Winch v Repatriation Commission

[1999] FCA 408

FEDERAL COURT OF AUSTRALIA

Winch v Repatriation Commission [1999] FCA 408

VETERANS’ ENTITLEMENTS - appeal from decision of primary judge affirming decision of Administrative Appeals Tribunal that appellant’s condition was not war-caused within s 9 of the Veterans’ Entitlements Act1986 (Cth) – whether the primary judge erred in finding that the Administrative Appeals Tribunal had not erred in law when it decided that the hypothesis put forward by the appellant’s expert was not a reasonable hypothesis – whether the primary judge erred in finding that the Administrative Appeals Tribunal had not breached its obligation to give the appellant procedural fairness

Veterans’ Entitlements Act 1986 (Cth), ss 9, 120
Administrative Appeals Tribunal Act1975 (Cth), s 33(1)

Byrnes v Repatriation Commission (1993) 177 CLR 564, cited
Repatriation Commission v Whetton (1991) 31 FCR 513, cited
Transport Workers Union of Australia & Ors v Barry Hansch (unreported, Full Court of Industrial Relations Court of Australia, 7 September 1998), cited
Re Coldham; ex parte Municipal Officers Association of Australia (1989) 84 ALR 208, cited

DONALD WINCH v REPATRIATION COMMISSION
VG 525 of 1998

O'CONNOR, BRANSON and MARSHALL JJ
MELBOURNE

19 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 525 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DONALD WINCH Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGES:	O’CONNOR, BRANSON and MARSHALL JJ
DATE OF ORDER:	19 APRIL 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal including reserved costs, if any.

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	VG 525 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DONALD WINCH Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	O’CONNOR, BRANSON and MARSHALL JJ
DATE:	19 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of a judge of the Court, Merkel J, given on 8 September 1998 dismissing an appeal, limited to questions of law, made from a decision of the Administrative Appeals Tribunal (“AAT”) dated 25 July 1997. This decision affirmed the decision of the Repatriation Commission (the respondent to this appeal) that the appellant's calcific aortic stenosis was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act1986 (Cth) (“the VE Act”).

   Grounds of Appeal

2. Two grounds of appeal were argued.

   1.That his Honour was wrong in finding that the AAT had not erred in law when it decided that the hypothesis put forward by Dr Rosenbaum was not a reasonable hypothesis, his Honour having wrongly interpreted ss 9 and 120 of the VE Act and failed to apply the correct test in assessing such hypotheses, and

   2.That his Honour was wrong in finding that the AAT had not breached its obligation to give the appellant procedural fairness in that his Honour…