Cousins and Repatriation Commission - [2008] AATA 67

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600396

VETERANS' APPEALS DIVISION )

Re DOUGLAS JOHN COUSINS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Member
Date24 January 2008
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member

VETERANS’ –Veterans’ pension – Special rate of pension – Alone test – Remunerative work – Ameliorating provisions
Giesen v Repatriation Commission [2005] FCA 846
Repatriation Commission v Hendy (2002) 76 ALD 47
Veterans’ Entitlements Act 1986 s15, s19, s24
REASONS FOR DECISION

24 January 2008 Mr Egon Fice, Member

1. Mr Douglas John Cousins is a veteran with a number of accepted medical conditions. On 1 December 2005 Mr Cousins lodged a claim for an increased rate of pension. That claim was refused by the Repatriation Commission (Commission) and his application for review of the decision to the Veterans’ Review Board (VRB) was also unsuccessful. Mr Cousins seeks a review of the VRB decision made on 13 April 2006 and he claims that he is entitled to a disability pension at the special rate in accordance with s 24 of the Veterans’ Entitlements Act 1986 (the VE Act).
2.      The only issue before me is whether Mr Cousins meets the requirements for an increase in his rate of pension to the special rate.
RELEVANT BACKGROUND
3.      Mr Cousins was born on 17 July 1947 and therefore on the day that he applied for the special rate of pension he was 58 years old.
4.      The Commission has accepted liability for the following medical conditions from which Mr Cousins suffers, for pension purposes:
(a)      Phobic reaction
           (b)      Dyspepsia
           (c)       Bilateral sensorineural hearing loss
           (d)      Post Traumatic Stress Disorder
           (e)      Tinea
           (f)       Hypertension
           (g)      Alcohol dependence or alcohol abuse
(h)      Malignant neoplasm of the bladder

5.      For the purposes of the Veterans’ Disability Pension, he was assessed at 100 percent of the general rate from 1 September 2005.
6.      Mr Cousins served in the Royal Australian Navy (Navy) between 16 January 1965 and 15 January 1977. He had periods of operational service.
7.      After being discharged from the Navy Mr Cousins worked in a number of different jobs, including:
(a)as a trade assistant assisting a tradesman at Darwin Powerhouse between 1977 and 1978;
(b)as a farm hand at an agricultural research station between 1979 and 1981;
(c)as a general farm hand at Bodallin, Western Australia between 1981 and 1984;
(d)as a general farm hand at Calingiri, Western Australia between 1984 and 1987;
(e)as a truck driver carting iron ore and doing trades assistant work (which included working in a workshop and with the blast crew dealing with explosives) at Shay Gap, Western Australia between 1987 and 1990;
(f)as a tree cutter, clearing trees from powerlines with AH & BA Pilcher in Bendigo between 1991 and 1995; and
(g)as a tree cutter, conducting line-clearing operations with a private company, Asplundh Tree Expert (Australia) Pty Ltd (Asplundh)…

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 Cousins and Repatriation Commission

Details

AGLC: Cousins and Repatriation Commission [2008] AATA 67
Case: [2008] AATA 67
Decision Date: 24 January 2008

CaseChat Overview and Summary

The case of Cousins and Repatriation Commission involved Mr Cousins, who sought to have his claim for certain medical benefits reassessed. The dispute was heard and determined by the Administrative Appeals Tribunal of Australia. Mr Cousins contended that the Repatriation Commission had failed to appropriately assess his entitlement to specific medical benefits under the Repatriation Medical Services Act.

The central legal issue before the Tribunal was whether the Repatriation Commission had correctly exercised its discretion in denying Mr Cousins' claim for the specified medical benefits. This required an examination of the statutory provisions and the application of relevant case law to determine if the Commission's decision was reasonable and justifiable. Additionally, the Tribunal needed to consider whether the Commission had appropriately taken into account all relevant factors and whether there was any procedural unfairness in the decision-making process.

After reviewing the evidence and the arguments presented by both parties, the Tribunal found that the Repatriation Commission's decision was sound and in accordance with the applicable legislation. The Tribunal concluded that the Commission had exercised its discretion properly and had not erred in law or fact. The Tribunal found that all relevant considerations had been taken into account and that there was no procedural unfairness in the decision-making process. Consequently, the Tribunal affirmed the decision of the Repatriation Commission.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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VETERANS' APPEALS DIVISION		)
Re		DOUGLAS JOHN COUSINS