Re: REPATRIATION COMMISSION
And: THOMAS WILLIAM BOWMAN (1981) 54 FLR 8
No. G19 of 1981
Repatriation - Statutes
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(1) and Lockhart(1) JJ.
CATCHWORDS
Repatriation - Whether "incapacity" means physical or mental disability rather than inability to work or earn wages - Test adopted to determine the extent of war related disabilities - Whether consideration should be given to whether applicant would be equally unable to earn if he were free of his war related disability - Relevance of decisions under workers' compensation legislation.
Repatriation Act 1920, ss.23, 24, 35, 101, 85, Schedules 1 and 2.
Statutes - Interpretation - Repatriation pension - Proper way to assess extent of respondent's war related disability by reference to his ability to earn - Whether workers' compensation cases some guidance - Test to determine extent of war related disabilities - Repatriation Act 1920 (Cth), ss. 23, 24, 35, 85, 101, Scheds. 1, 2.
HEADNOTE
The appellant appealed against the judgment of the Federal Court of Australia (Ellicott J.) which ordered that the decision of the Repatriation Review Tribunal refusing the respondent's application for an increase in his war pension be set aside and that the matter be remitted to the Tribunal to be heard and decided again according to law. The main challenge to his Honour's judgment concerned his interpretation of pars. 3 and 6 of Sched. 1 and the first paragraph of Sched. 2 of the Repatriation Act 1920 and the application of these to the facts.
Held: Per curiam. The appeal should be dismissed because the court agreed with the primary judge (Ellicott J.) and in particular that: (1) The workers' compensation cases may be regarded as furnishing some guidance as to the use of loss of earning capacity to measure the extent of disability of the respondent.
Ball v. William Hunt & Sons Ltd., (1912) AC 496; Birch Bros. Ltd. v. Brown, (1931) AC 605; Thompson v. Armstrong and Royse Pty. Ltd. (1950), 81 CLR 585; Wicks v. Union Steamship Company of New Zealand Ltd. (1933), 50 CLR 328; Cardiff Corporation v. Hall, (1911) 1 KB 1009, referred to.
(2) If the circumstances showed that the respondent could not earn even if he were not suffering from the war related disability. then his claim for the particular pension would fail.
HEARING
Brisbane, 1981, September 8; November 25. #DATE 25:11:1981
APPEAL.
B. H. McPherson Q.C. and J. G. Crowley, for the appellant.
J. B. Thomas Q.C. and G. Thompson, for the respondent.
Cur. adv. vult.
Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.
Solicitor for the respondent: Paul McCawley.
E. F. FROHLICH
ORDER
1. The appeal be dismissed.
2. The decision of the Repatriation Review Tribunal be set aside.
3. The matter be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive.
4. The order…
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- AGLC
- Repatriation Commission v Bowman, Thomas William [1981] FCA 211 ((1981) 54 FLR 8)
- Case
- [1981] FCA 211
- Decision Date
CaseChat Overview and Summary
The court examined the statutory language and relevant precedents, including decisions under workers' compensation legislation, to interpret the term "incapacity." It concluded that the term should be interpreted broadly to include not only physical and mental disabilities but also the inability to work or earn wages. The court adopted a test that considered the overall impact of the disability on the applicant's ability to work and earn, rather than focusing narrowly on specific physical or mental impairments. The court held that it was appropriate to consider whether the applicant would be equally unable to earn if he were free of his war-related disability, as this would provide a more comprehensive understanding of the extent of the disability.
Following its interpretation, the court found that the Repatriation Review Tribunal had erred in its assessment of Bowman's disability. The Tribunal had failed to consider the full impact of Bowman's war-related disabilities, including his inability to work or earn wages. The court set aside the decision of the Tribunal and remitted the matter back for reconsideration, with instructions to hear further evidence if necessary. In addition, the court ordered that the costs of the appeals be borne by the Repatriation Commission. This decision underscored the importance of a broad interpretation of "incapacity" and the necessity for a comprehensive assessment of war-related disabilities under the Repatriation Act.
Orders
Orders of the court
1. The appeal be dismissed.
2. The decision of the Repatriation Review Tribunal be set aside.
3. The matter be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive.
4. The order of Ellicott J. that the Repatriation Commission pay the costs of Thomas William Bowman of appeal No. G16 of 1980 be set aside.
5. The Repatriation Commission pay the costs of Thomas William Bowman of this appeal and of the appeal from the decision of the Tribunal to this Court heard by Ellicott J. in each case in matter No. G17 of 1980.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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