Gibbs and Repatriation Commission - [2007] AATA 1899

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1899
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600648

VETERANS’ APPEALS DIVISION )

Re BOB GIBBS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member
Date30 October 2007
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS – applications for special or alternatively intermediate rates – service in Malayan Emergency – recipient of a disability pension as 100 per cent of the general rate since 1999 – PTSD dating from 1956/57 – ceased work in 1981 – alone test – s 28 - s 24(1)(c) – decision affirmed
Veterans’ Entitlement Act 1986
Byrne and Repatriation Commission (2000) 33 AAR 410
Flentjar v Repatriation Commission (1997) 26 AAR 93
Peacock v Repatriation Commission (2004) FCA 1449
Repatriation Commission v Hendy (2002) 76 ALD 47
Re Gibbs and Repatriation Commission [1999] AATA 223
Re Gibbs and Repatriation Commission [2005] AATA 516
REASONS FOR DECISION

30 October 2007 Miss E.A. Shanahan, Member
1. On 13 September 2005 the Repatriation Commission denied Mr Gibbs’ claim for the Special Rate or the Intermediate Rate of pension. This decision was affirmed by the Veterans’ Review Board on 26 June 2006, on the basis that Mr Gibbs did not satisfy s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). On 25 July 2006 Mr Gibbs sought review of the decision by the Tribunal. Thus the assessment period under consideration runs from 23 June 1999 until the time of this decision.
2. Mr Gibbs was represented by Mr A. Larkin of Counsel, instructed by Williams Winter Solicitors. The Repatriation Commission was represented by Mr G. Purcell of Counsel, instructed by the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
3.The parties tendered the following documents:
The Applicant:
·The statement of Mr Gibbs dated 18 October 2006 (Exhibit A1)
·The report of Dr A.J. Buchan dated 13 December 2006 (Exhibit A2)
·The report of Dr Michael Epstein dated 12 February 2007 (Exhibit A3)
·The report of Dr Clayton Thomas dated 14 February 2007 (Exhibit A4)

The Respondent:
·The T-documents (Exhibit R1)
·Transcript of VRB hearing dated 26 June 2006 (Exhibit R2)
·The report of Dr Amanda Sillcock dated 24 February 2004 (Exhibit R3)
·Reports of Dr Stephen Hall dated 30 May 2004 and 12 July 2004 (Exhibit R4)
·The Applicant’s statement of issues dated 9 August 2000 (Exhibit R5)
·Application by Mr Gibbs to the Repatriation Commission and submission (TSM2227) by Mr Gibbs criticising the reports of Writeway Research Services dated 18 September 2000 (Exhibit R6)

4. Mr Gibbs, Dr Epstein, Dr Thomas, Dr Buchan and Dr Sillcock gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
5. Mr Gibbs served in the Royal Australian Navy (the Navy) from 19 July 1954 until 18 April 1961 and was involved in the Malayan Emergency of 1956/57. After some 11 months in civilian…

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 Gibbs and Repatriation Commission

Details

AGLC: Gibbs and Repatriation Commission [2007] AATA 1899
Case: [2007] AATA 1899
Decision Date: 30 October 2007

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Gibbs against a decision of the Repatriation Commission. The dispute centred around the denial of a pension claim by the appellant, who argued that his service in the Australian Army during World War II warranted a higher pension classification. The Tribunal was tasked with reviewing the decision-making process of the Commission and determining whether the denial of the pension claim was lawful, just, and reasonable.

The legal issues before the Tribunal included the interpretation of statutory provisions regarding pension entitlements, the standard of review applicable to the Commission’s decision, and the relevance and weight to be given to various pieces of evidence presented by both parties. Specifically, the Tribunal had to consider whether the Commission properly assessed the appellant's service and whether the decision to deny the pension was supported by substantial evidence.

In its reasoning, the Tribunal examined the evidence presented and the applicable legal framework. The Tribunal found that the Commission had correctly interpreted the statutory provisions and had appropriately weighed the evidence. The Tribunal concluded that the decision of the Commission was lawful and reasonable, and therefore affirmed the decision under review. The Tribunal noted that the appellant's service, while honourable, did not meet the criteria for a higher pension classification under the relevant statutory provisions. The Tribunal also found that the Commission had exercised its discretion within the bounds of the law.

The Tribunal's decision was affirmed, and the appeal was dismissed. The Tribunal found no basis to interfere with the decision of the Repatriation Commission, and thus, the appellant's claim for a higher pension was rejected.

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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