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No.20 September 2008

Gilkinson v Repatriation Commission

[2008] FCA 1441

COURT Federal Court, Sydney
DATE OF DECISION 22 September 2008
DECISION Appeal allowed, decision of the Tribunal set aside and matter remitted. 
ISSUES Whether the Tribunal committed an error of law by posing and answering the wrong question; and failing to address expressly the hypothesis.


Mr Gilkinson served in the Royal Australian Navy and saw operational service on ten voyages to and from South Vietnam as a member of the crew of HMAS Sydney between 1970 and 1972. He made a claim unsuccessfully for sleep apnoea. The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mr Gilkinson sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision under review and Mr Gilkinson appealed the decision of the Tribunal to the Federal Court.

The Tribunal’s reasoning

Mr Gilkinson’s primary submission before the Tribunal was that his sleep apnoea was caused or was contributed to by his obesity. He argued that Kattenberg v Repatriation Commission (2003) 73 ALD 365 was authority for the proposition that, if operational service contributed to a material degree to his obesity, then that was a sufficient connection. The relevant SoP for sleep apnoea, Instrument No. 13 of 2005, contained the factor of being obese at the time of the clinical onset of sleep apnoea.

The Tribunal noted a report from Dr Volker PhD, a dietician, which stated:

‘shift work, plentiful supply of food and alcohol and low levels of physical activity all contributed to the veteran’s weight gain. The veteran was 57.2kg in May 1965 and 87.5 kg in March 1969. This represents a gain of 30.3kg in 55 months. This translates to a gain of over half kilo/month. The veteran was already over-weight and well on his way to being obese (BMI >30 in 1969). Obesity does not occur instantly, it takes time to accumulate excess energy storage. The adverse health effects of over-weight and obesity develop as gradually as the weight is gained.’

The Tribunal found that it was satisfied beyond reasonable doubt that Mr Gilkinson’s obesity was not connected with his operational service. The Tribunal considered that it was clear from Mr Gilkinson’s medical records, that he was well on the way to being obese before operational service. There was nothing that occurred during his operational service, prior to the assumed clinical onset of sleep apnoea in 1970-71, that in any way caused or contributed to his obesity over and above the existing fact that he was eating to excess and not exercising sufficiently.

Grounds of appeal

Mr Gilkinson appealed to the Federal Court arguing that the Tribunal had erred in law because it:

The Court’s Consideration

The Court found that the Tribunal had failed to pose and answer the correct question in dealing the hypothesis raised by the material before the Tribunal that shift work on operational service contributed to his obesity.  Justice Rares noted that no mention was made of shift work in any part of the Tribunal’s reasoning process.  More specifically, the Tribunal’s reasons did not deal with that part of the hypothesis in Dr Volker’s evidence that the development of Mr Gilkinson’s obesity was contributed to by either the effects of shift work alone, or that in combination with the two factors of eating to excess and not exercising sufficiently. The relevant question for the Tribunal to ask was whether there was a reasonable hypothesis that Mr Gilkinson’s shift work during the period of his operational service prior to the diagnosis of obesity in June 1971 contributed causally to his being obese at that time.

While the Commission argued that consideration of the ‘shift work hypothesis’ was implicit in the Tribunal’s reasoning, the Court found that was not enough. His Honour noted that the tribunal dealt expressly with three of the four factors raised in Dr Volker’s hypothesis namely, the plentiful supply of food and alcohol and low levels of physical activity. It did not deal with shift work, and so it could not be assumed to have considered it. 

Formal decision

Justice Rares allowed Mr Gilkinson’s appeal and remitted the matter to be heard in accordance with the law and reasons in his decision. 

All Practice Notes