Baljas v Repatriation Commission

Case [2009] FCA 171

FEDERAL COURT OF AUSTRALIA

Baljas v Repatriation Commission [2009] FCA 171

VETERANS’ AFFAIRS – pension – special rate – “alone” test – whether applicant’s war-caused incapacity alone prevented him from continuing to undertake remunerative work he had been undertaking – whether Administrative Appeals Tribunal applied wrong test – whether Tribunal misstated its task – whether Tribunal took wrong approach to determining what was remunerative work that applicant was prevented from continuing to undertake – whether Tribunal focused on wrong time – whether Tribunal failed to take into account applicant’s evidence – whether Tribunal required to apply provision applying to a veteran who “has not worked” – whether Tribunal failed to take account of beneficial nature of legislation and provisions requiring lenient approach – whether Tribunal’s reasons inadequate

Held:  Appeal dismissed

Veterans’ Entitlements Act 1986 (Cth), ss 13(1)(b), 13(1)(d), 14(1), 15(1), 19, 19(6), 22, 23, 24, 24(1)(b), 24(1)(c), 24(2), 24(2)(a), 24(2)(b), 119, 119(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2B), 44(1)

Repatriation Commission v Hendy [2002] FCAFC 424 cited
Repatriation Commission v Smith (1987) 15 FCR 327 cited
Banovich v Repatriation Commission (1986) 69 ALR 395 cited
Sheehy v Repatriation Commission (1996) 66 FCR 569 distinguished
Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 applied

ANTHONY BALJAS v REPATRIATION COMMISSION

VID 224 of 2008

GRAY J
2 MARCH 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 224 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER FICE
BETWEEN:

ANTHONY BALJAS
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

2 MARCH 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 224 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER FICE
BETWEEN:

ANTHONY BALJAS
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE:

2 MARCH 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

  1. The issues in this appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) concern the Tribunal’s application of s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). The principal concern of the applicant is whether the Tribunal applied the correct test in determining whether the applicant should be entitled to pension at the special rate, pursuant to s 24 of the VE Act, on the basis that incapacity from war-caused diseases alone prevented him from continuing to undertake remunerative work that he had been undertaking, and thereby caused him to suffer a loss of salary or wages that he would not be suffering if he were free of that incapacity. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), the appeal is limited to…

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AGLC
Baljas v Repatriation Commission [2009] FCA 171
Case
[2009] FCA 171
Decision Date

CaseChat Overview and Summary

Baljas v Repatriation Commission involved the applicant challenging the decision of the Administrative Appeals Tribunal (AAT) regarding his eligibility for a war-related pension. The applicant argued that the AAT had not provided sufficient reasons for its decision, relying on section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). This section mandates that the Tribunal include in its reasons findings on material questions of fact and reference to the evidence or other material upon which those findings were based. However, the applicant did not particularise the alleged inadequacy of the reasons provided by the Tribunal.

The legal issues before the court were whether the AAT had erred in its approach to the applicant's case and whether the reasons provided by the Tribunal were adequate. The court found that the Tribunal's reasons were sufficient, as they appropriately summarised the evidence and clearly demonstrated the reasoning process. The Tribunal made a crucial finding adverse to the applicant, concluding that factors other than the war-caused disabilities prevented the applicant from continuing his remunerative work, thus failing the "alone" test under section 24(1)(c) of the Veterans' Entitlements Act 1986 (Cth). This finding was fatal to the applicant's case, and the court held that the Tribunal had not made any error of law.

The court dismissed the applicant's appeal and ordered that the applicant pay the Commission’s costs of the appeal. Given the nature of the case, there was no reason to deviate from the usual rule that costs follow the event. Therefore, the applicant was ordered to pay the Commission’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

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

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
Relying on s 43(2B) of the AAT Act, counsel for the applicant argued that the Tribunal had failed to provide adequate reasons for its decision. Section 43(2B) requires the Tribunal to include in its reasons findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The alleged inadequacy of the reasons was never particularised. I have read the Tribunal’s reasons carefully and am unable to fault them. The evidence was summarised appropriately and the process of reasoning of the Tribunal is apparent. Based on the evidence, the Tribunal made a crucial finding adverse to the applicant, which meant that he was unable to satisfy the “alone” test in s 24(1)(c) of the VE Act. As I have said, the finding that there were factors other than the war-caused disabilities that prevented the applicant from continuing to engage in remunerative work that he had been undertaking was fatal to the applicant’s case. Again, counsel for the applicant cannot invite this Court to intervene in the fact-finding process under the guise of attacking the adequacy of the Tribunal’s reasons.Conclusion The applicant has failed to establish that the Tribunal made any error of law in its approach to the applicant’s case. The appeal must be dismissed. No reason was advanced, and none appears from the nature of the case, why the usual rule, that costs follow the event, should not be followed. Accordingly, the applicant will be ordered to pay the Commission’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.