Gilkinson v Repatriation Commission [2010] FCA 1292

FEDERAL COURT OF AUSTRALIA

Gilkinson v Repatriation Commission [2010] FCA 1292 Citation: Gilkinson v Repatriation Commission [2010] FCA 1292

Appeal from: Gilkinson v Repatriation Commission [2010] AATA 23

Parties: DAVID GILKINSON v REPATRIATION COMMISSION

File number: NSD 136 of 2010

Judge: STONE J

Date of judgment: 25 November 2010

Catchwords: DEFENCE AND WAR – veterans' entitlements – meaning of "related to service" – whether Tribunal failed to pose and answer correct question – whether Tribunal should have applied s 196B(14)(b) of Veteran's Entitlement Act 1986 (Cth) rather than s 196B(14)(d) – meaning of "arose out of, or was attributable to" in s 196B(14)(b) – whether phrase has same meaning as in other sections of the Act – held that context of phrase in s 196B(14)(d) different from context in other sections – in s 196B(14)(d) phrase refers to dominant or effective cause but not necessarily the sole cause – consideration of s 196B(14) generally DEFENCE AND WAR – veterans' entitlements – statement of principles – obesity – sleep apnoea – whether related to operational service – whether intermittent shift work during operational service was a dominant or effective cause of the applicant's obesity

Legislation: Repatriation Act 1920 (Cth) s 101(1)(b) Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) Veterans' Entitlements Act 1986 (Cth) ss 8(1)(b), 9(1)(b), 196B(2), 196B(14), 196B(14)(b), 196(14)(d) Explanatory Memorandum to the Veterans' Affairs (1994 – 95 Budget Measures) Legislation Amendment Bill 1994