Budworth v Repatriation Commission [2001] FCA 317

FEDERAL COURT OF AUSTRALIA

Budworth v Repatriation Commission [2001] FCA 317

VETERANS' AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal ("AAT") – requirement on AAT to consider whether to exercise discretion under ss 31(6) and 31(7) of the Veteran's Entitlement Act 1986 (Cth) ("the Act") to backdate a reduction in pension – standard of proof to be applied to questions of diagnosis and causation – must be shown on balance of probabilties that a disease exists – no requirement to prove that the disease has a specific medical label – if questions of causation arise on the question whether a disease exists the reverse criminal standard applies – nature of proceedings before AAT – the way in which parties conduct a case ultimately reviewing a decision of the Repatriation Commission does not relieve the duty of the AAT to consider whole case – circumstances in which a lay tribunal may draw inferences and conclusions as to medical conditions absent expert medical evidence

Veterans' Entitlements Act 1986 (Cth), ss 5D, 14, 18, 19, 31(6), 31(7), 120(1), 120(3), 120(4), 157(2)(b), 175(1) Administrative Appeals Tribunal Act 1986 (Cth), s 44 Grant v Repatriation Commission (1999) 57 ALD 1, applied The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing & Community Services (1992) 39 FCR 225, cited Repatriation Commission v Cooke (1998) 90 FCR 307, considered and applied Repatriation Commission v Maloney (1993) 45 FCR 563, cited Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, cited Bushell v Repatriation Commission (1992) 175 CLR 408, cited Gibson v Repatriation Commission [1999] FCA 901, applied Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 338, applied Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303, applied Kuswardana v Minister for Immigration & Multicultural Affairs (1981) 35 ALR 188, cited Ferriday v Repatriation Commission (1996) 69 FCR 521, cited New South Wales v Seedsman [2000] NSWCA 119, referred to Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189, cited RONALD JAMES BUDWORTH v REPATRIATION COMMISSION N242 of 2000 MADGWICK J 29 MARCH 2001 SYDNEY