Magill v Repatriation Commission [2002] FCA 744

FEDERAL COURT OF AUSTRALIA

Magill v Repatriation Commission [2002] FCA 744

social welfare – Veterans' affairs – disability pension – whether veteran entitled to pension at special rate – applicant suffering from post traumatic stress disorder and alcohol dependence – Tribunal accepted applicant's disabilities but considered that one of the causes for taking early retirement was unrelated to his war-caused disabilities – whether Tribunal erred by failing to properly construe the term "remunerative work that the veteran was undertaking" – whether Tribunal erred by failing to take into account relevant considerations Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Veterans' Entitlements Act 1986 (Cth) ss 24(1)(c), 24(2)(b), 24(2)(a)

Banovich v Repatriation Commission (1986) 69 ALR 395 applied Forbes v Repatriation Commission (2000) 171 ALR 131 at 133 followed Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [69] applied ROY PETER MAGILL v REPATRIATION COMMISSION Q 167 OF 2001

DRUMMOND J 12 JUNE 2002 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 167 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: ROY PETER MAGILL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 12 JUNE 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Decisions (c) and (d) of the Administrative Appeals Tribunal made herein on 2 July 2001 be set aside.

2. The case, in so far as it relates to the applicant's claim to a pension at the special rate provided for by s 24 the Veterans' Entitlements Act 1986 (Cth), be remitted to be heard and decided again, either with or without further evidence, by the Administrative Appeals Tribunal, differently constituted, in accordance with law.