Deloryn and Repatriation Commission - [2006] AATA 622

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 622
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/543

VETERANS' APPEALS DIVISION )

Re GERARD DELORYN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date14 July 2006
PlaceBrisbane (Heard in Townsville)

Decision
The Tribunal affirms the decision under review.

....................Signed..................
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate of pension – incapacity from war-caused injury ‘alone’ did not prevent the veteran from undertaking remunerative work – incapacity not substantial cause of inability to obtain remunerative work – decision under review affirmed
Veterans’ Entitlements Act 1986 s 24(1)(c), s 24(2)(b)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Magill v Repatriation Commission [2002] FCA 744
Hall v Repatriation Commission (1994) 33 ALD 454
Conway v Repatriation Commission (2003) 37 AAR 486
REASONS FOR DECISION

14 July 2006 Deputy President P E Hack SC

Introduction
1.Mr Gerard Deloryn served in the Australian Regular Army between 1964 and 1977. He saw operational service in South Vietnam for a period of about 13 months.
2.On 20 July 2000, when he was aged 59 years, Mr Deloryn applied for a disability pension for incapacity from a variety of war-caused conditions. As a result of earlier hearings the only the issue that remains to be decided is whether Mr Deloryn is entitled to a pension at the special rate, that is, whether he was totally and permanently incapacitated.

Issues
3.Having regard to the various concessions that have been made prior to the hearing two issues fall to be determined. Stated shortly, they are,
· whether Mr Deloryn’s incapacity from war caused ailments alone prevented him from working (the s 24(1)(c) issue) and
· whether the ameliorating provision of s 24(2)(b) apply.

Background
4.Mr Deloryn was born in 1941. For about three years prior to him joining the army in April 1964 he worked as a cook, principally a pastry cook and baker. He appears to have been similarly engaged during his service with the army which concluded in September 1977.
5.Mr Deloryn’s approximate employment history thereafter seems to be,
·   1977 to 1981, process worker at Queensland Nickel;
·   1981-1991, youth worker at Cleveland Youth Centre;
·   1991-1994, taxi driving;
·   1995 (to July), maintenance worker at Magnetic Island Ferries;
·   July to December 1995, taxi driving.
6.Between December 1995 and July 1997 Mr Deloryn was mostly unemployed. He says that during this time he was looking for work. I will return subsequently to examine this aspect of the matter in more detail.
7.Mr Deloryn applied for a service pension in January 1997. That was granted in approximately July 1997 and, according to Mr Deloryn, he,
Effectively stopped applying for positions at about that time because I felt it was no use applying because of the way I felt…

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 Deloryn and Repatriation Commission

Details

AGLC: Deloryn and Repatriation Commission [2006] AATA 622
Case: [2006] AATA 622
Decision Date: 14 July 2006

CaseChat Overview and Summary

Deloryn contested the Repatriation Commission's decision to reduce his disability pension, arguing that his war-caused injury rendered him incapable of remunerative work, thereby entitling him to a special rate pension. The dispute was resolved in the Administrative Appeals Tribunal, where the Tribunal had to determine whether Deloryn's incapacity stemmed solely from his war-caused injury and if this incapacity was the substantial cause of his inability to obtain remunerative employment.

The central legal issues involved interpreting the relevant sections of the Veterans' Entitlements Act 1986, specifically sections 24(1)(c) and 24(2)(b), to ascertain whether Deloryn's incapacity alone prevented him from engaging in remunerative work. The Tribunal examined previous cases such as Flentjar v Repatriation Commission and Repatriation Commission v Hendy to understand how the courts had applied similar provisions in analogous circumstances.

The Tribunal concluded that Deloryn's incapacity did not solely stem from his war-caused injury and was not the substantial cause of his inability to undertake remunerative work. It held that other factors contributed to his employment status, thereby affirming the Commission's decision to reduce his pension. The Tribunal relied on established case law to support its findings, ensuring consistency with the statutory framework and prior judicial interpretations.

The Tribunal's decision was unequivocal in affirming the Repatriation Commission's assessment, leading to the dismissal of Deloryn's appeal. The orders mandated that the Tribunal's decision be upheld, and Deloryn's pension would remain at the level determined by the 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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