John Raymond Watkins v Repatriation Commission

[2015] HCASL 191

JOHN RAYMOND WATKINS

v

REPATRIATION COMMISSION

[2015] HCASL 191
M26/2015

1. The applicant, a former member of the Royal Australian Navy, received a service disability pension under s 22 of the Veterans' Entitlements Act 1986 (Cth). The applicant applied to the respondent to have his pension increased in accordance with s 24 of the Act, which provides for a "[s]pecial rate of pension" to be paid where, amongst other criteria, "the veteran is, by reason of incapacity from ... war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking" ("the 'alone' requirement"). The respondent determined that the applicant was ineligible for the special rate of pension as he did not cease work due to his war-caused disabilities alone. The respondent's decision was affirmed on appeal to the Veterans' Review Board and the Administrative Appeals Tribunal ("the Tribunal").

2. The Federal Court of Australia (Bromberg J) allowed the applicant's appeal against the orders of the Tribunal, determining that the Tribunal had misconstrued the "alone" requirement.  The Federal Court held that the "non-war caused disabilities will only be a disqualifying factor if they of themselves and independently of the war caused ailments also have the preventative effect".  The Full Court of the Federal Court of Australia (Kenny, Barker and Rangiah JJ) subsequently allowed an appeal against the orders of the Federal Court, accepting the respondent's argument that the decision of the Full Court of the Federal Court in Repatriation Commission v Richmond (2014) 226 FCR 21 settled the construction of the "alone" requirement, and did so contrary to the construction adopted by the primary judge.

3. The applicant now seeks special leave to appeal from the orders of the Full Court.  The applicant has not demonstrated any reason to doubt the correctness of the construction relied upon by the Full Court.  The application must therefore be dismissed. 

4. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
4 November 2015 S.J. Gageler