Hansell, I.H. v Repatriation Commission - [1992] FCA 712

Re: IAN HAMILTON HANSELL
And: REPATRIATION COMMISSION
No. N G719 of 1991
FED No. 712
Administrative Law
(1992) 16 AAR 339
(1992) 38 FCR 202

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - construction of ss 120(1) and (3) of the Veterans' Entitlement Act 1986 (Cth) - whether Administrative Appeals Tribunal correctly construed and applied ss 120(1) and (3) of the Veterans' Entitlement Act 1986 (Cth) in rejecting application for pension arising from claim by applicant that ischaemic heart disease arising from smoking was "war-caused" - whether Administrative Appeals Tribunal acted correctly by rejecting claim according to s 120(1) threshold.

Veterans' Entitlement Act 1986 - s 5, s 6, s 9, s 120(1), s 120(3)

Repatriation Commission v O'Brien (1985) 155 CLR 422

East v Repatriation Commission (1987) 16 FCR 517

Webb v Repatriation Commission (1988) 19 FCR 139

Gilbert v Repatriation Commission (1989) 86 ALR 713

Repatriation Commission v Lowerson (1989) 22 FCR 430

Repatriation Commission v Bushell (1991) 13 AAR 176

Repatriation Commission v Whetton (1991) 31 FCR 513

Law v Repatriation Commission (1980) 29 ALR 64

HEARING

SYDNEY

#DATE 22:9:1992

Counsel for the Applicant: Mr A. Hill

Instructed by: Vardanega Roberts

Counsel for the Respondent: Ms R. Henderson

Instructed by: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal affirming previous decisions of the Repatriation Commission and the Veterans' Review Board in relation to the applicant's claim for disability from ischaemic heart disease be set aside;

2. That the application be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with these reasons;

3. That the respondent pay the applicant's costs of the appeal.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal (the "Tribunal") given on 17 October 1991. The Tribunal set aside in part a determination of the Veterans' Review Board given on 18 August 1988. This determination had affirmed a previous decision of a delegate of the Repatriation Commission (the "Commission") given on 16 June 1986 which had rejected totally the applicant's claim that his existing conditions of ischaemic heart disease, cervical and lumbar spondylosis, left rotator cuff degeneration and osteoarthritis of the left knee were war-caused diseases within the meaning of s 9 of the Veterans' Entitlement Act 1986 (Cth) (the "Act").

By its decision the Tribunal allowed all the applicant's claims except for that in respect of ischaemic heart disease. It is against the disallowance of this claim that the applicant appeals to this Court.
The determination of this appeal requires yet another consideration of the construction and application of ss 120(1) and (3) of the Act. It is convenient to set out those provisions now:-<)6

"120 (1) Where a claim under Part II for a pension in respect of the incapacity from injury or…

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.

Keep reading for free

Create a free CaseChat account to read Hansell, I.H. v Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1992] FCA 712
Decision Date: 22 SEPTEMBER 1992

CaseChat Overview and Summary

In the case of Hansell, I.H. v Repatriation Commission, the applicant, a former member of the Australian Defence Force, appealed against the decision of the Administrative Appeals Tribunal (AAT) which dismissed his claim for a disability pension arising from ischaemic heart disease. The applicant contended that his condition was caused by smoking, which he took up as a result of his war service. The Federal Court was tasked with determining whether the AAT had correctly interpreted and applied sections 120(1) and (3) of the Veterans' Entitlements Act 1986 (Cth) in dismissing the applicant's claim.

The primary legal issue before the court was whether the AAT had properly interpreted and applied the statutory provisions in question when it rejected the applicant's claim. The court had to examine if the AAT correctly assessed the threshold requirements of section 120(1) and whether it was appropriate to reject the claim based on the statutory framework. This involved a detailed analysis of the legislative intent and the factual circumstances of the applicant's case to ascertain if they met the statutory criteria for a war-related disability pension.

The court found that the AAT had not adequately considered the legislative provisions in its decision-making process. It was determined that the AAT had applied an incorrect legal test in assessing the applicant's claim. The court held that the AAT's approach did not align with the statutory requirements, particularly in relation to the nexus between the applicant's smoking and his war service. Consequently, the court concluded that the AAT's decision was flawed and should be set aside. The matter was remitted back to the AAT for reconsideration in light of the court's findings. Additionally, the court ordered the respondent to pay the applicant's costs of the appeal, reflecting the significance of the error in the AAT's decision.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal affirming previous decisions of the Repatriation Commission and the Veterans' Review Board in relation to the applicant's claim for disability from ischaemic heart disease be set aside;

2. That the application be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with these reasons;

3. That the respondent pay the applicant's costs of the appeal.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.