Repatriation Commission v Cooke, Colin Mack [1998] FCA 1717

Repatriation Commission v Cooke, Colin Mack [1998] FCA 1717

The existence of the claimed disease of anxiety state was not part of the s 120(1) or s 120(3) inquiry into whether an existing disease was war-caused. Sections 120(1) and 120(3) assume the existence of the relevant condition and prescribe the standard only for the causal connection between the disease and service. The Tribunal therefore erred in applying the reverse criminal standard to the existence of the disease; that issue had to be decided to the Commission's reasonable satisfaction under s 120(4).

Jurisdiction
Australia
Judgment Date
23 December 1998
Procedural Posture
Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From Part of a Decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal / Federal Court Appeal
Outcome
Appeal allowed; the decision under review was set aside and the psychiatric-condition claim was remitted to the Administrative Appeals Tribunal for determination according to law.
Legal Topics
['standard of Proof' 'war Caused Disease' 'anxiety State' 'reasonable Hypothesis' 'civil Standard of Proof']
["veterans' Entitlements" 'administrative Law'] ['standard of Proof' 'war Caused Disease' 'anxiety State' 'reasonable Hypothesis' 'civil Standard of Proof']

Case Brief

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Procedural Posture

Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From Part of a Decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal / Federal Court Appeal

Legal Issues

  1. 1 ['Whether the Tribunal applied the correct standard of proof in determining whether the respondent suffered from the disease of anxiety state.' "Whether the existence of the claimed disease was to be decided under the reverse criminal standard in s 120(1) of the Veterans' Entitlements Act 1986 (Cth) or to the Commission's reasonable satisfaction under s 120(4)."]

Ratio Decidendi

The existence of the claimed disease of anxiety state was not part of the s 120(1) or s 120(3) inquiry into whether an existing disease was war-caused. Sections 120(1) and 120(3) assume the existence of the relevant condition and prescribe the standard only for the causal connection between the disease and service. The Tribunal therefore erred in applying the reverse criminal standard to the existence of the disease; that issue had to be decided to the Commission's reasonable satisfaction under s 120(4).

Court Disposition

Appeal allowed; the decision under review was set aside and the psychiatric-condition claim was remitted to the Administrative Appeals Tribunal for determination according to law.

Orders

  • ['The appeal be allowed.' 'The decision under review be set aside.' "The matter of the applicant's claim relating to his psychiatric condition be remitted to the Administrative Appeals Tribunal for determination according to law." 'There be no order in respect of the costs of the appeal, but there be liberty to...