 1121 of 2012 Judge: MORTIMER J Date of judgment: 6 September 2013 Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension claim – whether tribunal erred in finding material before it did not point to or support hypothesis advanced – whether link between events and operational service too remote or tenuous – whether tribunal’s reasoning inconsistent with its conclusion – appeal dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 23
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1)
Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 7, 8, 13, 120, 120A, 196BCases cited: Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 Cattanach v Melchior (2003) 215 CLR 1
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Deledio v Repatriation Commission (1997) 47 ALD 261 East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26
House v The King (1936) 55 CLR 499
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
McKenna v Repatriation Commission (1999) 86 FCR 144
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124
Re Dell and Repatriation Commission (1986) 9 ALD 596
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Stacey (unreported, Nos V83/0396, V84/0821 and V28/072, 26 June 1985)
Repatriation Commission v Bey (1997) 79 FCR 364 Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Stares (1996) 66 FCR 594
Vetter v Lake Macquarie City Council (2001) 202 CLR 439Date of hearing: 22 July 2013 Date of last submissions: 16 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 82 Counsel for the Applicant: Ms F Ryan Counsel for the Respondent: Ms C Dowsett Solicitor for the Applicant: Williams Winter Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1121 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CONSTANCE FORRESTER
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
6 SEPTEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1121 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CONSTANCE FORRESTER
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
MORTIMER J
DATE:
6 SEPTEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
NATURE OF THE PROCEEDING…
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- AGLC
- Forrester v Repatriation Commission [2013] FCA 898
- Case
- [2013] FCA 898
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the interpretation of the hypothesis advanced by Mrs Forrester and whether the tribunal was correct in its assessment that the material presented did not support a link between the stressors during service and the veteran's drinking habits. Furthermore, the court examined whether the tribunal's characterisation of the hypothesis as "too remote and too tenuous" was appropriate and whether this was consistent with the tribunal's conclusion. The applicant argued that the tribunal had misapplied the principles set out in Bull v Repatriation Commission by characterising the hypothesis as "too remote and too tenuous", while the respondent maintained that the tribunal's conclusion was supported by the evidence and was consistent with the statutory requirements.
The Federal Court, in dismissing the appeal, found that the tribunal's reasons, although brief, were sufficient to conclude that the hypothesis presented did not find support in the material before it. The court held that the tribunal was entitled to find that the link between the events during service and the onset of heavy drinking was too remote and too tenuous, given the particularity of the stressors relied upon. The court rejected the applicant's argument that the tribunal's characterisation of the hypothesis was inconsistent with its conclusion, noting that the tribunal's reasons, while brief, did not indicate any misdirection in its reasoning. The court also noted that the tribunal was correct in its assessment that the hypothesis was not supported by the material, and that the tribunal's conclusion was consistent with the statutory obligations under the AAT Act.
The court ultimately dismissed the appeal, affirming the tribunal's decision that the material did not point to a hypothesis connecting Mr Forrester's death from aortic aneurysm to his operational service. The court found no error in the tribunal's reasoning and upheld its conclusion that the hypothesis presented by Mrs Forrester was not supported by the evidence. The Federal Court's decision underscores the importance of the particularity of the stressors relied upon in such claims and affirms the tribunal's role in assessing the reasonableness of hypotheses in veteran's entitlement claims.
Orders
Orders of the court
1. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
The adequacy of the Tribunal’s reasons (and its compliance with the obligations in s 43(2B) of the AAT Act) was not put in issue. Brief though they are, what emerges from the Tribunal’s reasons is that the particularity of the events relied upon in the hypothesis as “stressors” was what led the Tribunal to the conclusion that the material before it did not point to or support a hypothesis that connected those events (in whole or in part) during Mr Forrester’s operational service with any increase in his drinking.The Second Argument: Whether It was Open to the Tribunal to Find the Link between the Events and Operational Service was “Too Remote and Too Tenuous” This argument relied heavily on the Full Court’s decision in Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832. It was submitted that, by using the phrase “too remote and too tenuous”, the Tribunal misdirected itself because that characterisation, according to Bull, was reserved for hypotheses that were fanciful or irrational. The hypothesis at [61] of the Tribunal’s reasons, it was submitted, could not be characterised in that way. The applicant placed some emphasis on the similarity between the applicant’s case and the factual circumstances in Bull. She relied in particular on the Full Court’s reasons in Bull 66 ALD 271; [2001] FCA 1832 at [40] where, having set out what the material disclosed about the veteran’s drinking habits in that case, Emmett and Allsop JJ stated:the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to … above was by no means fanciful or impossible or incredible or untenable. He drank lightly before the war, experienced stress in the war, spoke in guarded and repressed terms of the war and drank more heavily after the war. It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol. In effect, the applicant submitted that, given the factual similarities with Mrs Forrester’s claim about her husband’s drinking, this passage established that the hypothesis put forward on behalf of Mrs Forrester was not capable of being characterised as “too remote” or “tenuous”. The respondent pointed out that the paragraphs of the Court’s reasons in Bull that followed (66 ALD 271; [2001] FCA 1832 at [41]–[46]), read with what the Court earlier set out of the Tribunal’s reasons in that case (at [27]), reveals that the Full Court accepted these were very much factual questions for the Tribunal and that they did not give rise to a question of law. That submission could have force but, once again, the brevity of the Tribunal’s reasons in Mrs Forrester’s case undermines the strength of the respondent’s argument. Unlike the Tribunal’s reasons in Bull, the Tribunal in Mrs Forrester’s claim did not articulate other explanations for an increase in the veteran’s drinking. If it had done so, that would have been the end of this ground. The absence of explanation requires further inquiry into why the Tribunal characterised the link as too remote and too tenuous.