Gilkinson v Repatriation Commission

Case [2010] FCA 1292

FEDERAL COURT OF AUSTRALIA

Gilkinson v Repatriation Commission [2010] FCA 1292

Citation: Gilkinson v Repatriation Commission [2010] FCA 1292
Appeal from: Gilkinson v Repatriation Commission [2010] AATA 23
Parties: DAVID GILKINSON v REPATRIATION COMMISSION
File number: NSD 136 of 2010
Judge: STONE J
Date of judgment: 25 November 2010
Catchwords:

DEFENCE AND WAR – veterans’ entitlements – meaning of “related to service” – whether Tribunal failed to pose and answer correct question – whether Tribunal should have applied s 196B(14)(b) of Veteran’s Entitlement Act 1986 (Cth) rather than s 196B(14)(d) – meaning of “arose out of, or was attributable to” in s 196B(14)(b) – whether phrase has same meaning as in other sections of the Act – held that context of phrase in s 196B(14)(d) different from context in other sections – in s 196B(14)(d) phrase refers to dominant or effective cause but not necessarily the sole cause – consideration of s 196B(14) generally

DEFENCE AND WAR – veterans’ entitlements – statement of principles – obesity – sleep apnoea – whether related to operational service – whether intermittent shift work during operational service was a dominant or effective cause of the applicant’s obesity

Legislation:

Repatriation Act 1920 (Cth) s 101(1)(b)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 8(1)(b), 9(1)(b), 196B(2), 196B(14), 196B(14)(b), 196(14)(d)

Explanatory Memorandum to the Veterans’ Affairs
(1994 – 95 Budget Measures) Legislation Amendment Bill 1994
Cases cited:

Doolette v The Repatriation Commission (1990) 21 ALD 489
Elliott v Repatriation Commission [2002] FCA 26; 73 ALD 377
Hill v Repatriation Commission (2009) 177 FCR 434
Kattenberg v Repatriation Commission [2002] FCA 412; (73) ALD 365
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Law (1980) 31 ALR 140

Pearce and Geddes, Statutory Interpretation in Australia, 2001, 5th ed
Macquarie Dictionary, 2nd revised edition
Date of hearing: 4 May 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 51
Counsel for the Applicant: C Colborne
Solicitor for the Applicant: Legal Aid Commission of NSW
Counsel for the Respondent: G Kennett SC
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 136 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DAVID GILKINSON
Applicant
AND: REPATRIATION COMMISSION
Respondent

JUDGE:

STONE J

DATE OF ORDER:

25 NOVEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 136 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DAVID GILKINSON
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

STONE J

DATE:

25 NOVEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant,…

Continue reading Gilkinson v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Gilkinson v Repatriation Commission [2010] FCA 1292
Case
[2010] FCA 1292
Decision Date

CaseChat Overview and Summary

In the matter of Gilkinson v Repatriation Commission, the applicant contended that his sleep apnoea, a condition he attributed to his operational service, had worsened due to alcohol consumption during service, operational service-induced weight gain leading to obesity, or chronic sinusitis caused by his war service that obstructed his upper airways. The Tribunal was tasked with determining whether any of these hypotheses were substantiated by the evidence. The Tribunal held that there was insufficient evidence to support the hypothesis that the applicant's sleep apnoea worsened during his service period due to alcohol consumption. It found that the applicant had a history of excessive alcohol consumption prior to his service and that any increase during service was not due to the stress of operational duties but rather a general apprehension about his voyages. Regarding the onset of sleep apnoea, while the Tribunal accepted the applicant's claim that his snoring was first noted in 1968, it also acknowledged the possibility of a later onset during his service. The Tribunal ultimately concluded that while a reasonable hypothesis existed that the clinical onset could have occurred during the operational service, the applicant's claim that operational stress and shift work led to excessive food and alcohol intake, resulting in obesity and consequently sleep apnoea, was not substantiated.

The legal issues the court had to resolve included whether the applicant's sleep apnoea was related to his operational service and, if so, to what extent. The Tribunal needed to assess the evidence regarding the potential links between the applicant's service, alcohol consumption, weight gain, and the onset of sleep apnoea. The court had to determine whether the applicant's operational service could be considered a contributing factor to his condition, particularly in relation to alcohol consumption and weight gain. The reasoning of the Tribunal focused on the evidence presented, including expert testimony and the applicant's own statements. The Tribunal was meticulous in evaluating the timelines and the plausibility of the applicant's claims, particularly regarding the increase in alcohol consumption and its impact on his sleep apnoea. Ultimately, the Tribunal concluded that while the applicant's service may have coincided with the onset of his sleep apnoea, there was insufficient evidence to link the condition directly to operational service factors. The Tribunal's detailed analysis of the evidence, including the expert's testimony and the applicant's statements, led to the conclusion that the applicant had not met the requisite standard of proof to substantiate his claims.

Orders

Orders of the court

Full text does not contain this section.

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

The applicant attributed his sleep apnoea to his operational service and maintained that the material before the Tribunal raised the following hypotheses which were set out in the reasons of the Tribunal:I.That there had been a clinical worsening of his sleep apnoea during service due to consumption of alcohol.II.That operational service had led to weight gain such that he became obese and that in turn led to the onset of sleep apnoea or its clinical worsening.III.That the Applicant’s war-caused disease of chronic sinusitis caused chronic obstruction of the upper airways which in turn caused, or contributed to the clinical worsening of, the Applicant’s sleep apnoea.The Tribunal’s decisionClinical worsening of sleep apnoea The Tribunal held that there was no evidence “that the Applicant’s sleep apnoea clinically worsened during his period of operational service”. In reaching this conclusion it noted that Professor Breslin said that sleep apnoea could be “more pronounced after a period of drinking” without the condition itself being worse. The Tribunal did not accept that the applicant’s alcohol consumption was referable to his operational service and commented that the applicant had commenced to drink alcohol to excess long before his operational service commenced. While the Tribunal accepted that the applicant’s alcohol consumption “increased incrementally during the course of his naval service”, it did not accept that this was related to the stress of operational service: Given that all he professed to have was a general apprehension regarding his voyages to Vietnam, we are satisfied beyond reasonable doubt that there was nothing concerned with the Applicant’s operational service that caused him to drink more than he would otherwise have done, or to increase his intake of alcohol. We are therefore, satisfied beyond reasonable doubt that any facts necessary to support an hypothesis of alcohol-caused aggravation of sleep apnoea have been negatived to the requisite standard. Clinical onset of sleep apnoea In evidence before the Tribunal there was some uncertainty as to the date of clinical onset of the applicant’s sleep apnoea. The Tribunal was satisfied that the clinical onset was in 1968 when “according to the Applicant’s evidence” his snoring was first the subject of comment. Despite this finding the Tribunal noted that the relevant expert, Professor Breslin, stated “he could not rule out a clinical onset in 1970-71, when [the applicant was] aboard HMAS Sydney”. For this reason the Tribunal found that “a reasonable hypothesis may be said to have been raised that the clinical onset was during a period of operational service”. The Tribunal therefore considered the applicant’s claim that the stress of his operational service, and in particular from the shift work involved, had led to excessive intake of food and alcohol, both of which had led to the obesity which in turn was related to his sleep apnoea. Contribution of shift work to applicant’s obesity

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.