Henry, E.C Repatriation Commission

[1992] FCA 1047

Re: ELIZABETH CATHERINE HENRY
And: REPATRIATION COMMISSION
No. G 671 of 1991
FED No. 1047
Number of pages - 12
Administrative Law
(1992) 29 ALD 289

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal which affirmed decision of Repatriation Commission that death of applicant's husband was not war-caused - whether there was no evidence to support Tribunal's finding - whether Tribunal asked itself the wrong question - inadequate fact-finding to determine basis for Tribunal's conclusion

Veterans' Entitlements Act 1986 ss.5, 6, 120

East v. Repatriation Commission (1987) 16 FCR 517 at 532-3

Webb v. Repatriation Commission (1988) 19 FCR 139 at 141-2

Treloar v. Australian Telecommunications Commission (1990) 26 FCR 316

Repatriation Commission v. Whetton (1991) 31 FCR 513

Repatriation Commission v. Law (1980) 47 FLR 57 at 68; on appeal (1981) 147 CLR 635

Repatriation Commission v. Bendy (1989) 10 AAR 326

Repatriation Commission v. Hughes (1990) 13 AAR 34; (1991) 23 ALD 270

HEARING

SYDNEY, 14 August 1992

#DATE 21:12:1992

Counsel and solicitor : J Hamilton QC and A Hill
for the applicant instructed by Kenneth Harrison

Counsel and solicitor : R Henderson instructed by
for the respondent Australian Government Solicitor

ORDER

1. The decision of the Tribunal is set aside.

2. The matter is remitted to the Tribunal for reconsideration in accordance with the reasons for judgment.

3. The respondent is to pay the applicant's costs.

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

JUDGE1

EINFELD J. The applicant Elizabeth Catherine Henry appeals from alleged errors of law in a decision of the Administrative Appeals Tribunal given ex tempore on 4 October 1991 and confirmed by brief considered reasons on 7 November 1991. Mrs Henry is the widow of Paul Raymond Henry, a former veteran who had performed operational service as a member of the armed forces of Australia, as defined in sections 5 and 6 of the Veterans' Entitlements Act 1986. The late Mr Henry died from carcinoma of the colon on 31 January 1988. The Tribunal affirmed a decision of the respondent Commission that Mr Henry's death was not war-caused and that the applicant was not entitled to a war widow's pension under the Act.

1. The matter arises for decision under the much litigated section 120 of the Act which relevantly provides:
   

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ...

(3) In applying subsection (1) or (2) in respect…