Webb, Gloria v Repatriation Commission - [1997] FCA 1130

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW-Veterans’ affairs - whether veteran’s hystiocytosis was war-caused -whether Administrative Appeals Tribunal failed to take into account relevant considerations or took into account irrelevant considerations - mistakes about the state of the evidence - whether and in what circumstances it is proper for the Tribunal to “evaluate” the hypothesis connecting war service with injury or death.

Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 120

Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 applied
R v Southampton Justices; Ex parte Green [1976] QB 11 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 applied
Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 applied

GLORIA WEBB V REPATRIATION COMMISSION
VG761 OF 1996

FINKELSTEIN J
MELBOURNE
24 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

On appeal from a decision of the Administrative Appeals Tribunal
VG 761 of 1996

BETWEEN:

       GLORIA WEBB
        Applicant

AND:

       REPATRIATION COMMISSION
       Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

24 OCTOBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside.
The matter be remitted to the Administrative Appeals Tribunal constituted by a different member to be heard and determined according to law.
The respondent pay the applicant’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

VICTORIA DISTRICT REGISTRY

On appeal from a decision of the Administrative Appeals Tribunal
VG 761 of 1996

BETWEEN:

       GLORIA WEBB
        Applicant

AND:

        REPATRIATION COMMISSION
        Respondent

JUDGE:

FINKELSTEIN J

DATE:

24 OCTOBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: Andrew Rupert Webb was only seventeen when he enlisted in the 2nd Australian Imperial Forces during World War II. He was sent to Bonegilla Army Camp for basic training. When he completed his training Mr Webb volunteered for active service. Between October 1944 and June 1945 he served with the 19th Australian Line Signals as part of the Australian contingent that fought against the Japanese Army in New Guinea. Shortly after the war Mr Webb married Gloria Jean Hull whom he had met before he went on active service. Upon his demobilisation in November 1946 Mr Webb and his wife went to live in country Victoria where they raised three children.

In late 1984 and early 1985 Mr Webb noticed that he was losing considerable weight and that he had become quite lethargic as well. He was also suffering from “night sweats” and high temperatures. In February 1985 Mr Webb went to see his friend and doctor, Peter W Graham, of the Cohuna Medical Clinic, Cohuna and told him of his symptoms. Dr Graham could not discover their cause and was sufficiently concerned to refer Mr Webb to the Fairfield Hospital in Melbourne for further examination. On…

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 Webb, Gloria v Repatriation Commission

Details

AGLC: Webb, Gloria v Repatriation Commission [1997] FCA 1130
Case: [1997] FCA 1130
Decision Date: 24 OCTOBER 1997

CaseChat Overview and Summary

The case of Webb v Repatriation Commission involves a widow, Gloria Webb, seeking a pension under the Veterans' Entitlements Act 1986, claiming her husband's death was war-caused due to his service in World War II. The central issue was whether the hypothesis that Andrew Webb's histiocytosis, leading to his death, was caused by his smoking habit developed during his military service, was reasonable. The Administrative Appeals Tribunal had dismissed her claim, finding the hypothesis unreasonable. The Federal Court of Australia, upon appeal, found errors in the Tribunal's reasoning.

The Court identified several legal errors in the Tribunal's approach. Firstly, the Tribunal incorrectly stated that Dr. Parkin had abandoned the hypothesis linking smoking to non-Hodgkins lymphoma, when in fact, he continued to support it. Secondly, the Tribunal overlooked medical studies that supported the hypothesis, focusing only on those that did not. Thirdly, the Tribunal improperly evaluated Dr. Parkin's evidence against the medical studies, rather than considering all relevant evidence. This evaluation was not only unnecessary but also legally flawed as it misapplied the standard required under the Act. Furthermore, the Tribunal's reasoning demonstrated a predisposition against the hypothesis based on conflicting medical opinions, which is impermissible under the statutory framework.

Consequently, the Court held that the Tribunal's decision was vitiated by these errors of law. The appeal was allowed, the Tribunal's decision was set aside, and the matter was remitted to the Tribunal for reconsideration by a different member. The Court also ordered the Repatriation Commission to pay the costs of the appeal.

Orders