Birtles, S.G. v Repatriation Commission - [1991] FCA 822

Re: SAMUEL GEORGE BIRTLES
And: REPATRIATION COMMISSION
No. G013 of 1991
FED No. 822
Veterans' Entitlements
(1991) 105 ALR 359
(1991) 14 AAR 497
(1991) 33 FCR 290
(1991) 24 ALD 545

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Veterans' Entitlements - Administrative Law - appeal from Administrative Appeals Tribunal - application for increased pension pursuant to s.24 Veterans' Entitlement Act 1986 - whether veteran is prevented by reason of incapacity from war-caused injury or disease alone from "continuing to undertake remunerative work that the veteran was undertaking" - applicant left last employment upon reaching statutory retiring age - whether relevant remunerative work "last" remunerative work - consideration of decisions in Banovich and Starcevich - relevance of retirement of applicant to country area to qualification under s.24.

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Maley (Full Court of the Federal Court, unreported, 15 October 1991)

Starcevich v Repatriation Commission (1987) 18 FCR 221

Veterans' Entitlements Act 1986: ss.23, 24

Repatriation Act 1920: schedule 2.

HEARING

SYDNEY

#DATE 18:12:1991

Counsel and Solicitors for Applicant: Mr M.B. Smith instructed by

Legal Aid Commission of New South Wales

Counsel and Solicitors for Respondent: Ms R.M. Henderson instructed by

the Australian Government Solicitor

ORDER

The matter be remitted to the Tribunal for redetermination in accordance with law with or without the reception of new evidence as the Tribunal shall determine.

The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Mr Samuel George Birtles ("Mr Birtles"), appeals against the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by a Deputy President, affirming a decision of the Repatriation Commission refusing to Mr Birtles an increase in the rate of his Veterans' Disability Pension.

Mr Birtles served in the Royal Australian Air Force during World War II and was shot down over Italy on 23 August 1944, taken prisoner and transferred to Germany. He had been shot in the left elbow and left leg and spent four and a half months in hospital. He was forced to march 160 miles through Germany during the northern winter of 1945 along with a group of other prisoners of war and was ultimately liberated in May 1945 returning to Australia in September of that year when he was discharged.
It was accepted by the Commission that Mr Birtles had the following war service disabilities:

"* gun shot wound left elbow * myopia right and left

* diabetes mellitus

* below knee amputation right leg * below knee amputation left leg."

Mr Birtles is an insulin-dependent diabetic. His right leg was amputated below the knee in October 1981 and his left leg amputated below the knee in January 1984.
For a short time before his war service, Mr Birtles had worked with the Alliance Insurance Company as a clerk. Upon his discharge he rejoined that company…

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: [1991] FCA 822
Decision Date: 18 DECEMBER 1991

CaseChat Overview and Summary

The case of Birtles, S.G. v Repatriation Commission involved the applicant, Birtles, who sought an increased pension under section 24 of the Veterans' Entitlement Act 1986. The dispute centered on whether the applicant's incapacity due to war-caused injuries or diseases alone prevented him from continuing remunerative work he was undertaking at the time of his departure from the workforce. The Federal Court heard an appeal from the Administrative Appeals Tribunal, which had previously dismissed the applicant's claim.

The legal issues in the case required the court to interpret the statutory language of section 24, specifically focusing on the phrase "continuing to undertake remunerative work that the veteran was undertaking." A critical question was whether the applicant's departure from employment upon reaching the statutory retirement age constituted the "last" remunerative work for the purposes of the legislation. The court also considered relevant precedents, such as the decisions in Banovich and Starcevich, which provided guidance on the interpretation of similar statutory language in the context of veterans' entitlements. Additionally, the court had to assess the relevance of the applicant's retirement in relation to his geographical area of residence.

The court found that the Administrative Appeals Tribunal had erred in its interpretation of the statutory language and the relevant precedents. It concluded that the Tribunal did not appropriately consider the legislative intent behind section 24 and the case law that provided context to the statutory terms. Consequently, the court decided to remit the matter back to the Tribunal for redetermination, allowing the Tribunal to consider the matter in light of the correct legal principles. The court also ordered that the respondent pay the applicant's costs of the appeal.

Orders

Orders of the court

The matter be remitted to the Tribunal for redetermination in accordance with law with or without the reception of new evidence as the Tribunal shall determine.

The respondent pay the applicant's 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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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