Repatriation Commission v Wedekind [2000] FCA 649

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Wedekind [2000] FCA 649 VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran's condition of pterygium was war-caused – Statement of Principles requires showing of service-related inability to obtain appropriate clinical management – whether evidence to support causal link between failure to diagnose condition and eligible war service – whether failure to make findings on material questions of fact

Administrative Appeals Tribunal Act 1975, s 44(1) Veterans' Entitlements Act 1986, s 9, s 13, s 119, s 120, s 196B(3) Repatriation Commission v Smith (1987) 15 FCR 327 referred Repatriation Commission v Deledio (1998) 83 FCR 82 applied Deledio v Repatriation Commission (1997) 25 AAR 396 referred Brew v Repatriation Commission [1999] FCA 1246 referred Commonwealth v Johnston (1980) 31 ALR 445 discussed Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 referred Johnston v Commonwealth (1982) 150 CLR 331 discussed Australian Telecommunications Commission v Barker (1990) 12 AAR 490 referred Dornan v Riordan (1990) 24 FCR 564 referred Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 referred Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 referred

REPATRIATION COMMISSION v STANLEY WILLIAM WEDEKIND VG 208 of 1998 KENNY J MELBOURNE 17 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 208 OF 1998

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: STANLEY WILLIAM WEDEKIND

Respondent

JUDGE: KENNY J

DATE OF ORDER: 17 MAY 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. That part of the decision of the Administrative Appeals Tribunal made on 23 April 1998 that set aside the decision made by the Commission and substituted a decision that: (a) the condition of pterygium suffered by the respondent was war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986; and (b) the Commonwealth was liable to pay a pension to the respondent for his incapacity from that condition from 16 April 1996 be set aside. 3. The decision of the applicant made on 28 August 1996 be affirmed. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.