Conway and Repatriation Commission - [2002] AATA 1201

DECISION AND REASONS FOR DECISION [2002] AATA 1201

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/113

VETERANS' APPEALS DIVISION          )
           Re      RONALD CONWAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date22 November 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) IR Way
Member
CATCHWORDS
VETERANS' AFFAIRS – pension – entitlement – whether applicant's pension has been correctly assessed – whether applicant entitled to pension at the special rate
Veterans' Entitlements Act 1986 ss 24, 28, 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Banovich v Repatriation Commission (1986) 69 ALR 395
Magill v Repatriation Commission [2002] FCA 744
Chambers v Repatriation Commission (1995) 129 ALR 219
Hall v Repatriation Commission (1994) 33 ALD 454
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Re Campain and Repatriation Commission [1999] AATA 829
Cavill v Repatriation Commission (1988) 9 AAR 539

REASONS FOR DECISION

22 November 2002 Mr IR Way, Member

This is an application by Ronald Conway (the applicant) for review of that part of a decision of the Repatriation Commission (the respondent) dated 8 January 1998 which assessed the applicant's pension at 70% of the General Rate with effect from 16 March 1997.
The Veterans' Review Board (VRB), on review, on 5 October 1998 affirmed the respondent's assessment of 70%.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:

Exhibit A1 Statement of Ronald Conway dated 15 September 2000
Exhibit A2 Statement of Joy Balderson (undated)
Exhibit R1 Clinical notes of Dr B Harvey

Mr G Mylne of Cass Legal Group, Lawyers, appeared for the applicant and Mr J Stoner, Departmental Advocate, represented the respondent. The applicant and Joy Balderson, the applicant's sister, gave oral evidence.
The issue before the Tribunal is whether the applicant's disability pension is correctly assessed at 70% of the General Rate and in particular whether the applicant's pension should be assessed at the Special Rate.
The applicant was born on 20 November 1947 and lodged his claim for disability pension and medical treatment on 16 June 1997 at which time he was 49 years old.
The applicant served in the Royal Australian Air Force from 28 May 1966 to 29 May 1978. He rendered operational service in Vietnam from 4 March 1969 to 4 December 1969 and defence service from 7 December 1972 to 29 May 1978.
This matter is contested by the applicant on the basis of his operational service only and the Tribunal has accepted that this course of action is appropriate.
The applicant's service-related accepted disabilities are:

Bilateral sensori-neural hearing loss
Gastro-oesophageal reflux disease
Psychoactive substance abuse or dependence
Post Traumatic Stress Disorder

The applicant's non-service related disability is Psoriasis. Both parties stated that the application before the Tribunal was not in respect of the respondent's refusal to accept this condition as service related. There being no objection from the applicant, the Tribunal accepts the respondent's submission that…

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 Conway and Repatriation Commission

Details

AGLC: Conway and Repatriation Commission [2002] AATA 1201
Case: [2002] AATA 1201
Decision Date: 22 November 2002

CaseChat Overview and Summary

In the case of Conway and Repatriation Commission, the applicant, Mr. Conway, contested the assessment of his pension entitlement under the Veterans' Entitlements Act 1986. The dispute centred on whether Mr. Conway qualified for a pension at the special rate, given his history of psychiatric difficulties stemming from his service in Vietnam. The matter was heard and determined by the Administrative Appeals Tribunal.

The primary legal issues before the court were the interpretation and application of sections 24(1)(c) and 24(2)(b) of the Veterans' Entitlements Act 1986. Specifically, the court had to determine if Mr. Conway's psychiatric incapacity was the sole or substantial cause of his inability to engage in remunerative work, and if he had suffered a loss of salary or earnings due to his war-caused incapacity. Additionally, the court needed to consider whether Mr. Conway's cessation of work in 1992, due to the closure of his employer, affected his eligibility for the special pension rate.

The Tribunal carefully examined the provisions of section 24(1)(c) of the Act, which requires that a veteran must be, by reason of war-caused incapacity, alone prevented from undertaking remunerative work. The Tribunal noted that Mr. Conway's cessation of work in 1992, due to his employer's closure, complicated his eligibility under this section. However, the Tribunal also considered the ameliorating provisions of section 24(2)(b), which allow a veteran to meet the "alone" criteria if certain conditions are satisfied, including that the veteran's war-caused incapacity is the substantial cause of their inability to obtain work. The Tribunal ultimately concluded that Mr. Conway did not meet the stringent criteria of section 24(1)(c), primarily due to his five-year absence from the workforce and the other reasons contributing to his inability to engage in work.

The Tribunal's decision was informed by relevant case law, including Repatriation Commission v Smith, Banovich v Repatriation Commission, and Magill v Repatriation Commission, among others. These cases provided guidance on the interpretation of similar provisions within the Act. Based on the evidence and legal considerations, the Tribunal upheld the Repatriation Commission's assessment that Mr. Conway was not entitled to a pension at the special rate.

Orders

Orders of the court

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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

In summary, Mr Mylne contended that the applicant has had significant difficulties of a psychiatric nature since his service in Vietnam, that he has coped extraordinarily well to get to this stage, but unfortunately he has now fallen over. It was submitted that Mr Conway meets the ameliorating provisions of section 24(2)(b) of the Act, thereby satisfying section 24(1)(c) and he should be paid pension at the Special Rate.Consideration Section 24(1)(c) consists of two limbs, each of which must be satisfied. The first limb of the subsection provides:"The veteran is, by reasons of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…" The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran's war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause and subsection 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows a veteran to meet the alone criteria of subsection 24(1)(c). In summary, subsection 24(2)(b) allows a veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran, but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran's war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. The second limb of subsection 24(1)(c) which must also be satisfied, requires the veteran to suffer a loss of salary or wages or earnings that the veteran would not be suffering if he were free of his war-caused incapacity. The loss referred to in this section may be caused by a loss of existing employment or by an inability to obtain employment. This second limb must be considered with subsection 24(2)(a). This subsection, that is subsection 24(2)(a), narrows the second limb in that a veteran will not satisfy that limb if, though suffering a loss of wages, salary or earnings that may be causally related to the veteran's war-caused injury or disease, there are other reasons that are also causally related to the veteran having ceased to engage in work or related to the veteran being prevented from engaging in work. With respect to section 24(1)(c) in its unameliorated form, the Tribunal accepts the respondent's submission that the applicant does not satisfy the section in its full rigour. The Tribunal has arrived at this view principally because of the applicant ceasing work in 1992 because the company he worked for closed and being out of the workforce for five years at the time of application and as such he can not satisfy the "alone test". Furthermore, the Tribunal notes that the applicant's submission only seeks to bring the applicant within the provisions of section 24(1)(c) through the ameliorating section 24(2)(b).