Leane and Repatriation Commission

[2003] AATA 125

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 125

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2001/269

VETERANS' APPEALS  DIVISION		)
Re		John Aubrey Leane

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr G A Mowbray

Date7 February 2003

PlaceCanberra

Decision The Tribunal affirms the decision under review of the Veterans’ Review Board of 1 March 2001.

.................(signed)................

Member

CATCHWORDS

VETERANS - special rate – whether totally and permanently incapacitated – whether war-caused incapacity alone prevents from working – whether ceased work for reasons other than war-caused incapacity – whether genuinely seeking to engage in remunerative work

Veterans’ Entitlement Act 1986 s 24

Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17

Forbes v Repatriation Commission (2000) 101 FCR 50; 171 ALR 131; 58 ALD 394; 31 AAR 381

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 26 AAR 93; 48 ALD 1

Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113

Magill v Repatriation Commission [2002] FCA 244

Repatriation Commission v Sheehy (1996) 39 ALD 286; 133 ALR 654

Re Sutton and Repatriation Commission [2001] AATA 119

Re Hornery and Repatriation Commission (1998) 28 AAR 193; 52 ALD 317

REASONS FOR DECISION

7 February 2003 Mr G A Mowbray          

1.       This is an application by Mr John Leane for review of a decision that he was entitled to 100% of the General Rate of disability pension but not to the special rate of pension under the Veterans’ Entitlement Act 1986 (the Act).  This was a decision by the Veterans’ Review Board setting aside a decision of the Repatriation Commission.

2.       This matter was heard on 11 March 2002.  Mr Leane was represented by Mr Dino De Marchi of De Marchi and Associates.  The Repatriation Commission was represented by Mr Stephen Modder, an advocate from the Department of Veterans’ Affairs.

Background

3.       Mr Leane was born on 25 April 1936.  He served in the Australian Army from 31 May 1954 until transferring to the Royal Australian Air Force in 1980.  He was discharged from the RAAF on 20 July 1988.  His service includes operational service as defined in the Act in Vietnam from 29 May 1965 to 7 November 1966.  He also rendered defence service as defined in the Act from 7 December 1972 until his discharge.  Mr Leane had brief periods of employment as a sales assistant and with the ACT Department of Education after his discharge.  He then worked for ACT Electricity and Water (ACTEW) from 1989 until 1996.

4.       On 18 November 1996 Mr Leane lodged an application for disability pension relating to several conditions.  On 3 April 1997 he made an additional claim relating to osteoarthritis in both hips.  On 30 July 1997 the Repatriation Commission accepted claims for “bilateral sensorineural hearing loss with tinnitus”, “post traumatic stress disorder” and “osteoarthrosis of the right wrist”.  It refused claims for “osteoarthrosis of both hips” and “osteoarthrosis of…