Bucknall and Repatriation Commission - [2008] AATA 39

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 39
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/1015

GENERAL ADMINISTRATIVE DIVISION )

Re TERRENCE REX BUCKNALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Ms L R Tovey, Member

Dr D Weerasooriya, Member

Date 14 January 2008
PlacePerth

Decision The Tribunal sets aside the decision of the Veterans' Review Board made on 27 February 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 30 December 2005.

…....[Sgd Ms L R Tovey]......
Member

CATCHWORDS
VETERANS ENTITLEMENTS – whether Applicant qualifies for special rate of pension
Veterans' Entitlements Act 1986 (Cth), ss 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, 120(4).
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission (Unreported Federal Court 18 December 1996)
Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission (2005) ALD 347
Re Hearne and Repatriation Commission [2006] AATA 117
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION

14 January 2008 Ms LR Tovey, Member

Dr D Weerasooriya

1.      This is an application by Mr Terrence Rex Bucknall ("the Applicant") for review of a decision of the Veterans' Review Board ("the Board") made on 27 February 2007. The Board decided to affirm a decision of the Repatriation Commission ("the Commission") dated 18 July 2006, that the Applicant was not entitled to pension at a special rate.
FACTS
2.      The principal facts relevant to our determination are not in dispute. We find the following facts from the evidence of the Applicant, who we found to be a credible witness, the Section 37 Statement and Documents produced by the Commission and the documents annexed to the Applicant's List of Additional Evidence.
3.      The Applicant was born in July 1941, and is currently 66 years of age. He left school at 14 years of age, and had no school, TAFE or University qualifications. After leaving school, the Applicant undertook various kinds of employment which included work as a telegram boy, office clerk, bootmaker, farm and station hand, truck driver, factory hand and diamond driller.
4.      The Applicant joined the Royal Australian Army in 1963, and remained with the Army until his discharge in 1975. He served in the Royal Australian Artillery from January 1963 to May 1975, and served in Vietnam from May 1969 to May 1970.
5.      After leaving the Army in 1975, the Applicant was employed as an insurance salesperson and clerk at the WA Government Stores Department. He was self-employed as the manager and licensee of various licensed hotels between 1977 and 1983.
6.      Between 1983 and 1992 the Applicant worked as the Secretary and Manager of the Fremantle RSL Club. His duties at the RSL Club involved bookwork, bar…

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 Bucknall and Repatriation Commission

Details

AGLC: Bucknall and Repatriation Commission [2008] AATA 39
Case: [2008] AATA 39
Decision Date: 14 January 2008

CaseChat Overview and Summary

The matter before the court involved the Applicant, Mr. Bucknall, seeking to establish his eligibility for a special rate of pension under the Veterans' Entitlements Act 1986. The Respondent, Repatriation Commission, had previously denied Mr. Bucknall's entitlement to the pension. The dispute was heard in the Administrative Appeals Tribunal of Australia. The central legal issues revolved around the interpretation of certain sections of the Veterans' Entitlements Act, specifically sections 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, and 120(4), and the extent to which Mr. Bucknall's service and medical history qualified him for the special rate of pension.

The Tribunal examined previous cases such as Banovich v Repatriation Commission, Doig v Repatriation Commission, Flentjar v Repatriation Commission, Forbes v Repatriation Commission, Giesen v Repatriation Commission, Re Hearne and Repatriation Commission, Leane v Repatriation Commission, Repatriation Commission v Hendy, and Starcevich v Repatriation Commission to interpret the statutory provisions correctly. The Tribunal considered Mr. Bucknall's military service and health conditions, assessing whether they met the criteria for the special rate of pension as per the legislation and judicial precedents. Ultimately, the Tribunal found that Mr. Bucknall's service and health conditions did indeed meet the statutory criteria, leading to the conclusion that he was entitled to the special rate of pension.

The Tribunal ordered that the decision of the Veterans' Review Board made on 27 February 2007 and the decision of the Repatriation Commission dated 18 July 2006 be set aside. In their place, the Tribunal substituted a decision that Mr. Bucknall is entitled to a special rate of pension with effect from 30 December 2005.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans' Review Board made on 27 February 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 30 December 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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GENERAL ADMINISTRATIVE DIVISION		)
Re		TERRENCE REX BUCKNALL