Gibson v Repatriation Commission

[2000] FCA 739

FEDERAL COURT OF AUSTRALIA

Gibson v Repatriation Commission [2000] FCA 739

Veterans’ Affairs         )

Administrative law       ) – natural justice – point decided adversely to applicant after indication from AAT that no address was required – whether setting aside of decision would be futile – correct test.

Veterans’ Entitlements Act 1986 (Cth), s 70

Repatriation Commission v Keeley [2000] FCA 532
Ogston v Repatriation Commission (1999) 86 FCR 578
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52
Commonwealth v Human Rights and Equal Opportunity Commission (X’s Case) (1998) 76 FCR 513
X v Commonwealth of Australia (1999) 167 ALR 529
Stead v State Government Insurance Commission (1986) 161 CLR 141

PAUL ANTONIO GIBSON v REPATRIATION COMMISSION

W 74 of 1999

BURCHETT, LEE AND HELY JJ
6 JUNE 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 74 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PAUL ANTONIO GIBSON Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGES:	BURCHETT, LEE AND HELY JJ
DATE OF ORDER:	6 JUNE 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

(1)       The appeal be allowed with costs;

(2)The order below dismissing the application to the Court be set aside, and in lieu thereof it be ordered that, in so far as the decision of the Administrative Appeals Tribunal fails to decide that the conditions claimed by the appellant in respect of his knees, in particular osteochondromatosis and osteoarthritis of the knees, are suffered by the appellant and are defence-caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986, those matters be remitted to the Tribunal for decision according to law; and

(3)The respondent pay the appellant’s costs of the application to the Court.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 74 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PAUL ANTONIO GIBSON Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	BURCHETT, LEE AND HELY JJ
DATE:	6 JUNE 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1. The judgment from which this appeal comes was handed down in a proceeding by way of review of - a so-called appeal from - a decision of the Administrative Appeals Tribunal.  That decision had been given in relation to a claim for a disability pension and medical treatment under the Veterans’ Entitlements Act 1986 (Cwth).  The foundation of the appellant’s claim is a congenital condition known as multiple osteochondromatosis, which causes a proliferation of bony growths on the bones and may, it was accepted, be involved also with osteoarthritis.  The appellant’s case was that his condition was relevantly aggravated by his military service.  That case, presented on his behalf by his mother, Mrs Gatell-Gamir, both in the Tribunal, before the learned judge and on the appeal, with great pertinacity, was substantially, but not wholly, successful in the Tribunal.  Problems with the appellant’s…