Bowman, Thomas William v Repatriation Commission - [1981] FCA 56

Re: THOMAS WILLIAM BOWMAN
And: THE REPATRIATION COMMISSION (1981) 51 FLR 374
No. G17 of 1980
War Pension - Statutes - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

War Pension - Physical incapacity due to war related injury - Application for increase beyond 100% rate - Applicant able to cope with full time sedentary work in low stress environment with frequent breaks of hours or days - Whether work could be found for him - Whether assessment of right to increased pension involves consideration of effect of physical incapacity on capacity to earn - Test to be applied - Repatriation Act 1920. ss.23, 35, 101, 107VD, 107VH, 107VK, 107VZZH. Schedules 1 and 2.

Statutes - Interpretation - "Unable to earn a living wage" - "Precluded from earning . . . a living wage" - Whether market for appellant's labour to be considered - Repatriation Act 1920 (Cth), ss. 23, 35, 101 (1) (b), 107 VD, 107 VH (2), 107 VZZH (1), Sched. 1 pars. 3, 6, Sched. 2 par. 1.

Appeal - Repatriation Review Tribunal refused application for increased pension - Appeal to Federal Court - Whether Tribunal erred in law - Whether market for appellant's labour to be considered - "Unable to earn a living wage" - "Precluded from earning . . . a living wage" - Repatriation Act 1920 (Cth), ss. 23, 35, 101 (1) (b), 107 VD, 107 VH (2), 107 VZZH (1), Sched. 1 pars. 3, 6, Sched. 2 par. 1.

HEADNOTE

The appellant appealed to the Federal Court of Australia on a question of law against a decision of the Repatriation Review Tribunal refusing an application for an increase in his war pension.

Held, that the Tribunal was bound in law when applying pars. 3 and 6 of Sched. 1 and par. 1 of Sched. 2 of the Repatriation Act 1920 to take into account the effect of the applicant's physical or mental disability on his capacity to earn remuneration by employment or otherwise in any market reasonably accessible to the applicant. The Tribunal had erred in law by leaving out of consideration the market for the appellant's labour.

Appeal allowed.

Thompson v. Armstrong and Royse Pty. Ltd. (1950), 81 CLR 585; Wicks v. Union Steamship Company of New Zealand Ltd. (1933), 50 CLR 328, applied.

Cardiff Corporation v. Hall, (1911) 1 KB 1009; Ball v. William Hunt & Sons Ltd., (1912) AC 496; Birch Bros. Ltd. v. Brown, (1931) AC 605; Repatriation Commission v. Law (1980), 47 FLR 57, referred to.

Collins v. Repatriation Commission (1980), 48 FLR 198, referred to with approval.

HEARING

Sydney, 1980, September 8; November 20; 1981, February 13; March 24; May 12. #DATE 12:5:1981

APPEAL.

Appeal from a decision of the Repatriation Review Tribunal.

J. A. Griffin, for the appellant.

J. G. Crowley, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Paul McCawley.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth…

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.

Continue reading Bowman, Thomas William v Repatriation Commission

Details

AGLC: Bowman, Thomas William v Repatriation Commission [1981] FCA 56
Case: [1981] FCA 56
Decision Date: 12 MAY 1981

CaseChat Overview and Summary

In Bowman, Thomas William v Repatriation Commission, the applicant sought an increase in his war pension on the basis of his physical incapacity due to a war-related injury. The dispute was heard and determined in the Federal Court of Australia. The central legal issue was whether the assessment of the right to an increased pension involved considering the effect of the physical incapacity on the applicant's capacity to earn, and if so, what test should be applied. The court was required to determine if the applicant could cope with full-time sedentary work in a low-stress environment with frequent breaks of hours or days, and whether such work could be found for him.

The court considered the relevant sections of the Repatriation Act 1920, including sections 23, 35, 101, 107VD, 107VH, 107VK, and 107VZZH, as well as Schedules 1 and 2. The court found that the assessment of the right to an increased pension did involve considering the effect of the physical incapacity on the applicant's capacity to earn. The court held that the test to be applied was whether the applicant could cope with full-time sedentary work in a low-stress environment with frequent breaks of hours or days, and whether such work could be found for him. The court determined that the Repatriation Review Tribunal had not properly applied this test, and therefore the decision of the Tribunal was set aside.

The court allowed the appeal, set aside the decision of the Repatriation Review Tribunal, and remitted the matter back to the Tribunal to be heard and decided again according to law. The court further ordered that the respondent pay the appellant's costs of this appeal and of appeal No. G16 of 1980. The court indicated that the Tribunal could hear such further evidence as it may decide to receive.

Orders

Orders of the court

(1) The appeal be allowed;

(2) The decision of the Repatriation Review Tribunal be set aside;

(3) The matter be remitted to the Tribunal to be heard and decided again according to law in the manner I have indicated after the hearing of such further evidence as it may decide to receive.

(4) The respondent pay the appellant's costs of this appeal and of appeal No. G16 of 1980.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.