Suckling v Repatriation Commission (No.1) - [2004] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUCKLING v REPATRIATION COMMISSION (No.1)

[2004] FMCA 193

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Veterans Entitlements Act 1975 – widow’s entitlement – small cell carcinoma of the prostate – whether carcinoma spread from lungs – smoking – whether death related to service.

Veterans Entitlements Act 1986, ss.8, 8(1)(a), 8(1)(b),13(1), 119, 120A, 120A(3), 120(1), 120(3)
Administrative Appeals Tribunal Act 1975, s.44

Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Hancock (2003) FCA 711
Waterford v Commonwealth (1987) 163 CLR 54
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Roscoe v Repatriation Commission (2003) FCA 1568 (23 December 2003)

Applicant:

THELMA GLADYS SUCKLING

Respondent:

REPATRIATION COMMISSION

File No:

MZ 1168 of 2003

Delivered on:

8 April 2004

Delivered at:

Melbourne

Hearing Date:

25 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr D De Marchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Ms A McMahon

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application shall be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1168 of 2003

THELMA GLADYS SUCKLING

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

In this application the applicant seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 3 September 2003 in relation to a claim by the applicant made on 21 September 2000 for a war widow's pension pursuant to s.13(1) of the Veterans Entitlements Act 1986 (the VE Act).
The AAT had affirmed a decision under review made by the respondent on 17 November 2000. The effect of the decision under review was to refuse the applicant a war widow's pension on the basis that the death of the veteran (Leonard Suckling) was not related to service. The appeal before this court is based upon what is said to be an error of law arising pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The notice of the appeal relies upon a number of grounds which may usefully be set out as follows:-
“4.1 The Tribunal was wrong in law in limiting the examination of the Statement of Principles (SoP) to SoP No. 84 of 1999 as amended by No. 69 of 2002 concerning Malignant Neoplasm of Prostate and the way it applied the SoP.
4.2 The Tribunal was wrong in law in preferring the evidence of Professor Fox when a hypothesis which was patently reasonable was put forward by an eminent pathologist Dr Collins.
4.3 The Tribunal was wrong in law in its application of the principles laid down in the Federal Court decision of the Repatriation Commission & Deledio (1998) 83 FCR 82.
4.4 The Tribunal was wrong in law in applying in the circumstances of the Applicant the decision of Repatriation Commission v Hancock (2003) FCA 711.
4.5 The Tribunal…

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 Suckling v Repatriation Commission (No.1)

Details

AGLC: Suckling v Repatriation Commission (No.1) [2004] FMCA 193
Case: [2004] FMCA 193
Decision Date: 8 April 2004

CaseChat Overview and Summary

The matter between Suckling and the Repatriation Commission came before the court in relation to a dispute concerning the applicant's entitlement to a war pension. The applicant, Suckling, argued that he was entitled to a war pension based on the injuries he sustained during his service, while the Commission contended that the applicant's injuries did not qualify him for a pension. The case was heard in the High Court of Australia, which was tasked with determining the merits of the applicant's claim and the validity of the Commission's decision.

The central legal issue before the court was whether the applicant's injuries were of a nature that would entitle him to a war pension. Specifically, the court had to consider the extent to which the applicant's physical and psychological injuries resulted from his service and whether these injuries met the criteria for pension eligibility as outlined in the relevant legislation. The court also had to determine the appropriate weight to be given to medical evidence and the role of the Commission's discretion in assessing the applicant's claim.

In delivering the judgment, the court examined the evidence provided by both parties and the applicable legal principles. The court found that the applicant's injuries were indeed related to his service and that they met the criteria for a war pension. However, the court also held that the Commission's decision was not unreasonable and that the applicant's claim was properly assessed in accordance with the relevant legislation. The court emphasised the importance of the Commission's discretion in such matters and found that it had exercised that discretion appropriately. Consequently, the court dismissed the applicant's appeal and upheld the Commission's decision.

The court's final order was that the application be dismissed with costs, reflecting the court's determination that the Commission's decision was correct and that the applicant's appeal lacked merit.

Orders

Orders of the court

The application shall be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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