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 1994Cases 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 140Pearce and Geddes, Statutory Interpretation in Australia, 2001, 5th ed
Macquarie Dictionary, 2nd revised editionDate 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
ApplicantAND: 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
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
STONE J
DATE:
25 NOVEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant,…
Continue reading Gilkinson v Repatriation Commission
Sign in free to access the full text
- AGLC
- Gilkinson v Repatriation Commission [2010] FCA 1292
- Case
- [2010] FCA 1292
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.