VETERANS’ AFFAIRS – disability pension – special rate – whether veteran over 65 years of age is prevented from continuing to undertake the remunerative work he was last undertaking – whether tribunal required only to address questions raised by “the case” put by an applicant - whether the tribunal addressed the questions required to be addressed by s 24(2A)(d)
JUDGES: MERKEL, GOLDBERG AND WEINBERG JJ DATE: 23 NOVEMBER 1999 PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 492 of 1999
BETWEEN:
BRIAN WILLIAM GRANT Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGES:
MERKEL, GOLDBERG AND WEINBERG JJ
DATE OF ORDER:
23 NOVEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the primary judge made on 4 August 1999 be set aside and in lieu thereof order that:
(a)the decision of the Administrative Appeals Tribunal made 30 April 1998 be set aside;
(b)the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law;
(c)the respondent pay the taxed costs of the appellant of and incidental to the appeals to the primary judge and to the Full Court save for the costs of and incidental to the hearing before the primary Judge.
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 492 of 1999
BETWEEN:
BRIAN WILLIAM GRANT Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGES:
MERKEL, GOLDBERG AND WEINBERG JJ
DATE:
23 NOVEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
Introduction
The appellant appeals to the Court from the decision of a Judge of the Court whereby his Honour dismissed an appeal from the decision of the Administrative Appeals Tribunal (“the AAT”) that the appellant was not entitled to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
The appeal concerns the circumstances in which a veteran, who is over the age of 65 and is eligible to be paid a pension under the Act, is entitled to receive a pension at the special rate under s 24 of the Act. The appellant had turned 65 before he lodged his claim for his pension under the Act on 27 February 1996. In order to be eligible for a pension at the special rate the requirements of s 24(2A) of…
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.
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Details
AGLC
Grant v Repatriation Commission [1999] FCA 1629
Case
[1999] FCA 1629
Decision Date
CaseChat Overview and Summary
The case of Grant v Repatriation Commission involved a veteran who had served in the Australian army during World War II and was claiming benefits under the relevant Act. The primary issue was whether the veteran, who had transitioned to sheep farming after his service, was entitled to benefits under the Act due to his war-related disabilities. The Administrative Appeals Tribunal (AAT) had previously determined that the veteran's cessation of work was not solely due to his war-caused incapacity, but also due to the economic slump in the wool industry.
The legal issues before the court were twofold: first, whether the AAT correctly determined that the veteran's cessation of work was influenced by factors other than his war-caused incapacity; and second, whether the AAT properly assessed if the veteran's incapacity alone prevented him from continuing his last paid work during the assessment period. The court had to determine if the AAT's decision was legally sound and if it correctly applied the relevant provisions of the Act.
In its decision, the court held that the AAT did not adequately address whether the veteran's war-caused incapacity alone prevented him from continuing to undertake his last paid work. The court found that the AAT's focus on the combined factors leading to the cessation of work was insufficient and did not fully consider the statutory requirements. The court further noted that the AAT did not explicitly determine if the veteran's incapacity alone met the criteria for entitlement under the Act. Consequently, the court allowed the appeal, set aside the AAT's decision, and remitted the matter back to the AAT for redetermination in accordance with the law. The court also ordered the respondent to pay the appellant's costs, excluding those related to the primary judge's hearing.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders of the primary judge made on 4 August 1999 be set aside and in lieu thereof order that:
(a) the decision of the Administrative Appeals Tribunal made 30 April 1998 be set aside;
(b) the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law;
(c) the respondent pay the taxed costs of the appellant of and incidental to the appeals to the primary judge and to the Full Court save for the costs of and incidental to the hearing before the primary Judge.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
A veteran who has satisfied the requirements of s 24(2A)(d) must also satisfy the criterion in s 24(2A)(e) that, because the veteran was so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her account, that he or she would not be suffering if he or she were free from the incapacity.The AAT decision The AAT accepted that the appellant’s service in the Australian army during World War II constituted “operational service” for the purposes of the Act and that he suffered from a number of service related disabilities which interfered significantly with his ability to work effectively. It was not in dispute that from about 1976, after the appellant purchased a sheep farming property, the remunerative work engaged in by him was that of a sheep farmer. As explained above it is not relevant to s 24(2A)(d) that he was self employed. Over time the appellant found it increasingly difficult to carry out the physical labour required in running the sheep farm and, in 1986, his son returned to the farm to assist him. The appellant stated that in 1993 he had become so debilitated that he had to give up farming altogether. Between 1986 and 1993 the appellant said he had been able to supervise the operation of the farm but his inability to perform physical work meant that he was obliged to employ labour which resulted in the farm no longer being economically viable. The main area of contest before the AAT appears to have related to whether the appellant’s cessation of work on his farm, as early as 1986 or as late as 1993, was not only because of his war-caused incapacity but also because of the economic slump in the wool industry which resulted in low prices for wool. In its reasons for decision the AAT outlined the evidence on that issue, which was accurately described by the primary Judge as “confusing and, at times, contradictory”. For present purposes it is unnecessary to set out the detail of that evidence. In its reasons the AAT stated:“…s.24(2A)(d) was not satisfied in that it was not the incapacity from war-caused injury or war-caused disease, or both, alone, that prevented the veteran from continuing to undertake the remunerative work. The collapse of the wool industry had, on the evidence, been a major contributing reason.”and that it had:“determined that, on the evidence of the veteran, both the oral evidence taken on the day by telephone and documentary evidence, in particular that contained in Exhibit A4, the applicant did not satisfy the ‘alone test’ and had ceased remunerative work due to the combination of the effects of his accepted war-caused disabilities and the economic slump in the wool industry in the 1980’s which continued well into the 1990’s.” The AAT addressed the issue of why the appellant had ceased his last paid work but did not address whether war-caused incapacity alone prevented the appellant from continuing to undertake that work during the assessment period. We do not accept the contention of the respondent that the AAT should be taken to have done so implicitly.Reasoning on the appeal