NOEL TERRANCE HALL v. REPATRIATION COMMISSION No. QG127 of 1992 FED No. 458/94 Number of pages - 11 Defence and war (1994) 33 ALD 454
COURT
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION SPENDER J
CATCHWORDS
Defence and War - ex-servicemen (veterans) - pensions, allowances and other benefits - qualification for benefits - date at which veteran qualified for benefit at 100% of the General Rate - date at which veteran's entitlement to such pension is to be assessed - whether retirement from Army in 1985 in order to secure economic benefits which could have been lost due to war-caused injury or disease was an operative cause of his unemployment at later times - work - nature of requirement that veteran genuinely seek to engage in remunerative work.
Counsel for the applicant: Mr K. J. McGhee Instructed by: Sampson and Assoc.
Counsel for the respondent: Mr S. L. Doyle Instructed by: Australian Government Solicitor
ORDER
The Court orders that:
(i) the appeal be allowed;
(ii) the matter be remitted to the Tribunal to be heard and determined according to law, with such further or other evidence as the parties might wish to place before it;
(iii) the respondent pay the applicant's costs of the application, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SPENDER J This is an appeal by Noel Terrance Hall from a decision of the Administrative Appeals Tribunal (constituted by Mr K. L. Beddoe, Senior Member, Brigadier I. R. W. Brumfield, Member, and Dr J. B. Morley, Member) given on 6 August 1992 wherein the Tribunal directed that the decision under review (being a decision of the Repatriation Commission made on 31 January 1990 that he should receive pension at 100% of the General Rate) be varied by deciding that the applicant is entitled to pension at 100% of the General Rate with effect from 24 July 1985.
The appeal is in the original jurisdiction of the Federal Court and, pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, lies only on a question of law. The Tribunal determined that Mr Hall was not prevented from engaging in remunerative work because of service related disabilities alone.
On 24 August 1989, the veteran, Mr Hall, applied for an increase in his disability pension. In that application, he indicated his current rate of disability pension was 80-90%. It is accepted by the parties that this application comprehended an application to an entitlement to either the Special rate of pension or the Intermediate rate of pension provided for by ss. 23 and 24 respectively of the Veterans' Entitlements Act 1986 ('the Act').
Mr Hall was born on 13 December 1935…
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.
In the Federal Court of Australia, the case of Hall v Repatriation Commission involved the applicant, Mr Hall, appealing against the Commission's decision regarding his eligibility for certain pension benefits. The central issue was the date at which Mr Hall qualified for a pension at 100% of the General Rate, and whether his retirement from the Army in 1985, allegedly to secure economic benefits, should be considered an operative cause of his unemployment at later times.
The legal issues before the court included the interpretation of the relevant legislative provisions concerning pension benefits for ex-servicemen and the assessment of Mr Hall's entitlement to such benefits. Additionally, the court had to determine whether Mr Hall's retirement was genuinely motivated by a desire to secure economic benefits or if it was influenced by his war-caused injury or disease. The court also had to consider the nature of the requirement for Mr Hall to genuinely seek to engage in remunerative work.
The court found that the Tribunal had erred in its interpretation of the legislative provisions and in its assessment of Mr Hall's entitlement to the pension. The court held that the Tribunal had not adequately considered the possibility that Mr Hall's retirement was influenced by his war-caused injury or disease, and that this should have been a factor in determining the date of his qualification for the pension. The court further held that the Tribunal had not properly assessed whether Mr Hall genuinely sought to engage in remunerative work. As a result, the appeal was allowed, and the matter was remitted to the Tribunal for rehearing with such further or other evidence as the parties might wish to place before it. The court also ordered that the respondent pay the applicant's costs of the application, to be taxed if not agreed.
Orders
Orders of the court
The Court orders that:
(i) the appeal be allowed;
(ii) the matter be remitted to the Tribunal to be heard and determined according to law, with such further or other evidence as the parties might wish to place before it;
(iii) the respondent pay the applicant's costs of the application, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.