Cotterell and Repatriation Commission - [2000] AATA 444

DECISION AND REASONS FOR DECISION [2000] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/738

VETERANS' APPEALS   DIVISION     )
           Re      FRANCIS FREDERICK COTTERELL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President A M Blow OAM QC.,

Date7 June 2000
PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a decision increasing the applicant's rate of pension to the special rate with effect from 28 May 1998.
   [Sgd A M Blow]
  Deputy President
CATCHWORDS
Veterans' entitlements – rate of pension – application for increase – whether earlier determination that disease war-caused is examinable.
Veterans' Entitlements Act 1986 – ss.14, 15, 19(3), 19(4), 19(5), 175(1)
Vietnam Veterans' Association v Gallagher (1994) 34 ALD 205
Repatriation Commission v O'Brien (1985) 155 CLR 422
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Stafford (1995) 38 ALD 193
Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Secretary, Department of Social Security v Riley (1987) 13 ALD 608
Lees v Comcare (1999) 56 ALD 84
Owen v Repatriation Commission (1995) 38 ALD 241

REASONS FOR DECISION

7 June 2000 Deputy President A M Blow OAM QC.,

This is an application for the review of a decision made by a delegate of the respondent on 3 August 1998 and affirmed by the Veterans' Review Board ("the VRB") on 29 January 1999. On 13 February 1996 a delegate of the respondent made a determination in favour of the applicant accepting as war-caused two disabilities which were described as "post-traumatic stress disorder with alcohol abuse" and "bilateral sensorineural hearing loss with tinnitus". On 28 May 1998 the applicant, who was receiving a disability pension in respect of those conditions at 100 per cent of the general rate, applied for an increase in the rate of his pension. The delegate decided on 3 August 1998 not to increase his rate of pension, but to continue it at 100 per cent of the general rate.
At the hearing of this application, the respondent contended that the applicant was not suffering from post-traumatic stress disorder. It conceded that the applicant might be suffering from some sort of psychiatric disorder, but asserted that any such disorder was not post-traumatic stress disorder and was not war-caused. Counsel for the applicant contended that it was not open to this Tribunal to reconsider the earlier determination to the effect that the applicant was suffering from a war-caused post-traumatic stress disorder. I dealt with the issue as to the Tribunal's powers as a preliminary point. After receiving submissions as to that issue, I ruled that the Tribunal had no power to reconsider the earlier determination, reserving my reasons. Miss Pacey, who represented the respondent, had told me that she was instructed to concede the entitlement of the applicant to the special rate of pension if I reached such a conclusion as to the law. I formally reserved my decision so that I could take time over the explanation of my reasoning.
The scope of the Tribunal's powers in…

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 Cotterell and Repatriation Commission

Details

AGLC: Cotterell and Repatriation Commission [2000] AATA 444
Case: [2000] AATA 444
Decision Date: 7 June 2000

CaseChat Overview and Summary

The case of Cotterell and the Repatriation Commission involves an application by the applicant, Cotterell, for an increase in his pension under the Veterans' Entitlements Act 1986. Cotterell sought a review of the Commission's decision not to increase his pension rate, contending that the Commission had failed to consider all relevant evidence, particularly evidence concerning the war-causation of his disease. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Commission was required to examine previous determinations regarding the war-causation of Cotterell's disease when deciding on the rate of his pension. The applicant argued that the previous determinations should be considered, while the Commission maintained that such prior findings were not relevant to the current review of pension rates. The court needed to determine the scope of the Commission's review powers under the Act and whether past determinations could influence the current assessment.

The court examined the statutory provisions of the Veterans' Entitlements Act 1986 and relevant case law to determine the extent of the Commission's review powers. It concluded that the previous determinations of war-causation were not binding on the Commission in the current review. The court emphasised that each review was to be conducted on its merits and that past determinations were not automatically conclusive in subsequent reviews. The court found that the Commission had appropriately exercised its discretion in not considering the previous determinations in its assessment of the pension rate.

The court dismissed the application, holding that the Commission had not erred in its decision not to increase Cotterell's pension rate. The court's decision was based on the understanding that each review under the Act is independent and that the Commission's discretion is not constrained by previous determinations unless explicitly provided by the statute.

Orders