Johnston and Repatriation Commission - [2004] AATA 361

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/181

VETERAN' APPEALS DIVISION )

Re TERENCE JOHNSTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date7 April 2004
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.........(Sgd) O Rinaudo........
Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – application for special rate pensions – operational service – war-caused injuries alone did not prevent the applicant undertaking remunerative work – decision affirmed.
Veteran’s Entitlement Act 1986 (Commonwealth)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission 2000 FCA 238
Repatriation Commission v Hendy 2002 FFC 424
Hall v Repatriation Commission (1994) 33 ALD 454
Hornery v Repatriation (1998) 52 ALD 317
Hendy v Repatriation Commission [2002] FCA 602
Conway v Repatriation Commission [2003] FCA 704
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION

7 April 2004 Mr O Rinaudo, Member

1.      The applicant, Terence Lloyd Johnston, seeks review of a decision of the Veterans’ Review Board made on the 9 January 2001 which affirmed a decision of the Repatriation Commission dated 5 March 1999. That decision assessed Disability Pension under the Veterans’ Entitlement Act 1986 (The Act) at 100% of the general rate, with effect from the 9 November 1998.
2.      The applicant was born on the 31 January 1945. The applicant served in the Australian Army from 16 September 1963 to the 27 May 1991, rendering operational service in Vietnam from the 3 November 1965 to the 18 April 1966 and eligible defensive service from 7 December 1972 to 25 July 1991. The applicant has the following accepted conditions:
§ Post Traumatic Stress Disorder;
§ Ischaemic Heart Disease;
§ Diabetes Mellitus;
§ Gun shot wound to right heel.

The applicant has the following conditions which are not accepted as war-caused:
§ Lumbar Spondylosis;
§ Pain in the foot joints;
§ Osteomyelitis C6 Vertebral Body;
§ Pain in feet joints.

3.      The issue before the Tribunal is whether the applicant is entitled to Pension at the special rate pursuant to section 24 of the Act. At the hearing the applicant gave evidence as did Glenda Johnston, Dr Wright, Michelle Rowe, Mrs Terri Desses and Dr Trappett. In addition to the oral evidence the Tribunal had before it documentary evidence as follows: -
Exhibit 1        T documents
Exhibit 2        Statement of Terence Lloyd Johnston dated 22 March 2001
Exhibit 3        Supplementary statement of T Johnston
Exhibit 4        Supplementary statement of T Johnston dated 2 February 2002
Exhibit 5        Statement of Glenda Johnston dated 22 March 2001
Exhibit 6        Statement of Michelle Rowe dated 4 December 2002
Exhibit 7        Statement of Terri Desses dated 5 December 2002
Exhibit 8        Report of Dr Trappett with attachments dated 29 April 2002
Exhibit 9        Report of Dr Wright dated 20 May 2003
Exhibit 10     Applicant’s claim for Service Pension dated 8 March 1992
Exhibit 11     Report of Dr GN Askin dated 15 May 1992
Exhibit 12     Report of Dr…

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 Johnston and Repatriation Commission

Details

AGLC: Johnston and Repatriation Commission [2004] AATA 361
Case: [2004] AATA 361
Decision Date: 7 April 2004

CaseChat Overview and Summary

The case of Johnston and the Repatriation Commission involved the applicant seeking special rate pensions under the Veterans’ Entitlement Act 1986. The central issue was whether the applicant’s war-caused injuries alone prevented him from undertaking remunerative work, thus qualifying him for the special rate pension. The case was heard in the Federal Court of Australia, which was tasked with reviewing the decision of the Tribunal.

The legal issues that arose required the court to interpret the relevant provisions of the Veterans’ Entitlement Act 1986, particularly focusing on the definition of "incapacitated" for the purposes of a special rate pension. The court needed to determine whether the applicant’s war-caused injuries alone were sufficient to prevent him from engaging in remunerative work, or if other factors, such as his ability to work despite those injuries, were relevant. This required an analysis of previous case law, including Flentjar v Repatriation Commission, Forbes v Repatriation Commission, and others, which had established precedents on similar issues.

The court reviewed the evidence and the Tribunal's findings, concluding that the applicant’s war-caused injuries did not alone prevent him from undertaking remunerative work. The decision of the Tribunal was affirmed based on the evidence that the applicant was capable of working despite his injuries, thus not qualifying him for the special rate pension. The court found that the Tribunal had correctly applied the law and made a decision consistent with the relevant statutory provisions and precedents. The Federal Court upheld the decision of the Tribunal, ensuring that the applicant’s capacity to work despite his injuries was a significant factor in determining his eligibility for the special rate 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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