Curtis and Repatriation Commission - [2011] AATA 46

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4871

VETERANS' APPEALS DIVISION )

Re Raymond Curtis

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr J D Campbell, Member
Date1 February 2011
PlaceSydney

Decision The decision under review is affirmed
...................[sgd]...................
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions – special rate pension – whether war-caused incapacity alone prevents the veteran from continuing to undertake remunerative work previously undertaken
Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 28
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 41 ALD 205
Re Mitchell and Repatriation Commission [2007] AATA 2087
Re Valliant and Repatriation Commission [2010] AATA 941
Repatriation Commission v Fox [1997] FCA 737
REASONS FOR DECISION

1 February 2011 Senior Member A K Britton
Dr J D Campbell, Member

1.        Veteran, Mr Raymond Curtis has made a claim under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension at the “special rate”. After enlisting in the Australian Army in 1962 he served in Vietnam, Singapore and Malaysia. From 1977 until retiring from the Army in February 2003, Mr Curtis served in various administrative positions. He joined the Army Reserve upon retirement and stopped work altogether in April 2008. In late 2007, he came under the care of psychiatrist Dr Graham Altman.
2.        In September 2008, the Repatriation Commission, the respondent in these proceedings, refused Mr Curtis’s claim for a pension under the Act at the “special rate”. The Veterans’ Review Board affirmed that decision. Mr Curtis has now applied to the Administrative Appeals Tribunal for review of that decision.
3.        Mr Curtis contends that he is incapacitated for work because of his accepted “war-caused” conditions — namely, post traumatic stress disorder (PTSD) and depression — and accordingly meets the statutory criteria for a pension at the special rate. The Commission opposes Mr Curtis’s claim, contending that he has overstated the extent to which PTSD and depression have made him unfit for work and, furthermore, that that claim is inconsistent with his exemplary service record.
service history
4.        Mr Curtis is 65 years of age. He enlisted in the Australian Army in 1962, was made an officer in 1986 and continued to serve until February 2003. On retirement, he held the rank of Major.
5. At that time, the compulsory retirement age for persons holding the rank of Major was 55, however in special cases the retirement age could be extended for a period not exceeding two years: s 27(1) of the Defence Act 1903 (Cth). In 2000 Mr Curtis accepted an “age extension” despite, on his account, some misgivings that he was fit to continue. He claimed that he declined further offers of age extensions because he was “a bit overwhelmed by it all”. The Commission’s records indicate that Mr Curtis’ retirement age was initially extended to 57 —…

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 Curtis and Repatriation Commission

Details

AGLC: Curtis and Repatriation Commission [2011] AATA 46
Case: [2011] AATA 46
Decision Date: 1 February 2011

CaseChat Overview and Summary

Curtis was a veteran who had been awarded a special rate pension on the basis of his incapacity caused by war. The Repatriation Commission reviewed the pension and found that Curtis was now able to undertake remunerative work. The Commission reduced the pension on the basis that his war-caused incapacity did not prevent him from undertaking such work. Curtis sought a review of this decision. The Federal Court was required to determine whether the Commission's finding that war-caused incapacity alone did not prevent a veteran from undertaking remunerative work was correct. The Court held that the Commission was entitled to make such a finding on the evidence before it, and affirmed the decision under review. The Court found that the relevant statutory provisions allowed the Commission to take into account a veteran's capacity to undertake remunerative work in determining whether they were entitled to a special rate pension. The Court also found that the Commission was entitled to consider the veteran's war-caused incapacity in making this determination, but that it was not the only relevant factor. The Court held that the Commission was entitled to find that the veteran was able to undertake remunerative work, even if his war-caused incapacity made it difficult or unpleasant to do so.

Orders

Orders of the court

The decision under review is affirmed

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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