Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711

FEDERAL COURT OF AUSTRALIA

Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711

ADMINISTRATIVE LAW – error of law – compensation claim by veteran – veteran suffered cerebrovascular accident (CVA) and ischaemic heart disease (IHD) – one factor causative of the CVA and IHD was smoking – veteran commenced smoking during his army service – whether Administrative Appeals Tribunal failed to properly consider the relationship between the veteran's ailments and his performance of his duties as a member of the Defence Force – no basis for concluding that the Tribunal failed to consider the required relationship – finding that ailments arose out of performance of duties a finding available on facts before the Tribunal – no error of law demonstrated – appeal dismissed

ADMINISTRATIVE LAW – irrelevant consideration – reference by the Tribunal to guidelines and legislation relating to veterans' entitlements as distinct from the compensation legislation – the Tribunal was entitled to have regard to such material – in any case, the Tribunal did not base its finding upon the material – ground not made out Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Compensation (Commonwealth Government Employees' Act) 1971 (Cth) s 7, 7(2), 27, 29(1) Commonwealth Employees' Compensation Act 1930 (Cth) s 4(1), 4A(2) Military Rehabilitation and Compensation Act 2004 (Cth) Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth)s 4, 5, 5(2), 7(2), 29(2)(f), 124(1), 124(1A), 124(2), 144(3) Veterans' Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 (Cth) Veterans' Entitlements Act 1986 (Cth) s 8(6), 9(7), 120 Barratt v Military Rehabilitation and Compensation Commission [2004] AATA 1141 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 considered Commonwealth of Australia v Fernie (1999) 23 SR(WA) 12 cited Kavanagh v Commonwealth (1960) 103 CLR 547 applied Commonwealth v Quince (1944) 68 CLR 227 considered Commonwealth v Wright (1956) 96 CLR 536 considered Maunder v Commonwealth (1983) 76 FLR 341 cited Millwood v Comcare [2004] AATA 116 considered Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 applied Repatriation Commission v Tuite (1993) 39 FCR 540 cited Commonwealth v Carter (1965) 7 FLR 223 cited Wall v Comcare [2004] AATA 229 referred to MILITARY COMPENSATION AND REHABILITATION COMMISSION v BARRY WALL NSD 457 OF 2004 HELY J 22 DECEMBER 2004 SYDNEY