FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Codd [2005] FCA 888
REPATRIATION COMMISSION v KATHLEEN M CODD
V 1152 of 2004
RYAN J
30 JUNE 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1152 of 2004
On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
KATHLEEN M CODD
RespondentJUDGE:
RYAN J
DATE OF ORDER:
30 JUNE 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application by way of appeal be allowed.
2. The decision of the Veterans’ Appeals Tribunal made on 20 August 2004 be set aside.
3.The matter be remitted to the Tribunal to be heard and determined according to law.
4.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1152 of 2004
On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
KATHLEEN M CODD
RespondentJUDGE:
RYAN J
DATE:
JUNE 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
This is an application by way of appeal from a decision of the Veterans’ Appeals Tribunal (“the Tribunal”) made on 20 August 2004. By that decision, the Tribunal set aside the decision of the applicant Repatriation Commission that the death of the late Ronald Kevin Codd (“the veteran”) was not war-caused and substituted a decision, that the death of the veteran was war-caused.
Background facts
The veteran had served in the Australian Army from 5 October 1942 until 9 August 1946. Between 2 January 1945 and February 1945 he served with 2/4 Dental Unit. He was then diagnosed with cognitive nystagmus and returned to Australia in February 1945. His service had been with the 2/1st Field Ambulance Service to which was attached a Dental Unit. Among the veteran’s war-caused disabilities were infected tonsils, chronic eczema and mild labile hypertension.
On 7 December 1968 the veteran was killed when a timber truck which he was driving was struck by a train at a level crossing at Benalla in country Victoria. At a subsequent coroner’s inquest there was evidence that the veteran’s view of the approaching train had been impaired or blocked by the rising sun. There was evidence to the effect that the concentration of alcohol in the veteran’s blood at the time of the collision was equivalent to that which would have been brought about by the consumption of one seven-ounce glass of beer. There was also evidence before the Tribunal from the respondent who had met the veteran in 1950 and married him on 16 August 1952. That evidence included these passages;
‘I understand from talking to Ron's family that he was a non-drinker before the war. I understand that he commenced drinking during his service. It is my recollection that he was a nervy man when I met him. I recall that from the beginning of our marriage he was…
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- Repatriation Commission v Codd [2005] FCA 888
- Case
- [2005] FCA 888
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CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal had correctly applied the law in determining that the veteran's death was war-caused. Specifically, the court needed to assess if the Tribunal had properly evaluated the evidence and considered the relevant statutory provisions and guidelines. The court also had to determine whether the Tribunal's decision was in accordance with the applicable law and if it contained any errors of fact or law.
The court found that the Tribunal had erred in its decision by not considering the Repatriation Commission's hypothesis about the veteran's Generalised Anxiety Disorder (GAD) and its applicability to the facts. The Tribunal failed to examine whether the hypothesis was reasonable and aligned with the statutory provisions. Furthermore, the court identified that the Tribunal had overlooked a key factor in the statutory guidelines concerning the onset of anxiety disorders following severe psychological stressors during service. The absence of evidence supporting the onset of relevant symptoms within the specified time frame constituted a separate error of law by the Tribunal.
In conclusion, the court held that the Tribunal's decision contained legal errors and did not follow the applicable law. The appeal was allowed, the Tribunal's decision was set aside, and the matter was remitted to the Tribunal for reconsideration according to law. No order for costs was made as the Repatriation Commission did not seek an order for the respondent to pay costs.
Orders
Orders of the court
1. The application by way of appeal be allowed.
2. The decision of the Veterans’ Appeals Tribunal made on 20 August 2004 be set aside.
3. The matter be remitted to the Tribunal to be heard and determined according to law.
4. There be no order as to costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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