Cornish and Repatriation Commission - [2011] AATA 65

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 65
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5781

VETERANS' AFFAIRS DIVISION )

Re DAVID CORNISH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date8 February 2011
PlaceMelbourne

Decision
The decision of the Veterans' Review Board in so far as it refused to review a decision of the respondent with respect to right central retinal vein occlusion is affirmed. The remainder of the decision, namely the decision affirming the decision refusing an increase in pension above 80% of the General Rate, is set aside and in substitution it is decided that the applicant is entitled to pension at the Special Rate from 2 June 2003.

................[signed]......................
Senior Member

VETERANS’ AFFAIRS – Application for special rate – applicant 78 years at application day – self employed breeding cattle – s 24(2A)(e) and s 24(2B) in issue – whether accepted condition of macroglobulinaemia alone responsible for incapacity – discussion of meaning of remunerative work and last paid work and the interaction between s 24(2A)(e) and s 24(2B) – decision set aside
Veterans’ Entitlements Act 1986 ss 5Q, 15, 19, 24, 31, 135
Anderson v Repatriation Commission [2004] FCA 1009
Cavell v Repatriation Commission (1989) 9 AAR 534
Counsel v Repatriation Commission (2002) 122 FCR 476
Grant v Repatriation Commission (1999) 57 ALD 1
Re Turner and Repatriation Commission (1995) 37 ALD 705
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Strickland (1991) 22 ALD 10
REASONS FOR DECISION

8 February 2011 Mr John Handley, Senior Member

1.      Mr Cornish, the applicant, was born on 30 September 1925 and is presently 85 years of age. He served in the Australian Army between 20 October 1943 and 21 November 1946.
2.      On 2 September 2003, he claimed the condition of macroglobulinaemia as war-caused on the basis that he was exposed to ionising radiation in Hiroshima during operational service. On 7 November 2003, the respondent rejected the claim. On 11 October 2007, the Veterans’ Review Board (VRB) decided that the condition was war-caused. The VRB set aside the primary decision and remitted the application to the respondent for assessment of pension. On 14 December 2007, the respondent assessed pension at 60 per cent of the General Rate. Following an internal review on 19 May 2008, pursuant to s 31 of the Veterans’ Entitlements Act 1986 (the Act), the respondent increased the rate of pension to 80 per cent of the General Rate.
3.      On 10 January 2008, the applicant made a claim for right central retinal vein occlusion on the basis that it resulted from his macroglobulinaemia and was therefore war-caused. The respondent rejected the claim on 3 July 2008.
4.      The applicant sought review of the decision to grant him pension at 80 per cent of the General Rate and the decision to reject the right retinal vein occlusion. On 30 October 2009, the VRB affirmed both decisions.…

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 Cornish and Repatriation Commission

Details

AGLC: Cornish and Repatriation Commission [2011] AATA 65
Case: [2011] AATA 65
Decision Date: 8 February 2011

CaseChat Overview and Summary

In the case of Cornish and Repatriation Commission, the applicant, Mr. Cornish, sought an increase in his pension rate, arguing his condition of macroglobulinaemia was the sole cause of his incapacity. The matter was heard and determined by the Federal Court of Australia. The primary issue before the court was whether the applicant's macroglobulinaemia was the sole condition responsible for his incapacity, and if so, whether this justified an increase in his pension rate above 80% of the General Rate, pursuant to sections 24(2A)(e) and 24(2B) of the relevant legislation. The court had to interpret these sections, particularly the terms "remunerative work" and "last paid work," and understand their interaction.

The court examined the definitions and implications of "remunerative work" and "last paid work," concluding that the applicant's self-employment in breeding cattle qualified as remunerative work. The court found that the Repatriation Commission had erred in its assessment by not considering the full impact of the applicant's macroglobulinaemia on his ability to undertake remunerative work. The court held that the applicant's condition was the sole cause of his incapacity and that he was entitled to the Special Rate pension. The court found that the decision of the Veterans' Review Board in relation to the right central retinal vein occlusion was correctly affirmed, but the remainder of the decision, which affirmed the refusal to increase the pension rate, was set aside.

The court ordered that the decision of the Veterans' Review Board in so far as it affirmed the decision refusing to review the decision of the respondent concerning the right central retinal vein occlusion was upheld. However, the remainder of the decision, which affirmed the refusal to increase the pension rate above 80% of the General Rate, was set aside. In substitution, it was decided that the applicant was entitled to pension at the Special Rate from 2 June 2003.

Orders

Orders of the court

The decision of the Veterans' Review Board in so far as it refused to review a decision of the respondent with respect to right central retinal vein occlusion is affirmed. The remainder of the decision, namely the decision affirming the decision refusing an increase in pension above 80% of the General Rate, is set aside and in substitution it is decided that the applicant is entitled to pension at the Special Rate from 2 June 2003.

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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