Fuss v Repatriation Commission [2001] FCA 1529

FEDERAL COURT OF AUSTRALIA

Fuss v Repatriation Commission [2001] FCA 1529

VETERANS' ENTITLEMENTS – Death claim – Veteran died from metastatic carcinoma of unknown primary – Hypothesis advanced to Administrative Appeals Tribunal that veteran contracted Helicobacter pylori infection at Morotai, while on operational service, and this caused stomach cancer – No direct evidence that veteran suffered either H pylori infection or stomach cancer – Statement of Principles concerning malignant neoplasm of the stomach specified H pylori infection as a factor supporting causation – Tribunal rejected the hypothesis because of the absence of facts that would "allow the Tribunal to establish" the elements of the hypothesis – Test to be applied by Tribunal pursuant to s 120(3) of Veterans' Entitlements Act – Whether Tribunal erred in law in test applied. Veterans' Entitlements Act 1986 ss 120, 120A. Repatriation Commission v Bey (1997) 79 FCR 364 applied. Deledio v Repatriation Commission (1997) 25 AAR 396; 47 ALD 261 and (on appeal) (1998) 83 FCR 82 discussed. DULCIE EDNA FUSS v REPATRIATION COMMISSION N 1026 of 2001 WILCOX J SYDNEY 2 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1026 of 2001

BETWEEN: DULCIE EDNA FUSS

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 2 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal dated 7 June 2001 be set aside. 2. The matter be remitted to the said Tribunal for further hearing and determination according to law. 3. The respondent, Repatriation Commission, pay the costs incurred by the applicant, Dulcie Edna Fuss, in connection with the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.