Hardcastle v Repatriation Commission -

[2001] FMCA 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Kenneth Hardcastle v Repatriation Commission [2001] FMCA 42

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Error of law s 44 Administrative Appeals Tribunal Act 1975 (Cth) -REPATRIATION – Entitlement to Pension – Hypertension – whether war caused – whether Applicant’s service related ingestion of salt supplements satisfies requirement of factor (c) of the SoP – Appeal dismissed – No error of law

Repatriation Commission vSmith (1987) 15 FCR 327 at 335 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Veterans Entitlements Act 1986 (Cth) ss 7, 8, 9,120(4), 120B(b)
Statement of Principles Instrument No 65 of 1998
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Applicant: Kenneth Hardcastle

Respondent: Repatriation Commission

File No: MZ278 of 2001

Delivered on: 29^th June 2001

Delivered at: Melbourne

Hearing Date: 25^th May 2001

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr G Chancellor

Solicitors for the Applicant: Williams Winter & Higgs

Counsel for the Respondent: Mr P Hanks QC

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed

2. The Applicant shall pay the Respondent’s costs to be taxed in default of agreement.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ278 of 2001

KENNETH HARDCASTLE

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. The Applicant appeals from a Decision of the Administrative Appeals Tribunal constituted by Senior Member Mrs J Dwyer delivered on 18 August 2000.

2. The Tribunal had affirmed a Decision under review which was a Decision by the Veterans Review Board (VRB) dated 13 August 1999.  The VRB had affirmed a Repatriation Commission Decision of 10 September 1998 which had found that hypertension and trigeminal neuralgia were not war caused diseases within the meaning of that term in s 9 of the Veterans Entitlements Act 1986 (the Act) and did not satisfy the requirements of the Statement of Principles Instrument No 65 dated 18 April 2001 (the SoP).

3. The notice of appeal set out five grounds upon which the Applicant had relied.  At the hearing however the Applicant pursued three of those grounds namely:-

   a)The Tribunal failed to properly apply relevant principles to the interpretation and application of section 120B of the Act and the SoP;

   b)The Tribunal failed to identify in its reasons why or in what circumstances the assessment of salt added as a supplement in accordance with the SoP is to be calculated and in particular whether that SoP supplement is confined to salt added by the Applicant personally, by a person or persons cooking his meals or in some other and what circumstances;

   e)the Tribunal failed to identify whether some or all of the salt supplements as required by the SoP

   i)need be related to relevant service; and/or

   ii)be at a level after service which can be greater than the level ingested prior to service.

4. Counsel for the Applicant at the hearing adopted the Applicant’s Contentions of Fact and Law dated 26^th April 2001 which had been prepared by other Counsel.…