Repatriation Commission v Clark, John Henry [1996] FCA 297

IN THE FEDERAL COURT OF AUSTRALIA) ) QUEENSLAND DISTRICT REGISTRY )No QG 183 of 1994 ) GENERAL DIVISION ) On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe (Senior Member), Brigadier I.R.W. Brumfield (Member) and Dr J.B. Morley (Member) BETWEEN: REPATRIATION COMMISSION (Applicant) AND: JOHN HENRY CLARK (Respondent) JUDGE MAKING ORDER:Ryan J DATE: 26 April 1996 PLACE: Brisbane MINUTES OF ORDER

THE COURT ORDERS: 1. That the application 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) ) QUEENSLAND DISTRICT REGISTRY )No QG 183 of 1994 ) GENERAL DIVISION ) On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe (Senior Member), Brigadier I.R.W. Brumfield (Member) and Dr J.B. Morley (Member)

BETWEEN: REPATRIATION COMMISSION (Applicant) AND: JOHN HENRY CLARK (Respondent) CORAM: Ryan J DATE: 26 April 1996 PLACE: Brisbane

REASONS FOR JUDGMENT

RYAN J: This is an application by way of an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the "Tribunal") given on 9 November 1994, whereby the Tribunal set aside a decision of the Veterans' Review Board and substituted a decision accepting chronic anxiety state as a war-caused disability pursuant to s. 9 of the Veterans' Entitlement Act 1986 ("the Act") and providing by paragraph (c) for the payment of disability pension at 80 per cent of the general rate on and from 5 November 1989 and at the intermediate rate on and from 1 July 1991.

By its notice of appeal to this Court, the applicant (the "Commission") seeks an order setting aside paragraph (c) of the Tribunal's decision and substituting a decision that the respondent's entitlement to disability pension be assessed at 80 per cent of the general rate of disability pension on and from 5 November 1989. The question in dispute is whether the respondent was entitled to a disability pension at the intermediate rate pursuant to s. 23 of the Veterans' Entitlement Act 1986 ("the Act"). Background The respondent, Mr Clark, was born 4 May 1925 and served in the Australian Army from 24 May 1943 to 30 October 1946. He served overseas and in Australia. For the purposes of the Act he is to be taken as having rendered operational service during that period. Furthermore, it is common ground that the respondent suffers from chronic anxiety state which, in accordance with s. 9 of the Act is to be taken to be a war-caused disease. The respondent had a varied occupational history after his war service including periods as a shop assistant, spare parts sales assistant, proprietor of a service station, salesman at a builders' hardware store and hardware sales assistant. His last employer was Lanhams Timber & Hardware ("Lanhams") where he worked as a sales assistant from 1986 to June 1991. The respondent was 66 years of age when he ceased employment. On 2 February 1990 the respondent wrote to the Commissioner requesting to have the condition of chronic anxiety state recognised as a war caused disability. He was asked to complete a formal pension claim which was subsequently lodged on 15 March 1990. At that date the respondent was still employed, retiring as already noted, in June 1991. In the section headed "Lifestyle Report" of the respondent's application to the Commonwealth Department of Veteran Affairs ("the Department"), dated 30 January 1990, the respondent gave his occupation as sales assistant and claimed that he had changed jobs in the last five years because of stress related conditions. In answer to various questions the respondent replied that as a result of the stress-related conditions he was unable to perform tasks requiring undue exertion and accordingly had changed employers. He had lost short periods from work due to bouts of nausea. In his opinion his disability affected his future career "because I just haven't got the energy". In a statement dated 21 February 1994 in relation to his appeal to the Tribunal, the respondent said: 3. I retired in June, 1991 at the age of 66 because I felt that I could not carry on any further. I was becoming stressed at what I had to cope with and suffering extreme fatigue. I found it most difficult to co-operate not only with people at work but also in my home life. I was in the retail business and I found that I was losing patience with customers, and unreasonably so.