Butler and Repatriation Commission - [2003] AATA 789

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 789
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/243

VETERANS’ APPEALS DIVISION )

Re PETER BUTLER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member
Date12 August 2003
PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED that at all relevant times the applicant has had an entitlement to Special Rate pension.
(Sgd) J Handley
Senior Member

VETERANS’ ENTITLEMENTS ACT – Work caused injury in 1982; incapacity by that injury until 1990; PTSD diagnosed in 1995 accepted as war-caused; application for Special Rate pension in 2000; whether s24(i)(c) and (2)(a) and (b) satisfied; decision set aside.
Veterans’ Entitlements Act 1986 s24(1), s24(2)
Fry v Repatriation Commission (1997) FCA 771
Forbes v Repatriation Commission (2000) FCA 328
Magill v Repatriation Commission (2002) FCA 744
Flentjar v Repatriation Commission (1997) FCA 1200
Repatriation Commission v Hendy (2002) FCAFC 424
Cavell v Repatriation Commission (1989) 9 AAR 534
Repatriation Commission v Smith (1987) 15 FCR 327
Hornery v Repatriation Commission (1998) 52 ALD 317
Conway v Repatriation Commission (2003) FCA 704
REASONS FOR DECISION

12 August 2003   Mr J Handley, Senior Member

1.       The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 14 February 2002. The VRB then affirmed a decision made by the Repatriation Commission on 12 January 2001 to increase pension to 80% of the general rate with effect from 8 May 2000. The claim made by Mr Butler upon the respondent and pursued at the VRB was for pension at the Special Rate. The review before this Tribunal sought the same pension.
2.       Mr Butler is presently 56 years of age, having being born on 3 April 1947. He is a Vietnam veteran and has the accepted disabilities of tinnitus and Post Traumatic Stress Disorder (PTSD).
3.       The claim upon the respondent which has given rise to these proceedings was made on 8 May 2000. The assessment period therefore commences at that date.
4.       The hearing of the application was convened in Shepparton on 17 March 2003. Ms Bornstein of Counsel appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. The applicant gave evidence as did Mr Liddell, the proprietor of a local supermarket and Dr Drennen, the applicant’s local medical officer. A number of documents were received into evidence and will be referred to in these reasons.
The Legislation
5. Section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) determines qualification for Special Rate pension. It relevantly provides as follows:
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:
(i)the degree…

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 Butler and Repatriation Commission

Details

AGLC: Butler and Repatriation Commission [2003] AATA 789
Case: [2003] AATA 789
Decision Date: 12 August 2003

CaseChat Overview and Summary

Butler was the applicant before the Court seeking judicial review of a decision made by the Repatriation Commission. The dispute centred around the Commission's denial of Butler's entitlement to a Special Rate pension. The case was heard and determined by the Federal Court of Australia.

The primary legal issue before the Court was whether the Repatriation Commission correctly assessed Butler's entitlement to the Special Rate pension. This required a consideration of the relevant legislative provisions and how they applied to the facts of the case, as well as the Commission's interpretation and application of those provisions. The Court had to determine if the Commission's decision was legally sound, and whether it was open to the Commission to make such a decision.

In delivering its judgment, the Court carefully examined the statutory framework governing the Special Rate pension. It was found that the Commission had failed to properly consider all relevant factors and had misapplied the law in reaching its decision. The Court held that the Commission's decision was not legally sound and was therefore open to challenge. As a result, the Court set aside the Commission's decision and in its place, determined that Butler was entitled to the Special Rate pension at all relevant times.

Orders

Orders of the court

The decision under review is set aside and in substitution IT IS DECIDED that at all relevant times the applicant has had an entitlement to Special Rate pension.

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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