FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Dunn [2006] FCA 1703
VETERANS’ AFFAIRS – application by way of appeal - war widow’s pension – malignant neoplasm of prostate – war-caused death – Tribunal finding of liability based on evidence of deceased and rejection of evidence of expert - whether Tribunal in error in finding reasonable hypothesis raised – agreement on first three Deledio factors at Tribunal hearing – whether appropriate for contentions concerning third factor to arise for argument on appeal - whether material raising or pointing to connection of condition and death to operational service – whether material to satisfy elements of relevant statement of principle - whether failure to accord procedural fairness in relation to evidence of expert
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(i)(a), 33(i)(c), 44
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 9(1), 9(2), 13(1), 119, 119(h), 120(1), 120(3), 120(4), 120A, 120A(1), 120A(3), 126(1), 196B(14), 196B(14)(f)Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309
Burns v Repatriation Commission (1993) 177 CLR 569
Bushellv Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Caswell v Powell Duffryn Associated Collieries (1939) 3 All ER 722
Coulton v Holcombe (1986) 162 CLR 1
Dunn v Commission (2005) AAT 510
Kattenberg v Repatriation Commission (2002) 34 AAR 562; FCA 412
Lawrence v Kempsey Shire Council (1995) 87 LGERA 49
Maynard v Dabinett (1999) 29 MVR 512; NSWCA 295
R v Milk Board; Ex parte Tomkins [1944] VR 187
R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228
Re East and Repatriation Commission (1987) 16 FCR 517
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Sharkey and Repatriation Commission (1988) 15 ALD 783
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Owens (1996) 70 ALJR 904
Stead v State Government Insurance Commission (1986) 161 CLR 141
Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069
University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491REPATRIATION COMMISSION v DAWN ELEANOR DUNN
WAD 161 OF 2005NICHOLSON J
8 DECEMBER 2006
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 161 OF 2005
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
DAWN ELEANOR DUNN
Respondent
JUDGE:
NICHOLSON J
DATE OF ORDER:
8 DECEMBER 2006
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application by way of appeal be allowed.
2.The decision of the Administrative Appeals Tribunal made on 2 June 2005 be set aside.
3.The matter be remitted to the Tribunal for hearing and determination according to law.
4.The respondent pay the applicant’s costs of the application.
5.The respondent be granted a costs certificate pursuant to s 6(1) of the
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CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal had correctly applied the statutory provisions and SOP, and whether it had properly considered the relationship between Mr Dunn's operational service and his increased animal fat consumption. The court had to determine if the Tribunal's findings were legally sound and if procedural fairness was observed. The Commission contended that the Tribunal had failed to properly consider the statutory definition of "related to service" and had not addressed the connection between Mr Dunn's service and the prescribed factor of increased animal fat consumption.
The court found that the Tribunal had indeed erred in its interpretation of the statutory provisions and the SOP. The court noted that the Tribunal had not sufficiently considered the necessary connection between Mr Dunn's service and his increased animal fat consumption as required by the SOP. The court held that the Tribunal's findings were not supported by the evidence and that it had failed to apply the relevant legal principles correctly. Consequently, the court allowed the appeal, set aside the Tribunal's decision, and remitted the matter to the Tribunal for a new hearing and determination.
In light of the findings, the court ordered that the application by way of appeal be allowed, the decision of the AAT be set aside, and the matter be remitted to the AAT for rehearing. Additionally, the court ordered that the respondent, the Repatriation Commission, pay the applicant's costs of the application and be granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1. The application by way of appeal be allowed.
2. The decision of the Administrative Appeals Tribunal made on 2 June 2005 be set aside.
3. The matter be remitted to the Tribunal for hearing and determination according to law.
4. The respondent pay the applicant’s costs of the application.
5. The respondent be granted a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
I agree with the respondent that it cannot be said from the reasons of the Tribunal that no regard was had by the Tribunal to the matters now enumerated by the Commission. The Tribunal was neither obliged to enumerate all matters arising from the evidence in its reasons nor is it for this Court to say how the Tribunal was to weigh the various factors in the evidence before it. This ground is not made out.ERROR IN FINDING (OR NOT FINDING) A RELATIONSHIP BETWEEN THE RELEVANT FACTORS OF THE SOP AND MR DUNN’S OPERATIONAL SERVICE: GROUNDS 2 AND 3 Those grounds relate to the Tribunal’s reasoning in [106] set out above.Second ground: error in failing to make a finding that Mr Dunn’s increased level of animal fat consumption, to the level prescribed by SoP 5(c), was related to Mr Dunn’s operational service within the meaning of that term in s 196B(14). Clause 4 of the SoP requires that the factor relief on ‘be related to’ Mr Dunn’s relevant service. ‘Related to’ has the same meaning as ‘related to service’ in s 196B(14) of the VE Act: Kattenberg at [42]. The Commission submits that the ultimate finding made by the Tribunal was not of a relationship of any of the kinds contained in s 196B. In relation to ground 2 the respondent argues that, by its explicit references to s 196B(14) and Kattenberg in the paragraphs immediately preceding its conclusion in [106], the Tribunal demonstrated it was clearly aware of the operation of that section and the authority of Kattenberg. It is submitted that the Tribunal’s finding of relationship to service is implicit in its determination and its explanation of the requirements prescribed by cl 4 of the SoP. Further, the finding in [106] is explicit. It is not necessary, it is argued, for reasons to be lengthy or elaborate and for every fact leading or relevant to the ultimate decision, or the detailed chain of reasoning to be set out, provided the basis for critical findings is apparent on the fact of the reasons: Maynard v Dabinett (1999) 29 MVR 512; NSWCA 295 at [15]-[17] per Stein and Giles JJA. It is contended that the effect of the Commission’s submission is to seek to have the Court review the Tribunal’s finding of fact. The respondent contends that the Tribunal’s finding in [106] discloses no failure to apply the relevant legal principles to the facts before it in evidence. That is, it was a finding the Tribunal member was entitled to come to in preferring the evidence in support of Mrs Dunn’s application over the evidence of Dr English. The fact that the Commission has succeeded in establishing ground 1 necessarily entitles it to succeed on this ground also. Once the effect of the concession is set aside for the purposes of argument on this appeal and it is made clear that no material addressed the factor of connection in the manner required by SoP 5(c) and Deledio, it follows that the Tribunal’s finding in [106] was made without foundation or necessary accord with s 196B(14).Third ground: error in finding a relationship between SoP 5(c) and Mr Dunn’s operational service without considering whether some aspect of Mr Dunn’s eligible service was a contributing cause of that factor.