Murray v Repatriation Commission

Case [2016] FCA 1150

FEDERAL COURT OF AUSTRALIA

Murray v Repatriation Commission [2016] FCA 1150

Appeal from: Murray v Repatriation Commission [2015] AATA 364
File number: VID 332 of 2015
Judge: BROMBERG J
Date of judgment: 22 September 2016
Catchwords: DEFENCE AND WAR – Veterans’ Entitlements Act 1986 (Cth), ss 23 and 24 – appeal of Administrative Appeal Tribunal’s decision to affirm the decision of the Veterans’ Review Board to set the veteran’s disability pension at 100 per cent of the general rate and not the higher intermediate or special rates – where the veteran has a war‑caused disability rendering him incapable of working more than 8 hours per week – where the applicant ceased regular employment immediately prior to his 60th birthday – where the Tribunal found the criteria in ss 23(1)(c) and 24(1)(c) not satisfied – whether the Tribunal erred in misconstruing s 23(1)(c) by reference to s 23(3)(a)(i) and s 24(1)(c) by reference to s 24(2)(a)(i) – consideration of the proper test under s 23(1)(c) in conjunction with s 23(3)(a)(i) and s 24(1)(c) in conjunction with s 24(2)(a)(i) – Tribunal failed to consider whether veteran not seeking remunerative work for reasons other than his war-caused disabilities – whether the Tribunal failed to give adequate reasons – where the parties and the Court are left to speculate as to the Tribunal’s reasoning process the Tribunal did so err – appeal allowed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 44

Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 19, 23, 23(1)(c), 23(3)(a), 24, 24(1)(c), 24(2)(a), 24(2)(b)
Cases cited:

Banovich v Repatriation Commission (1986) 69 ALR 395

May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Repatriation Commission v Richmond (2014) 226 FCR 21

Repatriation Commission v Smith (1987) 15 FCR 327

Smith v Repatriation Commission (2014) 220 FCR 452

Summers v Repatriation Commission (2015) 230 FCR 179

Terrence Murray v Repatriation Commission [2015] AATA 364

Willis v Repatriation Commission (2012) 202 FCR 323
Date of hearing: 9 March 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicant: Ms FC Spencer
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 332 of 2015
BETWEEN:

TERRENCE MURRAY

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

22 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal the subject of this appeal is set aside.

2.The case be remitted to the Administrative Appeals Tribunal to be decided according to law.

3.Subject to any further order, the remittal is made without limitation.

4.Subject to any further order, the Respondent pay the Applicant’s costs of the appeal.

5.Should any party seek a further order as to costs or a further…

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AGLC
Murray v Repatriation Commission [2016] FCA 1150
Case
[2016] FCA 1150
Decision Date

CaseChat Overview and Summary

In the matter of Murray v Repatriation Commission, the appellant, Mr Murray, a veteran of the Vietnam War, appealed the decision of the Administrative Appeals Tribunal (AAT) that had affirmed the Veterans' Review Board's decision to set his disability pension at 100% of the general rate. Mr Murray argued that the statutory criteria for a higher intermediate or special rate pension were satisfied due to his war-caused disability that rendered him incapable of working more than eight hours per week. The central legal issues the court had to decide were whether the AAT erred in misconstruing sections 23(1)(c) and 24(1)(c) of the Veterans' Entitlements Act 1986 (Cth) and whether the AAT failed to give adequate reasons for its decision.

The court held that the AAT did indeed err in its interpretation of the relevant statutory provisions. Specifically, the AAT misinterpreted section 23(1)(c) by reference to section 23(3)(a)(i) and section 24(1)(c) by reference to section 24(2)(a)(i). The court found that the AAT failed to consider whether Mr Murray was not seeking remunerative work for reasons other than his war-caused disabilities. Additionally, the court found that the AAT's reasons for its decision were inadequate, leaving the parties and the court to speculate about the AAT's reasoning process. The court concluded that the AAT erred in its interpretation and reasoning, which warranted allowing the appeal.

The court set aside the decision of the AAT and remitted the matter to the AAT for determination according to law. The court ordered that the Repatriation Commission pay Mr Murray's costs of the appeal, subject to any further order. The court also provided that if any party sought a further order as to costs or a further order imposing a limitation upon the remittal, that party must file and serve a submission in support within the specified timeframe.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal the subject of this appeal is set aside.

2. The case be remitted to the Administrative Appeals Tribunal to be decided according to law.

3. Subject to any further order, the remittal is made without limitation.

4. Subject to any further order, the Respondent pay the Applicant’s costs of the appeal.

5. Should any party seek a further order as to costs or a further order imposing a limitation upon the remittal, that party must within 7 days hereof file and serve a submission in support.

6. Any submission in opposition to a further order must be filed and served within 14 days hereof.

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

Background

Background to the litigation

For the reasons that follow Mr Murray’s appeal should be allowed.FACTUAL BACKGROUND The Tribunal has usefully set out the relevant background facts at [1]–[3] and [9]–[20] of its reasons. Those facts are not in contention in the instant appeal. Mr Murray is a veteran of the Vietnam War. He provided military service between July 1966 and January 1969, serving in a non-combat role as a workshop clerk with 17 Construction Squadron in Vung Tau, South Vietnam between April 1968 and November 1968. In 1974 Mr Murray was diagnosed with a benign essential tremor, a condition which caused him to involuntarily shake or nod his head. The diagnosis was reconfirmed by the original diagnosing neurologist in 1992. At the time of Mr Murray’s original diagnosis, he was employed by the Department of Defence as a clerk. Mr Murray became self-conscious at work as a result of the involuntary head movements caused by his condition, and resigned from the public service in 1976. Between 1976 and 1992 Mr Murray worked variously as a car park manager, a night shift machine operator, an unqualified carpenter, a cleaner, and a food van driver. In 1992, unable to afford the rent of his home in Chelsea, Mr Murray moved to Netherby, a town in the Wimmera region of western Victoria with a population of about 20. Following his relocation, he received unemployment benefits for approximately five months. Between 1992 and 1993 Mr Murray undertook various part-time non-skilled manual jobs including cleaning a local hotel and maintenance/handyman work at a local school and on local farms. In 1993 Mr Murray worked full-time for six months assisting a local business using a sheep dip apparatus. While working full-time he continued to perform casual non‑skilled maintenance work including truck driving, re-stumping barns, building renovations and as a shearing shed rouseabout. From 1994 Mr Murray worked part-time as a bus driver for K. H. Rintoule Pty Ltd. In order to take up the position, Mr Murray was required to obtain a heavy vehicle driver’s licence, renewed in 2004, the issue of which was subject to medical testing. Mr Murray was required to undergo further medical testing by the Taxi Directorate every two years. Mr Murray drove a school bus a total of approximately 100km per day split between morning and afternoon shifts lasting approximately one hour each. The bus route took Mr Murray off the main road along single lane gravel carriageways in order to collect and drop off children from local farms. He worked about ten hours per week but was paid for 15 hours per week to account for extra time spent cleaning and maintaining the bus. Whilst employed as a bus driver, Mr Murray continued to pick up extra non-skilled work as a carpenter and painter until about 2005. Mr Murray left employment as a bus driver in June 2005, just prior to his 60th birthday. He applied for and was granted the Service Pension. Between December 2006 and June 2007 Mr Murray worked for the Shire of Hindmarsh for no more than five hours per week. Since June 2007 he has not worked.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The difficulty that the obscurity presents decision makers, including the Tribunal, must be acknowledged. Particularly so when it is appreciated that decision-makers will not necessarily be lawyers trained to grapple with complex statutory language. Whilst that difficulty may well explain the lack of adequate reasons and other errors in this case, it cannot excuse them.CONCLUSION I have upheld Mr Murray’s fifth ground of appeal together with part of ground 3. Mr Murray’s appeal should be allowed, the decision of the Tribunal the subject of the appeal should be set aside and the matter should be remitted to the AAT for determination according to law. No submissions were made as to whether any remittal should be confined or as to costs. Subject to any further order, the order I will make will not confine the remittal so that the whole of the case will need to be redetermined without limitation, including as to the presentation of further evidence. Subject to any further order, I will order that the Commission pay Mr Murray’s costs. I will, however, reserve to the parties the opportunity to contend for a further order that confines the remittal or seeks a different outcome as to costs. If any application for a further order is made, I will deal with it on the papers after receiving written submissions from the parties.

Ratio Decidendi

Legal Principle Established

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