Repatriation Commission v Beazley, Kenneth Norman

[1983] FCA 118

Re: REPATRIATION COMMISSION
And: KENNETH NORMAN BEAZLEY
No. G53 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Repatriation - Appeal from Repatriation Review Tribunal - Cause of medical condition producing incapacity unknown - Error of law conceded by respondent - Whether court should adjudicate to allow appeal - Whether appropriate to remit for rehearing.

Repatriation Act 1920 - s.107 VZZH

HEARING

SYDNEY

#DATE 22:6:1983

ORDER

1. The appeal is allowed.

2. The decision appealed from is set aside.

3. The matter is remitted to the Tribunal to be determined according to law, after the hearing of appropriate further evidence.

JUDGE1

This is an appeal to this court from a decision of the Repatriation Review Tribunal on a question of law pursuant to s.107 VZZH of the Repatriation Act 1920.

In its decision given on 16 February, 1983, the Tribunal decided to set aside the decision of the Repatriation Commission of 4 March, 1982 and to substitute the decision that the Commonwealth is liable to pay to Kenneth Norman Beazley a pension payable in accordance with the Repatriation Act 1920, in respect of incapacity resulting from carcinoma of colon and anxiety state with depression. This decision was to operate on and from 19 March, 1978.

When the matter was called on for hearing in this court, counsel for the parties indicated that counsel for the respondent conceded the error in law contended for by the applicant. Subsequently, counsel for the parties reduced their agreement in this behalf into writing in these terms:

"MATTERS AGREED UPON BY THE PARTIES The applicant and respondent agree that the Repatriation Review Tribunal erred in law in adopting the extract from Brown v Ors. v. Minister of Pensions quoted in its decision. It is agreed that this authority should have no application in Australia in a case where the cause of the medical condition producing the incapacity is unknown. In applying the said English authority the Repatriation Review Tribunal failed to follow the principle enunciated by the Full Federal Court in Lennell v. Repatriation Commission (unreported 3 February, 1982) as follows: '. . . It over-simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom. In our opinion the decisions in England in Judd v. Minister of Pensions (1966) 2 Q.B. 580 and Coe v. Minister of Pensions (1967) 1 Q.B. 238 have no application in Australia.' (Joint judgment of Northrop J. and Sheppard J. at p.15)

It is further agreed that the Repatriation Review Tribunal should have applied the principle stated at p.14 of the said judgment as follows:

'Before turning to the second submission we should say something of the Applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependents were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, not-with-standing that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service. We do not think that that approach ought to succeed here. We are of that opinion because of the amount of evidence which there is concerning the deceased's medical history and war service. We would consider such a general approach to be unhelpful and dangerous.'

It is further agreed that the Repatriation Review Tribunal should have applied the principle enunciated by Toohey J. at p.15 of his judgment in Lennell's Case as follows:

'I do not think it is inconsistent with Law's Case to say that it is only remotely possible that an unknown factor was war caused or related to war service and then go on, as the Tribunal did, to conclude: "We consider any such possibility as fanciful or tenuous." To say that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service.'

In the circumstances both parties seek the following orders:

1. That the decision of the Repatriation Review Tribunal be set aside.

1. That the case be remitted to the Repatriation Review Tribunal to be heard and decided again."

It appears that, in the circumstances, the court should at least embark upon a consideration of the question of whether there is, in truth, an error of law as submitted. Section 107 VZZH (4) provides that the court "shall hear and determine the appeal". This would appear to be the proper course, even if full argument is not necessary (see Pickford v. Incorporated Nominal Defendant (1981) V.R. 583 at p.586; Slaney v. Kean (1970) 1 Ch. 243).

Having read the authorities in this area, I am satisfied that the concessions made by counsel for the respondent were properly made.

I raised with counsel the possibility that the course adopted by Franki, J. in Repatriation Commission v. Paul Kupfer, unreported, 6 August, 1982, may be open here. There, the court declined to remit the matter to the Tribunal, notwithstanding that the Tribunal had made an error of law. His Honour said:

"at least in the absence of special circumstances this is the appropriate course to take where, if the tribunal had applied the law properly to the evidence then before it, it must have come to the conclusion to which it came. The fact that the tribunal misapplied the law does not necessarily require this court to remit the matter to it to be heard and decided again."

However, in the present case it is conceded by counsel for the respondent that there is little, if any, medical evidence to support a finding in favour of his client. It follows that this is not a case where the court should simply dismiss the appeal. Counsel for the respondent did not suggest otherwise.

The orders I make are as follows:
1. The appeal is allowed.
2. The decision appealed from is set aside.
3. The matter is remitted to the Tribunal to be determined according to law, after the hearing of appropriate further evidence.