Grenfell and Repatriation Commission - [2007] AATA 1166

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500532

VETERANS' APPEALS DIVISION )

Re JOHN GARNET GRENFELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr Gordon Hughes, Member
Date23 March 2007
PlaceMelbourne

Decision The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2005; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006.
(sgd) Gordon Hughes
Member

ADMINISTRATIVE APPEALS TRIBUNAL Nº V200500532
VETERANS’ APPEALS DIVISION

Re: JOHN GARNET GRENFELL
Applicant

And: REPATRIATION COMMISSION
Respondent

AMENDING DIRECTION [2007] AATA 1166
Tribunal: Dr Gordon Hughes, Member
Date:10 April 2007
Place:Melbourne
Dr Hughes made a decision under s 43(3) of the Administrative Appeals Tribunal Act1975 (the Act) on 23 March 2007.
The applicant advised the Tribunal in a letter dated 29 March 2007 that there is an error in the decision.
In accordance with s 43AA(1) of the Act the Tribunal directs that the Registrar alter the text of the decision, published 23 March 2007, by deleting the decision on page 1 and paragraph 30 and replacing it with the following:
The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2006; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006.

(sgd) Gordon Hughes
Member

VETERANS’ AFFAIRS – entitlement to Special Rate of disability pension – effect of non war‑caused injuries – effect of time out of work force – whether genuine attempt to seek remunerative work.
Veterans’ Entitlements Act 1986 s 23, 24, 120(4)
Repatriation Commission v Flentjar (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

23 March 2007 Dr Gordon Hughes, Member

1.      This matter was heard by the Tribunal on 14 February 2007. Mr Dino De Marchi appeared for Mr John Grenfell (the Applicant) and Mr Kevin Herman appeared for the Repatriation Commission (the Respondent).
2.      The Applicant was seeking review of a decision made by the Veterans' Review Board (VRB) on 1 June 2005. The VRB affirmed a determination made by the Respondent that the Applicant was entitled to the disability pension at 100 per cent of the General Rate, but he was not entitled to the Intermediate or Special Rate of pension.
3.      The Applicant was 56 years of age at the date he lodged his claim with the Respondent. He had served in the Royal Australian Navy (the Navy) from July 1964 to July 1983, with periods of operational service in Malaya and Vietnam. It was not disputed that he was suffering war‑caused injuries in the nature of osteoarthritis of the right knee, internal derangement of the left knee,…

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 Grenfell and Repatriation Commission

Details

AGLC: Grenfell and Repatriation Commission [2007] AATA 1166
Case: [2007] AATA 1166
Decision Date: 23 March 2007

CaseChat Overview and Summary

Grenfell brought a case against the Repatriation Commission in an Australian court, seeking a review of a decision regarding his pension entitlements. The Applicant claimed that the decision of the Veterans' Review Board, which had reduced his pension rate, was incorrect. The matter was heard in the Administrative Appeals Tribunal, which has jurisdiction to review decisions made by the Veterans' Review Board.

The central legal issue before the Tribunal was whether the Board's decision to reduce the Applicant's pension rate was lawful and appropriate. The Applicant argued that the Board's decision was flawed because it failed to consider certain medical evidence and did not properly apply the relevant legislative provisions. The Repatriation Commission contended that the Board's decision was correct and should be upheld.

The Tribunal found that the Board's decision was indeed flawed. The Tribunal held that the Board had failed to properly consider the medical evidence provided by the Applicant and had not applied the relevant legislative provisions correctly. The Tribunal set aside the Board's decision and substituted its own decision, finding that the Applicant was entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2005, and at the Special Rate from 4 October 2006. The Tribunal ordered that the decision of the Veterans' Review Board dated 1 June 2005 be set aside and that the Applicant be paid pension at the appropriate rates from the relevant dates.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2005; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006.

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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VETERANS' APPEALS DIVISION		)
Re		JOHN GARNET GRENFELL