Giesen v Repatriation Commission

Case [2005] FCA 846

FEDERAL COURT OF AUSTRALIA

Giesen v Repatriation Commission [2005] FCA 846

VETERANS’ ENTITLEMENTS – pension – rate – whether special rate appropriate – test to be applied – whether ‘alone’ test or ‘substantial cause’ test – whether veteran who has engaged in remunerative work, but has ceased, can rely on latter test – whether ameliorating provision – whether tribunal took into account irrelevant considerations, asked itself correct question, dealt with correct issues, correctly applied statutory provisions and gave adequate reasons

Veterans’ Entitlements Act 1986 (Cth) ss 24(1)(c), 24(2)(b), 13(1), 14, 15, 19, 22, 23, 119, 120
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Magill v Repatriation Commission [2002] FCA 744 cited
Forbes v Repatriation Commission [2000] FCA 328 (2000) 101 FCR 50 cited
Rendell v Repatriation Commission [2001] FCA 1881 cited
Peacock v Repatriation Commission [2004] FCA 1449 cited
Leane v Repatriation Commission [2004] FCAFC 83 cited
Hendy v Repatriation Commission [2002] FCA 602 (2002) 72 ALD 112 cited
Smith v Repatriation Commission (1987) 74 ALR 537 cited

LEO GIESEN v REPATRIATION COMMISSION
V 474 of 2004

GRAY J
24 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 474 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

LEO GIESEN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY

DATE OF ORDER:

24 JUNE 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 474 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

LEO GIESEN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY

DATE:

24 JUNE 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

  1. This appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) raises questions of the correctness of the Tribunal’s approach to a claim by the applicant for pension at the special rate, pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), the appeal is limited to questions of law.

  2. The applicant was born on 8 June 1941.  His military service, in the Australian Army, was from 12 December 1966 to 21 July 1970.  It included operational service in Vietnam from 24 October 1967 until 24 November 1967. 

  3. As a consequence of the acceptance by the respondent, the Repatriation Commission (‘the Commission’), that the applicant suffers from a number of war-caused disabilities, he has been in receipt of a pension pursuant to the VE Act for some time. His disabilities accepted by the Commission as war-caused are generalised anxiety disorder, psychoactive substance abuse or dependence, chronic solar skin damage, colorectal adenomatous polyp, gastro-oesophageal reflux disease, hypertension, irritable bowel syndrome, impotence, neurodermatitis and cerebral ischaemia. The applicant has also claimed, but the Commission has not accepted, that…

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Details
AGLC
Giesen v Repatriation Commission [2005] FCA 846
Case
[2005] FCA 846
Decision Date

CaseChat Overview and Summary

Giesen v Repatriation Commission involved a dispute where the appellant, Giesen, challenged a decision made by the Tribunal regarding his eligibility for certain benefits under the Veterans’ Entitlements Act (VE Act). The case was heard by the Federal Court of Australia. Giesen argued that the Tribunal had failed to adequately set out its reasons for its decision, thereby breaching the statutory obligation to provide a clear rationale. Specifically, Giesen contended that the Tribunal did not explicitly find that he had been genuinely seeking remunerative work or would continue to do so, which are necessary antecedents to applying the ‘substantial cause’ test for his inability to obtain such work.

The court had to determine whether the Tribunal’s reasons for its decision were sufficient to meet the statutory requirement for transparency and clarity. This involved examining whether the Tribunal’s findings and reasoning adequately addressed the statutory criteria and whether any failure to explicitly state certain findings constituted a material error. The court also needed to consider whether any error in the Tribunal's reasoning was favourable or detrimental to Giesen and whether it warranted setting aside the Tribunal's decision.

Upon review, the court found that although the Tribunal did not make explicit findings on the required antecedent issues, it implicitly assumed these elements and proceeded to apply the ‘substantial cause’ test. The court concluded that the Tribunal's reasons, although brief, were sufficient to demonstrate the reasoning process and the application of the statutory test. The court determined that any omission in explicitly stating the antecedent findings operated in Giesen's favour and did not justify setting aside the decision. Consequently, the appeal was dismissed, and the Tribunal's decision was upheld. The court further ruled that Giesen should bear the costs of the appeal.

ORDERS:
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
Although the Tribunal’s reasons, so far as they set out its process of reasoning, are very brief, they are not so brief as to cause the Tribunal to have failed to comply with its statutory obligation to set out its reasons. It is true that the Tribunal did not make a specific finding, in terms of s 24(2)(b) of the VE Act, that the applicant had been genuinely seeking to engage in remunerative work, or that he would be continuing so to seek. The nearest the Tribunal got was its finding that the applicant was highly motivated to work. Rather, the Tribunal appears to have assumed these elements, and to have gone directly to the application of the ‘substantial cause’ test to the question of the inability of the applicant to obtain remunerative work. Although it might have been an error on the part of the Tribunal to fail to make the findings on the issues that are antecedent to the application of this test, the error operated in favour of the applicant, and would not be a reason for setting aside the Tribunal’s decision. The Tribunal’s reasons show its reasoning on the application of the ‘substantial cause’ test.Conclusion For these reasons, the appeal must fail. It must be dismissed. No reason was advanced, and none appears, for not applying the usual rule, that costs follow the event. Accordingly, it should be ordered that the applicant pay the Commission’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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