Harris v Repatriation Commission M144/2001 - [2001] HCATrans 655

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2000

B e t w e e n -
TERRENCE JOHN HARRIS
Applicant
and
REPATRIATION COMMISSION
Respondent
Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 1.22 PM

MR D. DE MARCHI: If the Court pleases, I appear for the applicant. (of De Marchi & Associates)

MS E. FORD: I appear for the respondent with my learned friend, MS A.B. McMAHON. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, His Excellency the Reverend Dr Peter Hollingsworth Governor‑General of the Commonwealth of Australia in opening the Returned and Services League of Australia’s 86th National Conference on 5 September of this year said:

There can be no question that it is right and proper that those who have served in the Armed Forces of our country are treated thereafter with dignity and generosity –

Now the Prime Minister, at the same Conference, your Honour, said that it was an occasion for him:

to reaffirm the continued commitment of the government to the provision of generous benefits to Veterans of all conflicts in which Australia has been involved.

The Prime Minister further said:

our commitment to the maintenance of those benefits and the expansion and the improvement of those benefits remains firm and unswerving.

Your Honour, the Minister for Veterans Affairs, when he introduced the Budget Amendment Bill in 1984, said that the Bill defined:

by reference to such Statements of Principles, the concept of a “reasonable hypothesis”, as it appears in subsection 120(3) of the Veterans’ Entitlements Act.

He said that the facts of the case will not be a matter for the medical authorities, but will remain with the Commission and will continue to be subject to review and he said that:

There has not been a return to a civil standard of proof, as recommended by the Baume Committee, which would have had the potential to reduce the success rate claims –

In fact, your Honour, what is occurring over the decision of the Full Court on Harris and other decisions is that claims are defeated on the balance of probability because it does not appear to meet the exact wording required by the definitions in the Statements of Principles. What has happened is that the Statements of Principles have become the cart that drives the horse.

KIRBY J: This is a very long saga and your client has brought numerous applications, as is his right, at different stages of the appeal process, but is it correct, as said at 103, that it is open to your client to make a fresh application now and pursue the matter by way of fresh application in respect of any change that ‑ ‑ ‑

MR DE MARCHI: Yes, it is, your Honour.

KIRBY J: Well, why is…

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 Harris v Repatriation Commission M144/2001

Details

AGLC: Harris v Repatriation Commission M144/2001 [2001] HCATrans 655
Case: [2001] HCATrans 655
Decision Date: 14 December 2001

CaseChat Overview and Summary

The applicant, Mr. Harris, sought judicial review of a decision by the Repatriation Commission. The Commission had affirmed a determination that Mr. Harris was not entitled to a pension under the *Veterans' Entitlements Act 1984* (Cth) for a condition he claimed arose from his war service. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Repatriation Commission had correctly applied the provisions of the *Veterans' Entitlements Act 1984* (Cth) in assessing Mr. Harris's claim. Specifically, the Court was required to consider the interpretation and application of the "statement of principle" provisions within the Act, and whether the Commission had adequately discharged its statutory duty to consider all relevant evidence and make findings of fact.

McHugh and Kirby JJ, in their joint judgment, focused on the statutory obligation of the Commission to determine claims in accordance with the *Veterans' Entitlements Act 1984* (Cth). They emphasised that the Act requires the Commission to make a determination based on the available evidence and to provide reasons for its decision. The Court found that the Commission had failed to properly consider the evidence presented by Mr. Harris and had not adequately explained the basis for its rejection of his claim, thereby failing to comply with its statutory duties. The Court concluded that the Commission's decision was affected by an error of law.

Orders