Apthorpe, R.H v. The Repatriation Commission [1987] FCA 121

' woe

Sudgement No. | a!R o>

CATCHWORDS

REPATRIATION - General rate pension - Degree of incapacity - Whether Administrative Appeals Tribunal bound to have regard to Guide to Assessment of Incapacity issued by Department - Whether Tribunal entitled to consider degrees of incapacity set out in Schedule 4 of Act - Failure of Tribunal also to

refer to Schedule 5.

Repatriation Act 1920 s.35, Schedules 3, 4, 5.

Re McPherson and Repatriation Commission (1985) 8 ALD 484,

Wicks v Firth [1983] 2 Ac 214, Hanning v Maitland [1970] 1 0B 580 and Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 1 WLR 270 referred to.

NSW G.81 fo 1986 ROBERT HARRY APTHORPE v_ THE REPATRIATION COMMISSION

Wilcox J Sydney 23 March 1987

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.81 of 1986 ) )

GENERAL DIVISION

BETWEEN: ROBERT HARRY APTHORPE

Applicant

AND: THE REPATRIATION COMMISSION

Respondent

CORAM: WILCOX J PLACE: SYDNEY DATE: 23 MARCH 1987

REASONS FOR JUDGMENT

The question which arises upon this appeal concerns

the manner of assessing the degree of partial incapacity of a

veteran claiming benefits under the Repatriation Act 1920. I

emphasize the reference to that Act because the legislation

which has now superseded that Act, the Veterans' Entitlements

Act 1986, contains express provisions -- see ss.22 and 26-29 -- which deal with the subject matter of this case. But those provisions are not relevant to this appeal, which questions the legal correctness of a decision made by the Administrative Appeals Tribunal (Mr B J McMahon, Senior Member, and Mr S Crawshaw and Dr M Thorpe, Members) under the previous

legislation.

Section 35 of the Repatriation Act provided that,

subject to an immaterial provision, "the rates of pension payable ... are those specified in the Schedules". Schedules 1 to 5 inclusive dealt with pension rates. Schedule 1 set out