Leigh v Repatriation Commission

FEDERAL COURT OF AUSTRALIA

Leigh v Repatriation Commission [2006] FCA 395

VETERANS AFFAIRS – pension, meaning of permanently incapacitated, meaning of temporarily incapacitated, meaning of foreseeable future, where tribunal preferred evidence of one expert to that of another, whether tribunal misunderstood the question posed.

Veterans Entitlements Act 1986 (Cth) s 24, s 24(1)(b), s 24(1)(c), s 24(1)(d), s 24A, s 25

McDonald v Director General of Social Security (1984) 6 ALD 6, considered

ADAM LEIGH v REPATRIATION COMMISSION
QUD 515 OF 2005

DOWSETT J
12 APRIL 2006
BRISBANE (HEARD IN TOWNSVILLE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 515 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS APPEALS DIVISION
CONSTITUTED BY DEPUTY PRESIDENT MULLER

BETWEEN:	ADAM LEIGH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	12 APRIL 2006
WHERE MADE:	BRISBANE (HEARD IN TOWNSVILLE)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 515 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS APPEALS DIVISION
CONSTITUTED BY DEPUTY PRESIDENT MULLER

BETWEEN:	ADAM LEIGH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	DOWSETT J
DATE:	12 APRIL 2006
PLACE:	BRISBANE (HEARD IN TOWNSVILLE)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal (the “AAT”) in a matter arising under the Veterans Entitlements Act 1986 (Cth) (the “Act”).  The applicant receives a pension pursuant to the Act.  The respondent accepts that he will be entitled to receive that pension at a special rate if, as required by s 24(1)(b),(c) and (d) of the Act:

   ‘(b)(he) is totally and permanently incapacitated, that is to say, (his) incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render (him) incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

   (c)(he) is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that (he) was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on (his) account, that (he) would not be suffering if (he) were free of that incapacity; and

   (d)section 25 does not apply to(him).’

2. Sections 24A and 25 are also relevant.  They provide:

   ‘24A Continuation of rates of certain pensions

   (1)Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

   (a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

   (b)in the case of a…