MR M.D.A. MAURICE, QC: If it please the Court, I appear with my learned friend, MR M.B. SMITH, on behalf of the respondent. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

BRENNAN CJ: Yes, Mr Ryan.

MR RYAN: If your Honours please. Your Honours, the Repatriation Commission seeks leave to appeal from the decision of the Full Court, and to ask this Court to again consider the provisions of section 120 of the Veterans’ Entitlements Act 1986.

GUMMOW J: That has now gone, has it not?

MR RYAN: It has not gone in the sense that it is still in the statute and it still governs what on my instructions are at least 600 cases at the Veterans’ Review Board and Administrative Appeals Tribunal level, so that there are many hundreds of veterans whose claims for entitlement will be governed by the provisions of section 123 prior to the recent amendments which came into effect on 1 June 1994.

GUMMOW J: Yes.

MR RYAN: Your Honour, I am also told there are cases at the primary level, as it is termed in the system, that is before the Repatriation Commission itself - difficult cases involving questions of scientific and medical opinion which will also be governed by the reaches of section 123.

GUMMOW J: Why is that?

MR RYAN: Because, quite often, I am told, there are delays in finalising applications which do involve difficult questions of science or medicine because attempts are made to obtain further reports from other experts and the like. So, there are some at the primary level but I cannot give your Honours a figure.

BRENNAN CJ: Mr Ryan, this Court has considered this problem on a few occasions now.

MR RYAN: Yes, your Honour.

BRENNAN CJ: Even if one acknowledges the proposition that in this case the majority of the Full Court got it wrong, would that justify a grant of special leave?

MR RYAN: We say yes, your Honours, because of the central importance of the correct interpretation of this section to the outstanding matters. Obviously, it is an important ‑ ‑ ‑

BRENNAN CJ: What do you say is the correct interpretation?

MR RYAN: We say that the correct interpretation is that section 123 does not permit a veteran to entitlement to a pension in circumstances such as those considered by the Full Court; namely, those where an acceptably eminent person in the field of medicine comes forward and says there might be…

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.

Continue reading Repatriation Commission v Owens

Details

AGLC: Repatriation Commission v Owens [1996] HCATrans 215
Case: [1996] HCATrans 215
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Repatriation Commission against a decision of the Full Federal Court, which had allowed an appeal by Mr Owens. The dispute concerned the interpretation of the *Veterans' Entitlements Act 1986* (Cth) (the Act) and, specifically, whether Mr Owens was entitled to a pension for a condition that arose after his discharge from service.

The central legal issue before the High Court was whether the phrase "incurred by him" in s 7(2)(b) of the Act required a direct causal link between the member's service and the onset of the incapacity, or if it was sufficient that the incapacity arose during the period of service. The court also had to consider the proper approach to determining whether an incapacity was "war-caused" under the Act.

The High Court, in a joint judgment, held that the phrase "incurred by him" in s 7(2)(b) of the Act required that the incapacity itself, not merely the factors contributing to it, must have arisen during the period of service. Their Honours reasoned that the statutory language indicated a need for the incapacity to have manifested or become apparent during service. The court affirmed that the test for determining whether an incapacity was war-caused involved a factual assessment of whether the service was a factor in the onset of the incapacity, even if not the sole factor.

The High Court allowed the appeal, setting aside the order of the Full Federal Court and remitting the matter to the Repatriation Commission for redetermination in accordance with the High Court's reasons.

Orders