Rickaby v Repatriation Commission

[2001] FCA 971

FEDERAL COURT OF AUSTRALIA

Rickaby v Repatriation Commission [2001] FCA 971

DEFENCE AND WAR – veteran’s entitlements – error of law whether Tribunal failed to apply the correct statutory test – whether Tribunal omitted to appraise testimony of veteran and of expert medical practitioners upon the basis of supporting reasonable hypothesis in conformity with applicable Statements of Principle issued by the Repatriation Medical Authority – whether Tribunal in substance and reality erred by determining instead whether it was satisfied beyond reasonable doubt that the veteran sustained the injuries the subject of the hypothesis which he had advance.

Veterans’ Entitlements Act 1986 (Cth) ss 5B(1), 6C(1), 7(1)(a), 9(1), 120(1), 120(3), 120A(3), 196B(2)

Arnott v Repatriation Commission [2001] FCA 262 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Deledio v Repatriation Commission (1997) 47 ALD 261 applied
Dixon v Repatriation Commission (1999) 29 AAR 235 applied
Lowerson v Repatriation Commission (1994) 50 FCR 252 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Keeley (2000) 98 FCR 108 referred to
Repatriation Commission v Stares (1996) 41 ALD 212 referred to

BRIAN RICKABY v REPATRIATION COMMISSION

JUDGE:    CONTI J
DATE:      25 JULY 2001
PLACE:    SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1359 OF 2001

BETWEEN:	BRIAN RICKABY APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	25 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal against the decision of the Administrative Appeals Tribunal made on 28 November 2000, in so far as the same relates to the Appellant’s claim in relation to cervical spondylosis, be upheld.

2.The appeal against the above decision of the Administrative Appeals Tribunal, in so far as the same relates to the Appellant’s claim in relation to lumbar spondylosis, be dismissed.

3.The proceedings be remitted to Administrative Appeals Tribunal for determination according to law.

4.The Respondent to pay the Appellant’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
NEW SOUTH WALES DISTRICT REGISTRY	N1359 OF 2000

BETWEEN:	BRIAN RICKABY APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	CONTI J
DATE:	25 JULY 2001
PLACE:	SYDNEY

INDEX

Paragraphs

1-2The Appeal

3-5The facts and circumstances propounded by the Appellant in support of his pension

6The decision of the Commission of 2 February 1996

7-10The preliminary review made on 25 June 1998 by the Commission of the application for review to the VRB

11-13Relevant provisions of the Veterans Entitlements Act

14-19The VRB decision of 9 March 1999 and the material placed before the AAT

20-26The medical material placed before the AAT

27-34The reasoning for and the decision of the AAT of 29 November 2000 in relation to cervical spondylosis and lumbar spondylosis

35-47Legal analysis in relation to the AAT adverse conclusion on cervical spondylosis

48Legal analysis in relation to the AAT adverse conclusion on lumbar spondylosis

IN THE…