Carter v Repatriation Commission [2001] FCA 992

FEDERAL COURT OF AUSTRALIA

Carter v Repatriation Commission [2001] FCA 992

Catchwords – Veterans' affairs – application for special rate of pension – meaning of "last paid work" in Veterans' Entitlements Act 1986 (Cth) par 24(2A)(d) – veteran did not qualify for special rate as at time when he stopped undertaking his last paid work he had not been working on his own account in his profession for a continuous period of at least ten years, as required by par 24(2A)(g) Veterans' Entitlements Act 1986 (Cth) ss 5Q, 24 Banovich v Repatriation Commission (1986) 69 ALR 395 considered EDWARD GORDON CARTER v REPATRIATION COMMISSION N 213 of 2001 BRANSON J SYDNEY 30 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 213 of 2001

BETWEEN: EDWARD GORDON CARTER

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 30 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Tribunal be affirmed. 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 N 213 of 2001

BETWEEN: EDWARD GORDON CARTER

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: BRANSON J

DATE: 30 JULY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an "appeal" from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("the Tribunal") dated 8 February 2001 whereby the Tribunal affirmed a decision of the respondent refusing an application for an increase in pension payable to the applicant pursuant to the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 The only issue in dispute before the Tribunal was whether Mr Carter was eligible for pension at the intermediate (s 23) or special (s 24) rate. To be eligible for pension at the intermediate or special rate Mr Carter had to satisfy the requirement, amongst others, that: "when [he] stopped undertaking his … last paid work, [he]: (i) … (ii) if he … was then working on his … own account in any profession … - had been so working in that profession …; for a continuous period of at least 10 years that began before the veteran turned 65 …". (see s 23(3A)(g) and s 24(2A)(g)). 3 The only ground of appeal pressed by the applicant ("Mr Carter") is that: "The Tribunal erred in law in its interpretation of section 24 of the Act by: (a) Finding that the 'last paid work' of the applicant within the terms of subsections 24(2A)(d) and 24(2A)(g) could be constituted by work of a de minimus nature, that is, work of less than 8 hours per week …." 4 As the above ground of appeal contains no reference to s 23 of the Act, these reasons for decision similarly make no further reference to that section. 5 For the reasons given below, I have concluded that Mr Carter's appeal must fail and the decision of the Tribunal affirmed.