Johnson and Repatriation Commission - [2002] AATA 684

DECISION AND REASONS FOR DECISION [2002] AATA 684

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/26

VETERANS' APPEALS DIVISION       )
           Re      KEITH DOUGLAS JOHNSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date10 July 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - Recreation Transport Allowance - whether applicant qualified for higher rate – effect of accepted disabilities on applicant's locomotion.
Veterans' Entitlements Act 1986 s.104
Re Clifford & Repatriation Commission (1988) 14 ALD 721

REASONS FOR DECISION

10 July 2002 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Keith Douglas Johnson (the applicant) for review of two decisions of the Repatriation Commission (the respondent) dated 1 November 2002 (T2) wherein the decision of 26 September 2001 (T9) to grant Recreation Transport Allowance (RTA) at the lower rate was affirmed and that the date of payment was varied with effect from 9 May 2001. The matter was heard by the Tribunal on Wednesday 10 July 2002 and at the conclusion of the hearing the Tribunal handed down an oral decision affirming the respondent's decision. The applicant has requested reasons in writing and the Tribunal so obliges through these written reasons.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12) as well as three exhibits, two lodged by the applicant (Exhibits A1 and A2) and one by the respondent (Exhibit R1). In addition, the Tribunal heard oral evidence from the applicant, who represented himself, whilst the respondent was represented by Mr G. Doube, a departmental advocate.
The issues before this Tribunal were firstly, whether or not the applicant qualifies for payment of RTA at the higher rate in accordance with the provisions of section 104 of the Veterans' Entitlements Act 1986 (the Act); and secondly, whether or not the applicant is suffering incapacity from war-caused conditions of a kind described in items 1, 2 and 3 of Column 1 of the table contained in sub-section 104(1) of the Act.
The applicant, Keith Douglas Johnson, who was born on 20 December 1944, is currently aged 57 years and is unemployed. He stated in his evidence that he enlisted in the Army on 13 February 1962 and was discharged on 19 April 1986. He served in the Australian Army Catering Corps doing "stints" in both Malaya and Sarawak (Borneo). He stated that he served in all about sixteen months in both places with about four months in Sarawak in 1965 and the full year in Malaya in 1964. He further stated that he served in Vietnam from about April 1967 to January 1968 and in 1975 at the Butterworth base, Malaysia, for about four months. Apart from these all other time was served in Australia.
In his oral evidence the applicant agreed that his accepted disabilities include tinnitus, epilepsy, allergic rhinitis, dermatitis, photophobia, chronic solar skin damage, bilateral sensorineural hearing loss,…

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 Johnson and Repatriation Commission

Details

AGLC: Johnson and Repatriation Commission [2002] AATA 684
Case: [2002] AATA 684
Decision Date: 10 July 2002

CaseChat Overview and Summary

The case of Johnson and the Repatriation Commission involved a dispute over the Recreation Transport Allowance under the Veterans' Entitlements Act 1986. The applicant, Mr Johnson, sought a higher rate of allowance due to his disabilities, which he argued affected his ability to walk. The matter was brought before the court to determine whether Mr Johnson qualified for the higher rate of allowance based on the impact of his disabilities on his locomotion.

The court was required to decide whether Mr Johnson's disabilities met the criteria for the higher rate of Recreation Transport Allowance. The relevant provision of the Veterans' Entitlements Act 1986, section 104, stipulates that a veteran may be eligible for a higher rate of allowance if their locomotion is affected by their accepted disabilities. The court had to interpret this provision and assess the evidence regarding the extent of Mr Johnson's disabilities and their impact on his ability to walk.

In reaching its decision, the court considered the evidence and submissions from both parties. It examined the medical reports and other documentation provided to determine the severity and impact of Mr Johnson's disabilities. The court also referred to previous cases, such as Re Clifford & Repatriation Commission, to assist in interpreting the statutory criteria. Ultimately, the court found that Mr Johnson's disabilities did not sufficiently affect his locomotion to qualify for the higher rate of allowance. The court's reasoning was based on the specific criteria outlined in the statute and the evidence presented.

The final order of the court was that Mr Johnson was not eligible for the higher rate of Recreation Transport Allowance under the Veterans' Entitlements Act 1986. The court's decision was grounded in the statutory criteria and the evidence regarding the impact of Mr Johnson's disabilities on his ability to walk.

Orders