Repatriation Commission v Jordan, William Leslie - [1997] FCA 491

CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - veterans' entitlements - whether tribunal accepted as reasonable a hypothesis grounded on a fact denied or not raised by the material - whether tribunal failed to consider opposing material in considering validity of reasoning supporting hypothesis - whether tribunal accepted as reasonable a hypothesis that was no more than a possibility left open but not pointed to by the material - whether tribunal considered whether factual foundation for hypothesis disproved beyond reasonable doubt

Veterans' Entitlements Act 1986 ss 9, 24, 120

Administrative Appeals Tribunal Act 1975 s 44

Bushell v. Repatriation Commission (1992) 175 CLR 408

Byrnes v. Repatriation Commission (1993) 177 CLR 564

Lowerson v. Repatriation Commission (1994) 19 AAR 488

Stares v. Repatriation Commission (unreported, 24 July 1995, Jenkinson J.)

Bell v. Repatriation Commission (1992) 26 ALD 545

Repatriation Commission v. Owens (1996) 70 ALJR 904

REPATRIATION COMMISSION V. WILLIAM LESLIE JORDAN

NO. VG 87 of 1996

Judge:GRAY J.

Place:MELBOURNE

Date:6 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No. VG 87 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

REPATRIATION COMMISSION

Applicant

- and -

WILLIAM LESLIE JORDAN

Respondent

JUDGE: Gray J.

PLACE: Melbourne

DATE: 6 June 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal is dismissed.

The applicant pay the respondent's costs of the application.

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       )    No. VG 87 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

REPATRIATION COMMISSION

Applicant

- and -

WILLIAM LESLIE JORDAN

Respondent

JUDGE: Gray J.

PLACE: Melbourne

DATE: 6 June 1997

REASONS FOR JUDGMENT

The Repatriation Commission ("the Commission"), as applicant, has appealed from a decision of the Administrative Appeals Tribunal, in which it was determined that the aortic stenosis (narrowing or constriction of the aortic valve) suffered by William Leslie Jordan, the respondent, is a war-caused disease, within the meaning of s. 9 of the Veterans' Entitlements Act 1986 ("the Act"). The decision of the tribunal was given on 25 January 1996. It is to the effect that both Mr Jordan's aortic stenosis and his asthma are war-caused, that Mr Jordan is incapacitated from aortic stenosis and asthma, for which the Commonwealth is liable to pay a
pension in accordance with the Act, from 30 January 1993 and that, pursuant to s. 24 of the Act, Mr Jordan is eligible for payment of a pension at the special rate from 30 January 1993.

According to the facts found by the tribunal, Mr Jordan served in the airforce at Morotai and Labuan during World War II. On 4 March 1993, he underwent surgery for an aortic valve replacement. On 2 July 1993, he lodged an informal claim to have "heart-aortic valve replacement", "asthma" and "emphysema" accepted as…

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.

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Details

Case: [1997] FCA 491
Decision Date: 6 JUNE 1997

CaseChat Overview and Summary

The case of Repatriation Commission v William Leslie Jordan was heard in the Federal Court of Australia, where the Commission, as the applicant, appealed a decision of the Administrative Appeals Tribunal (AAT) regarding the eligibility of Mr. Jordan for a pension under the Veterans' Entitlements Act 1986. The tribunal had determined that Mr. Jordan's aortic stenosis and asthma were war-caused, leading to the entitlement of a pension at a special rate. The Commission argued that the tribunal erred in its acceptance of a hypothesis that was not supported by the evidence, failed to consider all relevant material, accepted a hypothesis that was not adequately supported by the evidence, and did not properly consider whether the factual foundation for the hypothesis had been disproved beyond reasonable doubt.

The Federal Court examined the application of section 120 of the Veterans' Entitlements Act 1986, which sets out the criteria for determining whether a disease or injury is war-caused. The Court noted that the tribunal's findings of fact could only be challenged if they resulted from an error of law, and that the question of whether a hypothesis was reasonable was a question of fact. The Court found that the tribunal's reasoning was not based on a non-existent fact, as it left open the possibility that Mr. Jordan had experienced a sore throat, which was one of the elements of the hypothesis presented by Dr. Rosenbaum. The Court also rejected the argument that the tribunal failed to consider all relevant material, as it had included a summary of the opposing evidence in its reasons. Furthermore, the Court held that the hypothesis accepted by the tribunal was grounded in the evidence before it and that the tribunal had properly considered the application of section 120(1) of the Act to the hypothesis.

The Court concluded that the appeal should be dismissed, and the Commission was ordered to pay Mr. Jordan's costs of the application. The decision highlights the importance of proper application of the statutory provisions and the need for the tribunal to consider all relevant evidence when determining whether a hypothesis is reasonable for the purposes of section 120 of the Act.

Orders