Walmsley, Christopher Lloyd v Repatriation Commission

[1997] FCA 703

FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - pension claimed for bowel cancer - drinking habit a likely component cause of disease - whether drinking habit attributable to war service - finding of fact by Administrative Appeals Tribunal - no error of law.

Veterans’ Entitlement Act 1986 s 9(1)(b) and (d)

Black v Repatriation Commission (1993) 29 ALD 693 considered
Re Gillman and Repatriation Commission (1993) 30 ALD 545 considered
Repatriation Commission v Tuite (1993) 39 FCR 540 applied

CHRISTOPHER LLOYD WALMSLEY v  REPATRIATION COMMISSION

NG 748 OF 1996

JUDGE:         WHITLAM
PLACE:         SYDNEY
DATE:           30 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 748 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	CHRISTOPHER LLOYD WALMSLEY Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	WHITLAM J
PLACE:	SYDNEY
DATED:	30 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

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 748 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	CHRISTOPHER LLOYD WALMSLEY Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	WHITLAM J
PLACE:	SYDNEY
DATED:	30 JULY 1997

REASONS FOR JUDGMENT

This is an appeal from the Administrative Appeals Tribunal (“the Tribunal”).  It concerns an application dealt with in the Veterans’ Appeals Division of the Tribunal constituted by two members, one of whom is a Deputy President.  The essential background to that application, which emerges from the “T” documents included in the appeal papers, may be briefly summarized.

The applicant, Christopher Lloyd Walmsley, was born on 24 May 1917 and served in the Australian Army during World War 2.  After he retired  from the workforce, Mr Walmsley lodged in 1977 a claim to have a back condition accepted as being related to his war service.  The claim was rejected.  In 1980 Mr Walmsley submitted further evidence in support of his claim, which was accordingly reconsidered but again rejected.

In January 1990 Mr Walmsley had a carcinoma of the rectum removed, and in June 1990 he lodged a claim to have his bowel cancer accepted as war-caused.  That claim was rejected by a delegate of the respondent on 9 December 1992.  The delegate apparently relied on the report of a departmental medical officer, Dr E.S. Lim, who attached to his report a statement dated January 1990 on the subject of adenocarcinoma of the colon and rectum.  That document stated (inter alia) that “a carefully compiled review of bowel cancer aetiology concluded that there is no evidence for any particular dietary factor, including beer/alcohol, in the causation of colorectal cancer”.  (However, it is not clear that at this stage Mr Walmsley had suggested any such factor contributed to his bowel cancer.)

In December 1993 Mr Walmsley underwent a further operation for…