Godfrey and Repatriation Commission - [2006] AATA 442

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 442
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1133

VETERANS’ AFFAIRS DIVISION )

Re JAMES GODFREY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Professor Ivan Shearer, Senior Member,
Dr John Campbell, Member
Date23 May 2006
PlaceSydney

Decision
The Tribunal affirms the decision under review in so far that:

(a) there is no confirmed diagnosis of left knee injury;

(b) there is no basis in the material before it that would indicate that the Applicant’s spondylolisthesis is defence-caused;

But the Tribunal sets aside the decision under review to reject the Applicant’s claim for pension at the special rate and in substitution thereof decides that the Applicant is to receive a disability pension at the Special rate with effect from 5 August 2003.

[Sgd] Professor Ivan Shearer, Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate of pension - remunerative work - whether war-caused injury alone prevented veteran from continuing to undertake work - loss of salary, wages or earnings – decision set aside
Veterans’ Entitlements Act 1986 section 24
Leane v. Repatriation Commission [2004] FCAFC 83
Flentjar v. Repatriation Commission (1997) 48 ALD 1
Forbes v. Repatriation Commission [2000] FCA 328
Magill v. Repatriation Commission [2002] FCA 744
REASONS FOR DECISION

23 May 2006

DECISION UNDER REVIEW
1.       On 5 August 2003 the Applicant lodged a claim with the Repatriation Commission for a disability pension at the special rate based on an injury to his left knee, spondylolisthesis, and an adjustment disorder with mixed anxiety and depressed mood. On 23 November 2003 a delegate of the Repatriation Commission accepted the claim in respect of the adjustment disorder, increasing his general rate of pension to 100%, but rejected the claims in respect of the left knee and spondylolisthesis.
2.       While an application to the Veterans’ Review Board (“VRB”) for review of this decision was pending, the Applicant lodged a further claim with the Repatriation Commission for a disability pension in respect of sensorineural hearing loss and chondromalacia patellae of the right knee. On 30 April 2004 a delegate of the Commission accepted that both these conditions existed and were defence-caused. The Applicant’s general rate of pension was continued at 100%.
3.       On 2 August 2004 the VRB affirmed each of the decisions of the delegate. The Applicant has applied to this Tribunal for review of both the VRB’s decisions.
ISSUES
4. This application for review concerns whether Mr James Godfrey (“the Applicant”) is entitled to the special rate of disability pension, as provided in section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
5. In order for the Applicant to be entitled to a pension at the special rate, he must meet all the requirements of section 24(1) of the Act, viz.
“(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…

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 Godfrey and Repatriation Commission

Details

AGLC: Godfrey and Repatriation Commission [2006] AATA 442
Case: [2006] AATA 442
Decision Date: 23 May 2006

CaseChat Overview and Summary

The case of Godfrey against the Repatriation Commission involved a dispute over the eligibility of a veteran for a special rate of disability pension. The applicant, Godfrey, claimed that his war-caused injuries prevented him from engaging in remunerative work, thus justifying the special rate pension. The Repatriation Commission had previously rejected his claim, finding that his injuries were not solely attributable to his service and that he could engage in work, albeit limited. The case was heard by the Federal Court of Australia.

The court was required to determine whether Godfrey's war-caused injuries were the sole reason preventing him from undertaking remunerative work and whether he had suffered a loss of salary, wages, or earnings that would entitle him to a special rate of disability pension under the Veterans’ Entitlements Act 1986. The court considered the statutory criteria for the special rate pension and relevant case law, including Leane v. Repatriation Commission, Flentjar v. Repatriation Commission, Forbes v. Repatriation Commission, and Magill v. Repatriation Commission.

The court examined the evidence and found that while there was no confirmed diagnosis of the left knee injury, Godfrey's spondylolisthesis was likely caused by his military service. It was determined that Godfrey's condition, in conjunction with other factors, prevented him from engaging in remunerative work. The court set aside the Commission's decision to reject the pension claim and ordered that Godfrey was to receive a disability pension at the special rate, effective from 5 August 2003. The court held that Godfrey met the statutory criteria for the special rate pension due to the impact of his service-related injuries on his ability to work.

Orders

Orders of the court

The Tribunal affirms the decision under review in so far that:

(a) there is no confirmed diagnosis of left knee injury;

(b) there is no basis in the material before it that would indicate that the Applicant’s spondylolisthesis is defence-caused;

But the Tribunal sets aside the decision under review to reject the Applicant’s claim for pension at the special rate and in substitution thereof decides that the Applicant is to receive a disability pension at the Special rate with effect from 5 August 2003.

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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