HARRY NEST and REPATRIATION COMMISSION - [2009] AATA 112

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3019

VETERANS' APPEALS DIVISION )

Re HARRY NEST

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Date18 February 2009
PlaceBrisbane

Decision
The decision under review is affirmed.

......................[Sgd]..................
SENIOR MEMBER

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – appropriate rate of pension – whether war-caused disabilities, alone, prevent Applicant from undertaking remunerative work – condition of lumbar spondylosis accepted as defence-caused – non war-caused conditions also prevent Applicant from undertaking remunerative work – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 19, 20, 23, 24(1), 24(2), 120
Apthorpe v Repatriation Commission (1987) 13 ALD 656
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers and Repatriation Commission (1995) 36 ALD 207
Flentjar and Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Leane v Repatriation Commission [2003] FCA 889
Magill and Repatriation Commission [2002] FCA 744
Rendell and Repatriation Commission [2001] FCA 1881
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Braund (1991) 23 ALD 591
Tomlin v Repatriation Commission [1997] FCA 705
REASONS FOR DECISION

18 February 2009 Dr K S Levy RFD, Senior Member

BACKGROUND
1.      The Applicant is Harry Eerik Nest. Following service in the Royal Australian Navy (RAN) from 31 May 1982 to 30 May 2004, he was discharged on medical grounds. He was then 43 years of age and has not sought work since. He applied on 6 July 2004 for a pension based on a condition of anxiety. On 15 February 2005 it was accepted that he had a defence-caused condition of depressive disorder with effect from 6 April 2004. On 16 February 2005 he was granted a disability pension at 100 % of the general rate. He subsequently had a condition of lumbar spondylosis accepted as defence-caused with effect from 17 November 2005, and, on 9 June 2006, it was determined that a disability pension of 100 % of the general rate was still the appropriate pension for his accepted conditions. He appealed on 23 June 2006. On 27 November 2006 it was determined that further professional reports were required. Subsequently, the Veterans’ Review Board, on 21 April 2008, determined that the appropriate rate of pension was still 100% of the general rate. Mr Nest now appeals that decision to the Administrative Appeals Tribunal.
ISSUES
2.      The question for the Tribunal is whether the pension payable to Mr Nest is correctly assessed at 100 % of the general rate under the Veterans’ Entitlements Act 1986 (“the Act”). Taking account of submissions made at the hearing and the Statements of Facts and Contentions of the Applicant and the Respondent, the issue specifically is whether Mr Nest is entitled to pension at the intermediate rate (s 23) or at the special rate (s 24).
EVIDENCE
3.      Oral evidence was received from the Applicant and Dr John Sowby. Mr Nest has…

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 HARRY NEST and REPATRIATION COMMISSION

Details

AGLC: HARRY NEST and REPATRIATION COMMISSION [2009] AATA 112
Case: [2009] AATA 112
Decision Date: 18 February 2009

CaseChat Overview and Summary

The matter before the Court involved Harry Nest, the Applicant, and the Repatriation Commission, the Respondent. The dispute centred around the appropriate rate of pension that the Applicant should receive under the Veterans' Entitlements Act 1986. The case was heard in the Federal Court of Australia. The Applicant argued that his war-caused disabilities should entitle him to a higher pension rate, while the Respondent maintained that his non war-caused disabilities also prevented him from undertaking remunerative work, thus affecting the pension rate.

The primary legal issues that the Court had to address were whether the Applicant's war-caused disabilities, specifically his condition of lumbar spondylosis, were the sole impediment to him undertaking remunerative work, and if so, whether this entitled him to a higher pension rate. Additionally, the Court had to consider the impact of the Applicant's non war-caused conditions on his ability to work. The Court examined the relevant provisions of the Veterans' Entitlements Act 1986 and referred to previous cases such as Apthorpe v Repatriation Commission, Cavell v Repatriation Commission, and others to interpret the statutory provisions and determine the appropriate pension rate.

The Court found that while the Applicant's lumbar spondylosis was indeed caused by his war service, it was not the sole factor preventing him from undertaking remunerative work. The Applicant also had non war-caused conditions, such as hypertension and other musculoskeletal issues, that contributed to his inability to work. The Court relied on the principle that the pension rate should reflect the overall capacity of the veteran to undertake work, considering both war-caused and non war-caused conditions. The Court concluded that the decision of the Respondent, affirming the initial assessment, was correct and upheld the decision under review.

The Court affirmed the decision of the Repatriation Commission, maintaining the pension rate as determined. This decision reinforces the importance of considering both war-caused and non war-caused conditions when assessing a veteran's capacity to work and determining the appropriate pension rate under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

The decision under review is affirmed.

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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