Gutteridge and Repatriation Commission - [2008] AATA 168

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 168
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4323

VETERANS' APPEALS DIVISION )

Re GEOFFREY GUTTERIDGE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott RFD Senior Member
Date28 February 2008
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Gutteridge is entitled to be paid pension at the Intermediate rate under section 23 of the Veterans’ Entitlements Act 1986 with effect from 26 February 2003.
...................[Sgd]........................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – application for special rate of pension – capacity to work – whether applicant’s war caused injury or disease the cause alone, of his being unable to work – decision under review aside, applicant granted pension at the intermediate rate.
Veterans’ Entitlements Act 1986 ss 19, 23, 24
Hall v Repatriation Commission (1994) 33 ALD 454
Cavell v Repatriation Commission (1988) 9 AAR 534
Jebb v Repatriation Commission (1988) 80 ALR 329
REASONS FOR DECISION

28 February 2008 Dr P McDermott RFD Senior Member
INTRODUCTION
1.      Mr Geoffrey Gutteridge, a veteran, has sought the review of a decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board, that he was not eligible to be paid a pension at the special rate. I am required to consider whether the veteran meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
2.      Mr Gutteridge served with the Royal Australian Navy from 1966 until 1974. He had operational service in Vietnam. He has a number of accepted disabilities including post traumatic stress disorder. Mr Gutteridge has been assessed as eligible for payment of pension at 100% of the general rate.
ASSESSMENT PERIOD
3.      This is an instance where the administrative decision-making process is a “continuum”. The Tribunal’s function in considering this application is a part of that “continuum”. I am required to assess the entitlement of the applicant during the whole of the assessment period[1].
4. Section 19(5C) (a) of the Act requires that the rate of pension is to be determined during the “assessment period”. That term is defined in s19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
5.      The application day in this case was 26 May 2003 and the assessment period runs from that day.
MEDICAL WITNESSES
6.      Two medical witnesses were called on behalf of the veteran who gave evidence on his medical conditions: Dr Ivan Holm, psychiatrist; and Dr Larry Gahan, his general practitioner. Mr Gutteridge and Mrs Rhonda Gutteridge also gave evidence on his medical conditions. The respondent did not call any medical witnesses.
7.      Dr Ivan Holm in his report of 14 June 2006[2] has concluded that the veteran suffers…

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 Gutteridge and Repatriation Commission

Details

AGLC: Gutteridge and Repatriation Commission [2008] AATA 168
Case: [2008] AATA 168
Decision Date: 28 February 2008

CaseChat Overview and Summary

The matter before the Court was a dispute between Mr Gutteridge and the Repatriation Commission regarding the rate of pension to which Mr Gutteridge was entitled under the Veterans’ Entitlements Act 1986. The central issue was whether Mr Gutteridge’s war-caused injury or disease was the sole reason for his inability to work, which would entitle him to a special rate of pension, or if other factors contributed to his incapacity, limiting him to an intermediate rate. The case was heard in the Federal Court of Australia.

The court was tasked with interpreting the statutory provisions concerning the special rate of pension under the Veterans’ Entitlements Act 1986, specifically sections 19, 23, and 24. The court needed to consider the relevant case law, including Hall v Repatriation Commission, Cavell v Repatriation Commission, and Jebb v Repatriation Commission, to ascertain whether Mr Gutteridge’s condition was the sole cause of his inability to work. The interpretation of these sections and the applicability of the precedents were pivotal in determining the outcome of the case.

In reviewing the decision, the court found that the Repatriation Commission had not correctly applied the statutory criteria when assessing Mr Gutteridge’s eligibility for the special rate of pension. The court held that the Commission should have considered all relevant factors and evidence to determine whether Mr Gutteridge’s war-caused injury or disease was the sole cause of his incapacity to work. Given the error in the Commission’s decision-making process, the Tribunal set aside the original decision and substituted it with a decision that Mr Gutteridge is entitled to the intermediate rate of pension under section 23 of the Act, effective from 26 February 2003.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that Mr Gutteridge is entitled to be paid pension at the Intermediate rate under section 23 of the Veterans’ Entitlements Act 1986 with effect from 26 February 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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VETERANS' APPEALS DIVISION		)
Re		GEOFFREY GUTTERIDGE