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Author Topic: Federal Court Decision - shock and horror  (Read 11546 times)
cavman
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« Reply #11 on: Friday10April2009 »

Law's case set up the situation which resulted in the Reasonable Hypothesis test being implemented as a conseqence of the Full Federal Court's decision in East v Repat Commission (1985). 
The Hawke Govt saw both precedents as opening the flloodgates for a raft of decisions in favour of veterans and widows  and consequently the Repat Act 1920 was repealed and the new VEA 1986 enacted which also placed a duty on the Commission's decison-makers to apply the reverese criminal standard  of proof,  i.e., that the Commission must be satisfied beyond reasonable doubt that the illnes or injury claimed, is not linked to service - if the decision-maker could not establish that, then the claim must be granted. 

In Milbourne, the operative comments appear to be in my view;

"The following question, namely:

‘Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose:

(a) where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or"


It would appear that within those comments, the operative phrase here is "uncontradicted" and maybe the AAT  took the view that if there was no uncontradicted evidence that it was not bound to give its reasons as it apeared on its face, to be a clear-cut case to the AAT, a view notew tieh aproval by the Federal Court.  In the main, a reason for decision is mandated under admin law and there would be grounds for apeal had no decision of any kind been made - see the AD(JR) Act 1977 (Cth).

cavman


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Nuidat68
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« Reply #10 on: Saturday28March2009 »

 Find the High courts desision on the "Nancy Law" case in sydney where she recived a pension because her husband died of cancer and she won her pension because he was a smoker.
The VVA would have this desision im sure. It was big news when it was handed down .
nuidat68 Wink
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Oigle
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« Reply #9 on: Monday23March2009 »

After reading the AAT Act it appears that the AAT has to give a reason for both accepting as well as rejecting a claim. The exemption to not giving reasons in the quote from the Court relates to evidence where the AAT does not have to explain why it may have rejected some evidence and why it may have relied on other evidence in making its decision.
I think you'll find the same in the VEA and you see DVA claims assessors all the time deciding which evidence to accept and which to ignore.
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Oigle
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« Reply #8 on: Wednesday18March2009 »

But the court did give the reasons and it would be rare for them not to because not giving reasons would leave the decision open for appeal.
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Cav
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« Reply #7 on: Wednesday18March2009 »

This is it in a nutshell....

THE COURT ORDERS THAT:

The following question, namely:
‘Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose:

(a) where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or

(b) where evidence relating to the said question of fact is in conflict with other evidence or material before the Tribunal, why the first-mentioned evidence was not accepted?’

be answered as follows:

(a) No;

(b) No.

The application be dismissed.
The applicant pay the respondent’s costs.


I knew all those years of watching Perry Mason would come in handy  Wink
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Oigle
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« Reply #6 on: Wednesday18March2009 »

Sorry - I quoted the AAT there (para 14 etc)
The High Court reviewed the AAT's evidence and reasoning and said -
    That was the approach adopted by the Tribunal and I see no arguable point of law arising from the Tribunal’s reasons for decision, or any failure on the part of the Tribunal to expose its reasoning process or to deal with relevant issues.’

  51. I would, respectfully, make the same observations in respect of the circumstances of the present case. Had the question posed been answered in the affirmative, in whole or in part, then, regardless of whether it was predicated on an obligation arising under s 43(2B) or 43(2) of the AAT Act, no consequential relief would be warranted. The Tribunal clearly articulated why it was not satisfied on the balance of probabilities that Mr  Milbourn ’s death was ‘war-caused’.
  52. In my opinion, the application should be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
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Oigle
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« Reply #5 on: Wednesday18March2009 »

Well, they seemed to have explained their reasoning in confirming the original decision in a number of paras, and the last one said -
  14. In our opinion, the material before us is unclear about a temporal connection with army service and even less clear about any greater relationship to army service. When forming an opinion about any relationship to service, on balance, we are not satisfied that Mr  Milbourn  had a war-caused smoking habit. We do not consider that Mr  Milbourn ’s death meets the requirements of factor 6(a)(ii) in demonstrating a relationship to service. Further, clause 5 explains that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. In consequence, we are not reasonably satisfied on the balance of probabilities in accordance with subsection 120(4) that Mr  Milbourn ’s death was war-caused. This means his widow’s claim must fail.

DECISION

  15. The tribunal affirms the decision under review.
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Cav
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« Reply #4 on: Wednesday18March2009 »

The point of this case is that the Federal Court has now set a precedent that the AAT is not required to give reasons for its decisions.

Or am I reading this wrong.
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Oigle
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« Reply #3 on: Tuesday17March2009 »

OK, so Mrs Milbourne appealed a previous decision to deny WW Pension based on the contention (causal link) being inconclusive.
No compelling new evidence was presented to support the contention so the appeal failed.
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dodger39
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« Reply #2 on: Tuesday17March2009 »

Try reading this one, and you may see why her claim was rejected.. (Think I've got the right one)

 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2008/959.html?query=^Milbourn
« Last Edit: Tuesday17March2009 by dodger39 » Logged
Oigle
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« Reply #1 on: Tuesday17March2009 »

From reading through it appears that the AAT was not satisfied of the connection between smoking and service.
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Cav
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« on: Tuesday17March2009 »

Hey guys, I know this is not strictly in line with the purpose of this website, but there has been a decicion by the Federal Court that is so unbelievable that all veterans should be made aware of it because it may one day affect them.

It is a Federal Court decision where the court has determined that a war widow does not have to be given a reason why her application for a war widows pension was knocked back.

Not only has she been shafted by DVA, VRB, and the AAT; but also the Federal Court, and she has to pay costs.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/176.html?query=repatriation%20and%20milbourn

If you can't understand it - keep bloody reading it!  Again and again.
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