Repatriation Commission v Cedric Newson

[2008] FCA 401

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Cedric Newson [2008] FCA 401

DEFENCE AND WAR - veteran’s affairs – eligibility for receipt of pension – appeal from decision of the Administrative Appeals Tribunal that held that clinical onset of osteoarthrosis of the applicant’s right hip and both knees had been war-caused - Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B

STATUTORY INTERPRETATION – whether the Tribunal misconstrued and misapplied cll 5(j) and 5(k) of the Statement of Principles No 82 of 2001 – commencement date of period by which clinical onset of osteoarthrosis must have occurred – requirement in cl 4 of the Statement of Principles that the factors in cl 5 ‘must be related to any relevant service rendered by the person’ - Veterans’ Entitlements Act 1986 (Cth) s 196B

Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B, 196A, 196B

Repatriation Commission v Keeley (2000) 98 FCR 108

REPATRIATION COMMISSION v CEDRIC NEWSON
NSD 1539 OF 2007

EDMONDS J
31 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1539 OF 2007

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ISENBERG AND DOCTOR TOH (MEMBER)

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	CEDRIC NEWSON Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	31 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1539 OF 2007

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ISENBERG AND DOCTOR TOH (MEMBER)

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	CEDRIC NEWSON Respondent

JUDGE:	EDMONDS J
DATE:	31 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from part of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) namely, the part in which the Tribunal set aside the applicant’s (‘the Commission’s) decision in relation to osteoarthrosis of the right hip and both knees.  The Tribunal held that those conditions were war-caused and remitted the assessment of the respondent’s (Mr Newson’s) entitlement to the Commission.

2. The Commission’s notice of appeal puts the question of law raised by the appeal as being whether the Tribunal misconstrued and misapplied cll 5(j) and 5(k) of the Statement of Principles No 82 of 2001, made pursuant to s 196B of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’), by failing to take into account the requirement in cl 4 of the Statement of Principles that the various factors set out in cl 5 of the Statement of Principles ‘must be related to any relevant service rendered by the person’.

3. The grounds of appeal were put as being whether the Tribunal erred by interpreting and applying cll 5(j) and 5(k) of the Statement of Principles No 82 of 2001 as if it dealt with or included activity that…