Re: JOHN DAVID O'BRIEN
And: THE REPATRIATION COMMISSION (1984) 1 FCR 472
No. NSW G64 of 1983
Repatriation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Keely(2) and Fitzgerald(2) JJ.
CATCHWORDS
REPATRIATION - pension - former member of Royal Australian Air Force suffering from essential hypertension - stress suffered during period of war service and development of consequential anxiety neurosis - whether incapacity arising out of war service - Tribunal's failure to provide adequate reasons constituting error of law - statutory standard of proof - Tribunal required to be satisfied beyond reasonable doubt of a negative - proposition that Tribunal should be satisfied beyond reasonable doubt that there is no connection between war service and incapacity unless there is something in material pointing to possibility real as distinct from fanciful of such a connection which is not disproved by other material not a principle of law of general application - "real" possibility of existence of fact may be left open on material although nothing in material pointing to that possibility - nature of statutory process - whether investigatory - difficulty of obtaining satisfaction beyond reasonable doubt in the face of conflicting expert opinions.
Repatriation Act 1920, ss. 23, 24Aa, 24AA(1)(b), 24AB, 24Ab(3)(a), 47, 47(2), 48, 101, 101(1)(b), 101(1A), 101(2)(b), 107VG, 107VG(b), 107VH, 107VH(2), 107VZ, 107VZZB
Administrative Appeals Tribunal Act 1975, sub-s. 43(2)
Income Tax Assessment Act 1936, s.190
Repatriation - Entitlement to pension - Applicant suffering from hypertension - Stress suffered and anxiety state developed by applicant during period of war service - Whether incapacity "has arisen out of" or "is attributable to" war service - Rejection of claim by Tribunal - Error of law - Claim to be sustained unless Tribunal able to be satisfied beyond reasonable doubt that there are insufficient grounds for granting claim - Onus of proof - Quality of casual relationship required - Conflict of expert evidence - Nature and operation of statutory process - Repatriation Act 1920 (Cth), ss 47, 101, 107VH.
HEADNOTE
Section 101 of the Repatriation Act 1920 (Cth) provides:
"(1) Upon the incapacity or death -
(a) . . .
(b) of any member of the Forces whose incapacity or death has arisen out of or
is attributable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:
Provided that . . . . "
The applicant served in the Royal Australian Air Force during 1942-1946 but only within Australia. Throughout his war service he suffered stress occasioned by his inability to live with his wife who had serious difficulty in coping with the separation and caring for children in unfavourable living conditions. Concern for his family prevented him from serving overseas which he otherwise felt compelled to do by the attitude of his co-workers in the civilian job to which he wished to return after the war. According to…
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- AGLC
- O'Brien, John David v The Repatriation Commission [1984] FCA 87 ((1984) 1 FCR 472)
- Case
- [1984] FCA 87
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included the standard of proof required by the Tribunal in such cases, specifically whether the Tribunal must be satisfied beyond reasonable doubt that there is no connection between the war service and the incapacity, or if there must be some evidence pointing to a real possibility of such a connection. Additionally, the court had to consider the nature of the statutory process and whether it is inherently investigatory, which may affect the difficulty in obtaining satisfaction beyond reasonable doubt in the presence of conflicting expert opinions.
The court found that the Tribunal's failure to provide adequate reasons for its decision constituted an error of law. It ruled that the proposition that the Tribunal should be satisfied beyond reasonable doubt of a negative connection between the war service and the incapacity unless there is something in the material pointing to a real possibility of such a connection, which is not disproved by other material, is not a principle of law of general application. The court emphasised that a real possibility of the existence of a fact may be left open on the material even if nothing in the material points to that possibility. Given the inherent difficulties in obtaining satisfaction beyond reasonable doubt in the face of conflicting expert opinions, the court concluded that the Tribunal's decision was flawed.
The appeal was allowed, the decision of the Administrative Appeals Tribunal was set aside, and the appellant's claim was granted. The court ordered that the respondent pay the appellant's taxed costs of and incidental to the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal dated 15 March 1983 be set aside and the appellant's claim be granted.
3. The respondent pay the appellant's taxed costs of and incidental to the appeal.
Appeal allowed with respondent to pay appellant's costs.
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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