Repatriation Commission v Rogers [1999] FCA 489

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Rogers (1999) FCA 489 VETERANS' AFFAIRS – Death from bowel cancer – Whether war caused – Smoking – Whether causally related to war service – Statement of Principles – Construction – Tribunal's failure to deal with party's argument – Failure to provide reasons – Error of law. Veterans Entitlements Act 1986 s 120(4), 120B(3), 196B(3)

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267 applied Repatriation Commission v Smith (1997) 45 ALD 523 applied Re Poyser and Mills' Arbitration [1964] 2 QB 467 applied Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied Dornan v Riordan (1990) 24 FCR 564 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

REPATRIATION COMMISSION v WINIFRED JOAN ROGERS VG 148 OF 1998 SUNDBERG J 22 APRIL 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 148 OF 1998

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: WINIFRED JOAN ROGERS

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 22 APRIL 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal made on 17 March 1998 be set aside. 3. The decision of the applicant made on 6 July 1995 be affirmed. 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 148 OF 1998

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: WINIFRED JOAN ROGERS

Respondent

JUDGE: SUNDBERG J

DATE: 22 APRIL 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 William John Rogers ("the veteran") died on 15 September 1988 aged 70. His death certificate recorded the cause of death as "disseminated adenocarcinoma bowel‑ 1 month". On 10 February 1995 the respondent, the veteran's widow, lodged a claim to have his death accepted as war‑caused pursuant to s 8(1)(b) of the Veterans' Entitlements Act 1986 ("the Act"), which provides that the death of a veteran is to be taken to have been war‑caused if it "arose out of, or was attributable to, any eligible war service rendered by the veteran". The claim was refused by a delegate of the Repatriation Commission and on review by the Veterans' Review Board. The Board's decision was set aside by the Administrative Appeals Tribunal which substituted a decision that the veteran's service was war‑caused. The Commission appeals to this Court.