KEVIN JORDAN and REPATRIATION COMMISSION - [2009] AATA 331

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 331
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5029;

VETERANS' APPEALS DIVISION ) 2008/5031

Re KEVIN JORDAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member
Date12 May 2009
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.................[Sgd].......................
Senior Member

EVIDENCE
3.      Mr Jordan gave oral evidence in support of his claim and his written statements, one of which was received by the Department of Veterans’ Affairs on 22 June 2006 and the other by this Tribunal on 20 January 2009. He is currently 64 years of age and was 60 years of age when he made the application relevant to this matter. He served with the Australian Army as a national serviceman from 30 June 1965 to 29 June 1967. He served on operational service with 5RAR in South Vietnam from 6 May 1966 to 12 May 1967.
4.      Prior to national service, Mr Jordan worked as a storeman for a large store in Melbourne and returned to that employment on discharge from the Army in 1967. In 1968, he commenced employment as a telegraphist in training with the Postmaster General’s Department (“PMG”), later renamed Telecom, and subsequently obtained an administrative position there in 1975. He remained in the clerical stream with that organisation until he accepted a redundancy in 1996. Following his redundancy, he moved to Hervey Bay in Queensland and stayed there until 2000, at which time he moved temporarily to the Philippines. He returned to Hervey Bay in 2004.
5.      His evidence was that following his return from national service, in 1967, he drank a lot and went to “girlie” bars in Asia as often as he could. Indeed, from 1974 to 1975, he had 12 months leave, which he took on half pay so that the period of leave was longer. He took the balance of that 12 month period as leave without pay. He said he felt as though he needed a break at the time as he felt stressed. He had adopted a pattern of taking his annual leave (and sometimes long service leave) in two or three smaller periods each year. He almost invariably went to Asian destinations in these periods.
6.      While he worked at PMG/Telecom, he fell in with a drinking crowd. His was a 24 hour a day job and the Post Office Hotel was just across the road. It was a convenient place to have a drink and he could always find someone from his work in there drinking.
7.      Mr Jordan gave evidence that he had a long-term pattern of drinking at the time of his redundancy in 1996, and that he was agitated and would go to the hotel at lunch-time and not return to work on some days. He would also drink at nights. In cross-examination, he told Mr Kelly for the respondent that his redundancy occurred just before Telecom became Telstra. He and a number of other staff…

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.

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Details

Case: [2009] AATA 331
Decision Date: 12 May 2009

CaseChat Overview and Summary

In the case of Kevin Jordan and the Repatriation Commission, the matter came before the court concerning a disability pension application made by the applicant, who had served in the Australian Defence Force. The dispute centred on whether the applicant was entitled to a special rate of disability pension under the Veterans' Entitlements Act 1986. The Tribunal was tasked with reviewing the decision of the Commission to deny the applicant the special rate of pension.

The primary legal issues that the court had to determine were the interpretation of "remunerative work" within the context of the legislation and whether the applicant was able to engage in such work despite his war-caused disease. The court had to consider the meaning of "remunerative work" and whether it referred to the applicant's main or chosen work rather than his last employment. Additionally, the court had to examine whether the disease alone precluded the applicant from engaging in remunerative work or if other factors also played a role.

In reaching its decision, the Tribunal emphasised that the focus should be on the nature of the work the applicant was able to perform, rather than solely on the war-caused disease. The court held that for the purposes of determining the special rate of disability pension, "remunerative work" referred to the main or chosen work of the individual, not necessarily the last work they performed. The Tribunal further found that the disease was not the sole factor preventing the applicant from engaging in remunerative work, as other considerations also needed to be taken into account. Based on this reasoning, the Tribunal concluded that the applicant was not entitled to the special rate of disability pension.

The Tribunal affirmed the decision of the Repatriation Commission, upholding the denial of the special rate of disability pension to the applicant. The court found that the applicant's ability to engage in remunerative work was not solely dependent on his war-caused disease, and that other factors also needed to be considered. Consequently, the applicant was not entitled to the special rate of pension as per the provisions of the Veterans' Entitlements Act 1986.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		) 2008/5031
Re		KEVIN JORDAN