Barry v Repatriation Commission - [1993] FCA 197

Re: BRIAN ROBERT BARRY
And: REPATRIATION COMMISSION
No. SG19 of 1992
FED No. 197
Number of pages - 14
Veterans
(1993) 113 ALR 461
(1993) 17 AAR 240
(1993) 41 FCR 529
(1993) 29 ALD 670

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J(1)

CATCHWORDS

Veterans - service pension - entitlement to receive - meaning of "income" - whether fortnightly compensation payment made as a consequence of a work related injury constitute "income".

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s99

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) s48, s125

Veterans' Entitlement Act 1986 (Cth) s35

Secretary to Department of Social Security v Read (1988) 15 FCR 456;

Read v The Commonwealth of Australia (1989) 167 CLR 57

Secretary, Department of Social Security v Garvey (1989) 22 FCR 132

Rose v Secretary, Department of Society Security (1990) 21 FCR 241

Marsh v Secretary to the Department of Social Security (1986) 12 FCR 100

Re Zolotenki and Secretary, Department of Social Security (1986-1987) 12 ALD 349

Kelleners v Secretary to the Department of Social Security (1988) 20 FCR 53

Inguanti v Secretary, Department of Social Security (1988) 80 ALR 307

Redding v Lee (1983) 151 CLR 117

Tinkler v Federal Commissioner of Taxation (1979) 29 ALR 663

Commissioner of Taxation v Inkster (1989) 24 FCR 53

HEARING

ADELAIDE, 4 September 1992

#DATE 31:3:1993

Counsel for the Appellant : Mr R.W. Evans

Solicitors for the Appellant : Messrs Armour and Co

Counsel for the Respondent : Mr P. Hanks

Solicitors for the Respondent : Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

O'LOUGHLIN J The appellant, Brian Robert Barry, who was born in South Australia on 6 May 1923, served as a navigator in the Royal Australian Air Force in the New Guinea theatre during World War II.

On 1 April 1985, during the course of his employment with Australia Post, he sustained personal injuries in a motor vehicle accident. On 1 July 1986 he retired from his employment having managed only one brief return to work since the accident. Following upon the accident and until 3 January 1986 the applicant had received sick pay. Thereafter he received fortnightly compensation payments of $433.60, originally pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Compensation Act") and, since 1 December 1988, pursuant to the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Compensation Act").
On 4 June 1986, not long before his retirement, the appellant lodged with the Department of Veteran Affairs ("the Department") an application for a service pension pursuant to the provisions of the Veterans' Entitlement Act 1986 (Cth) ("the Act"). That application was rejected on 1 July 1988 on the ground that the total of his and his wife's income exceeded the permitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 197
Decision Date: 31 MARCH 1993

CaseChat Overview and Summary

The case of Barry v Repatriation Commission involved the appellant, a veteran, challenging the respondent's decision to exclude a fortnightly compensation payment from his assessment of his income for the purposes of determining his eligibility for a service pension. The appellant argued that the compensation payment, resulting from a work-related injury, should not be classified as income for the purpose of calculating his pension entitlement. The matter was heard and determined in the Federal Court of Australia.

The primary legal issue before the court was whether the fortnightly compensation payment received by the appellant, as a result of a work-related injury, constituted "income" under the relevant legislative provisions. The court was required to interpret the definition of "income" as it applied to the appellant's circumstances and determine whether the compensation payment fell within that definition. The court also needed to consider the implications of the compensation payment on the appellant's eligibility for a service pension.

In reaching its decision, the court examined the statutory definition of "income" and the relevant legislative provisions. The court concluded that the compensation payment, despite being a consequence of a work-related injury, was still categorised as income for the purposes of calculating pension entitlements. The court reasoned that the compensation payment was received regularly and was intended to compensate the appellant for the loss of income due to his injury. Therefore, the court found that the compensation payment constituted income and dismissed the appellant's appeal. The court also ordered that the appeal be dismissed with costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

The appeal be dismissed with costs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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