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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Extreme Disablement Adjustment - lifestyle rating insufficient
Morris v Repatriation Commission
Spender J
2 March 1999
[Full Text]
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Mr Morris lodged an appeal to the Federal Court against a decision of the Tribunal on remittal, affirming a decision concerning his degree of incapacity which was assessed at 100% of the General rate. A previous interim decision of the Tribunal, which continued pension at 100% and stood the matter down for 12 months, had been set aside by the Court. (See 13 VeRBosity 116)
Spender J said that in this appeal to the Court, Mr Morris had failed to identify any legal errors in the most recent decision of the Tribunal. In his submissions to the Court, Mr Morris made several submissions alleging that errors had been made in his diagnosis and treatment. He also referred to the conditions of his service on board HMAS Sydney, which he said included sleeping on the mess deck in the company of rats, and subject to variations in temperature.
When the matter was before Deputy President Forgie at the Tribunal, submissions were made on Mr Morris's behalf concerning the possible application of s 31(4) of the Veterans' Entitlements Act 1986 to events which occurred in 1984 to 1987. It was contended that a statement by a medical officer that Mr Morris did not suffer from emphysema was to be contrasted with a statement by Dr Francis in the course of the Tribunal's earlier deliberations in 1987, that it was clear that Mr Morris suffered from emphysema and from partial or complete bundle branch block. Spender J said that the assessment by the Tribunal in 1987 had fairly canvassed the question of his entitlement which he now claimed he should have been awarded at that time. No error of law had been shown in the approach taken by Deputy President Forgie to the possible application of s 31(4) to decisions made in 1987.
Spender J concluded that no legal error had been made by the Tribunal. He said:
"It seems to me that Mr Morris fails to appreciate the requirements of provisions of ss 23 and 24 of the Veterans' Entitlements Act. The decision of the Administrative Appeals Tribunal in 1987 did not appear to Deputy President Forgie to be erroneous, and no error has been shown in the making of that conclusion. Indeed, a close reading of the reasons for the decision of the Administrative Appeals Tribunal and a knowledge of the members of that Tribunal would satisfy me, if it were necessary so to do, that Mr Morris received the benefit of a very careful and experienced adjudication of his claim in 1987 by members of the Tribunal who were both experienced and extremely sensitive to the genuine claims of veterans and to their entitlements under the Repatriation legislation.
When the matter was before Deputy President Forgie, the question was 'is there some way in which the decision made in 1996 by the delegate of the Repatriation Commission, that there was an insufficient average lifestyle rating to require or permit the payment of the Extreme Disability Adjustment was incorrect?'. Quite simply, the material before Deputy President Forgie did not entitle the Tribunal to be satisfied that Mr Morris should be granted the Extreme Disablement Adjustment."
Formal decision
The Court dismissed Mr Morris's appeal.