King v Repatriation Commission [2011] FCA 1436

King v Repatriation Commission [2011] FCA 1436

The Tribunal erred in law by conflating the inquiry whether the clause 5(c) factor in the Statement of Principles was raised with the separate inquiry whether that factor was related to the applicant's relevant service. Clause 5(c) did not require the 40% increase in animal fat consumption to be assessed only by reference to operational service, and the Tribunal should first have considered whether the factor existed on the evidence before applying clause 4. The Tribunal also failed adequately to consider s 196B(14) of the Veterans' Entitlements Act 1986 (Cth), including the possible application of s 196B(14)(b) and s 196B(14)(d), when deciding whether the factor was related to service.

Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal, Veteran Appeals Division / Federal Court Appeal From the Tribunal's Decision Affirming Refusal of a Pension Under the Veterans' Entitlements Act 1986 (cth)
Outcome
Appeal allowed; decision of the Administrative Appeals Tribunal set aside; proceedings remitted to the Administrative Appeals Tribunal to be decided again according to law; respondent ordered to pay the applicant's costs of the appeal.
Legal Topics
['war Caused Disease' "veterans' Pension" 'statement of Principles' 'prostate Cancer' 'operational Service' 'standard of Proof' 'appeal on a Question of Law']
['defence and War' 'administrative Law' "veterans' Entitlements"] ['war Caused Disease' "veterans' Pension" 'statement of Principles' 'prostate Cancer' 'operational Service' 'standard of Proof' 'appeal on a Question of Law']

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Procedural Posture

Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal, Veteran Appeals Division / Federal Court Appeal From the Tribunal's Decision Affirming Refusal of a Pension Under the Veterans' Entitlements Act 1986 (cth)

Legal Issues

  1. 1 ["Whether the Tribunal erred in its application of the words 'increasing animal fat consumption by at least 40%' in clause 5(c) of the Statement of Principles concerning Malignant Neoplasm of the Prostate." "Whether the Tribunal was required to apply, and correctly applied, s 196B(14) of the Veterans' Entitlements Act 1986 (Cth) when considering whether the applicant's prostate cancer was related to his operational service." 'Whether the Tribunal made impermissible findings of fact in the first three stages of the Deledio process.']

Ratio Decidendi

The Tribunal erred in law by conflating the inquiry whether the clause 5(c) factor in the Statement of Principles was raised with the separate inquiry whether that factor was related to the applicant's relevant service. Clause 5(c) did not require the 40% increase in animal fat consumption to be assessed only by reference to operational service, and the Tribunal should first have considered whether the factor existed on the evidence before applying clause 4. The Tribunal also failed adequately to consider s 196B(14) of the Veterans' Entitlements Act 1986 (Cth), including the possible application of s 196B(14)(b) and s 196B(14)(d), when deciding whether the factor was related to service.

Court Disposition

Appeal allowed; decision of the Administrative Appeals Tribunal set aside; proceedings remitted to the Administrative Appeals Tribunal to be decided again according to law; respondent ordered to pay the applicant's costs of the appeal.

Orders

  • ['The appeal be allowed.' 'The decision of the Administrative Appeals Tribunal made on 15 April 2011 be set aside.' 'The proceedings be remitted to the Administrative Appeals Tribunal to be decided again according to law either with or without the hearing of further evidence.' "The respondent pay the applicant's...