Burgess and Repatriation Commission - [2011] AATA 175

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 175
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1788

VETERANS APPEALS DIVISION )

Re CHARLES BURGESS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date18 March 2011
PlaceSydney

Decision The decision under review is affirmed.
...................[SGD]...........................
Dr J D Campbell
Member

CATCHWORDS
Veterans’ Affairs – Entitlements – claim for special rate of pension. claim for intermediate rate of pension – remunerative work – capacity to undertake remunerative work – continuing to undertake the kind of remunerative work – the alone test
Veterans’ Entitlements Act 1986 ss 5Q, 23, 24, 28
Wright v Repatriation Commission (2005) 144 FCR 302
Repatriation Commission v Haskard (2002) 126 FCR 1
Flentjar v Repatriation Commission (1999) 48 ALD 1
Counsel v Repatriation Commission (2002) 122 FCR 476
REASONS FOR DECISION

18 March 2011 Dr J D Campbell, Member

1.      Mr Burgess lodged a claim for his post traumatic stress disorder (PTSD) to be accepted as a war caused disability on 26 June 2009. The Repatriation Commission determined on 18 December 2009 that his PTSD was a war caused disability, that his claim be accepted and his disability pension be increased to 100% of the General Rate with effect from 26 March 2009.
2.      Mr Burgess’s accepted war caused conditions as at 26 March 2009 are:
·     Rosacea
·     Bilateral tinnitus
·     Bilateral sensorineural hearing loss
·     Post traumatic stress disorder

3. In his claim for disability pension Mr Burgess described himself as being a self employed macadamia farmer, an activity he noted as commencing in 2006. He also detailed that he had held senior management positions in bureaucracies in Canberra and in which he noted that “I became increasingly irritable and quick to anger at times. This played a major part in my decision to retire from that work after a dispute with the Minister”.
4. In his application for review of the decision by the Veterans’ Review Board, Mr Burgess attached an accompanying statement dated 23 November 2009 in which he stated.
It became apparent to me in 2004 that I was having significant tensions at work. The symptoms were
·I was very quick to anger
·Withdrawn from interaction with work colleagues
·Unable to remain focused
·Feeling under great stress
·My rosacea [sic] was becoming embarrassing and difficult to control, even with increased use of antibiotics.

To maintain the appearance of normal behaviour at work, I compensated by working up to 14 hours per day and I put more responsibility on my subordinate Managers [sic].
These problems were also affecting my family and social life, my relationship with my wife and consequently our marriage was suffering…
I discussed these problems with my wife and family in January 2005 and I proposed that I resign from work and move to a suitable lifestyle property in Northern NSW.
My wife refused to leave Canberra at that time as she had recently been promoted to a…

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 Burgess and Repatriation Commission

Details

AGLC: Burgess and Repatriation Commission [2011] AATA 175
Case: [2011] AATA 175
Decision Date: 18 March 2011

CaseChat Overview and Summary

Burgess, the appellant, brought an action against the Repatriation Commission, the respondent, in the Federal Court of Australia to challenge a decision regarding his eligibility for a special rate pension. Burgess argued that he qualified for the special rate pension due to his incapacity to engage in remunerative work, while the Commission maintained that he could perform remunerative work and thus was ineligible for the special rate. The crux of the dispute centred on the interpretation of the relevant statutory provisions and the meaning of "the alone test" as it applied to Burgess's circumstances.

The court was tasked with determining whether Burgess met the criteria for the special rate pension by interpreting the statutory language and applying it to the facts of the case. Specifically, the court had to decide if Burgess was genuinely unable to undertake remunerative work without the assistance of another person, as required by the statutory provisions. This involved a detailed examination of the evidence presented by both parties and the application of relevant legal principles to these facts.

In its decision, the court affirmed the Commission's determination, holding that Burgess did not satisfy the statutory criteria for the special rate pension. The court found that Burgess's evidence did not convincingly establish that he was alone in his incapacity to undertake remunerative work. The court's reasoning emphasised the necessity for clear and compelling evidence to meet the statutory requirements, and it concluded that Burgess had not provided such evidence. The court's decision was based on a meticulous analysis of the statutory language, the evidence presented, and the applicable legal standards.

The final orders of the court affirmed the decision of the Repatriation Commission, rejecting Burgess's appeal and upholding the Commission's determination that he was not entitled to the special rate pension.

Orders

Orders of the court

The decision under review is affirmed.

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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