Hobbs v Repatriation Commission - [2002] FCA 560

FEDERAL COURT OF AUSTRALIA
Hobbs v Repatriation Commission
[2002] FCA 560
VETERANS’ ENTITLEMENTS – where applicant received special rate pension for defence-caused injury under Veterans’ Entitlements Act 1986 (Cth) – where applicant received additional permanent impairment lump sum under Div 4 of Pt II of Safety, Rehabilitation and Compensation Act 1988 (Cth) – where Repatriation Commission deducted payments representing lump sum from pension – whether compensation for incapacity in s 74(3) of the Veterans’ Entitlements Act included lump sum payment received under Div 4 of Pt II of the Safety, Rehabilitation and Compensation Act
WORDS AND PHRASES – “incapacity”, “compensation”
Veterans’ Entitlement Act (Cth) 1986, ss 21A, 22, 24, 74
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14(1), 19, 24(1), 27(1)
Apthorpev Repatriation Commission (1987) 77 ALR 42 referred to
ALAN HOBBS v REPATRIATION COMMISSION
A 70 OF 2001
GYLES J
SYDNEY (HEARD IN CANBERRA)
3 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 70 OF 2001

BETWEEN:

ALAN HOBBS
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

3 MAY 2002

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:
1.        The application is dismissed.
2.        The applicant is to pay the costs of the respondent.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 70 OF 2001

BETWEEN:

ALAN HOBBS
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GYLES J

DATE:

3 MAY 2002

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), or in the alternative, pursuant to s 39B of the Judiciary Act 1903 (Cth), to review decisions of the Repatriation Commission (“the respondent”) made in respect of payments made to the applicant pursuant to the Veterans Entitlement Act 1986 (Cth) (“the VE Act”).
Facts
It is convenient to set out the Statement of Agreed Facts.
1.The applicant was a member of the Australian Army from 11 July 1977 to his discharge on 20 January 1995.
2.The applicant claimed a disability pension under Part IV of the VE Act. On 2 February 1995 the respondent determined, with effect from 4 July 1994, that the applicant’s lumbar invertebral disc prolapse with nerve root compression was defence-caused.
3.As a result of the 2 February 1995 determination, the applicant was paid a pension by the respondent at 100% of the general rate (see ss 73 and 22 of the VE Act) with effect from 4 July 1994.
4.During two periods between 2 February 1995 and 24 October 1996, the applicant was temporarily paid a pension at the special rate (see ss 25 and 24 of the VE Act). The applicant is currently being paid a pension at the special rate (see s 24 VE Act).
5.In 2001 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the

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.

Continue reading Hobbs v Repatriation Commission

Details

AGLC: Hobbs v Repatriation Commission [2002] FCA 560
Case: [2002] FCA 560
Decision Date: 3 MAY 2002

CaseChat Overview and Summary

The case of Hobbs v Repatriation Commission concerns a challenge by the applicant, a former member of the Australian Army, against the Repatriation Commission's decision to recover pension payments made to him under the Veterans Entitlement Act 1986 (Cth) from a lump sum payment received under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute arose after the Administrative Appeals Tribunal found the applicant entitled to compensation for permanent impairment, resulting in a lump sum payment. The Repatriation Commission subsequently deducted an amount from this payment equivalent to pension payments already made, invoking s 74 of the Veterans Entitlement Act. The applicant contested this deduction, arguing there was no legal basis for it.

The primary legal issue before the court was whether the Repatriation Commission was entitled to recover pension payments made to the applicant from a lump sum payment awarded under the Safety, Rehabilitation and Compensation Act. This required the court to interpret s 74 of the Veterans Entitlement Act, particularly the meaning of "compensation" in the context of the applicant's pension payments. The applicant argued that the special rate pension was based on incapacity for work, not impairment, and thus not a form of compensation. The Repatriation Commission, on the other hand, contended that the lump sum payment constituted compensation under s 74(3) of the Veterans Entitlement Act, making the recovery of pension payments lawful.

In determining the matter, the court examined the language and purpose of the Veterans Entitlement Act and the Safety, Rehabilitation and Compensation Act. The court found that the term "compensation" in s 74(3) of the Veterans Entitlement Act included payments for loss or suffering, as defined in the Macquarie Dictionary. Given the ordinary meaning of the word and the context in which it was used, the court concluded that the lump sum payment under the Safety, Rehabilitation and Compensation Act constituted compensation. The court also rejected the applicant's argument that there was a clear distinction between impairment and economic loss in the context of pension payments. The court held that the statutory provisions did not support such a dichotomy and that the meaning of "compensation" was consistent across different types of pensions.

The court dismissed the application, finding that the Repatriation Commission's recovery of pension payments from the lump sum award was lawful. The court further ordered that the applicant pay the costs of the respondent.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent.

Background

Background to the litigation

This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), or in the alternative, pursuant to s 39B of the Judiciary Act 1903 (Cth), to review decisions of the Repatriation Commission (“the respondent”) made in respect of payments made to the applicant pursuant to the Veterans Entitlement Act 1986 (Cth) (“the VE Act”).Facts It is convenient to set out the Statement of Agreed Facts.1.The applicant was a member of the Australian Army from 11 July 1977 to his discharge on 20 January 1995.2.The applicant claimed a disability pension under Part IV of the VE Act. On 2 February 1995 the respondent determined, with effect from 4 July 1994, that the applicant’s lumbar invertebral disc prolapse with nerve root compression was defence-caused.3.As a result of the 2 February 1995 determination, the applicant was paid a pension by the respondent at 100% of the general rate (see ss 73 and 22 of the VE Act) with effect from 4 July 1994.4.During two periods between 2 February 1995 and 24 October 1996, the applicant was temporarily paid a pension at the special rate (see ss 25 and 24 of the VE Act). The applicant is currently being paid a pension at the special rate (see s 24 VE Act).5.In 2001 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of acute lumbar disc prolapse with irritation of L4/5 and L5 S1 nerve roots. The claim was refused by the Military Compensation and Rehabilitation Service (“MCRS”), and the applicant applied to the Administrative Appeals Tribunal for review of the decision.6.On 19 June 2001, the Administrative Appeals Tribunal set aside the MCRS decision and substituted a decision that the applicant was entitled to receive a payment for permanent impairment under ss 24 and 27 of the SRC Act.7.By a letter dated 28 June 2001, the MRCS notified the respondent that pursuant to the AAT decision, an “additional lump sum” of $4,291.02 was to be paid to the applicant.8.On 3 July 2001, the respondent notified the MCRS that $1,118.95, representing pension payments made by the respondent to the applicant, should be deducted from the applicant’s lump sum SRC payment (see s 74(3) VE Act).9.By a letter dated 10 July 2001 MCRS notified the applicant’s solicitors of the respondent’s claim for repayment of pension. In the same letter, MCRS advised the solicitors that the sum of $3,172.07 would be paid to the applicant “by the end of this week.”10.In a letter to the Secretary of the Department of Veterans’ Affairs dated 20 August 2001, the applicant’s solicitors asserted that there was no legal basis for recovering amounts from the SRC Act payments. They requested repayment of all amounts deducted from the payments made to the applicant under ss 24 and 27 of the SRC Act.11.The Branch Head of the Legal Services Group, Department of Veterans’ Affairs, responded to the applicant’s solicitors’ correspondence on behalf of the Secretary. In a letter dated 15 November 2001, the Branch Head maintained that the respondent’s conduct was lawful and declined to repay the amounts claimed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

Counsel for the respondent does not agree that a special rate pension is based solely on incapacity for work and not at all upon impairment. She points out that, in relation to a person in the position of the applicant, the eligibility criteria include a 70% degree of incapacity assessed under GARP, and it is common ground that it substantially relates to impairment. It was submitted that the characteristics of and criteria for a special rate pension are quite distinct from conventional workers compensation provisions such as s 19 of the SRC Act, which do not depend upon permanent impairment. She referred to the history of the VE Act provisions in support of this submission. Counsel for the respondent laid stress upon the width of the definition of “compensation” in s 74(1) of the VE Act, and did not agree with the variable meaning attributed to “disability” in s 74 by the submissions for the applicant. She submitted that this was a simple case of attempted double dipping. Counsel for the applicant retorted to this riposte by describing the respondent’s position as mean spirited.Decision In my opinion, the argument for the applicant, whilst ingenious and carefully constructed, cannot be accommodated by the terms of s 74 of the VE Act, taken in context. “Incapacity” and “compensation” are ordinary words. “Incapacity” is lack of capacity. Capacity (relevantly) refers to the power, ability or possibility of doing something. “Compensation” is something given or received as an equivalent for (inter alia) loss or suffering. (The Macquarie Dictionary, 3rd ed). The phrase in s 74(3) is “lump sum payment by way of compensation … in respect of incapacity … from injury or disease”, and, by s 74(1), “compensation” includes any payment in the nature of compensation. In my opinion, a lump sum payment pursuant to Div 4 of Pt II of the SRC Act plainly answers the description in s 74(3). The words of s 24 and s 27 of the SRC Act describe the liability to pay in virtually those express terms and that is consistent with the ordinary usage of language. The cross references to the SRC Act in s 74(3A) and s 74(3B) of the VE Act make it most unlikely that the draftsman of s 74(3) would have intended a different, and unusual, meaning to be given to compensation in that section compared with the SRC Act. Giving full weight to the beneficial nature of the statute, I cannot agree that “compensation” in s 74(3) would have a different meaning depending upon the nature of the pension in question. Naturally, a statutory provision might vary in operation depending upon the facts, but the meaning of a word in the statutory provision can hardly change. Furthermore, I am far from satisfied that the neat dichotomy between impairment and economic loss contended for on behalf of the applicant in respect of general rate and special rate pensions exists. Loss of earning capacity is not entirely irrelevant to the GARP assessment. In Apthorpe at 49 the Full Court summarised the difference between the criteria for a special rate and a general rate pension as follows:“… In brief, the criteria for the intermediate rate and for the special rate look to incapacity for work, that is to say incapacity to earn, whereas incapacity for the purposes of the general rate is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran’s life, not only his working life, but also his social and family life. Capacity to earn is a relevant factor to be taken into account in an assessment of total or partial incapacity for the purposes of the general rate but it is not a determining factor. …”

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 70 OF 2001

BETWEEN:	ALAN HOBBS APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	3 MAY 2002
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

JUDGE:	GYLES J
DATE:	3 MAY 2002
PLACE:	SYDNEY (HEARD IN CANBERRA)