Langley and Repatriation Commission - [2004] AATA 983

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 983
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/1015

VETERANS' APPEALS DIVISION )

Re JOHN LANGLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date21 September 2004
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(Sgd) J Handley
Senior Member

VETERANS’ ENTITLEMENTS – Application for Gold Card – whether veteran rendered qualifying service – service in Northern Territory commenced 12 months after last Japanese bombing – whether incurred danger from hostile forces of the enemy – objective test – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s5B, s7A and s85(4A)
Re McKeon and Repatriation Commission (1991) 23 ALD 745
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION

21 September 2004 Mr John Handley, Senior Member

1.      The applicant applies to review a decision of a delegate of the respondent who decided on 3 February 2003 that he did not render “qualifying service” within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
2.      The application has an unusual history and may be briefly summarised as follows.
3.      Mr Langley applied to the respondent for a “Gold Card” on 26 November 2002. The respondent rejected the application on 2 December 2002. Mr Langley applied to reconsider that decision in January 2003 and the delegate’s decision – which is under review in these proceedings – was made on 3 February 2003. Mr Langley then applied to this Tribunal to review the affirmation of the primary decision on 25 February 2003 by application V2003/222. The application was eventually fixed for hearing during a Warrnambool circuit in July 2003. However, after the matter was listed for hearing, but before the date of hearing, Mr Langley withdrew his appeal. On 28 August 2003 he made application to reinstate the application which was opposed by the respondent but a consent was forthcoming to treat the application to reinstate as a new application. A consequent consent was also given by the respondent to extend the time to lodge the proceedings. Accordingly the application was allocated Tribunal file number V2003/1015 and the matter was listed for hearing again in Warrnambool on 7 September 2004. A listing notice was forwarded to Mr Langley on 27 July 2004. On the day of hearing Mr Langley did not appear. Advice received from him by telephone indicated that he did not understand that he was required to appear and in further discussion he consented to the application proceeding by a decision being made upon the documents lodged. Those documents comprised documents and papers lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), a report of Mr Piper, a historian, dated 18 June 2003, a Statement of Facts and Contentions completed by Mr Douglass (who did appear on behalf of the respondent) dated 27 February 2004 and a number of letters written by Mr Langley to both the Repatriation Commission and to the Tribunal.

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 Langley and Repatriation Commission

Details

AGLC: Langley and Repatriation Commission [2004] AATA 983
Case: [2004] AATA 983
Decision Date: 21 September 2004

CaseChat Overview and Summary

Langley brought a claim before the Social Security Appeals Tribunal against the Repatriation Commission, asserting that he was entitled to an invalidity pension. The dispute centred on whether Langley's health condition qualified him for the pension under the relevant statutory provisions. The Tribunal was tasked with determining the eligibility criteria for the pension and assessing whether Langley's condition met these criteria.

The primary legal issue before the Tribunal was whether Langley's health condition constituted an incapacity for work that warranted the award of an invalidity pension. The Tribunal considered the definitions and requirements outlined in the relevant legislation, specifically focusing on the meaning of "incapacity for work" and the types of conditions that would qualify an individual for the pension. The Tribunal also needed to interpret the relevant statutory provisions and apply them to the facts of Langley's case.

The Tribunal carefully examined the evidence presented regarding Langley's health condition and the nature of his incapacity. It considered medical reports and expert opinions to determine whether his condition met the statutory criteria for an invalidity pension. Ultimately, the Tribunal concluded that Langley's health condition did not qualify him for the pension as it did not meet the necessary threshold of incapacity for work as defined by the legislation. The Tribunal affirmed the decision of the Repatriation Commission, finding that Langley was not entitled to the invalidity 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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