Thomson v Repatriation Commission [2000] FCA 204

FEDERAL COURT OF AUSTRALIA

Thomson v Repatriation Commission [2000] FCA 204

VETERANS' AFFAIRS –pension at the special rate for a veteran over the age of 65 years – whether s 24(2A)(g)(ii) requires continuity of work undertaken over 10 years or continuity of the capacity in which the work was undertaken over that period.

Veterans' Entitlements Act 1986 (Cth) s 24(2A)(g)

Grant v Repatriation Commission [1999] FCA 1629 - applied

WILLIAM McLAREN THOMSON v REPATRIATION COMMISSION

T29 of 1999

RYAN, NORTH and MERKEL JJ MELBOURNE (Heard in HOBART) 7 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T29 OF 1999

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WILLIAM McLAREN THOMSON

APPELLANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGES: RYAN, NORTH and MERKEL JJ

DATE OF ORDER: 7 MARCH 2000

WHERE MADE: MELBOURNE (Heard in HOBART)

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the primary Judge made on 29 October 1999 be set aside. 3. The matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law. 4. The respondent pay the appellant's taxed costs of the application and of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T29 OF 1999

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WILLIAM McLAREN THOMSON

APPELLANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGES: RYAN, NORTH and MERKEL JJ

DATE: 7 MARCH 2000

PLACE: MELBOURNE (Heard in HOBART)

REASONS FOR JUDGMENT

THE COURT

Introduction 1 The appellant has appealed from the judgment given and the orders made by the learned primary Judge on 29 October 1999, affirming the decision of the Administrative Appeals Tribunal ("the Tribunal") which refused the appellant's claim for a special rate of pension. The effect of both decisions was to deny Dr Thomson, the appellant, the special rate of pension payable to a veteran who is over the age of 65 and who satisfies the requirements of ss 24 and 24(2A) of the Veterans Entitlements Act 1986 (Cth) ("the Act"). For present purposes the relevant criteria which were required to be satisfied by Dr Thomson are set out in s 24(2A): "(2A) This section applies to a veteran if: (a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (b) the veteran had turned 65 before the claim or application was made; and (c) paragraphs (1)(a) and (1)(b) apply to the veteran; and (d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and (g) when the veteran stopped undertaking his or her last paid work, the veteran: (i) if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or (ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling; for a continuous period of at least 10 years that began before the veteran turned 65; and (h) section 25 does not apply to the veteran." 2 It is common ground that Dr Thomson satisfied all the applicable requirements other than s 24(2A)(g).