John Murray and Repatriation Commission - [2014] AATA 307

[2014] AATA 307

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3180

Re

John Murray

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J Toohey

Date 16 May 2014

Place Sydney
The Tribunal affirms the decision under review.

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Senior Member J Toohey
CATCHWORDS – VETERANS ENTITLEMENTS – special rate of pension – multiple accepted conditions – PTSD – head injury – failed business venture – whether applicant prevented from continuing remunerative work by accepted conditions alone – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Veterans Entitlements Act 1986 ss 5Q(1), 19(9), 24(1), 24(2), 120(4)
Cases
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Hendy (2002) 76 ALD 47
Forbes v Repatriation Commission [2000] FCA 328
Flentjar v Repatriation Commission [1997] FCA 1200
Repatriation Commission v Butcher (2007) 94 ALD 364
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Smith v Repatriation Commission [2014] FCAFC 53
Magill v Repatriation Commission [2002] FCA 744
REASONS FOR DECISION
Senior Member J Toohey
Background

Mr John Murray served in the Australian Army from January 1969 to November 1970. He served in Vietnam for 12 months from November 1969. He suffers from multiple disabilities as a result of his service.
In 1996, Mr Murray was diagnosed with post-traumatic stress disorder (PTSD) which the Repatriation Commission (the Commission) has accepted as related to his service.
In 2010, the Tribunal, differently constituted, found that Mr Murray suffered a service-related brain insult in the form of a fat embolism in a motor vehicle accident in 1975. His disability has also been described as post-concussion syndrome. For simplicity, I will refer to it as Mr Murray’s head injury.
Mr Murray receives a service pension at 100 per cent of the General Rate. He contends that he is entitled to a pension at the Special Rate. The Commission disagrees.
Relevant legislation
To qualify for the Special Rate of pension, Mr Murray must satisfy the criteria in s 24(1) of the Veterans Entitlements Act 1986 (the Act). Mr Murray’s claim turns on whether he satisfies s 24(1)(c) and, in particular, whether he ceased to engage in remunerative employment for reasons other than his accepted disabilities.
Section 24(1)(c) has two limbs both of which must be satisfied. The first requires that Mr Murray be, by a reason of his incapacity from his war-caused injury alone, prevented from continuing to undertake remunerative work that he was undertaking.
The first limb is “ameliorated” by s 24(2)(b), the effect of which is to allow a veteran who has not been engaged in remunerative work to be treated as having been prevented, by reason of war-caused incapacity, from continuing to undertake remunerative work that he or she was undertaking, if he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage, and that incapacity is the substantial cause of his or her…

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 John Murray and Repatriation Commission

Details

AGLC: John Murray and Repatriation Commission [2014] AATA 307
Case: [2014] AATA 307
Decision Date

CaseChat Overview and Summary

The matter before the court involved John Murray and the Repatriation Commission, with the primary dispute centering on Mr. Murray’s eligibility for a disability pension. The case was heard in the Federal Court of Australia, where the primary issue was whether Mr. Murray’s cessation of remunerative employment was attributable to his war-caused disabilities alone, as required by the relevant statutory provisions. Mr. Murray, a former serviceman, claimed that his inability to engage in remunerative employment was due to his disabilities, including post-traumatic stress disorder (PTSD) and a head injury sustained during his service and a subsequent motor vehicle accident.

The court was tasked with determining whether Mr. Murray's cessation of employment was due to his disabilities or other factors. This involved assessing the evidence regarding Mr. Murray's business ventures, particularly his slate importing business, and the impact of his partner's actions on his ability to continue in employment. The court had to discern whether the business failures and the resultant financial losses were directly attributable to Mr. Murray’s disabilities or if other factors, such as his partner's mismanagement and fraudulent activities, played a significant role.

In its reasoning, the court examined the evidence presented, including statements from Mr. Murray and his wife, medical reports, and documents provided by the Commission. The court found that while Mr. Murray's disabilities undoubtedly affected his life, the failure of his business and his partner's conduct were significant factors in his inability to maintain employment. The court concluded that the reasons for Mr. Murray's cessation of employment were not solely due to his war-caused incapacity, as required by the statute. Consequently, the court upheld the decision to deny Mr. Murray's claim for a disability pension.

The court's final order affirmed the decision under review, denying Mr. Murray's claim for a disability pension. This decision was based on the finding that Mr. Murray's cessation of remunerative employment was influenced by factors other than his war-caused disabilities, thus not satisfying the statutory requirements for pension eligibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The “assessment period” is from 28 October 2002, when Mr Murray lodged his claim for disability pension, to the date of this decision: s 19(9).The evidence After discussion with counsel at the start of the hearing about the narrow issue to be determined, it was agreed that it was not necessary for Mr and Mrs Murray to give oral evidence and that their written statements would be sufficient. It was also agreed that it would not be necessary to hear oral evidence from medical witnesses who are substantially in agreement as to the significant cognitive impairment suffered by Mr Murray as a result of his accepted conditions. The written material in evidence comprises: statements of evidence from Mr Murray and Mrs Murray; reports of Dr Anthony Dinnen and Dr Selwyn Smith, psychiatrists, and Dr Robin Chase, occupational physician, who saw Mr Murray for assessment; documents provided by the Commission in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”); and the transcript of a hearing of the Veterans Review Board on 27 April 2012 Mr Murray’s employment and business After leaving the Army in 1970, Mr Murray obtained qualifications in irrigation engineering. He started a commercial flower farm near Nowra and was involved in a florist business. The farm became the subject of protracted litigation when it was deemed unfit for human habitation due to soil contamination and was later compulsorily acquired by the Commonwealth. In 1975, Mr Murray was involved in a motor vehicle accident which left him with his head injury. Although not entirely clear from the evidence, it appears accepted the accident was a suicide attempt by Mr Murray who was suffering psychiatric symptoms as a result of his experiences in Vietnam. He first came under psychiatric care in 1975 after the accident. He has been under the care of a number of psychiatrists and psychologists, and on various medications, since. He was on a Disability Support Pension for about ten years from 1975. There is medical evidence, which is not challenged, to the effect that Mr Murray’s PTSD and head injury have affected his cognitive functioning and his ability to withstand stress. In about 1986, Mr Murray went into a slate importing business with a neighbour. He invested around $300,000 and, later, put up three properties as security for loans to the business. The neighbour was a co-director, then an employee, of the business for several years. He and other employees apparently diverted funds from the business over time without Mr Murray’s knowledge. In 1996, the business went into voluntary administration. Mr Murray had to sell his investment properties to meet the company’s debts. In all, he lost around $1.5 million. He has not been employed since. From February 1995, he was again granted a Disability Support Pension. Mr Murray says his former business partner put him under extreme pressure, yelling and shouting at him, and triggering memories of his experiences in Vietnam. The business never made a profit and, apart from being provided with a car towards the end, he never drew an income from it. It was not until his second wife, whom he married in 1992, went through the books of the business that its true state came to light. There was further protracted litigation over the winding up.

Decision

Reasons for decision

A veteran may cease remunerative employment on account of a range of factors, some of which are of such small significance as to be immaterial and which can be disregarded for the purposes of s 24(2)(a): see Cavell (above); see also Magill v Repatriation Commission [2002] FCA 744. That is not the case here. The conduct of Mr Murray’s partner and others, and the failure of the business that it led to, cannot be discounted as insubstantial or immaterial.Conclusion It is clear that Mr Murray has suffered greatly as a result of his war-caused disabilities. There is no doubt that they have affected almost every aspect of his life including his ability to manage his business and undertake remunerative employment. However, for the reasons I have given, I am satisfied that he ceased remunerative employment for reasons – or at least one reason – other than his war-caused incapacity alone. As he has not engaged in the remunerative work since, he cannot avail himself of s 24(2)(b). This means that Mr Murray does not satisfy s 24(1)(c) and, regrettably, his claim must fail. I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3180
Re	John Murray
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J Toohey
Date	16 May 2014
Place	Sydney