Delkou v Repatriation Commission

[1986] FCA 516

Re: THOMAS PETROU DELKOU
And: THE REPATRIATION COMMISSION
No. NSW G179 of 1986
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Beaumont J.
Wilcox J.

CATCHWORDS

Repatriation - Claim for Special Rate pension - Pension granted by Veterans' Review Board - Appeal by Repatriation Commission to Administrative Appeals Tribunal - Amendment of legislation before appeal heard - Whether amended legislation applied in proceedings before Tribunal - Whether applicant prevented from continuing to carry out remunerative work by incapacity caused by his war related disabilities alone.

Repatriation Act 1920, ss.24, 25, 29, 47, 101, Schedule 2

Repatriation Legislation Amendment Act 1984, s.55

Repatriation Legislation Amendment Act 1985, ss.16, 34(1), 68, 69, 70

Administrative Appeals Tribunal Act 1975, s.44

Maxwell v Murphy (1957) 96 CLR 261, Duralla Pty Ltd v Plant (1984) 2 FCR 342, Cooper Brookes (Wollongong) Proprietary Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, Banovich v Repatriation Commission (Full Court of the Federal Court of Australia, unreported, 17 November 1986) referred to.

HEARING

SYDNEY

#DATE 17:11:1986

Counsel and Solicitors for Applicant: A.T. McInnes Q.C. with I.M. Khan instructed by the Autralian Legal Aid Office.

Counsel and Solicitors for Respondent: Mrs. P. Flemming Q.C. with Miss S. Ward instructed by the Australian Government Solicitor

ORDER

The appeal be dismissed.

The appellant pay to the respondent its costs of the appeal.

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

JUDGE1

Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975, the applicant, Thomas Petrou Delkou, appeals to the Court from a decision of the Administrative Appeals Tribunal ("the Tribunal") deciding the applicant's pension entitlement under the Repatriation Act 1920. To understand the questions of law which are said to arise on the appeal, it is necessary to describe the history of the matter.

1. Born in Greece on 5 May 1917, the applicant migrated to Australia in 1937. After enlisting in the Australian Army in March 1942, he served in a number of postings in this country until his discharge in April 1946. Upon his discharge, he was self-employed as a tailor until 1965; between March 1965 and December 1970, he was employed as a machine operator by Johnson & Johnson Australia Pty. Limited. In the course of his employment, the applicant sustained two injuries to his back - one in October 1967, the second, more serious, in September 1970; he was on light work from November until December 1970. Apart from some part-time tailoring work in October and November 1971, he has not worked since December 1970.

2. In March 1977, the applicant lodged a claim for a pension under the Repatriation Act in respect of "nerves", i.e. a chronic anxiety condition. The claim ultimately came before the Repatriation Review Tribunal ("the RRT") for review in June 1982. The RRT set aside a decision of the respondent, the Repatriation Commission ("the Commission"), rejecting the…