CURRAN and REPATRIATION COMMISSION - [2011] AATA 402

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4762

VETERANS' APPEALS DIVISION )

Re KATHLEEN CURRAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor J B Morley RFD, Member
Date10 June 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..............[Sgd]................................
District Registrar

CATCHWORDS
VETERANS’ AFFAIRS – War widow’s pension – Applicant in receipt of war widow’s pension following death of first husband – Pension cancelled following remarriage prior to 1984 – Legislative amendment restored eligibility for pension following remarriage prior to 1984 – Applicant failed to lodge application for reinstatement of pension for eight years due to dementia – Applicant in receipt of pension from date of lodgement of application – No scope for backdating date of effect of payment of pension – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) s 13AA, 13AB, 13AC, 13AE, 13AF, 13AG, 13B
Veterans' Affairs Legislation Amendment (2001 Budget Measures) Act 2001 (Cth), Schedule 3
Financial Management and Accountability Act 1997 (Cth) s 33
Veterans’ Affairs Legislation Amendment (2001 Budget Measures) Bill 2001 (Cth)
Re Florence Shanahan and Repatriation Commission [2007] AATA 2028
REASONS FOR DECISION

10 June 2011 Associate Professor J B Morley RFD, Member

INTRODUCTION
1. On 5 October 2010 a delegate of the Repatriation Commission made a decision under s 13AG of the Veterans’ Entitlements Act 1986 (Cth) (“the Act; also referred to as “the VEA”) that payment of Mrs Kathleen Curran’s reinstated war widow’s pension was to commence on 27 August 2010. This was the date she lodged her application for pension by a war widow who remarried prior to 1984. The following is a review of that decision.
BACKGROUND
2.      The late veteran George Vincent James Watson (“the veteran”), after being taken on strength by the Australian Military Forces on 14 February 1942, rendered operational service in Port Moresby, Morotai, Tarakan, Balikpapan and Makassar. He was discharged from 2/2 Australian Pioneer Battalion on 26 April 1946.[1]
[1] T-Documents, Folios 1, 3, 5, 6, 7 and 8.
3.      Following his discharge, the veteran resumed his pre-enlistment employment as a professional jockey[2] and married the applicant on 13 March 1948.[3] He worked in the Darling Downs region and they resided in Toowoomba. They had one child, a son.[4] After some 20 years, the veteran was granted a Veterans' Affairs pension for his accepted service-related disability of anxiety state. Eventually, following his premature retirement from the workforce because of ill-health, his pension was increased to the Special Rate.
[2] T-Documents, Folio 9.
[3] T-Documents, Folio 20.
[4] T-Documents, Folio 24.
4.      The veteran died on 3 February 1980, aged 59 years. His Death Certificate indicated his occupation as a retired builder's labourer.[5] He and the applicant had been married 32 years. The applicant, then still residing in Toowoomba, was granted the war widow's pension.
[5] T-Documents Folios 23 and 24.
5.      The applicant married her second husband, one Sidney John Curran, on 12 November 1981.[6] He also…

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.

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Details

AGLC: CURRAN and REPATRIATION COMMISSION [2011] AATA 402
Case: [2011] AATA 402
Decision Date: 10 June 2011

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Ms Curran, a war widow, against the Repatriation Commission's decision to not backdate her war widow's pension to the date of legislative amendment that restored her eligibility. Ms Curran had been in receipt of a war widow's pension following the death of her first husband. However, her pension was cancelled when she remarried prior to 1984. A legislative amendment in 2001 restored eligibility for the pension to those who remarried prior to 1984. Ms Curran did not apply for reinstatement of her pension for eight years due to her dementia. The Tribunal was required to determine whether the date of effect of the payment of the pension could be backdated to the date of the legislative amendment.

The Tribunal considered whether there was any scope for backdating the date of effect of the payment of the pension. The Tribunal noted that section 13AA of the Veterans’ Entitlements Act 1986 provided that a person was not entitled to war widow's pension if they remarried prior to 1984. However, the legislative amendment removed this restriction. The Tribunal also noted that section 33 of the Financial Management and Accountability Act 1997 provided that a person was not entitled to a payment unless they made a valid application for the payment. The Tribunal held that there was no scope for backdating the date of effect of the payment of the pension as Ms Curran did not make a valid application for the payment within the relevant period.

The Tribunal affirmed the decision under review, finding that the Repatriation Commission's decision was correct. The Tribunal held that there was no scope for backdating the date of effect of the payment of the pension as Ms Curran did not make a valid application for the payment within the relevant period. The Tribunal also noted that Ms Curran had been in receipt of the pension from the date of lodgement of her application. The Tribunal held that the decision under review was not flawed and affirmed it.

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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