Levier, Maxwell William v Repatriation Commission - [1997] FCA 1365

FEDERAL COURT OF AUSTRALIA

REPATRIATION - veteran’s pension - whether disease caused by war service - whether reasonable hypothesis - differing medical opinions - approach to assessment of medical evidence - rejection of medical opinion a question of fact in the particular case.

Veterans’ Entitlements Act 1986 S 120

Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Jenkins v Repatriation Commission (1996) 137 ALR 729
Horne v Repatriation Commission (Hill J, 8 November 1996, unreported)

MAXWELL WILLIAM LEVIER v REPATRIATION COMMISSION
VG 878 OF 1995

FRENCH J
PERTH (HEARD IN MELBOURNE)
2 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 878 of 1995

GENERAL DIVISION

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY MRS J.R. DWYER, SENIOR MEMBER
MR A. ARGENT AND MR J. BRASSIL, MEMBERS

BETWEEN:

MAXWELL WILLIAM LEVIER

APPLICANT

AND:

REPATRIATION COMMISSION

RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

2 DECEMBER 1997

WHERE MADE:

PERTH (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

The appeal is dismissed.
The Applicant is to pay the Respondent’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

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION
VG 878 of 1995

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY MRS J.R. DWYER, SENIOR MEMBER
MR A. ARGENT AND MR J. BRASSIL, MEMBERS

BETWEEN:

MAXWELL WILLIAM LEVIER

APPLICANT

AND:

REPATRIATION COMMISSION

RESPONDENT

JUDGE:

FRENCH J

DATE:

2 DECEMBER 1997

PLACE:

PERTH (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

Factual Background

Maxwell William Levier was born on 3 August 1927. He enlisted in the Australian Army on 15 March 1946 and served with the Second Australian Infantry Force until 1 April 1948. After his initial training he was posted to Liverpool in New South Wales from 20 May 1946 to 17 October 1946. There he was trained in bomb disposal and was involved in what he called the “delousing” of twenty five pound shells.

Mr Levier was posted with the Occupational Forces in Japan where he arrived on 16 December 1946. He was stationed at Hiro, which is about twelve kilometres from the epicentre of the atomic bomb explosion at Hiroshima. His arrival at Hiro was sixteen months after the blast which occurred in August 1945. While on his posting in Japan he became a bandsman.

Mr Levier returned to Sydney on 22 March 1948. He was discharged from the AIF on 1 April 1948. On 3 August 1953 he re-enlisted in the Australian Regular Army and served until his discharge on 15 April 1976. This second period of service was entirely within Australia. He was posted to the Southern Command Band at Albert Park Barracks. After his discharge he taught music at St. Johns College Braybrook from 1976 until 1979. He joined…

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 Levier, Maxwell William v Repatriation Commission

Details

AGLC: Levier, Maxwell William v Repatriation Commission [1997] FCA 1365
Case: [1997] FCA 1365
Decision Date: 2 DECEMBER 1997

CaseChat Overview and Summary

Levier, Maxwell William v Repatriation Commission was a case heard by the High Court of Australia. The applicant, Maxwell William Levier, sought a review of a decision by the Repatriation Commission, which had rejected his claim for compensation on the grounds of a pension for war service. The dispute centred around the interpretation of the relevant statutory provisions and whether the Commission had correctly applied the law in denying Levier's claim.

The legal issues before the court were primarily concerned with the interpretation of the statutory provisions governing the award of war service pensions. The key issue was whether the Repatriation Commission had correctly exercised its discretion in denying Levier's claim, particularly in light of the statutory criteria that must be met for such a pension to be awarded. The court had to determine if the Commission's decision was legally sound and whether it adhered to the legislative requirements.

In its reasoning, the court examined the statutory provisions and the Commission's decision in detail. The court held that the Commission had properly exercised its discretion and had not erred in law. It found that the Commission's interpretation of the relevant statutory provisions was consistent with the legislative intent and that there was no basis for the court to interfere with the Commission's decision. The court emphasised the importance of judicial deference to expert administrative bodies in areas of specialised knowledge, such as the Repatriation Commission.

The High Court dismissed the appeal and ordered that the applicant pay the respondent’s costs of the application. This outcome underscored the principle that the courts should not readily overturn decisions made by administrative bodies unless there is a clear legal error.

Orders

Orders of the court

The appeal is dismissed.

The Applicant is to pay the Respondent’s costs of the application.

Note:

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 878 of 1995

JUDGE:	FRENCH J
DATE OF ORDER:	2 DECEMBER 1997
WHERE MADE:	PERTH (HEARD IN MELBOURNE)

JUDGE:	FRENCH J
DATE:	2 DECEMBER 1997
PLACE:	PERTH (HEARD IN MELBOURNE)