Kawicki v Repatriation Commission

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FEDERAL COURT OF AUSTRALIA

Kawicki v Repatriation Commission [2014] FCA 1147

Citation: Kawicki v Repatriation Commission [2014] FCA 1147
Appeal from: Kawicki and Repatriation Commission [2014] AATA 207
Parties: TADEUSZ KAWICKI v REPATRIATION COMMISSION
File number(s): NSD 445 of 2014
Judge(s): BUCHANAN J
Date of judgment: 30 October 2014
Catchwords: DEFENCE AND WAR – appeal from a decision of the Administrative Appeals Tribunal (“AAT”) – where applicant found to be entitled to a general rate but not a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) – whether applicant entitled to special rate or intermediate rate of pension – whether applicant satisfies s 24(1)(c) of the Act in that his incapacity to work was caused by defence-caused injuries alone – whether increase to the general rate of pension should take effect from an earlier date than that decided by the AAT
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), ss 19(5B), 19(5C), 19(5D), 19(6), 21A, 22, 22(2), 23, 23(1)(d), 24, 24(1)(b), 24(1)(c), 28, 68, 70, 73
Cases cited: Kawicki and Repatriation Commission [2014] AATA 207
Smith v Repatriation Commission (2014) 220 FCR 452
Date of hearing: 8 September 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 94
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Ms RM Henderson
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 445 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

TADEUSZ KAWICKI
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

30 OCTOBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be upheld.

2.The decision of the Administrative Appeals Tribunal (“AAT”) dated 10 April 2014 be set aside.

3.The matter be remitted to the AAT to be decided according to law upon consideration of these reasons for judgment.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 445 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

TADEUSZ KAWICKI
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BUCHANAN J

DATE:

30 OCTOBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. On 24 September 2007, the applicant (Mr Kawicki) applied for a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). A series of decisions have been made, arising from that application. The last decision is that of the Administration Appeals Tribunal (“the AAT”). It is from that decision that the present “appeal” comes to this Court.

  2. Although called an appeal, the proceedings are in the original jurisdiction of the Court. They arise under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal must be “on a question of law”.

  3. Before I deal with the questions of law which are said to arise for consideration, some background is set out.  First, a brief outline of…

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Details
Case
[2014] FCA 1147
Decision Date

CaseChat Overview and Summary

The matter of Kawicki v Repatriation Commission involved a dispute between the applicant and the Repatriation Commission regarding the entitlement of the applicant to a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth). The applicant argued that he was entitled to the special rate of pension due to his incapacity to work caused by defence-related injuries alone, while the Repatriation Commission contended that he was not entitled to the special rate but rather to an intermediate rate. Additionally, the applicant sought to have an increase to the general rate of pension take effect from an earlier date than that decided by the Administrative Appeals Tribunal (AAT).

The primary legal issues the court had to address were whether the applicant satisfied the conditions outlined in section 24(1)(c) of the Act, specifically whether his incapacity to work was caused by defence-caused injuries alone, and whether the increase to the general rate of pension should be effective from an earlier date than determined by the AAT. The court had to examine the evidence presented by both parties, including the medical reports and testimonies of Dr Chase and Dr Carran, and the contemporaneous medical evidence from 1999.

The court found that the AAT's decision to refuse the special rate of pension was not erroneous, as the evidence suggested that the applicant's incapacity to work was not solely due to his defence-caused injuries. Dr Carran's opinion, which stated that the applicant's left wrist and left ankle conditions were the main contributors to his inability to work, was supported by the contemporaneous medical evidence from 1999. Furthermore, the applicant's own statement in 2009 recognised that the BLIP Syndrome was at least a factor in his being incapacitated for work. Consequently, the court concluded that the applicant did not satisfy the requirements of section 24(1)(c) of the Act, and thus, he was not qualified for payment of the disability pension at the Special Rate.

In light of the above findings, the court set aside the AAT's decision and remitted the matter back to the AAT for reconsideration in accordance with the court's reasons for judgment. The court did not make any orders regarding the increase to the general rate of pension, as the matter was not fully argued before the court.

Orders

Orders of the court

1. The appeal be upheld.

2. The decision of the Administrative Appeals Tribunal (“AAT”) dated 10 April 2014 be set aside.

3. The matter be remitted to the AAT to be decided according to law upon consideration of these reasons for judgment.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Carran supported this position. There was no contemporaneous medical evidence against it. There was only the statement by Dr Fogg in 1999 that the condition was permanent and stable. The AAT decision – refusal of the special rate pension There are two aspects of the AAT decision that have been challenged in the present proceedings – the refusal of the special rate and the failure to back date 100% of the general rate to 24 June 2007. Consideration of the general rate does not arise to the extent the special rate might be granted, but it is necessary to establish at least 70% incapacity for the special rate so the second aspect is also important, if the special rate is otherwise payable. In its decision, the AAT dealt with entitlement to the special rate, in conclusion, as follows: 55.Dr Chase, who prepared a report dated 13 May 2013 for the Respondent, stated that Mr Kawicki’s work capacity “is affected by his accepted disabilities alone”. However, in oral evidence, Dr Chase said that Mr Kawicki had failed to mention in their interview that he had been diagnosed with the Blip Syndrome. Mr Kawicki explained that he did not mention this to Dr Chase because the Blip Syndrome did not prevent him from working, and could therefore be ignored for the purpose of assessing his eligibility for Special Rate. 56.In his letter dated 18 March 2014, Dr Carran said it is Mr Kawicki’s left wrist and left ankle conditions that “mostly contribute to his inability to work” [my emphasis]. He said the Blip Syndrome, which made it unsafe for Mr Kawicki to repair live switchboards at the Airport, “is of no consequence in his inability to work on the whole, which is predominantly due to his recognised disabilities of his left wrist and ankle” [my emphasis]. In oral evidence, Dr Carran said the Blip Syndrome would not affect the “vast majority” of work that Mr Kawicki might undertake. 57.Having reviewed the above evidence, I am not satisfied that the incapacity from Mr Kawicki’s accepted conditions, alone, prevented him from continuing to undertake, the remunerative work that he was undertaking. I have paid particular attention to the contemporaneous medical evidence from 1999 which indicates that it was the Blip Syndrome that was the basis of his claim for the DSP being granted, and his statement in September 2009 which recognises that the Blip Syndrome was, at least, a factor in his being incapacitated for work. It may well be that Mr Kawicki’s left wrist and left ankle were the main reason for his stopping work in 2001, but I am not satisfied that it was those conditions alone. Thus, s 24(1)(c) of the VE Act is not satisfied and Mr Kawicki is not qualified for payment of the disability pension at the Special Rate. (Emphasis in original.) There are a number of elements at work in these paragraphs. First, there is the qualification on Dr Chase’s otherwise unequivocal written opinion. This alteration in Dr Chase’s opinion appears to have defeated Mr Kawicki’s claims. Secondly, there is the suggestion that Dr Carran’s opinion was relevantly qualified in a way that also defeated the claims. Thirdly, there is the conclusion that the reason for stopping work was in part connected with BLIP Syndrome. This has three elements – Dr Fogg’s assessment, statements made by Mr Kawicki in 2009 and a conclusion by the AAT that Mr Kawicki’s left wrist and left ankle were not the only reasons he stopped work in 2001.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.