Byrne v Repatriation Commission

[2001] FCA 1134

FEDERAL COURT OF AUSTRALIA

Byrne v Repatriation Commission
[2001] FCA 1134

VETERANS’ ENTITLEMENTS – where war-caused incapacity “substantial cause” of applicant’s failure to obtain remunerative work within the meaning of s 24(2)(b) Veterans’ Entitlement Act 1966 (Cth)

Veterans’ Entitlements Act 1986 (Cth) ss 24(1)(c), 24(2)(b)

Repatriation Commission v Smith (1987) 15 FCR 327 referred to
Repatriation Commission v Maley (1991) 24 ALD 43, (1991) 14 AAR 278 referred to
Birtles v Repatriation Commission (1991) 33 FCR 290 referred to
Thomas v Repatriation Commission (1994) 50 FCR 112 referred to
Flentjar v Repatriation Commission (1998) 48 ALD 1, (1997) 26 AAR 93 referred to
Repatriation Commission v Flentjar (1997) 47 ALD 67 referred to

KEVIN LEWIS BYRNE v REPATRIATION COMMISSION
N 425 OF 2001

GYLES J
SYDNEY
17 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 425 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	KEVIN LEWIS BYRNE APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	17 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The respondent pay the applicant’s costs.

3.The decision of the Administrative Appeals Tribunal dated 19 March 2001 be set aside.

4.The matter be remitted to the Administrative Appeals Tribunal for rehearing according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 425 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	KEVIN LEWIS BYRNE APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	GYLES J
DATE:	17 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal on questions of law from a decision of the Administrative Appeals Tribunal (“AAT”) on 19 March 2001 as to entitlements of Kevin Lewis Byrne (“the applicant”) pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

2. The debate between the parties concerns an aspect of a claim for a special rate of pension pursuant to s 24 of the Act, namely, one issue as to the proper construction of s 24(2)(b) of the Act. That subsection relates back to s 24(1)(c). The relevant provisions are as follows:

   “24.     Special rate of pension

   (1)This section applies to a veteran if:

   …

   (c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were from of that incapacity;  and

   …

   (2)For the purpose of paragraph (1)(c):

   …

   (b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she…