Morris v Repatriation Commission [1999] FCA 186

FEDERAL COURT OF AUSTRALIA

Morris v Repatriation Commission [1999] FCA 186

WILLIAM HAROLD MORRIS V REPATRIATION COMMISSION QG 45 OF 1998 SPENDER J 2 MARCH 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 45 OF 1998

ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: WILLIAM HAROLD MORRIS

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: SPENDER J

DATE OF ORDER: 2 MARCH 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: The application is dismissed with costs, to be taxed if not agreed. 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 QG 45 OF 1998

ON APPEAL FROM A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: WILLIAM HAROLD MORRIS

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: SPENDER J

DATE: 2 MARCH 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 from a decision given by Deputy President Forgie in Brisbane on 7 May 1998. That decision was as follows: "UPON APPLICATION of the applicant lodged on 26 July,1996 for review of a decision of the respondent dated 12 January 1996 and affirmed by the Veterans' Review Board in a decision dated 20 June, 1996 AND UPON the Tribunal's having made a decision on 5 February, 1997 AND UPON the Federal Court of Australia's on 18 November, 1997 having on appeal by the present respondent set aside that decision and remitted the matter to the tribunal for reconsideration AND UPON hearing Mr Morris and Mr O'Connor on the applicant's behalf and Mr Derrington of counsel on behalf of the respondent THE TRIBUNAL DECIDES that the determination of the delegate of the respondent dated 12 January, 1996 as affirmed by the Veteran's (sic) Review Board on 20 June, 1996 be affirmed. 2 The amended notice of appeal filed on 24 August 1998 refers to a number of matters, but nowhere does there seem to be any identification of an error of law in Deputy President Forgie's decision. 3 In his submissions to the Federal Court, Mr Morris makes a number of factual submissions, alleging that in a number of respects errors have been made in his diagnosis and indeed in his treatment. In particular, there is a complaint concerning a Dr Grant, and a complaint that a doctor, described by Mr Morris as "the Indian doctor" in Perth mis-diagnosed Mr Morris. And there is also in the notice of appeal reference to evidence of the physical condition of Mr Morris's service on the HMAS Sydney, which included, amongst other things, sleeping on the mess deck in the company of rats, and also the variations in temperature in the conditions in which Mr Morris worked on the HMAS Sydney. 4 In the decision which was the decision affirmed by the Administrative Appeals Tribunal and which is the subject of this appeal, the delegate of the respondent referred to the application for increased disability pension made by Mr Morris on 12 December 1995. 5 Mr Morris had in August 1982 been granted a disability pension at the 20 per cent rate. In December 1984 the then Repatriation Board determined that Mr Morris's disability pension be assessed at 50% of the General Rate of pension payable under the Repatriation Act 1920. In September 1986, his disability pension was increased to 100%. In April 1987 the Administrative Appeals Tribunal rejected the claim by Mr Morris for a TPI pension. The Tribunal in 1987 was constituted by the Honourable J.B.K. Williams CBE, Brigadier I.R.W. Brumfield and Dr J. Francis. It decided that "Mr Morris did not qualify for either the Immediate Rate of pension provided for by s 23 of the Veterans' Entitlements Act 1986 or the Special Rate of pension provided for by s 24 of that Act". It gave oral reasons for its decision in that regard, and furnished written reasons dated 22 April 1987. 6 In the course of the hearing leading to that decision, it is clear that the Administrative Appeals Tribunal accepted that Mr Morris had emphysema, and had a partial or complete bundle branch block. Dr Francis, one of the members, and the medically qualified member of the Tribunal, in the course of the submissions made by Mr Morris to the Administrative Appeals Tribunal in 1987 said: "Now, I firmly believe you have emphysema. I firmly believe you have partial or complete - two different versions - bundle branch block. It, in itself, is not an enormous capacity." And he continues: "I am not talking about war service. You can be 100 per cent for your emphysema. You could be 100 per cent for your cardiac problems, and you could be 100 per cent for your asthma, but that does not make you 300 per cent, because, once you get to 100 per cent, you cannot get any higher." 7 In relation to the decision which is the subject of Deputy President Forgie's decision and the basis for the appeal to this court, Mr Gould, the delegate of the Repatriation Commission, refused the application for increase in disability pension and decided that the pension is to be continued at 100 per cent of the general rate. 8 He said in the course of his written reasons, dated 12 January 1996: "When pension is assessed at 100% of the General Rate [as is the case with Mr Morris], or on application, I must decide whether or not the Intermediate Rate, the Special Rate or Extreme Disablement Adjustment is payable…..I have decided that none of these rates are payable. My reasons follow:" And then he said: "You are currently in receipt of pension at 100 percent of the General Rate for your war-caused incapacity. This is the maximum pension payable as compensation for suffering and diminished quality of life.