Delkou, Tom Petrou v Repatriation Commission - [1984] FCA 318

Re: TOM PETEROU DELKOU
And: THE REPATRIATION COMMISSION
No. G.424 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Repatriation - assessment of degree of disability - whether entitlement to 100% General Pension is a condition precedent to entitlement to a Special Pension - relevance of limitation on employment occasioned by applicant's perception of symptoms.

Repatriation Act 1920 - ss.35, 100, 101. Schedule 1, Schedule 2

HEARING

SYDNEY

#DATE 8:10:1984

ORDER

Appeal allowed.

The decision of the Repatriation Review Tribunal of 10 August 1983 is set aside. The matter is remitted to the Tribunal to be determined in accordance with the Repatriation Act after taking such further evidence as the Tribunal deems appropriate.

The respondent is to pay the applicant's cost of the appeal.

JUDGE1

The applicant, Tom Peterou Delkou, served in the Australian Army during the Second World War. He is therefore a "member of the forces", within the definition of that term contained in s.100 of the Repatriation Act 1920. It follows that he is entitled, pursuant to s.101 of the Act, to receive pensions in accordance with Division 1 of Part III of the Act in respect of "incapacity" which "has arisen out of or is attributable to his war service". Section 35, which is in Division I of Part III, provides that the rates of pension payable under the Division are those specified in the Schedules to the Act.

Schedule 1 is entitled "General Pension Rates". It includes a table of pensions payable in a nominated fortnightly amount, inter alia, "to a member upon his total incapacity". Additionally, it provides:

"3. Where a member of the Forces is temporarily totally incapacitated to such an extent as to be precluded from earning other than a negligible percentage of a living wage while he is so incapacitated, and where the aggregate of the rate of pension payable to that member under Column 3 of the table in this Schedule and the amount (if any) payable to him under Schedule 5 is less than the Special Rate of Pension specified in Schedule 2, the Commission may grant an additional pension to a member at a rate not exceeding the amount of the difference between that aggregate sum and that Special Rate of Pension for such period, whether in excess of six months or not, as the Commission determines.

. . .

6. Where the incapacity of a member of the Forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently, the amount specified in Colume 3 of the table in this Schedule shall, in its application in relation to him, be deemed to be" (a specified sum).

Schedule 2 deals with "Special Pensions". It provides:

"The Special Rate of Pension may be granted to members of the Forces who have been blinded as a result of War…

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: [1984] FCA 318
Decision Date: 08 OCTOBER 1984

CaseChat Overview and Summary

The case before the court involved Tom Petrou Delkou, the applicant, and the Repatriation Commission, the respondent. The central issue was the assessment of the applicant's degree of disability and his entitlement to various pensions under the Repatriation Act. Specifically, the dispute focused on whether the entitlement to a 100% General Pension was a condition precedent to receiving a Special Pension. Additionally, the court had to consider the relevance of any limitations on the applicant's employment due to his perception of his symptoms.

The legal issues revolved around the interpretation of the Repatriation Act and the appropriate methodology for assessing the applicant's degree of disability. The court needed to determine whether the applicant's perceived limitations on employment, which resulted from his symptoms, were relevant to the assessment of his disability and subsequent entitlement to pensions. Furthermore, the court had to clarify whether a 100% General Pension was a prerequisite for the Special Pension.

In addressing these issues, the court found that the Repatriation Review Tribunal had erred in its approach to the assessment of the applicant's degree of disability. The Tribunal had not adequately considered the applicant's perception of his symptoms and their impact on his ability to work. The court held that the Tribunal's decision was flawed and needed to be set aside. The matter was to be remitted to the Tribunal for reconsideration, with further evidence deemed appropriate. The court also ordered that the respondent pay the applicant's costs of the appeal.

Orders

Orders of the court

Appeal allowed.

The decision of the Repatriation Review Tribunal of 10 August 1983 is set aside. The matter is remitted to the Tribunal to be determined in accordance with the Repatriation Act after taking such further evidence as the Tribunal deems appropriate.

The respondent is to pay the applicant's cost of the appeal.

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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