Repatriation Commission v Olsen [2002] FCA 12

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Olsen [2002] FCA 12 ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal ("AAT") – veteran's entitlements – whether the AAT erred in applying a Statement of Principle not in force at time of initial application Veteran's Entitlements Act 1986 (Cth) ss 69, 70, 120, 120B, 135, 175, 196B

Repatriation Commission v Brown [2002] FCA 19 referred to Repatriation Commission v Keeley (2000) 98 FCR 108 considered Repatriation Commission v Gorton [2001] FCA 1194 followed Gorton v Repatriation Commission [2001] FCA 286 referred to Maxwell v Murphy (1957) 96 CLR 261 referred to Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 referred to Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430 referred to Arnott v Repatriation Commission [2001] FCA 262 referred to Repatriation Commission v Thompson [2001] FCA 341 referred to REPATRIATON COMMISSION v GEOFFREY LEE OLSEN N 1203 of 2000 STONE J SYDNEY 22 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1203 of 2000

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: GEOFFREY LEE OLSEN

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 22 JANUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1203 of 2000

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: GEOFFREY LEE OLSEN

RESPONDENT

JUDGE: STONE J

DATE: 22 JANUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

background and legislation 1 The applicant ("Commission") has applied to the Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) seeking review of a decision of the Administrative Appeals Tribunal ("AAT") made on 18 October 2000. The AAT set aside the Commission's decision (as varied by the Veterans' Review Board) that the respondent's condition of plantar fasciitis with calcaneal spur was not defence-caused, remitting the matter to it for assessment of the rate of pension payable to the respondent. 2 Mr Olsen served as a full-time member of the Defence Force between 24 September 1975 and 2 September 1994. Accordingly, Pt IV of the Veterans' Entitlements Act 1986 (Cth) ("the Act") applies to him; s 69 of the Act. Section 70 in Pt IV, Div 2 of the Act provides that the Commonwealth is liable to pay a pension by way of compensation to Mr Olsen if he "has become incapacitated from a defence-caused injury or a defence-caused disease". 3 Section 70(5) of the Act sets out circumstances in which an injury or disease is taken to be "defence-caused"; see also s 5D(2). In determining whether or not an injury or disease is "defence-caused", regard must also be had to s 120 and s 120B of the Act. The Commission is not entitled to presume that a disease or injury is defence-caused; s 120(5). Section 120(4) of the Act sets out the relevant standard of proof, being that the Commission must "decide the matter to its reasonable satisfaction." Subject to s 120B(4), s 120B(3) provides that the Commission shall be "reasonably satisfied" that an injury or disease is defence-caused only if: (a) the material before the Commission raises a connection between the injury or disease and a particular service rendered; and (b) there is in force a relevant Statement of Principles ("SoP") or a determination of the Commission, that upholds the contention that the injury or disease is, on the balance of probabilities, connected with the service rendered.