Inglis, Herbert Austin v The Repatriation Commission - [1983] FCA 106

Re: HERBERT AUSTIN INGLIS
And: THE REPATRIATION COMMISSION
Qld G26 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Repatriation - Tribunal's assessment of the extent of the applicant's incapacity - failure to consider diminution of earning ability occasioned by an accepted physical medical condition - "incapacity" - "underlying and persisting loss of confidence" - stress - unable to work.

Repatriation Act 1920, s.107VZZH, Schedule 2

Repatriation Act Amendment Act, 1978, s.40, sub-s. 40(4)(a)

HEARING

BRISBANE

#DATE 31:5:1983

ORDER

1. The Appeal is allowed.

2. The decision appealed from is set aside.

3. The matter is remitted to the Tribunal to be determined according to law with or without hearing such further evidence as it may decide to receive.

4. The respondent pay the applicant's taxed costs of and incidental to these proceedings.

JUDGE1

This is an appeal by Mr Inglis on a question of law from the Repatriation Review Tribunal. The material decision of the Tribunal was delivered on 5 January 1983 The Court is empowered by s.107VZZH of the Repatriation Act 1920 ("the Act") to make such order as it thinks appropriate including an order affirming or setting aside the decision of the Tribunal or an order remitting the case for redetermination.

Mr Inglis is almost 79 years of age. He has had pulmonary tuberculosis which is now inactive. He was first awarded a pension under the Act in respect of pulmonary tuberculosis in 1947. For about thirteen years thereafter, he lived in the country and did not practice his profession as a solicitor. In 1960 he returned to his profession where he experienced stress which led to neuro-dermatitis. Over a period of years, he reduced the extent which he worked and in 1973 he finally ceased work altogether.

Since 1947, Mr Inglis has made a number of claims for pension under the Act. It is necessary to refer only to two of the claims which he made prior to November 1979.

By a decision of 29 April 1969, the Repatriation Board rejected a claim by Mr Inglis to a pension in respect of generalised osteo-arthritis and chronic eczematoid dermatitis. The medical practitioners who saw Mr Inglis in connection with that claim included Dr R. James, a psychiatrist, and Dr Archibald, a dermatologist.

Because of the reliance each party to these proceedings placed upon Dr James' report, which was dated 1 April 1969, it is appropriate to set it out in full. Dr James said:

"He was seen in connection with his claim for Anxiety Neurosis. He told me that after the war years he had been T.P.I. because of Tuberculosis. He had worked as a postmaster for a ten year period. He said that because of his Tuberculosis he was not fit for more competitive work situations. In 1960 he developed Arthritis and this began to cause him some trouble. He returned to his employment as a solicitor in 1960 and worked at Chinchilla. In 1961 he moved…

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: [1983] FCA 106
Decision Date: 31 MAY 1983

CaseChat Overview and Summary

In the case of Inglis, Herbert Austin v The Repatriation Commission, the dispute was centred around the assessment of the applicant's incapacity for work purposes. The Federal Court was tasked with reviewing the Tribunal's decision concerning the extent of Mr Inglis' incapacity and his eligibility for benefits under the Repatriation Act. The Tribunal had concluded that Mr Inglis was not incapacitated for employment, a finding which he appealed on the grounds that the Tribunal failed to consider certain aspects of his medical condition and psychological state.

The primary legal issue before the court was whether the Tribunal had correctly applied the relevant legislative provisions when determining Mr Inglis' incapacity for work. Specifically, the court needed to assess whether the Tribunal had erred in not considering the diminution of Mr Inglis' earning ability due to his physical condition, and if the Tribunal had appropriately accounted for the underlying and persisting loss of confidence that was a consequence of his medical condition. This included an examination of whether the Tribunal had overlooked the impact of stress on Mr Inglis' ability to work.

The court found that the Tribunal had indeed failed to properly consider the diminution of Mr Inglis' earning ability due to his physical condition and the effects of stress on his capacity to work. The Tribunal's assessment did not adequately address the underlying and persisting loss of confidence which significantly impacted Mr Inglis' ability to engage in employment. Consequently, the court held that the Tribunal's decision was flawed and set it aside. The matter was remitted back to the Tribunal to be reassessed according to law, with an option to receive further evidence if necessary. The court also ordered the Commission to pay Mr Inglis' costs of the appeal.

Orders

Orders of the court

1. The Appeal is allowed.

2. The decision appealed from is set aside.

3. The matter is remitted to the Tribunal to be determined according to law with or without hearing such further evidence as it may decide to receive.

4. The respondent pay the applicant's taxed costs of and incidental to these proceedings.

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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