Anderson v Repatriation Commission - [2004] FCA 1009

FEDERAL COURT OF AUSTRALIA
Anderson v Repatriation Commission [2004] FCA 1009
VETERANS’ ENTITLEMENTS – pension – death of veteran – whether executor and trustee of veteran’s will is the ‘legal personal representative’ for the purposes of continuing the proceeding – entitlement to special rate – veteran worked as a farmer on large property before moving to a small ‘hobby farm’ – whether veteran eased out of farming for war-caused injuries alone – application of ‘alone’ test – relevance of reduction of assets to maintain entitlement to pension at a particular rate, retirement age, increasing dementia, disability caused by leg amputation and lack of income – whether veteran engaged in ‘remunerative work’ – whether Tribunal misapplied definition of ‘remunerative work’
WORDS & PHRASES – ‘remunerative work’
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 6, 24, 28, 119, 120, 126
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 44(1)
Repatriation Commission v Strickland (1990) 12 AAR 343 referred to
Cavell v Repatriation Commission (1988) 9 AAR 534 referred to
Repatriation Commission v Smith (1987) 15 FCR 327 referred to
Counsel v Repatriation Commission [2002] FCAFC 201 (2002) 122 FCR 476 referred to
Hill v Repatriation Commission [2000] FCA 929 referred to
ALISON ANDERSON v REPATRIATION COMMISSION
V 376 of 2003
GRAY J
6 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 376 of 2003

BETWEEN:

ALISON ANDERSON
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

6 AUGUST 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The applicant pay the respondent’s costs of the proceeding.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 376 of 2003

BETWEEN:

ALISON ANDERSON
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE:

6 AUGUST 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
The nature of the proceeding

The questions raised by this appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) relate to the application by the Tribunal to the case of Gilbert Anderson, now deceased, of s 24 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). Section 24 contains the criteria by which a claim by a veteran for a pension increase to what is called the ‘special rate’ is to be determined. In applying s 24(2A)(d), the Tribunal found that Mr Anderson was not prevented by incapacity from war-caused injury or war-caused disease or both, alone, from continuing to undertake the remunerative work that he was last undertaking before he made the claim for pension at the special rate. Although it also raises other issues, this appeal is concerned principally with the application by the Tribunal of the ‘alone’ test.
Change of applicant
At the time of his application to the Tribunal, and at the time of instituting this proceeding, Mr Anderson was alive, but suffering from severe dementia. The application to the Tribunal was commenced in the name of…

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.

Continue reading Anderson v Repatriation Commission

Details

AGLC: Anderson v Repatriation Commission [2004] FCA 1009
Case: [2004] FCA 1009
Decision Date: 6 AUGUST 2004

CaseChat Overview and Summary

In the matter of Anderson v Repatriation Commission, the appellant, Ms Anderson, sought to challenge a decision made by the Tribunal in relation to her husband’s service pension. The Tribunal had found that Mr Anderson’s last remunerative work was the operation of his farm at Camperdown and that he was not prevented by incapacity from war-caused injury or disease, or both, alone, from continuing to undertake that remunerative work. Ms Anderson argued that the Tribunal had failed to apply any correct principle and had not characterised the remunerative activity undertaken by Mr Anderson correctly.

The central issue for the court was whether the Tribunal had correctly determined that the last remunerative work undertaken by Mr Anderson was the operation of his farm at Camperdown and that he was not prevented by incapacity from war-caused injury or disease, or both, alone, from continuing to undertake that remunerative work. The court also needed to consider whether the Tribunal had failed to apply any correct principle and whether it had correctly characterised the remunerative activity undertaken by Mr Anderson.

The court found that the Tribunal had performed its task correctly. It had correctly determined that the last remunerative work undertaken by Mr Anderson was the operation of his farm at Camperdown and that he was not prevented by incapacity from war-caused injury or disease, or both, alone, from continuing to undertake that remunerative work. The court found that the reasons why Mr Anderson ceased to undertake his last paid work were determinative of the application of the ‘alone’ test. The court also found that the Tribunal had not failed to apply any correct principle or to characterise the remunerative activity undertaken by Mr Anderson correctly.

The appeal was dismissed, and the applicant was ordered to pay the respondent’s costs of the proceeding. The court found that no reason was advanced, and none appeared, as to why the usual rule that costs follow the event should not be followed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Background

Background to the litigation

Section 120(4) of the VE Act requires the Commission, in making a determination or decision of this kind, to decide the matter to its reasonable satisfaction. Section 120(6) makes it clear that there is no onus on a claimant or applicant for a pension or increased pension of proving any matter that is, or might be, relevant to the determination of the claim or application. Pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), the Tribunal may exercise all of the powers and discretions of the original decision-maker; in effect, the Tribunal stands in the place of the original decision-maker in the exercise of the required functions. The legislative provisions as to how the Commission is to determine a claim or application also bind the Tribunal, when it is reviewing a decision of the Veterans’ Review Board (‘the VRB’), in relation to such a claim or application. The facts Mr Anderson was born on 23 March 1914. He served in the army from 1 July 1940 to 8 November 1945. There is no dispute that his service was ‘operational service’ as defined in s 6 of the VE Act. After his discharge, Mr Anderson acquired a farm property at Derrinallum, which he began farming in 1947. In 1961, he suffered a traumatic amputation of the right leg below the knee, as a result of a farming accident. In 1975, he sold the property at Derrinallum and moved to a 162-acre property at Camperdown, on which he ran a small Hereford cattle stud. On 4 April 1976, Mr Anderson began to investigate the possibility of obtaining a pension, consequent upon his military service. He was then 62 years old. He wrote to the Commission:‘I feel that my age and my disability exclude me from so many jobs that I reluctantly feel I should investigate the possibility of a service pension.’ On 4 May 1976, Mr Anderson applied for a service pension on the grounds of his ‘age’ and ‘permanent unemployability’. The ‘permanent unemployability’ he described was ‘right leg amputated below knee’. He was granted a pension in 1977. In 1983, Mr Anderson married Alison Anderson, his first wife having died some time before. In July 1986, Mr Anderson suffered a reduction of his service pension, as his assets were assessed as being in excess of the basic limit in a means test. He was advised of the reduction in a letter dated 30 July 1986. On 13 November 1986, Ms Anderson wrote to the Commission, referring to the letter of 30 July 1986. She said that, in response to that letter, and the decision of the Department of Veterans’ Affairs (‘the Department’) to revalue the assets, ‘we have been compelled to sell the property...at Camperdown.’ The sale had in fact been completed on 20 October 1986. The couple then acquired a property at Scotts Creek of 14 acres, of which only seven were cleared. In a letter to the Commission, dated 5 October 1987, Mr Anderson wrote:‘this past year has made it most difficult to farm any longer because of my age and an artificial leg so I have disposed of the old place and stock and most of the plant. This new place consists of some buildings and the house and 14 acres of ground as well as 9 head of Hereford cattle and 5 calves’.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

The Tribunal performed its task correctly when it determined that the last remunerative work undertaken by Mr Anderson was the operation of his farm at Camperdown and that he was not prevented by incapacity from war-caused injury or disease, or both, alone, from continuing to undertake that remunerative work. It did not fail to apply any correct principle. It did not, as counsel for Ms Anderson suggested, fail to characterise the remunerative activity that Mr Anderson was last undertaking, by referring only to the capacity in which he undertook that work. Contrary to the submission on behalf of Ms Anderson, the reasons why Mr Anderson ceased to undertake his last paid work were determinative of the application of the ‘alone’ test. Conclusion For these reasons, the appeal must be dismissed. No reason was advanced, and none appears, as to why the usual rule that costs follow the event should not be followed. Ms Anderson should be ordered to pay the costs of the Commission of this proceeding.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 376 of 2003

BETWEEN:	ALISON ANDERSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	6 AUGUST 2004
WHERE MADE:	MELBOURNE

JUDGE:	GRAY J
DATE:	6 AUGUST 2004
PLACE:	MELBOURNE