Peacock v Repatriation Commission [2007] FCAFC 156
DEFENCE AND WAR – veterans’ entitlements – appeal from Administrative Appeals Tribunal – application for pension at special rate or intermediate rate – application failed on independent ground not disputed in appeal – appeal dismissed.
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – remittal – extent of review on remittal – order that the matter be remitted to the Tribunal for further consideration in accordance with law – no express or implied limitation – concession made at first hearing disputed during rehearing – matter remitted is the whole matter – matter remitted is not confined to the question of law considered – specific remittal orders appropriate in ambiguous cases – not prevented from raising issue not raised below.
GEOFFREY RAYMOND PEACOCK V REPATRIATION COMMISSION QUD 125 of 2007
DOWNES, LANDER AND BUCHANAN JJ 26 SEPTEMBER 2007 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 125 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
GEOFFREY RAYMOND PEACOCK Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGES:
DOWNES, LANDER AND BUCHANAN JJ
DATE OF ORDER:
26 SEPTEMBER 2007
PLACE:
BRISBANE
THE COURT ORDERS:
1.Appeal 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 125 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
GEOFFREY RAYMOND PEACOCK Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGES:
DOWNES, LANDER AND BUCHANAN JJ
DATE:
26 SEPTEMBER 2007
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
Summary
Geoffrey Peacock is a Vietnam veteran. He was conscripted in 1965 and served in Vietnam in 1966 and 1967. As a result of his service, Mr Peacock became entitled to a disability pension. In January 2003 Mr Peacock applied for an increase in the rate of his pension and for a pension at the special rate. The Repatriation Commission increased the pension to one hundred per cent of the general rate but refused the application for the special rate and…
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.
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AGLC
Peacock v Repatriation Commission [2007] FCAFC 156
Case
[2007] FCAFC 156
Decision Date
CaseChat Overview and Summary
The case of Peacock v Repatriation Commission involved Mr Peacock, a veteran who had served in Vietnam, seeking a higher disability pension from the Repatriation Commission. Mr Peacock had returned to civilian life and held senior positions in local government but had to cease working due to his war-related health issues, including alcohol dependence and post-traumatic stress disorder. The Repatriation Commission accepted that his conditions were war-caused and that he was receiving a pension at the general rate. The central legal issue was whether Mr Peacock qualified for a disability pension at the special rate under the Veterans’ Entitlements Act. This required satisfying specific criteria, including being totally and permanently incapacitated to the extent of being unable to undertake remunerative work for more than eight hours a week.
The court examined the statutory criteria for a special rate pension and the evidence regarding Mr Peacock’s capacity to work. The court noted that the Tribunal's decision could be upheld independently of the issues argued before the court. The legislation provides that a veteran must be incapable of undertaking remunerative work for more than eight hours per week to qualify for the special rate pension. The court concluded that the appeal would have failed because the Tribunal’s decision was valid under the applicable sections of the Act. The court found that Mr Peacock did not meet the criteria for a special rate pension due to his ability to work despite his incapacity.
The court's reasoning was grounded in the statutory requirements for the special rate pension and the evidence presented. The court confirmed that the Tribunal's decision, which found Mr Peacock did not meet the criteria, was valid and that the appeal was without merit. The court ordered that the appeal be dismissed with costs, affirming the Tribunal's decision and the Repatriation Commission's assessment of Mr Peacock's pension entitlement.
Orders
Orders of the court
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Background
Background to the litigation
Although the second and third issues do not strictly arise, we consider that the appeal must have failed in any event because the Tribunal’s decision under ss 23(1)(c) and 24(1)(c) provided an independent basis for the same result. However, we do not think that the appeal would have failed because the matter before us was not argued below. If the applicant had made out his claim, then the Tribunal exceeded its jurisdiction. The consent of the parties could not render the decision within jurisdiction.Further facts Mr Peacock was able to return successfully to the civilian workforce after his term in Vietnam. He obtained tertiary qualifications. He originally returned to the Kerang Shire Council where he had worked before he was conscripted. He became the Secretary of the Shire of Healesville and held that position from 1982 until 1993. In that year four areas, including the Shire of Healesville, were merged. Mr Peacock was appointed to a senior position in the merged Shire of Yarra Ranges. His service in Vietnam had, however, taken its toll. Mr Peacock experienced difficulty in coping and apparently found some solace in alcohol. He ceased work in January 2000. Mr Peacock moved to Queensland where he continues to live. He was diagnosed with, and has been treated for, alcohol dependence and post traumatic stress disorder. The Repatriation Commission accepts that Mr Peacock has these conditions and others as well. The Commission accepts that the conditions are war-caused. He is in receipt of a pension at the general rate.The legislative scheme In order for a veteran receiving a disability pension at the general rate to qualify for a disability pension at the special rate the veteran must satisfy each of six criteria in s 24(1) of the Veterans’ Entitlements Act. The criteria in s 24(1)(b) and (c) are as follows:(1)This section applies to a veteran if:… (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran 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 the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity… Section 28 of the Act sets out matters which exclusively must be taken into account in considering s 24(1)(b). A veteran who does not qualify for a special rate pension may qualify for a disability pension at the intermediate rate. Provisions in s 23 of the Veterans’ Entitlements Act, which are similar to those in s 24, govern entitlement to a pension at the intermediate rate. The difference between the total and permanent incapacity required for the special rate and the incapacity required for the intermediate rate is that, in the former, the incapacity must render the veteran incapable of working for more than eight hours per week and, in the latter, of working otherwise than on a part-time basis or intermittently.The extent of the review on the remittal
Evidence
Evidence Before The Court
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Decision
Reasons for decision
DOWNES, LANDER AND BUCHANAN JJ
This provision implies that the evidence already taken in the earlier hearing is to continue to be evidence before the Tribunal. Many cases remitted to the Tribunal for rehearing make no statement as to whether or not there is to be further evidence. Again, it seems to us that it would be helpful in appeals if parties put submissions on this issue and if, in an appropriate case, the Court made a determination.Conclusion The appeal must be dismissed with costs.