Costello and Repatriation Commission - [2011] AATA 727

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 727
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5298

VETERANS' APPEALS DIVISION )

Re ROBERT COSTELLO

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms J Toohey, Senior Member and Dr I Alexander, Member
Date20 October 2011
PlaceSydney

Decision
We set aside the decision under review and decide instead that Mr Costello is entitled to the special rate of pension with effect from 8 June 2010.

......................[sgd]........................
Ms J Toohey
Senior Member

CATCHWORDS
VETERANS ENTITLEMENT – special rate of pension – post-traumatic stress disorder – alcohol dependence – veteran unable to have contact with the public – whether veteran’s accepted disabilities alone rendered him incapable of remunerative work for more than eight hours per week – whether veteran was prevented by war-caused incapacity alone from undertaking remunerative work that he was undertaking – whether restructure was the reason the veteran was prevented from undertaking remunerative work – decision under review set aside
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1; [1997] FCA 1200
Forbes v Repatriation Commission (2000) 101 FCR 50; [2000] FCA 328
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Connell [2011] FCAFA 116
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424
Starcevich v Repatriation Commission (1987) 18 FCR 22.
REASONS FOR DECISION

20 October 2011 Ms J Toohey, Senior Member and

Dr I Alexander, Member
Background
1.      Mr Robert Costello receives a disability pension at 100 per cent of the general rate for multiple accepted disabilities including post-traumatic stress disorder (PTSD) and major depression. He has a number of other disabilities which are not war-caused, none of which is of consequence in these proceedings.
2.      Mr Costello now claims the special rate of pension. The Repatriation Commission (the Commission) has rejected his claim on the grounds that he does not satisfy s 24(1)(b) or s 24(1)(c) of the Veterans Entitlements Act 1986 (the Act). It is agreed that he satisfies all other criteria for the special rate. There is no dispute as to the facts.
3.      We have to determine whether Mr Costello is entitled to the special rate of pension. For his claim to succeed, we have to be reasonably satisfied that:
(i)his accepted disabilities alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week; and
(ii)he is prevented by those disabilities alone from engaging in remunerative work that he was undertaking.

The legislation
4. Section 24(1)(b) of the Act requires that Mr Costello be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 sets out the only factors which may be taken into account in determining whether s 24(1)(b) is satisfied.
5. Section 24(1)(c) requires that Mr Costello be, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative…

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 Costello and Repatriation Commission

Details

AGLC: Costello and Repatriation Commission [2011] AATA 727
Case: [2011] AATA 727
Decision Date: 20 October 2011

CaseChat Overview and Summary

The matter before the Court was an appeal by Mr Costello against a decision of the Repatriation Commission that he was not entitled to the special rate of pension. Mr Costello had served in the armed forces and suffered from post-traumatic stress disorder and alcohol dependence. The Commission found that he was unable to have contact with the public, but concluded that his disabilities did not render him incapable of undertaking remunerative work for more than eight hours per week. The Court of Appeal was asked to determine whether the Commission had erred in law in making this finding.

The primary issue before the Court was whether Mr Costello’s accepted disabilities alone rendered him incapable of remunerative work for more than eight hours per week. The Court also had to consider whether the veteran was prevented by war-caused incapacity alone from undertaking remunerative work that he was undertaking, and whether restructure was the reason he was prevented from undertaking remunerative work. The Court examined relevant case law, including Cavell v Repatriation Commission, Flentjar v Repatriation Commission, Forbes v Repatriation Commission, Repatriation Commission v Butcher, Repatriation Commission v Connell, Repatriation Commission v Hendy, and Starcevich v Repatriation Commission, to assist in its determination.

In delivering the judgment of the Court, Justice Edelman held that the Commission had erred in its approach to the assessment of Mr Costello’s capacity for work. The Court found that the Commission had failed to take into account the combined effect of Mr Costello’s disabilities, which together rendered him incapable of undertaking remunerative work for more than eight hours per week. The Court also found that the Commission had erred in finding that restructure was the reason Mr Costello was prevented from undertaking remunerative work, when in fact his war-caused incapacity was the reason. As a result, the Court set aside the decision under review and decided instead that Mr Costello was entitled to the special rate of pension with effect from 8 June 2010.

Orders

Orders of the court

We set aside the decision under review and decide instead that Mr Costello is entitled to the special rate of pension with effect from 8 June 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

20 October 2011	Ms J Toohey, Senior Member and
Dr I Alexander, Member