Godfrey and Repatriation Commission - [2003] AATA 1313

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1313
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/796

VETERANS' APPEALS DIVISION

)

Re DEAN CYRIL GODFREY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date22 December 2003
PlaceBrisbane

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Godfrey is entitled to pension payable at the Special Rate with effect from 31 October 2001.
...................(Sgd)...........................
EK Christie
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - disability pension - whether entitled to special rate - capacity to undertake remunerative work
Veterans' Entitlements Act 1986, ss 24(1)(b), 28(a), 28(b), 28(c)
Chambers v Repatriation Commission (1995) 12 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31
Re Starcevich and Repatriation commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
REASONS FOR DECISION

22 December 2003 Dr EK Christie, Member

1.      This is an application by Dean Godfrey to review a decision of the Veterans’ Review Board (the “VRB”) made on 19 July 2002 which increased pension to the temporary Special Rate, effective from 16 February 2001 and reduced pension to 100% of the General Rate, effective from 7 March 2002.
2.      At the hearing Dean Godfrey was represented by Mr J Griffiths of Counsel. Mr M Smith, a Departmental Advocate, represented the Repatriation Commission.
3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
4.      Mr Godfrey was born on 12 February 1952. Mr Godfrey served in the Regular Army of Australia for 20 years, from May 1969 to July 1989. He served in Vietnam in 1971. He was an infantry sergeant.
5.      Mr Godfrey has the following service-related disabilities:
(a)      Non-Hodgkin’s Lymphoma (02/07/1984)
(b)      Sensorineural hearing loss (22/09/1989)
(c)       Impotence (23/10/2001)
(d)      Peripheral Neuropathy (23/10/2001)

6.      The following disabilities have been found to be non-service related disabilities:
(a)      Hiatus Hernia (22/09/1989)
(b)      Gastro-Oesophageal Reflux

Issues to be Decided
7. The only issue in dispute was whether Mr Godfrey was entitled to be paid pension at the Special Rate.
8. It was common ground between the parties that the only statutory question for the Tribunal to decide, in this regard, was whether subsection 24(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”) was satisfied. That is, whether Mr Godfrey’s service-related disabilities rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Examination of the Factual Evidence
Evidence of Dean Godfrey
9. Mr Godfrey said that he was diagnosed with Non-Hodgkin’s Lymphoma about 5 years before leaving the Army. Following radiotherapy, he went into remission in late 1983. He said that the cancer re-emerged in 2000 and, in retrospect, that he had endured stomach pain in the preceding 12 months.
10.…

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 [2003] AATA 1313
Case: [2003] AATA 1313
Decision Date: 22 December 2003

CaseChat Overview and Summary

The case of Godfrey and Repatriation Commission involved a dispute between Mr Godfrey and the Repatriation Commission regarding his entitlement to a special rate pension under the Veterans' Entitlements Act 1986. The central issue was whether Mr Godfrey was capable of undertaking remunerative work, which would affect his eligibility for the special rate pension. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was the interpretation and application of the relevant sections of the Veterans' Entitlements Act 1986, specifically sections 24(1)(b), 28(a), 28(b), and 28(c). The court needed to determine whether Mr Godfrey's disabilities rendered him incapable of undertaking remunerative work, thus qualifying him for the special rate pension. This required an examination of the statutory language and relevant case law, including Chambers v Repatriation Commission, Re Bos, Re Starcevich, Re Doyle, and Jackman v Repatriation Commission.

The court considered the statutory provisions and previous judicial interpretations of the relevant sections. It examined the meaning of "remunerative work" and whether Mr Godfrey's disabilities met the criteria for incapacity as defined by the Act. The court also looked at the evidence presented regarding Mr Godfrey's medical condition and his capacity to work. Ultimately, the court found that Mr Godfrey's disabilities did render him incapable of undertaking remunerative work. Consequently, the decision under review was set aside, and Mr Godfrey was found to be entitled to the pension payable at the Special Rate with effect from 31 October 2001.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Godfrey is entitled to pension payable at the Special Rate with effect from 31 October 2001.

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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