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Iliopoulos v Repatriation Commission

Iliopoulos v Repatriation Commission

Case [2016] FCA 756 28 June 2016

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FEDERAL COURT OF AUSTRALIA
Iliopoulos v Repatriation Commission [2016] FCA 756

Appeal from: Iliopoulos and Repatriation Commission (Veterans’ entitlements) [2015] AATA 670

File number: VID 623 of 2015

Judge: PAGONE J

Date of judgment: 28 June 2016

Catchwords: DEFENCE AND WAR – Veterans’ Entitlements – Reasonable hypothesis test – Statement of Principles – No relevant Statement of Principles – Chronic irritable cough syndrome – Exposure to insecticides – Veterans' Entitlements Act 1986 (Cth)

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

Cases cited:
Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469

Australian Postal Corporation v Sellick & Anor (2008) 245 ALR 561

Bond & Ors v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Comcarev Forbutt [2000] FCA 837

Deledio v Repatriation Commission (1997) 47 ALD 261

Levier v Repatriation Commission [1997] FCA 1365

Patterson v Repatriation Commission (2006) 90 ALD 650

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Dunn (2006) 94 ALD 97

Repatriation Commission v Stares (1996) 41 ALD 212

Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103

Summers v Repatriation Commission (2015) 230 FCR 179

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152

Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511

Date of hearing: 27 April 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 29

Counsel for the Applicant: Mr D De Marchi of De Marchi & Associates

Counsel for the Respondent: Ms Z Maud

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 623 of 2015

BETWEEN:
GEORGE ILIOPOULOS

Applicant

AND:
REPATRIATION COMMISSION

Respondent

JUDGE:

PAGONE J

DATE OF ORDER:

28 JUNE 2016

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
PAGONE J:

Mr Iliopoulos has appealed pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision made by the Administrative Appeals Tribunal on 4 September 2015 which affirmed a decision of the Veterans’ Review Board refusing his application under the Veterans’ Entitlements Act 1986 (Cth) (“the Entitlements Act”).
Mr Iliopoulos was born on 13 May 1950 and enlisted in the Australian Army on 8 July 1970. He began operational service in South Vietnam on 12 May 1971, which he completed on 21 October 1971, and was discharged from the army on 7 January 1972. On 6 March 1973 he made a disability claim for peritendinitis which was accepted by the Repatriation Commission. On 5 November 2012 Mr Iliopoulos lodged a claim for an increase in the disability pension claiming to suffer from bronchial asthma and skin rashes. The Repatriation Commission decided on 16 April…

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 Iliopoulos v Repatriation Commission

Details

AGLC: Iliopoulos v Repatriation Commission [2016] FCA 756
Case: [2016] FCA 756
Decision Date: 28 June 2016

CaseChat Overview and Summary

In the case of Iliopoulos v Repatriation Commission, the Federal Court was tasked with considering an appeal by the veteran, Iliopoulos, against a decision of the Administrative Appeals Tribunal (AAT) that rejected his claim for compensation for chronic irritable cough syndrome. The veteran argued that his condition was caused by his exposure to insecticides during his service. The dispute centred on whether the veteran's claim could be substantiated under the applicable legislative framework, particularly given the absence of a relevant Statement of Principles.

The court was required to determine whether the veteran's condition could be linked to his exposure to insecticides, given the absence of a relevant Statement of Principles. This involved examining whether there was a reasonable hypothesis that the veteran's condition was caused by his service and whether the evidence provided was sufficient to meet the threshold required by the legislation. Specifically, the court had to consider whether the veteran had demonstrated that it was more likely than not that his condition was caused by his exposure to insecticides during his service.

The court found that the veteran had not provided sufficient evidence to establish a reasonable hypothesis that his chronic irritable cough syndrome was caused by his exposure to insecticides. The court held that the absence of a relevant Statement of Principles meant that the veteran had to demonstrate a causal link between his condition and his service with a high degree of probability. The evidence provided by the veteran was deemed insufficient to meet this burden of proof. Consequently, the appeal was dismissed, and costs were awarded to the Repatriation Commission.

The final orders of the court were that the appeal be dismissed with costs. The court's decision was based on the veteran's failure to establish a reasonable hypothesis that his chronic irritable cough syndrome was caused by his exposure to insecticides during his service, in the absence of a relevant Statement of Principles. The court's ruling emphasised the importance of the veteran providing compelling evidence to support his claim, which was not forthcoming in this instance.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Iliopoulos v Repatriation Commission [2016] FCA 756

Most Recent Citation

Hunt and Repatriation Commission (Veterans' entitlements) [2017] AATA 697

Cases citing this decision · 1 of 1 shown

Hunt and Repatriation Commission (Veterans' entitlements)
[2017] AATA 697 Para 15

…The Respondent referred me to the reasoning of the Federal Court in Iliopoulos v Repatriation Commission [2016] FCA 756 ( Iliopoulos ) in which, at paragraphs [10] - [12], the Court found: “ … The Tribunal would have erred if it had considered itself bound by an opinion of an expert “eminent” in the field without…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Iliopoulos and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 670

…COURT OF AUSTRALIA Iliopoulos v Repatriation Commission [2016] FCA 756 Appeal from: Iliopoulos and Repatriation Commission (Veterans’ entitlements) [2015] AATA 670 File number: VID 623 of 2015 Judge: PAGONE J Date of judgment: 28 June 2016 Catchwords: DEFENCE AND WAR – Veterans’ Entitlements – Reasonable hypothesi…
Summers v Repatriation Commission (No 3)
[2015] FCAFC 85

…on Commission v Stares (1996) 41 ALD 212 Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 Summers v Repatriation Commission (2015) 230 FCR 179 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 Waco v Minister for Immigration and Multicultural and Ind…
Summers v Repatriation Commission
[2015] FCAFC 36 Para 8

…Mr Iliopoulos relied upon Summers v Repatriation Commission (2015) 230 FCR 179 and Patterson v Repatriation Commission (2006) 90 ALD 650 in support of the submission that the Tribunal had imposed upon Mr Iliopoulos an impermissible onus. In Summers the Full Court considered that the language which had been used by th…
Australian Postal Corporation v Sellick
[2008] FCA 236 Para 1

…on of substance that was capable of affecting the outcome of a case if accepted: see Australian Postal Corporation v Sellick & Anor (2008) 245 ALR 561 at [89]. The Tribunal, however, was not obliged to deal with every argument raised or with every possibility that could be averted to. In Comcare v Forbutt [2000] FCA…
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63 Para 3

…r Iliopoulos of matters which had already been put in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [48]) or to disclose its mental processes or proposed conclusions (see Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469…
Repatriation Commission v Dunn
[2006] FCA 1703 Para 7

…and thereby qualifying the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 by reference to Dunn v Repatriation Commission [2006] FCA 1703 (2006) 94 ALD 97? The Tribunal said in its reasons that it could not assume the fact of connection when considering whether the hypothesis of connect…
Patterson v Repatriation Commission
[2006] FCA 538 Para 8

…Mr Iliopoulos relied upon Summers v Repatriation Commission (2015) 230 FCR 179 and Patterson v Repatriation Commission (2006) 90 ALD 650 in support of the submission that the Tribunal had imposed upon Mr Iliopoulos an impermissible onus. In Summers the Full Court considered that the language which had been used by the Tribunal in its reason…
Baker v University of Ballarat
[2005] FCA 99 Para 3

…s (see Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469, 499; Bond & Ors v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646, 664-5).…
WACO v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 171 Para 3

…In Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 the Full Court said at [42] that the Refugee Review Tribunal had “a duty to raise clearly with the appellant the critical issues on which his or her application might depend”. The same may be said to apply to the Tribunal i…
Comcare v Forbutt
[2000] FCA 837 Para 4

…cision and that its reasons did not require more than a statement of its findings and the basis upon which it reached them: see Comcare v Forbutt [2000] FCA 837 at [50]-[52]. The reasons of the Tribunal disclose its findings of fact, the evidence on which they were based and the logical process by which it moved…
Seltsam Pty Ltd v McGuiness
[2000] NSWCA 29 Para 1

…Epidemiological studies are not, by themselves, directed to the circumstances of an individual case. Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 explained the value of such studies. His Honour said, at 274 – 275: 79Evidence of possibility, including expert evidence of possibility expressed in…
Repatriation Commission v Webb
[1998] FCA 1411 Para 5

…lar the cases of Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 56 and Repatriation Commission v Webb (1998) 51 ALD 575? 4.Did the Tribunal impose an impermissible onus of proof on the Applicant to prove the hypothesis of connection between the conditions of Chron…
Levier, Maxwell William v Repatriation Commission
[1997] FCA 1365 Para 1

…it was bound to consider the evidence, including the evidence of Dr Burdon, for itself: see Bushell at 415; see also Levier v Repatriation Commission [1997] FCA 1365 at 19-20; and Repatriation Commission v Bey (1997) 79 FCR 364, 372-3. Brennan J had observed in Bushell at 430 that in considering the evidence for i…
Repatriation Commission v Bey
[1997] FCA 1347 Para 1

…e of Dr Burdon, for itself: see Bushell at 415; see also Levier v Repatriation Commission [1997] FCA 1365 at 19-20; and Repatriation Commission v Bey (1997) 79 FCR 364, 372-3. Brennan J had observed in Bushell at 430 that in considering the evidence for itself “the decision-maker [was] bound to have regard to its ow…
Deledio v Repatriation Commission
[1997] FCA 1047 Para 9

…the present, were governed by Statements of Principles. The significance of the difference between the two regimes was explained at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 274-5 where Heerey J said: The concept of “sound medical-scientific evidence” introduced by the 1994 amendments is a standard not unlik…
Byrnes v Repatriation Commission
[1993] HCA 51 Para 5

…ference to its historical and legal context, in particular the cases of Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 56 and Repatriation Commission v Webb (1998) 51 ALD 575? 4.Did the Tribunal impose an impermissible onus of proof on the Applicant to prove the hyp…
Bushell v Repatriation Commission
[1992] HCA 47 Para 5

…d failing to construe the phrase by reference to its historical and legal context, in particular the cases of Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 56 and Repatriation Commission v Webb (1998) 51 ALD 575? 4.Did the Tribunal impose…
Dornan v Riordan
[1990] FCA 383 Para 1

…r the Tribunal was not obliged to deal with every argument raised and every possibility that could be adverted to: Dornan v Riordan (1990) 24 FCR 564 at 567. It is not the duty of a judge to decide every matter which is raised in argument: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 N…
Bond & Ors v Australian Broadcasting Tribunal
[1988] HCATrans 225 Para 3

…In Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 the Full Court said at [42] that the Refugee Review Tribunal had “a duty to raise clearly with the appellant the critical issues on which his or her application might depend”. The same may be said to apply…
Ansett Transport Industries Ltd v Minister for Aviation
[1987] FCA 258 Para 3

…8 CLR 152 at [48]) or to disclose its mental processes or proposed conclusions (see Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469, 499; Bond & Ors v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646, 664-5).…
Public Service Board of NSW v Osmond
[1986] HCA 7 Para 1

…than that on an administrative decision-maker: Soulemezis at 261 per Kirby P, Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667 per Gibbs CJ. The issue before the Tribunal had been whether the war service of Mr Iliopoulos in Vietnam had caused his condition, not whether it had aggravated…
Repatriation Commission v Stares
[1996] FCA 1510 Para 8

…d in Dunn at [46], the fact to which the hypothesis must be addressed is not a fact to be assumed; see also Repatriation Commission v Stares (1996) 41 ALD 212, 217-218. Section 120(3) of the Entitlements Act effectively deems the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that a…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 1

…sufficient if a judge “apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahony JA. The obligation in this regard on a judge is higher than that on an administrative decision-maker: Soulemezis at 261 per Kirby P, Public…
Public Service Board of New South Wales v Osmond
(1986) 159 CLR 616 Para 1

…he obligation in this regard on a judge is higher than that on an administrative decision-maker: Soulemezis at 261 per Kirby P, Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667 per Gibbs CJ. The issue before the Tribunal had been whether the war service of Mr Iliopoulos in Vietnam had caused his condition, not whether it ha…

Legislation cited in this decision · 3

Veterans' Entitlements Act 1986 (Cth)
3 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention

Appeal from:	Iliopoulos and Repatriation Commission (Veterans’ entitlements) [2015] AATA 670
File number:	VID 623 of 2015
Judge:	PAGONE J
Date of judgment:	28 June 2016
Catchwords:	DEFENCE AND WAR – Veterans’ Entitlements – Reasonable hypothesis test – Statement of Principles – No relevant Statement of Principles – Chronic irritable cough syndrome – Exposure to insecticides – Veterans' Entitlements Act 1986 (Cth)
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) Veterans’ Entitlements Act 1986 (Cth)
Cases cited:	Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469 Australian Postal Corporation v Sellick & Anor (2008) 245 ALR 561 Bond & Ors v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646 Bushell v Repatriation Commission (1992) 175 CLR 408 Byrnes v Repatriation Commission (1993) 177 CLR 564 Comcarev Forbutt [2000] FCA 837 Deledio v Repatriation Commission (1997) 47 ALD 261 Levier v Repatriation Commission [1997] FCA 1365 Patterson v Repatriation Commission (2006) 90 ALD 650 Repatriation Commission v Bey (1997) 79 FCR 364 Repatriation Commission v Dunn (2006) 94 ALD 97 Repatriation Commission v Stares (1996) 41 ALD 212 Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 Summers v Repatriation Commission (2015) 230 FCR 179 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
Date of hearing:	27 April 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Applicant:	Mr D De Marchi of De Marchi & Associates
Counsel for the Respondent:	Ms Z Maud
Solicitor for the Respondent:	Australian Government Solicitor