Wight, Jack Byam v The Repatriation Commission - [1984] FCA 14

Re: JACK BYAM WIGHT
And: THE REPATRIATION COMMISSION
No. ACT G2 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Repatriation - Applicant's entitlement to pension at the Special (Totally and Permanently Incapacitated) Rate or the Intermediate Rate - Onus of proof - Standard of proof - Whether Repatriation Review Tribunal failed correctly to apply the relevant legal principles.

Repatriation Act 1920, sections 47, 107VH, 107VZF, 107VZG, 107VZZH, Schedules

Repatriation Commission v. Bowman (1981) 34 A.L.R.556; 38 A.L.R. 650.

Lennell v. Repatriation Commission (unreported - 3 February 1982)

HEARING

CANBERRA

#DATE 15:2:1984

ORDER

1. The decision of the Repatriation Review Tribunal made on 14 December 1982 be set aside.

2. The matter be remitted to the Tribunal for re-hearing on such evidence as may be presented to the Tribunal by the parties.

3. The respondent pay the applicant's costs of the appeal to this Court.

JUDGE1

Jack Byam Wight ("the applicant") appeals to this Court pursuant to section 107 VZZH of the Repatriation Act 1920 ("the Act") from the decision given by the Repatriation Review Tribunal ("the Tribunal") on 14 December 1982 setting aside the decision of a Repatriation Board made on 22 April 1981 and substituting for that decision a decision that -

"Incapacity arising from service-related disabilities is assessed at one hundred per cent of the General Rate as set out in Schedule 1 to the Repatriation Act 1920. This decision is to take effect on and from 23 January 1981."

The Tribunal rejected the applicant's claim that the appropriate pension to be paid to him is a pension at the Special (Totally and Permanently Incapacitated) Rate as provided for in paragraph 1 of Schedule 2 to the Act or, alternatively, at the rate (called the Intermediate Rate) provided for in paragraph 6 of Schedule 1 thereto. The respondent to the appeal is the Repatriation Commission ("the Commission").

Division 6 of Part III of the Act (comprising sections 99-103 inclusive) extends the application of the provisions of Division 1 of that Part (sections 23-54 inclusive), other than section 24, and the Schedules to the Act to members of the Forces within the meaning of section 100 and the dependants of such members (section 99). Section 101 provides that, upon the incapacity or death of any member of the Forces who falls within the terms of the section, as the applicant does, the Commonwealth is, subject to the Act, liable to pay to the member, or his dependants, or both, pensions in accordance with Division 1. Section 35, which is found in that Division, provides that the rates of pension are those specified in the Schedules. Where a pension is granted, the Commission or a Repatriation Board may, subject to the Act, approve of the payment of the pension on and from a date not prior to 3 months before the date of lodgment of the claim for pension (sub-section 101(3)).

Schedule 1 provides a table of pensions…

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: [1984] FCA 14
Decision Date: 15 FEBRUARY 1984

CaseChat Overview and Summary

The applicant, Jack Byam Wight, sought to challenge the decision of the Repatriation Review Tribunal, which had determined his entitlement to a pension at the Special (Totally and Permanently Incapacitated) Rate rather than the Intermediate Rate. The matter was heard and determined in the Federal Court of Australia.

The legal issues in this case centred on whether the Repatriation Review Tribunal had correctly applied the relevant legal principles in its determination of the applicant's pension entitlement. Specifically, the court was tasked with determining whether the Tribunal had correctly assessed the onus of proof and the standard of proof required in the case. The central issue was whether the Tribunal had erred in its application of the law in setting aside the previous decision that the applicant was entitled to the Intermediate Rate pension.

The court found that the Repatriation Review Tribunal had failed to correctly apply the relevant legal principles in its determination. The Tribunal had not correctly assessed the onus of proof and the standard of proof required in the case. As a result, the decision of the Tribunal was set aside, and the matter was remitted to the Tribunal for re-hearing on such evidence as may be presented by the parties. The court also ordered that the respondent pay the applicant's costs of the appeal to the Federal Court of Australia.

Orders

Orders of the court

1. The decision of the Repatriation Review Tribunal made on 14 December 1982 be set aside.

2. The matter be remitted to the Tribunal for re-hearing on such evidence as may be presented to the Tribunal by the parties.

3. The respondent pay the applicant's costs of the appeal to this Court.

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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