Gartrell v Repatriation Commission

[2000] FCA 1228

FEDERAL COURT OF AUSTRALIA

Gartrell v Repatriation Commission
[2000] FCA 1228

COLIN STEWART GARTRELL v REPATRIATION COMMISSION
N 456 OF 2000

WHITLAM, LINDGREN and GYLES JJ
SYDNEY
9 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 456 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	COLIN STEWART GARTRELL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WHITLAM, LINDGREN and GYLES JJ
DATE OF ORDER:	9 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Appeal is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 456 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	COLIN STEWART GARTRELL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	WHITLAM, LINDGREN and GYLES JJ
DATE:	9 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of Madgwick J in an “appeal” on a point of law from the decision of the Administrative Appeals Tribunal.  The question was described by the judge as follows:

   “The question involved is whether a statement of principles determined under s 196B of the Veterans Entitlements Act 1986 (Cth), made after the date of lodgement of a claim and having the effect of negating a reasonable hypothesis that an applicant’s claimed disability was service related, applies such that the claim must be determined in accordance with that statement of principles even though the effect might be to deny a claim for which some evidentiary support was available at the time the claim was lodged.”

2. It was accepted below that the facts before the Administrative Appeals Tribunal were not relevantly different from those considered by the Full Court of this Court in Ogston v Repatriation Commission (1999) 86 FCR 578. It was therefore accepted that the judge was bound to follow that decision, with the result that the question posed was to be answered yes, and the “appeal” dismissed.

3. The appeal to this Court was brought in order to challenge the judgment in Ogston.  Reliance is placed upon the later decision of a Full Court in Repatriation Commission v Keeley [2000] FCA 532. It is said that the reasoning in that decision should be applied in preference to that in Ogston.

4. The respondent submits that Ogston is directly applicable on the facts, and cannot be distinguished.  This is correct, although in this case (as in Keeley) there has been more than one Statement of Principles since 1 June 1994 (all promulgated post the appellant’s initial claim), each has the effect of defeating his claim.  By contrast, the issue in Keeley was whether, if a Statement of Principles does not deny a claim and is then revoked and replaced by a Statement of Principles that does, the claim must be considered according to the first rather than the later Statement of Principles.…