Wright v Repatriation Commission

[2005] FCA 7

FEDERAL COURT OF AUSTRALIA

Wright v Repatriation Commission [2005] FCA 7

VETERANS' AFFAIRS - Disability pension - Application for pension at special rate - Veteran receiving pension at 100% of general rate for war-caused conditions - meaning of "assessment period" - eligibility for pension assessed at "special rate" - Assessment of Veteran's inability to undertake remunerative work - Veteran's inability to undertake remunerative work not caused solely by war-caused disease or injury - the "alone" test -meaning of "remunerative work" - any activity which provides remuneration - Veteran prevented from continuing remunerative work from both war-caused injuries and non-accepted conditions - factual finding by the Administrative Appeals Tribunal - accepted conditions alone must lead to the prevention - remunerative artistic work had continued during the assessment period - (CTH) Veterans' Entitlement Act 1986 ss 13, 14, 19, 22, 23, 24.

Veterans’ Entitlements Act 1986 (Cth) ss 13, 14, 19, 22, 23 and 24

Banovic v Repatriation Commission (1986) 9 ALN N221A cited

Forbes v Repatriation Commission (2000) 101 FCR 50; (2000) 171 ALR 131 cited
Flentjarv Repatriation Commission (1997) 48 ALD 1 cited
Cavell v Repatriation Commission (1988) 9 AAR 534 cited
Conway v Repatriation Commission (1988) 16 ALD 770 cited
Repatriation Commission v Hendy (2002) 76 ALD 47 referred to
Starcevich v Repatriation Commission (1987) 18 FCR 221 distinguished
Repatriation Commission v Haskard (2002) 126 FCR 1 approved

KEVIN WRIGHT v REPATRIATION COMMISSION
N 1275 OF 2004

TAMBERLIN J
SYDNEY
14 JANUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1275 OF 2004

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

BETWEEN:	KEVIN WRIGHT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 JANUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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	N1275 OF 2004

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

BETWEEN:	KEVIN WRIGHT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 JANUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the applicant (“Mr Wright”) against a decision of the Administrative Appeals Tribunal (“the AAT”) made on 2 August 2004, confirming a refusal of an application for a special rate of pension under s 24(1) (c) of the Veterans’ Entitlements Act 1986 (“the Act”) by the applicant.

2. Mr Wright is a veteran who has received a pension at the general rate under Part II of the Act since 3 July 2002. The AAT determined that he did not qualify for payment of the special rate of pension under s 24.

3. Mr Wright was born on 13 January 1949 and is 55 years old.  He is a former member of the Royal Australian Navy who rendered operational service in Vietnam in 1966.  Subsequently he served on Royal Navy and Royal Australian Navy submarines.  He…