Crilly and Repatriation Commission - [2003] AATA 382

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/9

VETERANS' APPEALS DIVISION
)

Re BRIAN JAMES CRILLY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date29 April 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review. This means Mr Crilly's application for review is unsuccessful.
....................(Sgd).....................
EK Christie
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether rate of pension properly assessed – special rate – whether the applicant is entitled to pension at the special rate – whether the applicant’s accepted disabilities alone prevented him from working – ameliorative provision – whether accepted disabilities were the “substantial cause” for the applicant being unable to obtain or continue in remunerative work
Veterans’ Entitlements Act 1986 ss 6C, 24(1)(c), 24(2)(b), 120(4)
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Re Horney and Repatriation Commission [1998] AATA 602
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION

29 April 2003 Dr EK Christie, Member

1.      This is an application by Brian Crilly to review a decision of the Veterans’ Review Board (“VRB”) made on 6 December 2000, which affirmed the decision of the Repatriation Commission. The VRB decided that the appropriate assessment for entitlement was 100% of the General Rate.
2.      In reaching its decision the VRB concluded:
“23.     There is no medical evidence to support the applicant’s contention that it was his war-caused melanoma that caused him to leave the workforce…
24.      Furthermore, the Board finds that the veteran ceased work and is prevented from resuming remunerative employment as a result of factors unrelated to his eligible service. Those factors include the condition diffuse idiopathic skeletal hyperostosis which is not service related, the veteran’s age at date of application of 61 years and his time out of the workforce of 10 years. In that situation, it is clearly the case that his accepted disabilities, alone, are not responsible for his no longer being engaged in remunerative work.
25.      There is no evidence before the Board that the veteran has made genuine attempts to obtain further employment since he ceased work on 16 April 1990 and the ameliorating provisions of Section 24(2)(b) do not assist his case. The Board is therefore reasonably satisfied that it was not his accepted disabilities either substantially or alone which have been responsible for the veteran no longer being engaged in remunerative work...”

3. At the hearing Brian Crilly was represented by Mr A Harding of Counsel, instructed by Gilshenan and Luton. The Repatriation Commission was represented by Mr J Kelly, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal…

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 Crilly and Repatriation Commission

Details

AGLC: Crilly and Repatriation Commission [2003] AATA 382
Case: [2003] AATA 382
Decision Date: 29 April 2003

CaseChat Overview and Summary

The case of Crilly and the Repatriation Commission involved a dispute regarding the rate at which Mr Crilly’s pension was assessed under the Veterans’ Entitlements Act 1986. The matter was heard in the Administrative Appeals Tribunal of Australia. Mr Crilly sought a special rate pension, contending that his accepted disabilities alone prevented him from working and thus he qualified for the special rate. The Repatriation Commission, however, denied his application, asserting that his disabilities were not the substantial cause of his inability to obtain or continue in remunerative work.

The primary legal issues before the Tribunal were whether Mr Crilly's accepted disabilities were the substantial cause of his inability to work, and thus whether he was entitled to a pension at the special rate. The Tribunal had to consider the relevant provisions of the Veterans’ Entitlements Act 1986, particularly sections 6C, 24(1)(c), 24(2)(b), and 120(4), in conjunction with relevant case law such as Forbes v Repatriation Commission and Flentjar v Repatriation Commission. The Tribunal also needed to determine whether the ameliorative provision applied to Mr Crilly’s situation.

The Tribunal, after reviewing the evidence and the applicable legal framework, found that Mr Crilly’s accepted disabilities were not the substantial cause of his inability to obtain or continue in remunerative work. The Tribunal determined that other factors, not solely his disabilities, contributed to his inability to work. Consequently, Mr Crilly was not entitled to the special rate pension. The Tribunal affirmed the decision of the Repatriation Commission, meaning Mr Crilly's application for review was unsuccessful.

Orders

Orders of the court

The Tribunal affirms the decision under review. This means Mr Crilly's application for review is unsuccessful.

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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