Re: REPATRIATION COMMISSION And: RICHARD EDWARD BENDY No. NG1360 of 1988 FED No. 217 Administrative Law (1989) 18 ALD 144, (1989) 10 AAR 323
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Davies J.(1)
CATCHWORDS
Administrative Law - veterans' affairs - appeal from Administrative Appeals Tribunal - whether respondent's skin condition arose out of or was attributable to his war service - nature of causal nexus required - whether Tribunal applied correct test - whether Tribunal should have looked to additional sun exposure due to war service or to total sun exposure during war service.
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr G. Miller
Solicitors for the respondent: Legal Aid Commission of New
South Wales
ORDER
The subject decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.
Each party abide his or its own costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), given on 28 September 1988, which set aside a decision of the Repatriation Commission of 19 September 1983 and, in lieu thereof, ordered that there be substituted a determination that the Commonwealth of Australia was liable, pursuant to s.13 of the Veterans' Entitlements Act 1986 (Cth)("the VE Act") to pay to Richard Edward Bendy a pension for incapacity occasioned by the war-caused disease of solar hyperkeratoses and basal cell carcinoma as and from 3 March 1982 and that the matter be remitted to the Repatriation Commission to assess the rate of pension.
The question before the Tribunal, which had to be considered on the balance of probabilities in accordance with s.120(4) of the VE Act, was whether Mr Bendy's solar hyperkeratoses, a pre-cancerous skin condition, and his basal cell carcinoma, skin cancer, were, a war-caused disease as defined in s.9(1)of the VE Act, which provides inter alia:-
"Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if - ...
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any war service rendered by the veteran; ...
(e) the injury suffered , or disease contracted, by the veteran…
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.
The case of Repatriation Commission v Bendy involved a dispute between the Repatriation Commission and the respondent, Bendy, concerning the respondent's eligibility for benefits under the Veterans' Entitlements Act 1986 (Cth). The primary issue at hand was whether Bendy's skin condition was caused by or attributable to his war service. This matter was brought before the Federal Court of Australia, which was asked to review a decision made by the Administrative Appeals Tribunal (AAT).
The central legal issues revolved around the nature of the causal nexus required to establish a link between Bendy's skin condition and his war service. Specifically, the court needed to determine whether the Tribunal had applied the correct test in assessing the causation. The alternative approach proposed was whether the Tribunal should have focused on the additional sun exposure Bendy experienced due to his war service, rather than the total sun exposure during his war service. The crux of the appeal was the appropriate test for causation in the context of veterans' affairs and benefits.
The Federal Court held that the AAT had not applied the correct test for assessing causation. The court found that the AAT had not adequately considered the specific additional sun exposure Bendy was exposed to due to his war service, which could have been a significant contributing factor to his skin condition. As a result, the court concluded that the AAT's decision was flawed and set it aside. The matter was remitted back to the AAT to be re-evaluated with or without the hearing of further evidence. The court also ordered that each party bear their own costs associated with the proceedings.
In conclusion, the Federal Court determined that the AAT had misapplied the causation test in its assessment of Bendy's claim for benefits. By setting aside the AAT's decision and remitting the matter back for reconsideration, the court ensured that the appropriate test for causation was applied in future proceedings.
Orders
Orders of the court
The subject decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.
Each party abide his or its own costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.