Langley v Repatriation Commission

[1993] FCA 419

WALTER CHARLES LANGLEY v. REPATRIATION COMMISSION
No. G760 of 1992
FED No. 419
Number of pages - 27
Veteran's Affairs
(1993) 115 ALR 51
(1993) 17 AAR 487
(1993) 43 FCR 194, (1993) 30 ALD 8

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Spender(2) and Beazley(1) JJ

CATCHWORDS

Veteran's Affairs - Whether reasonable hypothesis that applicant's diabetes was a "war-caused disease" - whether Administrative Appeals Tribunal bound to accept that the applicant's diabetes was war-caused because of earlier Repatriation Commission finding that applicant's pancreatitis was war-caused - jurisdiction of Administrative Appeals Tribunal.

Administrative Appeals Tribunal Act 1975: s. 44

Veterans' Entitlements Act 1986: s. 120

Repatriation Act 1920: s. 47

HEARING

SYDNEY, 17 February 1993

#DATE 24:6:1993

Counsel for the Applicant: B Smith

Solicitors for the Applicant: Vardanega Roberts

Counsel for the Respondent: R M Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal that Walter Charles Langley's diabetes is not a war-caused disease be set aside.

2. Order 1 made by the Tribunal be varied so as to read as follows: "The Commonwealth of Australia is liable, pursuant to section 13 of the Veterans' Entitlement Act 1986 (as amended), to pay to Walter Charles Langley, pension for incapacity occasioned by diabetes and atherosclerosis with ischaemic heart disease and cerebrovascular disease as and from 16 May 1990."

3. The Repatriation Commission pay the costs of Walter Charles Langley of the proceeding in this Court.

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

JUDGE1

LOCKHART and BEAZLEY JJ This is an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal found that there was no sufficient material to raise any reasonable hypothesis connecting the applicant's diabetes with his war service. The appeal was brought pursuant to s. 44(1) of the Administrative Appeals Tribunal Act 1975. As the members of the Tribunal included its President (O'Connor J), the appeal was heard by a Full Bench of this Court (s. 44(3)(b)(i)) and is within the Court's original jurisdiction.

1. Prior to the hearing of the applicant's claim, the President had separately considered and determined the question whether the Tribunal was bound to accept that the diabetic condition from which the applicant was suffering was a "war-caused disease" within the meaning of the Veterans' Entitlements Act 1986 (Cth) ("the Act") by reason of an earlier determination made by the respondent, the Repatriation Commission, on 18 June 1984 that the applicant's pancreatitis was war caused. Her Honour found that the Tribunal was not so bound. Both that finding and the Tribunal's finding that it was satisfied beyond reasonable doubt that the applicant's diabetes was not war-caused is the subject of the appeal before us.

2. The relevant facts may be stated briefly. The applicant was born on 27 July 1922. He first enlisted in the army in 1940 and served two periods of…