Repatriation Commission v Brooke, Lillian - [1984] FCA 377

37 7

I N THE FEDERRL COURT

AUSTRALIA

)

NEY SOUTH WIILES DISTRICT REGISTRY )

No. G 06 o f 1902

GENERAL

D I V I S I O N

)

I N THE MATTER OF t h e

R e p a t r l a t l o n	A	c	t	1 9 2 0
BETWEEN:

THE REPATRIATION

COMMISSION

A p p e l l a n t

L I L l I A N

BROOKE

Respondent

O X D B

JUDGE

MRKING ORDER:

E u a t t J

DATE OF ORDER:

Nouember ,

1984

WHERE MADE'

Sydney

THE COURT

ORDERS

THAT.

1 . The a p p e a l here ln be dismissed

U?,

l k4.4

2. The decislon of the Repatriation Tribunal made 29 March 1982 be confirmed.

3 .

The

Appellant

Commission

pay

the

Respondent's

costs

accordance

with

sl07UZZK

o f

the

Repatriation

Act

1920.

FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

NO. G 86 Of 1982

DIVISION

GENERAL

)

IN THE MATTER OF the Repatriation Act 1920

BETWEEN :

THE REPATRIATION COMMISSION

Appellant

LILLIAN BROOKE

Respondent

CORAM

Evatt

22 November 1984

REASONS FOR JUDGMENT

This is an appeal brought

by the Repatriation

Commission pursuant to

sl07VZZH of the Repatriation Act

1920,

(hereinafter called the "Act"). from the decision

of	the Repatriation Review Tribunal, (hereinafter called

the "Tribunal"), made 29 March 1982 which decision set

aside

the

Repatriation

Commission's

decision

dated

September 1979 and substituted therefor

a determination

that the death of Robert Talbot Brooke be accepted under

8 2 4

the

Act

being

"related

war

service"

effective on and from 9 March 1978.

The Respondent to the Appeal is Lillian Brooke.

the widow

Robert Talbot Brooke (hereinafter called

the. deceased).

For convenience, the decision

of the Tribunal

is set out in full:-

"Mr Brooke died

on 30 January 1978 and

on 9

June

1978

R patriation

the

C mmission

received a letter

from

the

Applicant,

(the

Respondent to this Appeal). claiming that her

husband's death was due to his war service.

A formal claim was subsequently lodged	on 27
July 1978.

The

Applicant's

claim

was

rejected

Repatriation Board on 20 November 1978 and an

appeal

the

Repatriation

Commission

was

disallowed on 4 September 1979.

The late member was born

on 11 August 1899.

He served in the Australian Army on full-time

duty from 27 July 1917 to

13 September 1919

and by reason of this service is eligible for consideration purposes the for of Repatriation legislation under the provisions

of Section 24 of the Repatriation Act

1920.

The death certificate in respect

the late

member recorded the cause

of death as:

"heart

failure

due

congestive

cardiac

failure:

also,

carcinoma

bladder and prostate."

On 26 October 1978 Dr

Locke. a departmental

medical officer. provided

report in respect

of	the late memberls death. Dr Locke's report

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 Repatriation Commission v Brooke, Lillian

Details

AGLC: Repatriation Commission v Brooke, Lillian [1984] FCA 377
Case: [1984] FCA 377
Decision Date: 22 Nov 1984

CaseChat Overview and Summary

The Repatriation Commission appealed against the decision of the Repatriation Review Tribunal, which had accepted the claim of Lillian Brooke, the widow of Robert Talbot Brooke, that his death was related to his war service under Section 24 of the Repatriation Act 1920. The Tribunal had set aside the Commission's decision that rejected the claim. The Commission argued that the Tribunal erred in its decision and did not discharge the onus of proof required by Section 107VH of the Act. They also claimed that the Tribunal failed to consider certain medical evidence and did not exercise its powers under Section 107VZ(1) to obtain further evidence. The Court was required to determine whether the Tribunal's decision was correct and whether the Commission had discharged the onus of proof as required by the Act.

The Court found that the Tribunal's decision was correct and dismissed the appeal. The Court held that the onus of proof was on the Commission to satisfy the Tribunal beyond reasonable doubt that the cause of death was not related to war service, and the Commission had not discharged this onus. The Court rejected the Commission's argument that the Tribunal had erred in failing to accept the only uncontradicted medical evidence before it. The Court also held that the Tribunal was not obliged to request further evidence to fill a gap in the evidence and that its failure to do so did not amount to an error of law. The Court found that the sentence in the Tribunal's reasons, which suggested that there could be causal factors related to war service that had not yet been determined, was not a finding of fact and did not form a basis for the Tribunal's determination. The Court affirmed the decision of the Tribunal and ordered the Commission to pay the Respondent's costs in accordance with Section 107VZZk of the Act.

Orders