Gartrell v Repatriation Commission

[2000] FCA 542

FEDERAL COURT OF AUSTRALIA

Gartrell v Repatriation Commission [2000] FCA 542

COLIN STEWART GARTRELL v REPATRIATION COMMISSION
NG 686 of 1998

MADGWICK J
18 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 686 of 1998

BETWEEN:	COLIN STEWART GARTRELL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	18 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 686 of 1998

BETWEEN:	COLIN STEWART GARTRELL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	MADGWICK J
DATE:	18 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR

1. In this case the applicant, who appeals on a point of law from a decision of the Administrative Appeals Tribunal, in substance seeks to challenge the judgment of the Full Court in Ogston v Repatriation Commission (1999) 86 FCR 578.

2. 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.

3. The facts in this case are not relevantly different from those in Ogston and it is common ground that as a single judge I am bound to follow that decision.  It is the intention of the applicant to appeal against the inevitably adverse decision that he will receive before me in the hope that Ogston will be reconsidered either by a Full Court of this Court or in the High Court of Australia. 

4. Because there is existing authority, the respondent, differently from its practice in some other cases, seeks costs and Mr McInnes of Queens Counsel who appears for the applicant reluctantly bows to the inevitable in that regard.

5. The application is dismissed and the applicant is to bear the respondent's costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             18 April 2000

Counsel for the Applicant:	A McInnes QC with M Vincent
Solicitor for the Applicant:	Kenneth Harrison
Counsel for the Respondent:	D Ryan SC with C Parry
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2000
Date of Judgment:	18 April 2000