Hutton, Thelma v Repatriation Commission [1998] FCA 56

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 698 of 1996

BETWEEN: THELMA HUTTON

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: DAVIES J

DATE OF ORDER: 4 FEBRUARY 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law. 2. The respondent pay the costs of the application. 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 NG 698 of 1996

BETWEEN: THELMA HUTTON

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: DAVIES J

DATE: 4 FEBRUARY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Accordingly, the appeal is limited to "a question of law". That term is accepted to encompass a breach of the fundamental principles of law which include a breach of the principles of natural justice, or procedural fairness as it is sometimes called. The issue before the Tribunal arose under s 98 of the Veterans' Entitlements Act 1986 (Cth) which provides inter alia: "98. (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 ____________________________________________________________________ ... 3. Both arms amputated........................................................................... 168.60 ... (3) For the purposes of the application of the table in subsection (1) to and in relation to a veteran, a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated." The accepted war-caused disabilities of Mr Raymond F. Hutton, the veteran on whose service and medical condition the application for an allowance was based, included asthma, anxiety state, thoracic kypho-scoliosis, lumbar spondylitis, chronic bronchitis with emphysema and atherosclerosis. The medical evidence before the Tribunal was contained in two medical reports by Dr G. Egan. The report of 9 December 1993 stated: "Mr Hutton has been a patient at our practice for 10 years his problems are:- 1. Chronic Airflow limitation. This is 2ş to smoking plus T.B. He is severely incapacitated by this. He can walk no further than 15 yards. He cannot shower or dress himself. 2. IHD - Mr Hutton suffers intractable Angina with recurrent episodes. 3. Severe Thoracic Spondylosis. This results in chronic pain. His movements are severely limited due to this pain. He cannot dress himself or mobilize. 4. Reflux Oesophagitis. In summary, Mr Hutton is severely disabled by the above problems and requires assistance from his wife for all his activities of daily living i.e. feeding, bathing and dressing."