Repatriation Commission v Hill

Case [2005] FCAFC 7

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Hill [2005] FCAFC 7

VETERANS’ AFFAIRS – invalidity service pension – application for pension rejected by delegate of Repatriation Commission – appeal to Administrative Appeals Tribunal – Tribunal found veteran suffered from several permanent psychiatric illnesses – however, Tribunal found there was “very little wrong” with veteran – Tribunal not satisfied veteran permanently unable to do work for periods adding up to more than eight hours per week – Tribunal affirmed decision of delegate – appeal to single Judge of Federal Court allowed – appeal to Full Court – whether veteran “permanently incapacitated for work” – whether primary judge erred by construing relevant provisions of Veterans’ Entitlements Act 1986 (Cth) and Veterans’ Entitlements (Income Support Supplement – Permanent Incapacity for Work) Determination 1999 by reference to principles underlying workers’ compensation legislation

WORDS AND PHRASES – “work” – “do work” – “permanently incapacitated for work” – “permanently unable to do work”

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 6, 7A, 24(1)(b), 37, 37AA, 119(1)(g), 120(1) and (3)
Veterans’ Entitlements (Income Support Supplement – Permanent Incapacity for Work) Determination 1999 (Cth) cl 5(1) and (2)
Acts Interpretation Act 1901 (Cth) s 46A

Hill v Repatriation Commission (2004) 207 ALR 470 referred to
Cardiff Corporation v Hall [1911] 1 KB 1009 referred to
Foster v Wharncliffe Woodmore Colliery Co Ltd [1922] 2 KB 701 referred to
Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR 328 referred to

REPATRIATION COMMISSION v COLIN HILL

NTD16 OF 2004

WILCOX, FRENCH & WEINBERG JJ
16 FEBRUARY 2005
MELBOURNE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD16 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

REPATRIATION COMMISSION
APPELLANT

AND:

COLIN HILL
RESPONDENT

JUDGE:

WILCOX, FRENCH & WEINBERG JJ

DATE OF ORDER:

16 FEBRUARY 2005

WHERE MADE:

MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 2 of the orders made on 1 July 2004 be affirmed.

3.Order 3 of the orders made on 1 July 2004 be set aside.

4.In lieu thereof, there be substituted an order that the application for review of the decision of the Repatriation Commission, rejecting the respondent’s claim for an invalidity service pension under the Veterans’ Entitlements Act 1986 (Cth), be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with the reasons for judgment of this Court.

5.The appellant pay the respondent’s costs of and incidental to 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

NORTHERN TERRITORY DISTRICT REGISTRY

NTD17 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

REPATRIATION COMMISSION
APPELLANT

AND:

COLIN HILL
RESPONDENT

JUDGE:

WILCOX, FRENCH & WEINBERG JJ

DATE:

16 FEBRUARY 2005

PLACE:

MELBOURNE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from a judgment of Mansfield J:  Hill v Repatriation Commission (2004) 207 ALR…

Continue reading Repatriation Commission v Hill

Sign in free to access the full text

Details
AGLC
Repatriation Commission v Hill [2005] FCAFC 7
Case
[2005] FCAFC 7
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a claim by Mr Colin Hill for an invalidity service pension under the Veterans' Entitlements Act 1986 (Cth). Mr Hill served in the Australian Army and was posted to Vietnam, qualifying him for benefits under the Act. His claim was based on the assertion that he was permanently incapacitated for work due to psychiatric illnesses, including alcohol dependency, a pathological gambling addiction, major depression, a dysthymic disorder, and mild post-traumatic stress disorder. The Repatriation Commission initially rejected his claim, a decision later affirmed by the Administrative Appeals Tribunal (AAT). Mr Hill appealed this decision to the Federal Court, which allowed the appeal and remitted the matter back to the AAT for reconsideration.

The legal issues before the court centred on the interpretation of the phrase "permanently unable to do work" as defined in clause 5(2)(b) of the determination made by the Repatriation Commission under section 37AA of the Veterans' Entitlements Act. Specifically, the court had to determine whether the AAT correctly understood the phrase to mean that Mr Hill was unable to engage in meaningful employment for more than eight hours per week. The primary judge had found that the AAT had misunderstood the requirement by failing to consider whether Mr Hill was unable to engage in meaningful employment, instead focusing on intermittent activities at his own pace.

In delivering the judgment, the court examined the evidence presented to the AAT, including the psychiatric evaluations which indicated that Mr Hill's conditions significantly impaired his ability to find and maintain employment. The court highlighted that the AAT had not sufficiently considered the meaning of "work" in context, particularly in relation to meaningful employment. The court concluded that the AAT had erred in its interpretation and application of the relevant statutory provisions. The appeal was allowed, and the matter was remitted to the AAT for reconsideration in light of the court's reasoning.

The court's final orders included allowing the appeal, affirming certain orders made by the primary judge, setting aside other orders, and remitting the matter to the AAT for reconsideration. The Repatriation Commission was also ordered to pay Mr Hill's costs of the appeal. This decision underscores the importance of correctly interpreting statutory language in administrative law contexts, particularly when it involves determining eligibility for benefits based on incapacity.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 2 of the orders made on 1 July 2004 be affirmed.

3. Order 3 of the orders made on 1 July 2004 be set aside.

4. In lieu thereof, there be substituted an order that the application for review of the decision of the Repatriation Commission, rejecting the respondent’s claim for an invalidity service pension under the Veterans’ Entitlements Act 1986 (Cth), be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with the reasons for judgment of this Court.

5. The appellant pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

This is an appeal from a judgment of Mansfield J: Hill v Repatriation Commission (2004) 207 ALR 470. His Honour allowed an appeal from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 7 November 2003 affirming a decision of a delegate of the Repatriation Commission, rejecting the Mr Colin Hill’s claim, lodged on 25 May 2000, to be entitled to an invalidity service pension under s 37 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). THE BACKGROUND FACTS The respondent was born on 17 March 1945. He served in the Australian Army for three years, from 30 June 1965 to 30 June 1968. He was posted to Vietnam from 6 June 1967 to 16 April 1968. That period of service was “qualifying service” under the VE Act. His application for an invalidity service pension was based upon a claim that he was “permanently incapacitated for work” in accordance with the meaning of that expression in cl 5(1) of a written determination made by the appellant pursuant to s 37AA of the VE Act. Before the AAT, there was no dispute about the fact that the respondent suffered from several permanent psychiatric illnesses, including significant vulnerability in his personality, alcohol dependency, a pathological gambling addiction, major depression, a dysthymic disorder, and mild post-traumatic stress disorder. After leaving the army in 1968, the respondent worked for the State Electricity Commission of Victoria for approximately twenty-one years. He displayed symptoms and signs of alcohol dependency and gambling addiction during that period. His wife is a qualified nurse. She has provided financial stability to the respondent by working throughout their marriage, apart from those years when she had children. In 1994, the family moved to Darwin. The respondent obtained work as a gardener, and then as a counsellor for the Salvation Army. His wife was employed full-time at the Darwin Hospital. However, the respondent’s problems persisted. In 1995, the family returned to Victoria. The respondent obtained employment as the Chief Executive Officer of a retirement village, while his wife found work as a nurse at a base hospital. His ongoing problems led to his resignation in early 2000. His wife was then the sole breadwinner, and took charge of the family’s finances. The family had virtually no savings because of the respondent’s addictions. In mid-2000, the family returned to Darwin. In August 2000, the respondent and his wife obtained work as carers for Aboriginal school children under a scheme run by a Christian schools group. They were provided with a six-bedroom house in a Darwin suburb, and a mini bus to transport the children to and from school. They cared for about ten boys aged between twelve and fourteen years. They were paid a total of $30,000 per annum. For the first six months, they received $15,000 each. After January 2001, they arranged for the entire amount of $30,000 to be paid to the respondent’s wife, substantially because of the respondent’s inability to manage money. She gave him “pocket money” from time to time, amounting to about $50 per week. THE LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In substance, the AAT found that the respondent did not meet the requirements of cl 5(2)(b) of the determination because it was not satisfied that he was “permanently unable to do work for periods adding up to more than 8 hours per week”. It was that finding that was challenged before the primary judge as involving error of law. THE PRIMARY JUDGE’S REASONS FOR JUDGMENT The respondent’s notice of appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) contained a number of grounds alleging that the AAT had made various errors of law. The primary judge rejected a challenge to the adequacy of the AAT’s reasons, and a claim that the respondent had been denied procedural fairness. His Honour also rejected a contention that the AAT had wrongly imposed an onus of proof upon the respondent. However, his Honour was satisfied that the AAT had misunderstood, or misapplied, the meaning of the expression “permanently unable to do work” in cl 5(2)(b) of the determination (emphasis added). In substance, his Honour held that the AAT had misunderstood the meaning of the word “work”, in context, by failing to adopt a construction which involved working in “meaningful employment” as distinct from some “activity undertaken intermittently and at the [respondent’s] own pace and at the [respondent’s] own whim”. His Honour referred in some detail to the uncontradicted, and unchallenged, evidence before the AAT. He noted that the AAT’s reasons for decision did not suggest that it had any doubt as to the accuracy of that evidence, including the psychiatric evidence. He referred to Dr Knox’s report, and to his diagnosis that the respondent was suffering from long-term dysthymic disorder, a form of depression. Even at October 2000, Dr Knox noted:“While Mr Hill is employed, along with his wife, as a houseparent in a home for Aboriginal boys, his wife says that he does very little about the house, and is only able to work at a low level under her direction. I do not think that he would be able to find work in the open market. Thus, while he works 40 hours per week currently, I think that were he not able to continue in his present work he would be most unlikely to be capable of working more than eight hours per week. His self-confidence is very poor. He reports memory disturbance.Effectively Mr Hill has no job skills or qualifications likely to enable him to find employment at this time.” His Honour then noted that the passages from Dr Parker’s report that were quoted by the AAT were incomplete. He observed that the passage immediately preceding that which was quoted by the AAT read as follows:“Mr Hill described a pervasive sense of distress as a result of his persistent anxious arousal and frequent flash backs. Mrs Hill noted that she can tell when her husband is affected by the flashbacks because he becomes quiet and withdrawn. Mrs Hill also noted that her husband had become increasingly dependent on her for daily activities. Because of problems related to his gambling, she controls the finances in the family. Mr Hill commented that he cannot work any more due to his lack of confidence and poor concentration.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.