Walshe, V.J. v The Repatriation Commission - [1989] FCA 491

Re: VICTOR JAMES WALSHE AND THE REPATRIATION COMMISSION
And: THE REPATRIATION COMMISSION
Re: THE REPATRIATION COMMISSION
And: C.A. KEMP; N.R. CHARLESWORTH; B.T. EGAN AND G.L. COBBAN
Nos. NG329 and 261 of 1989
FED No. 491
Veterans' Entitlements

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Veterans' Entitlements - Amendment of legislation to provide new benefit, extreme disablement benefit - Availability of benefit in respect of period before commencement of amending legislation - Effect of provision designed to give some retrospective effect to amending legislation.

Veterans' Entitlements Act 1986 ss.19, 22.

Veterans' Affairs Legislation Amendment Act 1988 ss.2, 3, 10, 13, 14.

HEARING

SYDNEY

#DATE 28:8:1989

No. NG329

Counsel for the Applicant: Mr M Smith

Solicitors for the Applicant: Vandenberg Reid Pappas & MacDonald

Counsel for the Respondent: Ms R M Henderson

Solicitors for the Respondent: Australian Government Solicitor
No. NG261

Counsel for the Applicant: Ms R M Henderson

Solicitors for the Applicant: Australian Government Solicitor

Solicitors for the First,
Second and Third Respondents: Australian Government Solicitor

Counsel for the Fourth
Respondent: Mr M Smith

Solicitors for the Fourth
Respondent; Vandenberg Reid Pappas &

MacDonald

ORDER

No. NG 329 of 1989

The application for review be dismissed.
No. NG 261 of 1989

The application for review be allowed.

The decision of the Veterans' Review Board, constituted by the first, second and third respondents, on the application of the fourth respondent for an increased pension rate, dated 3 March 1989, be set aside and the said application be remitted to the said Board for determination according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

JUDGE1

These two cases, heard together by consent, raise but a single question: whether an "extreme disablement adjustment" may be awarded to veterans in respect of a period before the commencement of the amending legislation which introduced that benefit.

The Veterans' Entitlements Act 1986 commenced to operate on 22 May 1986. That Act retained the concept, familiar from its predecessor, the Repatriation Act 1920, of a general rate of pension awarded to veterans who suffer from war-caused injuries or war-caused diseases: see s.22 of the Veterans' Entitlements Act. The Act also provided for an intermediate rate of pension payable to a veteran whose incapacity is of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently (s.23), for a special rate of pension payable where the veteran is totally and permanently incapacitated (s.24) and for a temporary payment at a special rate (s.25).
As originally enacted in 1986, the Veterans' Entitlements Act did not provide for any extra payment in cases where a veteran suffered from a disability which was particularly disabling but which did not occasion economic loss. With the increasing number of World War II veterans who had attained the usual retiring age, there were no doubt many persons…

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

Case: [1989] FCA 491
Decision Date: 28 AUGUST 1989

CaseChat Overview and Summary

The matter before the court involved a dispute between Walshe, V.J. and The Repatriation Commission, concerning the application of the Veterans' Entitlements Act. Specifically, the issue was the availability of a new benefit, the extreme disablement benefit, in respect of a period before the commencement of the amending legislation. The case was heard in the Federal Court of Australia, which was tasked with interpreting the legislative provisions and determining the rights of the parties involved.

The central legal issue was the interpretation of the legislation, specifically the provision designed to give retrospective effect to the amending legislation. The court had to decide whether the extreme disablement benefit was available for the period before the commencement of the amending legislation. This required a detailed analysis of the statutory language, the intent of the legislature, and the implications of the retrospective application of the law.

The court examined the language of the amending legislation and found that it was intended to provide some retrospective effect, thereby allowing the extreme disablement benefit to apply to periods before the commencement of the legislation. The court held that the provision was designed to ensure that veterans who were eligible for the benefit were not disadvantaged by the timing of the legislative change. Consequently, the court allowed the application for review and set aside the decision of the Veterans' Review Board, remitting the matter for further determination according to law.

In conclusion, the court dismissed the application for review in one instance and allowed it in another, directing the Veterans' Review Board to reassess the pension rate application in light of the new legislation. The final orders reflected these determinations, with specific references to the Federal Court Rules for the settlement and entry of orders.

Orders

Orders of the court

No. NG 329 of 1989

The application for review be dismissed.

No. NG 261 of 1989

The application for review be allowed.

The decision of the Veterans' Review Board, constituted by the first, second and third respondents, on the application of the fourth respondent for an increased pension rate, dated 3 March 1989, be set aside and the said application be remitted to the said Board for determination according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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