Counsel v Repatriation Commission

Counsel appealed against a decision of the Administrative Appeals Tribunal affirming a decision of the Repatriation Commission that the applicant was not entitled to be paid a veterans' disability pension at the special rate. The applicant had claimed an increase in his disability pension, which was increased to 100% of the general rate, but he was not entitled to the special rate or extreme disablement allowance. The Tribunal's decision was affirmed by a Department of Veterans’ Affairs review officer, the Veterans’ Review Board, and finally the Tribunal. The applicant argued that the Tribunal had failed to consider hypothetical earnings and whether, but for his incapacity, the farm might have achieved greater earnings. The applicant submitted that the evidence before the Tribunal was sufficient to raise the issue for the Tribunal's consideration.

The court held that the Tribunal had not erred by construing the expression "loss of earnings on his own account" as requiring a loss of net earnings, namely gross earnings less deduction of expenses. The meaning of the expression "earnings on his or her own account" in s 24(2A)(e) has to be ascertained having regard to the statutory context in which the expression appears. The phrase "remunerative work" raises questions about whether it is substantial and successful, but what constitutes "remunerat(ion)" is not to be viewed narrowly. The court held that there was no error of law on the Tribunal's part in deciding that the veteran had not been engaged in "remunerative work" (in so far as the dog breeding was concerned).

The application was dismissed. The applicant was ordered to pay the respondent's costs.