Veterans' affairs - Disability pension - applicatlon €or special rate - veteran had disabilities accepted as war-caused lncluding periarthritis and spondylolisthesis 1 veteran in effect forced to retire from employment with Hobart Marine Board at age 63 because of war-caused disabilities - s.20 Veterans' Entitlements Act 1986
("the Act") - s.24(l)(c)
of the Act in contention - whether
criteria set out In
s .24 of the Act to be considered as at date
of application rather than as
at date of retirement
- whether
eligibility for special rate depends upon exlstence
of
continuing economic loss - interpretatlon of s . 1 2 0 ( 4 )
of the Act
(standard of proof) - appropriateness of Trlbunal taking
'official notice' of relevant facts - ss.33(1) (c), 44(1)
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED
BY
DEPUTY PRESIDENT R.C.
JENNINGS @.C.
BETWEEN :
REPATRIATION COMMISSION
Appllcant
AND :
-
MAXWELL 3. SMITH
Respondent
MINUTES OF ORDER
Court:
Northrop, Beaumont and Spender JJ.
Date orders
made:
l0 August 1987
Where made:
Sydney
THE COURT
ORDERS:
1. The appeal be allowed with costs.
2. The Tribunal's decision be set aside and the matter remitted to the Tribunal to be heard and decided again with the hearing of further evidence.
Note:
Settlement and entry of orders is dealt with in
Order 36 of the Federal Court
Rules.
I
..
,
I
i
IN THE FEDERAL COURT OF AUSTRALIA
)
1
TASMANIA DISTRICT REGISTRY
1
T. No. G 5 of 1987
1
GENERAL DIVISION
)
ON APPEAL FROM
THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED
BY
MR. R.C. JENNINGS, 0.C.. DEPUTY PRESIDENT
I .
REPATRIATION COMMISSION
Applicant
and
"ELL
J. SMITH
Respondent
COURT:
NORTHROP, BEAUMONT AND SPENDER JJ.
DATE : 10 AUGUST 1987
PLACE: SYDNEY
'
b.
.
:
:
.
1
REASONS FOR JUDGMENT
NORTHROP J.
I would make the orders proposed
by Beaumont J. and
I concur with
his reasons f o r judgment.
9
JAW
AssoCitlte
W e d :
10 August
1987
I
L
IN THE FEDERAL COURT
OF AUSTRALIA )
)
TASMANIA
D STRICT
REGISTRY
)
NO. T5 Of 1987
1
DIVISION
GENERAL
)
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT R.C. JENNIMGS Q.C.
BETWEEN:
REPATRIATION
COMM SSION
Applicant
-
AND :
MAXWELL 3. SMITH
Respondent
CORAM:
Northrop, Beaumont and Spender JJ.
DATED:
12 August 1987
REASONS FOR JUDGMENT
BEAUMONT 3.
The Veterans' Entitlements
Act 1986 ("the
Act")
makes provision for a number of pensions for veterans and their dependents. We are concerned here with Part I1 of the Act which
deals with pensions other
than "service" pensions.
So far as
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 Smith, M.J [1987] FCA 432
Case
[1987] FCA 432
Decision Date
CaseChat Overview and Summary
The appeal in Repatriation Commission v Smith, M.J. was heard in the Federal Court of Australia by Northrop, Beaumont and Spender JJ. The Repatriation Commission sought to appeal a decision of the Administrative Appeals Tribunal that found the respondent, Maxwell Smith, eligible for a special rate pension under the Veterans' Entitlements Act 1986. The Tribunal had found that Mr. Smith's war-caused disabilities prevented him from continuing his employment as a plumber after he retired at age 63. The Commission argued that the Tribunal had erred in law by applying the wrong standard of proof and by considering the matter as at the date of retirement rather than the date of application for the pension increase. The Court found that the Tribunal had indeed erred in law by applying the wrong standard of proof. While the Tribunal should have been reasonably satisfied on the facts, it had instead applied a test of "real possibilities" rather than "probabilities." The Court also found that the question of eligibility for the special rate pension should have been considered as at the date of the application for the pension increase, not the date of retirement. The Court allowed the appeal, set aside the Tribunal's decision, and remitted the matter to the Tribunal to be heard again with the hearing of further evidence.