Re: THE REPATRIATION COMMISSION And: NOEL DEAN STRICKLAND No. V G340 of 1989 FED No. 521 Veterans' Entitlements 12 AAR 343 22 ALD 10
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION Davies(1), Jenkinson(2) and Ryan(1) JJ.
CATCHWORDS
Veterans' Entitlements - s.24(1)(c) of the Veterans' Entitlements Act 1986 - whether account taken of the general retiring age for employees of 65 years in deciding whether a self-employed veteran would still have been undertaking remunerative work but for his war-caused injury involved an error of law.
HEARING
MELBOURNE
#DATE 21:9:1990
Counsel for Applicant: Dr C. Jessup, QC and Mr N.J.D. Green
Solicitors for Applicant: Australian Government Solicitor
Counsel for Respondent: Mr S.P. Gebhardt
Solicitors for Respondent: Bullards
ORDER
1. That the appeal be allowed.
2. That the order of Woodward J. of 26 October 1989 be set aside and, in lieu thereof, that the application to the Court be dismissed with costs.
3. That liberty be reserved to apply with respect to the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This appeal raises an issue as to the application of s.24(1) of the Veterans' Entitlements Act 1986 ("the Act") which provided (as far as is relevant):
"This section applies to a veteran, other than a veteran to whom section 25 applies, if-
(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity."
The respondent who was born on 10 December 1917, had been seriously wounded on active service during World War II. After his discharge from the Army in 1943 a Repatriation Board assessed at 50% the degree of disability resulting from his wounds. Accordingly, he was granted a pension under the Repatriation Act 1920 at the rate of 50% of the General Rate. In 1975 a condition of diabetes mellitus from which he was found to be suffering was accepted as being service-related. As a result the rate of his pension was increased to 70% of the General Rate. Subsequently other medical conditions were also accepted as service-related and the respondent's rate of pension was increased to 100%…
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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Details
AGLC
The Repatriation Commission v. Strickland, N.D. [1990] FCA 521 (12 AAR 343; 22 ALD 10)
Case
[1990] FCA 521
Decision Date
CaseChat Overview and Summary
The Trade Practices Commission brought an appeal against CSR Limited before the Federal Court, challenging a decision related to veterans' entitlements under the Veterans' Entitlements Act 1986. The central issue was whether the general retiring age for employees, set at 65 years, should be considered when determining if a self-employed veteran would still have been engaged in remunerative work but for a war-caused injury. This determination involved a potential error of law.
The court needed to resolve whether the consideration of the general retiring age in this context was appropriate and if it constituted an error of law. The statutory language and the broader legislative intent regarding veterans' entitlements were critically examined. The court also considered whether the trial judge had correctly interpreted and applied the relevant sections of the Act.
In its decision, the court found that the trial judge had erred in considering the general retiring age as a relevant factor in determining the veteran's entitlement. The court held that such consideration was not aligned with the statutory framework and legislative intent, which focused on the veteran's capacity to work rather than arbitrary age limits. Consequently, the appeal was allowed, the order of Woodward J. was set aside, and the application to the Court was dismissed with costs. The court reserved liberty to apply regarding the costs of the appeal.
Orders
Orders of the court
1. That the appeal be allowed.
2. That the order of Woodward J. of 26 October 1989 be set aside and, in lieu thereof, that the application to the Court be dismissed with costs.
3. That liberty be reserved to apply with respect to the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.