Repatraition Commission v Stewart, Robert - [1984] FCA 181

Re: THE REPATRIATION COMMISSION
And: ROBERT STEWART
No. WA G17 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Repatriation - pension - whether incapacity resulted from occurrence during special service or arose out of or was attributable to war service - haemorrhoid - aetiology known - lack of medical evidence as to particular cause - multiple lipomata - aetiology unknown - whether connection between disease and particular factor necessarily excluded - necessity to have regard to all evidence

Repatriation Act 1920 ss. 107M, 107VH

Repatriation (Special Overseas Service) Act 1962 ss. 6,7

HEARING

PERTH

#DATE 2:7:1984

ORDER

The appeal be allowed to the extent that the decision of the Repatriation Review Tribunal dated 17 January 1984 that the Commonwealth is liable to pay to the respondent, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III of the Repatriation Act be set aside and that matter remitted to the Tribunal to be determined according to law.
Liberty to apply as to the costs of the appeal.

JUDGE1

On 17 January 1984 the Repatriation Review Tribunal set aside a decision of the Repatriation Commission given on 25 February 1982 and substituted its own decision that:

"1. the Repatriation Commission's rejection of the claim for incapacity from presbyopia be affirmed;

2. in respect of the possible further eye incapacity from serous retinopathy the proceeding be adjourned pursuant to Section 107VZ;

3. on and from 25 November 1981, and pursuant to section 6 of the Repatriation (Special Overseas Service) Act and section 107M of the Repatriation Act, the Commonwealth is liable to pay to Robert STEWART in respect of his incapacity from haemorrhoids and multiple lipomata, the pensions payable under Division 1 of Part III of the Repatriation Act on the incapacity of a Member of the Forces".

There is no appeal from the Tribunal's decision relating to the claim for incapacity from presbyopia or the possible further eye incapacity. But the Repatriation Commission appeals against the decision of the Tribunal that there is a liability for incapacity from haemorrhoids and multiple lipomata. The notice of appeal identifies as the questions of law raised on the appeal:

"(i) Whether the Repatriation Review Tribunal may find an entitlement to pension payable under Section 6 of The Repatriation (Special Overseas Service) Act 1962 and Section 107M of The Repatriation Act in the case of the incapacity of a member of the forces where the evidence does not disclose and alternatively the Tribunal does not find a real or rational possibility of a relevant relationship between the incapacity and the special service.

(ii) Whether in reaching its decision the Tribunal could and alternatively could in the circumstances of the case reject uncontradicted expert evidence.

(iii) Whether the Tribunal is at liberty to construe the effect of a decision of the High Court of Australia in a way inconsistent with subsequent decisions of the Federal Court of Australia on…

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 Repatraition Commission v Stewart, Robert

Details

AGLC: Repatraition Commission v Stewart, Robert [1984] FCA 181
Case: [1984] FCA 181
Decision Date: 02 JULY 1984

CaseChat Overview and Summary

In the case of Repatriation Commission v Stewart, the appellant sought to appeal a decision made by the Repatriation Review Tribunal, which had ruled that the Commonwealth was liable to pay a pension to the respondent due to incapacity caused by multiple lipomata. The respondent, a former serviceman, claimed that the incapacity resulted from his special service or arose out of or was attributable to his war service. The dispute was heard in the High Court of Australia.

The court was required to determine whether the incapacity suffered by the respondent, specifically from multiple lipomata, was a result of his service during the war. This involved considering the aetiology of the lipomata, which was unknown, and whether the lack of medical evidence as to the particular cause of the condition should exclude the possibility of a connection with the respondent's war service. The court also had to examine whether the connection between the disease and a particular factor could be necessarily excluded.

The court found that the Repatriation Review Tribunal had not properly considered all of the evidence available when making its decision. The High Court held that the tribunal should have taken into account all relevant evidence and not just the lack of medical evidence regarding the specific cause of the lipomata. Given that the aetiology of the condition was unknown, the court concluded that the tribunal should have considered whether the condition could have been caused by the respondent's war service. As a result, the appeal was allowed, and the decision of the Repatriation Review Tribunal was set aside. The matter was remitted to the tribunal to be determined according to law.

The final orders of the court included allowing the appeal to the extent that the decision of the Repatriation Review Tribunal was set aside and the matter was remitted for further consideration. The court also granted liberty to apply for the costs of the appeal.

Orders

Orders of the court

The appeal be allowed to the extent that the decision of the Repatriation Review Tribunal dated 17 January 1984 that the Commonwealth is liable to pay to the respondent, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III of the Repatriation Act be set aside and that matter remitted to the Tribunal to be determined according to law.

Liberty to apply as to the costs of the appeal.

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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