Repatriation Commission v Mayfield

[2008] FMCA 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REPATRIATION COMMISSION v MAYFIELD [2008] FMCA 1103

ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – whether Tribunal erred by finding hypotheses open – “event” for the purposes of Statement of Principles – alcohol abuse.

ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – rate of pension – no question of law – appeal dismissed.

Administrative Appeals Tribunal Act 1975, s.44
Veterans’ Entitlements Act 1986, ss.23

Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart (2003) 77 ALD 67
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: REPATRIATION COMMISSION

Respondent: KEVIN MAYFIELD

File Number: BRG 582 of 2006

Judgment of: Jarrett FM

Hearing date: 6 November 2006

Date of Last Submission: 6 November 2006

Delivered at: Brisbane

Delivered on: 11 August 2008

REPRESENTATION

Counsel for the Applicant: Mr Derrington SC

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr Clutterbuck

Solicitors for the Respondent: Mylne & Associates

ORDERS

1. The appeal is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 582 of 2006

REPATRIATION COMMISSION

Applicant

And

KEVIN MAYFIELD

Respondent

REASONS FOR JUDGMENT

1. Kevin Mayfield served in the RAAF between May, 1965 and May, 1985.  In that time he saw two periods of operational service - the first at Ubon, Thailand between March, 1966 and October, 1966 and the second at Ismalia between January, 1977 and July, 1977.

2. This appeal, from a decision of the Administrative Appeals Tribunal about Mr Mayfield’s entitlement to a war service pension and the rate of pension he already receives, concerns his service at Ubon only.  It does not concern his service at Ismalia.

3. Mr Mayfield suffers alcohol dependence.  He has a number of other medical conditions, in respect of which he receives a service pension, paid at what is termed the “general rate”.  He applied to the Commission to have his alcohol dependence recognised as war caused and, for separate reasons, for his general rate of pension to be increased to the special rate of pension.

4. In its decision given on 14 June, 2006 the Tribunal set aside a decision of a veterans’ review board, which had confirmed a decision of the Commission that:

   a)Mr Mayfield’s alcohol dependence was not war caused as he claimed; and

   b)Mr Mayfield was not entitled to be paid his pension at a special or intermediate rate.

5. By its decision, the Tribunal substituted its own decision that Mr Mayfield’s alcohol dependence was war caused and that he was entitled to an intermediate rate of pension (which is higher than the general rate).  From both of those determinations, the Commission now appeals.

6. The Commission submits that the following questions of law arise on the appeal:

   1.1    the proper construction and operation of sections 23(1 )(c), 23(3),120(1), 120(3) and 120A(3) of the VE Act;

   1.2    the proper construction and operation of clauses 2(b), 4, 5(b), 5(c), 5(d) and 8 of the Statement of Principles…