Davenport, Peter John & Ors v Repatriation Commission [1995] FCA 930

IN THE FEDERAL COURT ) LIMITED DISTRIBUTION OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY) GENERAL DIVISION ) NO. TG 9 OF 1995 B E T W E E N: PETER JOHN DAVENPORT Applicant and EDWARD STUART MUSGRAVE PARKER, STUART ALEXANDER BRYCE and GERALD LAWRENCE PURCELL First Respondent and REPATRIATION COMMISSION Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: LEE J. DATE OF ORDER: 2 AUGUST 1995 WHERE MADE: HOBART THE COURT ORDERS THAT:

The parties file a minute of appropriate orders in accordance with these reasons. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT ) LIMITED DISTRIBUTION OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY) GENERAL DIVISION ) NO. TG 9 OF 1995 B E T W E E N: PETER JOHN DAVENPORT Applicant and EDWARD STUART MUSGRAVE PARKER, STUART ALEXANDER BRYCE and GERALD LAWRENCE PURCELL First Respondent and REPATRIATION COMMISSION Second Respondent CORAM: LEE J. DATE : 2 AUGUST 1995 PLACE: HOBART REASONS FOR JUDGMENT The applicant has filed two applications for an order of review, apparently under the Administrative Decisions (Judicial Review) Act 1977. The first application is directed to the three persons convened as the Veterans' Review Board ("the Board") under the Veterans' Entitlement Act 1986 ("the Act") which determined an Application for Review lodged with the Board by the applicant under s.135 of the Act. The second application is directed to the person appointed as the Principal Member of the Board under s.134 of the Act. In the course of the hearing leave was given to the applicant to amend the second application to seek an order of mandamus under s.39B of the Judiciary Act 1903 against the respondent directing the respondent to refer the Application for Review to the Board pursuant to s.142 of the Act for further hearing. The relevant facts are as follows: The applicant enlisted in the Royal Australian Navy in 1958 and was discharged in 1967. The applicant served as a Weapons Mechanic on board the H.M.A.S. Parramatta during the Vietnam war in which he had the following periods of "operational service" under s.6 of the Act, 29 May 1965 to 14 June 1965, 7 to 9 July 1965, and 17 July 1965 to 3 August 1965. On 15 October 1992 the applicant lodged a claim for a pension under the Act with the Department of Veterans' Affairs ("the Department") in accordance with s.14 of the Act. The Commonwealth is liable to pay a pension to a veteran who has become incapacitated from a war-caused injury or a war-caused disease. It is not in issue that the applicant was a veteran as defined in sub-s.5C(1) of the Act. Section 9 of the Act sets out the circumstances in which an injury suffered, or a disease contracted, is to be taken to be war-caused. In his application for a pension the applicant filled in the application form under the heading "Disability(ies) now claimed as war or defence caused" as follows: "Disability Symptom(s) of disability When were the symptom(s) first noticed? HEARING RINGING IN BOTH EARS APPROX 1988 STRESS/STROKE DIFFICULT (sic) IN WALKING 1989"