Smith v Repatriation Commission [1999] FCA 1484

FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [1999] FCA 1484 DEFENCE FORCES – veterans' entitlements - appeal from Administrative Appeals Tribunal – pensions, allowances and other benefits – widow's claim – whether smoking-related death – whether reasonable hypothesis that veteran's commencement of smoking attributable to eligible war service – young soldier commencing smoking in camp – whether peer group pressure – whether every element of hypothesis required to be proved by evidence Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Veterans' Entitlement Act 1986 (Cth) s 120(3)

Critch v Repatriation Commission 43 ALR 574 applied Repatriation Commission v Tuite 29 ALR 609 applied Repatriation Commission v Bey (1997) 149 ALR 721 mentioned East v Repatriation Commission (1987) 16 FCR 517 mentioned Repatriation Commission v Stares (1996) 66 FCR 594 applied Gilbert v Repatriation Commission (1989) 86 ALR 713 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 applied Lowerson v Repatriation Commission (1994) 50 FCR 252 at 269 applied Critch v Repatriation Commission (1996) 43 ALD 574 followed Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119 applied

SHIRLEY KNOLLYS SMITH v REPATRIATION COMMISSION

NO. T13 of 1999

HEEREY J 28 OCTOBER 1999 MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T13 OF 1999

BETWEEN: SHIRLEY KNOLLYS SMITH

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 28 OCTOBER 1999

WHERE MADE: MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal dated 4 June 1999 is set aside. 3. The matter is remitted to the Tribunal for further hearing and determination according to law. 4. The respondent pay the applicant's costs of the appeal, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.