Repatriation Commission v Hughes, S.M

Re: THE REPATRIATION COMMISSION
And: STELLA MARGARET HUGHES
No. G114 of 1990
FED No. 729
Administrative Law - Veterans Affairs
13 AAR 34

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Tribunal addressed only part of the issue to be determined - whether error of law

Veterans Affairs - veteran died from carcinoma caused by smoking - whether veteran's smoking habit attributable to his war service.

Administrative Appeals Tribunal Act 1975 (Cth) - s.44

Veterans' Entitlements Act 1986 (Cth) - ss.6(1), 8, 120

HEARING

SYDNEY

#DATE 14:12:1990

Counsel for the applicant: Mr G.K. Downes QC and Miss R.M. Henderson

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr J.P. Hamilton QC and Mr A.L. Hill and Mr

A.J. Clout

Solicitor for the respondents: Mr Kenneth Harrison

ORDER

The application be dismissed with costs.

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

JUDGE1

On 8 November 1990, I gave judgment in this matter and handed down reasons for judgment. Subsequently, before the order was taken out, it was brought to my notice that I had overlooked s.6(1)(d) of the Veterans' Entitlements Act 1986 (Cth)("the Act"), by virtue of which provision the whole of the veterans' war service was deemed to be operational service for the purposes of the Act. On 22 November 1990, I therefore vacated the order made on 8 November and withdrew my reasons. The reasons which I now deliver adopt much of what was said in the prior reasons but reflect the effect of s.6(1)(d) of the Act.

1. This is an appeal from a decision of the Administrative Appeals Tribunal which held that the death of Russell Robinson Hughes was war-caused for the purposes of the Act.

2. An appeal from the Administrative Appeals Tribunal is, under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), limited to a question of law. Three errors of law have been proposed. It is said that the Tribunal posed the wrong question to be answered, or more strictly that it posed as the question to be answered only a part of that question; secondly, that the Tribunal stated no reasons in relation to that part of the issue which it did not discuss; and thirdly, that in relation to that part of th issue which the Tribunal did not discuss, there was no evidence to justify the Tribunal's finding.

3. In its reasons for decision, the Tribunal made no reference to the statutory provisions which governed the substantive right to a pension or to the standard of satisfaction which the Tribunal was required to reach. Moreover, the Tribunal did not fully state the substantive issue before the Tribunal for, accepting that Dr Hughes' smoking habit had contributed to his death from carcinoma, it did not discuss whether his smoking habit was attributable to his war service, merely whether it developed before or during…