Repatriation Commission v Burge [2002] FCA 623

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Burge [2002] FCA 623

REPATRIATION COMMISSION v LESLIE BURGE V 1185 OF 2001 DRUMMOND J 10 MAY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1185 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: REPATRIATION COMMISSION

APPELLANT

AND: LESLIE BURGE

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 10 MAY 2002

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT:

1. The learned federal magistrate erred in holding that the Administrative Appeals Tribunal is required, when considering whether a reasonable hypothesis is raised connecting an injury or disease with the circumstances of a veteran's operational service for the purposes of ss 120(3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth), to determine "whether the facts at least point to a reasonable hypothesis in a Statement of Principles" on the "reverse onus beyond reasonable doubt standard of proof".

2. The learned federal magistrate should have held, consistent with the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, that the Administrative Appeals Tribunal is required, when deciding whether a reasonable hypothesis is raised for the purposes of ss 120(3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth):

(i) first, to consider the whole of the material before it and determine whether that material points to a hypothesis connecting the claimed conditions with the circumstances of the particular service rendered by the veteran, being a hypothesis that is not too fanciful, remote or tenuous;

(ii) secondly, to identify the applicable Statement of Principles;

(iii) thirdly, to determine whether the hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles; and