GORDON WHITE and REPATRIATION COMMISSION - [2010] AATA 469

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 469
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5328

VETERANS' APPEALS DIVISION )

Re GORDON WHITE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Date25 June 2010
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Member

CATCHWORDS
VETERAN’S AFFAIRS – Pensions and benefits – Eligibility for special rate pension – Decision affirmed.
Veterans’ Entitlement Act 1986 (Cth) ss 19, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Hendy (2002) 76 ALD 47
Re Peter Banovich v the Repatriation Commission [1986] FCA 397
REASONS FOR DECISION

25 June 2010 Dr M Denovan, Member

INTRODUCTION
1.      Mr Gordon White, the applicant, served in the Australian Regular Army from 1 March 1962 to 29 February 1968. The respondent has accepted Mr White’s conditions of lumbar spondylosis, erectile dysfunction, post traumatic stress disorder, tinnitus, alcohol dependence/abuse, and recurrent mycotic infections of ear channels, perianal region and feet as being conditions arising from his war service.
2.      Mr White is currently in receipt of 100 percent of the general rate of disability support pension, and he now seeks to be paid an earnings related pension referred to as “special rate” in the Veterans’ Entitlement Act 1986 (Cth) (the Act).
ISSUES AND THE LAW
3.      Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed by both parties that all but that specified in s 24(1)(c) are satisfied. The issue is therefore whether Mr White satisfies s 24(1)(c) of the Act. That section provides:
(1)       This section applies to a veteran if:
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity...

4. Section 24(2)(a) provides that for the purposes of the second limb of s24(1)(c), the so-called loss test, a veteran shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; ...

5. Section 24(2)(b) operates in certain circumstances to ameliorate the consequences of failing to satisfy the first limb of s 24(1)(c), the so-called “alone” test.
6. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 Branson J, with whom Beaumont and Merkel JJ agreed, described the issues raised by s 24(1)(c) as being:

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 GORDON WHITE and REPATRIATION COMMISSION

Details

AGLC: GORDON WHITE and REPATRIATION COMMISSION [2010] AATA 469
Case: [2010] AATA 469
Decision Date: 25 June 2010

CaseChat Overview and Summary

Gordon White, a veteran, sought review of a decision by the Repatriation Commission regarding his eligibility for a special rate pension under the Veterans' Entitlement Act 1986. The Federal Court of Australia was tasked with determining whether the Commission's decision was legally sound, particularly in light of relevant statutory provisions and precedent case law.

The legal issues centred on the interpretation and application of sections 19 and 24 of the Veterans' Entitlement Act 1986, which outline the criteria for determining eligibility for a special rate pension. The court had to consider whether the Commission properly applied these statutory provisions and whether its decision was supported by the evidence presented. Additionally, the court examined relevant case law, including Flentjar v Repatriation Commission, Repatriation Commission v Braund, Repatriation Commission v Hendy, and Re Peter Banovich v the Repatriation Commission, to ensure consistency with established legal principles.

In its reasoning, the court found that the Repatriation Commission had correctly applied the statutory provisions and the evidence provided. It was determined that the Commission's decision was consistent with the relevant case law and that the statutory criteria for a special rate pension had been properly assessed. The court affirmed the Commission's decision, holding that Mr. White was not eligible for the special rate pension. The reasoning was based on a thorough analysis of the statutory language, the evidence presented, and the applicable legal precedents.

The court's decision was final, with the Tribunal affirming the Repatriation Commission's determination that Gordon White was not eligible for the special rate pension under the Veterans' Entitlement Act 1986.

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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