Repatriation Commission v Patterson

[2006] FCAFC 165

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Patterson [2006] FCAFC 165

DEFENCE AND WAR – veterans’ entitlements – hypertension – whether reasonable hypothesis connecting hypertension to eligible war service

PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal – notice of contention – construction of – notice of contention not dealt with by primary judge – whether material before Tribunal capable of raising a reasonable hypothesis – whether notice of contention involved a reconsideration of the whole of the evidence before the Tribunal

Held: On its proper construction, the notice of contention invited a reconsideration of the whole of the evidence before the Tribunal. It was eminently open to the trial judge to remit that exercise to the Tribunal.

Veterans’ Entitlements Act 1986 (Cth), ss 9, 13, 120, 120A, 196B
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Federal Court Rules, O 53 rule 13

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

REPATRIATION COMMISSION v DAVID MITCHELL PATTERSON
VID 611 OF 2006

KIEFEL, SUNDBERG AND EDMONDS JJ
24 NOVEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 611 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	DAVID MITCHELL PATTERSON Respondent

JUDGES:	KIEFEL, SUNDBERG AND EDMONDS JJ
DATE OF ORDER:	24 NOVEMBER 200624 NOVEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The orders made by the primary judge be varied by adding an order that the appellant’s Notice of Contention be dismissed.

3.The appellant pay the respondent’s costs of the appeal.

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	VID 611 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	DAVID MITCHELL PATTERSON Respondent

JUDGES:	KIEFEL, SUNDBERG AND EDMONDS JJ
DATE:	24 NOVEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Background

1. Mr David Patterson served as a gunner supporting field infantry in the Australian Army for approximately nine months during the Vietnam War in 1971. His role largely took place in Nui Dat and Vang Tau, where he ate meals provided by the Army and also had access to the Army canteen. During this time, he started to consume beer and salty snack foods on a regular basis. He says this consumption was brought about by the stress and tension of his service work and by the hot and humid conditions in Vietnam. His consumption of alcohol and salted foods continued after his wartime service ended.

2. In 1978 Mr Patterson was diagnosed with hypertension. There are many factors that may lead to the development of hypertension. These include obesity, excessive alcohol consumption and excessive salt consumption.

3. Although Mr Patterson’s weight at the time of his discharge from the army was similar to that when he enlisted, he gained weight after his period of service in Vietnam and by the time of…