Agius and Repatriation Commission (Veterans' entitlements) - [2017] AATA 41

Agius and Repatriation Commission (Veterans' entitlements) [2017] AATA 41 (19 January 2017)

Division

Veterans' Appeals Division

File Number

2015/3004

Re

Norman Agius

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 19 January 2017

Place Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – disability pension – claim for special rate – disabling condition PTSD – ceased work of financial advising at age 54 – farming pursuits – considerable income from investments and company directorships – whether prevented from continuing to undertake remunerative work – non war-caused preventative factors of sleep apnoea and nocturia - alone test not satisfied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 42C
Veterans’ Entitlement Act 1986 ss 19, 24, 119
Cases
Chambers v Repatriation Commission (1995) 55 FCR 9
Fahey v Repatriation Commission (1986) 10 ALD 338
Counsel v Repatriation Commission (2002) 122 FCR 476
Flentjar v Repatriation Commission (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625
Hill v Repatriation Commission [2000] FCA 929
Summers v Repatriation Commission (2015) 230 FCR 179
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Watkins (2015) 228 FCR 573
Re Reddin and Repatriation Commission [2015] AATA 273
REASONS FOR DECISION
Miss E A Shanahan, Member
19 January 2017

Mr Agius lodged a claim for an increase in his Department of Veterans’ Affairs (DVA) disability pension on 25 August 2011. He had claimed multiple medical conditions contributing to his disability previously estimated at 30 per cent. The claim of 25 August 2011 was for the condition of Post-Traumatic Stress Disorder (PTSD), gastro‑oesophageal reflux disease (GORD), sensorineural hearing loss, and later in an application for an increase in pension receipted 23 March 2012, Diabetes Mellitus. These claims had been denied by a delegate of the Repatriation Commission and subsequently by the Veterans’ Review Board (VRB).
On appeal to the Tribunal a Consent Agreement was reached on 18 August 2014, accepting all of the conditions with the date of effect being 25 May 2011 and that of the diabetes 23 December 2011. The claim for payment at Special Rate was denied.
Mr Agius appealed this aspect of the decision to the Tribunal, the VRB having affirmed the decision that Mr Agius’ Veterans’ Disability Pension be continued at the 100 per cent of the general rate as he did not satisfy s 24(1)(c) of the Act on the basis that he had not met the requirements of the alone test, having been out of the workforce for approximately 15 years and at the time of the hearing was 66 years of age.
Mr Agius lodged his application with the Tribunal for review of the VRB decision on 19 June 2015. The application was initially heard by a differently constituted Tribunal Member commencing on 7 April 2016. At this hearing set down for several days, Mr Agius gave evidence. At the recommencement of the hearing on 8 April 2016, counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 41
Decision Date: 19 January 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Agius for a veteran's entitlement, heard by Miss E A Shanahan, Member, of the Administrative Appeals Tribunal. The dispute centred on whether Mr Agius's claimed conditions, including difficulties with concentration and general ability to undertake his work, were war-caused or service-related. The Tribunal was asked to consider evidence from Mr Agius, his wife Carmen Agius, and his son Oliver Agius, and to rely on a previous transcript of Mr Agius's evidence.

The primary legal issue before the Tribunal was to determine if Mr Agius's claimed conditions, particularly those impacting his cognitive function and anxiety levels, were attributable to his service in Vietnam between June 1967 and July 1968, or to other factors. This involved assessing the timing of the onset of his symptoms, their nature, and their potential connection to his military service, as opposed to his highly successful career as a financial advisor and subsequent personal circumstances.

The Tribunal considered evidence that Mr Agius began experiencing difficulties with concentration and understanding new rules in the late 1990s, coinciding with changes in financial advisory regulations. His wife noted a deterioration in his anxiety and increased agitation in the late 1990s, leading to a diagnosis of PTSD in 2011. The Tribunal also noted Mr Agius's demanding work schedule prior to the late 1990s and his subsequent withdrawal from direct financial advising due to his perceived inability to cope. The Tribunal's reasoning would have involved weighing the evidence of symptom onset against the established medical diagnosis and the nature of his military service.

Orders

Orders of the court

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Background

Background to the litigation

Mr Agius requested that he not be required to give evidence again and as the respondent did not object the Tribunal agreed to rely on the content of the Transcript of 7 and 8 April 2016. Mrs Carmen Agius, wife of the applicant, and Mr Oliver Agius, son of the applicant, gave evidence before the Tribunal.BACKGROUND TO THE APPLICATION Mr Agius migrated to Australia from Malta in March 1965 at the age of 17. He enlisted in the Australian Army in June 1965 for a period of three years. He served in Vietnam between June 1967 and July 1968 being placed in a Recovery Unit involved in the recovery of damaged vehicles. He was based at Nui Dat and Vung Tau (Transcript page 19) and frequently had to travel to recover such vehicles. Following his discharge from the Australian Army Mr Agius worked as a draftsman from 1968 until 1976 when he became a financial advisor and agent for the Australian Mutual Providence Society (AMP), his financial advisory company being established with the assistance of an interest free $750,000.00 loan from AMP. Mr Agius was very successful in his role as a financial advisor and in the early years worked extremely long hours with little assistance other than for a part time secretary. It was not uncommon for him to work to 1.00am or 2.00am. Prior to establishing his financial advisory company, he had contemplated returning to Malta, his country of birth. When making enquiries to do so he met his wife who worked at the relevant consulate office. She too was of Maltese origin. They married in 1972 and have two children, Oliver and Daniel, both of whom have acquired tertiary qualifications in the area of finance. The sons took over their father’s business, known as Grand Masters Financial Services (Grand Masters), in late 2001 and continued in this role until the business was sold in July 2015. The business had declined in terms of client numbers and earnings. The financial advisory service was sold by AMP who recovered their loan of $750,000.00 leaving a residual payment, presumably representing good will, of the order of $400,000.00. In his evidence earlier in the year Mr Agius had advised that from the time he established his financial advisory service in 1976 he rapidly increased his earnings to a level of between $440,000.00 and $600,000.00 nett or more per annum. He had invested widely and established multiple companies involved in different investment pursuits including building small to medium shopping centres. In the course of his business Mr Agius received multiple prizes and awards for his annual performance as a financial advisor, the last such award being in 1998. Mr Agius gave evidence that he first noted difficulties with his concentration and general ability to undertake his work in financial advising in the late 1990s when there was a change in the standard requirements and rules relating to financial advisors. He apparently had difficulty in understanding the rules and when submitted to routine examinations performed by AMP in the late 1990’s he noted he could not complete the examinations on time nor could he achieve the pass rate. When his son Oliver joined the company Mr Agius progressively passed the advisory services to his son while he concentrated on running the business.

Evidence

Evidence Before The Court

The Tribunal was provided with that part of the Transcript of the VRB hearing of 26 May 2015 recording Mr Agius’s oral evidence (Exhibit R4). In relation to his continuing activity as a Director of Grand Masters, Mr Agius stated he had to continue in that role because the agency with AMP was in my name. But they’re closing that down too anyway, because they can’t handle it. The “they” referred to his sons. Mr Agius described his return to work at Grand Masters in 2009/2010 as I didn’t talk about financial plans. It was too dangerous for me to be advising them. Besides, I wasn’t qualified anymore because I wasn’t doing the exams. So I used to be talking about some good times in the past – it’s more PR was - you know - kind of thing. He also said that he had ceased work when he sons and employees insisted he leave or they would.EVIDENCE BEFORE THE TRIBUNALMrs Carmen Agius Mrs Agius provided a statement dated 9 June 2015 (Exhibit A2). In her evidence before the Tribunal she confirmed that her husband had worked long hours from the time of their marriage until the late 1990s, frequently not returning home until between 11.00pm and 2.00am on most nights. He had little time for his family or friends. She had always regarded him as being anxious and easily agitated. Mr Agius had never discussed his Vietnam service experiences with her. Mrs Agius noted a deterioration in his level of anxiety and increased agitation in the late 1990s when he also became very short tempered and forgetful. Mr Agius had been reluctant to seek medical help. When they were invited to a VVCS five day gathering she arranged their attendance and in the course of discussions realised that he might be suffering from PTSD. Following attendance at this seminar/conference in November 2010 she requested her husband be referred to a psychiatrist. Mr Agius was seen by Dr Heffernan in January 2011 and according to Mrs Agius he made a diagnosis of PTSD. Mr Agius is said to have ceased work in 2001 as he was not coping. His sons were working in the business and both were qualified, in terms of university degrees in finance and/or planning. Mr and Mrs Agius had bought what she described as a hobby farm consisting of 150 acres in Boneo, overlooking Westernport Bay and Bass Strait. She stated that her boys, Oliver and Daniel, had insisted that their father leave the financial advisory company although he remained the principal. Mrs Agius described her husband’s activities as riding around the farm on a motorbike, checking water troughs, feeding the now 40 head of cattle (previously 90 head) and as necessary, driving a tractor and mowing the grass. She watches him from the verandah of the house using binoculars. If she cannot see him or his return is delayed, she will ring him on his mobile phone. If he does not answer she then drives around the farm until she finds him. Mrs Agius agreed that her husband got up six to eight times in the night in order to pass urine and that he suffered from sleep apnoea. When she notices an apnoeic period she slaps him to wake him up. She said that he was tired during the day.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	Veterans' Appeals Division
File Number	2015/3004
Re	Norman Agius
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	19 January 2017
Place	Melbourne