Winch, Donald Arthur v Repatriation Commission - [1996] FCA 886

REPATRIATION - Veteran's pension - Medical experts differ on possibility of war-time illnesses causing aortic stenosis - Whether conflict or opposing medical opinions on a question of "fact" - Whether open to Administrative Appeals Tribunal to form opinion that the material did not raise a reasonable hypothesis connecting the illnesses with the aortic stenosis - Whether material pointed to or raised veteran's smoking during his war service as war-caused - Whether a raised fact that war-caused smoking contributed to the aortic stenosis - Whether error of law in disregarding material pointing to or raising smoking as war-caused - Whether Tribunal erred in law in forming its opinion under s.120(3) from only part of the material - Whether the Tribunal erred in law in applying an onus of proof on balance of probabilities or on some other unspecified standard of proof or satisfaction.

Veterans' Entitlements Act 1986 (Cth) ss.9, 120

Repatriation Commissioner v. Whetton (1991) 31 FCR 513
Bushell v. Repatriation Commission (1992) 175 CLR
East v. Repatriation Commission (1987) 16 FCR 517
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996)
Lowerson v. Repatriation Commission (1994) 50 FCR 252
Bell v. Repatriation Commission (1992) 26 ALD 545
Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620

VG676/1995 DONALD ARTHUR WINCH V. REPATRIATION COMMISSION

CORAM:MERKEL J.
PLACE:MELBOURNE
DATE:9 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
No. VG 676 of 1995

On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Commodore B.G. Gibbs, Senior Member, Mr. R.C. Gillham and Miss E.A. Shanahan, Members.

B E T W E E N:

DONALD ARTHUR WINCH
Applicant

- and -

REPATRIATION COMMISSION

Respondent

CORAM:MERKEL J.
PLACE:MELBOURNE
DATE:9 OCTOBER 1996

MINUTES OF ORDERS

The decision of the Administrative Appeals Tribunal is set aside.

The matter, except in so far as it concerns the hypothesis connecting the tonsillitis and fever suffered by the veteran during his war service with his calcific aortic stenosis, is remitted to the AAT for its determination in accordance with law.

The respondent pay the applicant's costs of and incidental to 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
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
No. VG 676 of 1995

On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Commodore B.G. Gibbs, Senior Member, Mr. R.C. Gillham and Miss E.A. Shanahan, Members.

B E T W E E N:

DONALD ARTHUR WINCH
Applicant

- and -

REPATRIATION COMMISSION

Respondent

CORAM:MERKEL J
PLACE:MELBOURNE
DATE:9 OCTOBER 1996

REASONS FOR JUDGMENT
The facts
The applicant rendered operational service as a pilot in the Royal Australian Air Force from 23 June 1941 to 27 March 1946. He claims to be entitled to a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act") on the ground that he has suffered war-caused…

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.

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Details

Case: [1996] FCA 886
Decision Date: 9 Oct 1996

CaseChat Overview and Summary

The applicant, Donald Arthur Winch, appealed the decision of the Administrative Appeals Tribunal (AAT) which found that his calcific aortic stenosis was not a war-caused disease. The applicant claimed that his condition was caused by his war-time illnesses or his smoking habit, which he began during his war service. The appeal was heard by Merkel J in the Federal Court of Australia. The court considered whether the AAT had erred in law by failing to consider all the material before it or by imposing an incorrect standard of proof. The court found that the AAT had erred in law by not considering all the material and by imposing an incorrect standard of proof. The appeal was allowed, and the decision of the AAT was set aside. The matter was remitted to the AAT for its determination in accordance with law. The respondent was ordered to pay the applicant's costs of and incidental to the appeal.

Orders