DEFENCE AND WAR – veterans’ entitlements – factors to be taken into consideration upon an application for an increase of a veteran’s pension on the basis that previously accepted service-caused disabilities had worsened – whether war-caused injury or war-caused disease alone render the veteran incapable of undertaking remunerative work
Veterans’ Entitlements Act 1986 (Cth), ss 15(1), 19, 24(1).
Flentjar v Repatriation Commission (1997) 48 ALD 1, followed.
REPATRIATION COMMISSION v LESLIE ARTHUR HENDY
N 566 OF 2002
WHITLAM, EMMETT & STONE JJ 19 DECEMBER 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N566 OF 2002
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
LESLIE ARTHUR HENDY RESPONDENT
JUDGES:
WHITLAM, EMMETT & STONE JJ
DATE OF ORDER:
19 DECEMBER 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the appeal be upheld;
2.the orders of Madgwick J made on 10 May 2002 be set aside and, in lieu thereof, the following orders be substituted:
1. the appeal be dismissed; and
2. the applicant pay the respondent’s costs of the application.
3. the respondent pay the appellant’s costs of the appeal.
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
N566 OF 2002
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
LESLIE ARTHUR HENDY RESPONDENT
JUDGES:
WHITLAM, EMMETT & STONE JJ
DATE:
19 DECEMBER 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
The respondent, Leslie Arthur Hendy (“the Veteran”), rendered eligible operational service, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), in Vietnam prior to his discharge from the Royal Australian Navy (“the RAN”) on 27 July 1970. On 16 October 1996, the Veteran was awarded a pension under Pt II of the Act with effect from 22 November 1995. The Repatriation Commission (“the Commission”) accepted that the Veteran’s condition of post-traumatic stress disorder, coupled with alcohol dependence and major depression, and bilateral sensorineural hearing loss, gave rise to an entitlement to a pension under the Act. On 7 July 1998, the Veteran applied for an increase in his pension on the basis that his accepted service-caused disabilities had worsened. On 20 August 1998, a delegate of the appellant increased the Veteran’s pension with effect from 6 July 1998 but determined that the Veteran was not entitled to a pension at the “Special Rate” under s 24 of the Act.
On 3 September 1998, the Veteran applied to the Veterans’ Review Board (“the Board”) for review of the decision of 20 August 1998. The Board refused the Veteran’s application and, on 11 February 1999, determined that the decision of the Commission should be set aside and that the Veteran should receive only ninety per cent…
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
Repatriation Commission v Hendy [2002] FCAFC 424
Case
[2002] FCAFC 424
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Hendy involved a dispute between the Repatriation Commission and the veteran, Mr Hendy. The primary issue before the court was the determination of Mr Hendy's eligibility for pension benefits under specific sections of the relevant Act. This eligibility hinged on whether Mr Hendy was totally and permanently incapacitated due to war-caused injury or disease, rendering him incapable of undertaking remunerative work for more than eight hours per week, and whether this incapacity alone caused a loss of income.
The court was required to decide on two main legal issues. Firstly, whether Mr Hendy’s disabilities, as accepted by the Tribunal, rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Secondly, whether his disabilities alone prevented him from continuing his remunerative work, resulting in a loss of income he would otherwise receive. These issues were formulated based on sections 24(1)(b) and 24(1)(c) of the Act.
The Tribunal had examined Mr Hendy’s employment history and his vocational skills, finding that he was capable of performing light work such as truck driving or cellarman duties. The court assessed the Tribunal's findings and the evidence presented, ultimately concluding that the Tribunal had made errors in its assessment. The court found that the appeal should be upheld, the orders of Madgwick J set aside, and new orders substituted. Specifically, the appeal was dismissed, and the parties’ costs were allocated accordingly.
Orders
Orders of the court
1. the appeal be upheld;
2. the orders of Madgwick J made on 10 May 2002 be set aside and, in lieu thereof, the following orders be substituted:
1. the appeal be dismissed; and
2. the applicant pay the respondent’s costs of the application.
3. the respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Section 19(5B), relevantly for the present case, provides that the Commission must assess the matters set out in s 19(5C) in accordance with s 24 of the Act. Section 24(4) fixes a special rate at which pension is payable to a veteran to whom s 24 applies. Under s 24(1), s 24 applies to a veteran, relevantly, 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;…”THE DECISION OF THE TRIBUNAL The Tribunal made findings concerning the employment of the Veteran after leaving the RAN. The Tribunal found that the Veteran drove a truck for several years. He also worked as a hotel employee for a number of years in different jobs. He worked in one hotel as an assistant manager and cellarman for a few years followed by employment for 9½ years, as a cellarman at a Returned Services League club, from about 1986 or 1987. He left that employment in order to gain access to superannuation benefits, which he used to pay for a house. Some time thereafter, the Veteran drove a concrete delivery truck for a period of two years. For eight years, finishing in 1995, he drove a self-owned four ton truck delivering alcohol. He subsequently sold the truck and had a period of unemployment. He then gained a job with “Materials in the Raw”, driving a truck as an employee for six or so months, delivering garden soil, railway sleepers and similar garden goods. He worked often on Saturday, Sunday or both days. The Veteran ceased work in August 1996. The Tribunal formulated the questions before it in the following terms: Are the Veteran’s accepted disabilities of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for at least 8 hours a week? Do the Veteran’s accepted disabilities alone prevent him from continuing to undertake remunerative work that he was undertaking causing a loss of income he would otherwise be receiving?There is no quarrel from either the Commission or the Veteran concerning the formulation of those questions, which arise under s 24(1)(b) and s 24(1)(c) of the Act respectively. The Tribunal found that the Veteran’s relevant vocational, trade and professional skills, qualifications and experience were in clerical work, administration, labouring and driving. The Tribunal accepted the opinions of two medical practitioners that the Veteran was capable of doing “light work” such as truck driving or courier duties and that he would also be suitable for cellarman duties and for light storeman duties.