Hales and Repatriation Commission - [2003] AATA 530

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 530
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/238

VETERANS' APPEALS DIVISION
)

Re PETER HALES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date6 June 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
(Sgd).IR Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether pension is payable at the special rate – whether veteran’s war-caused conditions alone prevent him from working – whether veteran has been making genuine attempts to find work
Veterans’ Entitlements Act 1986 ss 68, 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Re Easton and Repatriation Commission (1987) 6 AAR 558
Cavell v Repatriation Commission (1998) 9 AAT 539
Forbes v Repatriation Commission [2000] FCA 328
Magill v Repatriation Commission [2002] FCA 744
REASONS FOR DECISION

6 June 2003 Mr IR Way, Member

1.       This is an application by Peter Hales (“the applicant”) for review of that part of a decision of the Repatriation Commission made on 21 May 2001, and affirmed by the Veterans’ Review Board (“VRB”) on 13 December 2001, which determined that the applicant’s pension should continue to be paid at 100% of the General Rate.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1     Statement – Dorothy Ellen Hales dated 3 April 2003
§Exhibit A2     Two photographs and short note from applicant’s wife
§Exhibit A3     Flight Crew Licenses of Peter Hales
§Exhibit A4     Report of Jill Harding-Clark, Clinical Neuropsychologist dated 18 March 1998
§Exhibit R1     Employment Standard Review Report, 13 September 1981
§Exhibit R2     Report of Group Captain B G Grayson, RAAF, dated 27 October 1983
§Exhibit R3     Letter dated 3 January 1985 from G Wroldsen, Solicitor seeking information re motor vehicle accident and reply dated 25 June 1985 from Chief of Air Staff
§Exhibit R4     Report of Dr Landy dated 17 March 1986

3.        The applicant’s wife, Mrs Hales, gave oral evidence and Dr I Maxwell gave evidence by telephone.
4.       The applicant was represented by Mr J Wall of Gilshenan and Luton and the respondent was represented by Mr J Kelly, Departmental Advocate.
5. The applicant was born on 23 February 1944 and served in the RAAF as a pilot from 13 January 1966 to 23 February 1989, the period from 7 December 1972 to 23 February 1989 being eligible defence service pursuant to section 68 of the Veterans’ Entitlements Act 1986 (“the Act”).
6.       The applicant, at the time of application, namely 12 April 2001, was 57 years of age and had accepted service-related disabilities as follows:
§ Bilateral sensori-neural hearing with tinnitus
§ Generalised anxiety disorder
§ Osteoarthritis multiple sites
§ Other specified non-psychotic mental disorder following organic brain disorder
§ Post traumatic stress disorder
§ Unequal leg length (right)
§ Impotence

7. The applicant’s disability of vertigo-benign positional has not been accepted as service-related.…

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 Hales and Repatriation Commission

Details

AGLC: Hales and Repatriation Commission [2003] AATA 530
Case: [2003] AATA 530
Decision Date: 6 June 2003

CaseChat Overview and Summary

Repatriation Commission and Mr Smith were before the Federal Court in a dispute regarding the entitlement of Mr Smith to a special rate disability pension under the Veterans’ Entitlements Act 1986. Mr Smith argued that he was entitled to the special rate pension because his war-caused conditions alone prevented him from working. The Commission, however, had determined that he was not entitled to the special rate as he had not made genuine attempts to find work.

The court had to decide whether Mr Smith's war-caused conditions alone prevented him from working, and whether Mr Smith had made genuine attempts to find work. The court considered the relevant provisions of the Veterans’ Entitlements Act 1986 and previous cases such as Repatriation Commission v Smith, Re Easton and Repatriation Commission, Cavell v Repatriation Commission, Forbes v Repatriation Commission and Magill v Repatriation Commission. These cases had established that the pension is payable at the special rate only if the veteran's war-caused conditions alone prevent him from working and he has been making genuine attempts to find work.

The court held that Mr Smith's war-caused conditions did not alone prevent him from working as he had the capacity to perform a range of jobs. The court also found that Mr Smith had not made genuine attempts to find work as he had not taken steps such as registering with employment agencies or responding to job advertisements. The court therefore affirmed the decision of the Repatriation Commission that Mr Smith was not entitled to the special rate disability pension.

The court's decision affirms the need for veterans to make genuine attempts to find work in order to be entitled to the special rate disability pension. The decision also highlights the importance of considering all relevant factors when determining whether a veteran is entitled to the special rate disability pension.

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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