Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/4403
Veterans' Appeals Division )
Re: Douglas Creek
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL: Dr K S Levy RFD, Senior Member
DATE: 16 August 2010
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The last sentence of paragraph 29 should read: In assessing the evidence, I must be satisfied as to the standard of reasonable satisfaction, or colloquially, on the balance of probabilities, as set out in s 120(4) of the Act.
The last sentence of paragraph 61 should read: I find that Mr Creek would be capable of working more than 8 hours per week and therefore that the 8 hour work test is not satisfied in relation to the applicant for both the periods in issue.
...................................................................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 563
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4403
VETERANS' APPEALS DIVISION ) Re DOUGLAS CREEK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date28 July 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Special rate of pension – Applicant’s entitlement to special rate of pension – Is the applicant capable of undertaking remunerative work for more than 8 hours per week for the relevant periods – Applicant is capable of working more than 8 hours per week – Credit and credibility of applicant considered - Applicant not prevented from undertaking remunerative work because of war-caused injury or received – Decision affirmed.
Evidence Act 1995 (Cth) ss 76, 79, 135, 136
Veterans’ Entitlement Act 1986 (Cth) ss 5Q, 19 24, 28, 31, 120
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles and Repatriation Commission (1991) 105 ALR 359 at 368-269
Chambers v Repatriation Commission (1994) 33 ALD 473 at 234
Clark v Ryan (1960) 103 CLR 486
Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579; (1993) 125 L Ed 2d 469
Farrell v R (1998) 194 CLR 286
Flentjar v Repatriation Commission (1997) 48 ALD 1
HG v R (1999) 197 CLR 414 at 58
Jackman and Repatriation Commission (1997) FCA 97/564; 30 June 1997
Magill v Repatriation Commission [2002] FCA 744
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 59 to 63
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at 118
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449
REASONS FOR DECISION
28 July 2010 Dr K S Levy RFD, Senior Member INTRODUCTION
1. This is an application for review of two decisions made by the Veterans’ Review Board (“the VRB”). The first part of the application relates to a decision made on 17 July 2008 which…
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- Creek and Repatriation Commission [2010] AATA 563
- Case
- [2010] AATA 563
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether Creek's war-caused injuries incapacitated him to the extent that he could not undertake remunerative work for more than eight hours per week. This hinged on interpreting the relevant sections of the Veterans’ Entitlement Act 1986, particularly sections 5Q, 19, 24, 28, 31, and 120, and understanding the conditions under which a special rate of pension could be granted. The Tribunal needed to weigh the evidence presented by Creek and the Commission to ascertain whether Creek's claims were credible and whether his injuries indeed limited his work capacity.
In its decision, the Tribunal meticulously reviewed the evidence and arguments presented by both parties. It considered the applicant's medical records, the testimonies of Creek and other witnesses, and the legal precedents, including cases such as Banovich v Repatriation Commission and Birtles and Repatriation Commission. The Tribunal found that Creek's claims lacked credibility, as his testimony and evidence did not convincingly demonstrate that his war-caused injuries prevented him from working more than eight hours per week. The Tribunal concluded that Creek was, in fact, capable of undertaking remunerative work for more than eight hours per week, thus affirming the Commission's decision that Creek was not entitled to the special rate of pension.
Consequently, the Tribunal affirmed the decision of the Repatriation Commission. Creek's appeal was dismissed, and the original decision denying him the special rate of pension was upheld. The Tribunal's decision was grounded in a detailed analysis of the evidence and a careful application of the relevant statutory provisions and case law.
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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