Hearne and Repatriation Commission - [2006] AATA 117

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 117
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/855
VETERANS' APPEALS DIVISION

Re: VICTOR EDWARD JAMES HEARNE
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal: Mr E. Fice, Member
Date:10 February 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) Egon Fice
Member

VETERANS' AFFAIRS - special rate – whether applicant entitled to disability pension at special rate – "alone" test - genuinely seeking to engage in remunerative work
Veterans' Entitlements Act 1986 ss 24(1)(c), 24(2)(b)
Banovich v Repatriation Commission (1986) 6 AAR 113
Giesen v Repatriation Commission (2005) 87 ALD 347
Hendy v Repatriation Commission (2002) 72 ALD 112
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Flentjar v Repatriation Commission (1997) 48 ALD 1
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
10 February 2006  Mr E. Fice, Member
1.      Mr Victor Edward James Hearne, who receives a disability pension at 100 per cent of the general rate, on 16 September 2003 applied for an increase in his pension to either the intermediate rate or special rate of pension. On 23 September 2003 a delegate of the Repatriation Commission (the Commission) advised Mr Hearne that his application for an increase in disability pension was unsuccessful. On 8 October 2003 Mr Hearne applied to the Veterans’ Review Board (VRB) to have that decision reviewed. On 16 June 2004, the VRB affirmed the decision under review. Mr Hearne now seeks a review of the VRB decision, claiming he is entitled to a disability pension at the special rate, as is provided for under s 24 of the Veterans' Entitlements Act 1986 (the Act).
BACKGROUND
2.      Mr Hearne was born on 26 July 1947. He was 56 years old at the date of making his application for an increase in the disability pension pursuant to s15 of the Act.
3.      Mr Hearne had 20 years service in the Australian Army (the Army) between 1964 and 1984. He had operational service in South Vietnam between 1968 and 1969.
4.      Before joining the Army, Mr Hearne worked for the Victorian Railways in 1962; with a side show in 1963; and in the course of 1964, he was employed as a roustabout on a property. I take that description to mean a general farm hand.
5.      Mr Hearne enlisted in the Army on 31 August 1964. After completing a trade course, on 22 September 1965 Mr Hearne qualified as a hygiene inspector. He reached the rank of Staff Sergeant. Mr Hearne was discharged from the Army on 10 September 1984, upon his request, after he had completed 20 years of service. In his application for discharge, Mr Hearne made the following statement:
At the end of August [1984] I will have completed 20 years service and my disabilities are deteriorating making it extremely difficult to carry out my employment as I would like it to be done.

The…

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 Hearne and Repatriation Commission

Details

AGLC: Hearne and Repatriation Commission [2006] AATA 117
Case: [2006] AATA 117
Decision Date: 10 February 2006

CaseChat Overview and Summary

Victor Edward James Hearne sought a review of a decision by the Veterans' Review Board which had affirmed a decision of the Repatriation Commission that he was not entitled to a disability pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 (Cth). The Tribunal held that Mr Hearne had not established that his war-caused disabilities alone prevented him from continuing to undertake remunerative work that he was undertaking prior to joining the Army. In particular, the Tribunal found that Mr Hearne had not genuinely sought to engage in remunerative work following his retirement from the Army. The Tribunal affirmed the decision of the Commission.

The Administrative Appeals Tribunal was required to determine whether Mr Hearne met the requirements for a disability pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 (Cth). In particular, the Tribunal was required to determine whether Mr Hearne was alone, by reason of his war-caused incapacity, prevented from continuing to undertake remunerative work that he was undertaking. In addition, the Tribunal was required to determine whether Mr Hearne genuinely sought to engage in remunerative work following his retirement from the Army.

The Tribunal found that Mr Hearne had not established that he was alone, by reason of his war-caused disabilities, prevented from continuing to undertake remunerative work that he was undertaking. The Tribunal found that Mr Hearne's war-caused disabilities were not the sole factor preventing him from continuing to undertake remunerative work that he was undertaking. In particular, the Tribunal found that Mr Hearne had not genuinely sought to engage in remunerative work following his retirement from the Army. The Tribunal found that Mr Hearne had not produced any documentary evidence of his attempts to obtain remunerative work. The Tribunal also found that Mr Hearne's claims that he had genuinely sought to obtain remunerative work after discharge from the Army were inconsistent with his evidence that he left the Army because he believed he could not continue to do his work properly as a hygiene inspector; and that he had made a claim for an invalid pension. The Tribunal found that the decision of the Commission was correct and should be affirmed.

Orders