Repatriation Commission v Fox, William Henry

[1997] FCA 737

FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - appeal from decision of Administrative Appeals Tribunal (“AAT”) that respondent entitled to a special rate of pension - whether error of law - whether the respondent’s war-caused injuries alone prevented him from undertaking remunerative work - where respondent 68 years of age at date of application - whether AAT failed to take into account relevant considerations - whether evidence justified decision.

Veterans’ Entitlements Act 1986 (Cth), ss 24(1), 120(4)

Repatriation Commission v Brand (1991) 23 ALD 591, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Cavell v Repatriation Commission (1988) 9 AAR 534, cited

Starcevich v Repatriation Commission (1987) 18 FCR 221, cited

Repatriation Commission v Strickland (1990) 22 ALD 10, cited

Jackman v Repatriation Commission (unreported, 30 June 1997), distinguished

REPATRIATION COMMISSION v WILLIAM HENRY FOX
NO NG 878 of 1996

TAMBERLIN J
SYDNEY
8 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 878 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERAN’S APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
MS G ETTINGER (SENIOR MEMBER) and
BRIGADIER J A HOOPER (MEMBER)

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	WILLIAM HENRY FOX Respondent

JUDGE:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	8 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be 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	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 878 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERAN’S APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
MS G ETTINGER (SENIOR MEMBER) and
BRIGADIER J A HOOPER (MEMBER)

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	WILLIAM HENRY FOX Respondent

JUDGE:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	8 AUGUST 1997

REASONS FOR JUDGMENT

Mr Fox was born in December 1923. He left school at 15 years of age and worked as a clerk for two years. He joined the Australian Imperial Force on his eighteenth birthday, initially serving in an Infantry Battalion. He then volunteered for the Commandos. He remained with 2/12 Commando Squadron until his discharge in 1946, seeing service in Borneo.  At the relevant date, which is the date of application for the special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), Mr Fox was 68 years of age.

Mr Fox suffers from war-caused hypertension, anxiety and back problems. He says that by reason of his incapacity from war-caused injuries he is prevented from undertaking remunerative work that he had previously undertaken. Therefore, he has suffered a loss of income that he would not be suffering if he were not subject to the injuries. He says that, as at the application date in 1991, war-caused injury was the only matter which prevented him from continuing to undertake substantive remunerative work in the concrete business.

The above claims are disputed by…