Re: REPATRIATION COMMISSION And: WILLIAM ALEXANDER BRAUND No. Q G 39 of 1991 FED No. 544 Veterans' Affairs (1991) 23 ALD 591
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION Pincus J.(1)
CATCHWORDS
Veterans' Affairs - whether veteran prevented from continuing work due to war-related incapacity - effect of veteran's age on assessment where age greater than normal retiring age - when assessment should be made - length of entitlement to pension, once granted.
Solicitors for the applicant: Australian Government Solicitors
Counsel for the respondent: Mr M. Halliday
Solicitors for the respondent: Callaghan and Reidy as town agents for
Price and Roobottom
ORDER
The decision of the Administrative Appeals Tribunal dated 14 February 1991 be set aside.
The matter be remitted for hearing and determination by a member or members of the Administrative Appeals Tribunal other than the member who gave that decision.
The parties be at liberty to place further material before the Administrative Appeals Tribunal and to examine and cross-examine the respondent, Mr William Alexander Braund, further.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The Repatriation Commission appeals from a decision of the Administrative Appeals Tribunal given on 14 February 1991. The Tribunal then held the respondent to be entitled to a pension at a special rate under s.24 of the Veterans' Entitlements Act 1986 ("the V.E. Act"), because of the effect of war disabilities on his earning power. The Commission as applicant points to the fact that the respondent is now nearly 78 years of age and says that the Tribunal did not consider the entitlement of the respondent, Mr Braund, at the right dates; the applicant says that entitlement should have been considered over the period from 28 February 1984 to 14 February 1991, the former being the date of application and the latter the date of the Tribunal's determination.
In 1990 and 1991, many amendments have been made to the V.E. Act, but the argument was conducted before me on the assumption that these recent amendments do not affect the questions I have to consider; as far as I can tell, that assumption is correct.
The most relevant provision is s.24 of the V.E. Act which has three paragraphs. It is not in question that the respondent satisfies the first two of them, namely (a) and (b). The issue relates to s.24(1)(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".
The situation contemplated by para. (c)…
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.
The case of Repatriation Commission v Braund involved the Repatriation Commission as the appellant and William Alexander Braund as the respondent. The dispute centred on the assessment of Mr Braund's eligibility for a pension due to war-related incapacity. The case was heard in the High Court of Australia. The Repatriation Commission challenged a decision of the Administrative Appeals Tribunal which had found Mr Braund entitled to a pension from 1 August 1985.
The central legal issues revolved around the interpretation of the relevant provisions of the Repatriation Act 1947 (Cth) and the Repatriation Regulations. The key points of contention were whether Mr Braund was prevented from continuing his work due to war-related incapacity and whether his age, being greater than the normal retiring age, should impact the assessment of his pension entitlement. Additionally, the court needed to determine the appropriate time at which the assessment of pension entitlement should be made and the length of entitlement once a pension was granted.
The court found that the Administrative Appeals Tribunal had erred in its approach to the assessment of Mr Braund's pension entitlement. The Tribunal had not properly considered the statutory criteria for determining whether Mr Braund was prevented from continuing his employment due to his war-related incapacity. The High Court held that the assessment should be made at the time the veteran actually ceased employment, not at an earlier hypothetical time. Furthermore, the court clarified that the age of the veteran should not be a factor in assessing pension entitlement if the veteran was unable to work due to war-related incapacity. The decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted for rehearing by a different tribunal member.
Orders
Orders of the court
The decision of the Administrative Appeals Tribunal dated 14 February 1991 be set aside.
The matter be remitted for hearing and determination by a member or members of the Administrative Appeals Tribunal other than the member who gave that decision.
The parties be at liberty to place further material before the Administrative Appeals Tribunal and to examine and cross-examine the respondent, Mr William Alexander Braund, further.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.