Counsel v Repatriation Commission [2002] FCAFC 201

FEDERAL COURT OF AUSTRALIA

Counsel v Repatriation Commission [2002] FCAFC 201

VETERANS' ENTITLEMENTS – application for Special Rate pension – whether veteran had suffered a "loss of earnings on his or her own account" – veteran's last paid remunerative work was running a farming business in partnership with his wife – the business consistently recorded a net loss – whether Administrative Appeals Tribunal erred in law when it held that there had been no loss of earnings – whether earnings should be construed as the veteran's interest in the gross earnings of the partnership.

WORDS AND PHRASES – "loss of earnings on his or her own account".

Veterans' Entitlements Act 1986 (Cth), s 24(2A)(e)

Hill v Repatriation Commission [2000] FCA 929 referred to Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 referred to Abram Coal Company Limited v Southern [1903] AC 306 referred to Glazebrook v Accident Compensation Commission [1988] VR 454 referred to Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 referred to Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 referred to Federal Commissioner of Taxation v Everett (1980) 143 CLR 440 referred to Gauntlett v Repatriation Commission (1991) 32 FCR 73 referred to LAURENCE COUNSEL v REPATRIATION COMMISSION N 1219 of 2001 GRAY, CARR & GOLDBERG JJ 20 JUNE 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1219 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LAURENCE COUNSEL

APPELLANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGES: GRAY, CARR AND GOLDBERG JJ

DATE OF ORDER: 20 JUNE 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Court given on 1 August 2001 be set aside. 3. There be substituted for that judgment orders that: (a) the decision of the Administrative Appeals Tribunal given on 9 April 2001 be set aside; (b) the matter be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with the direction of the Court that the Administrative Appeals Tribunal make a decision setting aside the decision of the delegate of the Repatriation Commission made on 13 November 1998 and substituting a decision that the applicant is entitled to pension at the special rate with effect from 31 July 1998; (c) the respondent pay the applicant's costs of the proceeding. 4. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.