Sleep v Repatriation Commission [2003] FCAFC 304

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2003] FCAFC 304 KENNETH JOHN SLEEP v REPATRIATION COMMISSION S 291 OF 2002 CARR, FINN & SUNDBERG JJ 19 DECEMBER 2003 CANBERRA (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 291 OF 2002

BETWEEN: KENNETH JOHN SLEEP

APPELLANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: CARR, FINN & SUNDBERG JJ

DATE OF ORDER: 19 DECEMBER 2003

WHERE MADE: CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. Leave be granted to the appellant for an extension of time in which to file and serve a Notice of Appeal. 2. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 291 OF 2002

BETWEEN: KENNETH JOHN SLEEP

APPELLANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: CARR, FINN & SUNDBERG JJ

DATE: 19 DECEMBER 2003

PLACE: CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT: 1 The applicant/appellant has applied for an extension of time in which to file and serve a Notice of Appeal. That application is not opposed by the respondent. We grant leave so as to facilitate the final resolution of this matter. 2 Mr Sleep was an unsuccessful applicant for an "Attendant allowance" under s 98(2) of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). His appeal to the Administrative Appeals Tribunal ("the Tribunal") was rejected on the basis of a finding that on the evidence the Tribunal was not satisfied that the severity or effect of his war-caused diseases had the character required by s 98(2)(a)(ii) of the Act. His appeal to the Federal Magistrate's Court of Australia was dismissed. The present appeal is from the Federal Magistrate's decision. Mr Sleep is representing himself on the appeal. 3 Section 98 of the VE Act insofar as presently relevant provides: "(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war-caused injury or a war-caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran: Column 1 Column 2 Kinds of incapacity Rate per fortnight $ 1. Blinded in both eyes 84.30 2. Blinded in both eyes together with 168.60 total loss of speech or total deafness 3. Both arms amputated 168.60 4. Both legs amputated and one arm 84.30 amputated 5. Both legs amputated at the hip or 84.30 one leg amputated at the hip and the other leg amputated in the upper third (2) Where: (a) a veteran is being paid a pension under Part II in respect of incapacity: (i) from a war-caused injury or a war-caused disease affecting the cerebro-spinal system; or (ii) from a war-caused injury or a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and (b) the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran; the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran. …" 4 Mr Sleep is a Vietnam veteran in receipt of a full TPI pension. The conditions for which he is receiving his disability pension are lymphopaenia with CD4 suppression (HIV negative), agranulocytosis with chronic neutropaenia, anxiety state, prickly heat, tinea, ischio rectal abscess. To anticipate matters, as the Federal Magistrate indicated, the major effects of his conditions are that: "[t]he lymphopaenia with CD4 suppression has reduced his immune system to such an extent that he is a target for opportunistic infection. This leads to marked symptoms of fatigue malaise and severely restricts his ability to socialise. His skin disorders are uncomfortable, unsightly and require frequent attention and medication. Overlayed upon these difficulties is an anxiety state."