Forbes and Repatriation Commission - [2004] AATA 600

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/213

VETERANS’ APPEALS DIVISION )

Re RONALD McEWAN FORBES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION
Tribunal       Associate Professor S D Hotop, Deputy President
  Dr D Weerasooriya, Member
Date               11 June 2004
PlacePerth

Decision
The Tribunal sets aside the decision of the Veterans’ Review Board dated 21 May 2003 and, in substitution therefor, decides that the special rate of pension is payable to the applicant pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 11 October 1999.

..............................................
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – special rate of pension – applicant served in Royal Australian Navy between 1951 and 1972 – applicant operated tourist coach business and worked as coach driver from 1986 to 1994 – applicant closed business and ceased work as coach driver in February 1994 – in February 1994 applicant claimed service pension by reason of ischaemic heart disease, diabetes, hypertension – in December 1994 applicant claimed disability pension in respect of back pain, heart and artery closure – in September 1997 applicant’s lumbar spondylosis determined to be war-caused – applicant also suffered from cervical spondylosis, thoracic spondylosis and post traumatic stress disorder – in March 2002 applicant’s thoracic spondylosis, cervical spondylosis and cervicogenic headaches determined to be war-caused – pension paid at 100% of general rate with effect from 11 October 1999 – applicant totally and permanently incapacitated from war-caused diseases – applicant, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work – applicant’s non-war-caused conditions made no contribution to his being prevented from continuing to undertake remunerative work – applicant thereby suffering loss of earnings that he would not otherwise be suffering – applicant eligible for special rate of pension – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) s 19, s 24(1) and s (24(2)
Banovich v Repatriation Commission (1986) 6 AAR 113
Forbes v Repatriation Commission (2000) 101 FCR 150
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION

11 June 2004 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, Member

Introduction
1. Ronald McEwan Forbes (“the applicant”) has applied to the Tribunal for review of a decision of the Repatriation Commission (“the respondent”) dated 1 May 2002, as affirmed by the Veterans’ Review Board (“VRB”) on 21 May 2003. That decision was that disability pension was payable to the applicant under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) at the rate of 100% of the “general rate” (within the meaning of s22 of the VE Act), with effect from 11 October 1999.
2. At the hearing the applicant was represented by Mr H Christie, solicitor, and the respondent was represented by Mr C Ponnuthurai, an advocate employed by the Department of Veterans’ Affairs…

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 Forbes and Repatriation Commission

Details

AGLC: Forbes and Repatriation Commission [2004] AATA 600
Case: [2004] AATA 600
Decision Date: 11 June 2004

CaseChat Overview and Summary

In the matter of Forbes and Repatriation Commission, the court was called upon to determine whether the applicant was eligible for a special rate of pension. The applicant, who served in the Royal Australian Navy between 1951 and 1972, operated a tourist coach business and worked as a coach driver from 1986 to 1994. He closed his business and ceased working as a coach driver in February 1994, subsequently claiming service and disability pensions due to various health conditions. The Veterans’ Review Board had previously determined that the applicant was not entitled to the special rate of pension, a decision which the applicant sought to challenge.

The primary legal issue before the court was whether the applicant was entitled to the special rate of pension under the Veterans’ Entitlements Act 1986 (Cth). Specifically, the court needed to decide if the applicant's war-caused diseases alone rendered him totally and permanently incapacitated, thereby preventing him from engaging in remunerative work, and if his non-war-caused conditions contributed to this incapacity. The court was required to interpret relevant sections of the Act, particularly sections 19, 24(1), and 24(2), in light of previous cases such as Banovich v Repatriation Commission, Forbes v Repatriation Commission, Leane v Repatriation Commission, Magill v Repatriation Commission, and Repatriation Commission v Hendy.

The court found that the applicant's war-caused conditions, including lumbar, thoracic, and cervical spondylosis, as well as post-traumatic stress disorder, rendered him totally and permanently incapacitated. These conditions alone prevented him from undertaking remunerative work, and his non-war-caused conditions did not contribute to this incapacity. The court held that the applicant was therefore eligible for the special rate of pension as he suffered a loss of earnings he would not otherwise have suffered due to his war-caused diseases. The decision of the Veterans’ Review Board was set aside, and the court ordered that the special rate of pension be payable to the applicant from 11 October 1999.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans’ Review Board dated 21 May 2003 and, in substitution therefor, decides that the special rate of pension is payable to the applicant pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 11 October 1999.

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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VETERANS’ APPEALS DIVISION		)
Re		RONALD McEWAN FORBES