Tosswill, C.D.W. v Repatriation Commission [1995] FCA 248

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No NG 372 of 1994

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr M.D. Allen (Senior Member), Brigadier J.A. Hooper CBE (Member) and Vice Admiral D.W. Leach AC CBE LVO (Member). BETWEEN: CYRIL DE WITT TOSSWILL Applicant - and -

REPATRIATION COMMISSION Respondent

Coram: Olney J Place: Melbourne (Heard in Sydney) Date: 24 April 1995

MINUTE OF ORDER THE COURT ORDERS THAT:

1. The appeal be allowed with costs.

2. The decision of the Administrative Appeals Tribunal made on 27 May 1994 be set aside and in lieu thereof there be substituted a decision that the decisions of the Veterans' Review Board of 5 February 1993 and of the respondent's delegate of 1 May 1992 be set aside. 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 GENERAL DIVISION No NG 372 of 1994

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr M.D. Allen (Senior Member), Brigadier J.A. Hooper CBE (Member) and Vice Admiral D.W. Leach AC CBE LVO (Member). BETWEEN: CYRIL DE WITT TOSSWILL Applicant - and -

REPATRIATION COMMISSION Respondent

Coram: Olney J Place: Melbourne (Heard in Sydney) Date: 24 April 1995

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975. BACKGROUND The applicant was granted a war disability pension in 1963. After he turned 60 in 1982 he was granted a service pension. On 1 September 1983 the respondent's delegate determined that the war disability pension be increased to the intermediate rate with effect from 7 January 1983. On 1 May 1992, following a review of the applicant's entitlement, a delegate of the respondent determined that the rate of his disability pension be reduced to 100% of the general rate with effect from 7 January 1983. The applicant applied to the Veterans' Review Board (the VRB) to review the determination of 1 May 1992 but on 5 February 1993 the VRB affirmed the delegate's determination. The applicant then applied to the Tribunal for review of the VRB's decision and on 27 May 1994 the Tribunal dismissed the application and affirmed the decision of the VRB. The present appeal is from the Tribunal's decision of 27 May 1994. THE LEGISLATIVE SCHEME In September 1983 when the respondent first determined that the applicant should be paid a pension for incapacity at the intermediate rate the relevant criteria were set out in paragraph 6 of Schedule 1 to the Repatriation Act 1920 (as amended). That paragraph provided: 6. Where the incapacity of a member of the forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently, the amount specified in column 3 of the table in this schedule shall, in its application in relation to him, be deemed to be $140.30. The term "living wage" was not defined in the Repatriation Act. The Repatriation Act was repealed upon the coming into operation of the Veterans' Entitlement Act 1986 (the VEA) on 22 May 1986. By virtue of s 4(2) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, the VEA applies to and in relation to the applicant as if his pension for incapacity had been granted to him under Part II of the VEA. The particular parts of Part II of the VEA which are relevant in this proceeding are ss 23, 24A and 31. Section 23 deals with entitlement to a pension at the intermediate rate, s 24A makes provision for the continuation of the payment of pensions, inter alia, at the intermediate rate except in certain specified circumstances and s 31 deals with the powers of the respondent to review decisions previously made by it. The following portions of ss 23, 24A and 31 have application in this case: 23. (1) This section applies to a veteran if: (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; (b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and (c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and (d) section 24 or 24 does not apply to the veteran. (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind: (a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or (b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week. (3) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity: (i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; (ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or (iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and (b) ... 24A. Where the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless: (a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person; (b) in the case of a veteran to whom section 23 applies: (i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or (ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or (c) ... 31.(6) Where the Commission is satisfied that: (a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board of the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;