Thompson v Repatriation Commission

[2000] FCA 939

FEDERAL COURT OF AUSTRALIA

Thompson v Repatriation Commission [2000] FCA 939

VETERANS’ AFFAIRS – Appeal from decision of Veterans’ Appeals Division of Administrative Appeals Tribunal – Claim for service pension due to service related disease rejected by Repatriation Commission – Claim also rejected to Veterans Review Board – Statement of Principle issued after application for review filed with Tribunal but before determination of Tribunal – SoP ought not to have been applied by Tribunal – amending act was a repeal act – amending act affected a right – amending act did not contain an intention contrary to the presumption that accrued rights are to be preserved

Veterans’ Entitlements Act 1986 (Cth), ss 119, 120, 120A, 196B
Acts Interpretation Act 1901 (Cth), ss 8, 8A
Veterans’ Affais (1994-1995) Budget Measures Legislation Amendment Act 1994 (Cth)

Ogston v Repatriation Commission (1999) 29 AAR 89, distinguished
Repatriation Commission v Keeley [2000] FCA 532, applied
Byrnes v Repatriation Commission (1993) 177 CLR 564, followed
Esber v Commonwealth (1992) 174 CLR 430, followed
Yao v Minister for Immigration (1996) 69 FCR 583, considered
Director of Public Works v Ho Po Sang [1961] AC 901, considered

FRANK THOMPSON v REPATRIATION COMMISSION
NG 1167 of 1998

MADGWICK J
SYDNEY
19 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1167 of 1998

BETWEEN:	FRANK THOMPSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	19 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is allowed.

2.The decision of the Administrative Appeals Tribunal is set aside.

3.The matter is to be remitted to the Administrative Appeals Tribunal for further consideration in accordance with the law.

4.The respondent is to pay the applicant’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1167 of 1998

BETWEEN:	FRANK THOMPSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	MADGWICK J
DATE:	19 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“Tribunal”). The Tribunal affirmed the decisions of the Veterans’ Review Board (“VRB”) which, in turn, had reviewed the decision of the Repatriation Commission, the respondent, that the applicant’s irritable bowel syndrome (“IBS”) was not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). This case presents another variation on themes, explored in Ogston v Repatriation Commission (1999) 29 AAR 89 and Repatriation Commission v Keeley [2000] FCA 532, regarding the consequences of the making of a “Statement of Principles” (SoP) during the processes of original and appellate determination of claims under the Act.

   Factual background and sequence of events

2. The applicant served in the military between 1940 and 1946.  He believes that the Epsom Salts that he was prescribed by military doctors for intestinal problems, while serving, had commenced a pattern of laxative abuse, and that this had…