VETERANS’ AFFAIRS – disability pension – special rate – whether Tribunal in error of law in concluding the veteran was by reason of incapacity from war-caused condition “alone” prevented from continuing to undertake remunerative work – whether Tribunal in error of law in understanding the word “alone” – whether Tribunal in error of law in not regarding finding of causative effect of war-caused condition as conclusive – whether Tribunal in error of law in combining consideration of war-caused condition and non war-caused condition.
Flentjar v Repatriation Commission (1998) 48 ALD 1, applied Banovich v Repatriation Commission (1986) 69 ALR 395, referred to Starcevich v Repatriation Commission (1987) 18 FCR 221, referred to Repatriation Commissionv Smith (1987) 15 FCR 327, considered Cavell v Repatriation Commission (1988) 9 AAR 534, applied Re Easton and Repatriation Commission (1987) 6 AAR 558, applied Repatriation Commissionv Strickland (1990) 22 ALD 10, distinguished Moorcroft v Repatriation Commission [1999] FCA 862, not followed Turnbull v Repatriation Commission (Merkel J, Federal Court of Australia, 21 May 1997, unreported), followed Jackman v Repatriation Commission (Tamberlin J, Federal Court of Australia, 30 June 1997, unreported), followed
RONALD McEWAN FORBES v REPATRIATION COMMISSION W100 OF 1999
2.The applicant pay the respondent’s taxed costs of and incidental to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W100 OF 1999
BETWEEN:
RONALD McEWAN FORBES Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
R D NICHOLSON J
DATE:
24 MARCH 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") dated 6 August 1999. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that the appeal must be on a question of law.
In its decision, the Tribunal affirmed the decision of the Veterans’ Review Board (“the Tribunal”) made on 15 December 1998. The decision of the Board was to set aside a decision of the Repatriation Commission dated 11 June 1998 and substitute a decision that the applicant, a veteran, be granted a pension at 90 per cent of the general rate operative from and including 13 July 1997. The effect of the Repatriation decision had been to assess the applicant's pension at 70 per cent of the General Rate from 20 May 1988.
Before the Tribunal, the applicant…
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 v Repatriation Commission
Sign in free to access the full text
Details
AGLC
Forbes v Repatriation Commission [2000] FCA 328
Case
[2000] FCA 328
Decision Date
CaseChat Overview and Summary
The matter before the court involved an appeal by the applicant, Forbes, against a decision made by the Administrative Appeals Tribunal (AAT). The dispute centred on the interpretation and application of section 24(1)(c) of the relevant legislation, specifically regarding the causation of certain conditions and their impact on the applicant's claim. The Tribunal had found that while the applicant's thoracic spondylosis was not causative alone, it needed to be considered in combination with other conditions to assess the overall preventative effect on the applicant's ability to work. The applicant argued that a non-war related condition could not be considered causative if a war-related condition was found to be causative. The court had to determine whether the Tribunal's approach to causation was correct under the statute.
The primary legal issue the court needed to address was the interpretation of section 24(1)(c) and whether the Tribunal had correctly applied this section in its decision. Specifically, the court needed to consider whether the Tribunal properly assessed the combined effect of both war-caused and non-war caused conditions when determining the preventative effect on the applicant's ability to work. The applicant argued that the non-war related condition should not be considered if a war-related condition was found to be causative. The court had to decide whether the Tribunal's interpretation of the statute was consistent with the statutory language and whether it had properly exercised its discretion under section 24(1)(c).
The court found that the Tribunal's approach was consistent with the statutory language and requirements. The court noted that the Tribunal had not precluded the consideration of the non-war related condition but had instead assessed its combined effect with the war-related condition. The court held that the Tribunal had correctly applied section 24(1)(c) by considering the overall impact on the applicant's ability to work, rather than focusing solely on whether either condition alone was causative. The court concluded that the Tribunal's decision was not in error and that the applicant's appeal should be dismissed. The court emphasised that the Tribunal's approach was reasonable and aligned with the statutory objectives.
The court dismissed the appeal and ordered that the applicant pay the respondent's taxed costs of and incidental to the application. This decision affirmed the Tribunal's interpretation and application of section 24(1)(c), highlighting the importance of considering the combined effect of multiple conditions when assessing preventative effects under the statute.
Orders
Orders of the court
1. The appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.
2. The applicant pay the respondent’s taxed costs of and incidental to the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
For the applicant it was also submitted that the application of s 24(1)(c) comes down in the end to an issue of causation. It is said where there is a finding in terms of par 13 that should be considered as the causative factor, a non war-related condition cannot also be causative. In my view this submission overlooks the requirements of the wording of the first limb of the paragraph. Furthermore, the finding in relation to the thoracic spondylosis of the applicant was not that it was non causative but rather that “alone” it was not causative of the preventative effect. That finding in par 15 did not preclude the Tribunal from proceeding as required by s 24(1)(c) to consider with an eye to reality and common sense the combined effect of the war-caused and non war-caused conditions. That is a different question to whether the non war-caused condition “alone” was causative of the requisite preventative effect.Conclusion For these reasons I consider that the application by way of appeal should be dismissed.