Repatriation Commission v Proctor, James Ellison

[1998] FCA 609

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal  (“the AAT”) – whether error of law in the AAT’s reasoning – whether the AAT failed to give adequate reasons for its decision.

VETERANS’ ENTITLEMENTS – whether respondent suffering from a war-caused disease – whether respondent rendered “operational service” – whether respondent’s service can be characterised as full-time continuous service “outside Australia” – meaning of expression “outside Australia” – AAT required to determine “the essential character” of respondent’s service.

Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2B), 44
Veterans’ Entitlements Act 1986 (Cth), ss 5C, 6(1)(a), 9, 13, 120
Seas And Submerged Lands Act 1973 (Cth), ss 7, 16(1)
Acts Interpretation Act 1901 (Cth), s 15B

Repatriation Commission v Kohn (1989) 87 ALR 511, applied

REPATRIATION COMMISSION v

JAMES ELLISON PROCTOR
NG 8 of 1998

BRANSON J
SYDNEY
5 JUNE 1998 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8  of  1998

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JAMES ELLISON PROCTOR RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		5 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal be set aside.

2. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again without the hearing of further evidence.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8 of 1998

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JAMES ELLISON PROCTOR RESPONDENT

JUDGE(S):	BRANSON J
DATE:	5 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the AAT”) delivered on 17 December 1997.   Such an appeal is an appeal on questions of law only.

The decision of the AAT set aside an earlier decision of the Veterans’ Review Board which had affirmed a decision of the Repatriation Commission that the adenocarcinoma of the prostate of the respondent (“Mr Proctor”) is not a war-caused disease.   The AAT substituted for the decision of the Veterans’ Review Board a decision that Mr Proctor’s adenocarcinoma of the prostate is war-caused with effect from 6 October 1942 and remitted the matter to the Repatriation Commission for assessment of incapacity.

Crucial to the decision of the AAT was its finding that Mr Proctor had rendered “operational service” within the meaning of s 6 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). This finding brought into play the standard of proof provision of s 120(1) of the Act. Such standard of proof provision is significantly more favourable to a claimant for a pension than the standard of proof provision of s 120(4) which would have applied in the absence of a finding that Mr Proctor had rendered “operational service” within the meaning of s 6 of the Act.

BACKGROUND FACTS

This outline of Mr Proctor’s relevant war service is…