Jakab v Repatriation Commission

Case [2007] FCA 898

FEDERAL COURT OF AUSTRALIA

Jakab v Repatriation Commission [2007] FCA 898

VETERANS AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – consideration of whether the applicant contracted a defence‑caused disease, namely, Meniere’s Disease – reference to the Statement of Principles – reference to the Standard of Proof – discussion of s 119(1)(h) of the Veterans’ Entitlements Act 1986 (Cth)

Veterans’ Entitlements Act 1986, s 5D(2), s 68(1), s 69, s 70(1), s 70(5)(a), s 70(5)(d)(i), s 70(5)(d)(ii), s 119(1)(h), s 120(4), s 120B, s 196B(3), s 196B(14)

Repatriation Commissionv Smith (1987) 15 FCR 327
Repatriation Commission v Wedekind [2000] FCA 649
Lees v Repatriation Commission [2002] FCAFC 398
Re O’Brien and Repatriation Commission [2003] AATA 525

STEFAN GEORG JAKAB v REPATRIATION COMMISSION
QUD323 OF 2005

GREENWOOD J
13 JUNE 2007
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD323 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS M J CARSTAIRS, MEMBER

BETWEEN:

STEFAN GEORG JAKAB
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

13 JUNE 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The costs of and incidental to the application are reserved.

3.The applicant shall file and serve by 4.00pm, Tuesday, 19 June 2007 any comments or submissions in relation to the question of whether the applicant ought to be ordered to pay the costs of the respondent of and incidental to the application. 

4.The respondent is to file and serve by 4.00pm, Tuesday, 26 June 2007 any submissions in relation to the question of costs. 

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD323 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS M J CARSTAIRS, MEMBER

BETWEEN:

STEFAN GEORG JAKAB
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GREENWOOD J

DATE:

13 JUNE 2007

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Background

  1. The applicant Mr Stefan Jakab makes application pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) by way of an appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) affirming a decision of the Repatriation Commission that Mr Jakab’s Meniere’s Disease diagnosed in 1995 was not related to his period of eligible defence service. 

  2. Mr Jakab has been represented in relation to the application by a firm of solicitors. On the hearing of the appeal, a preliminary application was made by those solicitors for leave to withdraw and leave was granted. Mr Jakab supported that application and wished to make submissions on his own behalf in support of the appeal. Mr Jakab in that sense is self‑represented although some written submissions have been made by Mr Jakab’s former solicitors. In addition to those submissions, Mr Jakab made oral submissions raising a question of whether the AAT had regard to s 119(1)(h) of the Veterans’ Entitlements Act 1986 (Cth) (‘the V E Act’)…

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Details
AGLC
Jakab v Repatriation Commission [2007] FCA 898
Case
[2007] FCA 898
Decision Date

CaseChat Overview and Summary

In the case of Jakab v Repatriation Commission, the applicant, Mr Jakab, sought a review of a decision by the Repatriation Commission that he was not entitled to a pension under the Veterans' Entitlements Act 1986 (Cth). Mr Jakab argued that his Meniere’s Disease was a defence-caused disease due to his service in the Australian Defence Force, which would entitle him to a pension. The Court of Appeal was tasked with determining whether the Repatriation Commission's decision was legally sound, particularly in light of the evidence provided by Mr Jakab.

The primary legal issues before the Court were whether the Commission's determination that Mr Jakab's Meniere’s Disease was not attributable to his defence service was correct, and whether the Commission properly applied the standard of 'reasonable satisfaction' in making its decision. Additionally, the Court had to consider the relevance and weight of the medical evidence provided by Mr Jakab and the Commission's experts.

The Court examined the evidence, including the medical reports and expert opinions, and concluded that the Commission had correctly applied the statutory standard of'reasonable satisfaction'. The Court found that the evidence did not support Mr Jakab's claim that his Meniere’s Disease arose from or was materially contributed to by his service in the Defence Force. The Court emphasised that the statutory standard of 'reasonable satisfaction' required the Commission to be satisfied to a degree that would be acceptable in civil proceedings, and it held that the Commission's decision met this standard. Therefore, the Court dismissed Mr Jakab's application for review.

The Court also ordered that the costs of and incidental to the application be reserved, with specific deadlines set for Mr Jakab to file comments on whether he should pay the respondent's costs, and for the respondent to file submissions on the question of costs.

Orders

Orders of the court

1. The application is dismissed.

2. The costs of and incidental to the application are reserved.

3. The applicant shall file and serve by 4.00pm, Tuesday, 19 June 2007 any comments or submissions in relation to the question of whether the applicant ought to be ordered to pay the costs of the respondent of and incidental to the application.

4. The respondent is to file and serve by 4.00pm, Tuesday, 26 June 2007 any submissions in relation to the question of costs.

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

GREENWOOD J

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Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

In addressing these questions and in formulating these reasons, I have had close regard to the ‘T documents’ and in particular the reports of the doctors not for the purpose of conducting a review of the facts but in order to consider fully and comprehensively all of the matters put to the Court by Mr Jakab in the context of the questions to be resolved. In formulating these reasons although they are, of course, directed to the parties, I particularly have in mind Mr Jakab as a self‑represented litigant in the conduct of the appeal and in addressing the questions of law and factual matters relevant to the questions as formulated and in explaining the proper role of the Court in such an application. Considerations Sections 68(1), 69 and 70(1) of Part IV of the V E Act have the effect that the Commonwealth is liable to pay a pension by way of compensation to a person who has served continuous full time service as a member of the Defence Force after 6 December 1972 and before 7 April 1994; completed three years effective full time service and who has become incapacitated from a defence‑caused injury or a ‘defence‑caused disease’. Section 70(5) provides that a disease contracted by a member of the Defence Force shall be taken to be a defence‑caused disease if the disease arose out of or was attributable to any defence service of the member (s 70(5)(a)) or if the disease resulting in incapacity of the member was suffered or contracted during any defence service but did not arise out of that service (s 70(5)(d)(i)) or the disease was suffered or contracted before the commencement of the period of defence service or the last period of defence service and the disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the member being service rendered after the member suffered or contracted the disease (s 70(5)(d)(ii)). Mr Jakab served as a member of the Australian Army in the period 23 September 1963 to 22 September 1969. Mr Jakab provided service as a member of the Royal Australian Air Force between 30 November 1971 and 10 January 1986. Accordingly, Mr Jakab, subject to satisfying the requirements of the V E Act, has provided defence service as a member of the Royal Australian Air Force which would give rise to eligibility for a pension from the Commonwealth. Meniere’s Disease is a recognised disease for the purposes of s 5D of the V E Act. A reference to ‘incapacity from a defence‑caused disease’ is a reference to the effects of that disease and not a reference to the disease itself (s 5D(2)). Section 120(4) of the V E Act provides that in making any determination or decision in respect of a matter arising under the Act (including a claim for a pension based upon incapacity from a defence‑caused disease under Part IV of the V E Act), the statutory standard to be applied by the decision‑maker is a standard of ‘reasonable satisfaction’ which adopts all civil standard (Repatriation Commissionv Smith (1987) 15 FCR 327). That section is to be understood having regard to s 120B of the V E Act which identifies the use to be made of a Statement of Principles in determining whether the decision‑maker might be reasonably satisfied that a person has become incapacitated from a defence‑caused disease for the purposes of the V E Act.