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Owen v Repatriation Commission

Owen v Repatriation Commission

Case [1995] FCA 607 4 August 1995

Jurisdiction

Review of Administrative Decisions

Breach of Contract

Unconscionable Conduct

Res Judicata

Limitation Periods

Administrative Law

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CATCHWORDS

VETERAN'S AFFAIRS - Disability pension - back and hip injuries claimed as and determined by Administrative Appeals Tribunal to be war-caused - application for special rate - veteran prevented from continuing to undertake remunerative work by reason of shoulder injury - whether Tribunal had jurisdiction to determine whether the shoulder injury was war-caused

ADMINISTRATIVE LAW - Tribunal's jurisdiction - scope of Tribunal's power of review

Veterans' Entitlements Act 1986 ss 6, 7, 14, 17, 18, 24, 175
Administrative Appeals Tribunal Act 1975 ss 25(3), 42C, 43(1)

Secretary to the Department of Social Security v Riley (1988) 17 FCR 99
Banovich v Repatriation Commission (1986) 69 ALR 395

IAN CHARLES OWEN v REPATRIATION COMMISSION
No VG 435 of 1993

FINN J
MELBOURNE
4 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No VG 435 of 1993
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE VETERANS' AFFAIRS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: IAN CHARLES OWEN

Applicant

AND: REPATRIATION COMMISSION

Respondent

COURT: FINN J

PLACE: MELBOURNE

DATE: 4 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

The decision of the Tribunal be affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No VG 435 of 1993
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE VETERANS' AFFAIRS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: IAN CHARLES OWEN

Applicant

AND: REPATRIATION COMMISSION

Respondent

COURT: FINN J

PLACE: MELBOURNE

DATE: 4 AUGUST 1995

REASONS FOR JUDGMENT

Ian Charles Owen (the "applicant") has rendered both "operational" and "eligible" war service for the purposes of the Veterans' Entitlements Act 1986 ("the Act"), sections 6 and 7. Though originally denied, it is now conceded by the Repatriation Commission (the "Commission") that the applicant has suffered war caused injuries. His claim for a pension under the Act, s14 was lodged on 26 February, 1991. Two designated injuries and a specified disease were nominated in the claim form as having been war-caused. The precise nature of the injuries founding the claim will be detailed later in these reasons. It is a matter of no little importance in this appeal.

The Commission considered and rejected the claim on two
occasions - 12 December 1991 and 30 March 1992 - on the ground that neither of the claimed injuries nor the disease were war-caused. On 17 September 1992 the Veterans' Review Board (the "Board") affirmed the Commission's decisions. An application to review the decisions as affirmed was then made to the Administrative Appeals Tribunal (the "Tribunal") under s175(1) of the Act. In the course of the proceedings in the Tribunal the Commission conceded that the two injuries claimed, but not the disease, were war-caused. The parties in consequence were able to reach agreement concerning the applicant's entitlement to a pension, the Tribunal making a decision in accordance with the agreement under the

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.

Continue reading Owen v Repatriation Commission

Details

AGLC: Owen v Repatriation Commission [1995] FCA 607
Case: [1995] FCA 607
Decision Date: 4 AUGUST 1995

CaseChat Overview and Summary

Ian Charles Owen, the applicant, has appealed against a decision of the Veterans' Affairs Division of the Administrative Appeals Tribunal, which was affirming the decision of the Repatriation Commission. The appeal is concerned with the applicant's entitlement to a disability pension under the Veterans' Entitlements Act 1986. The central issue is whether the Tribunal had jurisdiction to determine whether the applicant's right shoulder injury was war-caused, a matter which the Commission had not previously determined.

The Tribunal concluded that it lacked jurisdiction to decide whether the right shoulder injury was war-caused, as the decision in respect of which review was sought related only to the back and hip injuries. The Tribunal found that the applicant was not entitled to a special rate of pension because he was not prevented from continuing to undertake remunerative work solely by reason of war-caused injury. The applicant argued that the Tribunal misapplied section 24 of the Act, failed to link the right shoulder injury to the pre-existing back and hip injuries, and erred in law by not considering the right shoulder injury as war-caused.

The court found that the Tribunal correctly limited its review to the decisions of the Commission and the Board, which were confined to the back and hip injuries. The court held that the Tribunal was not obliged to make a new determination on whether the right shoulder injury was war-caused, as this was not part of the decisions under review. The court also held that the Tribunal properly applied section 24 of the Act, as it was concerned with the effect of incapacity from a war-caused injury, not with making a new determination on whether an injury was war-caused.

The court dismissed the appeal and affirmed the decision of the Tribunal. The applicant was not entitled to a special rate of pension as he was not prevented from continuing to undertake remunerative work solely by reason of war-caused injury. The court held that the Tribunal correctly exercised its jurisdiction and followed the relevant legal principles in reaching its decision. The appeal is dismissed with costs.

Orders