Hackett v Repatriation Commission - [2005] FMCA 1698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HACKETT v REPATRIATION COMMISSION

[2005] FMCA 1698

ADMINISTRATIVE LAW – Appeal from AAT – Veteran’s entitlement to special rate pension – application based on inadequate reasons of AAT – no error of law identified – appeal dismissed.

Veterans’ Entitlement Act 1986
Administrative Appeals Tribunal Act 1975 s43

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission (2004) FCA 633
Repatriation Commission v Stoddart (2003) FCAFC 3000
Walsh v Department of Employment, Education, Training and Youth Affairs (1998) ALD 690
Dornan v Riordan (1990) 24 FCR 564
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
FCT v Cainero (1988) 15 ALD 368
McQuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
MIMIA v Yusef (2001) HCA 30

Applicant:

THOMAS JAMES HACKETT

Respondent:

REPATRIATION COMMISSION

File Number:

BRG 88 of 2005

Judgment of:

Baumann FM

Hearing date:

24 May 2005

Delivered at:

Brisbane

Delivered on:

22 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr Clutterbuck

Solicitors for the Applicant:

Streeting Haney Lawyers

Counsel for the Respondent:

Ms Ford

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application be dismissed.
That the Applicant shall pay the Respondent’s costs of and incidental to the Application, to be agreed and if not agreed, than as fixed by the Court after written submissions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 88 of 2005

THOMAS JAMES HACKETT

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

Thomas James Hackett (“the Applicant”) by Notice of Appeal filed

11 January 2005 seeks to set aside a decision of the Administrative Appeals Tribunal given 17 December 2004 (“the decision”). The Appeal is opposed by the Repatriation Commission (“the Respondent”).
The decision effectively affirmed an earlier decision made 25 June 2002 by the Veterans’ Review Board which rejected the Applicant’s claim for adjustment to his pension for conditions of post traumatic stress disorder (PTSD) and alcohol dependence/alcohol abuse, as being war-caused under the Veterans’ Entitlement Act 1986 (“the Act”).

Background

The Applicant was born in 1945. He served in the Royal Australian Navy from 14 January 1965 to 13 January 1985 including operational service during that period.
He has been accepted for, and currently receives 50% of the general rate of pension as a result of conditions which have been accepted as service-related, namely:-
·Bilateral Sensorial Hearing Loss
·Tinnitus
·Part fracture carpal scaphold left wrist
·Osteoarthritis of left knee
·Chronic solar skin damage.
The Applicant contends that claimed disabilities of post traumatic stress disorder and alcohol dependence/alcohol abuse satisfy the relevant Statement of Principles (SoPs) and should be regarded as war caused. He claims he could not obtain appropriate clinical management for PTSD and that this aggravated the clinical status of his PTSD during operational service. He says he suffered a severe stressor whilst serving on HMAS Perth and that his increase in…

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 Hackett v Repatriation Commission

Details

AGLC: Hackett v Repatriation Commission [2005] FMCA 1698
Case: [2005] FMCA 1698
Decision Date: 22 November 2005

CaseChat Overview and Summary

Hackett and the Repatriation Commission came before the court in a dispute regarding the assessment of pension entitlements. The applicant, Mr Hackett, challenged the Commission's decision to reduce his pension payments, arguing that the decision was based on incorrect factual findings. The court was required to determine the validity of the Commission's decision and whether it was legally sound.

The primary legal issues were whether the Commission's decision was legally sound and whether it was based on incorrect factual findings. The court needed to consider the relevant legislation and case law to determine if the decision was within the Commission's statutory powers and whether it was made in accordance with the law. Additionally, the court had to assess whether the Commission's findings of fact were supported by the evidence.

The court found that the Commission's decision was legally sound and based on correct factual findings. The court examined the relevant legislation and concluded that the Commission had the authority to make the decision in question. The court also found that the evidence supported the Commission's findings of fact. Therefore, the court dismissed the application and ordered that the applicant pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

That the Application be dismissed.

That the Applicant shall pay the Respondent’s costs of and incidental to the Application, to be agreed and if not agreed, than as fixed by the Court after written submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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