Hill v Repatriation Commission

[2001] FMCA 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HILL v REPATRIATION COMMISSION [2001] FMCA 83

VETERANS AFFAIRS – Veterans entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether veteran’s lumbar spondylosis was war-caused – application of wrong Statement of Principles – whether error of law sufficient to allow appeal – whether correct procedure followed under s 120A of Veterans Entitlement Act 1986 (Cth) – meaning of ‘acute symptoms and signs’.

ADMINISTRATIVE LAW – Application of s 43(2B) of Administrative Appeals Tribunal Act 1975.

Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Gorton (2001) FCA 1194
Repatriation Commission v Williams (2001) FCA 1195
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) FCA 873
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 Commissioner of Taxation v Polla-Mounter (1995) 34 ATR 437
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Gosewinckel (1999) FCA 1273
Mason v Repatriation Commission (2000) FCA 1409
Grundman v Repatriation Commission (2001) FCA 892
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Administrative Appeals Tribunal Act 1975
Veterans’ Entitlements Act 1986

Applicant: JOHN ASHLEY HILL

Respondent: REPATRIATION COMMISSION

File No: MZ 435 of 2001

Delivered on: 26 October 2001

Delivered at: Melbourne

Hearing Date: 14 September 2001

Judgment of: McInnis FM

REPRESENTATION

Solicitor for the Applicant: Mr D De Marchi

Solicitors for the Applicant: De Marchi & Associates

Counsel for the Respondent: Ms A McMahon

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The appeal is dismissed.

2. The applicant pay the respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 435 of 2001

JOHN ASHLEY HILL

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant appeals from a decision of the Administrative Appeals Tribunal (“the AAT”) made on 14 March 2001. The appeal is pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2. The AAT considered a decision of the respondent that the applicant’s lumbar spondylosis was not “war caused” as defined in s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).

3. It is not in dispute that the applicant does suffer from lumbar spondylosis.  The applicant had claimed that this condition was one which should be accepted as “war caused”.  He made his claim on

   
   

   12 May 1998 and that claim was refused by the Repatriation Commission on 17 July 1998.  The decision of the Repatriation Commission was affirmed by the Veterans Review Board on

   
   

   20 September 1999.  It was from that decision that the applicant sought review to the AAT.

4. The applicant had enlisted in the Royal Australian Air Force on

   
   

   30 July 1952. He rendered “operational service” in Malaya with the RAAF between…