Case: Repatriation Commission v Yates [1995] FCA 1234 ; (1995) 38 ALD 80
Outcome: cited
Honour also held that the recurrence of the symptoms was: not an aggravation of the condition. A temporary presence of symptoms is not sufficient to show an aggravation within the meaning of the Act. In this connection his Honour relied on the observations of Lindgren J in Repatriation Commission v Yates [1995] FCA 1234 ; (1995) 38 ALD 80 at 88. The appellant's third complaint that the Tribunal erred in law by failing to consider the hypothesis that the appellant's seasickness caused his depression was also dismissed. The Magistrate referred to the Tribunal's finding (recorded at [6] above) that the hypothesis of depression arising from severe seasickness was reasonable under the terms of clause 5(b) of the SoP, and to the first two sentences of the passage quoted at [6], and continued: Thus while it is true, as Mr Cunningham asserts, that paragraph 9 of the Tribunal's reasons for decision rolls three independent hypotheses into one, the extract I have detailed shows that the Tribunal in fact did expressly consider the hypothesis that the seasickness caused the depression simpliciter. His Honour then observed that it was "scarcely surprising" that the Tribunal had to an extent rolled three hypotheses into one, having regard to the way in which the case had been conducted, both in evidence and in submissions. He gave some examples at [66] to [69], and concluded: the issue of the seasickness in the evidence before the Tribunal was intimately interrelated with the concerns of Mr Cunningham right from the inception of his more severe seasickness both that it caused social isolation and/or that it [led] him to be concerned about his future in the Navy. Given that this is so it does not seem to me that the Tribunal can be overly criticised for approaching the matter in the way that it did. The fact that it did so in large part followed the Appellant's evidence and to an extent the submissions made by counsel on his behalf. Thus the finding by the Tribunal that "constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved" was in my view open to the Tribunal on the materials and does not constitute an error of law. His Honour noted that in view of his dismissal of all three complaints, he did not need to deal with the respondent's submission that the appeal was incompetent. This issue is dealt with in the ensuing paragraphs. The appellant commenced his proceeding in this Court. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect of appeals from the Tribunal. Rule 3(2) requires that the notice of appeal state, among other things: (b) the question or questions of law to be raised on the appeal; (c) the order sought, and (d) briefly, but specifically, the grounds relied upon in support of the order sought. The proceeding was transferred to the Federal Magistrates Court pursuant to s 44AA of the AAT Act. Section 44AA(8) confers jurisdiction on the Federal Magistrates Court to hear and determine transferred appeals. Subsection (9) provides that s 44(4), (5) and (6) apply in relation to the hearing and determination of a transferred appeal in a corresponding way to that in which they apply to the hearing and determination of an appeal to this Court. Section 44(4) requires this Court to hear and determine the appeal and make such orders as it thinks appropriate. Subsection (5) empowers the Court to make orders affirming or setting aside the Tribunal's decision and an order remitting the case to be heard and decided again by the Tribunal.