Stewart v Repatriation Commission

[2002] FCA 316

FEDERAL COURT OF AUSTRALIA

Stewart v Repatriation Commission [2002] FCA 316

VETERANS’ AFFAIRS – pension claim – review by Administrative Appeals Tribunal – whether Tribunal could depart from findings affirmed by Veterans’ Review Board – whether review confined to assessment of pension rate – whole of decision to be reviewed.

Veterans’ Entitlements Act 1986, ss 29(4) and 175(1)(a)

Re Anderson and Repatriation Commission (1998) 53 ALD 467 followed
Bramwell v Repatriation Commission (1998) 158 ALR 623 followed
Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 applied

PRUDENCE CHRISTINE STEWART v REPATRIATION COMMISSION

N 1360 of 2000

JUDGE:        WHITLAM J
DATE:          21 MARCH 2002
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1360 of 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	PRUDENCE CHRISTINE STEWART APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	21 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The applicant is to pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1360 of 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	PRUDENCE CHRISTINE STEWART APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WHITLAM J
DATE:	21 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made under the Veterans’ Entitlements Act 1986 (“the Act”).

2. The applicant is the widow of a deceased veteran who rendered operational service during World War 2.  In June 1942, during his service, the veteran suffered an episode of cerebro-spinal meningitis.  In February 1989 the veteran suffered a grand mal seizure for the first time.  He suffered further such seizures in April 1989 and March 1992.

3. On 27 April 1993 the veteran lodged a claim for a pension under s 14 of the Act in respect of incapacity from what were described as “grand mal seizures”, “essential thrombocytosis” and “arthritis right knee”. On 23 October 1993 a delegate of the respondent determined that the veteran suffered post-meningitic epilepsy, essential thrombocytosis and osteoarthritis right knee, but that only the post-meningitic epilepsy was war-caused. The delegate assessed the rate at which the pension was payable as 10% of the general rate.

4. The veteran applied for a review of the delegate’s decision. On 2 May 1994 the Veterans’ Review Board (“the Board”) affirmed the delegate’s decision in respect of essential thrombocytosis and osteoarthritis right knee and adjourned pursuant to s 152(2) of the Act the hearing of the review with respect to pension assessment. On 11 December 1994 the Board affirmed the delegate’s pension assessment. The Board recorded its decision in the following terms:

   “On 11 November 1994, the Veterans’ Review Board decided to affirm the decision of the Repatriation Commission dated 22 October 1993, the subject of the review.”

5. On 3 February…