Repatriation Commission v O'Brien [1985] HCA 10

High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Dawson JJ. Repatriation Commission v O'Brien [1985] HCA 10

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered: —

1985, Feb. 27 Gibbs C.J., Wilson and Dawson JJ.

The respondent served in the Royal Australian Air Force from 20 January 1942 to 1 July 1946. He did not serve in a theatre of war, his service being wholly confined to Australia. On 12 July 1946, a Repatriation Board, constituted pursuant to the Repatriation Act 1920 Cth, as amended ("the Act"), accepted a claimed incapacity for right sesamoiditis hallux as due to war service. On 3 August 1954 a Repatriation Board accepted a claimed incapacity arising from duodenal ulcer and fibrositis as being due to war service. In 1961 anxiety hysteria was diagnosed and, on 9 November 1961, a Repatriation Board accepted the neurosis as due to war service but assessed the incapacity as negligible. On 31 August 1970, a claim in respect of a hiatus hernia was accepted. Apart from these claims, a number of other claims were made over the years and were rejected. He was frequently in receipt of treatment for stomach and back troubles. In 1970, the assessment of his disability in respect of anxiety hysteria was raised from nil to 20 per cent. Finally, in October 1974, the respondent sought a war pension because of a recently diagnosed condition of essential hypertension which he claimed was related to his accepted disability of anxiety hysteria. A Repatriation Board rejected the claim in August 1975. In the following four-and-a-half years the claim was considered on no less than five different occasions by the Repatriation Commission ("the Commission"). On each of those occasions the Commission considered the case on the basis of the evidence then before it and on each occasion it rejected the respondent's appeal. So far as the first four occasions on which the matter was before the Commission are concerned, each successive decision was appealed to the War Pensions Entitlement Appeal Tribunal, the case being returned to the Commission on each of those occasions for reconsideration in the light of further evidence tendered on behalf of the respondent. The decision of the Commission on the fifth occasion was the subject of an appeal by the respondent to the Appeal Tribunal but before the proceedings in that Tribunal were finalized the Repatriation Acts Amendment Act (No. 18 of 1979) operated to replace that Tribunal with the Repatriation Review Tribunal ("the Review Tribunal"). The Review Tribunal then proceeded to hear the respondent's appeal as if it were an application for review made to the Review Tribunal pursuant to s. 107VC of the Act. During the hearing, the procedures contemplated by s. 107VZZB of the Act were put in train, the end result of which was a direction by the president of the Administrative Appeals Tribunal ("the A.A.T.") in accordance with s. 107VZZB(8) that the A.A.T. review the five decisions of the Commission. On 15 March 1983, the A.A.T. delivered its decision affirming the decision of the Commission to disallow the respondent's claim. Pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, he appealed from that decision to the Full Court of the Federal Court of Australia (Sweeney, Keely and Fitzgerald JJ.) which unanimously set aside the decision of the A.A.T. and granted the claim [1] . Thereafter, this Court gave special leave for the present appeal to be brought.