Repatriation Commission v Butcher

[2006] FCA 811

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Butcher [2006] FCA 811

VETERANS’ AFFAIRS – appeal from order of Administrative Appeals Tribunal that veteran entitled to pension at special rate – Veterans’ Entitlements Act 1986 (Cth), s 24(1)(c) – relevant considerations – whether Tribunal erred in its characterisation of type of ‘remunerative work’ that veteran undertaking – held, in circumstances of case, more general characterisation appropriate – error of law – however, for different reasons, requirements of section satisfied – appeal dismissed.

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’Entitlements Act 1986 (Cth) ss 3, 15, 19, 24, 120

Flentjar v Repatriation Commission (1977) 48 ALD 1 referred to
Banovich v Repatriation Commission (1986) 69 ALR 305 referred to
Starcevich v Repatriation Commission (1987) 18 FCR 221 referred to
Doig v Repatriation Commission (1996) (unreported, Federal Court of Australia, Lindgren J, 18 December 1996) referred to
Repatriation Commission v Hendy (2002) 76 ALD 47 referred to
Cavell v Repatriation Commission (1988) 9 AAR 534 referred to

REPATRIATION COMMISSION v GREGORY MICHAEL BUTCHER
SAD 344 of 2005

BESANKO J   
30 JUNE 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 344 OF 2005

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	GREGORY MICHAEL BUTCHER RESPONDENT
JUDGE:	BESANKO J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 344 OF 2005

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	GREGORY MICHAEL BUTCHER RESPONDENT

JUDGE:	BESANKO J
DATE:	30 JUNE 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from an order made by the Administrative Appeals Tribunal (‘the Tribunal’). The right of appeal under that section is limited to an appeal on a question of law.

2. The Repatriation Commission is the appellant and Mr Gregory Michael Butcher is the respondent.

3. The order of the Tribunal that is under appeal is as follows:

   ‘The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 August 2004.’

4. The appellant submits that the Tribunal erred in law in concluding that the respondent was entitled to a pension at the special rate pursuant to s 24 of the Veterans’Entitlements Act 1986 (Cth) (‘the Act’).

5. It was common ground before the Tribunal that the respondent satisfied the requirements of s 24(1) other than s 24(1)(c) and the question before the Tribunal was whether he satisfied the requirements of that paragraph.

   The relevant statutory provisions

6. The relevant provisions of s 24 of the Act are as follows:

   ‘(1)     This section applies to a veteran if:

   (aa)the…