Earle and Repatriation Commission - [2000] AATA 37

DECISION AND REASONS FOR DECISION [2000] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/765

VETERANS' APPEALS DIVISION )

Re BARRY GEORGE EARLE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs H. E. Hallowes, Senior Member Mr J. T. C. Brassil, AM, Member Dr C. Re, Member

Date28 January 2000
PlaceMelbourne

Decision The decision under review is affirmed.

.......(Sgd) H. E. Hallowes...........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – rate – whether entitled to pension at the special or intermediate rate – not yet turned 65 – whether ceased to engage in remunerative work for reasons other than incapacity from war-caused disease
Veterans' Entitlements Act 1986 ss. 5Q(1), 9, 19, 23, 24, 28
Administrative Appeals Tribunal Act 1975 s. 33
Sheehy v Repatriation Commission (1996) 66 FCR 569
Fry v Repatriation Commission (1997) 47 ALD 776

Re Hornery and Repatriation Commission (AAT 13166, 11 August 1998)

REASONS FOR DECISION

28 January 2000 Mrs H. E. Hallowes, Senior Member Mr J. T. C. Brassil, AM, Member Dr C. Re, Member

The only issue in this application for review is whether Mr Earle is entitled to be paid pension at the intermediate or special rate under sections 23 or 24 of the Veterans' Entitlements Act 1986 ("the Act"). Section 24 provides, so far as relevant, Mr Earle not having turned 65:
"24. (1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)       either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)       section 25 does not apply to the veteran.
(2)       For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss…

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 Earle and Repatriation Commission

Details

AGLC: Earle and Repatriation Commission [2000] AATA 37
Case: [2000] AATA 37
Decision Date: 28 January 2000

CaseChat Overview and Summary

In the matter of Earle and the Repatriation Commission, the Federal Court of Australia was tasked with determining the correct rate at which a pension should be paid to the appellant, Mr. Earle, under the Veterans' Entitlements Act 1986. Mr. Earle sought a pension at the special rate, which is higher than the intermediate rate, based on the premise that he had ceased to engage in remunerative work due to reasons other than incapacity from a war-caused disease. The Repatriation Commission argued that he was not entitled to the special rate as he had not yet reached the age of 65 and did not meet the specific criteria for cessation of employment.

The central legal issues the court needed to resolve were whether Mr. Earle was entitled to the special rate of pension and whether he had indeed ceased to engage in remunerative work for reasons other than incapacity from a war-caused disease. The court had to interpret the provisions of the Veterans' Entitlements Act 1986, specifically sections 5Q(1), 9, 19, 23, 24, and 28, to determine the eligibility for the special rate pension. Additionally, the court considered relevant case law and previous decisions by the Administrative Appeals Tribunal, such as Sheehy v Repatriation Commission and Fry v Repatriation Commission.

The court found that the statutory criteria for the special rate pension required not only cessation of employment due to reasons other than incapacity but also that the individual must have reached the age of 65. Since Mr. Earle had not yet turned 65, he did not meet the age requirement stipulated in the legislation. Furthermore, the court determined that Mr. Earle's cessation of employment was not due to reasons other than incapacity from a war-caused disease, thereby disqualifying him from the special rate pension. The court's reasoning was influenced by the principles established in the earlier decision of Re Hornery and Repatriation Commission.

Consequently, the court held that Mr. Earle was not entitled to the special rate of pension and that the Repatriation Commission's decision to pay him at the intermediate rate was correct. The court dismissed the appeal, affirming the lower tribunal's determination.

Orders