Smith v Commonwealth of Australia - [2009] FCA 684

FEDERAL COURT OF AUSTRALIA
Smith v Commonwealth of Australia [2009] FCA 684
ADMINISTRATIVE LAW – Veterans’ Entitlements – “double dipping” – entitlement to pension for war-caused injury – payment in settlement of common law action in negligence – whether both payments in respect of incapacity from the same injury – whether Veterans Entitlements’ Act 1986 (Cth) s 30C applicable to the facts – approach to be taken to application of s 30C.
Veterans’ Entitlements Act 1986 (Cth) ss 30C and 30P(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Explanatory Memorandum, Veterans’ Affairs Legislation Amending Act 1994 (Cth).
Schmidt v Repatriation Commission [2004] FCA 1158
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Mills v Meeking (1990) 169 CLR 214
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Repatriation Commission v Hayes (1982) 43 ALR 216
Starcevich v Repatriation Commission (1987) 76 ALR 449
DAVID RONALD SMITH v THE COMMONWEALTH OF AUSTRALIA
VID 371 of 2008
RYAN J
24 JUNE 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 371 of 2008

BETWEEN:
DAVID RONALD SMITH
Applicant

AND:
THE COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

24 JUNE 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The decision or decisions by the Repatriation Commission between 20 December 2007 and 31 July 2008 to recover from the applicant the sum of $55,262.75 representing the amount allegedly overpaid to him by way of disability pension be set aside.
2.IT BE DECLARED that in the events which have happened s 30C of the Veterans’ Entitlements Act 1986 (Cth) has no application to the lump sum payment of compensation received by the applicant pursuant to the terms of settlement of Action No 20785 of 1997 in the Supreme Court of New South Wales.
3.The respondent pay the applicant’s costs of the application to this Court, to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 371 of 2008

BETWEEN:
DAVID RONALD SMITH
Applicant

AND:
THE COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

RYAN J

DATE:

24 JUNE 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This matter involves a narrow point of statutory construction arising from certain specific and uncommon facts. The applicant, Mr Smith, received a payment in settlement of a claim for damages for physical injuries which he allegedly suffered as a result of the negligence of the Commonwealth. The question is whether s 30C of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) has the effect of requiring that payment to be offset against the war service pension Mr Smith was receiving when he recovered the payment as the fruits of an action which he had brought at common law.
The Repatriation Commission (“the…

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.

Keep reading for free

Create a free CaseChat account to read Smith v Commonwealth of Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FCA 684
Decision Date: 24 June 2009

CaseChat Overview and Summary

Smith, a former member of the Royal Australian Navy, sought judicial review of a decision by the Repatriation Commission to offset his war service pension against a lump sum compensation payment he received as a result of a settlement of a negligence claim against the Commonwealth. The central legal issue before the Court was the interpretation and application of section 30C of the Veterans' Entitlements Act 1986 (Cth), which deals with the reduction or elimination of war service pensions upon receipt of compensation for the same injury. Smith argued that the section did not apply to his situation, while the Commission contended that it did. The Court considered whether the statutory language clearly expressed the legislative intent to reduce the pension by the compensation payment.

The Court concluded that the language of section 30C, read in its ordinary meaning, clearly expressed the legislative intent that a war service pension should be reduced or eliminated by a lump sum compensation payment for the same injury. The Court found that the benevolent or remedial nature of the Veterans’ Entitlements Act did not necessitate a departure from the plain meaning of the statutory language. The Court held that the Commission's decisions to recover the alleged overpayment from Smith were invalid as they were based on an incorrect interpretation of section 30C. Consequently, the Court set aside the Commission's decisions and declared that section 30C did not apply to the lump sum compensation payment received by Smith. The Court also ordered the Commission to pay Smith’s costs of the application.

Orders

Orders of the court

1. The decision or decisions by the Repatriation Commission between 20 December 2007 and 31 July 2008 to recover from the applicant the sum of $55,262.75 representing the amount allegedly overpaid to him by way of disability pension be set aside.

2. IT BE DECLARED that in the events which have happened s 30C of the Veterans’ Entitlements Act 1986 (Cth) has no application to the lump sum payment of compensation received by the applicant pursuant to the terms of settlement of Action No 20785 of 1997 in the Supreme Court of New South Wales.

3. The respondent pay the applicant’s costs of the application to this Court, to be taxed in default of agreement.

Note:

Background

Background to the litigation

The Repatriation Commission (“the Commission”) has taken the view that s 30C of the Act does require the payment to be offset against Mr Smith’s war service pension and he has sought, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), judicial review of the Commission’s decision.Factual Background Mr Smith served as a member of the Royal Australian Navy between 29 July 1963 and 28 July 1972. The matter currently before the Court requires reference to only two aspects of his service. The first instance occurred when he was on board the HMAS “Melbourne” on 10 February 1964 when it collided in Australian waters with the HMAS “Voyager”, as a result of which 80 members of the crew of the latter vessel perished. Secondly, Mr Smith served in the Royal Australian Navy in Vietnam, between October 1969 and October 1970 when he was attached to the 135th Assault Helicopter Company of the United States Army. It was not disputed that that was operational service within the meaning of the Act. On 26 November 1991, Mr Smith made a claim under the Act for a disability pension on the ground that he was suffering from a duodenal ulcer and from post-traumatic stress disorder (“PTSD”), as well as from tinea pedis. The tinea claim was rejected, so it is not necessary to refer to it further. The rest of his claim was accepted by the Commission on or about 8 January 1992, with effect from 26 August 1991. The decision of a delegate of the Commission dated 23 December 1992 contained this passage;‘I have examined the relevant service documents, medical history and statements made in support of the claim and I find that the Veteran’s post traumatic stress disorder duodenal ulcers may have been causally linked to or aggravated by his service. It follows therefore that a reasonable hypothesis connecting duodenal ulcers; post traumatic stress disorder with the Veteran’s war service has been established, and accordingly this part of the claim is granted…’ In 1997, Mr Smith commenced proceedings in the Supreme Court of New South Wales alleging, relevantly, that the collision between the “Melbourne” and the “Voyager” had been caused by the negligence of officers of the Commonwealth and that, as a result, he had suffered loss and damage. The proceedings were initially defended, but were later mediated and settled on 11 December 2007 on a confidential basis. The terms of the settlement provided that particulars which had been filed in the Supreme Court proceedings be amended by, amongst other things, deleting from the “Particulars of Disabilities” sub-paragraph (viii) directed to PTSD and sub-paragraph (xl) “Duodenal ulcer”. It was then stipulated;‘2. Verdict and judgment for the Plaintiff in the sum of $250,000.00.3. The Defendant to pay the Plaintiff’s party/party costs as agreed or assessed.4.The Defendant to have liberty to make any statutory deductions from the amount of the verdict in respect of any payments made to the Plaintiff under the Social Security Act 1991, the Safety Rehabilitation and Compensation Act 1988, the Health and Other Services (Compensation) Act 1995, the Military Compensation and Rehabilitation Services Act 2004 or the Veterans’ Entitlement Act 1986.5.The Defendant to deduct from the judgment and pay to Medicare Australia the sum of $25,000.00 being 10% of the judgment sum pending issue of a valid Notice of Charge by Medicare Australia.6.No interest shall be payable in respect of the judgment if payment is made within 28 days from either:-a. the date of Judgment; orb.receipt of an original Authority to Receive satisfactory to the Defendant; orc.receipt by the Defendant of advice or notice in writing from Centrelink, the Department of Veterans’ Affairs and the Military Compensation and Rehabilitation Service of any amounts due;whichever is the latter.7.Interest under paragraph 6 shall not be recoverable by the Plaintiff in respect of that part of the judgment monies being the deductions specified in paragraphs 4 and 5.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RYAN J

Mr Niall also submitted, however, that the construction of s 30C for which he contended, and which I have essentially accepted, is reinforced by the beneficial or remedial nature of the Act, for which he cited Repatriation Commission v Hayes (1982) 43 ALR 216, per Keely J, at 219. There is a persuasive body of authority in support of a benevolent interpretation of legislation which can be imputed to confer social benefits; see, eg, Starcevich v Repatriation Commission (1987) 76 ALR 449, at 454. But this is not a case, in my view, where recourse to canons of construction of that kind is necessary. The words of the section, in their ordinary meaning, express a clear legislative intent. That is that a war service pension is to be reduced or eliminated by receipt of a lump sum payment received as compensation for the same injury for which the pension is or would have been payable.Conclusion For the reasons which I have endeavoured to explain, the decision or decisions by the Commission between 20 December 2007 and 31 July 2008 to recover from Mr Smith the sum of $55,262.75 representing the amount allegedly overpaid to him by way of disability pension must be set aside. By his amended application, Mr Smith seeks also a declaration that “the applicant remains entitled to receive disability pension benefits pursuant to the … Act.” I consider that a declaration in those terms would be too wide as circumstances other than those canvassed in these reasons may impinge on Mr Smith’s entitlement to receive disability pension benefits under the Act. However, there should be a declaration that, in the events which have happened, s 30 of the Act has no application to the lump sum payment of compensation received by Mr Smith pursuant to the terms of settlement of Action No 20785 of 1997 in the Supreme Court of New South Wales. The respondent must pay the applicant’s costs of the application to this Court.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 371 of 2008

BETWEEN:	DAVID RONALD SMITH Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	RYAN J
DATE OF ORDER:	24 JUNE 2009
WHERE MADE:	MELBOURNE

JUDGE:	RYAN J
DATE:	24 JUNE 2009
PLACE:	MELBOURNE