Horne, Gladys v The Repatriation Commission - [1996] FCA 958

DEFENCE AND WAR - appeal from decision of the Administrative Appeals Tribunal upholding a decision of the Repatriation Commission refusing war widow's pension - connection between death of veteran and war service - Tribunal required to find death war-caused unless satisfied beyond reasonable doubt that no sufficient ground for so finding - Commission required to be so satisfied if of opinion that material does not raise reasonable hypothesis connecting death with war service - relationship between requirements - whether Tribunal may make assumptions in formulating hypothesis - whether verification of raised facts giving rise to the hypothesis necessary to the ascertainment of the hypothesis or only as to whether the hypothesis is accepted.

Veteran's Entitlements Act (Cth): s120.

Bushell v Repatriation Commission (1992) 175 CLR 408; discussed and applied.
Byrnes v Repatriation Commission (1993) 177 CLR 564; discussed and applied.
Gilbert v Repatriation Commission (1989) 86 ALR 713; referred to.
Repatriation Commission v Stares (Full Court, unreported, 28 May 1996); referred to.

GLADYS HORNE v THE REPATRIATION COMMISSION

No NG 698 of 1995

HILL J
SYDNEY
8 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 698 of 1995
  )
GENERAL DIVISION                  )

ON APPEAL FROM THE VETERANS' APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:GLADYS HORNE

Applicant

AND:THE REPATRIATION COMMISSION

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    8 NOVEMBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The matter be remitted to the Administrative Appeals Tribunal to be heard again in accordance with these reasons.

The respondent pay the applicant's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 698 of 1995
  )
GENERAL DIVISION                  )

ON APPEAL FROM THE VETERANS' APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:GLADYS HORNE

Applicant

AND:THE REPATRIATION COMMISSION

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    8 NOVEMBER 1996

REASONS FOR JUDGMENT

Mrs Horne appeals from the decision of the Administrative Appeals Tribunal, constituted by a Senior Member and two Members, affirming a decision refusing to her a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"), on the basis that the death of her husband had not been determined to be war-caused, within the meaning of s8 of the Act.

The case raises once again the familiar but difficult question of the application of ss120(1) and 120(3) of the Act and the relationship between them. It is submitted that the Tribunal, in coming to its conclusion, misapplied the principles established by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, notwithstanding that the Tribunal purported to apply the former and quoted extensively from the joint judgment of Mason CJ, Deane and McHugh JJ in that case.

Before turning to consider the way in which the Tribunal approached the…

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.

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Details

Case: [1996] FCA 958
Decision Date: 8 NOVEMBER 1996

CaseChat Overview and Summary

Gladys Horne appeals from a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Repatriation Commission to refuse her a war widow's pension. The refusal was based on the finding that her late husband's death was not war-caused, within the meaning of the Veterans' Entitlements Act 1986. The appeal raises issues concerning the correct interpretation and application of ss120(1) and 120(3) of the Act. The AAT erred in its approach to the task before it and misapplied the principles established by the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission. The AAT failed to appreciate that it could make assumptions, as the High Court had done, and did not approach the matter in the way required under ss120(1) and 120(3). The application must be remitted to the AAT for further consideration in accordance with the principles outlined in the judgment. The Repatriation Commission is ordered to pay the applicant's costs of the application.

Orders