Repatriation Commission v Smith, M.J. [1987] FCA 432

Repatriation Commission v Smith, M.J. [1987] FCA 432

The Tribunal applied an incorrect standard of proof by relying on 'real possibilities' rather than the civil standard of reasonable satisfaction required by s.120(4) of the Veterans' Entitlements Act 1986. Further, eligibility for a special rate pension under s.24(1)(c) is to be determined as at three months prior to the application (per s.20(1)), not as at retirement, and ongoing entitlement requires proof of continuing economic loss. The Tribunal's reliance on general 'notorious' facts about the trade, without proper application of the correct standard to the evidence regarding this specific veteran, was an error of law. As such, the Tribunal's decision was set aside and the matter...

Parties
Applicant: Repatriation Commission; Respondent: Maxwell J. Smith
Jurisdiction
Australia
Judgment Date
19 August 1987
Procedural Posture
Appeal / Judgment on Appeal From Administrative Appeals Tribunal (veterans' Appeals Division)
Outcome
Appeal allowed with costs; Tribunal's decision set aside; matter remitted.
Legal Topics
Disability Pension, Special Rate Pension, Standard of Proof, Judicial Notice, Economic Loss, Veterans' Entitlements
Veterans' Affairs Administrative Law Disability Pension Special Rate Pension Standard of Proof Judicial Notice Economic Loss Veterans' Entitlements

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Parties

Repatriation Commission

Applicant

Maxwell J. Smith

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Administrative Appeals Tribunal (veterans' Appeals Division)

Legal Issues

  1. 1 Whether eligibility for special rate pension under s.24(1)(c) of the Veterans' Entitlements Act 1986 is assessed as at the date of application or date of retirement
  2. 2 Whether eligibility requires existence of continuing economic loss
  3. 3 Whether the correct standard of proof was applied under s.120(4) of the Act (reasonable satisfaction)

Ratio Decidendi

The Tribunal applied an incorrect standard of proof by relying on 'real possibilities' rather than the civil standard of reasonable satisfaction required by s.120(4) of the Veterans' Entitlements Act 1986. Further, eligibility for a special rate pension under s.24(1)(c) is to be determined as at three months prior to the application (per s.20(1)), not as at retirement, and ongoing entitlement requires proof of continuing economic loss. The Tribunal's reliance on general 'notorious' facts about the trade, without proper application of the correct standard to the evidence regarding this specific veteran, was an error of law. As such, the Tribunal's decision was set aside and the matter...

Court Disposition

Appeal allowed with costs; Tribunal's decision set aside; matter remitted.

Orders

  • The appeal be allowed with costs.
  • The Tribunal's decision be set aside and the matter remitted to the Tribunal to be heard and decided again with the hearing of further evidence.