Graham v Repatriation Commission - [1996] FCA 994

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 94 of 1996
  )
GENERAL DIVISION                  )

BETWEEN:WILLIAM GRAHAM

Applicant

AND:REPATRIATION COMMISSION

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    15 OCTOBER 1996

REASONS FOR JUDGMENT

The applicant, Mr William Graham, appeals against the decision of the Administrative Appeals Tribunal affirming a decision of the respondent Repatriation Commission that solar skin damage with which he suffered was not war-caused within the meaning of s9 of the Veterans Entitlements Act 1986 ("the Act"), or defence-caused within the meaning of s70 of the Act.

The appeal, which is to the Court in its original jurisdiction, is by force of the Administrative Appeals Tribunal Act 1975, an appeal on and thus limited to a question of law.

Mr Graham enlisted in the Air Force in early 1945, shortly after turning 18 years of age. Prior to his enlistment he had lived in Nambucca Heads where, he said, he had been involved in the usual activities in which young
people engage; including playing football in the winter and surfing and swimming at the beach in the summer. Mr Graham did his recruit training at Cootamundra in New South Wales, commencing 23 January 1945 for a period of some five weeks. His training there alternated between the drill square and inside training. There was also some field training and physical activity.

The initial period of eligible service, which continued until 1 July 1946, covered, in addition to the training at Cootamundra, postings in Melbourne, Adelaide and Bradfield Park in Sydney, where a combination of wireless training, work on the wharves and in demobilisation were undertaken.

According to his evidence, which was accepted by the Tribunal, during this period of service, and a subsequent period also relevant from 7 December 1972 to 21 March 1979, Mr Graham generally had been dressed in either overalls or shorts and shirt with sleeves rolled up and boots on. The Tribunal found that, on occasions, he would have been wearing a hat, either a felt hat, beret or slouch hat; on other occasions he would not. In the later period most of Mr Graham's exposure to the sun would have been during periods when he was working at an airfield in which he would probably have not worn hats.

After the war finished, Mr Graham remained in the Air Force and spent some years in Malaysia between 1966 and 1979 in which period he also went to Thailand and Vietnam. Other periods of service include time spent by him in New Guinea and Manus Islands, as well as service in Melbourne, Australia. This last service appears to have been in the period referred to in the Tribunal's reasons as "the second period of service", namely that between 7 December 1972 and 21 March 1979. The last part of his service during the war was mainly spent indoors but, as he said in his own evidence, he was in and out of doors all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Graham v Repatriation Commission

Details

AGLC: Graham v Repatriation Commission [1996] FCA 994
Case: [1996] FCA 994
Decision Date: 15 Oct 1996

CaseChat Overview and Summary

William Graham appeals against the decision of the Administrative Appeals Tribunal affirming a decision of the Repatriation Commission that solar skin damage, which he suffered, was not war-caused within the meaning of section 9 of the Veterans Entitlements Act 1986 or defence-caused within the meaning of section 70 of the Act. The appeal, limited to a question of law, is brought pursuant to the Administrative Appeals Tribunal Act 1975. The applicant, Mr Graham, enlisted in the Air Force in 1945 and served in various locations across Australia and overseas. He was diagnosed with actinic skin damage in the early 1970s. Two expert dermatologists, Dr Florance and Dr Lobel, provided conflicting opinions on the extent to which Mr Graham's service contributed to his skin condition. The Tribunal accepted Dr Lobel's view that the contribution was negligible, leading to the affirmation of the Repatriation Commission's decision.

The legal issue before the court was whether the Tribunal was correct in finding that the contribution of Mr Graham's service to his skin condition was negligible. Mr Graham's counsel argued that the Tribunal's finding was not supported by the evidence, particularly as it did not align with Dr Florance's opinion. The court examined the use of the term "de minimus" in the context of negligible contribution and found that the Tribunal's decision was consistent with Dr Lobel's evidence. The court noted that while the finding may be harsh, it falls within the Tribunal's purview as findings of fact. The court concluded that the appeal could only proceed on the basis of a question of law, which was not present in this case. The court dismissed the appeal and ordered Mr Graham to pay the respondent's costs.

This decision highlights the importance of expert evidence in establishing causation in cases of veteran entitlements. The court emphasised that findings of fact by the Tribunal are not to be lightly disturbed, even if they result in a harsh outcome. The court also reiterated the principle that legislation concerning veterans' entitlements should be construed benevolently, but this does not allow for the setting aside of a Tribunal's decision based on evidence unless there is a question of law involved.

Orders