Clearihan v Repatriation Commission [2020] FCA 1130

FEDERAL COURT OF AUSTRALIA

Clearihan v Repatriation Commission [2020] FCA 1130 Appeal from: Appeal on a question of law from a decision of the Administrative Appeals Tribunal delivered on 18 June 2019 in File Number 2016/6423

File number: VID 762 of 2019

Judgment of: MOSHINSKY J

Date of judgment: 7 August 2020

Catchwords: VETERANS' ENTITLEMENTS – special rate of pension – where Tribunal found that the applicant did not satisfy the requirement in s 24(1)(b) of the Veterans' Entitlements Act 1986 (Cth) that the veteran be "totally and permanently incapacitated", that is to say, that "the veteran's incapacity from … war-caused disease … is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week" – where the Tribunal found that the applicant did not satisfy the requirement in s 24(2A)(d) that "the veteran is, because of incapacity from … war-caused disease …, 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" – where the Tribunal found that the applicant did not satisfy the requirement in s 24(2A)(e) by reason of s 24(2B)(a) – whether the Tribunal erred in law in making these findings

Legislation: Veterans' Entitlements Act 1986 (Cth), ss 5Q, 14, 15, 24, 28

Cases cited: Chambers v Repatriation Commission (1995) 55 FCR 9 Repatriation Commission v Alexander (2003) 75 ALD 329 Repatriation Commission v Richmond (2014) 226 FCR 21 Repatriation Commission v Watkins (2015) 228 FCR 573 Richmond v Repatriation Commission (2014) 140 ALD 380 Richter v Driscoll (2016) 51 VR 95 Summers v Repatriation Commission (2015) 230 FCR 179