Bainbridge and Repatriation Commission - [2008] AATA 167

Administrative

Appeals

Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/25

VETERANS’ APPEALS DIVISION )

Re NOEL BAINBRIDGE

Applicant

And

REPATRIATION COMMISSION

Respondent

CORRIGENDUM [2008] AATA 167

Tribunal Dr P McDermott, RFD, Senior Member
Date3 March 2008
PlaceBrisbane

I DIRECT THAT the Decision paragraph on the front page of the Tribunal’s Reasons for Decision should read:
The Tribunal sets aside the decision under review and substitutes a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the General Rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.
I DIRECT THAT paragraph 43 of the Tribunal’s Reasons for Decision should read:
I set aside the decision under review and substitute a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the General Rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.
SENIOR MEMBER

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION 2008 AATA 167
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/25

VETERANS' APPEALS DIVISION )

Re NOEL BAINBRIDGE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Date28 February 2008
PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the general rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.

..........................................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war caused injuries or diseases the cause alone, of his being unable to work – decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19, 24
REASONS FOR DECISION

28 February 2008 Dr P McDermott, RFD, Senior Member

INTRODUCTION
1.      Mr Noel Bainbridge, a veteran, has sought the review of a decision made by the Veterans’ Review Board which affirmed a decision of the Repatriation Commission (the Commission) that he was not eligible to be paid a pension at the special rate.
2.      I have to decide whether this veteran is being paid pension at the correct rate and whether he meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
3.      Mr Bainbridge, as a national serviceman, served with the Australian Army in Vietnam as a rifleman. He has operational service from 13 November 1967 to 13 June 1968. He has a number of accepted disabilities: post traumatic stress disorder (PTSD); psychoactive substance abuse or dependence; bilateral sensorineural hearing loss with tinnitus; gastro-oesophageal reflux disease;…

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 Bainbridge and Repatriation Commission

Details

AGLC: Bainbridge and Repatriation Commission [2008] AATA 167
Case: [2008] AATA 167
Decision Date: 28 February 2008

CaseChat Overview and Summary

In the case of Bainbridge v Repatriation Commission, the applicant, Mr Bainbridge, sought an increase in his disability pension following a decision by the Repatriation Commission. Mr Bainbridge argued that he was entitled to the special rate of pension due to his war-related injuries or diseases rendering him unable to work. The matter was brought before the Administrative Appeals Tribunal (AAT) for review. The Tribunal was tasked with determining whether the Repatriation Commission's decision was legally sound and whether Mr Bainbridge's war-related injuries or diseases were the sole cause of his inability to work.

The legal issues that the AAT had to address included whether Mr Bainbridge's war-caused injuries or diseases were the exclusive cause of his inability to work, and if so, whether this justified the payment of a special rate of disability pension. The AAT had to interpret and apply sections 19 and 24 of the Veterans’ Entitlements Act 1986 in determining these issues. Specifically, the AAT examined whether the Repatriation Commission had correctly assessed the evidence and applied the relevant statutory provisions in making its decision.

In its reasoning, the AAT found that the decision under review by the Repatriation Commission contained errors of law and misapplication of the statutory provisions. The Tribunal determined that Mr Bainbridge's war-caused injuries or diseases were indeed the sole cause of his inability to work, thereby qualifying him for the special rate of pension under section 24 of the Act. Consequently, the Tribunal set aside the Repatriation Commission's decision and substituted its own, awarding Mr Bainbridge the special rate of disability pension from the effective date of 25 March 2005.

The final orders of the Tribunal mandated that Mr Bainbridge be paid disability pension at 90% of the general rate from 12 January 2005 until 24 March 2005, and thereafter at the special rate from 25 March 2005. This decision ensured that Mr Bainbridge would receive the correct pension payments reflecting his eligibility under the statutory provisions.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the general rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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