Clearihan and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2384

Clearihan and Repatriation Commission (Veterans' entitlements) [2021] AATA 2384 (20 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6423
Re:Keith Clearihan
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:20 July 2021
Place:Melbourne

The Tribunal VARIES the decision of the Respondent dated 26 November 2015 as affirmed by the Veterans’ Review Board on 28 September 2016 as follows:
a)The Respondent is liable to pay the Applicant a disability pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) for the period 24 April 2015 up to and including 30 September 2016 (24 April 2015 being the earliest date of effect); and
b)Save for the variation in (a), the decision of the Respondent dated 26 November 2015 is otherwise affirmed in all respects.

........[sgd]................................................................
R Cameron, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – special rate of pension – relevant period – war-caused conditions – whether applicant satisfies requirement of s 24(2A)(d) of the Veterans’ Entitlements Act 1986 (Cth) – alone test – consideration of non-war-caused spinal condition, voluntary redundancy package – whether applicant satisfies requirement of s 24(2A)(e) – loss of earnings test – consideration of age, voluntary redundancy package – eligibility criteria met – eligibility for special rate of pension in relevant period – decision varied
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Repatriation Commission v Richmond (2014) 226 FCR 21
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
R Cameron, Senior Member
20 July 2021
INTRODUCTION

On 18 June 2019, this Tribunal, differently constituted, affirmed a decision of the Veterans' Review Board ("the VRB") made on 28 September 2016.[1]
[1] The reasons of this Tribunal of 18 June 2019 are Document 5 in the Tribunal Book agreed to by the parties.
The VRB had affirmed a decision previously made by the Respondent to this application increasing the Applicant's general rate of pension to the rate applicable to 80% impairment.[2] The pension is payable pursuant to the provisions of the Veterans Entitlements Act 1986 (Cth) ("the VE Act").
[2] Tribunal Book, Document 1, p 14.
The Applicant appealed to the Federal Court of Australia. On 4 September 2020, Moshinsky J allowed the appeal in part.[3] He made orders setting aside the decision of this Tribunal and directed that the matter be remitted for further hearing and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016 ("the relevant period").
[3] The Orders of Justice Moshinsky are at Tribunal Book, Document 31, p 1651. His Honour's reasons are at Tribunal Book, Document 32, p 1653.
The Tribunal as reconstituted heard the matter without additional evidence in respect of the relevant period.
OBSERVATIONS ON THE WITNESSES' EVIDENCE
No viva voce evidence was given before this Tribunal as constituted during the further hearing of the application. This Tribunal has had the opportunity to read the transcript of the evidence of those witnesses who did give viva voce evidence at the…

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.

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Details

Case: [2021] AATA 2384
Decision Date: 20 July 2021

CaseChat Overview and Summary

This matter concerned an application by the applicant for a special rate of pension under the *Veterans’ Entitlements Act 1986* (Cth) for a specific relevant period. The applicant contended that he met the criteria for this special rate pension, which would attract a higher payment than his existing pension. The decision was made by Senior Member R Cameron of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant satisfied the requirements of section 24(2A) of the *Veterans’ Entitlements Act 1986* (Cth) for the relevant period. Specifically, the Tribunal needed to determine if the applicant met the criteria related to his incapacity from war-caused conditions, the "alone test" concerning non-war-caused conditions, and the loss of earnings test, particularly in light of his age and a voluntary redundancy package. Several concessions were made by the respondent, significantly narrowing the scope of the issues to be determined.

The Tribunal accepted the evidence presented, including that of the applicant, his wife, and his former line manager. Applying section 24(2A) of the Act, and taking into account the concessions made by the respondent, the Tribunal found that the applicant met the eligibility criteria for the special rate of pension for the period from 24 April 2015 up to and including 30 September 2016. Consequently, the Tribunal varied the decision of the respondent, ordering that the applicant be paid a disability pension under section 24 of the Act for this specified period, with the assessment to be calculated from 24 April 2015. From 1 October 2016, the applicant's disability pension was to revert to 80% of the General Rate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal as reconstituted heard the matter without additional evidence in respect of the relevant period. OBSERVATIONS ON THE WITNESSES' EVIDENCE No viva voce evidence was given before this Tribunal as constituted during the further hearing of the application. This Tribunal has had the opportunity to read the transcript of the evidence of those witnesses who did give viva voce evidence at the previous hearing. Having had that opportunity to read the transcript of their evidence the Tribunal accepts such evidence in full unless there is good reason to the contrary. In particular, it accepts the evidence of the Applicant, his wife and Mr Allan[4].[4] During the relevant period Mr Allan was the Manager-New Connections of Citipower, which made him the Applicant's "line manager". He gave evidence that he was personally involved with the Applicant following his cancer diagnosis. In his evidence, amongst other things, he described the Applicant as a good and very experienced employee. He described the Applicant as highly regarded by management. As for the medical witnesses, some observations will be made later in these reasons where appropriate about the evidence they gave.ISSUES BEFORE THE TRIBUNAL The legislative framework applicable to claims made by incapacitated veterans for a pension from the Commonwealth was carefully and accurately reproduced in the reasons of the Tribunal as previously constituted. That analysis is referred to and repeated.[5] The legislative framework need not be reproduced for the purposes of these reasons.[5] Paras 13-28 of the Tribunal’s reasons of 18 June 2019: Tribunal Book, Document 5, pp 129-34. However, in applying the relevant section of the VE Act, the Tribunal is minded to recall the observations of Rares J in Smith v Repatriation Commission:[6]"The conditions specified in each of ss 23 and 24 are bedevilled with bewildering complexity. Regrettably the fog of the drafting style of this, like many Commonwealth Acts, has created a nearly impenetrable shroud over the meaning that the Court is expected to attribute to the intention of the Parliament. The cost to the community of this obscurity must be enormous."[6] (2014) 220 FCR 452 at [26]. The Applicant contends that he qualifies for a payment of a pension at the special rate for the relevant period. This attracts the operation of s 24 ("special rate of pension") of the VE Act. Relevantly, because the Applicant had reached the age of 65 years prior to the date of application for an increase to his rate of pension to the special rate, s 24(2A) applies. Helpfully, several concessions concerning the eligibility criteria that must be satisfied under s 24 were made by counsel for the Respondent at the commencement of the hearing which have the effect of significantly limiting the issues that need to be determined by the Tribunal. Those concessions may be summarised as follows:(a)Section 24(2A)(a): the Applicant made a claim under s 14 of the VE Act and subsequently, an application for an increase in his pension under s 15;(b)Section 24(2A)(b): the Applicant turned 65 before the application the subject of this proceeding was made;(c)Section 24(1)(a)-(which is applicable by operation of the first limb of s 24(2A)(c)): the Applicant’s incapacity from war-caused disabilities has been determined to be at least 70% (in fact, it was determined to be 80%)[7];(d)Section 24(2A)(f): the Applicant was undertaking his last paid work after he turned 65; and(e)Section 24(2A)(g) (as then drafted): the Applicant had been working as an employee for the same employer, Citipower, for a continuous period of at least 10 years and such employment commenced prior to him turning 65.[7] Tribunal Book, Document 1, p 19.DOES THE APPLICANT SATISFY THE REQUIREMENTS OF S 24(1)(b) OF THE VE ACT?

Decision

Reasons for decision

The parties lodged an agreed form of the orders the Tribunal ought to make if it found in favour of the Applicant. The Tribunal has adopted the form of those orders below. DECISION For these reasons, the Tribunal varies the decision of the Respondent dated 26 November 2015 as affirmed by the VRB on 28 September 2016 as follows:(a)The Respondent is liable to pay the Applicant a disability pension under s 24 of the VE Act for the period 24 April 2015 up to and including 30 September 2016 (24 April 2015 being the earliest date of effect); and(b)Save for the variation in (a), the decision of the Respondent dated 26 November 2015 is otherwise affirmed in all respects. The Tribunal notes that the assessment of pension payable for the period 24 April 2015 up to and including 30 September 2016 should be calculated by the Respondent with a date of effect of 24 April 2015. The Tribunal also notes that from 1 October 2016, the Applicant’s disability pension reverts to 80% of the General Rate.

Ratio Decidendi

Legal Principle Established

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