LORELLE LILLIAN LOWERSON v REPATRIATION COMMISSION
Nos. NG936 of 1992 and NG258 of 1993
FED No. 417/94
Number of pages - 22
Social Welfare And Services
(1994) 19 AAR 488
(1994) 33 ALD 385
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NEAVES(1), EINFELD AND BEAZLEY(2) JJ
CATCHWORDS
Social Welfare And Services - Veterans' affairs - Appeal from Administrative Appeals Tribunal - Application for pension upon death of veteran - Accepted that veteran had relevant operational service - Accepted that veteran suffering from alcoholism and a heart condition that were war-caused - Death resulting from injuries received when vehicle driven by veteran overturned - Whether material before Tribunal raised reasonable hypotheses that death caused by alcoholism or the heart condition - Whether it was open to Tribunal to be satisfied beyond reasonable doubt that factual foundation for hypotheses did not exist - Whether Court entitled to substitute its decision for that reached by Tribunal.
Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)
Veterans' Entitlements Act, 1986 (Cth), s.120
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Webb v Repatriation Commission (1988) 19 FCR 139
Gilbert v Repatriation Commission (1989) 10 AAR 73
Lahrs v Eichsteadt (1961) Qd R 457
HEARING
SYDNEY, 25 May 1993
#DATE 30:6:1994
Counsel and solicitors for the Mr M Maurice QC with Mr appellant
C Vindin instructed by Legal Aid Commission of NSW
Counsel and solicitors for Mr A. Robertson
the respondent instructed by the
Australian Government Solicitor
ORDER
The Court:
1. orders that the decision of the Administrative Appeals Tribunal
on 30 November 1992 be set aside
2. declares that the death of Robert Francis Lowerson was
war-caused within the meaning of s. 120(1) of the Veterans' Entitlements Act 1986
3. orders the parties to bring in short minutes of orders within
fourteen days concerning the amount of the pension to be paid and the date from which it is to be paid
4. orders, alternatively to 3 if there is no agreement thereon, that
the short minutes provide for the claim to be remitted to the Tribunal for the determination of those matters
5. orders the respondent to pay the applicant's costs
The Court orders that:
1. the application be dismissed
2. there be no order as to costs
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
NEAVES J I have had the advantage of reading the judgment to be delivered by the other members of the Court. In relation to matter numbered NG 936 of 1992, I agree that the approach which the Administrative Appeals Tribunal ("the Tribunal") took to the issue that arose for its determination was not consistent with the requirements of s.120 of the Veterans' Entitlements Act 1986 (Cth) ("the Act") as explained by the High Court of Australia in Bushell v Repatriation Commission (1992) 175 CLR…
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- AGLC
- Lowerson, L.L. v. Repatriation Commission [1994] FCA 417 ((1994) 19 AAR 488; (1994) 33 ALD 385)
- Case
- [1994] FCA 417
- Decision Date
CaseChat Overview and Summary
The legal issues at hand were whether the material presented to the Tribunal established reasonable hypotheses that the veteran's death was caused by his alcoholism or heart condition, and if it was open to the Tribunal to be satisfied beyond reasonable doubt that the factual foundation for these hypotheses did not exist. Additionally, the Court had to consider whether it was entitled to substitute its decision for that of the Tribunal.
The Court found that the Tribunal's decision was legally flawed, as it did not properly address the reasonable hypotheses raised by the material presented. The Court held that it was open to the Tribunal to be satisfied beyond reasonable doubt that the factual foundation for the hypotheses did not exist. The Court also determined that it was entitled to substitute its decision for that of the Tribunal in this case, as the Tribunal had not adequately addressed the relevant issues. As a result, the Court set aside the Tribunal's decision, declared the veteran's death to be war-caused, and ordered the parties to agree on the pension amount and payment date. If no agreement was reached, the matter was to be remitted to the Tribunal for determination.
Orders
Orders of the court
The Court:
1. orders that the decision of the Administrative Appeals Tribunal
on 30 November 1992 be set aside
2. declares that the death of Robert Francis Lowerson was
war-caused within the meaning of s. 120(1) of the Veterans' Entitlements Act 1986
3. orders the parties to bring in short minutes of orders within
fourteen days concerning the amount of the pension to be paid and the date from which it is to be paid
4. orders, alternatively to 3 if there is no agreement thereon, that
the short minutes provide for the claim to be remitted to the Tribunal for the determination of those matters
5. orders the respondent to pay the applicant's costs
The Court orders that:
1. the application be dismissed
2. there be no order as to costs
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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