Byrne v Repatriation Commission [2007] FCAFC 126

FEDERAL COURT OF AUSTRALIA

Byrne v Repatriation Commission [2007] FCAFC 126

DEFENCE AND WAR – veterans' entitlements – whether death of war veteran was attributable to eligible war service – where hypothesis connecting the death with the circumstances of the service rendered is accepted as reasonable the AAT must adopt it as a finding unless it is disproved beyond reasonable doubt – possibility that veteran's coronary artery disease impaired his ability to survive in the water and contributed to drowning was not considered by AAT – AAT erred in law in rejecting hypothesis – appeal allowed – matter remitted to the AAT to reconsider hypothesis Administrative Appeals Tribunal Act 1975 (Cth), s 44 Veterans' Entitlements Act 1986 (Cth),ss 8, 120, 120A, 120B, 196B

Byrne v Repatriation Commission [2006] FCA 1667 reversed Bull v Repatriation Commission (2001) 188 ALR 756referred to Bushell v Repatriation Commission (1992) 175 CLR 408cited Byrnes v Repatriation Commission (1993) 177 CLR 564 cited Collins v Administrative Appeals Tribunal [2007] FCAFC 111 referred to Repatriation Commission v Codd [2007] FCA 877 referred to Repatriation Commission v Deledio (1998) 83 FCR 82referred to Repatriation Commission v Hancock (2003) 37 AAR 383 referred to Woodward v Repatriation Commission (2003) 131 FCR 473 referred to MARJORIE BYRNE v REPATRIATION COMMISSION NSD 55 OF 2007

GYLES, EDMONDS AND BUCHANAN JJ

13 august 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 55 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MARJORIE BYRNE

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGES: GYLES, EDMONDS AND BUCHANAN JJ DATE OF ORDER: 13 august 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders made on 5 December 2006 in the primary proceeding be set aside. 3. In lieu thereof, the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law. 4. The respondent pay the costs of the appellant of the appeal and of the primary proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.