Repatriation Commission v Rogers

[1999] FCA 489

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Rogers (1999) FCA 489

VETERANS’ AFFAIRS – Death from bowel cancer – Whether war caused – Smoking – Whether causally related to war service – Statement of Principles – Construction – Tribunal’s failure to deal with party’s argument – Failure to provide reasons – Error of law.

Veterans Entitlements Act 1986 s 120(4), 120B(3), 196B(3)

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267 applied
Repatriation Commission v Smith (1997) 45 ALD 523 applied
Re Poyser and Mills’ Arbitration [1964] 2 QB 467 applied
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied
Dornan v Riordan (1990) 24 FCR 564 applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

REPATRIATION COMMISSION v WINIFRED JOAN ROGERS

VG 148 OF 1998

SUNDBERG J
22 APRIL 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 148 OF 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	WINIFRED JOAN ROGERS Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	22 APRIL 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal made on 17 March 1998 be set aside.

3.The decision of the applicant made on 6 July 1995 be affirmed.

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	VG 148 OF 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	WINIFRED JOAN ROGERS Respondent

JUDGE:	SUNDBERG J
DATE:	22 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. William John Rogers (“the veteran”) died on 15 September 1988 aged 70. His death certificate recorded the cause of death as “disseminated adenocarcinoma bowel‑ 1 month”. On 10 February 1995 the respondent, the veteran’s widow, lodged a claim to have his death accepted as war‑caused pursuant to s 8(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”), which provides that the death of a veteran is to be taken to have been war‑caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”. The claim was refused by a delegate of the Repatriation Commission and on review by the Veterans’ Review Board. The Board’s decision was set aside by the Administrative Appeals Tribunal which substituted a decision that the veteran’s service was war‑caused. The Commission appeals to this Court.

   THE LEGISLATION

2. The veteran served with the Australian Army within Australia from 13 September 1941 to 26 November 1945. He rendered “eligible war service” as that term is defined in s 7 of the Act. His service was not “operational service”, and thus whether his death was war‑caused depends on s 120(4), which provides that

   “the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, … decide the matter to its reasonable satisfaction.”

   Section 120B(3) provides that

   “In applying subsection 120(4) to determine a claim, the Commission is to be…