Repatriation Commission v Moss

[1982] FCA 54

Re: REPATRIATION COMMISSION
And: DAVID MOSS
No. G130 of 1981
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Deane J.
Fitzgerald J.

CATCHWORDS

Administrative law - appeal from Administrative Appeals Tribunal - whether respondent had an existing partial incapacity caused by pulmonary tuberculosis at date of review by Repatriation Commission - whether "incapacity" refers to physical or mental disability or impairment rather than inability to work or earn in the context of the Repatriation Act, 1920.

Repatriation Act, 1920 ss.24, 27, 31, 37(repealed), 48, 101, 107VZZB; Schedule 1, Column 3; Schedule 3, Table C;

Repatriation Acts Amendment Act, 1978 s.40

Federal Proceedings (Costs) Act, 1981, s.6

HEARING

SYDNEY

#DATE 22:4:1982

ORDER

1. THE appeal be allowed.

2. THE decision of the Administrative Appeals Tribunal be set aside and in lieu thereof, the decision of the Repatriation Commission be restored.

3. EACH party pay its or his own costs.

JUDGE1

The Repatriation Commission appeals pursuant to s.43 of the Administrative Appeals Tribunal Act, 1975 on a point of law, against a decision of that Tribunal that the respondent is entitled to a pension in respect of tuberculosis. The matter came before the Tribunal on a reference by the President of the Repatriation Review Tribunal under s. 107VZZB(1) of the Repatriation Act, 1920.

The respondent Mr. Moss was born on 3 April 1922. He left school when 15, after completing his Intermediate Certificate. He enlisted as a member of the Forces in June 1941 and served until April 1946. After his discharge he did some timber felling and banana farming in Queensland, although for what periods is not clear.

For some months in late 1947 he worked as a machine driver in an underground gold mine in Queensland, and left that position to work as an underground machine operator for the New South Wales Metropolitan Water, Sewerage and Drainage Board in a project which included the construction of a large tunnel. Soon after reporting for that position an x-ray disclosed pulmonary tuberculosis and he was put into hospital. On 21 January 1948 his tuberculosis was accepted as due to war service and a pension for him was assessed at the statutory minimum of 100% of the "General Rate". After release from hospital, he took up clerical work, and started a part-time course in accountancy. He soon had a recurrence of tuberculosis, and after discharge from hospital on this occasion did not resume the accountancy course. He started work as a stock clerk and did well in that activity, getting over a time a series of better positions and a degree of promotion. His lack of education and formal training have in recent years operated as a handicap, and his earnings have fallen back relative to those of people with higher qualifications. The Tribunal found that it was a case "where, because of his tuberculosis, he was precluded from continuing in the type of work to which he was most suited, that is…