Repatriation Commission v Bishop, Anna Demetruis

[1983] FCA 181

Re: REPATRIATION COMMISSION
And: ANNA DEMETRIUS BISHOP (1983) 77 FLR 277
No. WAG 41 of 1982
Repatriation - Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Repatriation - war widow's pension - death of former member of Armed Forces from chronic lymphocytic leukaemia - aetiology of disease unknown - whether death arose out of or was attributable to war service - whether appeal on a question of law - real or rational possibility of relationship between war service and disease - procedures under Act for dealing with claims

Repatriation Act 1920, ss.24AA(1), 24AA(2), 24AB, 27(1)(a), 107VZZH

Defence and War - Ex-servicemen - Pensions - Aetiology of disease unknown - Whether death arose out of or was attributable to war service - Real or rational possibility of relationship - Onus of proof - Repatriation Act 1920 (Cth), s 27(1)(a).

HEADNOTE

Held: Where the aetiology of a disease is unknown it does not follow, as a matter of law, that the body considering a pension claim could not be satisfied beyond reasonable doubt that the disease was not attributable to war service. To assume such a conclusion goes further than the Act and the authorities allow.

Repatriation Commission v Law (1981) 147 CLR 635; Repatriation Commission v Byrne (1981) 40 ALR 296; Lennell v Repatriation Commission (unreported, Federal Court, 3 February 1982), explained.

HEARING

Perth, 1983, July 19; August 5. #DATE 5:8:1983

APPEAL

Appeal from the Repatriation Review Tribunal pursuant to the Repatriation Act 1920 (Cth), s 107VZZH.

R S French and P J Kirby, for the appellant.

R J Meadows, for the respondent.

Cur adv vult

Solicitor for the appellant: B J O'Donovan, Deputy Commonwealth Crown Solicitor.

Solicitors for the respondent: Muir, Williams & Nicholson.

BAG

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal given on 26 July 1982 be set aside.

3. The respondent's claim be remitted to the Tribunal for determination in accordance with these reasons.

4. The appellant pay the respondent's costs of the appeal to be taxed.

Orders accordingly

JUDGE1

Section 107VZZH of the Repatriation Act 1920 gives to an applicant in a proceeding before the Repatriation Review Tribunal a right to appeal to the Federal Court "on a question of law, from any decision of the Tribunal in that proceeding".

The appellant appeals from a decision of the Tribunal given on 26 July 1982 setting aside a decision of the Repatriation Commission made 20 February 1981 and substituting therefore its own decision that the respondent's claim for a pension under the Act be allowed. Why the matter took so long to reach the Tribunal and thereafter to reach this court does not appear.

There are two grounds of appeal and they read:

"1. The Tribunal erred in law in holding that because the aetiology of a disease was unknown it could not be satisfied beyond reasonable doubt that there was not some relationship between war service and…